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