Thomas v. Varano et al

Filing 147

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 3/10/15. (ao)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANTONIO THOMAS,
Plaintiff
v.

DAVID VARANO, ET AL.,
Defendants

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CIVIL ACTION NO. 3:10-CV-2249
(Judge Nealon)

MEMORANDUM
Background
On November 1, 2010, Plaintiff, Antonio Thomas, an inmate presently
confined at the State Correctional Institution, Coal Township, Pennsylvania,
(“SCI-Coal Twp.”), filed this civil rights action pursuant to 42 U.S.C. § 1983.
(Doc. 1). Plaintiff subsequently submitted a lengthy amended complaint naming
multiple Defendants which centers around diagnostic services and treatment which
were provided to him for prostate cancer. (Doc. 33).
This Court granted Defendant Muhammad Ikram M.D.’s unopposed
motion to dismiss the amended complaint by Memorandum and Order dated
January 3, 2012. (Doc. 69). Dismissal was granted in favor of Defendants
Superintendent David Varano; Health Care Administrator Kathryn McCarty;
Nurse Supervisors Christopher Yackiel and Mary Hensler; Nurses Melissa

DiRienzo, Ellen Hill, and Sherri Mummy; as well as Correctional Officers Jill
Whipple, William Reitz, and James Delbaugh on March 12, 2012. (Docs. 74 and
75).
Defendants Prison Health Services (PHS) and PHS employees; Rodney
Companion, M.D.; Stanley Stanish, M.D.; Miguel Salomon, M.D.; and Physician
Assistant (PA) Brian Davis’ motion to dismiss was granted by Memorandum and
Order dated March 26, 2012. (Docs. 76 and 77).
The United States Court of Appeals for the Third Circuit affirmed the
dismissal of Plaintiff’s action with exception of two (2) claims. See Thomas v.
Varano, 532 Fed. Appx. 142 (3d Cir. 2013). The Court of Appeals concluded that
only the Eighth Amendment claims against Defendant Health Care Administrator
McCarty and Defendant Doctor Stanley Stanish should proceed. See (Doc. 90).
On November 15, 2013, this Court conditionally granted Plaintiff’s request
for appointment of counsel, pro bono counsel subsequently entered an appearance
on behalf of Thomas. Defendant McCarty’s motion for summary judgment was
recently granted by Memorandum and Order dated February 23, 2015. See Docs.
143 & 144. Presently pending is Remaining Defendant Doctor Stanish’s motion
for summary judgment. See Doc. 112. The motion, which has been opposed, is
ripe for consideration.
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By way of background, the amended complaint asserts that Plaintiff was
transferred to SCI-Coal Twp. in 2005 accompanied by his medical records from
his former place of incarceration. See (Doc. 33). Those records purportedly
included detailed information showing that Thomas was diagnosed as having
cardiac problems and “blood work results which clearly indicated that plaintiff’s
prostate specific antigen (“PSA”) levels were rising.”1 Doc. 33, ¶ 19. While under
the care of SCI-Coal Twp. medical staff other than Doctor Stanish, a PSA test was
performed on July 21, 2007. See id. at ¶ 34. On July 26, 2007, the prison’s
Medical Department was notified that based upon Plaintiff’s PSA test results he
“most likely had cancer that has spread beyond the prostate.” Id. at ¶ 35.
According to the Amended Complaint, Thomas was informed of that
determination during a September 14, 2007 consultation with Doctor Salomon. A
biopsy performed on October 23, 2008. confirmed that Thomas had advanced
prostate cancer. See Doc. 33, ¶ 53.
With respect to the Remaining Defendant, it is alleged that Doctor Stanish
became involved in Plaintiff’s care at SCI-Coal Twp. after he was diagnosed with
cancer. It is alleged that during December of 2009, Doctor Stanish falsely
The Amended Complaint describes PSA as being a substance made by the
prostate gland and PSA testing as being commonly used in the detection of prostate
cancer.
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accused Thomas of “cheeking his pain pills.” Id. at ¶ 82. Although that
accusation was allegedly proven to be meritless via a urine test, Plaintiff claims
that Remaining Defendant Stanish prescribed him a weaker pain medication as a
punitive measure which exacerbated the prisoner’s condition. The amended
complaint elaborates that Doctor Stanish and Thomas did not get along, and there
was no valid reason for prescribing a weaker pain medication.
Standard of Review
Summary judgment is proper if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001). A factual dispute is “material” if it might affect the outcome of the suit
under the applicable 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 nonmoving party. Id. at 248. The court must resolve all doubts as to the existence of
a genuine issue of material fact in favor of the non-moving party. Saldana, 260
F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609
(M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered
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evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370
(3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to
support the claims of the non-moving party, the non-moving party may not simply
sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). 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.” Id.
(internal quotations omitted); see also Saldana, 260 F.3d at 232 (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 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 West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
Discussion
Doctor Stanish argues that he is entitled to entry of summary judgment on
the grounds that: (1) Plaintiff failed to properly exhaust his available
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administrative remedies; (2) Thomas cannot prove deliberate indifference to a
serious medical need; and (3) Plaintiff has failed to establish but for causation
sufficient to support a jury verdict. See (Doc. 120, p. 4).
1.

Administrative Exhaustion

According to Doctor Stanish, “Plaintiff has never filed any grievance
against Doctor Stanish relating to the issue that he now asserts.” (Doc. 120, p. 7).
Doctor Stanish explains that during the relevant time period, Thomas only
administratively exhausted a single grievance, No. 248098, which was filed on
December 23, 2008, one (1) year before the alleged November 30, 2009 improper
reduction in pain medication by Doctor Stanish. (Id. at p. 12). Moreover, the
summary judgment argument points out that Grievance No. 248098 contains no
mention of Doctor Stanish whatsoever.
Section 1997e(a) of title 42 U.S.C. provides:
No action shall be brought with respect to prison
conditions under Section 1979 of the Revised Statutes of
the United States (42 U.S.C. 1983), or any other federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.
Section 1997e(a) requires administrative exhaustion “irrespective of the
forms of relief sought and offered through administrative avenues.” Porter v.

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Nussle, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6
(2001). Claims for monetary relief are not excused from the exhaustion
requirement. Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an
inmate’s claim is appropriate when a prisoner has failed to exhaust his available
administrative remedies before bringing a civil rights action. Ahmed v.
Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000). “[E]xhaustion must occur
prior to filing suit, not while the suit is pending.” Tribe v. Harvey, 248 F.3d 1152,
2000 WL 167468, *2 (6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999)); Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).
An inmate is not required to specifically plead or demonstrate exhaustion in
his or her complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007); see also Ray
v. Kertes, 285 F.3d 287 (3d Cir. 2002)(a prisoner does not have to allege in his
complaint that he has exhausted administrative remedies). Rather, pursuant to the
standards announced in Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997), it
is the burden of a defendant asserting the defense of non-exhaustion to plead and
prove it.2 The United States Supreme Court in Jones noted that the primary
purpose of the exhaustion requirement is to allow prison officials to address
In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the United States Court
of Appeals for the Third Circuit similarly stated that “[f]ailure to exhaust
administrative remedies is an affirmative defense for the defendant to plead.”
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complaints before being subjected to suit, reducing litigation to the extent
complaints are satisfactorily resolved, and improving litigation that does occur by
leading to the preparation of a useful record.
The administrative exhaustion mandate also implies a procedural default
component. Spruill v. Gillis 372 F.3d 218, 222 (3d Cir. 2004). As explained by
the Third Circuit Court of Appeals, a procedural default rule “prevents an end-run
around the exhaustion requirement.” Spruill, 372 F.3d at 230. It also ensures
“prisoner compliance with the specific requirements of the grievance system” and
encourages inmates to pursue their administrative grievances “to the fullest.” Id.
Similarly, the Supreme Court has observed that proper exhaustion of available
administrative remedies is mandatory, meaning that prisoners must comply with
the grievance system’s procedural rules, including time limitations. Woodford v.
Ngo, 548 U.S. 81 (2006).
A Consolidated Inmate Grievance Review System has been established by
the Pennsylvania Department of Corrections (“DOC”).3 Section V of DC-ADM
804 (effective December 8, 2010) states that “every individual committed to its
custody shall have access to a formal procedure through which to seek the
resolution of problems or other issues of concern arising during the course of
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The DOC’s grievance system has been periodically amended.
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confinement.” See (Doc. 29, p. 8). It adds that the formal procedure shall be
known as the Inmate Grievance System and provides a forum of review and two
(2) avenues of appeal. Section VI ("Procedures") of DC-ADM 804 provides that,
after attempted informal resolution of the problem, a written grievance may be
submitted to the Facility Grievance Coordinator within fifteen (15) working days
after the events upon which the claims are based, but allowances of extensions of
time will be granted under certain circumstances.
An appeal from the Grievance Coordinator's Initial Review decision may be
made in writing within ten (10) working days to the Facility Manager or
Superintendent. A final written appeal may be presented within fifteen (15)
working days to the Secretary’s Office of Inmate Grievances and Appeals
(SOIGA). A prisoner, in seeking review through the DOC grievance system, may
include reasonable requests for compensation or other legal relief normally
available from a court. However, an improperly submitted grievance will not be
reviewed.
In support of his non-exhaustion argument, the Remaining Defendant
Doctor Stanish subpoenaed all SOIGA appeals filed by Plaintiff between January
1, 2007 to January 2011. See (Doc. 113-4, p. 2). In its response to that request,
the DOC informed Doctor Stanish that Plaintiff filed two (2) grievance appeals
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with SOIGA during the relevant time period, No. 248098 and No. 347886.
Grievance No. 347886 was initially filed on December 20, 2010, regarding
an incident which allegedly transpired on December 17, 2010.4 It was rejected by
SOIGA on March 1, 2011, for failure to provide required documentation. (Id. at
p. 3). Because this civil rights action was filed on October 25, 2010, Grievance
No. 347886, which was initiated after the initiation of this action and concerns an
incident which also transpired after this matter was filed, is not relevant to the
issue of non-exhaustion of the November 30, 2009 related claim against Doctor
Stanish.
Grievance No. 248098 was clearly related to Thomas’ health care and was
appealed to final administrative review with SOIGA. However, it was submitted
during October, 2008, prior to the November 30, 2009 alleged events claim
underlying the claim against Doctor Stanish. (Id. at p. 21).
Plaintiff, relying on an unpublished decision, Allah v. Blaine, 2005 U.S.
App. LEXIS 28317 *4-5 (3d Cir. Dec. 21, 2005) (a defendant must raise a nonjurisdictional defense early in litigation) counters that the Defendant Stanish
waived a non-exhaustion defense because it was not asserted in his immediate
response to the Amended Complaint. See (Doc. 131, p. 5). Thomas also asserts
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See id. at p. 6.
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that his trial testimony “will present facts which, if believed, constitute grounds
for any alleged failure to exhaust administrative remedies to be excused.” (Id. at
p. 8). Plaintiff maintains that hat he can testify that his judgment was clouded due
to his poor physical and mental condition which in conjunction with the negative
attitudes of prison staff interfered with his ability to file a timely grievance. (Id. at
p. 10).
It is noted that Plaintiff’s same arguments were addressed and rejected by
this Court’s February 23, 2015 Memorandum and Order, which considered a
similar non-exhaustion argument by Defendant McCarty. (Docs. 143 and 144).
As previously stated therein by this Court, the Third Circuit Court of Appeals has
clearly stated that “[t]here is no futility exception” to the exhaustion requirement.
Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002) (citing Nyhuis, 204 F.3d at 75.
In Hill v. Smith, 186 Fed. Appx. 271, 274 (3d Cir. 2006)), the Court of Appeals
reiterated its no futility exception by rejecting an inmate’s argument that
exhaustion should be excused because prisoner grievances were regularly rejected.
The Court of Appeals has also rejected “sensitive subject matter or ‘fear of
retaliation’ as a basis for excusing a prisoner’s failure to exhaust.” Pena-Ruiz v.
Solorzano, 281 Fed. Appx. 110, 113 (3d Cir. 2008). Based upon those decisions
and the fact that Plaintiff pursued and exhausted an unrelated grievance,
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Grievance No. 347886, subsequent to the events underlying his pending claim
against Doctor Stanish undermines the argument that his physical and mental
condition prevented compliance with the exhaustion requirements as well as his
argument that it would have been futile to seek administrative relief.
Plaintiff’s Allah based argument that Doctor Stanish waived his nonexhaustion argument by not raising it in an initial response to the amended
complaint also lacks persuasion. Once again a similar argument was raised and
addressed by this Court’s February 23, 2015 Memorandum and Order. (Docs. 143
and 144). As previously noted, Drippe v. Gototweski, 434 Fed. Appx. 79 (3d Cir.
2011), a post Allah decision by the Third Circuit Court of Appeals, held that a
failure to file a timely summary judgment motion based upon non-exhaustion of
administrative remedies did not constitute a waiver of that defense, but only a
waiver of the moving defendant’s ability to receive summary adjudication of that
defense. This matter does not involve an untimely summary judgment motion.
Moreover, Drippre recognized that it is appropriate to raise a non-exhaustion
defense in a timely pre-trial motion. Second, resolution of a non-exhaustion
defense often involves reliance on facts outside of those asserted in the complaint;
thus, a non-exhaustion argument must be pursued via a summary judgment motion
as opposed to a motion to dismiss. There was no prior summary judgment motion
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filed by Doctor Stanish in this matter. Based upon those considerations and
because the undisputed record shows that the surviving federal claim against
Remaining Defendant Stanish was administratively unexhausted, entry of
summary judgment is appropriate.5
2.

Pendent Jurisdiction

Federal courts have jurisdiction over state claims which are related to the
federal claims and result from a common nucleus of operative facts. See United
Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); see also Aldinger v. Howard,
427 U.S. 1, 9 (1976). Supplemental jurisdiction may be declined over a claim
when the court has dismissed all claims over which it has original jurisdiction.
See 28 U.S.C. § 1367(c)(3) (1997). Decisions regarding pendent jurisdiction
should be premised on considerations of judicial economy, convenience and
fairness to the litigants. New Rock Asset Partners v. Preferred Entity
Advancements, 101 F.3d 1492, 1505 (3d Cir. 1996)(citation omitted).
Once jurisdiction has been exercised over the state claim, elimination of the
federal claim does not deprive the court of jurisdiction to adjudicate the pendent

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In light of the Court’s determination that the Remaining Defendant is entitled
to entry of summary judgment on the basis of non-exhaustion of administrative
remedies, the alternative summary judgments arguments raised by Doctor
Stanish will not be addressed.
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claim. Id. (citing Lentino v. Fringe Emp. Plans, Inc., 611 F. 2d 474, 479 (3d Cir.
1979)). However, when the federal claim is dismissed prior to trial, a district court
should decline to decide the pendent state claims, “unless considerations of
judicial economy, convenience, and fairness provide an affirmative justification
for doing so.” Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
1995).
In light of this Court’s determination that Remaining Defendant Stanish is
entitled to entry of summary judgment with respect to Plaintiff’s federal claims on
the basis of non-exhaustion, jurisdiction will be declined with respect to any
pendent state law claims against the Remaining Defendant.
A separate Order will be issued.
Date: March 10, 2015

/s/ William J. Nealon
United States District Judge

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