Buehl v. Harewood et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable A. Richard Caputo on 3/7/17. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROGER BUEHL,
CIVIL ACTION NO. 3:16-cv-00822

Plaintiff,

(JUDGE CAPUTO)

v.
WEXFORD HEALTH SOURCES, INC., et
al.,

(MAGISTRATE JUDGE
SAPORITO)

Defendants.
MEMORANDUM
Presently before the Court is the Report & Recommendation of Magistrate Judge
Saporito (Doc. 10) to a Partial Motion to Dismiss (Doc. 3) filed by Defendants Correct Care
Solutions, LLC, Wexford Health Sources, Inc., Dr. Adrian Harewood, and Dr. Haresh
Pandya (the “Medical Defendants”), and a Motion to Dismiss (Doc. 5) filed by Defendants
Christopher Oppman, Vicki Stanishefski, R.N., and Mary Alice Kuras, R.N. (the “Corrections
Defendants”). Plaintiff Roger Buehl brings this action pursuant to, inter alia, 42 U.S.C. §
1983 for a violation of his rights under the Eighth Amendment to the United States
Constitution. The Medical Defendants seek dismissal of Counts I and V of Plaintiff’s Second
Amended Complaint (“SAC”) (Doc. 1-1) for failure to state a claim. The Corrections
Defendants seek dismissal of all Counts for failure to state a claim. Magistrate Judge
Saporito recommended that Count I of Plaintiff’s SAC, which raises Plaintiff’s only federallaw claim, be dismissed against all Defendants for failure to state a claim, and that the Court
decline to exercise supplemental jurisdiction over Plaintiff’s state-law claims raised in
Counts II-V. For the reasons that follow, the Magistrate Judge’s Report and
Recommendation will be adopted in part and rejected in part.
I. Background
The facts as stated in Plaintiff’s SAC (Doc. 1-1) can be summarized as follows:

Plaintiff Roger Buehl has been an inmate under the continuous care, custody, and
control of the Pennsylvania Department of Corrections (“DOC”) since 1983. (SAC ¶ 10.)
Healthcare staff at SCI Smithfield, SCI Mahanoy, and SCI Frackville have been responsible
for Buehl’s healthcare from June 2007 to date. (Id.) Buehl began experiencing pain and
losses of both strength and range of motion in his right shoulder prior to 2009. (Id. ¶ 11.) In
2009, Buehl was diagnosed by DOC healthcare staff with rotator cuff tendinitis in his right
shoulder. (Id. ¶ 12.) DOC healthcare staff began treating Buehl with ibuprofen and both oral
and injected steroids. (Id.) In late 2009, Buehl was hospitalized for failure of renal function.
(Id. ¶ 13.) By early 2010, routine blood lab results suggested that Buehl’s loss of renal
function was attributable to long-term use of ibuprofen and other non-steroidal antiinflammatory medicines. (Id. ¶ 14.) The DOC healthcare staff explored various alternative
medications for treating Buehl’s shoulder pain, and by mid-2011 Buehl was receiving
Neurontin, both oral and injected steroids, and low-dose ibuprofen. (Id. ¶¶ 15-16.) However,
in early 2012 Buehl began experiencing increases in the severity of pain and greater losses
of strength and range of motion in his right shoulder. (Id. ¶ 17.) In March 2012, after
performing an x-ray on his shoulder, the DOC healthcare staff diagnosed Buehl with
glenohumeral degenerative joint disease. (Id. ¶ 18.)
In late 2012 or early 2013, DOC healthcare staff began treating Buehl with tramadol,
a non-narcotic opioid, along with Neurontin, oral and injected steroids, and low-dose
ibuprofen. (Id. ¶ 19.) On July 26, 2013, another x-ray of Buehl’s shoulder confirmed that he
had moderate degenerative joint disease of the right shoulder. (Id. ¶ 23.) DOC healthcare
staff changed Buehl’s medications, and prescribed Tylenol with Codeine No. 3 instead of
tramadol. (Id. ¶ 24.) Buehl informed DOC healthcare staff that he did not want the
acetaminophen or narcotic in the Tylenol, and instead preferred tramadol for managing his
pain. (Id.) At that time, the staff advised Buehl that a regional medical director imposed new

2

restrictions on tramadol prescriptions. (Id.) Through early 2014, DOC healthcare staff
prescribed Tylenol with Codeine No. 3 or oxycodone, along with Neurontin, ibuprofen, and
occasionally steroids to treat Buehl’s shoulder pain. (Id. ¶ 25.) Buehl was eventually
prescribed hydrocodone and then, at Buehl’s request, he was provided tramadol again. (Id.)
Sometime in 2013, Defendant Christopher Oppman, in his capacity as Director of the
Bureau of Healthcare Services, approved and implemented clinical practice or
pharmaceutical guidelines (the “Guidelines”), which applied to most pain medications that
could be prescribed for inmates and effectively curtailed the authority of DOC healthcare
staff to exercise their independent professional judgment in prescribing pain medications.
(Id. ¶¶ 26-27, 78.)
On January 30, 2014, Dr. Lisiak noted that Buehl was “recently changed from
oxycodone to Norco” and that Buehl claimed the Norco was “not effective in relieving his
pain.” (Id. ¶ 29.) Dr. Lisiak also noted that Buehl had been “changed to Ultram [tramadol]
and Neurontin (as was effective in the past),” but that Buehl claimed that this regimen was
“not effective in relieving pain, [and was] asking about oxycodone.” (Id.) Dr. Lisiak requested
Buehl be evaluated by the regional medical director. (Id.)
On February 5, 2014, Buehl was examined by Dr. Anthony Chiavacci, Wexford’s
Regional Medical Director, regarding Buehl’s request to alter his medications. (Id. ¶ 30.)
Buehl requested to have his tramadol dosage increased. (Id. ¶ 31.) However, Dr. Chiavacci
instead “planned to discontinue” Buehl’s tramadol treatment, tapered off his Nuerontin, and
placed Buehl on Motrin 600 mg three times a day. (Id.) Buehl’s prescriptions for tramadol
and Nuerontin were reduced and then terminated in early 2014 pursuant to Dr. Chiavacci’s
orders. (Id. ¶ 33.) Subsequently, DOC healthcare staff provided Buehl with ibuprofen and
Nortriptyline, a tricyclic antidepressant, which were ineffective in treating his shoulder pain.
(Id.)

3

In February 2014, Dr. Chiavacci approved an orthopedic consult for Buehl. (Id. ¶ 34.)
On March 21, 2014, Dr. Thomas Martin, an orthopedist, examined Buehl. (Id. ¶ 35.) After
conducting several x-rays, Dr. Martin diagnosed Buehl with advanced glenohumeral
osteoarthritis, complete erosion of the cartilage, and development of at least one humeral
head spur in Buehl’s right shoulder. (Id.) According to Dr. Martin, the only option for
treatment of the underlying condition was a total shoulder replacement. (Id.) In the
alternative, Dr. Martin recommended tramadol and intermittent courses of steroids for
treatment of the pain. (Id.) On April 3, 2014, Buehl saw Nelson Iannuzzi, CRNP, and noted
that he was still experiencing severe right shoulder pain, but wanted to defer surgery as long
as possible. (Id. ¶ 37.) Iannuzzi noted a treatment plan that decreased Buehl to 400mg of
Motrin three times a day and provided Nortriptyline. (Id. ¶ 38.) Five days later, Buehl went
to the MD line at SCI Mahanoy and saw Dr. Lisiak, who continued Buehl’s current
medication, Motrin, and directed him to follow up in one to two weeks. (Id. ¶¶ 39-41.)
On April 14, 2014, Buehl was transferred from SCI Mahanoy to SCI Frackville. (Id.
¶ 42.) Beginning in May 2014, Buehl repeatedly asked Defendant Dr. Harewood to
prescribe him tramadol, as recommended by the orthopedist, or any other more effective
medicine to treat his shoulder pain. (Id. ¶ 47.) However, Dr. Harewood provided Buehl with
only ibuprofen and “one short course of steroids.” (Id.) On May 23, 2014, Buehl was
evaluated by a physical therapist, after which Dr. Harewood assessed that Buehl had
“frozen shoulder” and noted that the physical therapist recommended “surgical
intervention/evaluation.” (Id. ¶ 48.) Dr. Harewood accordingly proposed a consultation for
orthopedic surgery, which was approved. (Id.)
On June 5, 2014, Buehl saw Dr. Harewood again and requested tramadol for pain.
(Id. ¶ 49.) Dr. Harewood planned for Buehl to follow-up with the orthopedic department,
recommended he continue with his current medications, and noted there was “[n]o need for

4

narcotic medications.” (Id.)
On June 13, 2014, Dr. Martin performed an orthopedic evaluation of Buehl and noted
that Buehl had “pretty significant glenohumeral arthritis.” (Id. ¶ 50.) Dr. Martin spoke with
Buehl about the prospect of a shoulder replacement, to which Buehl expressed “appropriate
reservations.” (Id. ¶ 51.) Dr. Martin noted that Buehl was “not an ideal candidate” for a
shoulder replacement, and stated that he thought Buehl “would be better treated with
Tramadol.” (Id.) Dr. Martin also stated that Buehl’s diagnosis “[w]arrant[ed] this level of pain
medicine.” (Id.)
On July 1, 2014, Dr. Harewood declined to prescribe Buehl with tramadol and instead
planned to continue Buehl on Motrin and prescribed Buehl with “Prednisone (steroid) 60 mg
daily for 5 days.” (Id. ¶ 52.) When Buehl pointed out that ibuprofen had caused renal
insufficiency problems in the past, and that his renal function should be monitored by
diagnostic testing, Dr. Harewood terminated all medications and treatment. (Id. ¶ 53.)
On July 10, 2014, Dr. Harewood saw Buehl who again requested Ultram (tramadol)
for his shoulder pain. (Id. ¶ 54.) Dr. Harewood denied Buehl’s request, and instead told
Buehl to “. . . take over the counter pain medications as needed” and “[r]ecommended
exercise and strengthening.” (Id.)
Beginning in September 2014, Buehl repeatedly asked Defendant Dr. Pandya to
prescribe tramadol or any other more effective medicine to treat his shoulder pain.1 (Id. ¶
55.) Buehl informed Dr. Pandya that the medicines currently provided were not helpful in
managing his pain. (Id.) However, Dr. Pandya did not provide anything to treat Buehl’s pain
other than ibuprofen or acetaminophen. (Id.)
On December 2, 2014, labs were taken which revealed that Buehl had “. . .

1

Dr. Pandya succeeded Dr. Harewood as Medical Director on September 1, 2014.
(Compl. ¶ 5-6, 55; R&R 16, 21.)
5

decreased kidney function probably related to his prolonged use of Motrin.” (Id. ¶ 57.) The
labs specifically revealed that Buehl had “[i]ncreased BUN (blood urea nitrogen) and serum
Creatinine,” as well as “[d]ecreased GFR (glomerular filtration rate).” (Id.) On December 30,
2014, additional labs were conducted which revealed Buehl had “[i]ncreased BUN, serum
Creatinine, and deceased GFR.” (Id. ¶ 58.)
On January 9, 2015, Dr. Pandya examined Buehl again, at which time Buehl gave
Dr. Pandya a copy of the orthopedist report and requested effective treatment for his
shoulder pain. (Id. ¶ 59.) Dr. Pandya read the record, and confirmed the presence of those
records in Buehl’s medical file. (Id.) Dr. Pandya then informed Buehl that the orthopedist
recommendations were appropriate, but that the Guidelines precluded him from prescribing
tramadol or any similar medication to treat Buehl’s pain. (Id.) Dr. Pandya once again
prescribed ibuprofen and acetaminophen on a long-term basis. (Id. ¶¶ 59-60.)
Beginning in May 2014, Buehl repeatedly submitted written Request to Staff
communications to Defendant Stanishefski, RN and Healthcare Administrator at SCI
Frackville, in which Buehl asked Defendant Stanishefski to review his pain treatment, refer
him to another physician, and require DOC healthcare staff to provide him with treatment
consistent with community standards of care. (Id. ¶¶ 7, 63, 75.) Defendant Kuras, RN and
Registered Nurse Supervisor at SCI Frackville, provided written responses to each written
request that Buehl addressed to Defendant Stanishefski, and those responses typically
instructed Buehl to “sign up for sick call,” file an official inmate grievance, or otherwise
indicated that no remedial action would be taken. (Id. ¶¶ 8, 64, 76.)
Between May 2014 and December 2014, numerous communications about Buehl’s
shoulder condition and related medical treatment were directed to Defendant Oppman’s
attention. (Id. ¶¶ 81, 83.) Each communication requested review and remedial action to
ensure Buehl was provided with medical treatment and pain management consistent with

6

the community standard of care. (Id. ¶ 82.) Defendant Oppman provided responses on
several occasions, in which he approved of the treatment that was being provided to Buehl
and upheld the provider physicians’ deference to, and application of, the Guidelines. (Id. ¶
83.)
II. Legal Standard
A. Reviewing a Report & Recommendation
When objections to the Magistrate Judge's Report are filed, the court must conduct
a de novo review of the contested portions of the Report. Sample v. Diecks, 885 F.2d 1099,
1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)). However, this only applies to the
extent that a party's objections are both timely and specific; if objections are merely “general
in nature,” the court “need not conduct a de novo determination.” Goney v. Clark, 749 F.2d
5, 6–7 (3d Cir. 1984). Indeed, the Third Circuit has instructed that “providing a complete de
novo determination where only a general objection to the report is offered would undermine
the efficiency the magistrate system was meant to contribute to the judicial process.” Id. at
7. In conducting a de novo review, the court may accept, reject, or modify, in whole or in
part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. §
636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993).
Although the review is de novo, the law permits the court to rely on the
recommendations of the magistrate judge to the extent it deems proper. See United States
v. Raddatz, 447 U.S. 667, 675–76 (1980); Goney, 749 F.2d at 7; Ball v. United States
Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa.1994). Uncontested portions of the Report
may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474
U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court should review
uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.
Supp. 375, 376–77 (M.D. Pa. 1998). Therefore, the Court reviews the portions of the Report

7

& Recommendation to which the petitioner objects specifically de novo. The remainder of
the Report & Recommendation, and any portion the petitioner objects to generally, is
reviewed for clear error.
B. 12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
determining if a plaintiff is entitled to offer evidence in support of her claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
A pleading that states a claim for relief must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual
allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). As such, “[t]he touchstone of the pleading
standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)

8

identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to raise a
reasonable expectation that discovery will reveal evidence of’” each necessary element.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S.
at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
“When there are well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic”
documents when the plaintiff's claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar. Corp.,
998 F.2d at 1196. The Court need not assume that the plaintiff can prove facts that were
not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
263 & n.13 (3d Cir. 1998), or credit a complaint's “‘bald assertions’” or “‘legal conclusions,’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
III. Discussion

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On November 18, 2016, Magistrate Judge Saporito issued the instant Report and
Recommendation (“R&R”), recommending Defendants’ Motions be granted in part and
denied in part. Specifically, the Magistrate Judge recommended that the Court dismiss
Count I of Plaintiff’s SAC, which asserts a violation of the Eighth Amendment against
Defendants Dr. Harewood, Dr. Pandya, Oppman, Stanishefski, and Kuras, decline to
exercise supplemental jurisdiction over the state-law claims contained in Counts II-V,
and remand this action back to the Court of Common Pleas of Schuykill County for
further proceedings. (R&R at 29-30, Doc. 10.)
On December 2, 2016, Buehl raised four objections in response to the R&R.
(Doc. 11.) First, Buehl argues that the Magistrate Judge erred in finding that the SAC
fails to allege facts supporting an Eighth Amendment claim against Defendants Dr.
Harewood and Dr. Pandya. Second, Buehl objects to the Magistrate Judge’s conclusion
that the SAC fails to allege facts supporting an Eighth Amendment claim against
Defendant Oppman. Third, Buehl claims the Magistrate Judge erred in finding that the
SAC fails to allege that Defendants Stanishefski and Kuras had the requisite knowledge
that Buehl was being denied appropriate medical care. Finally, Buehl’s fourth objection
seeks to clarify that Buehl did not allege a § 1983 claim against Defendant Wexford
Health Sources, Inc. or Defendant Correct Care Solution, LLC. The Corrections
Defendants filed a brief in opposition to Buehl’s objections on December 16, 2016 (Doc.
12), and the matter is now ripe for disposition.
After reviewing Buehl’s specific objections to the R&R de novo and the remainder
for clear error or manifest injustice, the R&R will be adopted in part and rejected in part.
A.

Defendants Dr. Harewood and Dr. Pandya
The Magistrate Judge concluded that Buehl failed to state a claim upon which

relief can be granted with respect to his Eighth Amendment claim against Defendants

10

Dr. Harewood and Dr. Pandya.2 (R&R 17-22.) According to the Magistrate Judge,
Buehl’s federal-law claim against these two Defendants should be dismissed because
the SAC fails to allege facts evincing deliberate indifference. (Id. at 21 (“[Buehl] has
failed to allege anything more than a difference of a professional opinion between his
prison doctors and a consulting physician with respect to the preferred course of
treatment for his shoulder pain.”).) Buehl objects to this conclusion, and asserts that the
Defendants acted with deliberate indifference “when they intentionally denied Mr. Buehl
a reasonable request for tramadol; when they persisted in treating Mr. Buehl with
ibuprofen while knowing that their approach was not controlling Mr. Buehl’s pain but was
causing permanent injury; [and] when they . . . refused to provide [tramadol] for a nonmedical reason.” (Objections 9, Doc. 11.) Buehl primarily argues that the Magistrate
Judge overlooked the fact that the Defendants’ decisions to prescribe Buehl with
ibuprofen on a long-term basis, despite being aware of his history of renal insufficiency,
states a claim of deliberate indifference. (Id.)
In order to state a claim for a violation of the Eighth Amendment based on
improper medical care, Buehl must allege (1) Defendants were deliberately indifferent to
his medical needs, and (2) those medical needs were serious. See James v. Pa. Dep’t of
Corr., 230 Fed. Appx. 195, 197 (3d Cir. 2007) (citing Estelle v. Gamble, 429 U.S. 97
(1976)).

2

The Magistrate Judge dismissed Buehl’s § 1983 claim against Dr. Harewood and
Dr. Pandya pursuant to the screening provisions of 28 U.S.C. § 1915A and 42
U.S.C. § 1997e(c)(1). See also Onapolis v. Lamanna, 70 F. Supp. 2d 809, 814
(N.D. Ohio 1999) (noting that, under 28 U.S.C. § 1915A, “district courts are
required to screen all civil cases brought by prisoners” and “should sua sponte
dismiss the complaint” if it, inter alia, fails to state a claim upon which relief may
be granted); Jae v. Stickman, No. 12-1332, 2012 WL 5830633, at *1 n.2 (W.D.
Pa. Nov. 16, 2012) (“Section 1997e(c)(1) permits a court to sua sponte dismiss
any action with respect to prison conditions under 42 U.S.C. § 1983, or any other
Federal law, by a prisoner if the court finds that the action is frivolous, malicious,
fails to state a claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief.”).
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A medical need is “serious” if a plaintiff demonstrates that the need is "one that
has been diagnosed by a physician as requiring treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor's attention." Monmouth
Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citation
omitted).
To be deliberately indifferent, Defendants must have both known of and
disregarded an excessive risk to Buehl’s health or safety. Beers-Capitol v. Whetzel, 256
F.3d 120, 133 (3d Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “The
knowledge element of deliberate indifference is subjective, not objective knowledge,
meaning that the official must actually be aware of the existence of the excessive risk; it
is not sufficient that the official should have been aware.” Id. (citing Farmer, 511 U.S. at
837-38). But Defendants’ subjective knowledge can be proved by circumstantial
evidence which demonstrates “that the excessive risk was so obvious that [Defendants]
must have known of the risk.” Id. (citing Farmer, 511 U.S. at 842). Of course, “medical
malpractice, negligence, and courses of treatment inconsistent with the desires of the
prisoner . . . do not constitute deliberate indif ference to serious medical needs.” Lopez v.
Corr. Med. Servs., Inc., 499 Fed. Appx. 142, 146 (3d Cir. 2012) (citing Spruill v. Gillis,
372 F.3d 218, 235 (3d Cir. 2004)). Additionally, Defendants’ use of a different treatment
regimen than that prescribed by a private physician does not amount to deliberate
indifference for purposes of the Eighth Amendment. Johnson v. Cash, 557 Fed. Appx.
102, 104 (3d Cir. 2013) (citing McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977)).
The Third Circuit has “found deliberate indifference to a prisoner's serious medical
needs only where a prison official knows of a prisoner's need for medical treatment but
intentionally refuses to provide it, delays necessary medical treatment for a non-medical
reason, or prevents a prisoner from receiving needed medical treatment.” Lopez, 499
Fed. Appx. at 146 (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
Turning to Buehl’s objections, the Court finds that the allegations in the SAC,
construed in a light most favorable to Buehl, satisfy the deliberate indifference standard
12

for an Eighth Amendment claim against Defendant Dr. Pandya only. As is relevant to the
instant Defendants, Buehl alleges that (1) he was hospitalized for failure of renal
function in 2009; (2) routine diagnostic blood lab testing conducted in early 2010
indicated Buehl had continued problems with his renal functions attributable to long-term
use of ibuprofen and other non-steroidal anti-inflammatory medicines; (3) he was
diagnosed with advanced glenohumeral osteoarthritis, complete erosion of the cartilage,
and development of at least one humeral head spur in his right shoulder in March 2014 3;
(4) Dr. Martin recommended tramadol to treat Buehl’s shoulder pain in June 2014, and
opined that Buehl’s condition “[w]arrant[ed] this level of pain medicine”; (5) neither Dr.
Harewood nor Dr. Pandya provided Buehl with tramadol despite being aware of Dr.
Martin’s recommendation; (6) Buehl continued to experience severe pain in his shoulder
under the treatment regimens recommended by Dr. Harewood and Dr. Pandya; and (7)
labs taken in December 2014 revealed that Buehl had decreased kidney function, which
was “probably related to his prolonged use of Motrin.”
1.

Buehl Fails to State an Eighth Amendment Claim Against Dr.
Harewood

Buehl fails to allege that Dr. Harewood acted with deliberate indifference because
there is no plausible claim that Dr. Harewood consciously disregarded an excessive risk
to Buehl's serious medical needs. The SAC alleges that Buehl was already on a regular
Motrin and Nortriptyline regimen when he arrived at SCI Frackville on April 14, 2014.
(SAC ¶ 45.) Dr. Harewood continued Buehl on his current medications while Buehl was
being examined by a physical therapist and an orthopedist. W hen Buehl informed Dr.
Harewood that ibuprofen had caused renal insufficiency problems in the past, Dr.
Harewood immediately terminated Buehl’s treatment regimen consisting of daily
ibuprofen and recommended over the counter pain medications on an as-needed basis,

3

No party has disputed that either Buehl’s shoulder condition or renal insufficiency
constitutes a serious medical need.
13

as well as exercise and strengthening. Based on these allegations, there is no plausible
claim that Dr. Harewood consciously disregarded a “substantial risk of serious harm” to
Buehl’s kidney health due to persistent use of ibuprofen. Farmer v. Brennan, 511 U.S.
825, 836 (1994); see Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (“[T]he
official must actually be aware of the existence of the excessive risk; it is not sufficient
that the official should have been aware.”). To the contrary, the allegations in the SAC
demonstrate that once Dr. Harewood became aware of the potential for that harm, he
took reasonable steps in terminating the daily Motrin regimen.
Moreover, the fact that Dr. Harewood prescribed “over the counter pain
medications as needed” and “exercise and strengthening,” rather than tramadol or other
pain medication, without more, does not allege deliberate indifference. As a general rule,
a prison doctor’s use of a different treatment regimen than that recommended by a
private physician does not amount to deliberate indifference, regardless of whether the
prisoner believes that the care he received was adequate. See Johnson v. Cash, 557
Fed. Appx. 102, 104 (3d Cir. 2013); Nesmith v. S. Health Partners, No. 11-425, 2012
WL 426606, at *4 (W.D. Pa. Jan. 10, 2012).
Nevertheless, courts have found plausible claims of deliberate indifference when
a prisoner alleges that the provision of medical care was both inadequate and motivated
by improper or non-medical reasons. See Robinson v. Corizon Health, Inc., No. 121271, 2016 WL 7235314, at *7 (E.D. Pa. Dec. 13, 2016). However, even if Dr.
Harewood provided inadequate care, Buehl fails to plausibly allege that Dr. Harewood
acted upon an improper motive in either declining to prescribe Buehl with his preferred
treatment or in recommending exercise and OTC pain medicines as needed after
discontinuing Buehl’s daily Motrin regimen in light of his renal insufficiency concerns. Cf.
Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (explaining that a prison doctor’s
failure to provide adequate medical care is cognizable under the Eighth Amendment
only if it “was deliberate, and motivated by non-medical factors” such as cost-savings,
rather than as “a result of an error in medical judgment”); Robinson, 2016 WL 7235314,
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at *7-*8 (denying motion to dismiss plaintiff’s Eighth Amendment claim when the
complaint alleged defendants’ actions were “motivated in part by financial considerations
and by a plan to hasten the deaths of prisoners with life sentences”); Shultz v. Allegheny
Cty., 835 F. Supp. 2d 14, 23 (W .D. Pa. 2011) (denying a motion to dismiss when plaintiff
plausibly alleged that inadequate care was provided due to a “cost-cutting/saving policy
or practice”). The only conceivable “improper” consideration raised in the SAC is that the
Guidelines somehow prevented or deterred Dr. Harewood from prescribing Buehl with
tramadol or other powerful pain medicines. But Buehl never plausibly alleged that Dr.
Harewood’s medical decisions were affected by the Guidelines–improperly or otherwise.
Instead, the facts as alleged show that Dr. Harewood initially continued Buehl on his
already-prescribed regimen of Motrin and Nortriptyline upon his transfer to SCI Frackville
in April 2014 (SAC ¶¶ 38-47); prescribed Buehl with a course of steroids in May 2014
that were temporarily effective (id. ¶ 47); sent Buehl for an evaluation by both a physical
therapist and an orthopedist in May and June of 2014 (id. ¶ 48-50); concluded that there
was “[n]o need” for tramadol or any “narcotic medications” in June 2014 (id. ¶ 49);
planned to prescribe Buehl with Prednisone in response to his complaints on July 1,
2014 (id. ¶ 52); and, upon learning of Buehl’s history of renal insufficiency problems
caused by ibuprofen, terminated Buehl’s treatment regimen and recommended OTC
pain medicines as needed and strength and exercise on July 10, 2014 (id. ¶¶ 53-54.)
These allegations do not give rise to a plausible claim of deliberate indifference.
Accordingly, because Buehl fails to plausibly allege that Dr. Harewood acted with
deliberate indifference, the Court will adopt the Magistrate Judge’s recommendation and
dismiss Count I as to Dr. Harewood.
2.

Buehl States an Eighth Amendment Claim Against Dr. Pandya

However, with respect to Dr. Pandya, the allegations in the SAC, when viewed in
a light most favorable to Buehl, sufficiently state a claim of deliberate indifference. Buehl
alleges that Dr. Pandya had Buehl undergo diagnostic blood labs in December 2014,
which revealed that Buehl had decreased kidney function “probably related to his
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prolonged use of Motrin.” (SAC ¶ 57.) Despite these results, Dr. Pandya again
prescribed Buehl with ibuprofen and acetaminophen on a long-term basis. (Id. ¶¶ 5960.) Dr. Pandya allegedly told Buehl that the Guidelines precluded him from prescribing
tramadol or any other similar medicine to treat Buehl’s pain. (Id. ¶ 59.)
The SAC sufficiently alleges that Dr. Pandya knew that prescribing Buehl with
ibuprofen on a long-term basis risked causing him serious permanent injury. But despite
being aware of this risk, Dr. Pandya provided Buehl with a potentially harmful treatment
regimen, allegedly due in part to the limitations imposed by the Guidelines, which
exposed Buehl to suffering and the threat of further injury to his kidneys. There are key
distinctions between the allegations concerning Dr. Harewood and Dr. Pandya.
First, Dr. Pandya was aware that Buehl had continued decreased kidney function
stemming from long-term ibuprofen use but nevertheless prescribed ibuprofen on a longterm basis, whereas Dr. Harewood terminated Buehl’s daily Motrin regimen upon
becoming aware of Buehl’s renal insufficiency problems. See Olive v. Wexford Corp.,
494 Fed. Appx. 671, 672 (7th Cir. 2012) (finding that a district court erred when it
“overlooked the principle that a physician who knows that a potential treatment will make
the prisoner worse off must not rely on that approach. . . . Better no treatment than a
harmful one”) (emphasis in original) (internal citations omitted). While Buehl fails to
sufficiently allege that Dr. Harewood consciously disregarded an excessive risk to
Buehl’s kidney health, the same cannot be said of Dr. Pandya.
Second, Dr. Pandya’s medical decisions were allegedly motivated by his belief
that the Guidelines prevented or deterred him from prescribing otherwise “appropriate”
pain medications. Drawing all reasonable inferences in favor of Buehl, the SAC plausibly
alleges that Dr. Pandya’s decision to prescribe ibuprofen and acetaminophen on a longterm basis stemmed from a non-medical consideration, whereas no similar plausible
allegation is made with respect to Dr. Harewood. See Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 583 (3d Cir. 2003) (noting that employee-defendants could be
found deliberately indifferent when their inadequate provision of medical treatment was
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due to an institutional policy that constituted a non-medical reason).
Therefore, Buehl’s assertion that he was prescribed a treatment regimen which
Dr. Pandya knew risked causing Buehl serious potential harm to his kidneys, combined
with the allegation that Dr. Pandya made this decision based on a non-medical reason,
“‘nudge the Eighth Amendment claim across the line between a possible and plausible
claim for relief and create a ‘reasonably founded hope that the [discovery] process will
reveal relevant evidence to support the claim.’” Robinson, 2016 WL 7235314, at *7
(quoting Shultz, 835 F. Supp. 2d at 22 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
559 (2007))). Accordingly, the Court will reject the Magistrate Judge’s recommendation
with respect to this finding, and Buehl’s Eighth Amendment claim against Dr. Pandya will
not be dismissed for failure to state a claim.
B.

Defendants Oppman, Kuras, and Stanishefski
The Magistrate Judge granted the Correction Defendants’ Motion to Dismiss

Count I against Defendants Oppman, Kuras, and Stanishefski for failure to state a claim.
(R&R 22-26.) Buehl’s objections to these findings in the R&R are an identical copy of the
arguments that he raised before the Magistrate Judge. (Compare Pl.’s Br. in Opp’n 8-17,
Doc. 8, with Objections 10-17, Doc. 11.) Because Buehl’s objections to these f indings
are a duplicate of the arguments presented to and considered by the Magistrate Judge,
they are not entitled to de novo review. See Goney v. Clark, 749 F.2d 5, 6–7 (3d
Cir.1984) (noting that only specific objections to a Magistrate Judge’s Report and
Recommendation are entitled to de novo review); Martinez v. Astrue, No. 10-5863, 2011
WL 4974445, at *3 (E.D. Pa. Oct. 19, 2011) (“[O]bjections w hich merely rehash
arguments presented to and considered by a magistrate judge are not entitled to de
novo review.”); Palmer v. Astrue, No. 09–820, 2010 W L 1254266, at *2 (E.D. Pa. Mar.
31, 2010) (“If . . . objections to a Report merely reiterate arguments previously raised
before a magistrate, de novo review is not required.”); Nghiem v. Kerestes, No. 08–cv4224, 2009 WL 960046, at * 1 n.1 (E.D. Pa. Apr. 3, 2009) (declining to engage in
additional review of objections where the objections merely re-articulated all the claims
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and theories for relief that were addressed and dismissed by the magistrate judge). As
the Court finds no clear error or manifest injustice with the Magistrate Judge’s findings
with respect to these Defendants, the Court will adopt these portions of the R&R.
Accordingly, the Corrections Defendants’ Motion to Dismiss Count I as against
Defendants Oppman, Kuras, and Stanishefski will be granted.
C.

Defendants Wexford Health Services, Inc. and Correct Care, LLC
Lastly, Buehl asserts in his objections that, although the Magistrate Judge

accurately concluded that Buehl failed to allege a § 1983 claim against Defendants
Wexford Health Services, Inc. and Correct Care, LLC, the SAC did not assert such a
claim against these two Defendants. (Objections 17-18.) Rather, Buehl notes that he
asserted only claims for negligence against Defendants Wexford and Correct Care, and
consequently the cases cited in the R&R are “not applicable.” The Court recognizes that
Buehl failed to specifically include either Defendant Wexford or Defendant Correct Care
under the heading of any Count in the SAC, which creates confusion as to which
claim(s) is being brought against these two Defendants. The Magistrate Judge noted the
confusion. (See R&R 28 n.4.)
The Court will construe Buehl’s objection as conceding that he has failed to state
a § 1983 claim against these two Defendants and is proceeding against Wexford and
Correct Care only on a theory of negligence. Accordingly, the Court will reject this portion
of the R&R as moot.
D.

Buehl’s State-Law Claims
Because the Magistrate Judge recommended dismissing Buehl’s federal-law

claims, the R&R did not address the merits of Buehl’s state-law claims and instead
recommended that the Court decline to exercise supplemental jurisdiction pursuant to 28
U.S.C. § 1367(c)(3). (R&R 28-29.) However, because the Court will not dismiss Buehl’s
Eighth Amendment claim as to Defendant Dr. Pandya, the Magistrate Judge’s basis for
declining to exercise supplemental jurisdiction no longer exists. Accordingly, the Court
will not adopt this portion of the R&R.
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E.

Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to a 12(b)(6)

dismissal, the district court must permit a curative amendment, unless an amendment
would be inequitable or futile. Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir.
2008); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane
v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)). Here, because Buehl m ay be able to
allege facts sufficient to state an Eighth Amendment claim against Defendants Dr.
Harewood, Oppman, Kuras, and Stanishefski, the Court will grant leave to amend Count
I with respect to these Defendants.
IV. Conclusion
For the above stated reasons, the Court adopts in part and rejects in part Magistrate
Judge Saporito’s R&R. Count I of Plaintiff’s SAC will be dismissed without prejudice as to
Defendants Dr. Harewood, Oppman, Kuras, and Stanishefski. Plaintiff shall have twentyone (21) days from the date of entry of this Memorandum and accompanying Order to file
an amended complaint; otherwise, these claims will be dismissed with prejudice.
Count I of Plaintiff’s SAC will not be dismissed as to Defendant Pandya. The Court
will reject as moot the R&R’s findings with respect to the § 1983 liability of Defendants
Wexford Health Sources, Inc. and Correct Care Solution, LLC. The Court will reject the
R&R’s recommendation to decline to exercise supplemental jurisdiction over Plaintiff’s statelaw claims pursuant to 28 U.S.C. § 1367(c)(3). The R&R will be adopted in all other
respects, and the matter will be recommitted to the Magistrate Judge for further
proceedings.

An appropriate order follows.

March 7, 2016
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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