Bailey v. Kirsch, M.D. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 3/31/21. 3/31/21 ENTERED AND COPIES E-MAILED. *NOT MAILED TO PLAINTIFF.(jaa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS EARL BAILEY, JR.,
JESSE KIRSCH, M.D.,
March 31, 2021
This is a civil rights action brought by a prisoner proceeding pro se who alleges that he has
been wrongfully treated for a seizure disorder from which he does not suffer, and has been coerced
into taking a powerful medication that he does not need. Defendant moved to dismiss both on the
basis of the Plaintiff’s failure to exhaust administrative remedies within the prison, and on the
ground that he failed to state a claim as a matter of law. I denied the motion to dismiss because
the record as to exhaustion was unclear, even after the filing of an amended complaint, and because
viewed in the light most favorable to the Plaintiff, his Complaint could be viewed as stating a
claim. Defendant now returns with a fuller record, moving for summary judgment. For the reasons
that follow, that motion will be granted.
Plaintiff Thomas Earl Bailey Jr. has been incarcerated both at Berks County Prison and
with the Pennsylvania Department of Corrections on several occasions. The claim here arises out
of one of his stays at Berks County in 2019. Upon his readmission, his medical chart reflected that
he suffers from a seizure disorder, and during that stay a prescription for phenobarbital was
renewed by Defendant Jesse Kirsch, whom Plaintiff erroneously identifies as a medical doctor.
He is in fact a licensed physician assistant. 1 Mr. Bailey contends that in fact he did not have a
seizure disorder, that he did not want to take the medication, and that he was threatened with
discipline if he would not take it. Notably, it does not appear that Mr. Bailey contends he was in
fact placed in administrative segregation or that any other punishment was imposed, merely that
such discipline was threatened.
1) Failure to exhaust administrative remedies.
The Prison Litigation Reform Act ("PLRA") requires inmates to present their claims
through an administrative grievance process before filing suit in federal court. Specifically,
Section 1997e of Title 42 of the United States Code provides that “[n]o 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 exhausted.” 42 U.S.C. § 1997e(a). This “exhaustion requirement
applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has held that inmates must “properly”
exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 548 U.S.
81, 93 (2006).
Here, Berks County has an established grievance procedure, discussed in my earlier
memorandum addressing the second motion to dismiss. See ECF 24. Mr. Bailey filed a
grievance, that was then denied. Defendant argues that Mr. Bailey cannot show exhaustion
Separately, I have denied Plaintiff’s motion to join additional defendants whose names appear in the medical
records, because I concluded that such joinder would be futile based upon my conclusion that Plaintiff’s claims lack
because he has not brought forth evidence to show that he appealed the denial of his grievance.
This case was docketed in the Middle District of Pennsylvania on July 23, 2019. The sole
grievance in the record regarding Plaintiff’s seizure disorder was dated July 19, 2019. See Pl.
Exhibits at 24, ECF 52. 2 The grievance was addressed by the Prison at the first level on July
26, 2019, within the 15-day time provided by the established procedure. Id. Significantly, the
grievance itself makes reference to the fact that suit had already been filed and accuses prison
personnel of having read his legal mail. Id. In short, the undisputed record is that Mr. Bailey
submitted this case for filing before he filed the relevant grievance, and it was docketed three
days before the grievance was first addressed by prison officials. Mr. Bailey did not “properly”
exhaust remedies before staring suit.
Mr. Bailey contends that proof of exhaustion is missing from the record because
correctional officers stole documents from his cell. See Pl. Letter, ECF 44. It is unclear whether
Mr. Bailey is arguing that he filed an earlier grievance or whether he appealed the July 19, 2019
grievance. Ten months after this action was filed, Plaintiff was able to docket a series of prison
records, including grievances. See ECF 34, ECF 52. That filing included the relevant grievance
here, for which there is no notice of appeal, and a later grievance, filed in November, 2019,
together with a notice of his appealing its denial. It defies belief other relevant documents would
remain in his possession, but not the one document necessary to show exhaustion, undercutting
his contention that his legal files were destroyed. Further, the record shows that a prison official
reviewed videotape in response to Mr. Bailey’s complaint that materials were improperly
removed from his cell. See ECF 52 at 24. It showed a correctional officer seizing two rolls of
The copies of grievances docketed by Plaintiff were illegible in some instances. Defense counsel was requested to
search for more legible copies and supply them to the Court. They have been docketed at ECF 52.
contraband toilet paper and nothing more. Id. Although I declined to dismiss Mr. Bailey’s
Complaint for failure to exhaust, the record is now developed and it is clear that Mr. Bailey did
not properly exhaust his remedies, notwithstanding his contention that a document was stolen
from his cell. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”).
2) Mr. Bailey’s suit fails on the merits.
Even if Mr. Bailey had properly exhausted his remedies, Defendant has shown “that
there is no genuine issue of material fact and [he] is entitled to judgment as a matter of law.”
Wiest v. Tyco Electronics Corp, 812 F.3d 319, 328 (3d Cir. 2016). A review of the record in
this case reflects that Mr. Bailey does in fact have a longstanding seizure disorder for which he
received Phenobarbital before incarceration and while in the custody of the Pennsylvania
Department of Corrections. And nothing in the record supports a claim that he was coerced
into taking the medication or disciplined for not doing so. Consequently, there is no basis for
relief under the Constitution or Pennsylvania’s law of medical malpractice. 3
During an admission to Berks County Prison in 2014, on multiple occasions Plaintiff
provided a history of a long-standing seizure disorder, starting with an initial screening on
October 2, 2014. See Def. Motion for Summary Judgment, Exh. D, ECF 42. That history
including having seizures within the previous year. Id. at 12, 16. He repeated that history
during a follow-up physical examination with Paula Dillman-McGowan, CRNP. Id. at 49.
Mr. Bailey had moved to add a claim for medical malpractice. Recognizing that he is proceeding pro se,
I granted his motion and will analyze whether he has stated such a claim.
Several days later, Mr. Bailey was not cleared for work at the prison due to his seizure history.
Id. at 46.
On a subsequent admission to the institution on March 27, 2016, Plaintiff underwent a
Receiving Screening and gave a history of having seizures since childhood, but reported that he
was not currently being treated. Id. at 30, 34. Early in that admission he reported an absence of
seizures but records from December, 2016, show their recurrence. Id. at 94. He later stated that
he had taken Phenobarbital, 115 mg, twice per day previously while incarcerated in Palm Beach
County, Florida, but stopped taking the medication due to a lack of insurance. Id. at 99. During
that admission, Plaintiff stated he was “agreeable” to taking Phenobarbital and it was ordered.
Id. During a sick visit with Mr. Kirsch, Mr. Bailey stated that he had been on Phenobarbital
since he was a teenager. Id. at 82. Throughout 2014, 2015 and 2016, Mr. Bailey was treated by
Mr. Kirsch as well as by other medical providers. Id.
In 2017 Mr. Bailey entered the state correctional system. The New Reception/Parole
Violator Return Screening Form dated March 7, 2017, indicated that he had a current diagnosis
of epileptic seizures. Def. Mot. Summary Judgment Exh. C at 2, ECF 42-5. A Physical
Examination form dated March 17, 2017 noted a prior medical history of epilepsy. Id. at 11.
As a result, medical staff placed him on the chronic care list secondary to his seizure history.
Id. at 12. In fact, special precautions were taken: no tasers were to be used, and he was to be
housed on the ground level, and given a bottom bunk. Id. at 13-14. Perhaps most importantly,
Plaintiff was continually prescribed Phenobarbital during his incarceration with the state. Id. at
Upon readmission to Berks County Prison in 2018, the same history of seizures was
recounted by Mr. Bailey along with his use of Phenobarbital, albeit with Plaintiff reporting that
his last seizure was either in 2016 or 2017. See Def. Mot. Summary Judgment Exh. D at 39.
Nonetheless, he recounted taking medication for the seizures while in state prison and the last
time he was at Berks. Id. at 37-45. In December 2018, Plaintiff gave a history of having a
seizure three days ago, and claimed to have a seizure once every one to two months. Id. at 59,
Without recounting all of the other pertinent entries – all of which are consistent with
the facts set forth above — the defendant here, physician assistant Jesse Kirsch, renewed
Plaintiff’s existing prescription for Phenobarbital on July 19, 2019. Id. at 109. Mr. Kirsch has
attested under oath that he did not originate the prescription, but simply renewed it. See Def.
Motion for Summary Judgment Exh. A, ECF 42-3. This is consistent with the written record,
which refers to “expired meds Phenobarbital, 64.8 mg.” Exh. D at 109. Mr. Kirsch attests that
the record reflects that Mr. Bailey “claimed to have an allergy” to another type of epilepsy
medication, Dilantin. Exh. A, ECF 42-3.
That same day, Mr. Bailey filed his grievance referring to having already filed a lawsuit.
See ECF 52 at 24. The grievance form makes no reference to being forced to take Phenobarbital.
It states: “for over three years I’ve been given Phenobarbital and for half that time I’ve been
asking why, to no avail.” Id. Toward the end of the form Mr. Bailey refers to having asked for
information about the medications he was taking, but states nothing more. A review of
Plaintiff’s medical chart reflects that the first time he denied a history of seizures was not until
October 4, 2019. Def. Mot. Summary Judgment Exh. D at 74. The medical chart shows that at
times, Mr. Bailey stated that he did not wish to receive treatment for his seizure disorder. See,
e.g., id. at 4. But there is nothing in the record suggesting that Mr. Bailey was forced to take
medication against his wishes or that he was threatened with punishment if he refused
Mr. Bailey’s claim arises under the Due Process Clause of the Fourteenth Amendment.
As discussed in my memorandum denying Defendant’s Motion to Dismiss, Mr. Bailey’s
Complaint “[did] not plead denial of medical care or inadequate medical care in the ordinary
sense that such claims arise; rather he plead[ed] in more fundamental terms that he simply does
not suffer from any medical condition that warrants phenobarbital.” See ECF 24. That
allegation is now completely belied by the record, which shows that Mr. Bailey consistently
reported a history of seizure disorders, and which shows that at times, he accepted medication.
Pretrial detainees are guaranteed stronger protections in the carceral setting than
prisoners who have been convicted. See Bell v. Wolfish, 441 U.S. 520, 533 (1979). It is unclear,
however, whether claims regarding medical treatment should be analyzed under the Bell v.
Wolfish framework or through the Eighth Amendment “deliberate indifference” framework
established in Estelle v. Gamble, 429 U.S. 97 (1976). See Boring v. Kozakiericz, 833 F.2d 468,
471-473 (3d Cir. 1987); see also Carson v. Mulvhill, 488 F. App’x 554, 560-62 (3d Cir. 2012).
The question under Bell would be whether Defendant’s actions “amount to punishment of the
detainee.” 441 U.S. at 535. If the action is “reasonably related to a legitimate governmental
objective, it does not, without more, amount to punishment.” Id. at 539. Under Estelle, prisoners
are protected from “acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” 429 U.S. at 106.
Under either standard, there is no material issue of fact as to whether Plaintiff’s rights
were violated. The Court will take judicial notice that Phenobarbital is a recognized treatment
for seizure disorders. As reported by the Epilepsy Foundation, the leading national organization
on management of seizure disorders:
Phenobarbital is approved in the United States by the Food and Drug
Administration (FDA) for add-on therapy for partial and tonic-clonic seizures. It
has been used alone for more than 80 years, however, to treat partial and tonicclonic seizures. It is also used for treatment of status epilepticus….. The advantages
of Phenobarbital are its long history of use, low cost, and effectiveness. It has a
long half-life, which keeps the level of medication in the blood relatively stable
over the course of the day even when it is taken in only one daily dose (often at
Epilepsy Foundation, Phenobarbital. 4 The record is consistent that Mr. Bailey suffered
from a seizure disorder, for which the medication was indicated, as evidenced by the fact that it
was consistently prescribed for him even when he was not incarcerated. The record is devoid
of any indication that he was coerced to take the medication. For that matter, it is entirely unclear
how medical personnel could impose any pressure, let alone discipline, if he refused to take it,
if indeed he did so refuse.
Mr. Bailey submitted a sworn declaration acknowledging that he was prescribed
phenobarbital beginning in 2014. See ECF 35. He states that in 2017, he began to feel side
effects from the medication, that he reported this, and that his dosage was subsequently lowered.
Id.; see also ECF 42-6 at 39 (reflecting the lower dosage). He then attests that upon his return
to Berks in 2018, he refused medication and was told by Mr. Kirsch that if he missed any more
doses, he would be “moved to medical or the hole till [he] complied.” Id. at 2. At that point,
Mr. Bailey states that he wrote a communication to medical “telling them [he is] not epileptic
and there was no response.” Id. Sworn testimony, on its own, can be sufficient to survive a
motion for summary judgment. See Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d
Cir. 1987); Weldon v. Kraft, 896 F.2d 793, 800 (3d Cir. 1990). In very limited circumstances,
however, sworn testimony may not be sufficient to establish a genuine issue of material fact,
particularly where the nonmoving party “reassert[s] factually unsupported allegations contained
in its pleadings.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). The
question is whether the record “is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). Accord, Scott v. Harris, supra, 550 U.S.
at 380. Such is the situation here. Mr. Bailey’s contention that he does not suffer from epilepsy
is repeatedly contradicted by the medical record. See, e.g., ECF 42-6 at 4 (reporting on intake
in 2014 that he is epileptic). His allegation that he was forced to take the medication against his
will lacks any support in the record, and is contradicted by the fact that his dosage was lowered
when requested and that, according to Mr. Bailey, he stopped taking the medication in
September 2019. See ECF 35 at 4. Even if Kirsch made such a threat, it did not deter Mr.
Bailey, and there is no indication of any adverse action taken against him in the prison records
Mr. Bailey submitted, which reflect other instances in which he was cited for misconduct. I do
not doubt that Mr. Bailey was frustrated by the challenges of managing his condition while
constantly moving in and out of correctional institutions.
But he has not shown any
constitutional violation. A reasonable jury could not return a verdict for Mr. Bailey, and
summary judgment is therefore appropriate. See Wiest, 812 F.3d at 328.
For those same reasons, Mr. Bailey cannot prevail on a state law malpractice claim.
Medical providers must employ “‘the required skill and knowledge’ necessary ‘to exercise the
care and judgment of a reasonable’ person.” Passarello v. Grumbine, 87 A.3d 285, 297 (Pa.
2014) (quoting Donaldson v. Maffucci, 156 A.2d 835, 838 (Pa. 1959)). With rare exceptions,
expert testimony is required to establish malpractice, and Mr. Bailey presents none here. Maurer
614 A.2d 754, 757–58 (Pa. Super. 1992)
v. Trustees of the University of Pennsylvania,
(collecting cases). A patient can under limited circumstances prevail without an expert under
the doctrine of res ipsa loquitur, but only where a lay person could conclude as a matter of logic
and common experience that malpractice must have occurred. Quinby v. Plumsteadville Family
Practice, Inc., 907 A.2d 1061, 1071 (Pa. 2006). Here, a lay jury could hardly draw such an
inference without expert opinion, given that Mr. Bailey reported a long-standing history of
epilepsy, the record showed he had consistently been prescribed phenobarbital and was allergic
to other medications, and Mr. Kirsch renewed an existing prescription. If anything, on the record
as it stands, in the absence of an expert testifying to the contrary, it would be more logical to
infer that failure to make the medication available would have been malpractice.
Defendant is entitled to summary judgment both on the basis of a failure to exhaust, and
on the merits. An appropriate order will be issued.
/s/ Gerald Austin McHugh
United States District Judge
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