Opinion

K. Davis v. PA DOC

Court
Commonwealth Court of Pennsylvania
Filed
Oct 6, 2020
Status
Unpublished
On the bench
Ceisler, J.
Cited by
0 cases
Authority
More cited than 12.8%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Davis, :

Petitioner :

:

v. : No. 40 M.D. 2020

: SUBMITTED: August 21, 2020

Pennsylvania Department :

of Corrections, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE CEISLER FILED: October 6, 2020

Petitioner Keith Davis (Davis), an inmate at State Correctional Institution –

Houtzdale (SCI-Houtzdale), has filed a petition for review (Petition) with our Court,

in which he alleges that Respondent Pennsylvania Department of Corrections

(Department) has violated his constitutional rights, due to the manner in which the

Department has treated Davis’s chronic kidney disease, and seeks relief in the form

of a preliminary injunction. The Department has filed preliminary objections

demurring to Davis’s Petition, in which it argues that Davis has failed to articulate

any viable legal claims. Upon review, we sustain the Department’s preliminary

objections in part, dismiss them as moot in part, and dismiss Davis’s Petition with

prejudice.

I. Facts and Procedural History

As recounted in Davis’s Petition and attached exhibits, Davis was evaluated

by Dr. Swati Arora, a nephrologist at Allegheny General Hospital in Pittsburgh,

Pennsylvania, at an unspecified point in time. Petition, ¶2, Ex. A. Dr. Arora

determined that one of Davis’s kidneys had four “wrinkles” and prescribed a

treatment plan that called for a biopsy of the affected kidney, as well as monthly

medical tests, the results of which would be sent to Dr. Arora for her review. Id., ¶2,

Ex. A. In addition, Dr. Arora recommended that Davis make two visits per year to

both her and the “Transplant Division” for an “Extensive Examination.” Id., Ex. A.

Dr. Muhammad Naji, the medical director at SCI-Houtzdale, subsequently

determined that “[Davis’s] labs are stable . . . and opined that [labs do not] need to

be drawn monthly[.]” Id. Accordingly, Dr. Naji declined to follow Dr. Arora’s

recommended treatment plan for Davis’s chronic kidney disease. Id., ¶2, Ex. A.

On November 25, 2019, Davis filed an inmate grievance, in which he alleged

that Dr. Naji “had intentionally and knowingly [put Davis’s] life in danger from

kidney failure” by refusing to facilitate Davis having biopsy appointments in either

March 2019 or November 2019. Id., Ex. A. Additionally, Davis claimed that he had

undergone medical tests at some point in November 2019, but that Dr. Naji had

informed him that the next round of testing would not happen until January 1, 2020.

Id. Davis requested that monthly labs be drawn and the results faxed to Dr. Arora to

ensure that his kidney function and tacrolimus1 levels are safe, that he be transported

to all prescriptive appointments, and that he be awarded $200,000 for medical

neglect and punitive damages. Id.

On December 23, 2019, Facility Grievance Coordinator Terri Sechrengost

denied Davis’s grievance. Coordinator Sechrengost explained her decision by

stating:

1

Tacrolimus is the name of an immunosuppressant drug that is used to prevent transplant

recipients’ bodies from rejecting certain types of organs, including the heart and kidneys. U.S.

National Library of Medicine, “Tacrolimus,” https://medlineplus.gov/druginfo/meds/a601117.html

(last accessed October 5, 2020).

2

In review of Davis’[s] medical record[s,] his labs were

drawn on 12/13/19 and faxed to the nephrologist. The

[T]ransplant [D]ivision physician spoke with Dr. Naji and

stated that they no longer need [sic] to see Davis[,] as it

has been many years since he received his kidney and he

is stable. Dr. Naji noted this in [Davis’s] medical record[s]

and relayed this information to Davis. There is no notation

in the consultation from nephrology addressing any type

of biopsy that needs to be completed [on Davis’s] kidney.

Id., Ex. B.

Davis appealed this decision on December 27, 2019, claiming, in relevant

part, “I do not believe Dr. Naji’s decision to discontinue my appointments against

the orders of [Dr. Arora] was in my best interest. Dr. Naji made the decision on his

own to stop all appointments to the transplant division and stopped monthly labs

because my kidney’s function was ‘stable’ at one point.” Id., Ex. C.

Facility Manager B. Smith denied Davis’s appeal on December 30, 2019,

because Davis had

failed to provide any new information that would provide

[Smith] with evidence to overturn [Coordinator

Sechrengost’s decision]. All points of contention were

addressed and there was no indication of wrongdoing by

staff. Upon reviewing all facts associated with your

complaint, labs are being taken and properly sent to the

[d]octor as ordered. While there are intermittent periods

[during which labs] aren’t sent every thirty days, they are

taken monthly and being tracked and sent accordingly for

review by the Medical Department. You are also

scheduled for follow up care with the physician listed, so

your claims of Dr. Naji voiding those appointments is

completely false. The grievance was properly investigated

and [Smith] supports [Coordinator Sechrengost’s]

investigation and findings.

Id., Ex. D.

Davis then appealed Facility Manager Smith’s denial on January 7, 2020. Id.,

Ex. E. Once again, Davis claimed that Dr. Naji had wrongly deviated from Dr.

3

Arora’s recommended treatment plan. Id. Additionally, Davis argued that Facility

Manager Smith had not properly evaluated Davis’s appeal. He also asserted that

Smith was not qualified to make such an evaluation because Smith lacked any

relevant medical training and, thus, was not capable of determining whether Davis

was being provided with appropriate medical care. Id.

Before Davis’s most recent internal appeal was ruled upon, he filed his

Petition with our Court on January 22, 2020. Therein, Davis explains that he intends

to file another petition for review upon the conclusion of the grievance process, but

that he requires a preliminary injunction at this point because he “is con[c]erned that

the deterioration of his health is progressing with each moment and could cause

[him] irrep[a]rable [harm].” Id., ¶¶1, 4. Davis alleges that the Department violated

the Eighth Amendment2 by declining to follow Dr. Arora’s recommended treatment

plan for his chronic kidney disease, “causing [Davis] un[n]ecessary pain[] that could

lead to death.” Id., ¶¶1-2. In addition, Davis maintains that the Department violated

the Fourteenth Amendment3 through a constitutionally inadequate grievance system

that violated his due process rights by allowing “non-medical staff members” to rule

upon the adequacy of the medical treatment provided to Davis. Id., ¶¶1, 3, 5.4 On

these bases, Davis requests a preliminary injunction to compel the Department to

treat his chronic kidney disease in accordance with Dr. Arora’s recommended

treatment plan, as well as to prevent the Department from deviating from this plan

2

U.S. CONST. amend. VIII.

3

U.S. CONST. amend. XIV.

4

Davis also generally states, in passing, that the Department violated his rights pursuant to

the Pennsylvania Constitution, but he fails to identify the specific rights secured by our

Commonwealth’s Constitution that he believes have been violated.

4

or “any order prescribed by a medical professional at least until” his impending,

post-grievance petition for review has been ruled upon. Id., ¶6.5

The Department responded by filing preliminary objections demurring to

Davis’s Petition. Davis has responded in opposition, and this matter is now ready for

our consideration.

II. Standard of Review

In ruling on preliminary objections, this Court accepts as

true all well-pled allegations of material fact, as well as all

inferences reasonably deducible from those facts. Key v.

Pa. Dep’t of Corr., 185 A.3d 421 (Pa. Cmwlth. 2018).

However, this Court need not accept unwarranted

inferences, conclusions of law, argumentative allegations,

or expressions of opinion. Id. For preliminary objections

to be sustained, it must appear with certainty that the law

will permit no recovery. Id. Any doubt must be resolved

in favor of the non-moving party. Id.

Dantzler v. Wetzel, 218 A.3d 519, 522 n.3 (Pa. Cmwlth. 2019).

III. Discussion

The Department preliminarily objects to Davis’s request for preliminary

injunctive relief on three bases. First, because Davis failed to offer averments

establishing that the Department’s medical professionals exhibited deliberate

indifference to Davis’s serious medical needs, he cannot state a viable Eighth

Amendment-based claim. Department’s Br. in Support of Preliminary Objections at

7-9. Second, Davis did not make allegations that would support a medical

malpractice claim and did not file the certificate of merit that is required to pursue

such a claim. Id. at 9-10. Finally, Davis did not articulate a legally sufficient basis

for granting him injunctive relief. Id. at 10-12. We address each argument in turn.

5

In addition, Davis requests that we issue a subpoena ordering the Department to provide

him with all of his medical records and seeks in forma pauperis status. Petition, ¶¶7-8. We granted

Davis’s request to proceed in forma pauperis on February 19, 2020.

5

A. Eighth Amendment-Based Claim

We agree with the Department that Davis has failed to articulate a legally

actionable Eighth Amendment-based claim regarding the treatment he has received

from the Department for his chronic kidney disease.

The United States Supreme Court held in Estelle v.

Gamble, 429 U.S. 97 . . . (1976), that “deliberate

indifference to serious medical needs of prisoners

constitutes the ‘unnecessary and wanton infliction of

pain,’ proscribed by the Eighth Amendment.” Id. at 104 .

. . (internal citations omitted). The Court clarified that

claims of negligent diagnosis or treatment, disagreement

as to the course of treatment, and medical malpractice

do not rise to the level of a constitutional violation merely

because the patient is a prisoner. Id. at 106 . . . . Rather,

“[i]n order to state a cognizable claim, a prisoner must

allege acts or omissions sufficiently harmful to evidence

deliberate indifference to serious medical needs. It is only

such indifference that can offend the ‘evolving standards

of decency’ in violation of the Eighth Amendment.” Id.

Tindell v. Dep’t of Corr., 87 A.3d 1029, 1038-40 (Pa. Cmwlth. 2014) (emphasis

added).

The deliberate indifference test “affords considerable

latitude to prison medical authorities in the diagnosis and

treatment of the medical problems of inmate patients.

Courts will ‘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 the Allegheny [Cty.] Jail v. Pierce,

612 F.2d 754, 762 (3d Cir. 1979) (citations omitted).

Complaints about medical care which “merely reflect

a disagreement with the doctors over the proper

means” of treating the prisoner’s medical condition do

not rise to the level of a constitutional violation. Boring

v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987). “Absent

a showing that [prison] officials have engaged in

constitutionally impermissible conduct, it is not in the

public’s interest for the court to usurp the Bureau of

Prisons’ authority and micro-manage the medical needs of

6

a particular inmate.” Berman v. Lamer, 874 F. Supp. 102,

106 (E.D. Pa. 1995).

Kretchmar v. Dep’t of Corr., 831 A.2d 793, 799 (Pa. Cmwlth. 2003) (emphasis

added).

As recounted above, Davis’s dispute with the Department pertains to the

course of treatment that Dr. Naji has elected to pursue for Davis’s chronic kidney

disease. Davis has therefore failed to articulate a claim sounding in deliberate

indifference to a serious medical need.6 As such, Davis’s Eighth Amendment-based

request for relief fails.

B. Putative Medical Malpractice Claim

Though the Department argues that Davis has at least attempted to state a

medical malpractice claim in his Petition, we disagree.

Medical malpractice consists of a negligent or unskillful

performance by a physician of the duties which are

devolved and incumbent upon him on account of his

relations with his patients, or of a want of proper care and

skill in the performance of a professional act. [Mut.

Benefit] Ins. Co. v. Haver, . . . 725 A.2d 743 ([Pa.] 1999);

Hodgson v. Bigelow, . . . 7 A.2d 338, 342 ([Pa.] 1939).

Because medical malpractice is a form of negligence, to

state a prima facie cause of action, a plaintiff must

demonstrate the elements of negligence: “a duty owed by

the physician to the patient, a breach of that duty by the

physician, that the breach was the proximate cause of the

harm suffered, and the damages suffered were a direct

result of harm.” Hightower-Warren v. Silk, . . . 698 A.2d

52, 54 ([Pa.] 1997). With all but the most self-evident

medical malpractice actions there is also the added

requirement that the plaintiff must provide a medical

expert who will testify as to the elements of duty, breach,

and causation. Id.

6

We do not dispute that chronic kidney disease is or can be a serious medical issue or that,

under other circumstances, deliberate indifference to this kind of ailment could theoretically occur.

7

Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070-71 (Pa. 2006).

Here, Davis seeks to compel the Department, via court order, to provide him with a

certain course of medical treatment for his chronic kidney disease. At no point in his

Petition does Davis articulate a claim sounding in negligence, nor does he seek

anything other than equitable relief, expressly stating that he “does not request

money in this [P]etition[,] only the opportunity to live.” Petition, ¶3. Therefore, as

Davis clearly did not intend to state a medical malpractice claim in his Petition, and

only seeks preliminary injunctive relief through his filing, we dismiss as moot the

Department’s preliminary objection to this nonexistent claim.

C. Request for a Preliminary Injunction

A party seeking a preliminary injunction must satisfy six prerequisites in order

to show that it is entitled to such relief.

First, a party . . . must show that an injunction is necessary

to prevent immediate and irreparable harm that cannot be

adequately compensated by damages. . . . Second, the

party must show that greater injury would result from

refusing an injunction than from granting it, and,

concomitantly, that issuance of an injunction will not

substantially harm other interested parties in the

proceedings. . . . Third, the party must show that a

preliminary injunction will properly restore the parties to

their status as it existed immediately prior to the alleged

wrongful conduct. . . . Fourth, the party seeking an

injunction must show that the activity it seeks to restrain

is actionable, that its right to relief is clear, and that the

wrong is manifest, or, in other words, must show that it is

likely to prevail on the merits. . . . Fifth, the party must

show that the injunction it seeks is reasonably suited to

abate the offending activity. . . . Sixth and finally, the party

seeking an injunction must show that a preliminary

injunction will not adversely affect the public interest.

Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001

(Pa. 2003) (internal citations omitted). “For a preliminary injunction to issue, every

8

one of these prerequisites must be established; if the [party seeking the preliminary

injunction] fails to establish any one of them, there is no need to address the others.”

Allegheny Cty. v. Com., 544 A.2d 1305, 1307 (Pa. 1988). Because Davis’s Eighth

Amendment-based claim is not actionable, it does not satisfy the fourth prong of the

preliminary injunction test.

As for the remaining arguments in Davis’s Petition, which sound in the Due

Process Clause of the Fourteenth Amendment, as well as unspecified parts of the

Pennsylvania Constitution, we also agree with the Department that those arguments

do not provide a legally sufficient basis for granting Davis a preliminary injunction.

As shown by the averments in Davis’s Petition, Dr. Arora’s recommended treatment

plan for Davis’s chronic kidney disease was never actually implemented by the

Department. Therefore, mandating that the Department follow Dr. Arora’s plan

would not restore the parties to the status quo ante, but instead would place both

Davis and the Department in entirely new positions relative to Davis’s medical care.

Accordingly, Davis’s request for a preliminary injunction also fails to satisfy the

third prong of the preliminary injunction test.

IV. Conclusion

On the basis of the foregoing analysis, we sustain the Department’s

preliminary objections to Davis’s Petition regarding Davis’s Eighth Amendment-

based claim, as well as Davis’s right to injunctive relief, and dismiss the Petition

with prejudice. Furthermore, we dismiss as moot the Department’s preliminary

objection to Davis’s nonexistent medical malpractice claim.

__________________________________

ELLEN CEISLER, Judge

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Davis, :

Petitioner :

:

v. : No. 40 M.D. 2020

:

Pennsylvania Department :

of Corrections, :

Respondent :

ORDER

AND NOW, this 6th day of October, 2020, it is hereby ORDERED that the

preliminary objections of Respondent Pennsylvania Department of Corrections

(Department) to the Petition for Review (Petition) of Keith Davis (Davis) are

SUSTAINED IN PART, as to Davis’s claims and averments in his Petition relating

to violations of his federal and state constitutional rights. The Department’s

preliminary objection to Davis’s nonexistent medical malpractice claim is

DISMISSED AS MOOT. Davis’s Petition is DISMISSED WITH PREJUDICE.

__________________________________

ELLEN CEISLER, Judge

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

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