Opinion

Simms v. Wetzel

Court
District Court, M.D. Pennsylvania
Filed
Feb 12, 2024
Cited by
0 cases
Authority
More cited than 29.2%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SHAWN M. SIMMS, :

Plaintiffs : CIVIL ACTION NO. 3:20-1411

v. : (JUDGE MANNION)

JOHN WETZEL, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Shawn M. Simms, an inmate currently confined at the Benner

Township State Correctional Institution, Bellefonte, Pennsylvania, filed the

above captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1,

complaint). The matter is proceeding via a second amended complaint. (Doc.

137). The named Defendants are Dr. Andrew Dancha, Physician Assistant

Ethan Ernst, and Dr. Vernon Preston (“Medical Defendants”) and Sgt.

Drexler, C.O. Cummings, C.O. Pollock, C.O. Showers, and Sgt. Roberts

(“Corrections Defendants”). Id. Plaintiff’s second amended complaint

challenges the medical care he received regarding an injury to his right foot

and the resulting denial of a wheelchair pusher and medical supplies, namely

trash bags to cover Plaintiff’s cast. Id. Plaintiff seeks compensatory and

denial of adequate medical care and treatment and denial of “medical

supplies necessary to maintain proper medical treatment.” Id.

By Memorandum and Order dated April 4, 2023, the Court granted the

Medical Defendants’ motion and supplemental motion for summary

judgment on Plaintiff’s Eighth Amendment claim of denial of adequate

medical care and treatment. (Docs. 207, 208).

Presently before the Court is a motion for summary judgment, filed on

behalf of the remaining Commonwealth Defendants, Cummings, Drexler,

Pollock, Roberts and Showers. (Doc. 210). The motion is fully briefed and is

ripe for disposition. For the reasons that follow, the Court will grant the

Commonwealth Defendants’ motion for summary judgment.

II. Standard of Review

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence

would affect the outcome of the case under applicable substantive law. Id. at

248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact,

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the party seeking

summary judgment satisfies its burden under Rule 56 of identifying evidence

which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with

affidavits, depositions, answers to interrogatories or the like in order to

demonstrate specific material facts which give rise to a genuine issue.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio,

475 U.S. 574, 586 (1986). When Rule 56 shifts the burden of production to

the nonmoving party, that party must produce evidence to show the

existence of every element essential to its case which it bears the burden of

proving at trial, for “a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d

846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party.

White, 826 F.2d at 59. In doing so, the Court must accept the nonmovant’s

allegations as true and resolve any conflicts in his favor. Id. (citations

omitted). However, a party opposing a summary judgment motion must

comply with Local Rule 56.1, which specifically directs the oppositional party

to submit a “statement of the material facts, responding to the numbered

paragraphs set forth in the statement required [to be filed by the movant], as

to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement

required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard

simply by citing the fact that he is a pro se litigant. These rules apply with

equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL

2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused

from complying with court orders and the local rules of court”); Thomas v.

Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

III. Statement of Undisputed Facts

The following undisputed statement of facts is adopted from this

Court’s April 4, 2023 Memorandum (Doc. 207), as documented in Plaintiff’s

medical records. (Doc. 175-6, 175-7).

On January 17, 2019, Plaintiff was seen in medical by complaining that

600 pounds of weight fell on his right foot the prior afternoon while working

out in the gym. He reported that his right foot was painful when he moved it.

Id. He stated he took some Motrin for pain. Id. Plaintiff was given a cane for

walking support and Motrin samples. Id. He was excused from work and an

X-ray of his right foot was ordered. Id.

On January 18, 2019, Plaintiff’s orthopedic appointment was approved

by Dr. Dancha. Id. Plaintiff was seen by an outside orthopedic that day at

12:45 pm, where it was determined that the X-rays showed a right displaced

base of the fifth metatarsal fracture. Id. Plaintiff was given crutches. Id.

January 22, 2019, at 3:12 pm, Plaintiff was again seen in medical,

stating that he feels he may have re-injured his right food and wanted to

make sure alignment is still okay. Id. Plaintiff’s crutches were discontinued,

and Plaintiff was issued a wheelchair. Id. An X-ray was ordered as well as a

follow-up with orthopedics. Id.

On January 23, 2019, at 10:12 am, Plaintiff was seen for an orthopedic

appointment. Id. He stated that he may have re-broken the foot when he “fell

and put a lot of weight on it and felt it pop.” Id. X-rays show significant

worsening of fracture with increased displacement in comparison to initial x-

rays. Id. He was placed in a short cast and was referred back to orthopedics

to determine if fracture needs to be re-set. Id.

On January 25, 2019, Patient was placed on medline for follow up

fracture. Id. It was noted that Plaintiff was seen earlier this week and sent to

orthopedic for re-injury. Id. He is scheduled for surgery next week. Id.

On February 1, 2019, Plaintiff was operated on at Mount Nittany

Medical Center. Id. The operative note dictated by Dr. Barter stated that

Plaintiff underwent an open reduction internal fixation, right displaced base

of the 5th metatarsal fracture. Id. Plaintiff was given discharge instructions

and told to leave his cast in place until otherwise instructed and to keep the

cast dry. Id. Plaintiff returned from MNMC after having same day surgery to

his right foot 5th metatarsal fracture. Id. He was using a wheelchair. Id. He

was placed in the infirmary for twenty-three-hour observation. Id.

On February 2, 2019, Plaintiff was seen by PA Reisinger. Id. He denied

much pain. Id. He was able to move his leg a little against gravity but does

not have full range of motion yet. Id. It was noted that he can bare full weight

on left leg for self transfers. Id. He was cleared to return to block with Tylenol

prn and T3 ordered for two more days. Id. Follow up with orthopedics as

directed. Id.

On February 6, 2019, Plaintiff reported to medical that security would

not allow him to have a plastic bag in order to wrap his cast in the shower so

he managed the best he could. Id. He “notes [the case] got soaked so he

removed the cast.” Id. Plaintiff’s case was discussed with Dr. Dancha, who

is in agreement to send the patient back to orthopedics to have casting

performed. Id. Dr. Dancha personally spoke to security staff two days ago

who stated that it is never an issue to provide a plastic bag with cast in place

in order to shower, so not sure where the misunderstanding or problem is

occurring. Id. Dr. Dancha told patient he needs to be compliant with medical

recommendation as this will be his third trip to orthopedics in three weeks.

Id. On February 6, 2019, Plaintiff was seen by the Orthopedic Office for a

recast. Id.

On February 15, 2019, Plaintiff was seen by PA Ernst. Id. Plaintiff

claimed that security is still not allowing him to obtain a bag to shower and

recently slipped when coming out the shower and would like an X-ray to

make sure he did not hurt his foot. Id. It was noted that medical would not

proceed with x-rays because Plaintiff has an orthopedic follow up today and

will await evaluation and recommendations. Id. PA Ernst ordered a garbage

bag as needed for Simms. Id. At Plaintiff’s orthopedic follow up that same

day, Plaintiff’s sutures were removed, and a follow up was ordered in 3-4

weeks for X-rays when out of cast. Id.

On March 7, 2019, a nursing progress note was added to Plaintiff’s

medical record, stating that Plaintiff was witnessed by CO Bivens to

ambulate on both feet without crutches approximately 25-30 yards then

downstairs for a visit. Id. The note assessed Plaintiff as is non-compliant with

orders from orthopedic doctor. Id.

March 14, 2019, Plaintiff was seen for his orthopedic follow up. Id. It

was noted that the X-rays show well aligned and healing 5th metatarsal

fracture and Plaintiff was permitted to take his boot off for bathing and

sleeping. Id. A follow up was ordered in four weeks for X-rays. Id.

On March 25, 2019, Plaintiff’s cane was returned and on March 28,

2019, Plaintiff received an orthopedic boot. Id.

On April 2, 2019, a Mental Health Contact Note reveals that Plaintiff

was worried about being made to live in a dorm setting, stating that he “is

not interested in living in the dorms due to negative experiences.” Id.

On April 24, 2019, Plaintiff begin to wean from boot to a regular shoe,

X-rays taken noted a complete healing of right 5th Metatarsal. Id.

April 25, 2019, consult note from surgeon states X-rays show

everything is well aligned and healed fracture of the 5th metatarsal, no

tenderness. Id. Two week weaning protocol, no running or jumping for four

weeks. Id. Plaintiff may return to regular work. Id. When the report was

received it was signed and reviewed by Dr. Preston. Id.

At a May 9, 2019, at a medical follow up, Plaintiff stated he was fine

and building strength in his toes. Id. It was noted that he saw orthopedics ten

days ago and x-rays were normal. Id. Orthopedics recommended that patient

return to regular activities in four weeks. Id. No acute distress was noted,

right foot appears normal, and toes with full range of motion. Id. Plaintiff was

scheduled for PT on May 22, 2019. Id.

On May 22, 2019, it was noted that PT no follow up is needed. Id.

Plaintiff had right ankle full range of motion, strength 5/5; normal gait, 5th toe

functional range of motion, doing well. Id. Thus, it was determined to

discontinue physical therapy. Id.

On June 7, 2019, Plaintiff was cleared for placement in the RHU

(Restricted Housing Unit) for possession of contraband. Id. On this date,

Plaintiff turned in his boot because it is no longer needed. Id.

On June 11, 2019, Plaintiff saw the orthopedist and it was

recommended that he return to work but no running or jumping for four

weeks. Id. At this time, Plaintiff stating that he needed his bottom bunk

renewed as he hurt his foot while climbing the ladder. Id. Plaintiff bottom

bunk status was extended, and an X-ray follow up as needed. Id.

On June 12, 2019, a follow up X-ray of Plaintiff’s right foot was ordered.

Id.

On June 14, 2019, Plaintiff requested an X-ray of his foot to evaluate

the hardware. Id. He was told one was already ordered on June 12, 2019.

Id.

On June 17, 2019, Plaintiff was attempting to be seen for a follow up

visit, but because there was not enough security staff to take him out of cell,

his visit had to be rescheduled. Id.

On June 21, 2019, Plaintiff presented to medical with “pinpoint

tenderness at old fracture site.” Id. He was seen by PA Ernst. Id. It was

recommended that Plaintiff continue PT exercises and using NSAID’s. Id.

Orthopedics recommended that he participate in activity as tolerated. Id. X-

rays showed intact hardware and no fracture. Id. Plaintiff had full range of

motion in his foot and full strength of 5/5. Id. He was told to continue his

previous PT exercises. Id.

On September 6, 2019, Plaintiff presented to medical and was seen by

PA Ernst. Id. PA Ernst entered the following note:

31 y/o male with IED, anxiety and BPD presents with right foot

pain. Notes he was getting off top bunk when he got a hot poker

sensation on the lateral aspect of right foot and jumped off ladder

landing on foot due to the pain. Notes pain with pressure and

slowly increasing swelling of right ankle.

Chart review notes patient lower bunk ran out less than a month

ago. Back in June when his lower bunk ran out patient came

down stating he hurt himself on ladder as well where lower bunk

was reinstated but had no hardware issues. Patient did have

ORIF of right 5th metatarsal fracture back in February and is back

to full functionality at this time per orthopedics.

Patient in past has shown to do self-destructive behavior by

getting splint wet and removing case on his own which results in

having to have surgical revision.

Id. PA Ernst observed that Plaintiff’s gait was steady and without ataxia; no

edema appreciated of right foot and full range of motion of toes. Id. PA Ernst

ordered an X-ray of the right foot and ankle. Id. PA Ernst noted that a

“personal review of the X-ray today does not show malalignment, acute

fracture” and the “hardware looks to be intact.” Id. PA Ernst concluded with

the following note:

Patient was advised of imaging. Can use Motrin as needed for

pain. After this recommendation, patient states, “That’s it.” Then

requested lower bunk status. Stated it is not medically necessary

at this time based on imaging and examination. He then stated,

“You know I am going to be back down here, right?” Given this

interaction, it seems that patient is looking for secondary gain of

lower bunk status at this time. Advised patient that SMD is in

agreement that lower bunk is not medically indicated at this time

after review of case with him. Advised to follow up as needed.

Id.

IV. Discussion

A. Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff

must show “(i) a serious medical need, and (ii) acts or omissions by prison

officials that indicate deliberate indifference to that need.” Natale v. Camden

Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one

that has been diagnosed by a physician as requiring treatment, or one that

is so obvious that a layperson would recognize the need for a doctor’s

attention. Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton

infliction of pain results as a consequence of denial or delay in the provision

of adequate medical care, the medical need is of the serious nature

contemplated by the eighth amendment.” Id.

A prison official acts with deliberate indifference to an inmate’s serious

medical needs when he “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). Thus, a complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”

Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision

not to order an X-ray, or like measures, does not represent cruel and unusual

punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s

long as a physician exercises professional judgment his behavior will not

violate a prisoner’s constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor’s

disagreement with the professional judgment of another doctor is not

actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,

or medical malpractice does not give rise to a §1983 cause of action, and an

inmate's disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.

1993).

Further, a prison administrator cannot be found deliberately indifferent

under the Eighth Amendment because he or she fails to respond to the

medical complaints of an inmate being treated by a prison physician, or

because, as non-physicians, they defer to the medical judgment of the

inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical

prison personnel had “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner,” liability

may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison’s medical staff and

the inmate regarding the diagnosis or treatment which the inmate receives

does not support a claim of cruel and unusual punishment. Farmer v.

Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v.

Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113

(10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received

treatment, courts have consistently been reluctant to second guess the

medical judgment of the attending physician. Little v. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key

question is whether the defendant has provided the plaintiff with some type

of treatment, regardless of whether it is what the plaintiff desires. Farmer v.

Carlson, 685 F. Supp. at 1339.

Here, the record evidence demonstrates that Plaintiff received

substantial medical attention, and that the attention Plaintiff received lacks

that requisite deliberate indifference to support a Section 1983 claim.

Specifically, Plaintiff was immediately evaluated and treated after injuring his

right foot. Additionally, within a seven month span after his injury, Plaintiff

was evaluated approximately twenty-one times by prison medical staff,

outside orthopedics and outside hospitals. In response to this injury, Plaintiff

received numerous X-rays, various pain medications, physical therapy, a

medical lay-in, an approval for surgery, and a wheelchair, cane, crunches,

and a lower bunk status, to accommodate him. There is no indication,

whatsoever, that at any time medical treatment was denied or intentionally

withheld. Nor is there any indication that the non-medical Commonwealth

Defendants had any reason to believe, or actual knowledge, that prison

doctors or their assistants were mistreating, or not treating, Plaintiff, so that

liability may be imposed. See Spruill, 372 F.3d 236. As such, the

Commonwealth Defendants cannot be considered deliberately indifferent to

Plaintiff’s medical complaints, needs or treatment.

B. Denial of Wheelchair Pusher

Plaintiff claims that on January 21 and 22, 2019, Defendants Drexler

and Roberts “ordered and enforced a ‘pusher ban’ and made Plaintiff push

himself and ambulate up and down steps without assistance” and

“Defendants Pollock, Showers and Cummings were also involved in

enforcing this ban and did nothing to correct or stop the abuse.” (Doc. 137 at

4).

Plaintiff’s medical records reveal that on January 20, 2019, Plaintiff’s

crutches were discontinued, and Plaintiff was issued a cane and a

wheelchair. (Doc. 175-7) The record does not reveal that a wheelchair

pusher was approved for Plaintiff. Nor is there any indication in the record

that Plaintiff requested a wheelchair pusher and was denied. It does reveal,

however, that Plaintiff was capable of propelling and repositioning himself in

the wheelchair; could walk with a cane, could propel himself to get lunch and

dinner; could move himself around in the wheelchair with her arms, and was

capable of pulling his wheelchair behind him while walking with the cane.

(Doc. 216-1, Simms’ Deposition).

In Pierce v. Pitkins, the United States Court of Appeals for the Third

Circuit found that a prisoner who was given a wheelchair other than preferred

“geri” wheelchair did not state claim against prison officials for deliberate

indifference to his serious medical needs, in violation of Eighth Amendment,

where the wheelchair he was given included added cushion and he was

given protective boot, and he was ineligible for “geri-chair” because he was

able to propel and reposition himself in chair. Pierce v. Pitkins, 520 F. App'x

64 (3d Cir. 2013). Here, much like the Plaintiff in Pierce, Simms was capable

of propelling and repositioning himself—thus eliminating the need for a

wheelchair pusher. Accordingly, Commonwealth Defendants are entitled to

summary judgment on Plaintiff’s Eighth Amendment deliberate indifference

claim regarding a wheelchair pusher.

C. Denial of trash bag

Plaintiff claims that the Commonwealth Defendants refused to provide

him with a trash bag to cover his cast when showering and as a resulted he

had to limit showers to every other day. (Doc. 137). Specifically, Plaintiff

details the Commonwealth Defendants’ denial of a trash bag as follows: “So

I had a cast and like very other person on the face of the earth I need to

shower as well, and when I asked for a trash bag for – to cover my cast up,

I was not allowed to have one. They cited contraband, and more so they said

that there was a particular memo put out about giving trash bags to inmates.

. . Roberts, Pollock, Showers, Cummings iterated to me.” (Doc. 216, Simms

Deposition). The Court finds that Plaintiff has failed to allege a constitutional

violation.

In Gibbons v. Cnty, the Eastern District thoroughly analyzed this issue

and ruled that a non-medical prison official, in response to plaintiff’s request

for “a boot and bag, big enough to cover his cast,” was “ignored” and “not

responded to” is insufficient to establish deliberate indifference to plaintiff’s

serious medical needs. Gibbons v. Cnty., No. 16-cv-1233, 2016 WL

3878182, at *9–10 (E.D. Pa. July 18, 2016). In addition, the Court cited the

following case to support its conclusion:

The district court in Vasquez v. Akano, 2006 U.S. Dist. LEXIS

52083 E.D. Pa. Apr. 20, 2006) confronted similar allegations

when the plaintiff in that case filed a lawsuit against a correctional

officer, alleging that, inter alia, the correctional officer violated the

plaintiff’s Eight Amendment rights when he “refused to provide

plaintiff with a plastic bag to cover his splint while he showered

because plastic bags are considered contraband.” Id. at *11-12.

In dismissing the complaint as to the correctional officer, the

district court noted that “[defendant’s] refusal to provide plaintiff

with a plastic bag to cover his splint is not a constitutional

violation” and otherwise did not demonstrate that the defendant

“knew of or disregarded an excessive risk to inmate health or

safety” sufficient to meet the “deliberate indifference” standard.

Id. at *13.

In Gibbons, the Court ruled that “like the plaintiff in Vasquez, Gibbons

has failed to aver facts sufficient to sustain an Eighth Amendment claim

against Baurer”. Gibbons v. Cnty., No. 16-cv-1233 at *9–10. The Court

agrees. Plaintiff does not have a right to possess contraband. Thus,

Commonwealth Defendants are entitled summary judgment on Plaintiff’s

Eighth Amendment claim regarding denial of a trash bag.

V. Conclusion

For the reasons set forth above, the Court will grant the

Commonwealth Defendants’ motion for summary judgment. Judgment will

be entered in favor of all named Defendants and against the Plaintiff, and

the above captioned action will be closed.

An appropriate order shall issue.

s/ Malachy E. Mannion_

MALACHY E. MANNION

United States District Judge

Dated: February 12, 2024

20-1411-03

1 By Order dated April 4, 2023, summary judgment was granted to all

Medical Defendants. (Doc. 208). However, entry of judgment was deferred

pending disposition of the remaining claims against the remaining

Commonwealth Defendants. Id.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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