MORRIS v. JONES et al

Filing 49

MEMORANDUM, FILED. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 11/23/09. 11/23/09 ENTERED AND COPIES E-MAILED.(fb) Modified on 11/23/2009 (fb).

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA D E V O N MORRIS, P la in tiff v. T R O Y LEVI, et al., D efe n d a n t : : : : : : : C I V I L ACTION

N O . 08-cv-3842

M EM ORANDUM S te n g e l, J. N o v e m b e r 23, 2009

P la in tif f Devon Morris suffers from hypertrophic cardiomyopathy, a possibly fatal h e a rt condition. While incarcerated at the Federal Detention Center, Mr. Morris informed th e prison medical personnel of a prior diagnosis of this condition and a prior re c o m m e n d a tio n he undergo surgery to implant an implantable cardioverter defibrillator (" IC D " ). In addition, he repeatedly complained of chest pains, shortness of breath, and d iz z in e s s . Mr. Morris arrived at the FDC in February 2008, but did not see a cardiologist u n til August 2008, and did not undergo the recommended surgery until October 2008. Mr. Morris alleges the FDC's delay in providing treatment for his condition was a v io la tio n of his Eight Amendment rights. Defendant filed this motion to dismiss Mr. M o rris 's second amended complaint, or, in the alternate, a motion for summary judgment. For the reasons explained below, I will deny the motion.

I.

BACKGROUND P la in tif f Devon Morris was arrested on January 11, 2008 and was transferred to the

Federal Detention Center ("FDC") in Philadelphia, Pennsylvania on February 11, 2008. Second Amended Complaint at ¶ 16. When he arrived at the FDC, Mr. Morris informed a n intake nurse he suffered a heart condition, chest pains, shortness of breath, dizziness, a n d fainting spells. Id. at ¶ 17. After the intake evaluation, his FDC file noted "enlarged h e a rt and in need of pacemaker. History of fainting." Id. at ¶ 17. On February 21, 2008, defendant Hussain Bokhari, a medically licensed p ra c titio n e r at the FDC, examined Mr. Morris for an initial intake physical examination. Id. at ¶ 18. Mr. Morris told Mr. Bakhari he had been diagnosed with a serious heart c o n d itio n at the Tucson Medical Center in Tucson, Arizona the previous October and the T u c s o n physician had informed him there was a significant risk of sudden cardiac death a n d recommended surgical implantation of an ICD. Id. at ¶ 19. Mr. Morris also e x p la in e d he suffered from chest pains, shortness of breath, dizziness, and fainting spells. Id. Mr. Bokhari noted Mr. Morris had an abnormally high blood pressure. Id. at ¶ 18. M r. Bokhari informed defendant Dr. Odeida Dalmasi, Clinic Director at the FDC, o f Mr. Morris's condition and prior diagnosis. Second Amended Complaint at ¶ 21. On M a rc h 20, 2008, Dr. Dalmasi administered an electrocardiogram ("EKG") test on Mr. M o rris . Id. at ¶ 22. The EKG showed extreme abnormalities, and Dr. Dalmasi re c o m m e n d e d the FDC provide Mr. Morris with an examination by a cardiologist. Id. at ¶ 23. The FDC provided Mr. Morris with a medical release form to allow it to obtain Mr.

2

Morris's records from the Tucson Medical Center. Id.1 In late March 2008, the Tucson Medical Center sent Mr. Morris's medical records to the FDC. Second Amended Complaint at ¶ 24. These medical records confirmed Mr. M o rris had been diagnosed with hypertrophic cardiomyopathy, and that the Tucson M e d ic a l Center had recommended surgical implantation of an ICD. Id. at ¶ 25. On May 2, 2008, Defendant Stephen Spaulding, the Health Services and U tiliz a tio n Review Committee Coordinator at the FDC, and Dr. Dalmasi informed Mr. M o rris the FDC "Utilization Review Committee"2 had tabled his request to be evaluated b y a cardiologist. Id. at ¶ 26. Mr. Morris "continued to live in fear of sudden death due to his untreated heart condition," and he continued to experience chest pains, dizziness, s h o rtn e s s of breath, and fainting. Id. at ¶ 27. On May 22, 2008, Mr. Morris's counsel from a different proceeding sent Dr. D a lm a s i and Mr. Spaulding a copy of the medical records from the Tucson Medical C e n te r, calling attention to the hypertrophic cardiomyopthy diagnosis and implantation

Even though the FDC had been aware of the prior diagnosis before the EKG, this was the first time the FDC provided Mr. Morris with a medical release form. Defendants explained the Utilization Review Committee is a Health Services committee. Memorandum of Law in Support of Defendants' Motion to Dismiss, or in the Alternate, for Summary Judgment at 3 n.1, Morris v. Levi, No. 08-3842 (E.D. Pa. filed Apr. 16, 2009) [hereinafter Defendants' Motion to Dismiss]. It is chaired by the Clinical Director, and includes the Health Services Administrator and the medical staff involved in the inmate's care. Id. The Committee reviews various requests from inmates, including requests for specialist evaluations, and either approves the request, disapproves the request, or tables the request for further in-house evaluation. Id. 3
2

1

recommendation. Id. at ¶ 28. On June 2, 2008, Sadie Carney, a certified physician's a s s is ta n t at the FDC, examined Mr. Morris. Second Amended Complaint at ¶ 29. He a g a in complained of chest pain, shortness of breath, and fainting spells, and referenced h is prior diagnosis. Id. Ms. Carney, however, merely ordered an increase in Mr. Morris's b lo o d pressure medication. Id. Dr. Askok Patel, a medical doctor at the FDC, cosigned M s . Carney's "Clinical Encounter" report for Mr. Morris's visit. On June 5, 2008, Mr. Morris submitted an urgent administrative request to d e f e n d a n t Troy Levi, warden at the FDC, requesting the recommended heart surgery. Second Amended Complaint at ¶ 31. On August 21, 2008, six months following his arrival at the FDC, Mr. Morris was e v a lu a te d by Dr. Daniel J. Vile, a cardiologist in private practice. In an August 22, 2008 le tte r to the FDC "Medical Director," Dr. Vile warned Mr. Morris "could be at high risk f o r sudden cardiac death." Id. at 33. Dr. Vile recommended Mr. Morris be treated by an e le c tro p h ys io lo g is t for possible surgical implantation of an ICD. Id. at 34. On August 28, 2008, after defendants had not acted on Dr. Vile's re c o m m e n d a tio n s , Mr. Morris filed a request for administrative relief to Warden Levi. Id. a t ¶ 35. On or about September 2, 2008, defendant Antonio Fausto, a medically licensed p ra c titio n e r at the FDC, examined Mr. Morris for chest pains, shortness of breath, d iz z in e s s , and fainting spells. Second Amended Complaint at ¶ 36. For 40 days following Dr. Vile's recommendations, defendants took no action. Id.

4

at ¶ 37. On October 22, 2008, Mr. Morris underwent surgical implantation of an ICD. Id. a t ¶ 38. Following this surgery, defendants failed to provide plaintiff the proper care. Id. a t ¶ 39.

II.

MOTION TO DISMISS STANDARD A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

e x a m in e s the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1 9 5 7 ). The factual allegations must be sufficient to make the claim for relief more than ju s t speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In d e te rm in in g whether to grant a motion to dismiss, a federal court must construe the c o m p la in t liberally, accept all factual allegations in the complaint as true, and draw all re a s o n a b le inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County C m ty. Coll., 725 F.2d 943, 944 (3d Cir. 1984). T h e Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all o f the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules re q u ire a "short and plain statement" of the claim that will give the defendant fair notice o f the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must a lle g e facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither " b a ld assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v . Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern

5

Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain e n o u g h factual matters to suggest the required elements of the claim or to "raise a re a s o n a b le expectation that discovery will reveal evidence of" those elements. Phillips v. C o u n ty of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 5 5 6 ).

III.

T H E EIGHTH AMENDMENT CLAIM M r. Morris alleges an Eight Amendment denial of adequate medical care claim

a g a in s t defendants in their individual capacities. He alleges he had a serious medical n e e d , i.e., a documented diagnosis of hypertrophic cardiomyopathy, a potentially fatal g e n e tic heart disease. Second Amended Complaint at ¶ 43. He maintains Mr. Spaulding, D r. Dalmasi, Dr. Patel, Mr. Bokhari, Mr. Fausto, and Ms. Carney were deliberately in d if f e re n t to his serious medical need because they knew of his condition but delayed tre a tm e n t by a cardiologist and delayed the surgical placement of an ICD. Id. at ¶ 44. Mr. Morris maintains Warden Levi was deliberately indifferent to Mr. Morris's serious m e d ic a l need because he knew the FDC medical staff was not treating Mr. Morris's h yp e rtro p h ic cardiomyopathy and improperly denied Mr. Morris's requests for heart s u rg e ry. Id. at ¶ 45. Mr. Morris alleges the defendants' deliberate indifference caused h im harm because he did not receive the necessary surgery for more than eight months f o llo w in g his admission to the FDC, and during those eight months he suffered physical

6

pain and lived in fear of death. Id. at ¶ 46. T o state an Eight Amendment inadequate treatment claim, a plaintiff must state (1) h e has a serious medical need, and (2) the defendants were deliberately indifferent to that n e e d . Estelle v. Gamble, 429 U.S. 97, 106 (1976); Monmouth Co. Corr. Inst. Inmates v. L a n z a ro , 834 F.2d 326, 346 (3d Cir. 1986). The defendants do not dispute Mr. Morris w a s suffering from a serious medical need. See Defendants' Memorandum of Law at 10. They maintain Mr. Morris failed to sufficiently plead the defendants were deliberately in d if f e re n t to that need. D e lib e ra te indifference "requires obduracy and wantonness which has been lik e n e d to conduct that includes recklessness or a conscious disregard of a serious risk." Rouse v. Plaintier, 182 F.3d 192, 197 (3d Cir. 1999) (internal citations omitted). The d e lib e ra te indifference standard is a subjective standard, Farmer v. Brennan, 511 U.S. 8 2 5 , 837 (1994), and whether a defendant has the requisite level of knowledge is a q u e s tio n of fact, id. at 842. "[C]onsiderable latitude" is afforded "to prison medical authorities in the diagnosis a n d treatment of the medical problems of inmate patients." Inmates of Allegheny Co. Jail v . Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Medical malpractice and negligence do not e s ta b lis h the defendants are deliberately indifferent. Estelle, 429 U.S. at 106. Similarly, m e re disagreement about the proper medical treatment will not support an Eight A m e n d m e n t claim. Monmouth Co. Corr. Inst. Inmates, 834 F.2d at 346. However,

7

deliberate indifference may be established where prison officials "deny reasonable re q u e s ts for medical treatment . . . and such denial exposes the inmate `to undue suffering o r the threat of tangible residual injury.'" Id. (quoting Westlake v. Lucas, 537 F.2d 857, 8 6 0 (6th Cir. 1976)). In addition, deliberate indifference is demonstrated where "prison a u th o ritie s prevent an inmate from receiving recommended treatment for serious medical n e e d s or deny access to a physician capable of evaluating the need for such treatment." Id. (quoting Inmates of Allegheny Co. Jail, 612 F.2d at 762). Mr. Morris does not allege a mere disagreement of diagnosis or treatment. Rather, h e alleges he was not provided treatment. Although he was examined by doctors and p re s c rib e d high blood pressure medication, the FDC did not permit him to be examined by a cardiologist until August 2008, six months after his incarceration. The Tucson M e d ic a l Center and Dr. Dalmasi both recommended Mr. Morris be permitted to visit a c a rd io lo g is t. In addition, after Mr. Morris was examined by a cardiologist, the c a rd io lo g is t concurred with the prior recommendation that an implantation of an ICD be c o n s id e re d . This surgery did not occur until October 2008. I find Mr. Morris alleged sufficient facts to survive a motion to dismiss. He a lle g e d each defendant knew of his serious medical need and each was deliberately in d if f e re n t to the need because the required medical treatment was delayed. See Second A m e n d e d Complaint at 43-46. The complaint contains sufficient factual matters to s u g g e s t the required elements of the claim and "raise a reasonable expectation that

8

discovery will reveal evidence of" those elements. See Phillips, 515 F.3d at 234 (quoting T w o m b ly, 550 U.S. At 556).

IV.

Q U A L I F I E D IMMUNITY Q u a lif ie d Immunity shields government officials performing discretionary

f u n c tio n s from liability for civil damages unless their conduct violates clearly established s ta tu to ry or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts apply a two-step inquiry to d e te rm in e whether a defendant is entitled to qualified immunity. First, a court must d e te rm in e whether a constitutional right was violated. Second, a court must determine w h e th e r the right was clearly established such that a reasonable officer would have k n o w n the "conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U .S . 194, 201-02 (2001) (overruled on other grounds). To be "clearly established," the c o n to u rs of the right must be sufficiently clear that a reasonable officer would understand h is conduct violates the right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).3 M r. Morris's complaint sufficiently pled a constitutional right had been violated. See Part III. In addition, the complaint states sufficient facts to establish that the

Defendants maintain failing to grant defendants qualified immunity "would undermine the ability of prison medical staff to exercise their discretion and make medical judgments in managing medical care for large prison populations." It would have a "chilling effect on the recruitment and retention of competent medical professionals for federal prison medical departments." Defendants' Memorandum of Law at 18. 9

3

constitutional right exists and that a reasonable person would understand his actions v io la te d the right. The Tucson Medical Center and Dr. Dalmasi recommended Mr. M o rris be seen by a cardiologist. After Mr. Morris was finally examined by a c a rd io lo g is t, this cardiologist joined in the recommendation from the Tucson Medical C e n te r that an ICD be implanted. This surgery did not occur for another two months. I find the complaint sufficiently pled the constitutional right was clearly e s ta b lis h e d and, taking the Mr. Morris's allegations as true, a reasonable person would h a v e known they were violating the defendant's right. Therefore, I will deny the d e f e n d a n ts ' qualified immunity request at this stage.

V.

S U M M A R Y JUDGMENT D e f e n d a n ts maintain, if their motion to dismiss is denied, the court should consider

m a te ria ls outside the pleadings, grant defendants' motion for summary judgment, and e n te r judgment in favor of defendants under Rule 56(c). Defendants attached medical re c o rd s in support of this motion. Mr. Morris argues defendants' summary judgment motion is premature. Mr. M o rris argues the motion should be denied pursuant to Federal Rule of Civil Procedure 5 6 (f ), which provides "[i]f a party opposing the motion shows by affidavit that, for s p e c if ie d reasons, it cannot present facts essential to justify its opposition, the court may: (1 ) deny the motion; (2) order a continuance to enable affidavits to be obtained,

10

depositions to be taken, or other discovery to be undertaken; or (3) issue any other just o rd e r." Mr. Morris claims he cannot present facts essential to justifying his opposition to th e moiton without discovery, and, therefore, the motion should be denied pursuant to F e d e ra l Rule of Civil Procedure 56(f). Mr. Morris's attorney, James Berger, Esquire filed a affidavit in support of this c la im .4 Mr. Berger maintained evidence concerning the state of mind and motivations of d e f e n d a n ts regarding "their acts or omissions relating to the denial and delay in obtaining m e d ic a l care for Mr. Morris is not otherwise available to him without further discovery." Affidavit of James Berger at ¶ 9. He maintains no discovery has occurred, and Mr. M o rris must be afforded the opportunity to take discovery "including but not limited to, ta k in g depositions of Defendants and other fact witnesses and serving interrogatories, to re s p o n d to Defendants' factual assertion that Defendants were not deliberately indifferent to Mr. Morris's alleged injury, and to demonstrate that there is a genuine issue of material f a c t." Id. at ¶ 10. In addition, Mr. Berger maintains Mr. Morris should be afforded the o p p o rtu n ity to "obtain paper discovery, including but not limited to, his full set of medical a n d administrative records; the proper procedures related to inmate Health Services at the [ F D C ]; and documentation relating to the decision of the Utilization Review Committee to table the request for Mr. Morris to obtain necessary cardiology consultation." Id. at ¶
4

Mr. Berger was terminated from this case on August 6, 2009. However, at the time Mr. Morris's opposition to Defendants' motion was filed, Mr. Berger was counsel of record. Although Mr. Berger is no longer an attorney of record for this case, Mr. Morris is represented by counsel. 11

11. B e c a u s e discovery has not yet commenced, I will deny Defendants' motion for s u m m a ry judgment and allow Mr. Morris to conduct discovery on his claim. A n appropriate order follows.

12