Hampton v. Wetzel
Filing
98
MEMORANDUM (Order to follow as separate docket entry) re: 71 MOTION for Summary Judgment filed by McHenry, W. Williams, Steven Glunt, John E. Wetzel, Harpster, 73 MOTION for Summary Judgment filed by Julie Kopak, K. Bernard. (See memo for complete details.)Signed by Chief Judge Christopher C. Conner on 3/10/17. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN HAMPTON,
Plaintiff
v.
JOHN WETZEL, et al.,
Defendants
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CIVIL ACTION NO. 1:14-CV-1367
(Chief Judge Conner)
MEMORANDUM
Plaintiff Shawn Hampton (“Hampton”), an inmate currently confined at
the Rockview State Correctional Institution in Bellefonte, Pennsylvania (“SCIRockview”), commenced this action on July 17, 2014 pursuant to 42 U.S.C. § 1983.
(Doc. 1). The matter is proceeding via an amended complaint, wherein Hampton
alleges that defendants‟ failure to provide him adequate medical services violated
his rights under the First, Eighth, and Fourteenth Amendments, the Americans
with Disabilities Act (“ADA”), and the Rehabilitation Act. (Doc. 13). Remaining
defendants are Wetzel, Williams, Harpster, Glunt and McHenry (collectively,
“Commonwealth defendants”), and Bernard and Koltay, physician assistants at
SCI-Rockview.1
1
By memorandum and order dated March 2, 2016, the court dismissed all
claims against defendant Corizon Health Care Service. (Docs. 63-64). The only
remaining claim against defendants Bernard and Koltay is an Eighth Amendment
inadequate medical care claim for discontinuing Hampton‟s prescription for
Tylenol and failing to re-issue his back and wrist braces after they were confiscated.
(Id.) The present motion filed on behalf of the Commonwealth defendants is their
first dispositive motion.
Before the court is a motion (Doc. 71) for summary judgment pursuant to
Federal Rule of Civil Procedure 56 by the Commonwealth defendants, and a motion
(Doc. 73) for summary judgment pursuant to Federal Rule of Civil Procedure 56 by
defendants Bernard and Koltay. For the reasons set forth below, the court will
grant both motions.
I.
Legal Standard
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of
proof tasks the non-moving party to come forth with “affirmative evidence, beyond
the allegations of the pleadings,” in support of its right to relief. Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be
adequate, as a matter of law, to sustain a judgment in favor of the non-moving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986). Only if this
threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
2
II.
Statement of Material Facts2
Hampton has been incarcerated at SCI-Rockview since May 2007. (Doc. 72
¶ 1; Doc. 89 ¶ 1). Hampton has ostensibly suffered from low back pain for several
years. (Doc. 72 ¶ 2; Doc. 89 ¶ 2).
Hampton first presented to sick call with complaints of back pain on May 6,
2010. (Doc. 74 ¶ 4). On examination, the medical provider noted that Hampton had
full strength and found no non-anatomical tenderness. (Id.) The medical provider
ordered an x-ray of the lumbar spine. (Id.) The x-ray revealed mild degenerative
disc disease at the lumbosacral joint. (Id.)
On June 23, 2010, Hampton presented to sick call with complaints of left wrist
pain after scooping oatmeal. (Id. at ¶ 5). He reported that the pain was exacerbated
by dorsi-flexion exercises, and ibuprofen did not relieve his pain. (Id.) Examination
revealed full range of motion and strength. (Id.) The medical provider diagnosed
2
Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.
A party opposing a motion for summary judgment must file a separate statement
of material facts, responding to the numbered paragraphs set forth in the moving
party‟s statement and identifying genuine issues for trial. See id. Unless otherwise
noted, the factual background herein derives from the parties‟ Rule 56.1 statements
of material facts. (See Docs. 72, 74, 89). Hampton did not file a response to Bernard
and Koltay‟s statement of material facts. In his brief (Doc. 82) in opposition to their
Rule 56 motion, Hampton includes his own factual assertions, but his enumeration
is not responsive to Bernard and Koltay‟s statement of facts. The court accordingly
deems the facts set forth by Bernard and Koltay to be undisputed. See LOCAL RULE
OF COURT 56.1.
To the extent the parties‟ statements are undisputed or supported by
uncontroverted record evidence, the court cites directly to the statements of
material facts.
3
Hampton with left wrist pain and possible tendonitis and recommended that he
continue taking non-steroidal anti-inflammatory medications (“NSAIDs”). (Id.)
Hampton returned to sick call on July 12, 2010, again complaining of left wrist pain.
(Id. ¶ 6). During this visit, Hampton treated with physician assistant (“PA”) Julie
Pensiero. (Id.) Hampton reported that his pain improved when he stopped the
repetitive job of scooping and began wrapping his wrist with an ACE bandage. (Id.)
An examination of Hampton‟s wrist revealed full range of motion and full strength.
(Id.) PA Pensiero diagnosed left wrist pain with possible overuse syndrome and
recommended that Hampton continue using the ACE wrap. (Id.)
On August 24, 2010, Hampton presented to sick call requesting a bottom
bunk due to low back pain. (Id. ¶ 7). He denied a recent injury to his back. (Id.) He
stated that the only prior injuries to his back occurred when he fell down a flight of
stairs when he was ten years old and thirteen years old. (Id.) Hampton reported
that he was taking Motrin for pain, which he purchased from the commissary. (Id.)
PA Pensiero examined Hampton and noted that he was able to ambulate without
difficulty, exhibited no muscle spasms, had full range of motion and strength, and
was able to move without pain. (Id.) PA Pensiero found no indication for a bottom
bunk. (Id.) PA Pensiero ordered Hampton a back brace and encouraged him to
perform stretching and range of motion exercises. (See id.) Hampton received the
back brace on September 1, 2010. (Id. ¶ 8).
Hampton next complained of back pain on February 1, 2011, after a reported
fall. (Id. ¶ 9). Nurse B. Dunlap treated Hampton, and noted that examination was
unremarkable and Hampton did not appear to be in distress. (Id.) Nurse Dunlap
4
advised Hampton to rest and gave him Motrin for pain. (Id.) Shortly thereafter, on
February 24, 2011, while on a hunger strike, Hampton was evaluated by Nurse
Robert Somich. (Id. ¶ 10). Hampton told Nurse Somich: “All I want is bottom
bunk.” (Id.) He reported that he would eat once given a bottom bunk restriction.
(Id.) Hampton was also seen by a PA, who reviewed his most recent x-ray and
observed that it revealed only mild degenerative disc disease. (Id.) Therefore, the
PA did not believe that a bottom bunk restriction was medically necessary. (Id.)
Although the record on this point is unclear, Hampton did receive a bottom bunk
restriction at some point after the February 2011 visit. (See Doc. 74 ¶ 11; see also
Doc. 72 ¶ 4; Doc. 89 ¶ 4).
In September 2012, Hampton requested to have his activity restrictions lifted
so that he could go to the gym to exercise and adhere to his treatment program.
(Doc. 72 ¶ 3; Doc. 89 ¶ 3). The Commonwealth defendants aver that medical staff
offered to lift Hampton‟s physical restrictions, but he declined the offer because he
did not want to lose his bottom bunk status and extra pillows. (See Doc. 72 ¶ 4; Doc.
89 ¶ 4). Hampton explains that he did not want to sign off on all restrictions because
“ALL of them were not the problem.” (Doc. 89 ¶ 4).
Hampton next presented to sick call on January 28, 2013 and was seen by
defendant Bernard. (Doc. 74 ¶ 11). Hampton requested to sign up for “rehab gym.”
(Id.) Bernard advised Hampton that if his activity restrictions were lifted, his
bottom bunk restriction and double pillow order would likely be discontinued. (Id.)
Hampton did not want to change his housing accommodations, and his restrictions
5
remained the same. (Id.) On April 17, 2013, medical staff issued Hampton his first
back brace, with a review date of October 17, 2013. (Doc. 72 ¶ 5; Doc. 89 ¶ 5).
On September 4, 2013, Hampton submitted a sick call for a replacement back
brace and treated with defendant Koltay. (Doc. 74 ¶ 12). Hampton reported that
the brace provided him with pain relief and that, with the brace, he had less need
for NSAIDs. (Id.) After examination, Koltay ordered Hampton a new back brace.
(Id.) Staff issued a replacement back brace to Hampton on September 18, 2013,
with a reevaluation date of March 18, 2014. (Doc. 72 ¶ 6; Doc. 89 ¶ 6).
On October 7, 2013, Hampton filed grievance number 480803, wherein he
complained that his restrictions were not up to date in the prison computer. (Doc.
72 ¶ 7; Doc. 89 ¶ 7). Hampton requested that his restrictions be updated to include
no repetitive motion so that his work supervisors would know which duties he was
able to perform. (Id.) The grievance officer denied Hampton‟s initial grievance and
found that the restrictions noted in the computer were correct and no doctor ever
ordered “no repetitive motion” of the hands. (Doc. 72-1 at 347). Hampton appealed
to the Facility Manager, seeking compensation for pain suffered “when forced to
do things that cause [him] pain.” (Doc. 72 ¶ 8; Doc. 89 ¶ 8; Doc. 72-1 at 346). The
Facility Manager denied the appeal. (Doc. 72-1 at 345). The institution‟s findings
were thereafter upheld on final review. (Doc. 72-1 at 342-44).
On October 11, 2013, Hampton returned to sick call and was again seen by
defendant Koltay. (Doc. 74 ¶ 13). Hampton requested a clarification regarding his
medical restrictions. (Id.) He reported that corrections officers told him that he
was not allowed to have carpal tunnel braces. (Id.) Hampton therefore wanted to
6
have this equipment verified. (Id.) Koltay wrote an order with an instruction to
“confirm [that] carpal tunnel braces are included in patient‟s equipment list.” (Id.)
On November 6, 2013, Hampton was seen by defendant Bernard in sick call.
(Doc. 74 ¶ 14; see Doc. 72 ¶ 9; Doc. 89 ¶ 9; Doc. 72-1 at 72). Hampton complained that
he was unhappy with his new back brace because it was not tight enough. (Doc. 74
¶ 14). Upon examination, Bernard noted that Hampton was not wearing the brace
correctly and instructed him how to use the brace properly. (Id.; see Doc. 72 ¶ 9;
Doc. 89 ¶ 9; Doc. 72-1 at 72). Bernard noted that there was no need to replace the
brace at that time. (Doc. 74 ¶ 14). Hampton contends that he was not wearing the
brace incorrectly. (Doc. 89 ¶ 9). On November 19, 2013, defendant Koltay wrote a
renewed instruction reminding the nurses to include the carpal tunnel braces and
back brace in Hampton‟s equipment list. (Doc. 74 ¶ 15).
Defendant Koltay next saw Hampton on January 21, 2014, for complaints of
pain due to carpal tunnel syndrome. (Id. ¶ 16). Hampton stated that he recently
started a new job involving repetitive movement. (Id.) He further stated that he
was never issued carpal tunnel braces. (Id.) Hampton reported bilateral pain that
was greater in his dominant right wrist. (Id.) Koltay noted no recent complaints of
carpal tunnel syndrome and ordered a trial of wrist splints. (Id.; see Doc. 72 ¶ 10;
Doc. 89 ¶ 10). Koltay also updated Hampton‟s medical restrictions to reflect that
Hampton should avoid activities with repetitive motion. (Id.) On February 7, 2014,
wrist splints were issued to Hampton, with a review date of August 7, 2014. (Doc. 72
¶ 11; Doc. 89 ¶ 11).
7
On February 18, 2014, Hampton was placed in the RHU at SCI-Rockview.
(Doc. 72 ¶ 12; Doc. 89 ¶ 12). Prior to entering the RHU, Hampton was subjected to a
strip search. (Doc. 72 ¶ 13; Doc. 89 ¶ 13). During the search, Hampton gave his back
brace to correctional officer Montgomery under the supervision of Lieutenant
Smith. (Doc. 72 ¶ 14; Doc. 89 ¶ 14). Defendant McHenry was not present for
Hampton‟s search on February 18, 2014. (Doc. 72 ¶ 15; Doc. 78 ¶ 15). The parties
dispute whether defendant McHenry was ever in possession of Hampton‟s back
brace and wrist splints. (Doc. 72 ¶ 16; Doc. 78 ¶ 16). According to Hampton, his
back and wrist braces were confiscated by prison staff pursuant to DOC policy.
(See Doc. 74 ¶ 17).
The parties agree that Hampton packed his own property in preparation for
transfer to the State Correctional Institution at Benner (“SCI-Benner”). (Doc. 72
¶ 17; Doc. 89 ¶ 17). On February 25, 2014, Hampton was transferred to the RHU at
SCI-Benner and remained there until he was transferred back to SCI-Rockview on
March 14, 2014. (Doc. 72 ¶ 18; Doc. 89 ¶ 18). Hampton‟s property was inventoried at
SCI-Rockview on March 18, 2014. (Doc. 72 ¶ 19; Doc. 89 ¶ 19). Hampton contends
that his belongings were sent to the property room because he refused to downsize
his property within a time frame ordered by defendant McHenry. (Doc. 89 ¶ 19).
Hampton first noticed that he did not have his back brace and wrist splints
during the March 18, 2014 inventory. (Doc. 72 ¶ 20; Doc. 89 ¶ 20). He immediately
filed grievance number 504282 complaining that McHenry had confiscated and
destroyed his braces and failed to provide him with a notice of confiscation form.
8
(Doc. 72 ¶ 21; Doc. 74 ¶ 18; Doc. 89 ¶ 21). Hampton also requested replacement
braces. (Doc. 72 ¶ 21; Doc. 89 ¶ 21).
The Department of Corrections (“DOC”) received the grievance on April
4, 2014. (Doc. 72 ¶ 21; Doc. 89 ¶ 21). The Grievance Coordinator rejected same as
untimely and for failure to provide required documentation. (Doc. 72 ¶ 22; Doc. 89
¶ 22). Hampton appealed to the Facility Manager and then to the Secretary‟s Office
of Inmate Grievances and Appeals, and both upheld the Grievance Coordinator‟s
response. (Doc. 72 ¶ 23; Doc. 89 ¶ 23). The Facility Manager noted that Hampton
failed to resubmit his appeal with proper documentation. (Doc. 72 ¶ 23). Hampton
responds that he could not afford to make required copies. (Doc. 89 ¶ 23).
Hampton failed to show up for sick call on March 20, 2014. (Doc. 72 ¶ 24; Doc.
89 ¶ 24). Hampton contends that he did not personally put in a sick call slip on this
date; rather, a nurse submitted the call on his behalf after he suffered an asthma
attack. (Doc. 89 ¶ 24). Hampton explains that he suffered an asthma attack, he was
provided an inhaler which resolved his problem, and he was “fine.” (Id.) Thus,
Hampton did not show up for the scheduled sick call because he did not want to
“waste the PA[‟]s time with an under control issue.” (Id.)
On May 8, 2014, Hampton reported to defendant Koltay that his medical
equipment was confiscated when he was in the RHU. (Doc. 74 ¶ 19). Hampton
requested a replacement back brace and wrist splints. (Doc. 72 ¶ 25; Doc. 89 ¶ 25).
Koltay explained that, pursuant to DOC policy, she could not provide him with new
braces unless he had a confiscation slip. (Doc. 74 ¶ 19). Koltay advised Hampton to
contact the security office for a confiscated items receipt to obtain replacement
9
braces. (Id.) Hampton states that this was not the first occasion that he requested a
replacement for his back brace and wrist splints. (Doc. 89 ¶ 25).
On May 19, 2014, Dr. Michael Ekizian wrote a progress note in response to
Hampton‟s request for the return of his back brace. (Doc. 74 ¶ 20). Dr. Ekizian did
not see Hampton but did review his chart. (Id.) His review indicated complaints
of chronic lumbago and degenerative disc disease and that Hampton was taking
NSAIDs. (Id.) Dr. Ekizian concluded that Hampton should “continue back brace
for now.” (Id.) He noted that Hampton‟s “significant [complaints of] back pain
were out of proportion to [the] objective findings.” (Id.)
Dr. Ekizian evaluated Hampton on June 3, 2014 for complaints of lumbago.
(Doc. 72 ¶ 26; Doc. 74 ¶ 21; Doc. 89 ¶ 26). Dr. Ekizian noted that Hampton did not
want medication and was already using a back brace. (Doc. 74 ¶ 21). He observed
that previous lumbar spine x-rays revealed only minimal findings of degenerative
disc disease and that Hampton reported muscle spasms. (Id.) Dr. Ekizian ordered
a back brace, prescribed Tylenol and NSAIDs, and recommended physical therapy.
(Id.; see also Doc. 72 ¶ 26; Doc. 89 ¶ 26). Dr. Ekizian noted that Hampton‟s previous
brace was confiscated during his transfer to the RHU. (Doc. 74 ¶ 21). Dr. Ekizian
also submitted a consultation request for a physical therapy evaluation. (Id. ¶ 22).
Therein, Dr. Ekizian explained that Hampton suffered from mild degenerative disc
disease of the lumbosacral spine with muscle spasms and was using a back brace
for chronic pain. (Id.) Dr. Ekizian‟s order was reviewed and approved for physical
therapy the following day. (Doc. 72 ¶ 28). Hampton admits that he received the
Tylenol and back brace ordered by Dr. Ekizian. (Doc. 89 ¶ 28). The parties dispute
10
whether Hampton spoke to Dr. Ekizian about wrist pain or wrist splints during the
June 3 visit. (Doc. 72 ¶ 27; Doc. 89 ¶ 27).
On June 23, 2014, Hampton was seen by defendant Bernard for complaints of
migraines. (Doc. 74 ¶ 23). Hampton requested that Bernard specially designate his
Tylenol as “keep on person” in lieu of compelling Hampton to go to the pill line.
(Id.) Bernard informed Hampton that, because he was on the D mental health
roster, he was not permitted to have any medications as “keep on person” with the
exception of inhalers. (Id.) The progress note does not indicate that Hampton
requested a prescription for Tylenol or that Bernard instructed him to purchase
Tylenol from the commissary. (Id.)
Hampton was seen by Bernard for a refill of his inhalers on July 19, 2014, at
which time he inquired about his back brace and wrist splints. (Doc. 72 ¶ 29; Doc.
74 ¶ 24; Doc. 89 ¶ 29). Hampton reported that he did not have his braces for a few
months, and Bernard observed that Hampton had been without braces since May
2014. (Doc. 74 ¶ 24). The parties dispute whether Hampton told Bernard he was
able to use a typewriter and write letters. (See Doc. 72 ¶ 30; Doc. 89 ¶ 30). Bernard
advised Hampton that there was no indication for wrist splints and encouraged him
to use Tylenol. (Doc. 72 ¶ 31; Doc. 74 ¶ 24; Doc. 89 ¶ 31). She noted that Hampton
did not complain of symptoms related to carpal tunnel. (Doc. 74 ¶ 24). She also
noted that a physical therapy consultation was pending and she would wait for the
evaluation before making any determinations regarding a back brace. (Id.; see Doc.
72 ¶ 31; Doc. 89 ¶ 31). Hampton contends that Bernard discontinued his Tylenol
prescription during this visit. (Doc. 89 ¶ 31).
11
Hampton treated with a physical therapist on July 30, 2014. (Doc. 74 ¶ 25; see
Doc. 72 ¶ 32; Doc. 89 ¶ 32). The physical therapist noted that Hampton experienced
right lower back pain that sometimes traveled to the right scapular region. (Doc. 74
¶ 25). Hampton reported suffering from this pain for twelve to thirteen years. (Id.)
He did not report wrist pain during this visit. (Id.) No recommendation was made
for back or wrist braces, and no follow-up was recommended. (Id.)
The physical therapist also instructed Hampton about a low back flexibility
program and provided him with a rehabilitative exercise program. (Id.; Doc. 72 ¶
32; Doc. 89 ¶ 32). Hampton asserts that he was interested in “any” program that
would help his back and wrist pain. (Doc. 89 ¶ 32). The order for the rehabilitative
exercise program stated: “An inmate involved in this program may not participate
in Varsity Sports, Intramural Activities, Indoor Weights, over 40 gym sessions or
over 50 gym sessions.” (Doc. 72 ¶ 33; Doc. 89 ¶ 33; Doc. 72-1 at 38).
On September 22, 2014, defendant Koltay treated Hampton for complaints
of bilateral wrist pain and headaches. (Doc. 72 34, Doc. 74 ¶ 26; Doc. 89 ¶ 34). She
noted a history of carpal tunnel syndrome and that Hampton‟s symptoms were
aggravated by recurrent, repetitive motion. (Doc. 74 ¶ 26). Hampton reported no
relief from non-aspirin medication available at commissary. (Id.) Koltay issued an
order for bilateral wrist splits and a trial of Tegretol for pain relief. (Id.; Doc. 72 ¶
34; Doc. 89 ¶ 34). Koltay otherwise continued Hampton‟s current restrictions and
advised him to follow-up as needed. (Doc. 72 ¶ 34; Doc. 89 ¶ 34). Hampton would
continue taking Tegretol through June 3, 2015. (Doc. 74 ¶ 26).
12
Hampton again treated with defendant Koltay for complaints of headaches
on October 20, 2014. (Id. ¶ 27). He did not report any other pain to Koltay at that
time. (Id.) Koltay continued Hampton‟s Tegretol prescription for pain. (Id.) On
December 3, 2014, defendant Bernard advised Hampton to treat his headaches with
Tylenol, which he could obtain from the commissary. (Id. ¶ 28).
On February 26, 2015, Hampton saw PA Hans Reisinger for complaints of
headaches. (Doc. 72 ¶ 35; Doc. 89 ¶ 35; Doc. 72-1 at 45; see Doc. 74 ¶ 29). Hampton
requested a review of his restrictions and documentation of the wrist and back
brace orders from the medical department. (Doc. 72 ¶ 35; Doc. 89 ¶ 35). Hampton
reported that he was taking Tegretol and Tylenol for his headaches, and Reisinger
added Excedrin PM to his regimen. (Doc. 74 ¶ 29). The February 26, 2015 visit was
the first time Hampton was seen in medical for back complaints since July 30, 2014.
(Doc. 72 ¶ 36; Doc. 89 ¶ 36).
On April 19, 2015, Hampton submitted an Inmate Request to Staff Form
requesting treatment for back and wrist issues. (Doc. 72 ¶ 37; Doc. 89 ¶ 37). In
response, Hampton was scheduled to see Dr. Philip Scaglione, with whom he
treated on April 27, 2015. (Doc. 72 ¶ 39; Doc. 89 ¶ 39). Dr. Scaglione ordered a
lumbosacral brace, a double mattress and double pillows, and physical therapy
with neck and back exercises. (Doc. 72 ¶ 39; Doc. 89 ¶ 39).
The parties disagree concerning a number of DOC policies and practices.
According to the Commonwealth defendants, if an over-the-counter medication is
available through commissary, an inmate must purchase the medicine through
commissary. (Doc. 72 ¶ 45). Hampton counters that if an over-the-counter
13
medication is available through commissary, an inmate “may” purchase the
medication through commissary. (Doc. 89 ¶ 45). Hampton further avers that
Tylenol is not available for purchase through commissary. (Id.)
The Commonwealth defendants state that defendants Koltay and Bernard
were employed by outside vendors pursuant to a contract with the DOC. (Doc. 72
¶ 46). Hampton disputes whether medical personnel may be employed by outside
vendors. (Doc. 89 ¶ 46). The Commonwealth defendants maintain that defendant
Williams does not provide daily medical care to inmates at SCI-Rockview. (Doc. 72
¶ 47). Hampton disputes this statement and asserts that Williams treated him for
the flu virus in years past. (Doc. 89 ¶ 47).
The parties also disagree anent the scope of Hampton‟s grievances. The
Commonwealth defendants state that Hampton never filed a grievance regarding
defendant Harpster‟s purported refusal to allow him to participate in an exercise
program, cardio sessions, rehabilitation program, and physical therapy. (Doc. 72 ¶
60). Hampton explains that at the time he filed his grievance, he did not know that
defendant Harpster “played an affirmative role in refusing Plaintiff all activities.”
(Doc. 89 ¶ 60). The Commonwealth defendants also state that Hampton never filed
a grievance concerning actions taken by defendants Glunt and Wetzel. (Doc. 72 ¶¶
61-62). Hampton rejoins that he “mentioned” Glunt in a grievance appeal, but
“agrees that he did not grieve defendant Wetzel‟s actions and/or inactions.” (Doc.
89 ¶¶ 61-62). The Commonwealth defendants lastly contend that Hampton never
filed a final appeal with the Secretary‟s Office of Inmate Grievances and Appeals
regarding any change in the procedure for dispensing medication at SCI-Rockview.
14
(Doc. 72 ¶ 63). Hampton agrees that he “did not mention by name the dispensing of
meds.” (Doc. 89 ¶ 63).
III.
Commonwealth Defendants’ Motion
Hampton asserts claims pursuant to the First, Eighth, and Fourteenth
Amendments, the Americans with Disabilities Act, and the Rehabilitation Act
against each of the Commonwealth defendants. (See Doc. 13). The court will
address several threshold issues before turning to Hampton‟s claims seriatim.
A.
Exhaustion of Administrative Review
Defendants Glunt, Harpster, and Wetzel seek summary judgment on the
ground that Hampton failed to properly exhaust his claims against them. (Doc. 78
at 11-15). Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner
is required to pursue all avenues of relief available within the prison‟s grievance
system before bringing a federal civil rights action concerning prison conditions.
See 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). 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 exhaustion requirement is mandatory. See Williams v. Beard, 482 F.3d 637, 639
(3d Cir. 2007); see also Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that the
exhaustion requirement applies to grievance procedures “regardless of the relief
offered through administrative procedures”); Nyhuis v. Reno, 204 F.3d 65, 67 (3d
Cir. 2000) (same). “[I]t is beyond the power of [any] court . . . to excuse compliance
15
with the exhaustion requirement.” Id. at 73 (quoting Beeson v. Fishkill Corr.
Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998)).
To exhaust administrative remedies an inmate must comply with all
applicable grievance procedures and rules. See Spruill v. Gillis, 372 F.3d 218, 231
(3d Cir. 2004). The PLRA requires not only technical exhaustion of administrative
remedies, but also substantial compliance with procedural requirements. Id. at 22732; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner, either
through late or improper filings, bars the prisoner from bringing a claim in federal
court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d
at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000). Failure to identify
a named defendant on a grievance form, absent a “justifiable excuse,” constitutes
failure to properly exhaust as to that defendant. Williams v. Pa. Dep‟t of Corr., 146
F. App‟x 554, 557 (3d Cir. 2005) (non-precedential).
The DOC has an Inmate Grievance System, set forth in DC-ADM 804, which
permits any inmate to seek review of problems that may arise during the course of
confinement. See 37 PA. CODE § 93.9(a); PA. DEP‟T OF CORR., No. DC-ADM 804; (see
also Doc. 72 ¶¶ 48-49; Doc. 89 ¶¶ 48-49). After an attempt to resolve any problems
informally, an inmate may submit a written grievance to the Facility‟s Grievance
Coordinator for initial review. This must occur within fifteen days after the events
upon which the claims are based. Within fifteen days of an adverse decision by the
Grievance Coordinator, an inmate may then appeal to the Facility Manager of the
institution. Thereafter, within fifteen days of an adverse decision by the Facility
Manager, an inmate may file a final appeal to the Secretary‟s Office of Inmate
16
Grievances and Appeals. An appeal to final review cannot be completed unless an
inmate complies with all established procedures. An inmate must exhaust all three
levels of review and comply with all procedural requirements of the grievance
review process in order to fully exhaust an issue. See Booth, 206 F.3d at 293 n. 2
(outlining Pennsylvania‟s grievance review process); Ingram v. SCI Camp Hill, 448
F. App‟x 275, 279 (3d Cir. 2011) (same).
As noted supra, the standard used to determine when a prisoner has
exhausted the administrative process is whether he complied with applicable
grievance procedures and rules. The relevant policy and the pertinent language
states as follows:
The text of the grievance must be legible, understandable,
and presented in a courteous manner. The inmate must
include a statement of the facts relevant to the claim. The
statement of facts shall include the date, approximate
time and location of the event(s) that gave rise to the
grievance. The inmate shall identify individuals directly
involved in the event(s).
DC-ADM 804, § 1(A)(11). Notably, “[t]he inmate shall identify individuals directly
involved in the event(s).” DC-ADM 804, § 1(A)(11). The purpose of the regulation
“is to put the prison officials on notice of the persons claimed to be guilty of
wrongdoing.” Spruill, 372 F.3d at 234.
Helen Shambaugh, an administrative officer in the Secretary‟s Office of
Inmate Grievances and Appeals, has submitted a declaration under penalty of
perjury stating that, based on review of the DOC‟s Inmate Grievance Tracking
System, Hampton never filed a grievance alleging negative actions by defendants
Harpster, Glunt, or Wetzel. (See Doc. 72-1 at 188-192, Decl. of Helen Shambaugh
17
(“Shambaugh Decl.”) ¶¶ 1, 13-18). Shambaugh‟s review also revealed that Hampton
never filed a final appeal regarding changes in the procedures for dispensing
medication in the med-line at SCI-Rockview. (See Shambaugh Decl. ¶ 19).
Accompanying Shambaugh‟s declaration are copies of the relevant institutional
administrative remedy records. (Doc. 72-1 at 193-441).
The Commonwealth defendants first argue that Hampton never filed a
grievance regarding defendant Harpster‟s alleged refusal to allow Hampton to
participate in an exercise program, cardio sessions, rehab program, and physical
therapy. (Doc. 72 ¶ 60; Doc. 78 at 13; Doc. 94 at 3). Hampton does not dispute that
he failed to name Harpster in any grievance. (Doc. 89 ¶ 60; Doc. 90 at 2-3). In an
attempt to excuse this deficiency, Hampton explains that he did not know Harpster
played a role in denying him activities when he filed his grievances. (Doc. 89 ¶ 60;
Doc. 90 at 2-3). Hampton claims that it would have been “pointless” to initiate the
grievance process against Harpster because his prior grievances were denied, and
any new grievance would likewise be denied. (Doc. 90, at 2).
Hampton supposedly learned that Harpster denied him access to activities,
however Hampton took no action to remedy the defect in his grievances. Even if
the court were to excuse Hampton‟s failure to name Harpster in his grievances,
there is no evidence that Hampton filed a grievance related to the underlying claims
against Harpster. The undisputed evidence establishes that Hampton has not
properly followed grievance procedure with respect to his claims against Harpster
by admittedly failing to name him in any grievances. Nor has Hampton offered a
“justifiable excuse” for failing to do so. See Williams, 146 F. App‟x at 557. As a
18
consequence, the court finds that Hampton has failed to exhaust his claims against
Harpster.
The Commonwealth defendants next argue that Hampton never filed a
grievance regarding actions taken by defendant Glunt. (Doc. 72 ¶ 61; Doc. 78 at 1314; Doc. 94 at 4). Hampton counters that he mentioned Glunt in a grievance appeal.
(Doc. 89 ¶ 61; Doc. 90 at 3). On final appeal of grievance number 518679, Hampton
claimed: “Williams‟ and now Glunt’s „conservative medical approach‟ is to deny me
access to programs that can help relieve my pain.” (Doc. 72-1 at 266 (emphasis
added)). Pursuant to DC-ADM 804, “only an issue that was raised for Initial
Review, determination of frivolousness, rejection and/or placement on grievance
restriction may be appealed.” DC-ADM 804, § 2.A.1.c. Hampton‟s grievance plainly
shows that he never raised issues pertaining to Glunt for initial review, but only
complained of his actions in a final appeal. Hence, Hampton has failed to exhaust
his claims against Glunt.
The Commonwealth defendants also argue that Hampton never filed a
grievance regarding any actions of defendant Wetzel. (Doc. 72 ¶ 62; Doc. 78 at 14;
Doc. 94 at 4). Hampton “agrees that he did not grieve defendant Wetzel‟s actions
and/or inactions.” (Doc. 89 ¶ 62). Rather than provide evidence that he properly
exhausted administrative remedies concerning his claims against Wetzel, Hampton
asserts that Wetzel was aware of the claims herein based on his office‟s denial of
grievances and Hampton‟s personal letters to Wetzel. (Doc. 90 at 3). Hampton has
not provided any evidence that these grievance denials were related to Wetzel‟s
19
actions. The uncontroverted evidence reflects that Hampton has not followed
proper grievance procedure against defendant Wetzel.
Finally, the Commonwealth defendants argue that Hampton never filed a
final appeal to the Secretary‟s Office of Inmate Grievances and Appeals regarding
any change in the procedure for dispensing medication at SCI-Rockview. (Doc. 72
¶ 63). In the amended complaint, Hampton alleges he was in pain due to the policy
of Wetzel, Glunt, and Williams regarding dispensation of medications to inmates
with a stability code D status, which precluded him from keeping medication on his
person. (Doc. 13 ¶¶ 22-23). Hampton provides no evidence that he properly grieved
this claim and agrees that he “did not mention by name the dispensing of meds.”
(Doc. 89 ¶ 63). The court finds that Hampton has failed to exhaust this claim.
The court concludes that Hampton has failed to exhaust administrative
remedies with respect to his claims against defendants Harpster, Glunt, and Wetzel,
as well as his claim regarding the policy and procedure for the administration of
medication at SCI-Rockview. Accordingly, the court will enter summary judgment
in favor of each of these defendants.
B.
Official Capacity Claims
The Commonwealth defendants next argue that any claims seeking
monetary damages against them in their official capacities are barred by the
Eleventh Amendment. (Doc. 78 at 22-23). Personal capacity suits under section
1983 seek to recover money from a government official, as an individual, for acts
performed under color of state law. Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir.
1988). Official capacity suits, in contrast, generally represent an action against an
20
entity of which the government official is an agent. Id.; see also Monell v. Dep‟t of
Soc. Servs., 436 U.S. 658, 690, n. 55 (1978). When suits are brought against state
officials in their official capacities, those lawsuits are treated as suits against the
state. Hafer v. Melo, 502 U.S. 21, 25 (1991). However, the doctrine of sovereign
immunity, established by the Eleventh Amendment, protects states, such as the
Commonwealth of Pennsylvania, from suits by citizens. Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 100-01, 117 (1984); Seminole Tribe v. Florida, 517
U.S. 44, 54 (1996); Lavia v. Pennsylvania, 224 F.3d 190, 195-96 (3d Cir. 2000). That
immunity runs to state officials if they are sued in their official capacity and the
state is the real party upon which liability is sought. Scheuer v. Rhodes, 416 U.S.
232, 237-38 (1974). Congress has not abrogated the immunity regarding Hampton‟s
claims, nor has the Commonwealth of Pennsylvania waived this grant of immunity.
See 42 PA. STAT. AND CONS. STAT. ANN. § 8521(b). Hence, Hampton‟s claims for
money damages against the Commonwealth defendants in their official capacities
are barred by sovereign immunity. See Betts v. New Castle Youth Dev. Ctr., 621
F.3d 249, 254 (3d Cir. 2010).
C.
Americans with Disabilities Act and Rehabilitation Act Claims
The Commonwealth defendants also move for summary judgment with
respect to Hampton‟s claims under the Americans with Disabilities Act (“ADA”)
and Rehabilitation Act. Under both statutes, “the substantive standards for
determining liability are the same.” McDonald v. Pa. Dep‟t of Pub. Welfare, 62 F.3d
92, 95 (3d Cir. 1995). However, the Rehabilitation Act also requires plaintiff to show
21
that the he was excluded from a “program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a).
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be subjected
to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA defines “public
entity” as: “(A) any State or local government; (B) any department, agency, special
purpose district, or other instrumentality of a State or States or local government;
and (C) the National Railroad Passenger Corporation, and any commuter authority
(as defined in section 24102(4) of Title 49).” Id. § 12131(1). State prisons “fall
squarely within” the ADA‟s definition of “public entity.” Pa. Dep‟t of Corr. v.
Yeskey, 524 U.S. 206, 210 (1998). However, the plain language of § 12132 applies
only to public entities, not individuals. Yeskey v. Commonwealth, 76 F. Supp. 2d
572, 575 (M.D. Pa. 1999). The court finds that the Commonwealth defendants do not
qualify as public entities as defined by the ADA. Therefore, the ADA is inapplicable
to the individually named Commonwealth defendants, and their motion for
summary judgment will be granted on this ground.
D.
Constitutional Claims
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.
The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
22
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). “To state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
The Commonwealth defendants raise the defense of qualified immunity in
answer to Hampton‟s § 1983 claims. “The doctrine of qualified immunity protects
government officials from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotation marks omitted). “Qualified immunity balances two
important interests—the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson, 555
U.S. at 231. It “provides ample protection to all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
“Thus, so long as an official reasonably believes that his conduct complies with the
law, qualified immunity will shield that official from liability.” Sharp v. Johnson,
669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555 U.S. at 244). Although qualified
23
immunity is generally a question of law that should be considered at the earliest
possible stage of proceedings, a genuine dispute of material fact may preclude
summary judgment on qualified immunity. Giles v. Kearney, 571 F.3d 318, 325-26
(3d Cir. 2009).
A court evaluating a claim of qualified immunity considers two distinct
inquiries: first, whether, based on the facts alleged, a constitutional right has been
violated and, second, if so, whether the right was “clearly established” at the time of
the alleged violation. Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir.
2015) (quoting Pearson, 555 U.S. at 232). A court may begin its qualified immunity
analysis with either prong. See Pearson, 555 U.S. at 237. We begin with the first.
1.
Eighth Amendment
The Eighth Amendment‟s proscription against cruel and unusual
punishment requires that prison officials provide inmates with adequate medical
care. See Estelle v. Gamble, 429 U.S. 97, 103-05 (1976). In order to establish an
Eighth Amendment medical claim, a plaintiff “must show (i) a serious medical need,
and (ii) acts or omissions by prison officials that indicate deliberate indifference to
that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)
(citing 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 lay person would recognize the necessity for a doctor‟s attention.”
Monmouth Cty. Corr. Institutional 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
24
medical need is of the serious nature contemplated by the eighth amendment.” Id.
(citation omitted).
A prison official acts with deliberate indifference to an inmate‟s serious
medical needs when he “knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). A mere difference of
opinion between the prison‟s medical staff and the inmate regarding the diagnosis
or treatment which the inmate receives does not support a claim of cruel and
unusual punishment. See Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa.
1988); see also McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar,
547 F.2d 112, 113 (10th Cir. 1976), cert. denied, 450 U.S. 1041 (1981).
a.
Defendant Williams
Individual liability can be imposed under Section 1983 only if the state actor
played an “affirmative part” in the alleged misconduct and “cannot be predicated
solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)).
“A defendant in a civil rights action must have personal involvement in the alleged
wrongs. . . . Personal involvement can be shown through . . . personal direction or
. . . actual knowledge and acquiescence.” Rode, 845 F.2d at 1207-08; see Rizzo v.
Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). A mere
hypothesis that an individual defendant had personal knowledge or involvement in
25
depriving the plaintiff of his rights is insufficient to establish personal involvement.
Rode, 845 F.2d at 1208.
Hampton acknowledges that he is suing defendant Williams because he
“supervises the medical contractors and is responsible for them and their actions or
inactions.” (Doc. 90 at 6). He further asserts that Williams, in his role as medical
supervisor, “has the authority to set, make and change policies, procedures, and
regulations that effect [sic] the medical department.” (Id. at 5). Hampton‟s claims
are, in essence, nothing more than an assertion of respondeat superior liability
which seeks to hold this defendant liable based on his supervisory role. This
ground of constitutional liability has been squarely rejected by the courts. See
Rode, 845 F.2d at 1207. Moreover, Hampton has offered no evidence to support his
claim that Williams has the authority to create and enact policies for the medical
department. Instead, Hampton surmises that because Williams has the ability to
respond to grievances, he must have the authority to create policies. (Doc. 90 at 5).
Defendant Williams is the Health Care Administrator at SCI-Rockview. (Doc.
72-1 at 9 ¶ 1). In this role, Williams does not provide daily medical care to inmates,
and he defers all decisions regarding diagnosis and treatment of inmates to the
contracted provider. (Id. at 10 ¶¶ 4-5). It is clear from the record that Williams did
not medically treat Hampton for his back and wrist complaints.3 Hampton fails to
offer any evidence to dispute this fact. The party adverse to summary judgment
3
Hampton asserts that although Williams does not provide daily care to
inmates, he provides “some” care. (Doc. 90 at 6). For example, Hampton claims
that defendant Williams briefly treated him for the flu virus in 2011 or 2012. (Doc.
93 at 2 ¶¶ 11-13).
26
must raise “more than a mere scintilla of evidence in its favor” and cannot survive
Rule 56 scrutiny by relying on unsupported assertions, conclusory allegations, or
mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.
1989). Hampton has failed to demonstrate a genuine issue of fact as to whether
Williams was deliberately indifferent to Hampton‟s serious medical needs.
To the extent that Hampton attempts to hold defendant Williams liable based
on his involvement in the grievance procedure, this claim also fails. “[T]he failure
of a prison official to provide a favorable response to an inmate grievance is not a
federal constitutional violation.” McEachin v. Beard, 319 F. Supp. 2d 510, 515 (E.D.
Pa. 2004) (quoting Gordon v. Vaughn, No. 99-1511, 1999 WL 305240, at *2 (E.D. Pa.
May 12, 1999)). Thus, insofar as Williams is sued for denying Hampton‟s grievances,
dissatisfaction with responses to an inmate‟s grievances does not support a
constitutional claim. See Alexander v. Gennarini, 144 F. App‟x 924, 925 (3d Cir.
2005) (concluding that “involvement in the post-incident grievance process” is not a
basis for § 1983 liability); Cole v. Sobina, No. 04-99J, 2007 WL 4460617, at *5 (W.D.
Pa. 2007) (“[M]ere concurrence in a prison administrative appeal process does not
implicate a constitutional concern.”). Judgment will be entered in favor of
defendant Williams on the Eighth Amendment claim.
b.
Defendant McHenry
Hampton has also raised an Eighth Amendment claim against defendant
McHenry for allegedly destroying his back and wrist braces. On February 18, 2014,
Hampton was transferred to the RHU at SCI-Rockview and subjected to a strip
search. (Doc. 72 ¶¶ 12-13; Doc. 89 ¶¶ 12-13). In conjunction with the search,
27
Hampton admits that he gave his back brace to correctional officer Montgomery
under the supervision of Lieutenant Smith. (Doc. 72 ¶ 14; Doc. 89 ¶ 14). Hampton
further admits that defendant McHenry was not present for the strip search. (Id. ¶
15). Jeffrey Rackovan, Corrections Superintendent‟s Assistant at SCI-Rockview,
states in a declaration that video of Hampton entering the RHU confirms that he
gave his brace to correctional officer Montgomery. (Doc. 72-1 at 2-3, Decl. of Jeffrey
Rackovan (“Rackovan Decl.”) ¶¶ 1, 5). Rackovan further declares that McHenry
was not present when Hampton entered the RHU. (Id. at ¶ 5). The parties dispute
whether McHenry was ever in possession of Hampton‟s back brace and wrist
splints. (Doc. 72 ¶ 16; Doc. 89 ¶ 16).
In response to Hampton‟s interrogatories, McHenry states that he
inventoried Hampton‟s property on February 21, 2014, a DC-153 inventory sheet
was completed, and a copy of the inventory sheet would have been provided to
Hampton when he was released from the RHU. (Doc. 93 at 45-46). Hampton
maintains that McHenry completed an inventory of his property on February 21,
2014 but never completed a DC-153 Inmate Personal Property Inventory form.
(Doc. 90 at 6). Shortly thereafter, Hampton prepared for a brief transfer to SCIBenner, and the parties agree that Hampton packed all of his own property in
preparation for the transfer. (Doc. 72 ¶ 17; Doc. 89 ¶ 17). On February 25, 2014,
Hampton was transferred to the RHU at SCI-Benner and remained there until his
return to SCI-Rockview on March 14, 2014. (Doc. 72 ¶ 18; Doc. 89 ¶ 18). The parties
agree that Hampton‟s property was inventoried on March 18, 2014, after his return
to SCI-Rockview. (Doc. 72 ¶ 19; see Doc. 89 ¶ 19).
28
Hampton did not discover that his property was missing until March 18, 2014.
(Doc. 72 ¶ 20; Doc. 89 ¶ 20). Hampton states that when the inventory was completed
on that day, the prior inventory form from February 21, 2014 could not be located.
(Doc. 93 at 48). Thus, Hampton speculates that the lack of an inventory sheet from
February 21, 2014 necessarily proves that McHenry destroyed his property. (Doc.
90 at 7).
The court disagrees. No reasonable juror could conclude from this evidence
that defendant McHenry destroyed Hampton‟s property. Indeed, Hampton does
not present “evidence” at all—only hypothesis and accusation based on the lack of
an inventory sheet for the February 21, 2014 transfer. Hampton cannot satisfy his
burden with conjecture and supposition. See Betts, 621 F.3d at 252 (citing Williams,
891 F.2d at 460); Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(quoting Celotex Corp., 477 U.S. at 325). Rule 56 requires affirmative evidence in
support of a claim. See FED. R. CIV. P. 56(e). The record is devoid of any such
corroborative evidence. The court will grant summary judgment to defendant
McHenry on this Eighth Amendment claim.
2.
Fourteenth Amendment
The Equal Protection Clause of the Fourteenth Amendment provides that a
state may not “deny to any person within its jurisdiction the equal protection of the
laws.” U.S. CONST. amend. XIV. This prohibition is “essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)).
To state an equal protection claim, a plaintiff generally must allege that he or she is
29
a member of a protected class and was treated differently from similarly-situated
persons outside of that class. See id. at 440.
An equal protection claim can also be brought by a “class of one.”
See Renchenski v. Williams, 622 F.3d 315, 337-38 (3d Cir. 2010) (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Phillips v. Cty. of Allegheny, 515
F.3d 224, 243 (3d Cir. 2008)). The Supreme Court defines a class of one as a plaintiff
alleging he has been “intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Olech, 528 U.S.
at 564 (2000); see also Jean-Pierre v. Bureau of Prisons, 497 F. App‟x 164, 168 (3d
Cir. 2012). “If a distinction between persons does not implicate a suspect or quasisuspect class, state action will be upheld if it is rationally related to a legitimate
state interest.” Jackson v. Gordon, 145 F. App‟x 774, 777 (3d Cir. 2005) (citing
Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 423 (3d Cir. 2000)).
Hampton does not state that he is a member of a protected class. Indeed,
prisoners are not a protected class of individuals. See Abdul-Akbar v. McKelvie,
239 F.3d 307, 317 (3d Cir. 2001). Therefore, Hampton‟s claim survives only if he has
properly established a violation of his equal protection rights under a class-of-one
theory. To survive under the class-of-one theory, Hampton must establish that he
has been treated differently from similarly situated inmates, that the defendants did
so intentionally, and that this difference in treatment bears no rational relation to
any legitimate penological interest. See Phillips, 515 F.3d at 243 (quoting Hill v.
Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)).
30
Hampton claims that the Commonwealth defendants violated his Fourteenth
Amendment rights “by intentionally discriminating against [h]im and not treating
him equal as everyone else.” (Doc. 13 ¶ 32). Hampton fails to present any evidence
tending to establish that the defendants engaged in any intentional or purposeful
discrimination or that he was treated differently than similarly situated persons on
the basis of his age, race, nationality or gender. Instead, he speculates that the
defendants “did not like [him] and all the grievances he filed . . . , nor did they like
the filing of civil lawsuits.” (Doc. 90 at 7-8). Such spare allegations do not suffice at
the Rule 56 stage. See Betts, 621 F.3d at 252 (citing Williams, 891 F.2d at 460);
Podobnik, 409 F.3d at 594 (quoting Celotex Corp., 477 U.S. at 325).
Hampton does submit an affidavit from a fellow inmate wherein the inmate
states that he was permitted to participate in certain activities, despite his medical
restrictions, after he signed a waiver. (Doc. 93-2 at 38-39). But Hampton admits
that medical staff offered him the same option, i.e., he may lift certain restrictions in
order to participate in other desired activities. (See Doc. 72 ¶ 4; Doc. 89 ¶ 4; Doc. 74
¶ 11). Hampton admittedly refused to sign a waiver lifting all restrictions. (Doc. 89
¶ 4). Hampton accordingly fails to establish that he was treated differently than
similarly situated inmates. Rather, the evidence establishes that Hampton was
subject to a prison policy that affected all inmates similarly. The Commonwealth
defendants are entitled to summary judgment on the equal protection claim.
3.
First Amendment
Hampton also states a First Amendment retaliation claim against the
Commonwealth defendants. The First Amendment offers protection for a wide
31
variety of expressive activities. See U.S. CONST. amend I. These rights are
lessened, but not extinguished, in the prison context, where legitimate penological
interests must be considered in assessing the constitutionality of official conduct.
See Turner v. Safley, 482 U.S. 78, 89 (1987). Retaliation for expressive activities can
infringe upon an individual‟s rights under the First Amendment. See Allah v.
Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000). To prevail on a retaliation claim
under 42 U.S.C. § 1983, plaintiff must demonstrate: (1) that he was engaged in
constitutionally protected activity; (2) that he suffered an “adverse action” by
government officials; and (3) that there is “a causal link between the exercise of his
constitutional rights and the adverse action taken against him.” Rauser v. Horn,
241 F.3d 330 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225).
Hampton asserts that the alleged retaliatory conduct by “defendant Williams
or the PAs” was undertaken in response to his filing of inmate grievances. (Doc. 90
at 13; see also Doc. 13 ¶ 28). The filing of grievances is protected activity under the
First Amendment right of prisoners to petition the court. See Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003) (collecting cases). Thus, the first prong of Rauser—that
the plaintiff be engaged in a constitutionally protected activity—is satisfied.
Once it is determined that the inmate was engaged in protected conduct, he
must show that he has suffered some adverse action at the hands of prison officials.
See Rauser, 241 F.3d at 333 (citing Allah, 229 F.3d at 225). To establish an “adverse
action,” the plaintiff must demonstrate that defendants‟ actions were “sufficient to
deter a person of ordinary firmness from exercising his [constitutional] rights.”
Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 535 (E.D. Pa. 2002) (quoting Allah, 229 F.3d
32
at 225). Hampton alleges that he was the victim of adverse action in the form of the
denial of access to activities. The denial of access to activities constitutes adverse
action. Thus, Hampton satisfies the second Rauser prong.
Under the third prong, the court must determine whether there is a causal
connection between the exercise of the constitutional right and the adverse action.
The plaintiff must show that the protected activity was a substantial motivating
factor in the state actor‟s decision to take the adverse action. Motivation may be
shown by establishing “a „chronology of events from which retaliation plausibly
may be inferred.‟” Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996) (quoting Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)); see also Goff v. Burton, 91 F.3d 1188, 1191
(8th Cir. 1996); Pride v. Peters, 72 F.3d 132 (Table) (7th Cir. 1995). It is plaintiff‟s
burden to prove that defendants were motivated by retaliation. See Hannon v.
Speck, No. 87-3212, 1988 WL 131367, at *4 (E.D. Pa. Dec. 6, 1988) (“In bringing a
§ 1983 action alleging such retaliation, an inmate faces a substantial burden in
attempting to prove that the actual motivating factor . . . was as he alleged.”)
(internal quotes and citation omitted), aff‟d, 888 F.2d 1380 (3d Cir. 1989) (Table).
Where the prisoner seeks to establish this causal link based upon the temporal
proximity between the protected conduct and the alleged retaliatory act, “the
timing of the alleged retaliatory action must be unusually suggestive before a causal
link will be inferred.” Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir.
1997); Rauser, 241 F.3d at 334; see also Thomas v. Town of Hammonton, 351 F.3d
108, 114 (3d Cir. 2003).
33
Hampton cannot establish a causal link between his grievances and the
denial of his participation in certain activities. Hampton claims that he was denied
access to activities because he was not assigned a job. (Doc. 13 ¶ 29; Doc. 90 at 12).
The relevant policy clearly states that inmates on “Job Suspended, Job Removed,
or Refused Job lists” are not eligible to participate in certain recreational programs.
(Doc. 93-1 at 19). Hampton fails to provide any evidence that he was denied access
to activities out of retaliation for his participation in a constitutionally protected
activity. He thus fails to satisfy the third Rauser prong. The Commonwealth
defendants are entitled to summary judgment on the retaliation claim.
IV.
Bernard and Koltay’s Motion
Hampton‟s remaining claim against defendants Bernard and Koltay is an
Eighth Amendment inadequate medical care claim for discontinuing Hampton‟s
prescription for Tylenol and failing to re-issue his back and wrist braces after they
were confiscated. As stated supra, the Eighth Amendment “requires prison officials
to provide basic medical treatment to those whom it has incarcerated.” Rouse, 182
F.3d at 197. In the context of medical care, the relevant inquiry is whether the
defendant was deliberately indifferent to the plaintiff‟s serious medical needs. See
Monmouth Cty., 834 F.2d at 346. The Rule 56 record demonstrates that Hampton
received ample medical attention from defendants Bernard and Koltay and that
they were not deliberately indifferent to his needs.
Hampton claims defendant Bernard discontinued his prescription for
Tylenol as ordered by Dr. Ekizian. (Doc. 13 ¶¶ 8, 25). When Dr. Ekizian treated
Hampton on June 3, 2014, he advised Hampton to “try Tylenol/NSAIDs first,” and
34
indicated that there was no previous record of Hampton taking such medications.
(Doc. 75-1 at 32). Bernard argues that there is no evidence that Dr. Ekizian wrote a
separate order for Tylenol and, thus, no order to discontinue. Hampton concedes
that there is no evidence in the prison records of a Tylenol prescription. (Doc. 82 at
6). His “theory” is that Bernard removed his Tylenol prescription from the prison
system when she purportedly discontinued the medication. (Id.) But Rule 56
demands more than a “theory” of unsubstantiated allegations. Betts, 621 F.3d at
252 (citing Williams, 891 F.2d at 460); Podobnik, 409 F.3d at 598 (quoting Celotex,
477 U.S. at 325). Rather, Hampton must come forth with “affirmative evidence” in
support of his right to relief. Pappas, 331 F. Supp. 2d at 315; FED. R. CIV. P. 56(e).
Hampton fails to meet his burden with respect to his claim that defendant Bernard
discontinued a Tylenol prescription.
Moreover, the evidence establishes that defendant Bernard continually
encouraged Hampton to take Tylenol. (Doc. 75-1 at 25, 27). Bernard observes that,
pursuant to prison policy, all inmates are to purchase over-the-counter medication,
such as Tylenol, from the commissary. The relevant policy provides:
Medical staff will advise inmates when OTC‟s (over the
counter) medications are available in the commissary. If an
inmate elects to receive OTC medications during a sick call
visit, co-pay fees will apply. An inmate, who is in need of
OTC medications that are not available in the commissary,
will be addressed as outlined in Subsection B.1. above.
(Doc. 82 at 45); DC-ADM 820, § B.2. Hampton was specifically advised: “Any
medication that is available over the counter, the inmate is expected to purchase
their own. You are not singled out for this process.” (Doc. 75-3 at 1). The record
35
establishes that “non-aspirin x-strength 500mg” (i.e., Tylenol) was available for
purchase from the commissary. (Doc. 82 at 50). The record is devoid of evidence
that Hampton informed Bernard that he could not afford to purchase Tylenol.
Thus, Bernard did not exhibit deliberate indifference to Hampton‟s medical needs
when she advised him to obtain over-the-counter medication from the commissary
in accordance with official prison policy.
Hampton further claims that defendants Bernard and Koltay were
deliberately indifferent to his serious medical needs when they failed to re-issue his
back and wrist braces after they were confiscated. The following timeline outlines,
in part, Hampton‟s medical treatment related to his back and wrist braces.
●
On February 18, 2014, Hampton‟s back and wrist braces were
confiscated by prison staff when he was transferred to the RHU.
(Doc. 13 ¶ 3).
●
On May 8, 2014, Hampton first reported to defendant Koltay that
his braces were confiscated. (Doc. 75-1 at 35). Defendant Koltay
advised Hampton that, pursuant to DOC policy, she could not
provide him with new braces unless he had a confiscation slip.
(Id.) She advised Hampton to contact security for a confiscation
slip and to return to medical for follow-up. (Id.)
●
On May 8, 2014, Hampton completed an Inmate‟s Request to
Staff Member form inquiring about obtaining a confiscated
items receipt. (Doc. 82 at 25). In response, a staff member
advised Hampton that a confiscated items receipt was not
required because the confiscated items were state issued
property. (Id.)
●
On May 19, 2014, Hampton completed an Inmate‟s Request to
Staff Member form directed to defendant Koltay. (Doc. 82 at 27).
Hampton reported that prison staff informed him that a
confiscated items receipt was not required for his replacement
braces. (Id.) In response, defendant Koltay instructed Hampton
to sign up for sick call to further discuss the matter. (Id.)
36
●
On May 19, 2014, in response to Hampton‟s request for the
return of his back brace, Dr. Ekizian reviewed Hampton‟s chart
and concluded that he “continue the back brace order for now.”
(Doc. 75-1 at 36).
●
On June 3, 2014, Dr. Ekizian examined Hampton and ordered a
new back brace, with an explanation that his old back brace was
confiscated when he was transferred to RHU. (Doc. 75-1 at 32).
●
On June 23, 2014, defendant Bernard treated Hampton;
however, Hampton did not mention back and wrist braces.
(Doc. 75-1 at 31).
●
July 14, 2014 was the first occasion that Hampton discussed his
confiscated braces with defendant Bernard. (Id. at 27). During
this examination, Bernard examined Hampton and did not
believe that wrist splints were necessary. (Id.)
●
On July 30, 2014, Hampton was seen by a physical therapist and
complained of back pain. (Doc. 75-1 at 18). Hampton did not
report any wrist pain during this visit, and no recommendations
were made for back or wrist braces. (Id.)
●
On September 22, 2014, defendant Koltay examined Hampton
and ordered bilateral wrist splints. (Doc. 75-1 at 25).
The evidence of record establishes that Hampton received extensive medical
care related to his back and wrist pain. There is no evidence that Bernard and
Koltay failed to treat Hampton or exhibited deliberate indifference to his medical
needs. Nor is there evidence that Hampton repeatedly requested replacement
braces. Although Koltay initially advised Hampton to obtain a confiscated items
receipt for replacement braces, she thereafter instructed Hampton to sign up for
sick call to discuss the situation. Subsequent examinations revealed that Hampton
either did not report any wrist pain, or that wrist splints were deemed not medically
necessary. Moreover, there is no evidence that Hampton suffered any medical
emergency during the time that he was without his braces.
37
Hampton primarily appears to be dissatisfied with the medical care provided
by Bernard and Koltay. Hampton is not entitled to convert his dissatisfaction with
that care into a constitutional claim. Hampton‟s personal opinions as to the manner
in which medical braces should be re-issued, and how Tylenol should be provided
to inmates, amount to nothing more than a difference of opinion as to a course of
treatment. But “mere disagreement as to the proper medical treatment” does not
amount to a constitutionally cognizable claim. See Spruill, 372 F.3d at 235 (citing
Monmouth Cty., 834 F.2d at 346); see also Norris v. Frame, 585 F.2d 1183, 1186 (3d
Cir. 1978) (“Where the plaintiff has received some care, inadequacy or impropriety
of the care that was given will not support an Eighth Amendment claim.”). The
court will grant summary judgment in favor of defendants Bernard and Koltay.
V.
Conclusion
For the reasons set forth above, the court will grant both motions (Docs. 71,
73) for summary judgment. An appropriate order will issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:
March 10, 2017
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