ENOCH v. PERRY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

)

REV. AUGUSTUS SIMMONS ENOCH, ) 1:19-CV-00026-RAL

)

RICHARD A. LANZILLO

Vs ) UNITED STATES MAGISTRATE JUDGE

)

_ DAVID PERRY, J. SAWTELLER, BYER, ) MEMORANDUM OPINION ON

LISA LAMOREAUX, SUTTERLANDER, ) DEFENDANTS’ MOTION FOR

LPN JANE DOE, DEPUTY SECRETERY ) SUMMARY JUDGMENT

TREVOR WINGARD, TRACY SMITH, ) ECF NO. 160

REV. ULRICH KLEMM, DEBRA RAND, ) 0.

DAN LEE, ROBERT LAWRENCE MAXA, _ )

KIMBERLY SMITH, GARY PRINKEY, )

. KATHLEEN HILL, BONNE E. BELL, ds

ANDREW LESLIE, HEATHER )

KELLERMAN, CHAPPLON REV. -)

SHAFFER, CHAPLLON REV. SIBANDA,: __)

)

)

Defendants )

Presently before the Court is a motion for summary judgment filed by Defendants

Lamoreaux, Leslie, Maxa, and Sutterlander (“Medical Defendants”). See ECF No. 160. For the

reasons explained below, the motion will be GRANTED.

I. Procedural History and Material Facts!

_ Plaintiff Augustus Simmons Enoch (“Simmons”), representing himself, commenced this

civil rights action against the four Medical Defendants and fourteen individuals who are

employed by the Pennsylvania Department of Corrections at the DOC’s State Correctional

' Having previously detailed this case’s lengthy procedural history and factual background in its Memorandum

Opinion of July 20, 2020, see ECF No. 101, the Court will note only those facts and docket activities directly

relevant to the pending motion.

Institution at Forest, where Simmons is incarcerated.2_ Simmons’ Amended Complaint is his

operative complaint. See ECF No. 68. The fourteen Defendants employed by the DOC (“DOC

Defendants”) filed a motion to dismiss certain of Simmons’ claims pursuant to Fed R. Civ. P.

12(b)(6). The Court addressed that motion in its Memorandum Opinion of July 20, 2020. ECF

No. 101. The Medical Defendants filed an Answer to the Amended Complaint. ECF No. 88.

Discovery. is complete, and the Medical Defendants have now moved for summary judgment.

See ECF No. 160.

The following facts are taken from the Medical Defendants’ Concise Statement of

Material Facts (ECF No. 162) and Simmons’ response thereto (ECF No. 180).3 On September

25, 2018, Simmons was twice sprayed with oleoresin capsicum (“OC”) spray by DOC personnel

despite his protestations that he suffered from asthma. See ECF No. 68, § 22. He was sprayed

again on September 26, 2018 while he was unconscious in his cell. Id., § 25-28. Simmons

claims that DOC personnel confiscated his inhaler at that time and that—despite his asking for

it—DOC personnel failed to return it to him. Jd. The discharge of OC spray, he contends,

resulted in asthma attacks and ongoing breathing problems. Jd., § 31-36. Simmons claims the

Medical Defendants delayed necessary medical care and provided him with substandard care.

His Amended Complaint includes two counts against the Medical Defendants. First, Simmons

claims that the Medical Defendants violated his Eighth Amendment right against cruel and |

? The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this

case. See ECF Nos. 23, 24,31, and 40. -

3 Simmons has filed one document in response to the Medical Defendants’ motion, which he states constitutes his

“response to medical defendants (sic) motion for summary judgment, with their brief in opposition to support and

their concise statement of material facts filed therein.” This filing does not comply with our Local Rule 56(C),

which requires a Responsive Concise Statement, “separately filed” and “which responds to each numbered

paragraph in the moving party’s Concise Statement of Material Facts.” See LCvR 56(C)(1)(a)-(c). Our Local Rule

also requires a separately filed “memorandum in opposition” and an appendix, neither of which Simmons has filed.

See LCvR 56(C)(1)-(2).

unusual punishment by failing to provide him with a replacement inhaler and by not treating him

for pulmonary fibrosis. Jd., {J 16-39 (Count I). Second, Simmons contends that the Medical

Defendants conspired and retaliated against him through their refusal to respond to his sick call

requests relating to his asthma. /d., □□ 41-45 (Count II).

Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) requires the court to enter 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). Under this standard “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 existence or nonexistence would affect the outcome of

the case under applicable substantive law. Anderson, 477 U.S. 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

USS. 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 a genuine issue of material fact remains for trial, the court

must view the record and all reasonable inferences to be drawn therefrom 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). To avoid summary judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden

of identifying evidence that demonstrates the absence of a genuine issue of material fact, the

nonmoving party must go beyond his pleadings with affidavits, depositions, answers to

interrogatories or other record evidence to demonstrate specific material facts that give rise to a

genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “[A] pro se plaintiff is not

relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent

evidence in the record that is capable of refuting a defendant's motion for summary judgment.”

Martin v. Wetzel, 2021 WL 2926005, at *3 (W.D. Pa. July 12, 2021) (quoting Damson v. Cook,

_ F. Supp. 3d 712, 717 (E.D. Pa. 2017) (other citation omitted)). Put another way, just

because a non-moving party is proceeding pro se, he is not relieved of their “obligation under

Rule 56(c) to produce evidence that raises a genuine issue of material fact.” Jd. (quoting Boykins

v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 408 (E.D. Pa. 2000)); see also Winfield v.

Mazurkiewicz, 2012 WL 4343176, *1 (W.D. Pa. Sept. 21, 2012).

Further, under Rule 56, a defendant may seek summary judgment by pointing to the

absence of a genuine fact issue on one or more essential claim elements. The Rule mandates

summary judgment if the plaintiff then fails to make a sufficient showing on each of those

elements. ‘When the nonmoving party bears the burden of proof, “a complete failure of proof

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

immaterial.” Celotex, 477 US. at 323. See also Harter v. G.A.F. Corp., 967 F.2d 846, 851 3d

Cir. 1992). With this standard in mind, the Court will assess whether the record supports any

genuine issues of material fact pertinent to Simmons’ claims against the Medical Defendants.

Discussion and Analysis | .

A. Medical Defendants Maxa and Leslie are entitled to summary judgment on Simmons’

Eighth Amendment deliberate indifference claim.

To support a claim for violation of his Eighth Amendment right to adequate medical care,

a prisoner must produce evidence to support findings that (1) he had a serious medical need, and

(2) the defendant was aware of this need and was deliberately indifferent to it. See West v. Keve,

571 F.2d 158, 161 (Gd Cir. 1978); see also Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir.

1987). The defendant’s “acts or omissions” must have been “sufficiently harmful to evidence

deliberate indifference roeenone medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976);

accord White v. Napoleon, 897 F.2d 103, 109 (3d Cir.1990). Either actual intent or recklessness

will afford an adequate basis to support a finding of deliberate indifference. See Estelle, 429

USS. at 105.

The seriousness of a medical need may be demonstrated by showing that it is ““‘one that

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 County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. |

456, 458 (D.N.J. 1979)). Moreover, “where denial or delay causes an inmate to suffer a life-long

handicap or permanent loss, the medical need is considered serious.” Jd. Here, the Court will

assume, without deciding, that Simmons’ asthma presented a serious medical need.* See, e.g.,

4 In doing so, however, the Court observes that there is little evidence in the record that Simmons’ asthma rose to a

level of a “serious medical need.” See, e.g., Seldon v. Wetzel, 2021 WL 2877811, at *7 (W.D. Pa. May 13, 2021).

Indeed, Simmons has not shown that his asthma imposed any limitations on his daily activities (he was noted to

have been jogging in his cell, for example) and in many of his numerous medical appointments relating to his

exposure to OC spray, Simmons failed to even complain of symptoms related to his asthma. See, e.g., ECF No. □□□□ □

1, pp. 40-41 (observed jogging) and pp. 52-53 (Simmons failed to report any asthma symptoms).

Jordan v. Murin, 2020 WL 8675897, at *5 (W.D. Pa. Nov. 4, 2020), report and recommendation

adopted, 2021 WL 612823 (W.D. Pa. Feb. 17, 2021).

As to the second requirement, an official’s denial of an inmate’s reasonable requests for

medical treatment constitutes deliberate indifference if such denial subjects the inmate to undue

suffering or a threat of tangible residual injury. Jd. at 346. Deliberate indifference may also be

present if necessary medical treatment is delayed for non-medical reasons, or if an official bars

access to a physician capable of evaluating a prisoner's need for medical treatment. Jd. at 347.

However, an official’s conduct does not constitute deliberate indifference unless it is

accompanied by the requisite mental state. Specifically, “the official [must] know ... of and

disregard ... an excessive risk to inmate health and safety; the official must be both aware of facts

from which the inference can be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Farmer vy. Brennan, 511 U.S. 825, 837 (1994). While a plaintiff must

allege that the official was subjectively aware! of the requisite risk, he may demonstrate that the

Official had knowledge of the risk through circumstantial evidence and “a fact finder may

conclude that a[n] ... official knew of a substantial risk from the very fact that the risk was

obvious.” Id, at 842. Deliberate indifference has been found, for example, where a prison

official “knows of a prisoner’s need for medical treatment but intentionally refuses to provide

it[,|” or “prevents a prisoner from receiving needed or recommended medical treatment.” Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Durmer v. O’Carroll, 991 F.2d 64, 68 □□□

Cir. 1993)). See also, Monmouth Cty. Corr. Institutional Inmates, 834 F.2d at 346-47).

The law is clear, however, that mere medical malpractice is insufficient to present a

constitutional violation. See Estelle, 429 U.S. at 106; Durmer v. O’Carroll, 991 F.2d 64, 67 (3d

Cir.1993). Prison authorities are afforded wide latitude and discretion in the treatment of

prisoners. See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979); see

also White, 897 F.2d at 110 (“[C]ertainly no claim is stated when a doctor disagrees with the

professional judgment of another doctor. There may, for example, be several acceptable ways to

treat an illness.”’). Mere errors in medical judgment or other negligent behavior do not meet the

mens rea requirement. See Estelle, 429 U.S. at 107: Rouse, 182 F.3d at 197. The proper forum

for a medical malpractice claim is in state court under the applicable tort law. See id.

Furthermore, “mere disagreement as to the proper medical treatment” does not “support a

claim of an eighth amendment violation.” Lanzaro, 834 F.2d at 346. Accordingly, when

medical care was provided, the Court presumes that the treatment of a prisoner was proper absent

evidence that it violated professional standards of care. See Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is well established that as long as a

physician exercises professional judgment his behavior will not violate a prisoner’s

constitutional rights.”). .

At its core, Simmons’ Eighth Amendment claim is that he should have been provided

with a readily available asthma inhaler after he was sprayed with OC spray. See, e.g., ECF No.

180, Jf] 17, 29. Pointing to the extensive medical record, the Medical Defendants argue that

Simmons received extensive treatment for his asthma, as well as other conditions, and did, in

fact, receive an asthma inhaler when the need for such a prescription was warranted. Defendants

thus contend that Simmons’ complaints constitute mere disagreements over the treatment he

received and do not support an Eighth Amendment violation. See ECC No. 161, generally. The

Court agrees,

Having reviewed the extensive medical records, logs, and Aeeaeen presented by both

the Medical Defendants and Simmons, (see generally ECF No. 161-1; ECF No. 178-1 through

178-21), the Court finds that the medical care provided to Simmons was not violative of the

Eighth Amendment. Instead, the medical records demonstrate a consistent course of treatment

for Simmons’ asthma. For example, Simmons was seen just a day after his last exposure to OC

spray. On September 27, 2018, Medical Defendant Leslie saw Simmons for what Simmons

described as a “jolt-like” chest pain he was experiencing since being sprayed with OC spray the

previous evening. ECF No. 161-1, p. 54. Leslie noted that Simmons was not in any “acute

distress,” that no medications were needed, and that Simmons should follow up as needed. Id.

Leslie saw Simmons again on October 9, 2018 for Simmons’ report of “partial and full blown

seizures,” which Simmons claimed began after the OC spray incident on September 26, 2018.

Id., p. 52-53. Although Simmons complained of shaking in his right leg and left arm, he made

no asthma-related or generalized breathing complaints to Leslie at this time. Id. Because

Simmons was already taking a medication to manage chronic pain and convulsions, Leslie

declined to prescribe any additional medication at that time. Jd. On December 19, 2018,

Simmons was seen by Medical Defendant Sutherland. Jd., pp. 40-41. Simmons complained of

shortness of breath and wheezing stemming from the OC spray incident several weeks earlier,

Id. Simmons did request an inhaler which Sutherland noted Simmons had not used in over a

year. Jd. But in any event, Sutherland prescribed Xopenex, a fast-acting asthma inhaler, for

Simmons’ use.° Id.

The medical record also relates the prescription for Xopenex was discontinued in January

of 2019, because Simmons “indicated he does not use the inhaler” and that Simmons “was noted

to be jogging in his cell when he initially requested a refill of his inhaler.” /d., p. 33. Simmons

was told to contact the prison medical department if he experienced any further breathing

5 As other Courts have noted, a Xopenex HF (Levalbuteral) inhaler is typically used as needed for shortness of

breath. See, e.g., Snider v. Pa. Dep’t Corrs., 2019 WL 4793056, at *10 (M.D. Pa. Sept. 30, 2019).

g -

difficulties. Jd. Simmons was then seen on April 13, 2019, for an asthma attack. Id, pp. 140-45.

He was given a dose of Xopenex and Defendant Maxa prescribed him an inhaler the next day.

Id., p. 162. Defendant Leslie then followed-up with Simmons on April 14, 2019. Jd. at pp. 138-

39. Simmons was not in any distress, was able to speak with Leslie, and was permitted to keep

his inhaler in his cell. Jd., at pp. 135-36. Defendant Sutherland attempted to see Simmons on

April 19, 2019, but Simmons refused to come to his cell door. Jd. Simmons was seen by

Sutherland on April 24, 2019, who noted that Simmons was breathing easily. Jd. On April 26,

2019, Simmons was again seen by Sutherland on account of reported breathing difficulties. /d.,

pp. 131-32. Simmons’ respiration and heart rates were normal, his lungs clear, and Sutherland

noted Simmons was not in any apparent distress. Id.

Simmons’ disagreement with the Medical Defendants over the provision of his inhaler

appears to have begun in July of 2019, months prior to the utilization of OC in his cell. On July -

17, 2019, Leslie explained to Simmons that he would not be refilling his inhaler prescription due

to noncompliance: Simmons had only used one inhaler in the past year and Leslie no longer felt

it was necessary. Id., pp. 171-72. Nonetheless, Defendant Sutherland renewed Simmons’

inhaler prescription on August 12, 2019, but required that it be kept in possession of prison staff

and given to Simmons when requested so that the medical department could track how often

Simmons used it. Id, p. 460. The prescription was renewed on September 19, 2019, and on

November 25, 2019. Id., pp. 456-57. Simmons was transferred to another institution in

December of 2019.

While Simmons may disagree with the course of his treatment, as well as the efforts of

the Medical Defendants, such disagreements do not constitute a constitutional violation

actionable under 42 U.S.C. § 1983. See Durmer, 991 F.2d at 67. .

B. Defendant Lamoreaux is entitled to summary judgment on Simmons? Eighth

Amendment deliberate indifference claim.

sone argues that Defendant Damoreaux violated his Eighth Amendment rights by

ignoring his requests for treatment. See ECF No. 68, fff 33-39. In moving for summary

judgment Lamoreaux argues that the record does not support a finding that she was personally

involved in any alleged violation of Simmons’ rights. The Court agrees.

Lamoreaux points outs—and Simmons does not contest—that she is not a clinician, does

not see patients, and only provides administrative services to Wellpath, LLC. ECF No. 161,

p. 17. These duties include the scheduling of clinicians and acting as a liaison between the

medical provider and the DOC. Jd. She is a “nonmedical defendant.” See, e.g., Seldon v.

Weitzel, 2020 WL 929950, at *4 n.3 (W.D. Pa. Feb. 6, 2020) report and recommendation

adopted, 2020 WL 924046 (W.D. Pa. Feb. 26, 2020). As a healthcare administrator, Lamoreaux

is not responsible for responding to an inmate’s medical needs and complaints while that inmate

is under the care of medical professionals, and her failure to do so is not actionable under the

Eighth Amendment. See Seldon, 2020 WL 929950, at *4 n.3 (holding that because Lamoreaux

was a Health Services Administrator and does not provide clinical care ... [she] is not

deliberately indifferent if she failed to respond to plaintiff's medical complaints while he was

under the care of medical processionals) (citations omitted). Simmons cannot maintain an

Eighth Amendment deliberate indifference claim against an administrator such as Lamoreaux in

the absence of evidence suggesting she had “knowledge of ‘malicious’ and ‘sadistic’ medical

mistreatment.” Henderson v. Bussanich, 2006 WL 3761998, at *1 (M.D. Pa June 20, 2006). See

also, €.8., Pearson y. Prison Health Serv., 850 F.3d 526, 543 (3d Cir. 2017) (non-medical staff

was not deliberately indifferent “for failing to second-guess the medical staff’s appraisal of the

situation”); In re Wetzel, 2016 WL 4945315, at *3 (W.D. Pa. Sep. 16, 2016) (rejecting a claim of

10

deliberate indifference against a non-medical defendant because the plaintiff acknowledged that

he had received treatment from prison physicians). Because the record includes no evidence to

support such a finding, summary judgment will be entered in favor of Lamoreaux on Simmons’

deliberate indifference claim.

IV. Conclusion

For the foregoing reasons, the Medical Defendants’ Motion for Summary Judgment will

be granted. A separate order follows. ,

Submitted this 20" day of December, 2021.

RT:

. e .

RICHARD A. LANZILLO

UNITED STATES MAGISTRATE JUDGE

11