SAVAGE v. WEXFORD HEALTH SOURCES, INC.
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/21/2017. 11/21/2017 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WEXFORD HEALTH SOURCES, INC.
November 21, 2017
Plaintiff Gary Savage, an inmate incarcerated by the
Commonwealth of Pennsylvania, brings this civil rights action
under 42 U.S.C. § 1983 against Wexford Health Sources, Inc., the
private corporation responsible for providing medical treatment
at the state correctional facility where Savage was housed.
Before the court is the motion of Wexford for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure.
Summary judgment is appropriate “if 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. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
A dispute is genuine if the evidence is
such that a reasonable factfinder could return a verdict for the
See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986).
Summary judgment is granted where there is
insufficient record evidence for a reasonable factfinder to find
for the nonmovant.
See id. at 252.
We view the facts and draw
all inferences in favor of the nonmoving party.
See In re Flat
Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).
The following facts are undisputed or viewed in the
light most favorable to Savage, the nonmoving party.
confined to various Pennsylvania State Correctional Institutions
(“SCI”) from 2008 to 2012.
In 2009, during his incarceration,
he was diagnosed with obstructive sleep apnea following a sleep
This condition causes Savage to stop breathing at
repeated intervals while sleeping.
After being diagnosed, the
prison provided him with a Continuous Positive Airway Pressure
This machine pushes air into Savage’s lungs,
thereby keeping his airways open and allowing him to breathe
regularly while sleeping.
Savage received the machine
approximately two weeks after the sleep study was conducted.
After being paroled in 2012, Savage was able to take the CPAP
machine with him.
Savage began his state confinement that is the subject
of the instant litigation on November 13, 2013, when he was
transferred from the Philadelphia prison system to
As reflected in both Savage’s initial intake
paperwork and the records of his medical examination on that
date, Savage notified staff that he suffered from sleep apnea
and had used a CPAP machine at home.
Savage did not have a CPAP
machine while incarcerated in the Philadelphia prison for
approximately two months prior to his transfer to Graterford.
According to Savage, while at Graterford he repeatedly
informed staff that he suffered from sleep apnea and needed a
In response, Savage was told either that he did
not need such machine or that the prison did not have the money
to order the machine.
On February 12, 2014, Savage was seen at
the prison clinic for hypertension, at which time he reported to
a nurse that he needed a CPAP machine.
Following her assessment
of Savage, the nurse submitted a request to order a CPAP machine
through a Wexford “Non-Formulary Approval Request” Form.
form the nurse wrote that Savage had received a CPAP machine
during his previous state imprisonment, and she attached
Savage’s 2009 sleep study.
Later on March 18, 2014, after not having received a
CPAP machine, Savage filed an initial administrative grievance
with the prison.
In his grievance Savage complained that he
intermittently stopped breathing while sleeping and suffered
seizures as a result of his sleep apnea.
He further stated that
he needed a CPAP machine.
On or about March 26, 2014, the nurse who previously
submitted on Savage’s behalf the request for a CPAP machine
learned that the “Non-Formulary Approval Request” process was
intended for prescription drugs.
The request for the CPAP
machine instead had to go through Wexford’s “Collegial Review”
for medical devices.
On April 3, 2014, the nurse submitted the
request through the proper channels.
The request was approved
by a Wexford Clinical Coordinator four days later, on April 7,
On April 11, 2014, the prison issued its response to
Savage’s initial administrative grievance.
“upheld” in Savage’s favor.
The grievance was
In particular, the initial review
“According to the record your machine has been
approved and it has to be ordered.
You will be notified when it
That same day Savage was seen at sick call with
complaints of swollen ankles lasting more than four days.
nurse noted that Savage had sleep apnea and had been approved
for a CPAP machine.
The next day, on April 12, 2014, Savage was
brought to the prison dispensary via wheelchair after falling
out of bed while trying to sleep.
was “hard to keep awake.”
The nurse stated that Savage
According to Savage’s cell mate, this
daytime drowsiness was normal for Savage due to his sleep apnea.
Savage’s swelling had increased, and he complained of pain and
Thereafter, Savage was transferred to a local hospital
emergency room, where he was diagnosed with peripheral edema and
congestive heart failure.
Meanwhile, the request for Savage’s CPAP machine
continued through the bureaucratic channels of Wexford.
received an invoice from the distributor for the CPAP machine on
April 25, 2014 and paid the invoice on April 30, 2014.
Despite the ruling on Savage’s initial grievance,
weeks passed and Savage still did not receive his CPAP machine.
On May 18, 2014, Savage appealed directly to the Secretary’s
Office of Inmate Grievances and Appeals (“SOIGA”).
appeal Savage wrote that his initial review response was
He further stated:
a c-pap machine was ordered signed 4/11/14.
Today is May 16, 2014 initial grievance was
3/18/14 so I am experiencing seizure every
night, wake up with my tongue swollen and
struggling to breath [sic]. I am not
receiving proper treatment and I cannot lay
down to go asleep. I ask that action be
taken to acquire this machine on a
On June 1, 2014, while his SOIGA appeal was still
pending, Savage finally received his CPAP machine.
2014, Savage was transferred to SCI-Somerset.
On June 3,
sheet shows that he was transferred with his CPAP machine.
June 5, 2014, SOIGA dismissed Savage’s appeal without
consideration on the ground that Savage had failed first to
appeal to the facility manager as required under prison policy.
Savage took no further action.
Savage explained in his
deposition here that the prison grievance coordinator instructed
him not to re-file his grievance with the facilities manager, as
instructed by SOIGA, because he had already received the
Savage instituted this action on June 13, 2016 and
filed an amended complaint on November 14, 2016.
In the amended
complaint, Savage brings one count against Wexford under
42 U.S.C. § 1983 for violation of his Eighth Amendment rights.
Savage alleges that due to Wexford’s delay in providing a CPAP
machine, he suffered severe harm, including seizures, the
development of chronic obstructive pulmonary disease (“COPD”),
insomnia, pain and suffering, and emotional distress.
damages, attorney’s fees and costs, and other relief as
permitted by law.
We previously denied the motion of Wexford to dismiss
the amended complaint.
Wexford had contended that Savage failed
to exhaust his administrative remedies and that his claims were
barred by the statute of limitations.
In denying the motion, we
1. Savage filed a second administrative grievance on March 8,
2016 raising several issues related to his medical care while
incarcerated. This second appeal was not exhausted until
October 12, 2016, after Savage initiated suit in this court.
Savage does not assert that this grievance could serve as
administrative exhaustion for this litigation, and therefore we
will not consider it.
stated that further discovery regarding Savage’s attempts to
exhaust administrative relief was necessary.
Wexford first argues that we must grant its motion
for summary judgment on the ground that Savage failed to exhaust
administrative remedies under the Prison Litigation Reform Act
(“PLRA”) before filing this action in federal court.
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a
prisoner confined in any jail, prison, or
other correctional facility until such
administrative remedies as are available are
42 U.S.C. § 1997e(a).
Failure to exhaust is an affirmative
defense the defendant must plead and prove.
Cty., 728 F.3d 265, 268-69 (3d Cir. 2013).
Small v. Camden
Our Court of Appeals
has stated that “exhaustion is a question of law to be
determined by a judge, even if that determination requires the
resolution of disputed facts.”
Id. at 269 (citing Drippe v.
Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010)).
Exhaustion of administrative remedies is mandatory and
applies to all prisoners seeking redress for any prison
condition or occurrence.
(3d Cir. 2000).
Nyhuis v. Reno, 204 F.3d 65, 67
However, prisoners need not exhaust
administrative remedies if they are not “available,” that is if
the remedies are not capable of providing relief.
Lehigh Cty., 675 F. App'x 145, 148 (3d Cir. 2017) (quoting
Ross v. Blake, 136 S. Ct. 1850, 1855, 1859 (2016)).
administrative procedure is unavailable whenever:
operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates”; (2) it is “so opaque that is becomes, practically
speaking, incapable of use”; or (3) “prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.”
(quoting Ross, 136 S. Ct. at 1859-60).
To exhaust administrative remedies properly, prisoners
must complete the administrative review process in accordance
with the applicable procedural rules, “rules that are defined
not by the PLRA, but by the prison grievance process itself.”
Small, 728 F.3d at 272 (quoting Jones v. Bock, 549 U.S. 199, 218
Thus, the determination of whether a prisoner has
properly exhausted his administrative remedies “is made by
evaluating the prisoner’s compliance with the prison’s
administrative regulations governing inmate grievances, and the
waiver, if any, of such regulations by prison officials.”
Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004).
Wexford contends while Savage initiated the grievance
process in March 2014 he did not appeal that grievance to final
review and therefore cannot maintain this lawsuit.
Savage’s initial grievance was upheld.
prison administrator found in his favor and stated that the CPAP
machine must be ordered.
As a result, Savage had exhausted his
administrative remedies and was under no further obligation to
continue the appeal process.
There is no need for a prisoner to
proceed further when he wins his grievance any more than a
litigant needs to appeal when he or she wins in the trial court.
In any event, Savage did in fact appeal his grievance
after weeks passed and he had not yet received his CPAP machine.
As stated above, Savage’s appeal was dismissed without
consideration on the ground that he had appealed directly to
SOIGA without first appealing to the prison facility manager as
required under prison policy.
Savage received the SOIGA ruling
on June 5, 2014, after he had received the CPAP machine, and was
instructed by the prison grievance coordinator that he could no
longer pursue the appeal because he had already received the
Savage was entitled to rely on the statement of the
See Shumanis, 675 F. App'x at 148;
Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002).
Wexford also asserts that Savage did not properly
exhaust administrative remedies because he failed to request
monetary relief in his grievance.
The form on which Savage
submitted his grievance merely instructs the inmate to “[s]tate
all relief that you are seeking.”
Without more, this brief
instruction was insufficient to put Savage on notice of any need
to request specifically monetary relief.
requiring a prisoner to request any monetary damages as part of
the administrative grievance, a failure to request such relief
does not preclude a later claim for money damages.
372 F.3d at 233-34.
In sum, Savage exhausted his administrative remedies.
Accordingly, we decline to grant summary judgment in favor of
Wexford for his failure to do so. 2
Wexford also challenges the substance of Savage’s
Eighth Amendment claim under § 1983.
The Eighth Amendment,
which is made applicable to the states through the Fourteenth
Amendment, prohibits the infliction of cruel and unusual
“[D]eliberate indifference to serious medical needs
of prisoners” constitutes a violation of that constitutional
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
2. Wexford also cites to an Inmate Grievance System Policy
issued by the Pennsylvania Department of Corrections that
states: “If inmate desires compensation or other legal relief
normally available from a court, the inmate must request the
specific relief sought in his/her initial grievance.” This
policy became effective May 1, 2015, over a year after Savage
filed his administrative grievance. Neither party has submitted
for this court’s review the policy that was in effect during the
relevant time period. Therefore, we will not consider this
establish a violation of his constitutional right to adequate
medical care, Savage must demonstrate:
(1) “a serious medical
need”; and (2) “acts or omissions by prison officials that
indicate deliberate indifference to that need.”
Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
Deliberate indifference may be manifested by
“intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.”
Estelle, 429 U.S. at 104–05.
This is a “subjective standard of
liability consistent with recklessness as that term is defined
in criminal law.”
Natale, 318 F.3d at 582 (quoting Nicini v.
Morra, 212 F.3d 798, 811 (3d Cir. 2000)).
It requires that the
defendant “knows of and disregards an excessive risk to inmate
health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Negligence is not sufficient to constitute an Eighth Amendment
Id. at 835, 836.
Savage has raised a genuine dispute of material fact
as to whether Wexford provided him with adequate medical care
for a serious medical need.
We agree with other courts that
sleep apnea, which causes him repeatedly to stop breathing while
sleeping, is a potentially life-threatening disorder and
qualifies as a serious medical need.
See Meloy v. Schuetzle,
No. 99-2122, 2000 WL 1160446, at *1-2 (8th Cir. 2000); Ross v.
Westchester Cty. Jail, No. 10-3937, 2012 WL 86467, at *5
(S.D.N.Y. Jan. 11, 2012); Dortch v. Davis, No. 11-0841, 2014 WL
1125588, at *5 (S.D. Ill. Mar. 21, 2014); Allah v. Gramiak, No.
13-186, 2015 WL 269478, at *4 (M.D. Ga. Jan. 21, 2015).
We also conclude that Savage has raised a genuine
dispute of material fact regarding whether Wexford was
deliberately indifferent to this serious medical need.
evidence in his prison medical records that Savage was
prescribed a CPAP machine during his 2008 to 2012 incarceration
and that Wexford personnel knew or should have known as early as
November 2013 that Savage needed such machine.
Wexford failed to provide the machine to Savage until over six
months later, in June 2014.
We also reject Wexford’s argument that summary
judgment should be granted because Savage failed to produce
There is no per se requirement for expert
testimony in all Eighth Amendment inadequate medical care
Pearson v. Prison Health Serv., 850 F.3d 526, 535
(3d Cir. 2017).
Expert testimony is not necessary where “the
seriousness of injury or illness would be apparent to a lay
Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir.
Other forms of extrinsic proof, such as medical records,
may be sufficient to enable a jury to determine whether the
plaintiff’s medical need is serious.
Pearson, 850 F.3d at 535.
As to the question of deliberate indifference, there is a
“critical distinction” between claims alleging a delay or denial
of a recognized need for medical care and those alleging
inadequate medical treatment.
Id. (quoting United States ex.
rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir.
A claim alleging the delay or denial of medical
treatment requires inquiry into the subjective state of mind of
the defendant and the reasons for the delay, which like other
forms of scienter can be proven through circumstantial evidence
and witness testimony.
As discussed above, Savage has produced medical
records showing that he was diagnosed with obstructive sleep
apnea and that such condition causes him to stop breathing
repeatedly while sleeping.
Savage was previously prescribed a
CPAP machine while imprisoned in 2009.
Wexford’s own staff
agreed with that assessment and eventually ordered the CPAP
Savage challenges not the adequacy of his medical
care, but rather the delay in receiving medical care, that is
the CPAP machine.
Under these circumstances, we cannot say at
this time that expert testimony is necessary for Savage to
proceed with his claim.
Finally, Wexford asserts that Savage has failed to
produce evidence that it has an official policy or custom which
caused a deprivation of Savage’s rights.
Like a municipality, a
corporation such as Wexford cannot be held liable under § 1983
for the acts of its employees under a respondeat superior
It may be held liable, however, if an official policy
or custom of Wexford caused the deprivation of plaintiff’s
See Natale, 318 F.3d at 583-84.
Here, Savage asserts that Wexford had a policy or
(1) withhold medical devices from inmates due to
costs; and (2) withhold medical devices from inmates in
contradiction to their medical need.
In his deposition Savage
testified that there were other inmates with sleep apnea who
needed CPAP machines but were told that there was no money for
At this stage of the proceedings, this evidence
is sufficient to raise a genuine dispute of material fact as to
whether Wexford had a policy or custom which caused a
deprivation of Savage’s rights.
Wexford further asserts that even assuming it chose to
implement a policy to reduce medical device costs, this decision
would not give rise to an Eighth Amendment claim.
Wexford cites Brown v. Beard, 445 F. App’x 453 (3d Cir. 2011),
and Winslow v. Prison Health Services, Inc., 406 F. App’x 671
(3d Cir. 2011).
In both of those cases the prisoner-plaintiffs
challenged the defendants’ decision to treat a hernia with a
support belt and medication rather than surgery due in part to
Brown, 445 F. App’x at 455-56; Winslow, 406
F. App’x at 674-75.
Our Court of Appeals held that both
prisoners failed to state a claim for deliberate indifference
due to treatment of the hernias and in doing so stated that
prisoners “do not have a constitutional right to limitless
medical care, free of cost restraints under which law-abiding
citizens receive treatment.”
Winslow, 406 F. App’x at 674.
These cases are inapposite to the claim presented by Savage,
which involves a potentially life-threatening condition that was
left completely untreated for months by Wexford.
Wexford is not entitled to summary judgment based on
its argument that no evidence exists of an official policy or
custom of Wexford to deprive inmates of CPAP machines.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?