# DOE v. UNITED STATES OF AMERICA

> District Court, W.D. Pennsylvania · December 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10419293

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** December 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
JOHN DOE,
)
Plaintiff )
)
v. ) Civil Action No. 3:21-cv-0022
)
UNITED STATES OF AMERICA, et ) Magistrate Judge Patricia L. Dodge
al., )
)
)
Defendants.

MEMORANDUM OPINION1
Plaintiff John Doe (“Doe”) is a federal inmate housed at the Federal Correctional Institution
at Loretto (“FCI Loretto”) at all relevant times. (ECF No. 4.) Doe has brought this civil rights
action related to his medical treatment at FCI Loretto against Defendants United States of America,
FCI Loretto, Warden Moser, HSA Norman Weidlich, Dr. Kim Swindell (“Dr. Swindell”), and P.A.
Burk (“P.A. Burk”) (collectively, “Defendants”).
Pending before the Court is the Motion for Partial Summary Judgment (ECF No. 62) of
Dr. Swindell and P.A. Burk. For the reasons below, the motion will be granted in part and denied
in part.
I. Relevant Procedural Background
Doe, who originally proceeded pro se, initiated this action without paying the filing fee or
submitting a motion to proceed in forma pauperis. (ECF No. 1.) His Complaint was docketed in
April 2021, after his motion was filed and granted. (ECF No. 4.) Doe subsequently retained
counsel. (ECF No. 10.)

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented
to have a United States Magistrate Judge conduct proceedings in this case. Therefore, the
undersigned has the authority to decide dispositive motions and enter final judgment.
Doe alleges that Defendants denied him reasonable health care, failed to treat him,
breached duties owed to him, were negligent and deliberately indifferent to his medical needs, and
failed to meet a reasonable standard of care. As a result of these violations, Doe alleges, he
sustained irreversible nerve damage, suffers from various conditions, and sustained irreparable

harm.
Defendants then moved to dismiss Doe’s Eighth and Fourteenth Amendment claims as
well as his Federal Tort Claims Act (“FTCA”) claims against FCI Loretto, Warden Moser, HSA
Norman Weidlich, Dr. Swindell and P.A. Burk. (ECF No. 29.) In a Memorandum Opinion issued
on April 25, 2022, the Court granted this motion in part, dismissing with prejudice the following:
all claims against the individual defendants in their official capacities; any Bivens claims against
the United States of America; all claims arising under the Fourteenth Amendment; the FTCA
claims related to all defendants other than the United States; and all claims against FCI Loretto,
Warden Moser, and HSA Weidlich. (ECF No. 38.) The motion was otherwise denied.
After the close of discovery, Dr. Swindell and P.A. Burk filed a motion for partial summary

judgment, along with a supporting Brief, Concise Statement of Material Facts and Exhibits (ECF
Nos. 62-66). In turn, Plaintiff filed a Brief in Opposition and a Reply to Defendants’ Concise
Statement of Facts (ECF No. 67, 68). Dr. Swindell and P.A. Burk then filed a Reply (ECF No.
69) as well as Objections (ECF No. 70) to some of Plaintiff’s responses to the Concise Statement.
Thus, the motion has been fully briefed and is ready for disposition.
II. Relevant Factual Background2
At all times relevant hereto, Doe was incarcerated at FCI Loretto. (ECF No. 4.) Dr.
Swindell is the Clinical Director for FCI Loretto and his responsibilities include overseeing the
clinical care of inmates at Loretto. (ECF No. 65-1 ¶ 1.) In this capacity, he consults with mid-

level providers, including physician assistants, about the care provided to inmates. (Id. ¶ 2.) He
had supervisory authority over P.A. Burk, who is a physician assistant. (Id.) Both Dr. Swindell
and P.A. Burk provided medical care to Doe. (Id. ¶ 4.)
Doe has a history of lower back issues that stem from a 2002 motor vehicle accident. (ECF
No. 65-1 ¶ 5.) In late April 2018, he was evaluated following a suspected altercation and stated
that he was experiencing back pain after performing yoga and having an inmate “crack his back.”
(Id.) Subsequently, on May 10, 2018, Doe reported that he could not move, was taken to the
medical department in a wheelchair, reported back pain on a scale of eight out of ten to ten out of
ten, was given a shot for his back pain and was sent back to his unit without any further testing.
(ECF Nos. 64 and 68 ¶ 10.) Three days later, he was administered another injection for his back

2 The facts set forth here are undisputed unless otherwise noted. Defendants objected to Doe’s
Response to Paragraphs 10, 17, 19, 21, 24, 25 and 44 of Defendants’ Concise Statement of Material
Facts on the ground that Doe’s responses misstate the contents of Plaintiff’s medical records.
While Defendants’ objections about the records are noted, the Court’s analysis is based on its
independent review of Doe’s medical records. Defendants also objected to Plaintiff’s Responses
to Paragraphs 8, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57,
58, 59, 60, 61, 62, 63, 64, 65, 66, 67 and 68 of Defendants’ Concise Statement of Material Facts,
in which Doe admits those facts but claims that they are not material to Defendants’ liability.
Defendants assert that Doe’s responses are objectionable based on the relevant period of Doe’s
Eighth Amendment claims against Dr. Swindell and P.A. Burk. As noted in this opinion, the
relevant time frame for the Eighth Amendment claims against Dr. Swindell and P.A. Burk (rather
than the damages claimed as a result of these claims) is the period between May 10, 2018, and
June 25, 2018.
pain and instructed to return to the medical department the following morning for further
evaluation. (Id. ¶ 11.) On May 14, 2018, Defendant P.A. Burk performed a follow-up evaluation.
During this evaluation, Doe reported back pain on a scale of ten out of ten, with shooting pain in
the right lower back radiating to his upper leg, which was exacerbated with movement. (Id. ¶ 12.)

Burk prescribed Amitriptyline, ordered a lumbar spine x-ray, and encouraged Doe to engage in
mild stretching exercises. (Id.) Several days later, the lumbar spine x-ray report was received and
was noted as unremarkable. (Id. ¶ 13.) The x-ray report also stated that Doe’s bone mineralization
was normal, the disc spacing was preserved, there was no facet arthropathy, and the lumbar
vertebral bodies showed normal height and alignment. (Id.)
On May 21, 2018, Dr. Swindell enrolled Doe into a chronic care clinic, specifically, the
orthopedic rheumatology clinic, and prescribed 800 grams of Ibuprofen to be taken for 180 days.
(ECF Nos. 64 and 68 ¶ 14.) Chronic care clinics are a means for a health care provider to track
inmates with ongoing medical needs at clinically appropriate intervals. (Id. ¶ 15.) By policy, they
should occur every twelve months, but can occur more often in more complex cases. (Id.)

On May 22, 2018, Doe was evaluated by Dr. Swindell at the chronic care clinic. During
this assessment, Doe complained of lower back pain at a level of six (out of ten) with radiation to
the right buttocks. (ECF Nos. 64 and 68 ¶ 16.) Doe also reported tingling in his right toes. (Id.)
He was prescribed Acetaminophen and directed to engage in stretching exercises and follow-up in
four weeks if symptoms did not resolve. (Id.) No additional diagnostic testing was performed that
day nor was Doe referred to a specialist for further evaluation. (Id.)
Doe was evaluated again on May 23, 2018. He denied any medical complaints and was
placed in the Special Housing Unit (“SHU”) for smoking tobacco. (ECF Nos. 64 and 68 ¶ 17.)
On June 1, 2018, his medications were refilled. (ECF No. 65-1 ¶ 6.) On June 18, 2018, P.A. Burk
conducted another evaluation of Doe. Doe reported improved symptomatology but said that he
was experiencing lower back tightness and pain, with limited forward bending movement, which
he attributed to being unable to exercise while confined in the SHU. (Id. ¶ 19.)
One week later, on June 25, 2023, P.A. Burk saw Doe again, who reported that for the past

three days, he had “difficulty retaining stool” and had a “feeling of numbness in his genitals.” (Id.
¶ 20.) P.A. Burk conducted a rectal exam of Doe, which revealed new neurological findings
consistent with cauda equina syndrome. (Id.) Doe was immediately transported to the University
of Pittsburgh Medical Center in Altoona, Pennsylvania for further evaluation. (Id.) There, Doe
was diagnosed with cauda equina syndrome and underwent lumbar laminectomy surgery (“L5-S1
surgery”) without incident. (Id. ¶¶ 20-22.) Doe was discharged from the hospital on June 28,
2018, with activity restrictions, was prescribed analgesics and was recommended for neurological
follow-up. (Id.); see also ECF No. 65-1 ¶16.
Both Plaintiff and Defendants submitted declarations in support of their positions.
Defendants submitted the Declaration of Dr. Swindell, which sets forth in detail the medical care

he provided Doe and verifies that the docketed medical records (ECF No. 65-2) are those related
to his care of Doe for the relevant time period. (ECF No. 65-1.)
Doe submitted Declarations from Paul E. Shields, D.O. and W. Paul Diefenbach, M.D.
(ECF No. 68-1.) Dr. Shields opines that the medical care provided to Doe deviated from a
reasonable standard of care by not requiring MRI testing or referring Doe to a specialist on May
10, 2018, to diagnose the source of his symptoms and determine whether surgical intervention was
necessary. (Id. pp. 108, 115). Dr. Diefenbach renders the opinion that the medical care provided
by Defendants fell below the standard of care by not requiring “further diagnostic studies, such as
an MRI scan of the lumbar region” and “a referral to a spine specialist to consider more intensive
therapeutic intervention.” (Id. p. 56.) He also stated if these studies and a referral had been
performed either on May 10, 2018, or even as late as June 18, 2018, Doe would have received
treatment that would have prevented the development of cauda equina syndrome. (Id.)
III. Legal Standard

A court must grant summary judgment if there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of identifying evidence which shows the lack of a genuine issue of material
fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Once that
burden has been met, the non-moving party must set forth “specific facts showing that there is a
genuine issue for trial” or the factual record will be taken as presented by the moving party and
judgment will be entered as a matter of law. Id. (internal citation omitted). An issue is genuine
only if the evidence is such that a reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In following this directive, a court must take the facts in the light most favorable to the

non-moving party and must draw all reasonable inferences and resolve all doubts in that party’s
favor. Hugh v. Butler Cty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005); Doe v. Cty. of Ctr.,
Pa., 242 F.3d 437, 446 (3d Cir. 2001).
IV. Discussion
Defendants Swindell and Burk argue that they are entitled to summary judgment with
respect to Doe’s Eighth Amendment claim because the uncontroverted record shows that Doe
received progressive and comprehensive healthcare from qualified healthcare professionals. By
contrast, Doe asserts that the Court decided this issue in its Memorandum Opinion and Order dated
April 25, 2022 (ECF Nos. 37 and 38) which denied Defendants’ motion to dismiss, thereby
establishing “the law of the case.” He also argues that there are genuine issues of material fact on
the issue of Defendants’ deliberate indifference.
Defendants also argue they are entitled to qualified immunity. Doe disputes this,
contending that there are genuine issues of material fact about the violation of his Eighth

Amendment rights that preclude summary judgment, and he has a clearly established right to
adequate medical care. (Id. pp. 24-25.) These arguments will be addressed below.
A. Doe’s “Law of the Case” Argument

Citing the law-of-the-case doctrine, Doe asserts that the Court’s denial of Defendants’
motion to dismiss regarding Plaintiff’s Eighth Amendment claim precludes Defendants from
revisiting the issues addressed therein in connection with their motion for summary judgment.
In its analysis of Defendants’ motion to dismiss, the Court noted that the only issue was
whether Doe had “alleged sufficient facts to support an inference that Defendants were deliberately
indifferent.” (ECF No. 37, p. 8.) The opinion concludes that “for purposes of a motion to dismiss,
[the Complaint’s factual allegations] sufficiently satisfy the second element of his Eighth
Amendment claim that Defendants acted with deliberate indifference.” (ECF No. 37, pp. 9-10.)
Thus, Doe argues, Defendants’ motion must be denied because the Court has already found that
Doe’s allegations sufficiently pleaded the element of deliberate indifference.
Defendants dispute Doe’s contention that the law of the case precludes any further analysis
of deliberate indifference. They note that the legal standard applicable to a motion to dismiss is
markedly different than that applied in the context of a motion for summary judgment. In deciding
the motion to dismiss, they assert, the Court analyzed whether Doe adequately pleaded facts to
support an Eighth Amendment claim. By contrast, Defendants’ motion for summary judgment,
and Doe’s opposition, includes a review of the complete factual record. Thus, in resolving the
current motion, the Court must determine whether there are any genuine issues of material fact
that would preclude judgment in favor of the moving party.
“The law of the case doctrine developed ‘to maintain consistency and avoid reconsideration
of matters once decided during the course of a single continuing lawsuit.’” The Council of

Alternative Pol. Parties, et al. v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (quoting 18 Charles A.
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice, and Procedure: Jurisdiction 3d
§4478 at 788 (1981)). Moreover, “while the law of the case doctrine bars courts from
reconsidering matters actually decided, it does not prohibit courts from revisiting matters that are
‘avowedly preliminary or tentative.’” Id.
Applying this standard, Doe’s law of the case argument lacks merit. As the Court expressly
stated in its previous opinion, “in deciding a Rule 12(b)(6) motion, the court must ‘accept all
factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.’” (Citations omitted.) Thus, as long as Doe pleaded facts in the Complaint that, accepted as

true, supported his Eighth Amendment claim, Defendants’ motion to dismiss was properly denied.
Indeed, as stated in the opinion, “for purposes of a motion to dismiss, [Doe’s] allegations
sufficiently satisfy the second element of his Eighth Amendment claim that Defendants acted with
deliberate indifference.” By contrast, Defendants contend in their motion for summary judgment
that the full factual record cannot and does not support a claim of deliberate indifference. In so
arguing, they rely in part on Doe’s medical records, Dr. Swindell’s Declaration, and his deposition
testimony, none of which were part of the record at the motion-to-dismiss stage. Thus, it is
necessary to fully review and analyze all of the record evidence, not just the allegations of the
Complaint, in order to evaluate Doe’s claim and Defendants’ motion for summary judgment.
Simply put, the Court’s denial of Defendants’ motion to dismiss on the ground that Doe
had sufficiently pleaded facts to support a claim of deliberate indifference does not preclude an
examination of those facts and the entire evidentiary record in order to determine whether
Defendants are entitled to summary judgment with respect to Doe’s Eighth Amendment claim.
Thus, Doe’s law of the case argument is unavailing.3

B. Eighth Amendment Claim
“A Bivens-style civil rights claim is the federal equivalent of an action brought pursuant to
42 U.S.C. § 1983 and the same legal principles have been held to apply.” Bone v. Ebbert, Civ. A.
No. 3:19-0112, 2022 WL 943036, at *8 (M.D. Pa. Mar. 29, 2022). This is especially true for
claims of deliberate indifference predicated on the Eighth Amendment. Id. at *10 (citing Carlson
v. Green, 446 U.S. 14 (1980)).
The Eighth Amendment prevents prison officials from acting with deliberate indifference
to prisoners’ serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). “In order to
establish a violation of [a prisoner’s] constitutional right to adequate medical care, evidence must

show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate
deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d
Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999)). Thus, to state an Eighth
Amendment claim, facts must exist showing that “objectively [Doe] suffered a sufficiently serious
deprivation” and “subjectively [Defendants] had a culpable state of mind in allowing the

3 As Defendants argue, Doe’s reliance on the standard for reconsideration set forth in Rule 59(e)
is misplaced. Defendants are not seeking reconsideration of the Court’s denial of their motion to
dismiss. Rather, they are relying on the full factual record rather than the allegations pleaded in
the Complaint, as support for their motion.
deprivation to occur.” Thompson v. Pa. Dep’t of Corrs., Civ. A. No. 1:19-cv-274, 2020 WL
2429011, at *3 (W.D. Pa. Apr. 16, 2020) (quoting Wilson v. Seiter, 501 U.S. 294 (1991)).
As explained by the Third Circuit as it relates to the issue of a serious medical need:
the concept of a serious medical need, as developed in Estelle, has two components,
one relating to the consequences of a failure to treat and one relating to the
obviousness of those consequences. The [prisoner’s] condition must be such that a
failure to treat can be expected to lead to substantial and unnecessary suffering,
injury, or death. Moreover, the condition must be “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.”

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (quoting Monmouth
Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)). The seriousness of an
inmate’s medical need “may…be determined by reference to the effect of denying the particular
treatment.” Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347. In addition, “where denial or
delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is
considered serious.” (Id.)
It is uncontroverted that Doe had a serious medical need on June 25, 2018, when he was
taken to an emergency room, diagnosed with cauda equina syndrome and underwent surgery.
Where the parties disagree is when Doe’s serious medical need arose. According to Defendants,
Doe did not have a serious medical need before P.A. Burk’s findings on June 25, 2018, which
reflected a significant change in his condition. On the other hand, Doe contends that the symptoms
and pain that he reported on May 10, 2018, and thereafter reflected a serious medical need that
went untreated.
The parties also disagree about whether the treatment that was rendered, or not rendered,
by Dr. Swindell and P.A. Burk beginning on May 10, 2018 reflects a culpable state of mind that
represents deliberate indifference. The Third Circuit has found deliberate indifference to exist in
various scenarios, including where a prison official: (1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on
a non-medical reason; (3) prevents a prisoner from receiving needed or recommended medical
treatment; or (4) persists in a particular course of treatment in the face of resultant pain and risk of

permanent injury. (Id.)
Mere disagreement as to the proper medical treatment does not support an Eighth
Amendment claim. Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017) (additional
citation omitted). At the same time, the fact that prison medical personnel have provided some
medical care to an inmate does not preclude a finding of deliberate indifference. In fact, as noted
by the Third Circuit:
[t]here are circumstances in which some care is provided yet it is insufficient to
satisfy constitutional requirements. For instance, prison 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. West v. Keve, 571 F.2d
158, 162 (3d Cir. 1978) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir.
1974)). Nor may “prison authorities deny reasonable requests for medical
treatment . . . [when] such denial exposes the inmate ‘to undue suffering or the
threat of tangible residual injury.’” Monmouth Cty. Corr. Inst. Inmates, 834 F.2d
at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)). And
“knowledge of the need for medical care [may not be accompanied by the] . . .
intentional refusal to provide that care.” Id. (alterations in original) (quoting Ancata
v. Prison Health Servs., 769 F.2d 700, 204 (11th Cir. 1985)).

Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017) (alterations in original).
The crux of the issue is whether Defendants Swindell and Burk were deliberately
indifferent to Doe’s medical needs between May 10, 2018, when he was given a shot for his back
pain, and June 25, 2018, when Doe reported to Defendant Burk that he had “difficulty retaining
stool” for the past three days and that over the same period, he also had a “feeling of numbness in
his genitals.” After Doe reported these symptoms, P.A. Burk conducted a rectal exam which
revealed new neurological findings consistent with cauda equina syndrome, which resulted in
Doe’s immediate transfer to UPMC Medical Center in Altoona, Pennsylvania, where he was
diagnosed with cauda equina syndrome and underwent surgery.
Defendants Dr. Swindell and P.A. Burk contend that they are entitled to judgment in their
favor because the full record conclusively shows that both rendered comprehensive medical care

to Doe during the relevant period. They claim that the evidence shows that Doe received extensive
treatment, which included evaluations, medication, diagnostic testing and ultimately, referral to an
outside hospital for further treatment. Further, they argue, the gravamen of Doe’s claim relates to
the adequacy of this care. Thus, at most, Doe has a claim for medical malpractice, not the violation
of his civil rights. Moreover, they also assert that there is no evidence in the record that
demonstrates deliberate indifference on the part of either defendant.
In opposing Defendant’s motion, Doe has produced, among other evidence, the
Declarations of Drs. Shields and Diefenbach, both of whom opine that as early as May 10, 2018,
Dr. Swindell and P.A. Burk should have ordered further diagnostic studies and referred him to a
spine specialist rather than simply give him an injection for his back pain. And Doe claims that

their failure to do so reflects sufficient evidence of Defendants’ deliberate indifference to defeat
their motion for summary judgment.
Based upon this background, both of the requisite elements of an Eighth Amendment claim
will be analyzed with respect to the claims against Dr. Swindell and P.A. Burk.
1. Serious Medical Need
Construing the facts in the light most favorable to Doe and drawing all reasonable
inferences and resolving all doubts in his favor, there is a material issue of fact about when a
serious medical need arose. A reasonable jury could find that, as Doe’s experts concluded, Doe
had a serious medical need as early as May 10, 2018 that was inadequately treated until June 25,
2018. By contrast, Defendants have presented conflicting evidence to support their position that
a serious medical need did not arise until June 25, 2018.
Given the factual dispute about when a serious medical need arose, it remains a genuine
issue of material fact that cannot be resolved on a motion for summary judgment.

2. Deliberate Indifference
a. Claim Against Dr. Swindell
Defendants argue that the undisputed facts show that Dr. Swindell was not deliberately
indifferent to Doe’s medical needs. They note that eight days after Doe was seen by P.A. Burk on
May 10, 2018, Dr. Swindell enrolled Doe in a chronic care clinic, specifically, an orthopedic
rheumatology clinic. Dr. Swindell evaluated Doe several days later, at which time Doe reported
lower back pain and tingling in his right toes. Dr. Swindell prescribed acetaminophen and directed
Doe to engage in stretching exercises and to follow up in four weeks if his symptoms did not
resolve. Doe’s medications were refilled on June 1, 2018, and according to Doe’s medical records,
on June 18, 2018, Doe reported improved symptoms and attributed the inability to exercise while

housed in the SHU as the reason for experiencing lower back tightness. (ECF No. 65-1 ¶ 6.) As
the record reflects, on June 25, 2018, Doe’s evaluation by P.A. Burk revealed neurological findings
indicative of cauda equina syndrome.
Doe argues that Dr. Swindell violated his Eighth Amendment rights by rendering medical
care that reflected a deliberate indifference to his medical needs. He claims that once he presented
with the reported symptoms on May 10, 2018, further diagnostic studies and a referral to a
specialist should have been ordered. And, Doe asserts, Dr. Swindell’s deposition testimony reveals
evidence that, at a minimum, creates genuine issues of material fact about the issue of deliberate
indifference. For example, Dr. Swindell testified that during the May 22, 2018, chronic care clinic
evaluation, he considered whether Doe may be suffering from cauda equina syndrome but ruled it
out; concluded that an MRI was not needed “emergently”; and did not rule out whether imaging
should be scheduled on a non-emergency basis. (ECF No. 65-3 pp. 37-47.)
Based upon a review of all of the evidence, the Court concludes that Dr. Swindell is entitled

to judgment in his favor with respect to Doe’s Eighth Amendment claim against him. As reflected
in the Declarations of Dr. Shields and Dr. Diefenbach, Doe is actually challenging the adequacy
of the care rendered by Dr. Swindell as well as his medical judgment that certain tests and referrals
were not necessary. Drs. Shields and Diefenbach opine that these decisions fell below the standard
of care, but as the Supreme Court has made clear, allegations of medical malpractice are
insufficient to show a constitutional violation. Estelle, 429 U.S. at 106. Thus, the Declarations of
Drs. Shields and Diefenbach show that, at most, the care provided fell below the standard of care.
As noted by the Third Circuit, “mere receipt of inadequate medical care does not itself
amount to deliberate indifference – the defendant must also act with the requisite state of mind
when providing the inadequate care.” Pearson, 850 F.3d at 535. Even viewing the evidence in

the light most favorable to Doe that he had a serious medical need as early as May 10, 2018, there
is no evidence that Dr. Swindell acted with a culpable state of mind regarding the nature of the
treatment rendered. Indeed, there is no record evidence that reflects or even creates an inference
that Dr. Swindell possessed the requisite state of mind with respect to his actions or failure to act
in response to Doe’s medical needs. Neither the medical records nor Dr. Swindell’s deposition
testimony supports a conclusion that he intentionally refused to treat Doe’s medical needs, delayed
Doe’s necessary medical treatment for a non-medical reason, prevented Doe from receiving
needed or recommended medical treatment or persisted in a particular course of treatment in the
face of resultant pain and risk of permanent injury. See Monmouth Cty. Corr. Inst. Inmates, 834
F.2d at 346, 347. Indeed, a fact finder might conclude that the very conduct cited by Doe in support
of his claim of deliberate indifference, that is, that Dr. Swindell considered but ruled out cauda
equina syndrome, concluded that there was no need to conduct an MRI on expedited basis and
failed to rule out the possibility of imaging, fell below the standard of care. However, there is no

evidence that such conduct reflects or even subjectively suggests a culpable state of mind. While
Doe has presented sufficient evidence that Dr. Swindell’s treatment may have been negligent, the
record includes no evidence that he knowingly and intentionally chose an easier and less effective
treatment for Doe, denied requests for medical treatment, deliberately delayed Doe’s treatment or
knew of the need for further care but intentionally refused to provide it. Rather, the evidence
conclusively shows that Dr. Swindell exercised his medical judgment in the care provided. Even
assuming his judgment was flawed and mistakes were made, such conduct does not support the
element of deliberate indifference. Without some evidence of a culpable state of mind, Doe’s
Eighth Amendment claim against Dr. Swindell fails as a matter of law.
For these reasons, Defendants’ motion for partial summary judgment with respect to Doe’s
Eighth Amendment claim against Dr. Swindell will be granted.4

b. Claim Against P.A. Burk
Doe contends that sufficient evidence of P.A. Burk’s violation of his Eighth Amendment
rights is reflected in the medical records and in P.A. Burk’s deposition testimony. Doe notes that
he reported back pain on a scale from eight out of ten to ten out of ten to P.A. Burk. However, on
the four occasions P.A. Burk examined Doe between May 10, 2018, and June 18, 2018, other than
ordering one x-ray of Doe’s lumbar spine (which turned out to be unremarkable), P.A. Burk’s care

4 Because Dr. Swindell’s motion is being granted on this basis, the Court need not reach
Defendants’ alternative argument of qualified immunity.
consisted of provided pain injections, recommending “mild” stretching exercises and prescribing
various pain medications. According to Doe, P.A. Burk should have instead recommended that
Doe be sent to a spine specialist or have additional imaging. (ECF No. 67 p. 15.)
While Doe takes issue with the adequacy of the care that he was provided by P.A. Burk,

this would not provide an adequate factual foundation for a finding of deliberate indifference for
the same reasons discussed in connection with the claim against Dr. Swindell.
At the same time, however, Doe also cites to P.A. Burk’s deposition testimony as evidence
of deliberate indifference. P.A. Burk testified that had he been treating a patient with the symptoms
Doe reported on May 14, 2018 (back pain on a scale of ten out of ten and shooting pain in the right
lower back radiating to his upper leg) at an outside clinic, he “possibly” may have ordered an MRI
because at an outside clinic, he would have been free to refer a patient for an MRI without having
to justify it to the security staff at a prison facility. (ECF No. 65-6 pp. 65-67.) A reasonable
inference to be drawn from this testimony is that P.A. Burk delayed ordering an MRI for Doe for
a “non-medical reason,” or because an “easier and less efficacious treatment” of Doe’s condition

existed. A jury could conclude that unlike what P.A. Burk may have done if Doe was seen at an
outside clinic, he failed to order an MRI simply to avoid the issue of justifying an MRI order to
the prison’s security staff. Based on the holdings of Monmouth Cty. Corr. Inst. Inmates, 834 F.2d
at 346, 347 and West 571 F.2d at 162, this testimony creates a genuine issue of material fact about
whether a non-medical reason drove P.A. Burk’s decision not to order an MRI on May 14, 2018,
such that a reasonable jury could find that he was deliberately indifferent.5

5 The Court takes no position on whether if an MRI had been ordered, it would have resulted in an
earlier diagnosis, a different result or different treatment.
P.A. Burk also asserts that he is entitled to qualified immunity with respect to Doe’s claim
against him. Qualified immunity shields federal and state officials from money damages unless a
plaintiff [shows] (1) that the official violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Because there are material issues of fact related to whether P.A. Burk violated Doe’s Eighth
Amendment rights, the first prong of this defense is not satisfied. Moreover, the right to adequate
medical care was clearly established at the time of the alleged conduct. Estelle, 429 U.S at 103-
105 (it is “the government's obligation to provide medical care for those whom it is punishing by
incarceration.”).
For these reasons, Defendants’ Motion for Partial Summary Judgment with respect to the
Eighth Amendment claim against P.A. Burk will be denied.
V. Conclusion
For the reasons discussed in this memorandum opinion, Defendants’ Motion for Partial

Summary Judgment will be granted with respect to Dr. Swindell and denied with respect to P.A.
Burk.
An appropriate order will follow.

Dated: December 19, 2023 BY THE COURT:
/s/Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419293. Public record. Not legal advice.