Rock v. Asure et al

Filing 181

MEMORANDUM re MOTION for Summary Judgment 138 , Motion for Summary Judgment 162 and REPORT AND RECOMMENDATIONS 173 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 05/13/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM ROCK,
Plaintiff
v.
DONNA ASURE, et al.,
Defendants

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CIVIL NO. 1:11-1839
(Judge Rambo)
(Magistrate Judge Schwab)

MEMORANDUM
Before the court is a March 6, 2014 report and recommendation of
Magistrate Judge Schwab (Doc. 173) in which she recommended that the motion for
summary judgment filed by Defendants James, Huertas, Reiss and Wilson (“the
Medical Defendants”) for summary judgment be granted; that the motion for summary
judgment filed by the non-medical defendants Asure, Cuth, and McFarland be
granted; that Plaintiff William Rock’s motion for leave to file a third amended
complaint (Doc. 141) be denied as moot; and that Rock’s motion to file a third
amended complaint (Doc. 153) be denied.
I.

Factual Background
Rock filed an action pursuant to 42 U.S.C. § 1983 alleging violations of

his Eighth Amendment right to be free from cruel and unusual punishment. His claim
is that the defendants were deliberately indifferent to a serious medical condition.
On September 29, 2009, Rock was sentenced to serve, in a state
correctional institution, a sentence of not less than 66 months nor more than 144
months (Doc. 108). Prior to being transferred to a state correctional institution, Rock
was in custody of the Monroe County Correctional Facility (MCCF). On October 11,

2009, while at MCCF, Rock fell and ruptured the ulnar collateral ligament in his left
thumb. (Id.) He was taken to the emergency department of the Pocono Medical
Center that same day. His discharge instructions recommended a consult with an
orthopedic or hand specialist “later that week.” (Doc. 139, Ex. A.) He was also
prescribed Tylenol with codeine #3. (Id.)
On October 12, 2009, Rock was seen by Prime Care Medical, Inc. at
MCCF and a consult with a hand specialist was ordered. That appointment was
scheduled for November 4, 2009. (Doc. 139, Ex. B.) That appointment was
rescheduled to November 11, 2009. In the meantime, Rock was transferred from
MCCF to the State Correctional Institution at Graterford. Upon being transferred to
the state institution, the November 11, 2009 consult was canceled.
Between December 18, 2009 and August 9, 2010, Rock met with several
doctors who acknowledged his need to see a hand specialist. On August 9, 2010,
Rock has surgery on his hand. (Doc. 169.) The ligament was not repairable. A graft
had to be harvested.
Rock’s claims against the Medical Defendants are that (1) Wilson
Huertas and Reiss acted with deliberate indifference to his serious medical needs by
failing to promptly schedule a specialist appointment.; (2) James was deliberately
indifferent by failing to note on the Transfer Health Information form of a need for a
specialist consult for his thumb; and (3) Wilson was deliberately indifferent because
he disregarded the prescription for Tylenol #3 prescribed by Dr. Liegner of Pocono
Medical Center. Rock’s claim against the Non-medical Defendants is that his Eighth
Amendment rights were violated by allowing him to be transferred from MCCF to a
state correctional institution before he could consult with a hand specialist.

II.

Discussion
A. Claims against Wilson, Huertas & Reiss
There is no question that Rock had a serious medical condition. The

issue to be resolved is whether Defendants Wilson, Huertas and Reiss were
deliberately indifferent to that serious medical condition. The magistrate judge noted
that Wilson ordered a consult with a specialist the day after the trauma. The fact that
the consult was set for November 4, 2009, and then rescheduled to November 11,
2009, does not show that these dates were scheduled by any other reason than
scheduling concerns. There is no evidence that these Defendants “acted or failed to
act despite his knowledge of a substantial risk of serious harm.” Farmer v. Brennan,
511 U.S. 825, 841 (1970).
The November 11, 2009 consult was never met because Rock was
transferred from MCCF to SCI Graterford, a transfer over which the county had no
authority to counter. The fact is undisputed that Rock received medical treatment at
MCCF, a follow-up consult was scheduled, and a specialist was contacted on his
behalf. (Report and Recommendation at p. 21.) There is no deliberate indifference
shown by these Defendants.
B. Claims Against James
Rock claims that James failed to include information about his hand
injury on the Transfer Health Information Form. He alleges that this failure caused
his consultation with a specialist and surgery to be further delayed. As the magistrate
judge noted, Rock has failed to adduce any evidence demonstrating that the failure
was egregious or amounted to anything other than mere negligence.
C. Claims against Wilson
Rock claims that Wilson was deliberately indifferent by ignoring his pain
management needs. When Rock was discharged from the emergency room, Dr.
Liegner prescribed Tylenol #3 at a rate of one to two tablets every four hours as

needed. At the prison, Dr. Wilson wrote a new prescription for Tylenol #3 at the rate
of 1 tablet every four hours. This change was to meet the medical distribution
schedule at this prison. It appears that Rock never complained that the changed
prescription was not adequately treating his pain. As the magistrate judge noted, even
if Rock had complained, his complaint would amount to “nothing more than a mere
disagreement with Wilson’s medical judgment.” (Doc. 173 at p. 23.)
D. Claim Against Non-Medical Defendants
Rock alleges that Defendants Asure, Cuth, and McFarland violated his
Eighth Amendment rights by allowing his transfer from MCCF to SCI Graterford
before his scheduled appointment with a hand specialist and that this action
constituted deliberate indifference which resulted in a delay of his ultimate surgery as
well as having to undergo a more serious surgery. Rock has not cited any law or
regulation that these Non-Medical Defendants could have interfered or prevented his
transfer from a county facility to a state correctional institution.
The magistrate judge disavowed Rock’s claim of deliberate indifference
to his serious medical needs for the following reasons: (1) Cuth and McFarland were
unaware of Rock’s medical claims until he filed a grievance; (2) Asure never had
knowledge of Rock’s medical needs because Rock could not complete his grievance
appeal process; (3) Rock was under the care of medical experts all during this time at
MCCF; and (4) there is no evidence that his transfer to SCI Graterford was wanton or
malicious. These findings are supported by the record.

III.

Conclusion
There has been no violation of Rock’s Eighth Amendment rights and this

is supported by the record before this court. Rock’s motions to amend his second
amended complaint will be denied. An appropriate order will be issued.
s/Sylvia H. Rambo
United States District Judge
Dated: May 13, 2014.