Soto v. Leskowsky et al

Filing 102

MEMORANDUM AND ORDER: 1) Dfts mtns for summary judgment 56 & 60 areGRANTED in favor of Dfts.2) The Clerk of Court is directed to ENTER judgment in favor of Dfts.3) The mtn to compel discovery 66 is DEEMED MOOT.4) The Clerk of Court is directed to CLOSE this case. Signed by Honorable Sylvia H. Rambo on 04/03/13 (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANGEL SOTO,
Plaintiff
v.
THOMAS LESKOWSKY, et al.,
Defendants

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CIVIL NO. 1:CV-10-02366
(Judge Rambo)

MEMORANDUM
On November 16, 2010, Plaintiff Angel Soto (“Soto”), an inmate currently
confined at the State Correctional Institution in Dallas, Pennsylvania (“SCI-Dallas”),
filed a civil rights complaint pursuant to the provisions in 42 U.S.C. § 1983. (Doc. 11.) Named as Defendants are a number of prison officials and medical personnel at
SCI-Dallas.1 In his complaint, Soto alleges that on March 18, 2008, while working in
the mattress factory at SCI-Dallas, he sustained an injury to his right bicep muscle.
He further avers that after initially receiving treatment at the infirmary, the subsequent
treatment he received was unnecessarily delayed. This delay, Soto claims, caused his

Named as Defendants are Thomas Leskowsky, former Director of Corrections Health
Care Services; Patricia Ginocchetti, former Corrections Health Care Administrator; Kim Harris,
Nurse; Renee Waligun, Nurse; Bureau of Health Care Services; Richard Ellers, Director, Bureau of
Health Care Services (hereinafter “DOC Defendants”); and Stanley Bohinski, M.D., Medical
Director; and Don O’Brien, Physician Assistant (hereinafter “Medical Defendants”). After
considering a motion to dismiss filed in this case, the court dismissed as parties two previouslynamed Defendants, Jerome Walsh, Deputy Superintendent for Centralized Services, and Michael
Klopotoski, former Superintendent, by order dated September 27, 2011. (Doc. 33.)
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bicep injury to become inoperable and caused him to lose some functionality in his
arm. Soto also alleges the delay in treatment was the result of a policy or custom
within the Department of Corrections (“DOC”) to avoid surgical intervention for
budgetary reasons.
Before the court are two motions for summary judgment, filed by DOC
Defendants and Medical Defendants. (Docs. 56 & 60.) Also before the court is a
motion to compel discovery, filed by Soto after the motions for summary judgment
were filed by both sets of Defendants. (Doc. 66.) For the reasons set forth below, the
motions for summary judgment will be granted. Further, as a result of this
disposition, the motion to compel discovery will be deemed moot.

I.

Background
A.

Facts

In support of their motions for summary judgment, both sets of Defendants
have submitted statements of material facts. (Docs. 58 & 63.) Because Soto has
failed to file an opposing statement of material facts, the following facts submitted by
both sets of Defendants are deemed admitted. See M.D. Pa. L.R. 56.1.
In his complaint, Soto alleges that on March 18, 2008, sometime between 2:00
p.m. and 3:00 p.m., while working at SCI-Dallas’ mattress factory, he felt something
2

“‘pop’ in his arm and felt a burning sensation in his bicep muscle.” (Doc. 1-1 at 3;
Doc. 58 ¶ 9.) Soto reported his injury to the foreman and was permitted to seek
treatment at the infirmary immediately. (Doc. 58 ¶ 10.) Once he reached the medical
department, he was seen by Physician’s Assistant (“PA”) O’Brien for right arm pain.2
(Doc. 63 ¶ 14.) Soto reported to PA O’Brien that, “It’s been hurting for a while, but a
little while ago while carrying stuff at work I felt a tearing sensation and a lot of pain.”
(Id. ¶ 15.) Upon physical examination, PA O’Brien noted that there was a visible
defect (a small area of disruption of symmetry) in Soto’s right biceps proximally
(toward the shoulder) and medially (toward the center line), with associated
tenderness and minimal swelling. (Id. ¶ 16.) He was able to move his right arm
through the full range of motion at his elbow. (Id. ¶ 17.) Additionally, there was no
spasm and no nerve or blood vessel injury detected. (Id. ¶ 18.) PA O’Brien ordered
anti-inflammatory/pain relief medication, and that Soto be “laid in” for twenty-four
(24) hours, meaning that he was not to perform physical labor, participate in yard, or
go to the gym, in order to avoid further aggravation of an existing or likely injury.
(Id. ¶ 19.) PA O’Brien also directed Soto to return the next day for follow-up at
mandatory sick call. (Id. ¶ 20.) According to PA O’Brien, he appreciated that biceps
tendon injuries such as Soto’s typically respond well to conservative treatment, with
In his deposition taken for this case, Soto stated that he was seen by “a couple nurses
and I think there was a physician . . . .” (Doc. 58 ¶ 11.)
2

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some negligible loss of strength associated with such injuries regardless of treatment,
and it was his medical professional judgment that consultation with other specialized
providers was not medically necessary or critical at that time. (Id. ¶ 22.)
On March 19, 2008, Soto reported to the medical department at sick call, and
was seen by a PA Bunk.3 (Id. ¶ 24.) Soto complained to PA Bunk that his right
biceps were tender with a burning sensation, but he was still able to move his arm.
(Id. ¶ 25; Doc. 63-3 at 7.) Upon examination, PA Bunk noted that Soto had a visible
defect in his right biceps, and had tenderness with palpation. (Doc. 63 ¶ 26; Doc. 63-3
at 7.) He had full range of motion, no ecchymosis (a hemorrhagic area), and no open
wound. (Id. ¶ 27.) PA Bunk ordered continuation of anti-inflammatory/pain relief
medication, continued “lay in,” and an x-ray of Soto’s right upper extremity, with
attention specifically directed to findings potentially related to soft tissue/muscle
injury. (Id. ¶ 32.) She also noted that a physical therapy evaluation may be needed.
(Doc. 63-3 at 7.) PA Bunk also consulted with Dr. Bohinski and/or Stanley Stanish,
M.D., the Regional Medical Director,4 on that day. (Doc. 63 ¶ 24.) Dr. Bohinski
signed off on PA Bunk’s March 19, 2008 progress note, after reviewing PA O’Brien’s
order from the previous day, March 18, 2008. (Id. ¶¶ 28, 29.) After the consultation

3

PA Bunk is not a named Defendant in this action.

4

Dr. Stanish is not a named Defendant in this action.

4

between PA Bunk, Dr. Stanish, and Dr. Bohinski, it was decided that Soto’s injury
would be evaluated six (6) days later, on March 25, 2008, at which time the possibility
of consulting with other specialized provider(s) would be considered. (Id. ¶ 31.)
Further, a conservative course of treatment was continued. (Id. ¶ 33.) Specifically,
Dr. Bohinski, like PA O’Brien, appreciated that biceps tendon injuries such as Soto’s
typically respond well to conservative treatment, with some negligible loss of strength
associated with such injuries regardless of treatment, and it was the collective medical
professional judgment that consultation with other specialized providers was not
medically necessary or critical at that time. (Id. ¶ 34.)
On March 20, 2008, an x-ray of Soto’s right upper extremity was performed.
(Id. ¶ 37.) The x-ray was interpreted by a radiologist on March 24, 2008 to reveal the
following: “Radiographs of the right humerus demonstrates [sic] unremarkable soft
tissues with no fracture or deformities. The visualized bones are well intact and the
joint spaces are well preserved.” (Id. ¶¶ 38, 39.)
On March 25, 2008, Soto presented at mandatory sick call for follow-up, as was
previously directed, and was seen by PA Bunk. (Id. ¶ 40.) Soto reported continuing
pain and the presence of a “lump” in his right arm, but was in no apparent distress.
(Id. ¶ 41.) Upon examination, PA Bunk noted some edema (swelling) over the right
biceps muscle and tenderness with palpation. (Id. ¶ 42.) Further, Soto had slightly
5

decreased strength in his right arm, but full range of motion in most directions. (Id. ¶
43.) Dr. Stanish signed off on PA Bunk’s March 25, 2008 progress note. (Id. ¶ 44.)
On that same day, PA Bunk consulted with Dr. Stanish and/or Dr. Bohinski
regarding her assessment of Soto, and the status of his right biceps injury. (Id. ¶ 45.)
It was decided that a physical therapy consultation was needed. (Id. ¶ 46.) Soto was
called in to the dispensary and advised of the plan, and a physical therapy consult was
written at that time. (Id. ¶ 47.) Further, PA Bunk ordered continued “lay in” and
continuation of anti-inflammatory/pain relief medication. (Id. ¶ 48.)
On April 7, 2008, Soto underwent a physical therapy consultation. (Id. ¶ 49.)
The physical therapist noted a deformity of the right biceps and recorded the
flexibility in the elbow and shoulder. (Doc. 63-2 at 17.) He stated that Soto would
benefit from self-performance of exercises, including range of motion and lightweight
curls. (Doc. 63 ¶ 51; Doc. 63-2 at 17.) He also stated that Soto would be a good
surgical candidate if he met the appropriate criteria for such surgery. (Doc. 63 ¶ 52;
Doc. 63-2 at 17.) There is nothing in the record indicating what would be the
appropriate criteria.
On April 9, 2008, Dr. Bohinski ordered Soto to return to mandatory sick call to
discuss his physical therapy consultation. (Doc. 63 ¶ 53.) Soto presented to
mandatory sick call on April 10, 2008, and was seen by PA O’Brien. (Id. ¶ 54.) PA
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O’Brien reviewed Soto’s medical record, learning of the physical therapist’s
prescribed course of treatment, and recalls questioning whether Soto’s right biceps
injury was aggravated. (Id. ¶ 55.) Based on the updated information, PA O’Brien
ordered ongoing rest in the form of activity, housing and employment restrictions, and
a consultation with an orthopedic surgeon, based on the recent question by the
physical therapist as to whether Soto’s injury made him a candidate for surgical
treatment. (Id. ¶ 56.)
On April 16, 2008, Dr. Bohinski saw Soto for a condition unrelated to his right
biceps injury. (Id. ¶ 57.) At that time, Soto made no complaints to him regarding his
right biceps injury. (Id.)
Soto was taken to see outside orthopedic surgeons Michael C. Raklewicz, M.D.,
and James M. Mattucci, Jr., M.D., of Orthopedic Consultants of Wyoming Valley
(“OCWV”) on May 8 and 9, 2008, respectively. (Id. ¶ 58.) These appointments were
the first available dates on which Soto could be taken for an off-site medical
appointment, taking into account the calendars of SCI-Dallas, OCWV, and the
applicable security restrictions. (Id. ¶ 59.) In his deposition taken in connection with
this action, Soto conceded that Defendants Waligun and Harris, both Registered
Nurses at SCI-Dallas, did not have the authority to order his transport to an outside
physician for consultation. (Doc. 58 ¶ 23; Doc. 63-1 at 10, Soto Dep.)
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On May 8, 2008, Soto presented to Dr. Raklewicz as a 49-year old male who
previously had injured his right shoulder while lifting a mattress, and was complaining
of continued pain and weakness.5 (Doc. 63 ¶¶ 60, 61.) Upon examination, Soto was
found to have a proximal (toward the shoulder) biceps tendon rupture in his right arm.
(Id. ¶ 62.) In Dr. Raklewicz’s professional opinion as a general orthopedic surgeon,
no surgical repair of the injury was medically necessary, regardless of when Soto
presented to him in temporal relation to the occurrence of the injury. (Id. ¶ 63.) Dr.
Racklewicz based his opinion on Soto’s age and physical status, the nature of the
injury, and the risks of surgical intervention outweighing potential benefits. (Id. ¶ 64.)
He concluded that surgical intervention at any time would have been elective and
chiefly for cosmetic purposes.6 (Id. ¶ 65.) In his declaration, Dr. Raklewicz asserts
that, based on the considerations particular to Soto, he would not have performed
surgery even if requested to do so on an elective basis. (Id. ¶ 66.) He also states that
in his entire career to date, he cannot recall a patient in a situation similar to Soto
undergoing a surgical repair. (Id. ¶ 67.) Rather, patients similarly situated to Soto
In his declaration, Dr. Raklewicz indicates that the injury occurred on or about April 8,
2008. (See Doc. 63 ¶ 60.)
5

In an appendix filed in support of his opposition to the motions for summary judgment,
Soto submitted information on ruptured biceps tendon injuries from “Medical Disability
Guidelines,” available at http://mdguidelines.com/ruptured-biceps-tendon-traumatic-andnontraumatic. (Doc. 78, Ex. A.) In this information, it is explained that “[p]artial ruptures may be
treated conservatively or surgically.” (Doc. 78 at 7.)
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recover well without surgical intervention. (Id. ¶ 69.) Further, he concluded that there
was no risk of serious harm to Soto based on the fact that he was brought in for an
orthopedic evaluation on May 8, 2008, for an injury sustained on March 18, 2008.
(Id. ¶ 68.)
Despite his conclusions, Dr. Raklewicz referred Soto to his partner, Dr.
Mattucci, who is fellowship-trained in sports medicine, for a more specialized
evaluation of Soto’s right biceps injury, and “to see if he wants to repair this.” (Id. ¶
63; Doc. 63 ¶ 58 n.3; Doc. 63-4 at 5.)
On May 9, 2008, Dr. Mattucci evaluated Soto based on a possible
recommendation for surgical repair.7 (Doc. 63 ¶ 71; Doc. 63-2 at 22.) Upon
examination, Dr. Mattucci concluded that “[n]o surgery [was] needed (cosmetic
only).” (Doc. 63 ¶ 71; Doc. 63-2 at 22.) In his complaint, Soto avers that Dr.
Mattucci told him that he would lose anywhere from 5-10% of his overall strength of
his right arm. (Doc. 1-1 ¶ 19.)

Attached to their statement of material facts, Medical Defendants have submitted a
report, written in letter form and dated June 26, 2012, by Dr. Mattucci, noting his recollection of his
May 9, 2008 examination of Soto. (Doc. 63-5 at 2.) In a motion to strike filed by Soto, Soto
objected to this letter, arguing that it should be stricken because it was not in the form of a sworn
affidavit or an unsworn declaration. (Doc. 90 at 2.) In an order dated March 13, 2013, the court
denied Soto’s motion to strike with respect to Dr. Mattucci’s letter, but stated that it would rely upon
Dr. Mattucci’s documentation in Soto’s medical records rather than the letter. (Doc. 98 at 2-3.)
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On May 12, 2008, Soto presented to PA O’Brien for follow-up on his
orthopedic surgery consultations. (Doc. 63 ¶ 77.) PA O’Brien reviewed Soto’s right
biceps injury history to date, his ongoing restrictions, and instructed Soto to return to
the medical department as needed. (Id. ¶ 78.) PA O’Brien also ordered continuation
of physical restrictions and of anti-inflammatory/pain relief medication for six (6)
months. (Id. ¶ 79.) Dr. Bohinski signed off on PA O’Brien’s assessment, plan, and
orders on May 13, 2008. (Id. ¶ 80; Doc. 63-2 at 24.)
At Soto’s May 4, 2012 deposition taken in connection with this action, Soto
indicated that his right arm only hurts when it rains or when he overworks it, at which
time he needs ibuprofen to ease the pain. (Doc. 63 ¶ 83; Doc. 63-1 at 15, Soto Dep.)
He also stated that his right arm is improving with time. (Doc. 63 ¶ 84; Doc. 63-1 at
18.) He lifts weights with machines in the prison yard, but the medical department
prohibits him from lifting free weights in the gymnasium. (Doc. 63-1 at 18.)
In his complaint, in addition to his claims of deliberate indifference to his
medical needs, Soto also avers that a policy or custom exists within the DOC to avoid
performing necessary surgical procedures because of monetary implications. (Doc. 11; Doc. 58 ¶ 26.) DOC Defendants submit the following material facts relevant to this
allegation. The DOC’s medical services are provided by a contracted vendor, in this
case Corizon, who is solely responsible for implementing an appropriate course of
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treatment, including surgery where necessitated by the severity of injury. (Doc. 58 ¶
27.) The DOC policy that controls the process and procedure for ordering and
effectuating specialty consultations for inmates who have sustained an injury is
Section 1 of DOC Policy 13.2.1, “Access to Health Care Procedures Manual.” (Id. ¶
32; Doc. 59-4, Ex. D.) Under this policy, with respect to specialty consultations, the
contracted vendor is “required to complete the diagnostic process and begin initial
treatment within 60 days. However, when there is any clinical suspicion of a
potentially serious or life threatening illness, regardless of the number of diagnostic
tests that may be required, the process must be immediate.” (Doc. 58 ¶ 32; Doc. 59-4
at 3, Section A(6)(n)(1).) Further, with respect to off-site specialty consultations, the
policy provides, in pertinent part, that “[a]n inmate must be seen by the specialty care
provider within 60 days of the approval for off-site services with the exception of stat
orders for which the vendor will provide specialty care immediately.” (Doc. 58 ¶ 33;
Doc. 59-4 at 4, Section A(6)(n)(2)(b)(ii).) In this case, Soto’s May 8 and 9, 2008 offsite consultations occurred within the 60-day period after his March 18, 2008 injury,
as required by DOC policy. (Doc. 58 ¶¶ 33, 34.)
DOC Defendants also submit the following facts with respect to this DOC
policy and related to individual Defendants. None of the DOC Defendants possess the
authority to provide budgetary input for required medical services. (Id. ¶ 28.) As
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Registered Nurses, Defendants Waligun and Harris play no role in the ultimate
determination of what injuries are treated with surgical intervention, nor do they
possess the authority to deny surgical intervention for budgetary reasons. (Id.)
As Registered Nurse Supervisor, Defendant Leskowsky plays no role in the
ultimate determination of what injuries are treated with surgical intervention, nor does
he possess the authority to deny surgical intervention for budgetary reasons. (Id. ¶
29.)
As former DOC Health Care Administrator, Defendant Ginocchetti was
responsible for reviewing budgetary requests for infirmary staffing and supply needs,
but played no role in the negotiations for contracted health care services and had no
authority to deny surgical intervention for budgetary reasons. (Id. ¶ 30.)
As Director of the Bureau of Health Care Services, Defendant Ellers is involved
in the negotiations for contracted health care services with prospective vendors, but
plays no role in the review or submission of annual budgetary requirements for the
infirmary at SCI-Dallas, nor does he have authority to deny surgical intervention for
budgetary reasons. (Id. ¶ 31.)
B.

Procedural History

Soto filed his complaint on November 16, 2010. (Doc. 1-1.) After waiving
service of the complaint, (see Doc. 9), DOC Defendants filed a motion to dismiss the
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complaint on February 3, 2011, (Doc. 10). Medical Defendants also waived service of
the complaint, (see Docs. 13 & 14), and they filed a motion to dismiss the complaint
on March 8, 2011, (Doc. 19). After the motions were ripe, the court issued a
memorandum and order granting in part and denying in part the motions to dismiss
and directed all remaining Defendants to answer the complaint. (Doc. 33.)
Specifically, the court granted DOC Defendants’ motion to dismiss with respect to
Soto’s claims against Defendants Klopotoski and Walsh, and dismissed them as
parties. (Id.) The court denied both motions to dismiss as to Soto’s claims of
deliberate indifference against all remaining Defendants. (Id.) The court also denied
the motions to dismiss with respect to Soto’s claim that a policy or custom exists to
avoid the high cost of treating prisoners’ medical concerns by delaying surgeries and
treatment by outside specialists for so long that such treatments would not be possible.
(Id.)
Both sets of Defendants answered the complaint on October 20, 2011, (Doc.
34), and October 25, 2011, (Doc. 35), respectively. Thereafter, the court issued a case
management order setting forth deadlines for discovery and dispositive motions.
(Doc. 36.) After the court granted motions for extensions of those deadlines, filed by
both parties, (see Docs. 36, 41, 46, 51), both sets of Defendants filed the instant
motions for summary judgment, (Docs. 56 & 60.) After these motions were filed,
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Soto filed a motion to compel discovery. (Doc. 66.) Responsive and reply briefings
to the motions for summary judgment have been filed, (Docs. 82, 83, 86, 96), and the
instant motions for summary judgment are ripe for disposition.

II.

Standard of Review
Federal Rule of Civil Procedure 56 sets forth the standard and procedures for

the grant of summary judgment. Rule 56(a) provides, “[t]he court shall grant
summary judgment 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, 322-23 (1986). A factual
dispute is “material” if it might affect the outcome of the suit under the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
factual dispute is “genuine” only if there is a sufficient evidentiary basis that would
allow a reasonable fact-finder to return a verdict for the non-moving party. Id. When
evaluating a motion for summary judgment, a court “must view the facts in the light
most favorable to the non-moving party,” and draw all reasonable inferences in favor
of the same. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
The moving party bears the initial burden of demonstrating the absence of a
disputed issue of material fact. See Celotex, 477 U.S. at 324. “Once the moving party
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points to evidence demonstrating no issue of material fact exists, the non-moving
party has the duty to set forth specific facts showing that a genuine issue of material
fact exists and that a reasonable factfinder could rule in its favor.” Azur v. Chase
Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). The non-moving party
may not simply sit back and rest on the allegations in its complaint; instead, it must
“go beyond the pleadings and by [its] 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.” Celotex, 477 U.S. at 324 (internal quotations omitted); see
also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (citations omitted).
Summary judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23.
“‘Such affirmative evidence – regardless of whether it is direct or circumstantial –
must amount to more than a scintilla, but may amount to less (in the evaluation of the
court) than a preponderance.’” Saldana, 260 F.3d at 232 (quoting Williams v.
Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

III.

Discussion

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A plaintiff, in order to state a viable § 1983 claim, must plead two essential
elements: 1) that the conduct complained of was committed by a person acting under
color of state law, and 2) that said conduct deprived the plaintiff of a right, privilege,
or immunity secured by the Constitution and laws of the United States. West v.
Atkins, 487 U.S. 42, 48 (1988). A defendant’s conduct must have a close causal
connection to plaintiff’s injury in order for § 1983 liability to attach. Martinez v.
California, 444 U.S. 277, 285 (1980).8 A prerequisite for a viable civil rights claim is
that a defendant directed, or knew of and acquiesced in, the deprivation of a plaintiff’s
constitutional rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
On its face, § 1983 creates no exceptions to the liability it imposes, nor does it speak
of immunity for any individual who might deprive another of civil rights. See Buckley
v. Fitzsimmons, 509 U.S. 259, 268 (1993). Nevertheless, it is well-settled that certain
government officials possess immunity from § 1983 liability. Id.
In the instant case, both sets of Defendants argue summary judgment should be
granted in their favor because Soto has failed to state an Eighth Amendment claim for
deliberate indifference to his serious medical needs. In addition, both sets of
Defendants argue that summary judgment should be granted in favor of all Defendants
The Court in Martinez explained: “Although a § 1983 claim has been described as ‘a
species of tort liability,’ Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 988, 47 L. Ed. 2d 128
[(1976)], it is perfectly clear that not every injury in which a state official has played some part is
actionable under that statute.” Martinez, 444 U.S. at 285.
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because Soto has failed to identify a policy which he claims bars the surgical
treatment of inmate injuries for budgetary reasons.9 Finally, DOC Defendants argue
that the claims against the Bureau of Health Care Services (“BHCS”) should be
dismissed because it is not a “person” under Section 1983.10 The court will address
the first two arguments in turn.
A.

Deliberate Indifference to Serious Medical Needs

In his complaint, Soto alleges that after he initially received treatment in the
infirmary for his right biceps injury, his subsequent treatment with a physical therapist
and consultations with orthopedic surgeons were unnecessarily delayed, leading to the
inoperability of his injury and loss of functionality in his arm. (Doc. 1-1 at ¶¶ 7-15.)
Specifically with respect to the alleged delay, Soto asserts that “all of the defendants
had discussions among themselves about [his] condition but agreed to stay silent and
acquiesce in not recommending immediate surgery to repair [his] muscle.” (Doc. 1-1
¶ 24.) In their motions for summary judgment, Defendants contend that Soto has

Medical Defendants incorporated this argument in the section of their brief in support
of summary judgment pertaining to the Eighth Amendment claim. (Doc. 61 at 14.)
9

Soto names BHCS as a defendant. BHCS is an arm of the Pennsylvania DOC, a state
agency. The Eleventh Amendment bars claims for damages against the DOC. Weigher v. Prison
Health Services, 402 F. App’x 668, 670-71 (3d Cir. 2010). Therefore, because the DOC has not
waived its sovereign immunity, any claims for money damages against BHCS will be dismissed.
Had Soto overcome summary judgment, any claims for prospective relief against BHCS would have
remained viable.
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failed to state a claim of deliberate indifference relating to any delay in treatment.
Upon consideration, the court agrees with Defendants.
In order to establish an Eighth Amendment claim against a defendant for
inadequate medical care, a plaintiff must show “(i) a serious medical need, and (ii)
acts or omissions . . . that indicate deliberate indifference to that need.” Natale v.
Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003); see also Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has
been diagnosed by a physician as requiring treatment, or one that is so obvious that a
layperson would recognize the need for a doctor’s attention. Monmouth Cnty. Corr.
Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, “if
‘unnecessary and wanton infliction of pain’ results as a consequence of denial or delay
in the provision of adequate medical care, the medical need is of the serious nature
contemplated by the eighth amendment.” Id. (quoting Estelle v. Gamble, 429 U.S. 97,
103 (1976)). Therefore, deliberate indifference may be manifested by an intentional
refusal to provide medical care, delayed medical treatment for non-medical reasons, a
denial of prescribed medical treatment, or a denial of reasonable requests for treatment
that results in suffering or risk of injury. Durmer v. O’Carroll, 991 F.2d 64, 68 (3d
Cir. 1993); see also Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (quoting White
v. Napolean, 897 F.2d 103, 109 (3d Cir. 1990) (finding “deliberate indifference to
18

serious medical needs” standard is met when pain is intentionally inflicted on a
prisoner, where the denial of reasonable requests for medical treatment exposes an
inmate to undue suffering or the threat of tangible residual injury, or when, despite a
clear need for medical care, there is an intentional refusal to provide that care)).
The test for whether a prison official was deliberately indifferent is whether that
defendant “acted or failed to act despite his knowledge of a substantial risk of serious
harm.” Farmer v. Brennan, 511 U.S. 825, 841 (1994). “The official must both be
aware of the facts from which the inference can be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Id. at 837. Thus, a
complaint that a physician “has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the Eighth
Amendment . . . .” Estelle, 429 U.S. at 106.
Further, when an inmate is provided with medical care and the dispute is over
the adequacy of that care, an Eighth Amendment claim does not exist. Nottingham v.
Peoria, 709 F. Supp. 542, 547 (M.D. Pa. 1988). Mere disagreement as to the proper
medical treatment does not support an Eighth Amendment claim. Lanzaro, 834 F.2d
at 346. Accordingly, “[a] medical decision not to order an X-ray, or like measures,
does not represent cruel and unusual punishment.” Estelle, 429 U.S. at 107. Only
flagrantly egregious acts or omissions can violate the standard. Medical negligence
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alone cannot result in an Eighth Amendment violation, nor can any disagreements
over the professional judgment of a health care provider. White, 897 F.2d at 108-10;
see also Estelle, 429 U.S. at 105-06 (medical malpractice is insufficient basis upon
which to establish an Eighth Amendment violation); Rouse, 182 F.3d at 197 (“It is
well-settled that claims of negligence and medical malpractice, without some more
culpable state of mind, do not constitute ‘deliberate indifference.’”); Lanzaro, 834
F.2d at 346 (concluding that mere allegations of malpractice do not raise issues of
constitutional import). Even if a doctor’s judgment concerning the proper course of a
prisoner’s treatment ultimately is shown to be mistaken, at most what would be
proved is medical malpractice and not an Eighth Amendment violation. Estelle, 429
U.S. at 105-06; White, 897 F.3d at 110.
Turning to the instant case, Soto has received continuous care since injuring his
right biceps on March 18, 2008, all of which has been documented by various
Defendants. Initially, he was given a physical examination on the day of the incident,
prescribed pain relieving medications for his discomfort, and given various
restrictions on work and other physical activities. He was also instructed to follow up
at subsequent sick calls, which he attended and received further treatment, including
continuation of pain relief medication and physical restrictions. Further, two days
after the incident, an x-ray was performed, revealing no fracture or deformities. By
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March 25, 2008, one week after his injury, Soto was recommended for a physical
therapy consultation. Within two weeks of that date, Soto had a physical therapy
consultation, at which time the therapist indicated Soto would benefit from selfperformance of exercise and opined that Soto may be a surgical candidate if he met
appropriate criteria. Thereafter, Soto had several follow-up sick calls with medical
staff, who continued his pain relief medication and physical restrictions. In addition,
by April 10, 2008, PA O’Brien had ordered a consultation with an orthopedic surgeon.
Soto was provided with the first available dates for consultations with two orthopedic
surgeons, on May 8 and 9, 2008, respectively. There is nothing in the record
indicating that the delay between PA O’Brien’s April 10, 2008 order and the May 8,
2008 consultation was intentional on the part of any Defendant. Moreover, there is
nothing in the record indicating that Defendants’ conservative course of treatment
prescribed from the time of the incident through the May 2008 consultations was done
in order to intentionally inflict pain upon Soto or expose him to undue suffering or
threat of tangible residual injury. In fact, at the time Soto had his two orthopedic
consultations, both surgeons declared that surgery was not medically necessary, and
rather would be for cosmetic purposes only. Importantly, Dr. Raklewicz stated that no
surgical repair of the injury was medically necessary, regardless of when Soto
presented to him in temporal relation to the occurrence of the injury. In addition, Dr.
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Mattucci’s note from his May 9, 2008 consultation clearly states, “no surgery needed
(cosmetic only).” (Doc. 63-2 at 22.) Therefore, Soto’s assertion that these orthopedic
surgeons told him it was “too late” to get surgery by the time he was evaluated on
May 8 and 9, 2008, (see Doc. 1-1 ¶ 16), is clearly contradicted by the record. In sum,
this is not a case where surgery was recommended by a qualified medical
professional,11 and Defendants refused to schedule such surgery, or where Defendants
refused to treat Soto after a surgery was scheduled.
Having reviewed the record in this case, it is clear that Soto’s contention is not
that he was denied medical treatment, but rather that he is dissatisfied with the course
and scope of the treatment he did receive. Particularly, Soto is unhappy that prison
doctors decided that a conservative treatment involving pain relief medication and
physical restrictions followed by light physical therapy would be more appropriate
than immediate surgery. Soto, while unhappy with his course of treatment, was,
nonetheless, treated for his injury. Unfortunately, despite the medical intervention,
Soto continued to suffer from discomfort after his right biceps injury. Consequently,
Soto was dissatisfied with the course of treatment and subsequent results. However,
an inmate’s disagreement with medical treatment is insufficient to establish deliberate
indifference. Durmer, 991 F.2d at 69; Spruill, 372 F.3d at 235. Courts will not
A physical therapist is a non-medical doctor who is not qualified to recommend or
perform surgery. (Doc. 61 at 2 n.2.)
11

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second guess whether a particular course of treatment is adequate or proper. Parham
v. Johnson, 126 F.3d 454, 458 n.7 (3d Cir. 1997). Here, the court finds no evidence in
the record to suggest that any Defendant withheld or delayed treatment or was
otherwise deliberately indifferent to Soto’s medical needs. Accordingly, the motions
for summary judgment will be granted in favor of Defendants as to this claim.
B.

Policy or Custom

In his complaint, Soto alleges that Defendants instituted a policy or custom to
avoid the high cost of treating inmates’ medical concerns by delaying consultations
with outside physicians and specialists for so long that surgical interventions would
eventually become either impossible or unadvisable. In their motion for summary
judgment, Defendants argue that because Soto has failed to identify a policy that he
claims bars the surgical treatment of inmate injuries for budgetary reasons, summary
judgment should be granted in their favor.
Initially, the court agrees with Defendants that Soto has not identified a DOC
policy that provides for avoidance of surgical intervention for budgetary reasons. In
further support of their motions, Defendants have provided the court with DOC Policy
13.2.1, “Access to Health Care Procedures Manual,” which controls the process and
procedure for ordering and effectuating specialty consultations for inmates who have
sustained an injury. (Doc. 59-4, Ex. D.) The policy also covers on- and off-site
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specialty consultations for both urgent and non-urgent injuries. (See id.) Specifically,
with respect to off-site specialty consultations, the policy provides, in pertinent part,
that “[a]n inmate must be seen by the specialty care provider within 60 days of the
approval for off-site services with the exception of stat orders for which the vendor
will provide specialty care immediately.” (Doc. 58 ¶ 33; Doc. 59-4 at 4, Section
A(6)(n)(2)(b)(ii).) In Soto’s case, he was seen by two outside orthopedic surgeons on
May 8 and 9, 2008. As these consultations occurred within the 60-day period after his
March 18, 2008 injury, the court concludes that the applicable Defendants acted
appropriately pursuant to this policy, and therefore Soto has failed to state a claim in
this regard.
In his brief in opposition to the instant motions for summary judgment, Soto
concedes that he has been unable to articulate or identify a specific policy. (Doc. 82 at
10.) Instead, he seemingly argues that a practice or custom of delaying treatment for
budgetary reasons can be inferred based on the cases of inmates similarly-situated to
himself. (Id. at 10-11.) In support, he relies on the declarations of two inmates who
sustained injuries that eventually required orthopedic surgery. (Doc. 82-1 at 27-28,
Attach. H, M. Brown Decl.; Doc. 82-1 at 30-32, Attach. I, D. Mack Decl.) In the case
of declarant Marvin Brown, he sustained a “serious leg injury,” but did not have
surgery until three weeks later, apparently due to a lost x-ray. (Doc. 82-1 at 27-28.)
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In the case of declarant Derrick Mack, after sustaining a knee (patella tendon) injury,
he was allegedly mis-diagnosed at an outside (non-prison) hospital, and therefore his
surgery did not occur until ten (10) days after the date of the injury. (Doc. 82-1 at 3032.) The factual scenarios presented in both declarations cannot lead this court to
conclude that a custom of delaying surgical intervention for budgetary reasons exists.
Importantly, both declarants did, in fact, have surgery to repair their injuries. Any
perceptible delay did not lead to the inability to perform these surgeries, according to
the declarants. As such, the court fails to see how Soto could support his argument
here with the facts from these cases. Stated otherwise, these declarations, which
involve scenarios factually dissimilar to the case at bar, do not create a genuine issue
of fact as to whether such a custom exists.12 Therefore, the motions for summary
judgment will be granted in favor of Defendants as to this claim.

IV.

Conclusion

Without leave to file, Soto also submitted a supplemental brief after Defendants filed
their reply brief, containing another declaration of an inmate who sustained a shoulder injury and,
after receiving treatment, was allegedly told by a prison medical staff member that an operation
would take 12 to 18 months to schedule. (Doc. 86 at 8.) This improperly-filed supplement does not
dissuade the court from its conclusions herein.
12

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For the reasons set forth herein, summary judgment will be granted in favor of
all Defendants in this case. Due to this ruling, Soto’s subsequent motion to compel
discovery will be deemed moot.
An appropriate order will issue.

s/Sylvia H. Rambo
United States District Judge
Dated: April 3, 2013.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANGEL SOTO,
Plaintiff
v.
THOMAS LESKOWSKY, et al.,
Defendants

:
:
:
:
:
:
:
:
:

CIVIL NO. 1:CV-10-02366
(Judge Rambo)

ORDER
In accordance with the accompanying memorandum, IT IS HEREBY
ORDERED THAT:
1) Defendants’ motions for summary judgment (Docs. 56 & 60) are
GRANTED in favor of Defendants.
2) The Clerk of Court is directed to ENTER judgment in favor of Defendants.
3) The motion to compel discovery (Doc. 66) is DEEMED MOOT.
4) The Clerk of Court is directed to CLOSE this case.

s/Sylvia H. Rambo
United States District Judge
Dated: April 3, 2013.