CROWE v. MAXA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DANIEL CROWE, )

)

Plaintiff ) Case No. 1:16-175 Erie

)

Vv. )

)

ROBERT MAXA, ) RICHARD A. LANZILLO

) UNITED STATES MAGISTRATE JUDGE

Defendant )

) OPINION ON DEFENDANT’S

) MOTION TO DISMISS

) [ECF NO. 44]

MEMORANDUM OPINION

Presently pending before the Court is Defendant’s Motion to Dismiss [ECF No. 44]

Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the

reasons discussed below, the Court will grant Defendant’s motion.!

I. Procedural History

Plaintiff Daniel Crowe, an inmate at the State Correctional Institution at Albion,

commenced this civil rights action pursuant to 42 U.S.C. § 1983 on September 7, 2016 by filing

a Complaint alleging that Defendant Robert Maxa (“Dr. Maxa’’), the prison physician, violated

his Eighth Amendment rights by denying him necessary medical care. Dr. Maza moved to

dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6), arguing that it failed to allege facts

sufficient to support a plausible claim that Dr. Maxa acted with deliberate indifference to

Plaintiff's serious medical needs. ECF. No. 29. On November 9, 2018, this Court granted

' The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28

U.S.C. § 636. See ECF Nos. 9, 33.

Defendant’s Motion to Dismiss, but also granted Plaintiff leave to file an amended complaint in

an effort to cure the deficiencies of his claim. ECF No. 41. Plaintiff filed an Amended

Complaint on November 30, 2018. ECF No. 43. Dr. Maxa filed the pending Motion to Dismiss

the Amended Complaint on December 20, 2018. ECF No. 44. Plaintiff responded to the motion

on February 1, 2019. ECF No. 47. Dr. Maxa filed a reply brief on February 4, 2019. ECF No.

48. Plaintiff filed a sur-reply on February 28, 2019. ECF No. 49. The motion has been fully

briefed and is ripe for disposition.

II. Factual Allegations

In his Amended Complaint, Plaintiff alleges that he went to a sick call appointment with

Dr. Maxa for back pain on December 4, 2015. ECF No. 43, 9 6. Dr. Maxa reviewed a recent

MRI and informed Plaintiff that he had degenerative disc disease in his spine. /d. at J 7.

Plaintiff then specifically requested Ultram, a prescription medication for his pain. Jd. at Jf 8,

10). Dr. Maxa refused to prescribe this medication, telling Plaintiff that Ultram was not on the

Department of Correction’s list of approved medications for financial reasons.” Jd. at § 10.

Plaintiff further alleges that he told Dr. Maxa that this was deliberate indifference to his medical

care and that Dr. Maxa ended the visit by “denying any and all treatment.” /d. at JJ 11-13.

2 Ultram is the brand name of a drug called Tramadol. See www.mayoclinic.org/drugssupplements/tramadol-oral-

route/description/drg-20068050 (last visited August 28, 2018). According to the Mayo Clinic, Tramadol is an opioid

analgesic used to relieve moderate to moderately severe pain. Jd. When “used for a long time, it may become habit-

forming, causing mental or physical dependence.” /d. The Court may take judicial notice of these background facts

pursuant to Federal Rule of Evidence 201(b)(2) because they are “not subject to reasonable dispute [and are] capable

of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned.” See,

e.g., Rankins v. Washington, 2017 WL 4364060, at *3 (W.D. Mich. Sep. 29, 2017) (taking judicial notice of facts

presented on the Mayo Clinic’s website); Giddings v. Cradduck, 2017 WL 2791345, at *6 n. 4 (W.D. Ark. June 6,

2017) (same); Green v. CDCR, 2016 WL 6124148, at *1 n. 1 (E.D. Cal. Oct. 19, 2016) (same); Arce v. Chicago

Transit Authority, 193 F.Supp.3d 875, 881 (N.D. Ill. 2016) (same).

In the grievance from this encounter, which Plaintiff attached to his Amended Complaint,

Plaintiff further alleged that Dr. Maxa “prescribed ‘NSAID’ medications even though I told him

they were not effective from my experience... .”? ECF No 43-1. Plaintiffs grievance states

that this prescription was provided during Plaintiff's first meeting with Dr. Maxa, which meeting

Plaintiff identifies as having occurred on December 4, 2015. Jd.

Il. Standards of Review

1. Pro se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers.” Haines y. Kerner, 404 U.S. 519, 520-521 (1972). If

the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,

it should do so despite failure to cite proper legal authority, confusion of legal theories, poor

syntax and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.

MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,

555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read

“with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992);

Freeman v. Dep't of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading

rules, during the initial stages of litigation, a district court should construe all! allegations in a

complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g.,

3 The acronym “NSAID” refers to “nonsteroidal anti-inflammatory drugs,” such as naproxen sodium, ibuprofen, and

others. See https://www.mayoclinic.org/chronic-pain-medication-decisions/art-

20360371?mc_id=us&utm_source=newsnetwork&utm_medium=l&utm_content=content&utm_campaign=mayocli

nic&geo=national&placementsite=enterprise&cauid=100721& ga=2.160092664.473 568632. 1567020980-

51837601.1566583588 (last visited August 28, 2019). NSAIDs are most effective for mild to moderate pain that's

accompanied by swelling and inflammation. /d. These drugs are commonly used for arthritis and pain resulting

from muscle sprains, strains, back and neck injuries, or menstrual cramps. /d.

Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard);

Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).

2. Motion to dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a

motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the

merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to

relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)

(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.

2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed

pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard

established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court

must accept as true all well-pled factual allegations in the complaint and views them in a light

most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.

2002).

While a complaint does not need detailed factual allegations to survive a motion to

dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555.

A “formulaic recitation of the elements of a cause of action will not do.” Jd. (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a

plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub.

Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal

conclusions disguised as factual allegations. Twombly, 550 U.S. at 555. See also McTernan v.

City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).

Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the

following three-step approach:

First, the court must ‘tak[e] note of the elements a plaintiff

must plead to state a claim.’ Second, the court should

identify allegations that, ‘because they are no more than

conclusions, are not entitled to the assumption of truth.’

Finally, ‘where there are well-pleaded factual allegations, a

court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for

relief.’

Burtch vy. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Igbal, 556 US. at 679.

IV. Analysis

In his Amended Complaint, Plaintiff contends that Dr. Maxa violated the Eighth

Amendment’s prohibition against cruel and unusual punishment by displaying deliberate

indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97 (1976) (stating that

“deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and

wanton infliction of pain proscribed by the Eighth Amendment’) (internal quotation omitted).

To establish a violation of his constitutional right to adequate medical care, a plaintiff is required

to allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison

officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197

(3d Cir. 1999). Such indifference is manifested by an intentional refusal to provide care, delayed

medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of

reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O’Carroll,

991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of

permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

Plaintiff's claim in the instant action focuses on Dr. Maxa’s decision to decline Plaintiff's

request for a prescription of Ultram in favor of non-narcotic NSAIDs to treat the pain associated

with his degenerative disc disease. It is well-settled that “an inmate’s dissatisfaction with a

course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment

claim.” Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases).

Such complaints fail as constitutional claims because “the exercise by a doctor of his

professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F. Supp. 833,

836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.

1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a

prisoner’s constitutional rights.”’)). “Therefore, where a dispute in essence entails nothing more

than a disagreement between an inmate and doctors over alternate treatment plans, the inmate’s

complaint will fail as a constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5

(citing Gause v. Diguglielmo, 339 Fed. Appx. 132 (3d Cir. 2009) (characterizing a dispute over

pain medication as the type of “disagreement over the exact contours of [plaintiffs] medical

treatment” that does not violate the constitution)).

Similarly, “the mere misdiagnosis of a condition or medical need, or negligent treatment

provided for a condition, is not actionable as an Eighth Amendment claim because medical

malpractice standing alone is not a constitutional violation.” Tillery, 2018 WL 3521212, at *5

(quoting Estelle, 429 U.S. at 106). “Indeed, prison authorities are accorded considerable latitude

in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Thus,

“courts have consistently rejected Eighth Amendment claims where an inmate has received some

level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018)

(quoting Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)). See also Wisniewski

v. Frommer, 751 Fed. Appx. 192, 2018 WL 4776165, at *3 (3d Cir. Oct. 3, 2018) (noting that

“there is a critical distinction ‘between cases where the complaint alleges a complete denial of

medical care and those alleging inadequate medical treatment.’”).

In the instant case, Plaintiff received “some level of medical care” from Dr. Maxa.

Hensley, 2018 WL 4233021, at *3. The grievances attached to Plaintiff's Amended Complaint*

show that he met with Dr. Maxa at least twice to seek treatment for his lower back pain during

the relevant time period and received a prescription for “NSAID medication.” See ECF No. 43-

1. “Where the plaintiff has received some care, inadequacy or impropriety of the care that was

given will not support an Eighth Amendment claim.” Norris v. Frame, 585 F.2d 1183, 1186 (3d

Cir. 1978).

‘ Plaintiff's Amended Complaint includes the allegation that Dr. Maxa “den[ied] any and all treatment.” ECF No.

43. However, this allegation is clarified by the grievance Plaintiff attached to his Amended Complaint, wherein he

acknowledged that Dr. Maxa prescribed him “NSAID medication” on the same date Plaintiff generally asserts Dr.

Maxa denied treatment Read in context, the Amended Complaint and his grievance demonstrate that the denial of

treatment alleged by Plaintiff was Dr. Maxa’s refusal to prescribe Ultram in favor or NAIDs. Even if the Court were

to view the statements in the Amended Complaint and Plaintiff's grievance as contradictory, the Court would

properly credit the grievance. See Sazerac Co., Inc. v. Falk, 861 F.Supp. 253 (S.D. N.Y. 1994) (“For purposes of

motion to dismiss for failure to state claim on which relief can be granted, if allegations of complaint are

contradicted by documents made part of complaint, document controls and court need not accept as true allegations

of complaint.”); see also Public Lands for the People, Inc. v. U.S. Dept. of Agriculture, 733 F.Supp.2d 1172. (E.D.

Cal. 2010). The Court also notes that Plaintiff's original Complaint specifically acknowledged that Dr. Maxa had

prescribed Plaintiff NAIDs for his back pain. ECF 6, §13. Further, Plaintiffs original Complaint noted that, on

December 4, 2015, Dr. Maxa advised him that “we don’t like to prescribe narcotics for chronic pain.” ECF 6, 99

(emphasis in original).

Moreover, as noted above, the lone allegation of deliberate indifference is that Dr. Maxa

denied his request for a specific medication. An inmate’s objection to the type of medication

provided by prison physicians is precisely the type of “disagreement between an inmate and

doctors over alternate treatment plans” that falls well short of a constitutional violation. Tillery,

2018 WL 3521212, at *5. Indeed, these types of claims frequently arise — and are routinely

rejected — in the context of disputes over whether to treat an inmate’s chronic pain with a

narcotic or non-narcotic pain reliever. See, e.g., Whooten v. Bussanich, 248 Fed. Appx. 324,

326-27 (3d Cir. 2007) (medical staff was not deliberately indifferent for treating migraine

headaches with a medication other than the narcotic preferred by plaintiff); Ascenzi v. Diaz, 247

Fed. Appx. 390, 391 (3d Cir. 2007) (no deliberate indifference where plaintiff was provided pain

medication and antibiotics instead of narcotic pain relievers for his herniated cervical discs).

In Castro v. Kastora, 2018 WL 4538454 (E.D. Pa. Sept. 20, 2018), the plaintiff alleged

that he suffered a broken arm after falling from his top bunk. /d. at *2. He had surgery on

April 30, 2017, and was prescribed Oxycodone by hospital physicians. /d. However, on May 1,

2017, upon his discharge and return to the prison, his prescription of Oxycodone was “taken

away/discontinued, and replaced with Tylenol and Ibuprofen.” /d. In analyzing those

allegations, the Court concluded that a doctor’s decision to provide Ibuprofen and Tylenol

instead of Oxycodone or other narcotics did not state a claim of deliberate indifference. /d. at *6.

In granting the defendants’ motion to dismiss, the Court stated:

Though [the plaintiff] alleges that he should have been

treated with narcotics to manage his pain, these allegations

amount to mere disagreement as to the proper medical

treatment and [are] insufficient to state a plausible

constitutional violation. The medical staff did not withhold

pain medication. They merely exercised their medical

judgment in providing Castro with a different medication

than what he wanted. This does not state a claim for

deliberate indifference.

Id. (internal citations omitted).

In that same vein, many courts within the Third Circuit have rejected § 1983 claims

involving the precise drug at issue in this case—Ultram. See, e.g., Wisniewski, 2018 WL

4776165, at *3 (finding no Eighth Amendment violation where a prison doctor discontinued the

plaintiffs prescription for Ultram and instructed him to buy Motrin in the prison commissary);

Gause, 339 Fed. Appx. at 136 (dispute between plaintiff and a prison physician as to whether

plaintiff should be treated with Ultram or Motrin did not rise to the level of a constitutional

violation); Buehl v. Wexford Healthy Sources, Inc.,2017 WL 914275, at *6 (M.D. Pa. Mar. 8,

2017) (decision to prescribe “over the counter pain medications as needed” and “exercise and

strengthening” instead of Tramadol did not amount to deliberate indifference). The Court

reaches the same conclusion here.

Plaintiff also alleges that Dr. Maxa stated that the DOC did not include Ultram on a list of

approved drugs for financial reasons. Courts have found plausible claims of medical

indifference where prison physicians refuse to provide adequate care for non-medical reasons,

such as cost-containment. See, e.g., Robinson v. Corizon Health, Inc., 2016 WL 7235314, at *7

(E.D. Pa. Dec. 13, 2016). However, such claims arise only when a prisoner alleges that “the

provision of medical care was both inadequate and motivated by improper or non-medical

reasons.” Buehl, 2017 WL 914275, at *7 (emphasis added). See also Pearson, 850 F.3d at 535-

536 (noting that a deliberate indifference claim has “two very distinct subcomponents”: the

physician must have provided “inadequate medical care,” and he must have done so “with the

requisite state of mind”). The second component — the “intent of the medical provider” —

becomes critical only where “the care received by an inmate was clearly inadequate.” Robinson,

2016 WL 7235314, at *7.

As discussed above, Dr. Maxa’s provision of care was not clearly inadequate. Plaintiff's

conclusory averment that budgetary factors affected the availability of Ultram and thereby

entered into Dr. Maxa’s decision-making is insufficient to render that exercise of medical

judgment deliberately indifferent in the absence of otherwise inadequate medical care. See, e.g.,

Winslow v. Prison Health Services, 406 Fed. Appx. 671, 674-75 (3d Cir. 2011) (‘[T]he naked

assertion that Defendants considered cost in treating [plaintiffs] hernia does not suffice to state a

claim for deliberate indifference, as prisoners do not have a constitutional right to limitless

medical care, free of the cost constraints under which law-abiding citizens receive treatment.”).

As such, dismissal is warranted.

V. LEAVE TO AMEND

The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal

for failure to state a claim, the Court should permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002). This instruction is equally applicable to pro se litigants and those represented by counsel.

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, the Court granted Plaintiff leave

to amend after it found that his original Complaint failed to state a claim. Plaintiff's Amended

Complaint attempted to cure his pleading deficiency by removing certain factual allegations

regarding the care Dr. Maxa provided to him, apparently in an effort to minimize the extent of

that care. Despite this disingenuous approach to a curative amendment, Plaintiff's Amended

Complaint also failed to state a claim of deliberate indifference. Therefore, Plaintiff having

10

failed to allege facts to support deliberate indifference against Dr. Maxa despite two

opportunities to do so, the Court finds that any further amendment would be futile.

VI. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 44) is GRANTED,

and Plaintiff's Amended Complaint is dismissed, with prejudice.

eet eer.

RICHARD A. LANZILLO

United States Magistrate Judge

Dated: August 29, 2019

1]