MCCARTHY v. COUNTY OF BUCKS et al

Filing 99

MEMORANDUM AND/OR OPINION RE: MOTION FOR SUMMARY JUDGMENT. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 10/28/2010. 10/29/2010 ENTERED AND COPIES E-MAILED.(tomg, )

MCCARTHY v. COUNTY OF BUCKS et al

Doc. 99

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KEVIN MCCARTHY, Plaintiff v. COUNTY OF BUCKS, et al. Defendants : : : : : : :

Civil Case

No. 08-1123

M E M O R A N D U M OPINION S te n g e l, J. October 28, 2010

In March, 2006, Mr. McCarthy was a pre-trial detainee incarcerated at the Bucks C o u n ty Correctional Facility. While incarcerated, Mr. McCarthy suffered from a w ris t/a rm abscess, which required surgical removal of the abscess, hospitalization, and re s u lte d in "some degree of permanent pain and dysfunction." Mr. McCarthy has filed a second amended complaint against the County of Bucks, T h o m a s French, Dr. Eleanor M. Travers, the Bucks County Health Department, and Dr. D a v id Davis.1 Dr. Travers and Bucks County filed a motion for summary judgment re q u e s tin g judgment in their favor on Mr. McCarthy's claim that Bucks County and Dr. T ra v e rs violated 42 U.S.C.A. § 1983. The § 1983 claim is the only claim remaining a g a in s t Dr. Travers and Bucks County. For the reasons set forth below, I will grant the m o tio n .

Edward J. Donnelly, Harris Gubernick, John Doe 1, and John Doe 2 are no longer defendants in this case. See Docket, McCarthy v. Cnty. of Bucks, No. 08-1123 (E.D. Pa.). John Doe 3 has been identified as the Bucks County Health Department. Id.

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Dockets.Justia.com

I.

BACKGROUND A. T r e a tm e n t Received at the Bucks County Correctional Facility

O n March 7, 2006, Kevin McCarthy arrived at the Bristol Township Police D e p a rtm e n t to discuss a retail theft charge. See Defendants' Statement of Facts at ¶ 5; P la in tif f 's Statement of Facts at ¶ 5. Mr. McCarthy was taken into custody and Deputy S h e rif f Thomas French transported Mr. McCarthy from the Bristol Township Police D e p a rtm e n t to the Bucks County Correctional Facility. See Defendants' Statement of F a c ts at ¶ 12; Plaintiff's Statement of Facts at ¶ 9-12. Mr. McCarthy was incarcerated at the Bucks County Correctional Facility from M a rc h 7, 2006 through March 17, 2006, when he was transported to Doylestown H o s p ita l. At Doylestown Hospital he received treatment for an abscess and was h o s p ita liz e d for ten days.2 D r. David Davis, a licensed medical doctor in the Commonwealth of Pennsylvania, is the medical director of the Bucks County Correctional Facility Dispensary. Defendants' Statement of Facts at ¶¶ 115-116; Plaintiff's Statement of Facts at ¶¶ 1151 1 6 . The prison dispensary provides medical services for Bucks County Correctional

While at the Bucks County Correctional Facility, Mr. McCarthy was seen almost daily by medical staff and was treated for drug withdrawal and hypertension. When Mr. McCarthy expressed pain in his wrist and arm, the arm injury was treated with an ace bandage, medicine, a consultation with an orthopedist, and a consultation with a hand surgeon when the surgeon was next available. For a detailed description of the medical treatment Mr. McCarthy received while incarcerated at the Bucks County Correctional Facility, please see the Memorandum Opinion addressing Dr. David Davis's motion for summary judgment. 2

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Facility inmates. Id. at ¶ 127. Dr. Eleanor Travers was the director of the Bucks County D e p a rtm e n t of Health at the time of Mr. McCarthy's incarceration. Id. at ¶ 126. Dr. T ra v e rs oversaw the Department of Health staff "responsible for providing care in the B u c k s County Correctional Facility." Id. at ¶ 128; Plaintiff's Statement of Facts at Exh. qq.

B.

B u c k s County Correctional Facility's Policies

O n November 11, 2003, the Accreditation Committee of the National Commission o n Correctional Health Care voted to continue to accredit the Bucks County Correctional F a c ility for its compliance with the National Commission on Correctional Health Care S ta n d a rd s . See Defendants' Statement of Facts at ¶ 95; Plaintiff's Statement of Facts at ¶ 9 5 . The accreditation extended through October 2006. Id. at ¶ 96. On August 11, 2005, th e Pennsylvania Department of Corrections found the Bucks County Correctional F a c ility in compliance with Pennsylvania Code Title 37, Chapter 95. Id. at ¶ 97. This s ta tu te provides standards for county jails, including standards governing medical and h e a lth services. Id. at ¶ 98. T h e Bucks County Department of Health promulgated policies for meeting the s e rio u s medical needs of prison inmates. See Defendants' Statement of Facts at ¶ 99; P la in tif f 's Statement of Facts at ¶ 99. Policy J-A-01 states "inmates have access to care to meet any medical, dental and mental health needs without any barriers." See Plaintiff's

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Statement of Facts at Exh. oo. Policy J-A-02 states "[t]he designated health authority for B u c k s County Department of Corrections Medical Services is Bucks County Department o f Health. The Department of Health oversees all levels of health care and assures q u a lity, accessible and timely health services for inmates." Id. at Exh. pp. Policy J-A-05 re q u ire s an annual review of existing health care policies and procedures. See D e f e n d a n ts ' Statement of Facts at ¶ 102; Plaintiff's Statement of Facts at ¶ 102. Policy PA -1 1 provides a grievance mechanism for inmates. Id. at ¶ 103. Policy J-C-01 requires a p p ro p ria te credentialing for health care personnel. Id. at ¶ 104. Policy J-C-04 provides f o r healthcare training for correction workers. Id. at ¶ 105. Policy J-C-06 prohibits in m a te s from being used as healthcare workers. Id. at ¶ 106. Policy J-E-01 requires B u c k s County Correctional Facility inmates receive information on all health services. See Defendants' Statement of Facts at Exh. ff. Policy J-E-02 requires the screening of n e w inmates, including a visual inspection. See Defendants' Statement of Facts at ¶ 108; P la in tif f 's Statement of Facts at ¶ 108. Policy J-E-07 provides that inmates have an o p p o rtu n ity to request health care on a daily basis. Id. at ¶ 109. Policy J-E-08 provides f o r twenty-four hour emergency care. Id. at ¶ 110. Policy J-E-12 provides for continuity o f care. Id. at ¶ 111. Policy J-G-03 provides for infirmary care and, when appropriate, p la c e m e n t at Doylestown Hospital. Id. at ¶ 112. Policy J-D-04 provides all diagnostic s e rv ic e s available to the general population are available to inmates. Id. at ¶ 113. Policy J -E -0 4 requires a health assessment be performed on all inmates within fourteen days of

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incarceration. See Defendants' Statement of Facts at ¶ 114; Plaintiff's Statement of Facts a t ¶ 114. The Bucks County Correctional Department of Health Manual provides for two typ e s of medical watch: regular and acute. See Plaintiff's Statement of Facts at Exh. yy. Regular watch requires that module officers observe the inmate every fifteen minutes, an in m a te monitor observe the inmate every fifteen minutes, and both the officer and inmate m o n ito r make entries on the inmate monitor form. Id. The inmate and officer are to s ta g g e r their observations. Id. Acute watch requires that the module officers observe the in m a te every five minutes and record their findings and an inmate monitor is stationed o u ts id e the cell door to continuously observe the sick inmate. The inmate monitor will m a k e entries on the inmate monitor form, but "the module officer remains responsible for m a in ta in in g the five (5) minute watch, and accuracy of the entries made at that time." Id. At different times during his incarceration, Mr. McCarthy was placed on regular and a c u te watch. Dr. Davis stated he did not review the notations made by inmate monitors. See Plaintiff's Statement of Facts at Q at 87.

II.

STA N D A RD S u m m a ry judgment is appropriate "if the pleadings, the discovery and disclosure

m a te ria ls on file, and any affidavits show that there is no genuine issue as to any material f a c t and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

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An issue is "genuine" when "a reasonable jury could return a verdict for the nonmoving p a rty" based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 248 (1986). A factual dispute is "material" when it "might affect the outcome of the c a s e under the governing law." Id. A party seeking summary judgment initially bears responsibility for informing the c o u rt of the basis for its motion and identifying those portions of the record that "it b e lie v e s demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof o n a particular issue at trial, the moving party's initial Celotex burden can be met simply b y demonstrating to the district court that "there is an absence of evidence to support the n o n -m o v in g party's case." Celotex, 477 U.S. at 325. After the moving party has met its in itia l burden, the adverse party's response "must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 5 6 (e )(2 ). Summary judgment is therefore appropriate when the non-moving party fails to re b u t by making a factual showing that is "sufficient to establish the existence of an e le m e n t essential to that party's case, and on which that party will bear the burden of p ro o f at trial." Celotex, 477 U.S. at 322. U n d e r Rule 56 of the Federal Rules of Civil Procedure, the court must draw "all ju s tif ia b le inferences" in favor of the non-moving party. Anderson, 477 U.S. at 255. The c o u rt must decide "not whether . . . the evidence unmistakably favors one side or the other

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but whether a fair-minded jury could return a verdict for the plaintiff on the evidence p re s e n te d ." Id. at 252. If the non-moving party has produced more than a "mere scintilla o f evidence" demonstrating a genuine issue of material fact, then the court may not credit th e moving party's "version of events against the opponent, even if the quantity of the [ m o v in g party's] evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. B M W of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III.

D ISC U S S IO N F o r a government entity to be held "liable for the violation of a constitutional right

u n d e r § 1983, the plaintiff must identify a policy or custom of the entity that caused the c o n s titu tio n a l violation." See A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372

F.3d 572, 580 (3d Cir. 2004) (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 5 2 0 U.S. 397, 403 (1997)).3 "A plaintiff can establish causation by `demonstrat[ing] that th e municipal action was taken with deliberate indifference as to its known or obvious c o n s e q u e n c e s .'" Id. (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla., 520 U.S. at 407) (a lte ra tio n in original). The plaintiff "must demonstrate that, through its deliberate c o n d u c t, the municipality was the moving force behind the injury alleged." Chambers ex re l. Chambers v. Sch. Dist. Of Phila. Bd. of Education, 587 F.3d 176, 193 (3d Cir. 2009)
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Dr. Travers has been named as a defendant in her official capacity. "A suit against a governmental official in his or her official capacity is treated as a suit against the governmental entity itself." A.M. ex rel. J.M.K., 372 F.3d at 580 (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). 7

(Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)). T o establish a government entity is liable for a violation of rights as a result of a m u n ic ip a l policy or custom, the plaintiff must show the policymakers were aware of the c o n s titu tio n a l violations and "of the alternatives for preventing them, but either d e lib e ra te ly chose not to pursue these alternatives or acquiesced in a long-standing policy o r custom of inaction." Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996) (q u o tin g Simmons v. City of Phila., 947 F.2d 1042, 1064 (3d Cir. 1991)). "`Proof of a s in g le incident of unconstitutional activity is not sufficient to impose liability under [ M o n e ll v. New York City Dept. Of Social Services, 436 U.S. 658 (1978)], unless proof o f the incident includes proof that it was caused by an existing, unconstitutional m u n ic ip a l policy." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). "[W]here the policy relied upon is not itself unconstitutional, considerably more proof th a n the single incident will be necessary . . . to establish both the requisite fault on the p a rt of the municipality, and the causal connection between the `policy' and the c o n s titu tio n a l deprivation." Id. at 824. B u c k s County had policies in place addressing the administration of health care to p riso n inmates. These policies were approved by the Accreditation Committee of the N a tio n a l Commission on Correctional Health Care. The Pennsylvania Department of C o rre c tio n s found the Bucks County Correctional Facility in compliance with the P e n n sylv a n ia law that provides standards for the mental and health services available in

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county jails. Mr. McCarthy argues the treatment he received violated the policies. Mr. M c C a rth y relies on his deposition testimony regarding his experience. Mr. McCarthy te s tif ie d he did not receive an inmate handbook containing the grievance procedure. See P la in tif f 's Statement of Facts at Exh. B at 245-46. He alleges he was not seen by medical p e rs o n n e l prior to his incarceration, even though he was injured.4 He alleges he did not h a v e access to twenty-four hour care, the nurses failed to take his vital signs, the nurses f a ile d to start wet and dry dressings in compliance with the policy for treatment of a b s c e s s e s, and Mr. McCarthy did not receive all diagnostic services available to the g e n e ra l public. See Plaintiff's Response at 18 of 29, 24 of 29. Mr. McCarthy also was ta k e n to Abington Hospital, not Doylestown Hospital, and, when Abington Hospital did n o t treat him, he was not taken to the emergency room. Id. at 23 of 29. E v e n if Mr. McCarthy was able to prove the Bucks County Correctional Facility m e d ic a l staff deviated from the promulgated policies, he does not present evidence that a n y deviation was a recurring event or that any deviation was so obvious that Bucks C o u n ty should have been aware inmates were being deprived of constitutional rights. He p re s e n ts no testimony or evidence of other instances in which prison employees allegedly f a ile d to follow the policies regarding inmate medical care.
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See Plaintiff Kevin McCarthy's Memorandum of Law in Support of his Response to the Defendants' Travers and County of Bucks' Motion for Summary Judgment at 18 of 29, McCarthy v. County of Bucks, No. 08-1123 (E.D. Pa. filed July 2, 2010) [hereinafter Plaintiff's Response]. 9

Mr. McCarthy also does not establish any official with policy-making authority, in c lu d in g Dr. Travers, knew about his injuries and care during his incarceration at Bucks C o u n ty Correctional Facility. Mr. McCarthy details his complaints and the treatment he re c e iv e d over his nine days at the prison and argues Dr. Travers and Bucks County knew o f his condition. He presents no evidence to prove Dr. Travers and Bucks County knew. Dr. Travers testified she supervised Dr. Davis, provided assistance to the medical staff a n d evaluated Dr. Davis, and attended quarterly meetings to discuss infections. See Exh. q q . Dr. Travers testified she was not involved in the individual cases.5 See id. at 93-95. In addition, Mr. McCarthy relies on the policy regarding regular and acute medical w a tc h , which provides an inmate monitor will observe an inmate on regular watch and c o n tin u o u s ly watch an inmate on acute watch. Mr. McCarthy believes the use of inmate m o n ito rs violates the prison policy J-C-06. Policy J-C-06 provides: "no inmate within the B u c k s County Correctional system is permitted to function as a health care worker, have a c c e s s to medical records, equipment or supplies. Any inmate worker within the health c a re services area is under direct supervision at all times." Defendants' Statement of F a c ts at Exh. ee. The policy also allows for inmates to have a job known as "[i]nmate m o n ito r." Id. An inmate monitor's job description includes: a . Assist the module officer in observation of other inmates who may need a s s is ta n c e due to medical or psychiatric reasons. Dr. Travers testified she was part of a group which conducted an individual case review in April 2006, but she did not recall the patient. See Plaintiffs Statement of Facts at Exh. qq at 94-95. 10
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b. Monitor and observe inmates who may attempt self-injury or have physical re a c tio n s to medical problems. c . Acute watch monitors must maintain constant observation of assigned in m a te . d . Monitor must alert the module officer to suspicious, unusual behavior. e . Inmate monitors will not leave assigned watch post unless properly relieved b y another qualified monitor or approved by the module officer. f . Regular Watch ­ Inmate Monitor It is your responsibility to monitor up to 8 inmates of regular watch. You will re p o rt any unusual behavior, suicide threats, and gestures of requests by re g u la r watch inmates to the module officer. Id . This job description does not permit an inmate to function as a health care worker. M r. McCarthy presents evidence the prison had inmates watching him when he was on re g u la r and acute watch, and that Dr. Davis did not review the inmates' notes. He does n o t show the prison allowed an inmate to provide health care to Mr. McCarthy. M r. McCarthy makes numerous allegations that Dr. Davis and the medical p e rs o n n e l at the Bucks County Correctional Facility deviated from the prison's healthcare p o lic ie s . Even if the policies were not followed, Mr. McCarthy does not show that Dr. T ra v e rs or Bucks County knew the policies were violated. Therefore, Dr. Travers and B u c k s County could not have taken "municipal action . . . with deliberate indifference as to its known or obvious consequences." See A.M. ex rel. J.M.K., 372 F.3d at 580 (citing H a f e r, 502 U.S. at 25). I will grant Dr. Travers's and Bucks County's motion for s u m m a ry judgment.

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IV.

C O N C L U S IO N I will grant Dr. Travers's and Bucks County's motion for summary judgment. Dr.

T ra v e rs and Bucks County presented evidence of policies addressing health care for in m a te s . Mr. McCarthy failed to establish a policy or custom which caused a c o n s titu tio n a l violation. He failed to demonstrate a "municipal action was taken with d e lib e ra te indifference as to its known or obvious consequences." An appropriate order follows.

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