MCKINNEY v. HEMSLEY et al

Filing 100

OPINION. Signed by Judge Kevin McNulty on 3/20/2019. (dam, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

IVAN G. MCKINNEY.
Civ. No. 14-3564 (1KM) (JBC)
P1aintift
:

V.

OPINION

DR. HEMSLEY. etaL,
Defendants.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION
The plaintiff, Ivan G. McKinney, is proceeding prose in this civil rights matter filed

pursuant to 42 U.S.C.

1983. The only claim remaining in this matter is one of deliberate

indifference to medical needs, asserted against three defendants: Dr. Michael Hemsley, Captain
Edward T. Pawson. and Warden Robert J. Bigott. Now before the

court are

two motions

for

sumrnarvjudgment, one brought by Dr. Hernsley (DE 97), and the other brought by Capt.
Pawson and Warden Bigott (DE 96). For the reasons stated herein, the motions will be granted.
II.

BACKGROUND
Mr. McKinney is currently incarcerated at New Jersey State Prison (“NJSP’), where he is

serving a life sentence. See Stale v. McKinnev, No. A-1946-l3Tl, 2017 WL 370918, at *1 (N.J.
Super. Ct. App. Div. Jan. 25, 2017). McKinney’s present civil action, however, concerns the
purportedly’ deficient medical care he received at a different prison. Bergen County Jail (“BCJ”),

during two prior, relatively brief periods of incarceration. McKinney’s first stint at BCJ began on
February 23, 2011, and lasted “sixty days or so” (see McKinney’s Feb. 27, 2018 Dep. Tr., DE
96-4 at 39-41); McKinney’s second stint at BCJ began on or about February 22, 2012 and

concluded on

August

1, 2013. (See DE 96-4 at 30-31.) Dr. Hemsley, Warden Bigott and Capt.

Pawson all worked at BCJ throughout Mr. McKinney’s time(s) there.
a. Factual Background

Documents and other record evidence establish certain underlying facts beyond
reasonable dispute.
On July 6, 2010, McKinney
Southwoods State Prison (“SWSP”)

—

—

who was then incarcerated at yet a third institution,
was examined by Dr. Rajiv Shah at NJSP’s Surgery

Clinic. (See Dr. Shah’s July 6,2010 Consultation Report, DE 99 at PagelD 841.) At that time.
Dr. Shah diagnosed McKinney as having an incarcerated,’ non-reducible, umbilical ventral
hernia. (Ic-f) As explained by Dr. Shah, McKinney was then “a 37-year-old male who [was there]
for evaluation of the umbilicus which appeared when he was lifting and going on the top bunk of
his bed. He felt a pop and he has been having pain since then.” (Id.) Dr. Shah’s July 2010 report
notes that McKinney had no past medical or surgical history, no nausea. vomiting, or fever, and
that “on examination [McKinnev’s] abdomen [was] soft. nontender. [and] nondisrended.” (Id.)
Dr. Shah concluded that surgery to treat McKinney’s hernia would be appropriate, and should be
scheduled in two to three weeks. (Id.) Other than a passing reference to McKinney’s complaints
of “some pain over the bilateral upper and lower extremities,” the only medical condition
discussed in Dr. Shah’s one-page report is the hernia. (Id)

To avoid misunderstanding, I note that the tern “incarcerated” has a medical meaning when
applied to an inguinal hernia:
Incarcerated hernia. If the contents of the hernia become trapped in the weak point in the
abdominal wall, it can obstruct the bowel, leading to severe pain, nausea, vomiting, and
the inability to have a bowel movement or pass gas. Strangulation. An incarcerated hernia
can cut off blood flow to part of your intestine.
www.mavocIinic.or/diseases-conditions/inguinal-hernia/svmptorns-causes/syc-20351 547

7

On July 22. 2010. McKinney advised SWSP that lie would forgo
with Dr. Shah

—

his

planned surgery

and would instead have the surgery performed by his “doctor on the street”

—

because lie was “going home in 16 days” (See McKinnev’s July 2.2010 Medical Consent Form.
DE 99 at PagelD: 773.) At his deposition. MeKinney testified that lie was released from SWSP
on parole on August 8, 2010, but waited until October2010 to see his general physician. Dr.
Bernadette Reyes. about his hernia. (DE 96-4 at 36. 38-40.) Before seeing Dr. Reyes. McKinney
did “[n]othing’ to treat his hernia. (fit at 37.) After he saw Dr. Reyes. she faxed a prescription to
the University of Medicine and Dentistry of New Jersey (“UMDNJ”) to schedule his hernia
surgery.2 (Id at 38-40.)
On February 23. 2011. McKinney

—

who, at that time. had still not had hernia surgery

—

was arrested for a parole violation and taken to BCJ. I Fe was thereafter detained at BCJ for a
period ofsixt’ days or so” before he “went back to [SWSP].” (fit at 3941: accord Mckinnefs
Feb. 28. 2011 Grievance Form, DE 99 at PagelD: 769.) In other words. McKinney first arrived at
BCJ roughly six months after being released from SWSP on parole. and nearly seven months
after Dr. Shah first recommended surnical treatment for his hernia.
On February 28. 2011. Mr. McKinnev submitted a grievance to Warden Bigott in which
lie stated the following:
On 02-23-1 11 was placed in custody in your facility. Prior to being locked up I
was due for umbilical hernia surgery. It was ordered by Dr. Bernadette keyes in
Passaic NJ. I have a meniscus tear in my left knee. Disc issues in my neck. And
back pain from bulge L4-L5. I’m having severe pain in the umbilical area. I need
surgery. I’m having severe pain in my knee and also need surgery. Severe pain in
my back, neck. maybe PT. or surgery will help.3 Severe Constipation. I need
1

This portion olthe factual recitation relies solely’ on McKinney’s statements. McKinney has not

subni itted any documents that substantiate his clai us that lie visited Dr. keyes, that she faxed a
prescription to UMDNJ. or that surgery to treat McKinney’s hernia was iii fact scheduled.
Nothing iii the record demonstrates Ihat any medical professional recommended that McKinney
undergo surgery lo address his torn left meniscus. bulging discs, or any of his other complaints of neck
and back pain: McKinneys claim that surgen would be required for these ailments appears to he a self

2

surgery very had
and neck.

on lily

hernia and knee. And PT [and/or] surgery on my back

(DE 99 at PagelD: 769.)
On March 10. 2011. McKinnev submitted a second grievance to Warden Bigott about
“being denied [umbilical hernial surgery by Doctor llemsley.” (DE 99 at PagelD: 767.)
McKinney further stated that lie was “having severe neck, back, and left knee pain [for which lie
needed] surgery also.” (hi.) The two foregoing grievances are the only documents in

tile

record

related to McKinneys roughly sixty-day stint at BCJ beginning on February 23. 201 i.
Approximately one-year later,

hernia surgery

—

returned

on

February

22. 2012. McKinney

—

who still had not had

to BC. (See SWSP’s Feb. 15. 2012 Patient Information Report. DE

97-4 at PagelD: 693: BCJ’s Feb. 22. 2012 Intake Report. Id. at PagelD: 691-95.) There. BCJ
medical personnel evaluated McKinney. (Sec DE 97-4 at PagelD: 694-95.) BCYs intake report
notes that McKinney then had a left mcniscus tear and an umbilical hernia. and also indicates

that lie had herniated discs in his neck and back. (hi.) That report also expressly notes. however.
that McKinney had no mobility issues and that none of McKinney’s medical ailments were
emergent iii nature. (hi.) BCJ’s February 22nd report is consistent with the list of McKinne’s
medical ailments detailed in SWSP’s February 15. 2012 report. (See DE 97-4 at PagelD: 693

diagnosis. The objective record evidence undisputedly shows (I) that McKinney’s hernia is the only
medical issue for which any surgical procedure was prescribed by any medical professional; and (ii) that
McKinney’s hernia surgery is the only surgical procedure that has ever been performed on him.
As I have ruled in prior opinions in this matter, the applicable statute oil imitations for Mr.
McKinney’s § 1983 claim of denial of medical care is nvo years, (See. e.g.,.Itne 4.2014 Op., DE I al 30
(citing Viekers v. (‘hlldc. 530 F. Apfrx 101. 105 (3d Cir. 2013) (per curium) (citing N.J. Slat. Ann. §
2,4:11-2(a)).) As noted in/lie. McKinnev initiated this action on March 19. 2013. Thus, any portion oftlus
claim that accrued prior to March 19. 2011, is barred by the statute of limitations. Insofar as McKinnev
intends to rely on his February 28. 2011 and March 10. 2011 grievances to show that his § 1983 claim
accrued prior to March 19.2011, that portion of his claim is time-barred.

4

(noting that McKinney’s medical problems as of that date included back pain, an umbilical
hernia, neck pain, and a left meniscus injury).)
On March 1.2012, Dr. llemslev prescribed Colace and Metamucil. (See Mar. 1.2012
BC’s Patient Notes/Physician Orders. DE 97-4 at PagelD: 696.)
On March 6.2012. Dr. Ileinsley personally examined McKinney. as evidenced by his
signature at the bottom of his March 6th physical examination report. (See DE 99 at PagelD:
837.) Hemsley’s March 6th report notes that McKinney’s umbilical hernia was “reducible.” (fit)
Moreover, nothing in that report suggests that any of McKinney’s ailments
umbilical hernia

—

—

including his

then required surgery or were otherwise emergent in nature.

On April 13.2012. McKinnev sent a handwritten note to BC’s medical department
requesting that they “continue [hisi fiber supplement [i.e.. Metamucil] for twice a day and
discontinue the Colace at night.” (DE 97-4 at PagelD: 697.) BCJ’s April 16. 2012 medical notes
indicate that Dr. ilemsley honored that request. (DE 97-4 at PagelD: 696.)
On July 24, 2012. McKinney complained to BCJ medical staflof “being in pain from
several past injuries” and requested Motrin (ibufrofen. a pain reliever and non—steroidal anti—
inflammatory drug) to treat that pain. (See BC’s July 24. 2012 Nursing Notes. DE 97-4 at
PagelD: 701j*\t that time. McKinnev was advised that he could purchase Motrin from BCFs
commissary. (itt)
On September 12, 2012. BCJ nursing stafi’noted that McKinney complained of “not
being able to defecate.” stated that he needed Metamucil, and requested a “follow-up
consultation.” (DE 97-4 at PagelD: 704.)
On September 18, 2012. McKinnev submitted a formal grievance to Captain Pawson in
which he complained that he had been “denied medical treatment for a month or so.” was being

2’

“denied medicine for constipation and pain,” was “in severe pain in the umbilical area

due to a

hernia,” that his “knee [has) given out on [him],” that he had “severe pain in [his] back and
neck,” and that he needed surgery. (DE 99 at PagelD: 759.) It appears that McKinney made
similar complaints and requests to BCJ medical personnel on that date. (See BCJ’s Sept. 18,
2012 Nursing Notes. DE 97-4 at PagelD: 703.)
On September 19, 2012. McKinney submitted a separate letter to Pawson reiterating his
September 18th grievances. (DE 99 at PagelD: 770-71.) McKinney’s September 19th letter
expressly notes that he “[did not] mind buying Motrin [from the commissary] but the ones from
the canteen [were] not strong enough: instead, he wrote, lie needed “800 [milligrams] of Motrin
to take [his] pain away.” (DE 99 at PagelD: 770.) McKinney’s September 19th letter tends to
confirm that his pain was controlled with Motrin, and that he could obtain it without permission
or a prescription from BCJ medical personnel.
On September 25, 2012, McKinney met with Dr. Hemsley. (See BCJ ‘s Sept. 26, 2013
Physician Progress Record, DE 97-4 at PagelD: 705.) At that time, Hemsley observed that
McKinney did not appear to have “acute or obvious distress”; that “[he was] seated up-right on
the exam table”: and that he had a “nontoxic appearance.” (Id) Hemsley also explained to
MeKinney that he could simply take additional 200 milligram Motrin pills purchased from the
commissary to obtain a total 800-milligram dose. McKinney agreed. (Id)’ With respect to
McKinney’s umbilical hernia. Hemsley observed saw no signs of obstruction and, yet again,
expressly noted that it remained nonincarcerated. (Id) Hemsley prescribed Naprosyn to address

I note as background that all of the adult over-the-counter versions of Motrin seem to contain
200mg of ibuprofen in each tablet, gel, or caplet. www.rnotrin.com/products.

6

McKinney’s complaint that This umbilical hernia [was] causing him some discomfort” and also
prescribed more Metamucil for him. (hi)
On October 3.2012. McKinnev

submitted

a formal grievance to Warden Bigott

indicating that he “saw Dr. I Iemsley about a week ago” and that I lemslev was Thtill denying
[him] hernia surgery.” (DE 99 at PagelD: 760.)
On November 3. 2012. McKinney flied another formal grievance to the attention of
Bigott and Pawson that reads, in its entirety. as follows:
What is it going to take you dumb ass people to answer my grievances. I need
hernia surgery. I keep getting denied. I have a bad hernia [that is] causing me pain
and severe constipation. My left knee has a [tear]. My back has a bulge and neck
disc issues. I’m calling my family and lawyer. I’m sick of your dumb asses. I need
surgery very bad jerks.
(DE 99 at PagelD: 768.)
Dr. Hernslev again saw .McKinney on January 15. 2013. at vhich time McKinney again
requested that his umbilical hernia be repaired. (Sue BCJ’s Jan. 15. 2013 Physician Progress
Record. DE 97-4 at PagelD: 709.) During that visit. I lemsley observed that McKinney had no
constipation. a nontoxic appearance. and that the condition of McKinney’s umbilical hernia
remained “unincarcerated” and otherwise “unchanged.” (hi.) Iiemsley determined “that at this
point a repair of [McKinney’s] hernia [was] elective.” (hi.)
On January 19, 2013. McKinney submitted a formal grievance to the attention of, among
others. Warden Bigott and Captain Pawson. (DE 99 at PagelD: 764.) McKinney complained that

he “saw Dr. Iiemsley a few days ago and he’s still denying me surgery.” (itt) McKinney
reiterated that was unable to “take the pain and constipation any longer from [his] hernia” and
that he continued to experience left knee pain from a meniscus [tearl” and “back and neck pain
also.” (itt)

7

It appears that Dr. liemslcy examined McKinney again

on

February 8. 2013. as

evidenced by his signature at the bottom of BUYs contemporaneous physical examination report.
(DE 99 at PagelD: 834.) Although that report is largely illegible, it does clearly state that during
McKinney’s February 8th examination. he again complained of constipation. and again stated
that lie wanted to have his umbilical hernia repaired. (itt)
On March 30. 2013. McKinnev complained to BCJ medical stall about hernia-related
pain. (See DE 97-4 at PagelD: 712.) BUYs medical notes memorializing the same indicate that
McKinneys “hernia [remained] reducible” and that McKinney did not “appear [to be] in acute
distress.” (itt) In a handwritten letter addressed to Dr. I-lemsley dated April 1.2013. McKinney
explained that “if [lie] didn’t have the hernia [hel could work out.” and that lie needed Liemsley
“to advocate for [him]” so that McKinney could “get back to moving around.” (DE 99 at
PagelD: 778-79.)
On April 8. 2013. McKinney submitted a formal grievance to Dr. Ilemsley indicating that
he was in “serious pain” from his hernia, that lie needed hernia surgery. and that his “knee. back.
and neck [were also) bothering [him].” (DE 99 at PagelD: 765.) On that same day. McKinney
also submitted a “follow-up sick call slip” to BC medical staff regarding these “multiple
symptoms.” (See BUYs Apr. 8.2013 Nursing Notes. DE 97-4 at PagelD: 714.)
On April 12. 2013. McKinne’s attorney. .Iefley B. Steinfeld. sent a letter to the Bergen
Count Sheriffs Department asking Undersherifl’ Steven Librie to “immediately’ speak with the
Medical Unit at [BC]. most specilically Dr. I lemsley’. and arrange for [hernia] surgery’ for Mr.
McKinney to abate his deteriorating medical condition.”6 (DE 99 at PagelD: 755-56.) In that

6

Mr. Stcinfeld’s two-page letter does not contain any medical evidence. (See DE 99 at PagelD:

75 5-56.)

8

letter, Mr. Sleinfeld slates that “Dr. I lemslev advised Mr. McKinney that surgery will not he
scheduled for him because [Bergen County] will

not pay

for the same.” (lit) On April 20. 2013.

McKinney submitted a formal grievance to Warden Bigott again emphasizing his “need [for]
hernia and knee surgery.” (DE 99 at PagelD: 766.)
In late May 2013. McKinney was admitted to the BCJ inlirmary after complaining about
numbness, weakness, and tingling in his arms. (DE 99 at PagelD: 762.) BCJ’s nursing notes
make clear that McKinnev received extensive medical attention during that time.
notwithstanding that he acted in a “disruptive” manner. (See DE 97-4 at PagelD: 718-29.)
Nothinu in the record suQgests that this nhrniary visit related to the prior complaints about the
hernia or other knee, back, and neck ailments.
McKinney does not appear to have filed any additional grievances with BCJ about his
medical care after June 3. 2013. BC’J’s medical notes during that period, however, do indicate
that McKinney met with BCJ medical staff on June 5th and

14th,

2013 (see DE 97-4 at PagelD:

722). and that he was prescribed various medications on June 24th and July 5th. 6th. 11th. 25th.
and

3t,

2013 (see DE 97-4 at PagelD: 723-726.) McKinney remained at BCJ until August 1,

2013, at which time he was transferred to NJSP. (See McKinney’s Feb. 27. 2018 Dep. Tr. 31. DE
96-4.)
On October 1.2013 —two months after Mckinney arrived at NJSP

—

an abdominal

sonogram appeared to indicate that his hernia was growing. At that point, he was diagnosed with

On June 3, 2013. McKinney submitted a formal grievance to Warden Bigott in he claimed that
while he was admitted to BCJ ‘s in flrmniy ii late May, Dr. I lemsley threatened [him] with being put in
the hole if [lie kept] complaining.” Mr. McK inney then stated that “[lie] need [ed] surgery but [was now]
scared to complain.” (DE 99 at PagelD: 762,) ilemsley. for his part, denies that this incident occurred.
(See Hemsley’s Mar. 29, 2018 Interrog. Resp. No. 26, DE 96-5 at PagelD: 630.) I have already ruled that
the only viable, remaining § 1983 claim against Dr. Hemslev relates to his purportedly deliberate
indifference to McKinne’s serious medical needs. I will consider this purported occurrence in the
context of that claim.

9

a

“[n]onreducible 3.5

x

1.5

cm protrusion of

the umbilicus, pain” and an “[i]nfrahumbilical

hernia measuring 7.5 x 4.9 x 6.2 cm.” (NJSP’s Oct. 7. 2013 Diagnostic Report. DE 99 at PagelD:
782.) On June 17. 2014— over ten months after McKinney arrived atNJSP

—

Dr. Shah evaluated

McKinnev’s longstanding” hernia. (See NJSP’s June 19. 2014 Consultation Report. DE 99 at
PagelD: 781.) Dr. Shah then noted that McKinney was not then experiencing any pain, nausea.
or vomiting, but that his hernia was getting larger. (Id.) Dr. Shah

—

as he did in 2010— indicated

that surgery would be scheduled in two to three weeks. (fit)
On July 17, 2014— some eleven months after McKinney len BCJ
surgery to repair the hernia.

(SL’L’

—

Dr. Shah performed

St. Francis Medical Center’s July 18. 2014 Operative Report.

DE 99 at PagelD: 774.) On August 5. 2014. Dr. Shah reported that McKinney was “healing
well” and was “quite satistieth” and accordingly discharged him from NJSP’s surgical clinic.
(See NJSP’s Aug. 11,2014 Consultation Report. DE 99 at PagelD: 780.)
During his deposition, McKinney was asked a number of questions about his quality of
life since his hernia surgery. McKinney complained about ongoing constipation and diarrhea.
(DE 96-4 at 55.) lIe testified that a nurse practitioner named Sumer Caid told him that the lhct
that “it took so long for [McKinnev] to get [the surgery]

...

could be part of [those] problems.”

(Id. at 58.) 1-le also conceded, however, that he has no written report or other objective evidence
demonstrating that his condition worsened because hernia surgery was not performed until .luly
17.2014. (fit at 58-59.) Indeed. McKinney expressly noted that he has no written report “[I]rom
a physician or anyone with any expertise that says that [his] condition was worse based on [that
delay].” (Itt) McKinney also testified that he continues to abstain from many of the physical
activities that he claimed he ‘as precluded from doing but for his hernia.
and doing pushups. (Itt at 60-63.)

10

e.g..

playing basketball

b. Procedural History

With those undisputed facts in mind. I now turn to the procedural history of this matter.
McKinney initiated this action on March 19. 20138 via the filing of an omnibus complaint. In it
lie asserted a truly bewildering variety of claims against virtually everyone involved in his arrest
and prosecution. as well as numerous parties at the institutions where he had formerly been
incarcerated. (See DE 4.) Upon screening McKinney’s complaint, I observed that it “contain[ed]
many unrelated allegations against disparate defendants that are not properly joined in a single
complaint under Federal Rules of Civil Procedure 18 and 20.” (DiE I at 25.) 1 accordingly
severed all of the claims in McKinney’s complaint that arose from his imprisonment at BCJ and
directed the Clerk to open the present matter as a separate, stand-alone, civil action. (See June 4.
2014 Order. DiE 3.)
Thus the only claims in the complaint that are part of this specific civil action are the
ones alleged to have occurred during McKinney’s time at BCJ. (See Complaint. DiE 4; Opinion
severing claims. DiE 1.) In my June 4. 2014 screening opinion (DiE 6), 1 dismissed a substantial
number of claims against many of the BCJ-related defendants. including one against Aramark
Foods for serving dishes with mayonnaise, prison authorities’ failure to respond to grievances,
opening of mail. and threatened retaliation. I did, however, allow McKinney’s

§

1983 denial of

medical care claim and disregard of grievances claims to proceed against named defendants
Hemsley, Pawson, Bigott, and two other BCJ—afflliated defendants. Lieutenant Pickel and

March 19, 2013 is the date on which Mr. McKinney executed his complaint. (See DiE 4 at
PagelD: 45.) Under the federal prisoner mailbox rule, “a document is deemed filed on the dale it is given
to prison officials for mailing.” Pa/ion i’. Mahanoi’, 654 F.3d 385, 391 n. 8 (3d Cir. 2011). AfFording
McKinney all favorable inferences, I imd that March 19, 2013 represents the date on which lie initialed
this action.

11

Captain Davies.’ (Sec DE I at 24;

SL’L’

also Apr. 29, 2015

Op., DE 6 at 5 (“Mr. MeKinney’s

claims that Bigott. Davies. Picket. I lemslev and Pawson failed to respond to his medical
complaints or to Ilirnish medical treatment were permitted to proceed.”).)
On April 29. 2015, 1 denied McKinney’s motion to amend his complaint to assert new
claims against non—party Corizon Medical and denied his request that I reconsider my

June

4.

2014 rulings. (See Apr. 29. 2015 Op. and Order. DE 6 & 7.) On October 9.2015.1 denied
McKinnevs second application to amend his complaint. (See Oct. 9.2015 Op. and Order. DE 22
& 23.) As I then explained. the allegations of IMcKinne’sJ complaint in this action relate to
the medical care Mr. McKinney was receiving (or not receiving) while incarcerated at [BCJj for
his herniated discs in his neck, his left knee meniscus tear, a lower back bulge and a hernia. Mr.

I note that in m June 4. 2014 screening opinion. I also found that McKinney staled a plausible § 1983
opening of legal mail claim against a still-unidentified John Doe defendant. (See DE I at 18-19). I
specifically noted the Following about that claim:
Mr. McKinney also claims that an unnamed John Doe officer at [BCJ] opened his legal
mail outside of his presence on November 3, 2012. “[Plrison officials impinge upon the
First Amendment rights of prisoners when they open prisoners’ legal mail outside the
presence of the addressee prisoner.” Tailor i’. Onev, 196 F App’x 126. 128 (3d Cir. 2006)

°

The allegations of[McKinnev’s] complaint suggest that this incident, lilt occurred. may
have been a one—time, negligent slip—tip. Nevertheless, giving this prose claim a liberal
reading. UAh’. IeKimwr elects to gofr)!’lICtfll irtth flits chin;,. I will put defendants to the
burden ofanswering or otherwise responding to it.
(hi. (emphasis added.) McKinncy has not further pursued this claim since, Indeed. McKinney has not
provided additional information in support of this claim at any point in this now years’ long litigation.
including in the course of his two prior unsuccessful efforts to amend his complaint. Moreover,
MeK inney’ s complaint has never been amended to identi ft this still—unnamed defendant. and no such
defendant has ever been served. I also. however, have never formally dismissed this claim. I ill therefore
now formally dismiss it without prejudice. Stokes v. Riskus. No. CA 14-60. 2015 WL 1326200. at 5
(W.D. Pa. Mar. 24. 2015) (“the unidentified Defendant Sergeant John Doe has never been served in this
ease, and no attorney has entered an appearance on his behalf. As a result, said Defendant will be
dismissed from this case pursuant to Rule 4(m) of the Federal Rules of Civil Procedure”) Agular r.
Reckiemrald, No. CV 3:13-2616, 2016 WL 145259, at * I (M.D. Pa. Jaii. 11.2016), uff’d, 649 F. App’x
293 (3d Cir. 2016) (“Rule 4(m) mandates the dismissal of the claims against the John Doe Defendant
because plaintiff has not timely served a summons on the John Doe Defendant.”) (citing Beekenuwi t
Weber. 317 F. App’x 125. 128 (3d Cir. 2006): &nnngardner i’. Eli/icr!. 535 F. App’x 72. 77 n.7 (3d Cir.
2013)).

12

Mckinney’s proposed new allegations are not closely related to the old ones, and they name new
defendants.” (Oct. 9,2015 Op.’ DE 22 at 5-6.)
On September 28. 2017, I granted in part and denied in part the motion to dismiss filed
by Bigott. Davies. Pawson. and Pickel. (Sept. 28, 2017

op. and Order. DEs 70 and 71.) All

claims against Davies and Pickel were dismissed. (DE 70 at 7. 11). I determined that Mr.
McKinney’s only claim against Warden Bigott that could proceed further was his claim “that
[Bigottl was deliberately indifferent to the withholding of medical care.” (hi. at 10.) I likewise
permitted McKinney’s claims against Pawson to proceed, but only with respect to McKinney’s
allegation that Pawson “ignored medical needs.” (hi. at 11.) In that regard, I specifically noted
that “[McKinney’sj complaint alleges that Captain Pawson [was in charge of the medical unit at
BCJ and that Pawson] permitted the medical department to ignore [McKinney’s] medical needs
and did not respond to [MeKinney’s] letter grievances.” (hi.) With respect to liemsley (who did
not

move for

dismissal), I noted that McKinney’s “complaint alleges that two doctors previously

told McKinney that he needed hernia surgery and that one had actually prescribed surgery. lie
claims that Dr. liemsley refused to send him for surgery. Thus. Mr. McKinney has potentially
alleged a constitutional violation by liemsley.” (hi. at 9.)
In short, and as the foregoing demonstrates. the only claim that remains pending is
McKinney’s

§

1983 claim of deliberate indifference to medical needs, asserted against [Iemsley.

Pawson. and Bigott. On June 25. 2018, those three defendants filed their respective Rule 56
motions for summary judgment. (DE 96, 97.) Mr. McKinney filed an opposition to both motions
on

July 26. 2018. (DE 99.) No defendant submitted a reply.

1,

Ii

III.

SUMMARY .JUDCMENT STANDARI)
Summary judgment is appropriate where “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.

(‘iv. p. 56(a). A fact is material ifit “might affect the outcome of the suit under the governing
law” and a dispute about a material fact is genuine “if the evidence is such that a reasonable jun
could return a verdict for the nonmoving party.” Anderson

i’.

Li/ierii Lob/n’,

Inc..

477 U.S. 242,

248 (1986). Disputes over irrelevant or unnecessary facts will not preclude the Court from
granting a motion for summary judgment. hi.
A party’ moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact.

(‘clot cx Corp.

i’.

See

(‘aIreti. 477 U.S. 317. 323 (1986). “A party asserting that a fact [is not]

genuinely disputed must support the assertion by
record. including depositions. documents

.

.

.

.

...

citing to particular parts

of materials in the

affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions. interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)( I )(A).A tier the moving party adequately supports its motion.
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits.
or by the depositions, answers to interrogatories. and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” (‘c/of cx. 477 U.S. at 324 (internal quotation
marks omitted). To withstand a properly’ supported motion for summary judgment. the
nonmoving party must identify specific facts and aflirmative evidence that contradict the moving
party. Anderson, 477 U.S. at 250. “[l]fthe non—movant’s evidence is merely ‘colorable’ or is
significantly probative.’ the court may grant summary judgment.” 4\iessa

i’. Omceho Prop.

‘not

& (‘a.s

In.s Co.. 122 F. Supp. 2d 523. 528 (D.NJ. 2000) (quotingAnderson. 477 U.S. at 249-50)). “If

14

reasonable minds could differ as to the import of the evidence,” however,
not appropriateS

SL’

Anderson. 477 U.s. at 250-5!.

In considering a motion
determinations or engage

evidence

‘is

summary judgment is

in

for summary

judgment. a district court

ma

not make credibility

any weighing of the evidence: instead, the nonmoving party’s

to be believed and all justiliable inferences are to be drawn

in

his

favor.”

A/wino v.

Indus. Crating (‘o.. 358 F. 3d 241. 247 (3d Cir. 2004) (quoting Anderson. 477 U.S. at 255)). In
that respect. the Court’s role in deciding a motion for summary judgment is simply’ “to determine
whether there is a genuine issue for trial.” Anderson. 477 U.S. at 249. Ultimatel
genuine issue as to any- material fact” ifa party

.

there is mm

ails to make a showing suflicient to establish

the existence oI’an element essential to that party’s case.” (‘elotex. 477 U.S. at 322.
IV.

ANALYSIS

a. Section 1983 Claim for Denial of Medical Care
As noted above. McKinnev asserts that ilemsley. Bigott. and Pawson each acted with
deliberate indifference to his serious medical needs when McKinney
This claim is actionable under federal law pursuant to 42 U.S.C.

§

was

incarcerated at BCJ.

1983. Section 1983 provides

in relevant part as follows:
Every person who. under color of any statute, ordinance, regulation. custom. or
subjects. or causes to be subjected. any citizen
usage. of any State or Territory
of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by’ the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity. or
other proper proceeding for redress
...

.

42 U.S.C.

§

1983.

Thus, to obtain relief tinder this statute. a plaintifl’must establish: (i) that one of his rights
secured by the Constitution or laws

of

the United States

was

violated: and (ii) that this violation

was caused or committed by a person acting under color of state law. See fVest

15

i’.

Atkins. 487

U.S. 42. 48(1988); Grahan, v. (‘mmvi. 490 U.S. 386, 393-94 (1989) (noting that Section 1983

does not provide substantive rights; rather, it provides a vehicle for vindicating violations of
other federal rights).
In the seminal decision oI’Estefle v, Gcnnh/e. 429 U.S. 97(1976). the United Slates
Supreme Court made clear that: (i) “the government [is obligated] to provide medical care for
those whom it is punishing by incarcerationj;]” (ii) “deliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment[:]” (iii) prison officials violate the Eighth Amendment when they act
deliberately indifferent to a prisoner’s serious medical needs by-- intentionally denying or
delaying access to medical care or interfering with the treatment once prescrihed[:]” and (iv)
“deliberate indifference to a prisoner’s serious illness or injury states a cause ofacuon under
1983.”

§

EsidUe. 429 U.S. at 103-05.
In accordance with Es/el/c and its progeny. Mr. Mckinney’s Section 1983 deliberate

indifference claim will survive summary judgment only if he “make[s] (1) a subjective showing
that ‘the defendants were deliberately indifferent to [his] medical needs’ and (2) an objective
showing that -those needs were serious.’” Pearso;z v. PrLcon Health Sm’.. 850 F.3d 526. 534 (3d
Cir. 2017). In other words, to withstand summary judgment, “the evidence[. when viewed in the
light most favorable to McKinnev.] must demonstrate acts or omissions by prison officials that
indicate deliberate indifference to a serious medical need.” Guk/dy
597 (3d Cir. 2004) (citing Na/ale v. Camden

(‘ty.

1’.

Teiliune. 90 F. Appx 592.

(‘on’. Ecicilily, 318 F.3d 575. 582 (3d Cir.

2003): see aLco Pea,’sai,. 850 F.3d at 536 (holding that “the party’ moving for summary judgment
10

Non-convicted pretrial detainees are afforded substantially similar protections under the Due
Process Clause of the Fourteenth Amendment, See Hubbard v. Taylor. 399 F.3d 150, 166 (3d Cir. 2005)
(“pretrial detainees’ [are protected] from ‘punishment’ under the Fourteenth Amendment, and convicted
inmates [are protectedi from pun ishnient that is ‘cruel and unusual’ tmder the Eighth Amendment.’’).

16

[on a

§

1983 deliberate indifference to medical needs claim) may satisfy Rule 56” by

demonstrating that ‘the nonmoving party’s evidence is insufficient to establish an essential
element of [that] claim”) (citing (‘clotex. 477 U.S. at 331).
The case law contains several caveats, or limitations on this cause of action:
First. “prisoners do not have a constitutional right to limitless medical care.” Broiin v.
Beard. 445 F.ppx 453. 456 (3d Cir. 201!). Instead. “the state is obligated to provide
[prisoners with] basic health care.” Reiio1dv v. IFug;wr. 128 F.3d 166, 173 (3d Cir. 1997): sec
ako Broirn. 445 F. App’x at 455 (“jtlhe Eighth Amendment mandates that prisoners receive

access to basic medical treatment.”) (citing Esidlle. 429 U.S. at 101).
Second. where, as here, “a prisoner has received some amount of medical treatment. it is
difficult to establish deliberate indifference, because prison officials are afforded considerable
latitude in the diagnosis and treatment of prisoners.” Pcdakovic
(3d Cir. 2017); accord United Ski/cs cx reT JVdilker

i’.

i’.

WeIzel. 854 F.3d 209. 227—28

Fayette (‘i;.. 599 F.2d 573. 575 n,2 (3d

Cir. 1979) (“[w]here a prisoner has received some medical attention and the dispute is over the

adequacy of treatment. federal courts are generally reluctant to second guess medical judgments
and to constitutionalize claims which sound in state tort law.”).

Third. “when medical care is provided. [courtsl presume that the treatment of a prisoner
is proper absent evidence that it violates professional standards of care.” Pcaiso,z. 850 F.3d at
535 (emphasis added): accord Broiin v. Borough oR hainhersburg. 903 F.2d 274. 278 (3d Cir.
1990) (“it is well established that as long as a physician exercises professional judgment his
behavior will not violate a prisoner’s constitutional rights”); AIom,,outh (‘tj’. (‘oi’;’ Ins!.

i’.

Lanztiro. 834 F.2d 326. 346 (3d. Cir, 1987) (“mere disagreement as to the proper medical
treatment” does not “support a claim ofan eighth amendment violation”): Inmates a/Allegheny

17

(‘ij’. lull

i

Pierce. 612 F.2d 754, 762 (3d Cir. 1979) (‘ihe propriety or adequacy ofa particular

course of treatment

emains a question of sound professional judgment.”). Thus, neither a

prisoner’s personal. subjective dissatisfaction with the care lie has been provided, nor his
disagreement with the professional judgment ol’trained medical stall

iii

and of itself. is

suflicient to establish deliberate indifference. See flairs/on v. Direc’or Bureau of PrLsons. 563 F.
App’x. 893. 895 (3d Cir. 2014); IF/the v Napoleon. 897 F.2d 103.
i’.

10 (3d Cir. 1990): :iiiclreii’s

(‘unzden (Yr.. 95 F. Supp. 2d 217. 228 (D.N.J. 2000).

Fourth. however, there are nevertheless “circumstances in which some care is provided
vet it is insufficient to satisfy constitutional requirements.” Pulukovic. 854 F.3d at 228. For
example. prison officials “cannot deny reasonable requests for medical treatment

.

.

.

[when]

such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.” hi.
(citations and internal quotations omitted). Likewise. “knowledge of the need for medical care

may not be accompanied by the intentional rel’usal to provide that care.” hi. (citations and
alterations in original omitted).
b. Application
I. Whether McKinney Has Established a Serious Medical Need
As an initial matter. I will address whether the record evidence demonstrates that any of

Mr. McKinney’s medical ailments serious enough to satisfy Es/el/c ‘s objective prong. Serious
medical needs under Esiel/e include “one[s]

...

diagnosed by a physician as requiring treatment

or one[s] that [are] so obvious that a lay person would easily recognize the necessity for a
doctor’s attention.” liuuer,, v. (‘in v/Sea Isle, 657 F. App’x 134. 139 (3d Cir. 2017) (quoting
Lun:uro. 834 F.2d 326. 347 (3d Cir. 1987)).

18

(I)

Umbilical hernia

I find, contrary to Dr. fiemsley’s assertion (see DE 97-1 at 11). that McKinney’s
umbilical hernia is sufficiently serious under this standard. It is undisputed that a qualified
physician. Dr. Rajiv Shah, prescribed surgery to treat McKinney’s hernia in 2010. (See DE 99 at
PagelD: 841). That is enough, particularly under a Rule 56 standard. See Guiddy. 90 F. App’x at
597 (“Guiddy’s hernia condition was sufficiently serious because it was diagnosed by a
physician as requiring treatment.”); Jioulon

i’.

Want 123 F. App’x 368. 372 (10th Cir. 2005)

(“we have no trouble concluding that plaintifFs umbilical hernia was a serious medical
condition.”); accord Greenland v. Uniled Stales. 661 F. App’x. 210, 214 (3d Cir. 2016)
(“because a doctor diagnosed [plaintiff’] with a hernia requiring surgery. he described a serious
medical need.”).
(ii)

Knee, neck, back and other complaints

I do. however, agree with Dr. iiemsley that McKinney has not adduced evidence that any
of his medical complaints related to his knee, neck, and back are “serious” for purposes of
Es/die. (DE 97—1 at 12.) The only surgical procedure that any physician has ever recommended

for McKinney was for his umbilical hernia, and the hernia surgery is the only surgical procedure
he has undergone. There is no corresponding medical evidence that McKinney’s other
complaints were “serious” or that his demands for surgery had a legitimate medical basis.
On February 22. 2012. BCJ medical personnel noted a left meniscus tear and herniated
discs in McKinney’s neck and back. (DE 97-4 at PagelD: 695.) McKinney made repeated written
demands to BCJ staff for surgery to address his subjective complaints of pain associated with
those ailments. (See. e.g., DE 99 at PagelD: 759. 768.) That said, the record is devoid of any
objective evidence demonstrating that any medical professional ever concluded that surgery

19

—

or

any other specific treatment

—

was required for McKinney’s torn

meniscus

The medical opinion that surgery was required is attributed to no one

but

and herniated discs.

McKinney himself.

There are no medical reports or other objective evidence in the record that recommend treatment
—

surgical or otherwise

—

for these conditions. McKinney’s repeated demands for neck. back. and

knee surgery are no substitute for medical evidence.
Dr. [iemsley. for his part. avers that during McKinney’s time at BC. these pre-existing
conditions “were treated with NSAID pain relievers. Motrin and Tylenol.” and that they never
“presented a serious. urgent. or emergent medical need or that surgery or invasive treatment was
otherwise medically necessary.” (See lIemsley Cert.. DE 98 ati 13.) Hemsley’s certification is
entirely consistent with that conservative course of treatment and the objective evidence of
record. For example. BCJ’s February 22. 2012 Intake Report expressly notes that neither
McKinney’s herniated discs nor his torn meniscus required specific or immediate medical care.
(DE 97-4 at PagelD: 694-95.) Many of BCYs subsequent medical notes likewise indicate that
these ailments did not present as sufficiently serious to require treatment. When [Iemsley met
with McKinney on September 25, 2012. he explicitly noted that McKinney did not then appear
to be in acute or obvious distress and sat upright on the exam table. (DE 97-4 at PagelD: 705.)
Similarly. BCJ’s March 30, 2013 patient notes indicate that McKinney did not then appear in
acute distress. (itt at PagelD: 712.)
In summary. there is a complete lack of objective medical evidence that surgery was
required to address McKinney’s torn meniscus and herniated discs. There is a similar dearth of
evidence demonstrating that any medical professional considered any of these conditions to be of
an urgent or emergent nature. On this record, I must conclude and a matter of law that MeKinney

20

has failed to raise a genuine issue of’ fhct that his medical complaints related to his knee, neck.
and back were sufficiently serious to satisfy the objective prong of Esw/ic.
In arriving at that conclusion. I find the Third Circuit’s 2017 decision
decision, which affirmed summary judgment for delèndant on a

iii

Pearson, sit/nit.

§ 1983 plaintifEs claims of

deliberate indifference to serious medical needs, to be particularly persuasive. In Pearson, the
Third Circuit held “that medical expert testimony may be necessary to establish deliberate
indifference in an adequacy of care claim where, as laymen. the jury would not be in a position
to determine that the particular treatment or diagnosis fell below a professional standard of care.”
Pearson.

850 F.3d at 536. More pertinently. Pearson outlined “when expert testimony is

necessary to create a genuine dispute that the prisoner’s medical needs are serious.” Id. at 535. In
so doing. the Pearson Court cited favorably to two prior decisions:
In Boring r. Kozakiei’icz. 833 F.2d 468 (3d Cir. 1987). we held that a district
court may properly require expert medical opinions when. “{a]s laymen, the jury
would not be in a position to decide whether any of the conditions described by
plaintifl’s could be classified as ‘serious.” Id. at 473. In Brighthii’e// i’. Lehman.
637 F.3d 187 (3d Cir. 2011). we reiterated our holding in Boring, clarifying that
expert testimony “is not necessarily’ required to establish the existence ofa serious
medical need” and that “[o]ther forms of extrinsic proof... may suffice in some
cases.” Id. at 1 94 n.$.
Pearson. 850 F.3d at 535.

In the first of the nvo above—cited cases. Boring v, Ko:akieu’ie:. the Third Circuit
applying the standard set out in Es/el/c

—

—

“considered whether former pretrial detainees seeking

damages in constitutional claims for lack of medical care must produce expert testimony to
establish that their ailments were serious.” Boring. 833 F.2d at 469. 472. One of those detainees,
Geidel. suffered from a non—acute. pre—existing. knee injury that “qualified for elective surgery
which safely could be deferred[.j” Id. at 473. Another detainee. Boring, suffered from an ulnar
nerve condition which a physician concluded could be treated with “elective” surgery. hi The

21

Third Circuit found that an expert’s medical

opinion

would be required to substantiate that

Geidel and Boring’s conditions were objectively serious, and without such evidence, those
plaintiffs could not, as a matter of law. establish entitlement to
Boring

§

1983 relief, hi. at 473-74. The

Court also recognized. however, that ji]n some situations in which the seriousness of

injury or illness would be apparent to a lay person. expert testimony would not be required. e.g..
a gunshot wound.”

In the second of the above—cited cases. Brighlu’eiI v. Lehman. the Third Circuit
considered, among other things. whether “disputed issues of material fact precluded summary
judument” on

§

1983 plaintiff Brightwell’s claim that various prison officials were deliberately

indiflèrent to his serious medical needs. Brightii’dll. 637 F.3d at 191. Brightwell’s “allegedly
unattended-to [medical] conditions [included, among others.] blurred vision[] and severe
imploding-type’ migraines caused by ‘a capsule’ mistakenly left in his right eye during a
botched cataract surgery[.j” hi. at 189. Brightwell claimed that those “conditions required
remedial eye surgery.” hi. The Third Circut affirmed the district court’s entry of summary
judgment on this claim. It noted that the record was devoid of expert testimony or any “[o]ther
forms of extrinsic proof—e.g.. medical records, photographs. eie.....required to establish the
existence ofa serious medical need,” hi. at 194 n.8. Indeed. “aside from Brightwells own vague
assertions and self-diagnoses, all of the record evidence—including [Department of Corrections]
records and supporting affidavits from prison officials—indicate that he received appropriate

.

regular medical screenings. including one by an optometrist who recommended bifocal lenses,
which Brightwell refused to wear. Brightwell’s Eighth Amendment claims [were] thus based
entirely on ‘speculation. conclusory and ambiguous allegations. and vague inferences.’” hi. at

77

194 (citing Ridgen’oud Rd. u/Mite. v. NE. cx reL ALE.. 172 F.3d 238, 252. 254 (3d Cir.1999)

(alterations in original omitted).
In

this case. McKinney has proffered the opinions ofexpens. Le., his treating physicians.

hut they are adverse to his claim. These

opinions

do

not

anywhere so much as suggest that any

ailment (other than the hernia) was ever considered by a medical professional to require surgery
or other

formally

prescribed treatment. Like the plaintiff in Brighnrdll. McKinney has not

presented any reports. notes. or other obiective medical evidence recommending surgery or other
formal treatment for the torn meniscus and bulging discs. Like the plaintiffs in Boring.
McKinney has not presented any evidence to substantiate his claim that surgery for these
conditions was medically necessary. On this record, the only conclusion a fact tinder could reach
is that McKinneys repeated demands for knee. neck, and back surgery and physical therapy
were based entirely on his own medical opinion. 3cc Kaiwcr v. (‘uspari. 16 F.3d 280. 281 (8th
Cir. 1994) (holding that a prisoner’s “self-diagnosis” was insufficient to establish the existence
of objectively serious medical need).
Nor do McKinnev’s torn meniscus or herniated discs fit within the narrow loophole for
conditions so obviously serious (such as a gunshot wound) that lay opinion will suffice. Sec
,Johnson v. Wright. 477 F. Supp. 2d 572. 575 (W.D.N.Y. 2007). a/ft 324 F. App’x 144 (2d Cir.
2009) (holding that plaintiffs torn meniscus was “not a ‘serious medical need’ for Eighth
Amendment purposes”) (collecting cases); Gray

i’,

AIc(’ann. No. 3:08CV001 54 JMM/JTR. 2009

WL 2762718, at *3 (ED. Ark. Aug. 28, 2009) (awarding summary judgment in favor of medical
doctor where record showed that physician “determined, on at least two occasions, that Plaintiff
was not in urgent need of medical treatment for his complaints of neck pain [that he attributed to

23

a bulging disc in his neck]” and “Plaintiff [failed to present] any medical evidence to refute that
conclusion.”).
As a matter of law. then. McKinney has not raised a factual

issue

that any of his medical

needs (other than his hernia) were “serious” for purposes of a deliberate-indifference claim under

§ 1983.
2. Dr. Hemslcy Was Not Deliberately Indifferent to Mckinney’s Medical Needs
I move to the issue of Dr. liemsley acted with deliberate indifference to McKinney’s
serious medical needs. See Pearson. 850 F.3d at 534. For tile reasons stated above, the only
“serious” medical condition was the hernia. so I focus on that.
“[T]he 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 that
inadequate care.” hi. at 535; accord Guiddy, 90 F. App’x at 597-98. (“Finding a prison omcial
liable for violating a prisoner’s Eighth Amendment rights requires proof that the oflicial knew of
and disregarded an excessive risk to inmate health or safety. lie must be both aware of facts from
which the inference could he drawn that a substantial risk of harm exists and must draw that
inference.”) (citing Natale. 318 F.3d at 582L In that regard. “deliberate indifference is a
subjective state of mind that can, like any other form ofscienter. be proven through
circumstantial evidence and witness testimony.”

PCW’AOII.

850 F.3d at 534.

Dr. I lemslcy argues that “the record evidence is clear that [he] did not act with deliberate
indifference in his medical care and evaluation of McKinney.” (DE 97-1 at 12.) For the reasons
discussed supru at Section IV.c. 1. and for the additional reasons detailed below. I must agree that
the evidence does not raise a uenuine. material issue of fact as to deliberate indifference.

24

First, the evidence of record is uncontroverted that “McKinney was provided with regular
treatment for various medical issues and was consistently prescribed Metamucil and pain
relievers to address his complaints of constipation and discomfort.” (DE 97-1 at 12.) 1 have
already outlined the objective record evidence—chiefly, the medical record from BCJ—which
supports this conclusion. (Sec Section 11.a, supra.) That same evidence likewise demonstrates
that “Dr. Hemsley evaluated McKinney’s hernia on multiple occasions in 2012 and 2013, finding
that the condition had not changed or worsened, but that it had remained as non-urgent, nonemergent, reducible, and non-strangulated.” (DE 97-I at 12.)

So I am mindful that this is not a

case in which a prisoner was simply denied medical treatment—far from it. “Where a prisoner
has received some medical attention and the dispute is over the adequacy of treatment, federal
courts are generally reluctant to second guess medical judgments and to constitutionalize claims
which sound in state tort law.” United States cx teL Walker v. Fayette Ctv.. 599 F.2d 573, 575
n.2 (3d Cir. 1979). Where treatment is being given, 1 am reluctant to transform an ordinary

For convcnience, I summarize the medication prescribed for McKinney during his time at BCJ
for his hernia and subjective complaints of pain: Dr. Hemsley ordered Naprosyn for McKinney on
September 26, 2012 and December 28, 2012. (DE 97-4 at PagelD: 702, 705, 708.) Dr. iiemsley ordered
Motrin for McKinney on January 28, 2013 and July 25, 2013 (see DE 97-4 at PagelD: 708, 725),
notwithstanding that McKinney could and did purchase Motrin directly from BCJ’s commissary.
McKinney also received a prescription for Tylenol on May 24, 2013. (DE 974 at PagelD: 719.) Various
BCJ medical personnel, including Hemsley, prescribed Metamucil for McKinney on April 16, 2012, May
14, 2012, June 14, 2012, July 9,2012, August 6,2012, September 26, 2012, October 31, 2012, December
30, 2012, February 23, 2013, April 1,2013, May 2,2013, July 6,2013, and July 31, 2013 (DE 97-4 at
PagelD: 696, 698-700, 702, 706, 708, 711, 713, 717, 723, 726.)
Likewise, I summarize McKinney’s treatment at BCJ for medical complaints that were unrelated
to his hernia, torn meniscus, neck, and back. For example, on December 28, 2012, BCJ medical staff
treated McKinney for pain and swelling in his right big toe. (DE 99 at PagelD: 707.) BCJ medical staff
likewise prescribed anti-fever medication to McKinney on January 1,2013 in response to his complaints
of dry cough, rhinitis, and body aches. (JcL at PagelD: 707.) They also ordered cold and allergy medicine
for McKinney on January 28, 2013. (Id. at PagelD: 708.) Dr. Hemsley himself prescribed antihypertensive medication in response to a report that McKinney’s blood pressure was elevated on April 19,
2013. (Id at PagelD: 709; accordht at PagelD: 715.) And McKinney was admitted to the BCJ infirmary
and received extensive medical attention there in May of 2013, after complaining about numbness,
weakness, and tingling in his arms. (See hI. at PagelD: 718-29.)

—

—

25

difference

of

opinion about the appropriate level or nature of treatment into a claim of cruel and

unusual punishment.
The objective record evidence is consistent with Dr. Hemsley’s certification in support of
summary judgment. (DE 98.) 1 lemslcy has certified that “at all times that [McKinneyj was tinder
[his] care at [80. Mckinney’s] hernia presented as non-incarcerated and reducible... [and] did
not present a serious urgent. or emergent medical need [and. thus, that surgery] would have been
elective only.” (it!.

at

¶ 12.) Moreover, in llemsley’s “medical judgment. not having a surgery to

repair the hernia did not pose any significant threat to McKinnev’s health. Accordingly.
[Fiemslev] prescribed conservative treatment for McKinney that did not involve an invasive
surgery.” (it!.) F Fe instead treated “the constipation and slight periodic discomfort that McKinney
experienced as a result of the hernia

ith Metamucil and NSAID pain relievers.” (itt)

Furthermore, although there was evidence ofgrowih. nothing in the record suguests that
McKinney’s hernia significantly worsened in the roughly four—year period between Dr. Shah’s
initial surgical recommendation and the date on which he ultimately performed that surgery.
Indeed, in both of his July 6. 2010 and June 19. 2014 evaluations recommending surgical
treatment. Dr. Shah indicated that McKinney’s hernia surgery would be scheduled some weeks
later. This is consistent with Dr. Ilemslefs conclusion that McKinnev’s hernia never rose to the
level of an ‘mrgent. or emergent medical need.” (See DE 97-1 at 11.) (Indeed. Mckinney himself
delayed surgery alter the 2010 evaluation of’ Dr. Shah on which he chiefly relies.) This
consideration also supports entry of summary judgment.

See

.iaekson v.Jaekson. 456 F. App’x

813, 815(11th Cir. 2012) (“The delay in receiving surgery was [did not support a

§

1983

deliberate indifl’erence claim] because the hernia remained treatable without surgery and posed
no risk to Jackson’s health. Moreover, the delay did not worsen Jackson’s condition. That

26

Jackson felt he should have had surgery earlier than he did is insufficient to

support

a deliberate

indifference claim.”); Gznddy. 90 F. App’x at 598 (affirming entry of summary judgment in
favor of treating physician on deliberate indifference claim where, among other things. there was
110

“evidence in the record indicating this treatment was inappropriate or caused additional

harm.”). A mere diagnostic difference is insufficient to establish “deliberate indifference.” A
professional disagreement between doctors as to the best course of treatment does not establish
an Eighth Amendment violation.” H7hite v. Napoleon. 897 F. 2d 103. 110 (3d Cir. 1990).

It is true that Dr. Shah diagnosed McKinney with an incarcerated hernia that required
surgery in 2010. McKinney himself, however, put off surgery for many months. Thereafter, on
multiple occasions in 2012 and 2013. Dr. Hemsley diagnosed McKinney’s hernia as non—
incarcerated and susceptible to conservative treatment. The record evidence is clear that Hemsley
“formed a medical judgment that [McKinney’s] hernia was reducible without surgery.’ Bmii’n.
445 F. App’x at 455. That Dr. Shah’s diagnosis and course of treatment differed from Dr.
ilemsley’s does not, in and of itself, provide a basis to conclude that [lemsley acted with
constitutionally-actionable deliberate indifference to McKinney’s hernia. Pearson, 850 F.3d at
543 Q’the record is not sufficient for a reasonable jury to conclude that Dr. McGrath was
deliberately indifferent to [Pearson’s] medical needs. Since Dr. McGrath ordered pain
medication, exercise to help with breathing. and a follow—up medical appointment upon
Pearson’s return to the prison, any complaint that he should have ordered additional observation
is no more than a ‘mere disagreement as to the proper medical treatment’ that does not ‘support a
claim ofan eighth amendment violation.”) (citing Lanzaro. 834 F.2d at 346);

Broii’n.

445 F.

App’x at 455 (prisoner plaintiff’s claim that “defendants knowingly refused him necessary
surgery for his hernia despite the fact that a doctor at Altoona Ilospital had recommended that he

27

undergo an operation” failed to state a
where “it [was] evident

.

.

.

§

1983 deliberate indifference to medical needs claim

that defendants formed a medical

judgment

that Brown’s hernia was

reducible without surgery[, ]“ “prescribed him pain medication and an abdominal binder[.]” and
regLIIarly monitored his condition.”); Johnson

i’.

Doughty, 433 F.3d 1001. 1015 (7th Cir. 2006)

(holding prison medical personnel did not act with deliberate indifference when they opted for
non—surgical treatment. i.e.. a hernia belt, Tylenol. Metarnucil. and monitoring, in response to
prisoner’s reducible hernia).
The record is unrebutted that Hemsley “regularly monitored McKinney’s condition” and
prescribed him pain medication and Metamucil. These considerations suggest that Iiemsley. “at
worst treated [McKinneyl negligently” and “[niegligence or medical malpractice does not rise to
the level of a constitutional violation.”2 Brmi’n. 445 F. App’x at 455-56; Pearson. 850 F.3d at
543 (same). And indeed, the passage of years tends to confirm that there was indeed no surgeryrequiring emergency.
McKinney’s claim that I lemsley told him that he would not perform hernia surgery
because Bergen County would not pay for it. even if true. likewise does not preclude me from
entering summary judgment. See Brmi’n. 445 F. App’x at 456 (“the mere assertion that
defendants considered cost in treating Brown’s hernia does not suffice to state a claim for
deliberate indifference, as prisoners do not have a constitutional right to limitless medical care.”)
Indeed. “the deliberate indifference standard of Es/c/Ic does not guarantee prisoners the right to
be entirely free from the cost considerations that figure in the medical-care decisions made by
most non-prisoners in our society.” Reynolds v. Wagner, 128 F.3d 166, 175 (3d Cir. 1997).

2

I make Ui is concession arguendo to illustrate the legal point. I do not suggest that malpractice was
committed here.
28

Accordingly, I will enter summary udgment

in

favor of Dr. liemsley

on

MeKinney’s

§

1983 claim of deliberate indifference to medical needs.
3. Summary Judgment is Also Entered in Favor of Paw son and Bigott
The foregoing considerations demonstrate that summary judgment
on MeKinney’s

§

must

also he granted

1983 deliberate indillerence claims against Capt. Pawson and Warden Bigott.

Pawson and Bigott are not medical personnel and the record does not disclose that they
possess any medical training. On these facts, if Bigott and Pawson were to be liable for
deliberate indifference to medical needs. it could only be because they were aware ofor
somehow abetted the deliberate indifference of Dr. llemsley. As explained above, however. Dr.
I lemsley did not act with constitutionally—actionable deliberate indifference to McKinneVs
serious medical needs. It follows that defendants Bigott and Pawson did not violate McKinney’s
constitutional rights. Sec McGimzLv

i’.

Hwnmcr. 751 F. App’x 287. 293 (3d Cir. 2018) (aFfirming

award of summary judgment against non-medical defendants because

§

1983 plaintiff “failed to

allege a constitutional violation, let alone one that the non—medical officials had a reason to be
aware or); Serrano v. Pa//no. 339 F. App’x 254. 258 (3d Cir. 2009) (“Absent viable claims that
the medical defcndants violated his constitutional rights. Serrano cannot stale a claim against the
non—medical defendants for failing to cure the medical defendants’ conduct.”): accord Spritill

1’.

Gil/is. 372 F.3d 218.236 (3d Cir. 2004) (Thbsent a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner, a non—medical prison
official

ill not be chargeable with the Eighth Amendment scientcr requirement of deliberate

indiflèrence.’). Indeed, both defendants, as “[n]on-medical oflicials[. werel entitled to depend on
[I lemslevsJ professional[] judgment.” Brmi’n. 445 F. Appx at 455 n.4.’3

2

I note in addition that the Ihilure or Bigott 01’ Pawson to respond directly to McKinney’s nieclical
complaints, assuming it occurred, does not preel tide me From granting summary judgment iii their favor.
29

Accordingly, 1 will enter summary judgment in favor of Bigott and Pawson on
MeKinney’s

V.

§

1983 claim of deliberate indiflèrence to medical needs.

CONCLUSION
For the foregoing reasons, Hemsley’s and Bigott and Pawsons motions for summary

judgment are uranted. An appropriate Order will be entered.

DATED: March 20,2019

/J

KEVIN MCNULtY
United States District Judge

Non-physicians cannot te considered deliberately indifferent simply because they failed to respond
directly to the medical complaints of a prisoner who WaS already being treated by the prison doctor.”
Di,nner i’. O(’urrol/, 991 F.2d 64, 69 (3d Cir. 1993)).

30