The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEITH S. BROWN, : Civil No. 1:20-CV-00849
:
Plaintiff, :
:
v. :
:
DR. MARY JOY MONSALUD, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court are Defendants’ motions for summary judgment. (Docs.
175, 186, 190.) Defendants have established that Plaintiff disagreed with medical
staff at the State Correctional Institution Frackville (“SCI-Frackville”) regarding
the self-administration of his eye drops and his refusal to keep the eye drops on his
person. Plaintiff then refused to take his medication despite medical staff at SCI-
Frackville continually making the medications available. Plaintiff then alleges that
he lost sight in his right eye due to this lack of eye drops. Plaintiff further asserts
that Defendants’ request to keep his eye drops on his person violated his Eighth
Amendment rights due to a heightened risk of suicide. However, Plaintiff has
failed to demonstrate that any self-harm resulted from Defendants’ attempts to
have him keep his eye drops on his person. Therefore, the court will grant
Defendants’ motions and enter judgment in favor or Defendants.
Also pending are Plaintiff’s motion in opposition of Defendant Karen
Holly’s statement of facts, a motion for a preliminary injunction and temporary
restraining order, and a motion to appoint counsel. (Docs. 198, 199, 211.) It
appears that Plaintiff’s motion in opposition is mistitled and is construed as a brief
in opposition. (Doc. 198.) Plaintiff’s motions for a preliminary injunction and
temporary restraining order and for appoint of counsel will be denied.
PROCEDURAL HISTORY
Plaintiff initiated this action by filing a complaint on May 1, 2020 in the
Court of Common Pleas of Schuylkill County. (Doc. 1-3.) The complaint named
Dr. Mary Joy Monsalud (“Monsalud”), Dr. Newton (“Newton”), and Karen Holly
(“Holly”) as Defendants. (Id.) On May 26, 2020, Defendants removed the action
to this court. (Doc. 1.) Defendants, who are all represented by separate counsel,
filed motions to dismiss. (Docs. 7, 18, 24.) Following briefing, the court entered
an order granting the motions in part. (Docs., 80, 81.) The surviving claims
include an Eighth Amendment deliberate indifference claim against all Defendants,
an intentional infliction of emotional distress claim against all Defendants, and a
claim under the Americans with Disabilities Act (ADA) against Defendant Holly
in her official capacity. (Doc. 81.)
Defendants have answered the complaint regarding the surviving claims.
(Docs. 83, 84, 85.)
Following fact discovery, Defendants filed motions for summary judgment.
(Docs. 175, 186, 190.) Plaintiff filed responses in the form of brief in opposition
and a “Motion . . . In opposition to Defendant Karen Holly Undisputed Facts,”
which appears to be a mistitled brief in opposition. (Docs. 189, 198, 205.) The
court will address each motion for summary judgment in turn.
Additionally, Plaintiff filed a motion for a preliminary injunction, and
temporary restraining order. (Doc. 199.) Defendants have filed briefs in
opposition. (Docs. 204, 206, 208.) Plaintiff filed a reply. (Doc. 210.) The court
will also address this pending motion.
Finally, on February 23, 2024, Plaintiff filed a motion for appointment of
counsel. (Doc. 211.)
JURISDICTION AND VENUE
The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §
1331, which allows a district court to exercise subject matter jurisdiction in civil
cases arising under the Constitution, laws, or treaties of the United States. Venue
is proper in this district because the alleged acts and omissions giving rise to the
claims occurred at SCI-Frackville, located in Schuylkill County, Pennsylvania,
which is located within this district. See 28 U.S.C. § 118(b).
MOTION FOR SUMMARY JUDGMENT STANDARD
A court may grant a motion for summary judgment when “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). A dispute of fact is material if resolution of
the dispute “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is
not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A
dispute is genuine if a reasonable trier-of-fact could find in favor of the
nonmovant’ and ‘material if it could affect the outcome of the case.” Thomas v.
Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).
In reviewing a motion for summary judgment, the court must view the facts
in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288
(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”
or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the
court’s role in reviewing the facts of the case is “to determine whether there is a
genuine issue for trial.” Id.
The party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then
oppose the motion, and in doing so “‘may not rest upon the mere allegations or
denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that
there is a genuine issue for trial. Bare assertions, conclusory allegations, or
suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).
Summary judgment is appropriate where the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
A. Defendant Newton’s Motion for Summary Judgment Will Be
Granted.
Defendant Newton asks the court to grant summary judgment in his favor
because Plaintiff’s Eighth Amendment deliberate indifference claim and the
intentional infliction of emotion distress claim fail as a matter of law for three
reasons: (1) Defendant Newton made a timely psychiatric assessment that Plaintiff
could hold and apply eye drops in his cell; (2) Plaintiff “provided no competent
evidence that Dr. Newton’s multiple psychiatric assessments of Plaintiff were
outside the standard of care, let alone, deliberately indifferent, reckless or
intentionally wrong; and (3) Plaintiff failed to provide competent medical evidence
that the cause of the alleged loss of vision in his right eye was the alleged
deprivation of his eye drops. (Doc. 176, p. 5.)1 Additionally, Defendant Newton
seeks summary judgment on the intentional infliction of emotional distress claim
because he did not act in an extreme and outrageous manner. (Id., pp. 15–16.)
1. Statements of Facts
Defendant Newton failed to attach a separate statement of facts as set forth
in the Local Rules, and merely provides a summary of Plaintiff’s January 10, 2019
deposition. (Doc. 176.) Attached to the motion for summary judgment are the
1 For ease of reference, the court utilizes page numbers from the CM/ECF header.
transcript of the deposition, Defendant Newton’s affidavits, and Defendant
Newton’s treatment records concerning Plaintiff. (Doc. 175-2.)
In his deposition, Plaintiff stated that on or about June 7, 2019, Defendants
gave him an ultimatum that he must either take his medication, including his eye
drops, back to his cell “or [he would not] get anything.” (Id., p. 2.) Plaintiff stated
that he saw Defendant Newton after this ultimatum, and “he was agreeing with
them.” (Id.) Plaintiff testified that he was not allowed to hold medications,
including eye drops, in his cell because of his psychiatric history of suicide
attempts, and in refusing to do so, he was complying with his paperwork. (Id.)
Plaintiff stated that he swallowed eye drops to kill himself in 1999, 2001 or 2002,
2008, 2009 and/or 2010, and 2019. (Id., p. 3.) This paperwork is identified as the
Final Appeal Decision for Grievance No. 592113, and was attached to his
complaint. (Id., pp. 2–3.) The Final Appeal Decision is dated March 23, 2016 and
states, in relevant part:
Your concern of not being capable of self-administering your glaucoma
eye [drops] based on your history and risk of self-harm was reviewed
by staff at the Bureau of Health Care Services. The Bureau of
Healthcare Services reviewed the medical record and determined the
medical care provided was reasonable and appropriate. The findings of
this review concur with the initial review response dated 11/27/15. You
are encouraged to participate in your treatment plan to self-administer
your eyedrops under supervision of the medical staff in the medical
department. No evidence of neglect or deliberate in difference has been
found.
(Doc. 1-2, p. 41.) Plaintiff stated in his deposition that the sentence “[y]ou are
encouraged to participate in your treatment plan to self-administer your eyedrops
under supervisor of the medical staff in the medical department” meant that he was
not allowed to hold medications in his cell. (Doc. 176, p. 3.) He stated that he
believed that this March 2016 decision was controlling in June and July of 2019.
(Id.)
Plaintiff stated that he knew he lost vision in his right eye because he was
deprived of his eye drops. (Id., p. 4.) He also stated that after June 7, his nephew
called Governor Wolf’s office and reported that Plaintiff was being deprived of his
eye drops. (Id.) He stated that the Governor’s office called SCI-Frackville, and
after that call Plaintiff was allowed to self-administer his eye drops in the medical
department of the prison. (Id.)
While Defendant Newton failed to include the required summary of facts,
the court will now summarize the medical records attached to his motion for
summary judgment. On May 27, 2019, Defendant Newton saw Plaintiff in the
clinic after Plaintiff’s treatment had been transferred following concerns he was
stalking his prior provider, Ms. Dempsey. (Doc. 172-5, p. 115.) His mental status
exam was normal and he was to return to the clinic in ten to twelve weeks for a
routine follow up. (Id., pp. 115–17.)
On July 1, 2019, Defendant Newton saw Plaintiff in an unscheduled visit
because he was not administered his eye wash solution and was asked to keep it in
his cell. (Id., p. 120.) Plaintiff reported to Defendant Newton that his reason for
not keeping it was because of his behaviors, and he reported a long history of
suicidal behaviors through swallowing foreign objects. (Id.) Defendant Newton
stated “I do not understand his ulterior motive for having to come to medical each
time he wats to apply the solution. Nevertheless[,] I told him I will address his
concerns with the CHCA via email.” (Id.) Plaintiff was assessed as being
psychiatrically stable. (Id.)
On July 11, 2019, Defendant Newton entered a note in Plaintiff’s record
stating that Plaintiff and his need to report to medical to have the eye drops
administered under direct observation were discussed with the CHCA Holly. (Id.,
p. 123.) Defendant Newton states “there is no reasons for this as he can take he
[e]ye drops to his cell which he is refusing to do. I sent for him and block Sgt
cracked his door open and when he discovered it was raining he refused to come
down. When the rain stopped he refu[s]ed to come down as well.” (Id.)
On July 15, 2019, Defendant Newton again saw Plaintiff and made the
following note:
He is insisting that he comes to the Medical Dept, so many times daily
for the Nurses to apply his eyedrops instead of him having the eyedrops
inside of his cell. The logic he claimed was years ago when he becomes
impulsive he would swallow metallic objects and that he could not
guarantee it. Since arriving in this facility there has not been any
incident of him swallowing foreign objects. Three Times he was
scheduled to be seen by the ophthalmologist for the treatment of his
Right eye glaucoma and he refused all three times. This surgery would
have helped significantly his eyesight and possibly diminish the use of
the eyedrops. He also refused to be seen by the site medical Director
Dr. Monsalud. This inmate has history of stalking female staff and
engaging in inappropriate behaviors towards females. His motive
perhaps would be to come to medical for the application of the eye
drops by the Nurses. There is some anecdotal evidence that he rubbed
self against female nurses in the past, he is on Trilafon 8mg po HS for
intermittent explosive disorder. Furthermore application of the eye
drops had to be done at about 5 minutes interval and having the eye
drops in his cell will offer him more appropriate time.
(Id., p. 126.) Defendant Newton further states: [f]rom a reasonable degree of
medical and psychiatric certainty there is no reason why he cannot apply the eye
drops by himself in his cell,” and “[t]here is no psychiatric reason why he cannot
keep his eyedrops inside his cell as KOP2 to have it applied by himself.” (Id., pp.
127–28.)
Defendant Newton provided an affidavit, which states “I have not and do not
determine whether medications to treat Mr. Brown’s physical conditions: 1) should
be kept on his person and self-administered, 2) should be administered by the
medical department, or 3) should be self-administered under the observation of the
medical department.” (Id., p. 109.)
2 The acronym KOP stands for “keep on person.” (Doc. 176, p. 5.)
Plaintiff’s brief in opposition to Defendant Newton’s motion for summary
judgment includes a statement of facts. (Doc. 189, pp. 1–3.) However, he did not
materially dispute the facts set forth by Defendant Newton nor the evidence
Defendant Newton provided. (Id.) His brief in opposition appears to address all
Defendants, not just Defendant Newton and appears to concern all claims raised in
the complaint, including those previously dismissed with prejudice by the court.
(Id., pp. 1–14.) Plaintiff appears to focus on the knowledge that each Defendant
had of his “mental health issue and particular vulnerability to suicide attempts with
his prescription medications including eye drops.” (Id., p. 4.) Plaintiff did attach
historical medical evidence in support of his assertion of the preexisting mental
health diagnoses. (Doc. 189-1, pp. 11–23, 27–49, 77–78.) He also submitted what
appears to be the final page of medical treatment records concerning his eyes. (Id.,
pp. 24–26.) He also includes the March 23, 2016 Final Appeal Decision issued
while he was housed at SCI-Smithfield cited above. (Id., p. 51.) Plaintiff attached
the grievances he filed concerning the facts alleged in this action. (Id., pp. 52–57,
69, 75–76.) Plaintiff also attached the responses to his interrogatories by
Defendant Holly (Id., pp. 58–68.) Plaintiff also attached historical grievance
documents regarding his medication distribution from 2013 and 2015. (Id., pp.
70–74.)
2. Eighth Amendment Claim
A prison official or healthcare provider violates the Eighth Amendment by
“acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In the prison
context, an Eighth Amendment claim of deficient medical care must demonstrate
two elements: 1) an objectively serious medical condition; and 2) an official’s
deliberate indifference to that condition. See Ryle v. Fuh, 820 F. App'x 121, 123
(3d Cir. 2020) (citing Estelle, 429 U.S. at 104). A medical need is serious if it “has
been diagnosed by a physician as requiring treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor's attention.”
Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)
(internal quotation omitted). “To act with deliberate indifference to serious
medical needs is to recklessly disregard a substantial risk of serious harm.” Giles
v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). To constitute deliberate
indifference, “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).
The United States Court of Appeals for the Third Circuit has found
deliberate indifference where a prison official knows of an inmate’s need for
medical care and intentionally refuses to provide it, delays it for non-medical
reasons, or prevents the prisoner from receiving needed or recommended
treatment. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1992).
Circumstantial evidence can establish the subjective knowledge requirement if it
shows that the excessive risk was so obvious that the official must have known
about it. See Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing
Farmer, 511 U.S. at 842).
Generally, courts accord prison medical providers “considerable latitude in
the diagnosis and treatment of prisoners,” Durmer v. O'Carroll, 991 F.2d 64, 67
(3d Cir. 1993), and “disavow any attempt to second-guess the propriety or
adequacy of a particular course of treatment . . . [which] remains a question of
sound professional judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d
754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.
1977)) (alternations in original).
As such, prisoners do not have the right to choose their medical treatment,
Lasko v. Watts, 373 F. App'x 196, 203 (3d Cir. 2010) (citing Harrison v. Barkley,
219 F.3d 132, 136 (2d Cir. 2000)), and their disagreement with a prison medical
professional’s judgment, or a difference of medical opinion between two
physicians does not demonstrate an Eighth Amendment violation because “[t]here
may . . . be several acceptable ways to treat an illness.” White v. Napoleon, 897
F.2d 103, 110 (3d Cir. 1990). “[W]hen medical care is provided, we presume that
the treatment of a prisoner is proper absent evidence that it violates professional
standards of care.” Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir.
2017).
However, “there are circumstances in which some care is provided yet it is
insufficient to satisfy constitutional requirements.” Palakovic v. Wetzel, 854 F.3d
209, 228 (3d Cir 2017). “[P]rison officials may not, with deliberate indifference to
the serious medical needs of the inmate, opt for an easier and less efficacious
treatment of the inmate’s condition.” Id. (citations and internal quotations marks
omitted). They cannot “deny reasonable requests for medical treatment . . . [when]
such denial exposes the inmate ‘to undue suffering or the threat of tangible residual
injury.’” Id. (citing Monmouth Cnty. Corr. Inst. Inmates, 834 F.2d at 346).
Accordingly, a diagnosis or treatment provided, even if incorrect, without
the requisite accompanying culpable state of mind does not rise to the level of a
constitutional violation. Estelle, 429 U.S. at 106; Farmer, 511 U.S. at 835. “It is
obduracy and wantonness, not inadvertence or error in good faith, that characterize
the conduct prohibited by the Cruel and Unusual Punishments Clause . . .” Whitley
v. Albers, 475 U.S. 312, 319 (1986).
Here, Defendant Newton has presented evidence that, as of the period at
issue in 2019, Plaintiff’s psychological conditions did not preclude maintaining his
eye drops in his cell for self-administration. Plaintiff has not presented
contemporary evidence to the contrary. Instead, Plaintiff has presented remote
historical medical evidence of his mental health impairments and historical
grievances regarding the issue of medication distribution at other facilities.
Therefore, Plaintiff’s claim appears to be solely a disagreement with Defendant
Newton as to his medical treatment while housed in SCI-Frackville in 2019. And a
mere disagreement with treatment does not rise to the level of an Eighth
Amendment claim. White, 897 F.2d at 110.
The court notes that both parties cite the heightened standard of deliberate
indifference related to Plaintiff’s vulnerability to suicide in their briefing. (Doc.
176, p. 8; Doc. 189, pp. 12–13.) The Third Circuit has recognized a heightened
standard for deliberate indifference when a plaintiff seeks to hold prison officials
or medical staff accountable for failing to prevent a prison suicide known as the
“vulnerability to suicide” framework. Palakovic, 854 F.3d at 222. While this
framework has been extended to plaintiffs who have attempted suicide and
survived, Myers v. Clinton County Correctional Facility, No. 3:21-CV-00867,
2023 WL 811771, *2–3 (M.D. Pa. July 11, 2023), it has not been extended to a
plaintiff who has suffered no self-harm.
In this case, Plaintiff does not allege he suffered any self-harm resulting
from any actions or inactions of any of the Defendants. Instead, he alleges that
after he refused to take his eye drops back to his cell, he was denied his eye drops
and the lack of eye drops caused blindness in his right eye. While the court stated
that Plaintiff’s allegations could be construed as deliberate indifference to his
vulnerability to suicide in its September 30, 2021 order, Doc. 80, p. 16, the
evidence submitted in support of Defendant Newton’s summary judgment motion
does not establish the need to apply the increased standard as there is no evidence
that self-harm or a suicide attempt occurred.
Defendant Newton’s motion for summary judgment will be granted as to the
Eighth Amendment deliberate indifference claim.
3. Intentional Infliction of Emotional Distress Claim
Defendant Newton seeks summary judgment on the intentional infliction of
emotions distress claim as well.
A claim for intentional infliction of emotional distress under Pennsylvania
law requires a plaintiff to establish four elements: “(1) the conduct must be
extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must
cause emotional distress; and (4) the distress must be severe.” Bruffett v. Warner
Commc’ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982).
Defendant Newton alleges that his conduct did not rise to the level of
extreme and outrageous. (Doc. 176, pp. 15–16.) Upon review of the evidence
submitted, the court agrees. There is no evidence that Defendant Newton refused
Plaintiff his eye drops. Instead, the record demonstrates that Defendant Newton
conducted a psychiatric evaluation and found that there was no psychiatric reason
Plaintiff could not keep his eye drops on his person during the relevant period.
Therefore, the court will grant Defendant Newton’s motion for summary judgment
as to the intentional infliction of emotions distress claim.
B. Defendant Holly’s Motion for Summary Judgment Will Be Granted.
The remaining claims against Defendant Holly include an Eighth
Amendment deliberate indifference claim, a claim under the ADA in her
individual capacity, and an intentional infliction of emotional distress claim.
(Doc. 80.) She seeks summary judgment on all three claims.
1. Defendant’s Holly Statement of Facts
Defendant Holly included a separate statement of facts as required by the
Local Rules, but rather than summarizing the undisputed factual evidence,
Defendant Holly set forth statements in the negative phrasing asserting what
Plaintiff could not prove. (Doc. 187.) Defendant Holly also attached multiple
documents, including Plaintiff’s cell history, Doc. 187-1, DOC Policy Number
13.2.1. Doc. 187-2, Plaintiff’s medication administration notes from June 1, 2019
through June 30, 2019, Doc. 187-3, Routine Medication Administration Notes
from June of 2019, Doc. 187-4, and Plaintiff’s medical records form April 3, 2018
through July 30, 2019, Doc. 187-5.
The June 2019 Medication Administration Notes demonstrate that Plaintiff
was able to administer his eye drops himself without difficulty on June 7, 2019.
(Doc. 187, p. 5; Doc. 187-3, p. 1.) The medical records show that in June of 2019,
Plaintiff had eight different eye drops prescribed: (1) Moxifloxacin; (2) Rhopressa;
(3) Azopt; (4) Brimonidine; (5) Latanoprost; (6) Lotemax; (7) Sodium Cl 5%
hypertonic; and (8) Timolol. (Doc. 187, p. 5; Doc. 187-4.) In that month, Plaintiff
missed two doses of Moxifloxacin by no-showing to the 8:15 a.m. dose on June 8,
2019 and refusing the 3:00 p.m. dose on the same day. (Doc. 187, p. 5; Doc. 187-
4, p. 1.) The Moxifloxacin was stopped on June 14, 2019. (Doc. 187-4, p. 1.)
Plaintiff did not miss a single dose of the Rhopressa. (Doc. 187, p. 5; Doc. 187-4,
p. 1.) This medication was stopped on June 17, 2019. (Doc. 187-4, p. 1.) Plaintiff
refused the 3:00 p.m. dose of Azopt on June 8, 2019. (Doc. 187, p. 1; Doc. 187-4,
p. 2.) However, there are no dosing notes for this medication from June 26, 2019
and forward. (Doc. 187-4, p. 2.) Plaintiff missed the 3:00 p.m. dose of
Brimonidine on June 8, 2019. (Doc. 187, p. 5; Doc. 187-4, p. 2.) Again, there are
no dosing notes for this medication from June 26, 2019 and forward. (Doc. 187-4,
p. 2.) Plaintiff did not miss any doses of the Latanoprost, Lotemax, and Timolol in
June 2019. (Doc. 187, p. 6; Doc. 187-4, pp. 3–4.) However, there are no dosing
notes for these medications from June 26, 2019 and forward. (Doc. 187-4, pp. 3–
4.) Plaintiff no-showed for nine does of the Sodium C1 5% hypertonic and also
refused two doses in June of 2019. (Doc. 187, p. 6; Doc. 187-4, p. 4.) Plaintiff no-
showed for the 11:30 a.m. dose from June 7 through 11, 2019, and again on June
13, 16, 20, and 21, 2019. (Doc. 187-4, p. 4.) Plaintiff also refused the eye drops at
the 3:00 p.m. dose on June 8, 2019 and the 11:30 a.m. dose on June 14, 2019. (Id.)
Again, there are no administration notes for these medications from June 26, 2019
and forward. (Id.)
The medical records submitted by Defendant Holly demonstrate that
Plaintiff had no incidents of swallowing foreign objects since his arrival at SCI-
Frackville. (Doc. 187, p. 6; Doc. 187-5.)
The treatment notes demonstrate that on June 7, 2019, Defendant Monsalud
stated that Plaintiff needed to sign a refusal form for surgery for his severe
glaucoma, and needed to discuss medication non-compliance and the requirement
that his eyedrops be kept on his person. (Doc. 187-5, p. 83.) However, Plaintiff
refused to see Defendant Monsalud. Defendant Holly spoke with him in the
hallway, and told him that he will now start applying his eyedrops in his cell
because there is a 5-minute interval after each drop for proper absorption. (Id.)
Plaintiff refused to take the eye drops with him. (Id.) In a referral to psychology,
Defendant Monsalud stated that Plaintiff had refused surgery to preserve his vision
in his right eye three times. (Id., p. 84.) Included in the medical records are
multiple releases from responsibility for medical treatment showing that Plaintiff
refused surgery to relieve pressure in his right eye three times, refused his
medications to treat glaucoma, hypertension, and high cholesterol, refused a
vaccination for pneumonia, refused two prostate screenings, refused treatment for
his leg twice, refused trimming his toenails, and refused all dental care. (Id., pp. 9–
10, 11–12, 14, 38–39, 58–59, 79–80, 86–87, 108-09, 145–46, 152–53, 220–21,
251–52, 281–82, 304, 421–22.) In all but two instances, Plaintiff refused to sign
the releases. (Id.) Specifically, the refusals for eye drops are dated August 31,
2018 and July 17, 2019 and there is a refusal to self-administer his medications on
June 29, 2019. (Id., pp. 11–12, 58–59, 304.)
Plaintiff did not initially respond to Defendant Holly’s statement of facts or
brief in support. The court acknowledges that on August 21, 2023, the court
received and docketed a document titled “Plaintiff’s Brief In opposition to
Defendants Monsalud, Newton, Holly Summary Judgment Motion,” but this was
docketed the same day as Defendant Holly filed her motion for summary
judgment. (Doc. 189.) The court construes the brief in opposition to only apply to
Defendant Newton’s motion for summary judgment because Defendant Holly only
mailed her motion for summary judgment to Plaintiff on August 21, 2023, meaning
that it was not in Plaintiff’s possession prior to filing the brief in opposition. (Doc.
189, p. 2.)
However, on October 24, 2023, the court received and docketed a document
tiled “Motion for Inopposition to Defendant Karen Holly undisputed facts.” (Doc.
198.) This is a three-page document introducing 19-pages of medical evidence that
Plaintiff alleges demonstrates issues of material facts. (Docs. 198, 198-1.)
However, all medical records prior to July 31, 2019 were submitted as part of
Defendant Holly’s evidence. (Doc. 198-1, pp. 1–4.) In addition to the 2019
records, Plaintiff also submitted records from 2020 showing repeated threats to eat
his eye drops if staff did not administer them to him on April 7, 2020 and May 4,
2020 (Id., pp. 5, 8.) Following these threats, Plaintiff was placed under
observation. (Id., p. 10.)
Plaintiff highlights the June 7, 2019 treatment note from Defendant
Monsalud in which Defendant Holly spoke with him in the hallway and he refused
his medication, which he indicates is evidence that she refused to give him his
medications and told him to take a plastic bag full of his meds. (Doc. 198, p. 1;
Doc. 198-1, p. 1.) However, this does not present an issue of material fact. How
the medications were stored, i.e. in a plastic bag or not, is not a material issue in
the case. Additionally, Plaintiff alleges that Defendant Holly said he must either
take the medications back to his cell or he gets nothing. This is not a disputed fact
because a mere allegation is not evidence.
Plaintiff also asserts that a July 11, 2019 note by provider Hansen
demonstrates that he wanted to attend his appointment with Defendant Newton, but
the rain was going to get his paperwork wet. (Doc. 198, p. 1; Doc. 198, pp. 2–3.)
However, this presents no issue of material facts concerning the claims raised
against Defendant Holly.
2. Eighth Amendment Claim
Defendant Holly seeks summary judgment in the pending Eighth
Amendment deliberate indifference claim. In doing so, she points to this court’s
September 30, 2021 order, which stated that “[t]he court agrees that CHCA Holly
is considered a non-medical defendant.” (Doc. 80, p. 17.)
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. Durmer, 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 v. Gillis, 372 F.3d 218, 236
(3d Cir. 2004).
While the court agreed that Defendant Holly was a non-medical defendant in
its September 30, 2021 order, the court also found that Plaintiff had alleged that
Defendant had knowledge that all of his medications were given under direct
observation and that Defendant Holly had a reason to believe a change to
Plaintiff’s medication delivery exposed him to a substantial risk of harm. (Doc.
80, pp. 17–18.) Therefore, the Eighth Amendment claim survived a motion to
dismiss.
However, based on the evidence submitted in support of Defendant Holly’s
motion for summary judgment and Plaintiff’s failure to present any evidence to the
contrary, the court finds there is no evidence that Defendant Holly had any reason
to believe or any knowledge that doctors were mistreating Plaintiff. In fact, the
evidence demonstrates that Defendant Holly spoke with Plaintiff’s providers
regarding his mental health and that Plaintiff was provided his eye drops during the
relevant period.
The medical records demonstrate that Defendant Holly was aware of the
change in Plaintiff’s medication administration as she instructed him about the
change on June 7, 2019, and signed an administrate note summarizing a July 10,
2019 discussion between Plaintiff, Superintendent Assistant Newberry, and
Counselor Cintron. (Doc. 187-5, pp. 36, 83.) The June 7, 2019 treatment note
makes clear that Defendant Holly spoke with Plaintiff following his refusal to keep
his eyedrops on his person so he could properly administer them with the required
time delay for absorption at the instructions of Defendant Monsalud, a medical
doctor. (Id., p. 84.) Likewise, Defendant Newton discussed the situation with
Defendant Holly on July 11, 2019. (Id., p. 33.) In that discussion, Defendant
Newton, a psychologist, stated that there was no reason Plaintiff could not keep his
eye drops on his person in his cell. (Id.) Additionally, all medical evidence
submitted demonstrates that Plaintiff was not suffering from thoughts of self-harm
or suicide from the beginning of his stay at SCI-Frackville through the relevant
period ending in July of 2019. (Id., pp. 26, 29, 33, 40, 45, 60, 66, 73, 81, 91, 94,
103, 110, 121, 160, 163, 176, 180, 202, 217, 235, 245, 312, 315, 345, 350, 357,
374, 377, 380, 384, 388, 391, 394–95, 407, 419.) Additionally, the medical
records demonstrate that Plaintiff’s eye drops continued to be available to him
following the June 7, 2019 discussion between Plaintiff and Defendant Holly.
(Doc. 187-4.)
In response, Plaintiff has submitted evidence from April and May of 2020 in
which he had his medications in his cell and he made threats to use those
medications to self-harm. (Doc. 198-1.) However, as discussed at length above,
the question before the court is whether or not Defendant Holly was deliberately
indifferent in refusing Plaintiff access to his eye drops in June and July of 2019.
(Doc. 1-3.) Therefore, Plaintiff’s threats of self-harm in 2020 do not establish an
issue of material fact.
In conclusion, Defendant Holly has submitted evidence demonstrating that
she had no reason to believe that prison doctors were mistreating Plaintiff. He was
provided access to his medications through keeping it on his person and through
self-administration and current records demonstrated that at the time Defendant
Holly was aware of the changes in the administration of medications, there was no
concern of repeating his history of swallowing medications. Therefore, the court
will grant Defendant Holly’s motion for summary judgment as to the Eighth
Amendment Claim.
3. ADA Claim
Defendant Holly seeks summary judgment on the ADA claim against her in
her official capacity. This claim was not raised in her Rule 12(b)(6) motion. (Doc.
80, p. 11.) In her motion for summary judgment, Defendant Holly does not dispute
that Plaintiff is a qualified individual with a disability, but asserts that medical
decisions do not fall within the scope of the ADA. (Doc. 188, p. 7.)
“[D]ecisions about a prisoner’s medical treatment generally do not give rise
to a claim under the ADA.” Nunez v. Prime Care Health, Inc., No. 19-cv-859,
2019 WL 1400466, at *1 n.3 (E.D. Pa. Mar. 27, 2019) (collecting cases). Indeed,
such claims would fail because the ADA and RA “prohibit[ ] disability-based
discrimination, ‘not inadequate treatment for the disability.’” Kokinda v.
Pennsylvania Dep't of Corr., 663 F. App'x 156, 159 (3d Cir. 2016) (quotation
omitted). Here, the claims raised in Plaintiff’s complaint are all premised on his
disagreement with the administration of his medical treatment. Therefore, the
court will grant Defendant Holly’s motion and enter judgment in her favor on the
ADA claim.
4. Intentional Infliction of Emotional Distress Claim
Defendant Holly seeks summary judgment on the tort claim against her, and
appears to argue that she has sovereign immunity. (Doc. 188, p. 8.)
The Commonwealth of Pennsylvania has explicitly retained its sovereign
immunity and not waived it, except in ten carefully defined and limited
circumstances: (1) vehicle liability; (2) medical-professional liability; (3) care,
custody or control of personal property; (4) Commonwealth real estate, highway
and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or
control of animals; (7) liquor store sales; (8) National Guard activities; (9) toxoids
and vaccines; and (10) sexual abuse. 42 Pa. C.S. § 8522(b). None of these
exceptions apply to this case. As set forth above, Defendant Holly was in an
administrative capacity at SCI-Frackville, and not a medical treatment capacity.
Therefore, the court agrees with Defendant Holly and will grant summary
judgment in her favor on the intentional infliction of emotional distress claim.
C. Defendant Monsalud’s Motion for Summary Judgment Will Be
Granted.
There are two remaining claims against Defendant Monsalud: (1) an Eighth
Amendment deliberate indifference claim; and (2) an intentional infliction of
emotional distress claim. (Doc. 80.) She seeks summary judgment on both claims.
(Doc. 190.)
1. Statement of Facts
Defendant Monsalud submitted much the same evidence as Defendant
Holly. Significantly, between June 1, 2019 and June 7, 2019, nurses documented
that Plaintiff was able to self-administer all drops without difficulty. (Doc. 191, ¶
56; Doc. 190-5, p. 17.)
On June 3, 2019, Plaintiff had an outside ophthalmology follow-up with Dr.
Papchristou, who recommended surgery on the right eye due to increased pressure.
(Doc. 191, ¶ 57; Doc. 190-6, pp. 301–07.)
On June 6, 2019, Defendant Monsalud submitted a consult request for
Plaintiff to be seen in a follow-up by an ophthalmologist noting increasing
intraocular pressures. (Doc. 191, ¶ 58; Doc. 190-2, pp. 356–57.)
On June 7, 2019, Defendant Monsalud entered a progress note stating that
Plaintiff needed to sign a Release from Responsibility following his refusal to
undergo surgery for his severe glaucoma and she also intended to discuss his
medication non-compliance and changing his eye drops to keep on person. (Doc.
191, ¶ 59; Doc. 190-2, pp. 87–88.) However, Plaintiff refused to see Defendant
Monsalud, and instead Defendant Holly spoke with him in the hallway about
keeping his eye drops on his person due to the fact that proper absorption requires
a five-minute interval between each drop. (Id.) Plaintiff refused to take his eye
drops. (Id.) Since Plaintiff was unwilling to keep the eye drops on his person, the
order for his medications continued as “Direct Observation Therapy” and he
continued to receive his eye drops in the following two weeks. (Doc. 191, ¶ 60;
190-5, pp. 11–15.)3
Defendant Monsalud then submitted an urgent referral to psychiatry based
on Plaintiff’s refusal of surgery three times, refusing to keep his medications on his
person, and threatening to swallow the eye drops if forced to keep them on his
person. (Doc. 191, ¶ 61; Doc. 190-2, p. 86.) Defendant Monsalud also completed
a Release from Responsibility form documenting that Plaintiff refused surgery for
the third time in a row, refused to take his eye drops to his cell for self-
administration for maximum absorption, and explained that without treatment he
may go blind in his right eye. (Doc. 191, ¶ 62; Doc. 190-2, pp. 84–85.) Plaintiff
refused to sign the document. (Id.) Later that same day, Plaintiff was seen by
Deborah Andrews for a psychiatric consultation. (Doc. 191, ¶ 63; 190-2, pp. 89–
3 These are the same medication reports submitted by Defendant Holly and summarized above.
90.)4 Plaintiff was encouraged to takes his medications as prescribed, but was not
receptive. (Id.) Plaintiff denied all suicidal ideation at the time, but it was decided
that medications would continue as they had in the past as direct observation
therapy. (Id.)
On June 13, 2019, a nurse noted that plaintiff “has been counseled numerous
times on med non compliance by nursing and the doctor. [I]nmate state he knows
what is best for him.” (Doc. 191, ¶ 64; Doc. 190-2, p. 81.)
On June 17, 2019, Plaintiff saw Kathryn Hansell for a mental health visit on
referral by Defendant Monsalud. (Doc. 191, ¶ 65; Doc. 190-2, pp. 68–70; 75–76.)
Plaintiff stated he was compliant with his eyedrops but refused to keep them on his
person. (Id.)
On June 25, 2019, Defendants Newton, Monsalud, and Holly collectively
made the decision to change his medication administration to keep on person.
(Doc. 191, ¶ 67; 190-8, p. 7.) After being informed of this change, Plaintiff spoke
with Kathryn Hansell, and expressed his frustration with medical and stated he
would decline to take his medications as keep on person. (Doc. 191, ¶ 68; Doc.
190-2, pp. 63–65.) Plaintiff stated that he was not suicidal. (Id.)
4 The statement of facts states that Defendant Newton was the provider who saw Plaintiff on
June 7, 2019. (Doc. 191. ¶ 62.) However, the evidence submitted demonstrates it was Deborah
Andrews who signed the treatment note. (Doc. 190-2, pp. 89–90.)
On June 27, 2019, Plaintiff was seen by Nurse Practitioner Iannuzzi, and
threatened to swallow his medications if kept on his person, yet denied any
thoughts of self harm. (Doc. 191, ¶ 70; Doc. 190-2, pp. 60–62.) Plaintiff was
referred to psychiatry. (Id.) Plaintiff reported to a nurse that he had not taken his
medications in days due to issues with the medical department regarding his eye
drops and denied any issues after his eye drops were applied. (Doc. 191, ¶ 71;
190-2, pp. 45–47.)
On June 28, 2019, Plaintiff reported to sick call with complaints of right eye
pain. (Doc. 191, ¶ 72; Doc. 190-2, pp. 57, 395, 397.) Plaintiff was offered his eye
drops and cautioned that without them he could lose his vision, but he again
refused an examination and refused to sign a refusal of treatment form. (Id.)
Plaintiff was again referred to psychiatry. (Id.) Plaintiff was seen for the
psychiatric referral that same day by Katheryn Hansell. (Doc. 191, ¶ 73; Doc. 190-
2, pp. 54–56.) Plaintiff was counseled on how refusing his eye drops was
detrimental to his eye health, he denied suicidal ideation or self-harm, and he
presented “outdated paperwork that he was unable to keep these on person.” (Id.)
On July 1, 2019, Plaintiff was seen by Defendant Newton and was deemed
psychiatrically stable and denied any suicidal ideation. (Doc. 191, ¶ 74; Doc. 190-
2, p. 43.)
On July 8, 2019, a nurse completed a Release from Responsibility form after
Plaintiff refused his eyedrops. (Doc. 191, ¶ 75; Doc. 190-2, pp. 40–41.) Plaintiff
refused to sign it. (Doc. 190-2, p. 41.)
On July 10, 2019, Defendant Holly, the Superintendent Assistant, and a
counselor met with Plaintiff to discuss his refusal to keep his eye drops on his
person, and Plaintiff claimed that the medical department was refusing him his eye
drops. (Doc. 191, ¶ 76; Doc. 190-4, p. 240.)
On July 11, 2019, Defendant Newton entered a chart note indicating that he
had spoken with Defendant Holly, and stated “There is no reason for this as he can
take the eye drops to his cell which he is refusing to do.” (Doc. 191, ¶ 77; Doc.
190-3, pp. 163–64.) Defendant Newton relayed this to Plaintiff on July 15, 2019,
and stated in his notes that “[t]here is no psychiatric reason why he cannot keep his
eye drops inside his cell as KOP to have it applied by himself.” (Id.)
On July 17, 2019, Plaintiff was again counseled on dangers of medication
non-compliance, and he stated he would “think about it,” and refused to sign the
medical refusal form. (Doc. 191, ¶ 82; 190-4, pp. 229–30.) Later that day,
Plaintiff’s refusal was discussed at the Medical Director’s meeting, and Defendant
Monsalud wrote that Plaintiff had never been compliant with applying his eye
drops, he refused surgery, refused to sign medical refusal forms, and refused to
keep hie eye drops in his cell. (Doc. 191, ¶ 83; 190-4, pp. 222–23.)
On July, 30, 2019, Plaintiff was brought into the treatment area to have his
eye drops administered, but the treatment room was occupied. (Doc. 191, ¶ 84;
Doc. 190-4, p. 216.) Despite assurances that once the room was vacant it could be
used, Plaintiff became agitated, refused treatment, and left the medical department.
(Id.)
On August 9, 2019, Plaintiff was seen by ophthalmologist Dr. Pantanelli,
and told him that he had not had his eye drops in weeks. (Doc. 191, ¶ 85; Doc.
190-6, pp. 243–47.) Plaintiff’s vision in the right eye was blurry. (Id.) He was
told to take his medications as prescribed. (Id.)
In August, Plaintiff was treated by Dr. Papachristou and reported he had
only just restarted his eyedrops. (Doc. 191, ¶ 87; Doc. 190-6, pp. 364–70.)
Plaintiff’s right eye was only capable of light perception. (Id.)
Defendant Monsalud also provided a historical record of allegations of
sexual harassment towards female staff. (Doc. 191, ¶¶ 16, 20, 52, 61, 62, 63, 119–
20.)
Plaintiff responded by attacking the evidence concerning the allegations of
sexual harassment towards female staff and alleging that the medical staff are lying
in their reports. (Doc. 205.) Plaintiff submitted documents already included in
Defendant Monsalud’s submissions. (Doc. 205-1.)
Despite Plaintiff’s accusations of dishonesty, the court finds that there is no
real issue of material fact surrounding the evidence Defendant Monsalud submitted
in support of the motion for summary judgment.
2. Eighth Amendment Claim
Defendant Monsalud moves for summary judgment on the Eighth
Amendment claim. As set forth in more detail above, a prison official or
healthcare provider violates the Eighth Amendment by “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Estelle, 429 U.S. at 106. Additionally, the court will not apply the “vulnerability to
suicide” farmwork set forth in Palakovic because no attempt of suicide occurred.
Plaintiff alleges that Defendant Monsalud denied him his eye drops in June
and July of 2019. But Defendant Monsalud has presented evidence that Plaintiff
continued to receive his eye drops in June and July of 2019, and the only missed
doses were those that Plaintiff either refused or failed to show up to receive. (Doc.
190-5, pp. 11–15.) Furthermore, when Plaintiff refused his eye drops, he was
referred to psychology for consultation, and all these consultations showed no
suicidal ideation or thoughts of self-harm. The fact that Plaintiff disagreed with
Defendant Monsalud’s decision to change the administration of the eye drops to
keep on person for self-administration does not rise to the level of an Eighth
Amendment violation. See White, 897 F.2d at 110. Therefore, Defendant
Monsalud’s motion will be granted, and judgment will be entered in his favor as to
the Eighth Amendment Claim.
3. Intentional Infliction of Emotional Distress Claim
Defendant Monsalud also moves for summary judgment on the intentional
infliction of emotion distress claim. As discussed above, to succeed in an
intentional infliction of emotions distress claim under Pennsylvania law requires a
plaintiff to establish four elements: “(1) the conduct must be extreme and
outrageous; (2) the conduct must be intentional or reckless; (3) it must cause
emotional distress; and (4) the distress must be severe.” Bruffet, 692 F.2d at 914.
Considering Defendant Monsalud has presented evidence that Plaintiff
received his eye drops except the doses that Plaintiff refused or failed to show up
to receive, Plaintiff cannot present evidence that Defendant Monsalud’s conduct
was “extreme and outrageous.” It was Plaintiff’s conduct that resulted in not
receiving eye drops, not that of Defendant Monsalud. Therefore, Defendant
Monsalud’s motion will be granted as to the intentional infliction of emotional
distress claim.
D. Plaintiff’s Remaining Motions Will Be Denied.
On May 32, 2023, Plaintiff provided notice to the court that he had been
moved to SCI-Coal Township. (Doc. 172.) In November of 2023, Plaintiff filed a
motion for a temporary restraining order and preliminary injunction seeking to
have SCI-Coal Township administer his eyedrops under direct observation. (Doc.
199.)
“When evaluating a motion for preliminary injunctive relief, a court
considers four factors: (1) has the moving party established a reasonable likelihood
of success on the merits (which need not be more likely than not); (2) is the
movant more likely than not to suffer irreparable harm in the absence of
preliminary relief; (3) does the balance of equities tip in its favor; and (4) is an
injunction in the public interest?” Fulton v. City of Philadelphia, 922 F.3d 140,
152 (3d Cir. 2019) reversed on other grounds by 141 S. Ct. 1868 (U.S. 2021).
“The first two factors are prerequisites for a movant to prevail.” Holland v. Rosen,
895 F.3d 272, 286 (3d Cir. 2018).
As addressed above, Plaintiff cannot succeed on the merits of his claims.
Therefore, the motion will be denied. Likewise, Plaintiff’s motion for appointment
of counsel will be denied.
CONCLUSION
For the foregoing reasons, Defendants’ motions for summary judgment will
be granted. Plaintiff’s “Motion For Inopposition to Defendant Karen Holly
Undisputed Facts” is construed as a brief in opposition, and the motion will be
denied as moot. Plaintiff’s motion for a preliminary injunction and temporary
restraining order will be denied. Plaintiff’s motion for appointment of counsel will
be denied. Judgment will be entered in Defendants’ favor, and the Clerk of Court
will close the case.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: February 27, 2023