Cowher v. Pike County Correctional Facility et al
Filing
93
MEMORANDUM (Order to follow as separate docket entry)- Amended Memorandum regarding the Motions for Summary Judgment (Docs. 71; 75). Signed by Magistrate Judge Karoline Mehalchick on 7/23/2019. (cw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MYRON COWHER,
Plaintiff,
CIVIL ACTION NO. 3:16-CV-02259
v.
(MEHALCHICK, M.J.)
PIKE COUNTY CORRECTIONAL
FACILITY, et al.,
Defendants.
AMENDED MEMORANDUM
Before the Court are two Motions for Summary Judgment submitted by both sets of
Defendants, PrimeCare and Correct Care. For the reasons set forth herein, the Court grants
the Defendants’ motions for summary judgment.
I.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Myron Cowher (“Cowher” or “Plaintiff”) commenced this action on
November 10, 2016, while incarcerated at the Pike County Correctional Facility. (Doc. 1, at
¶ 1). The operative complaint in this action is Cowher’s second amended complaint, filed on
June 27, 2017 against the following Defendants: Pike County, Warden Craig A. Lowe,
Assistant Warden Jonathan J. Romance, Assistant Warden Robert E. McLaughlin,
PrimeCare Medical Inc., Kendle Jeminola, Denise Jeminola, Derek Hughes, Thomas J.
Weber, Todd W. Haskins, the Pennsylvania Department of Corrections (“DOC”),
Superintendent Theresa Delbalso of State Correctional Institute (“SCI”) Mahanoy, Laurel
Harry of SCI Camp Hill, and Correct Care Solutions. (Doc. 29, at 1-2).
Defendants DOC, Theresa Delbalso, Laurel Harry, Pike County, Craig A. Lowe,
Jonathan J. Romance, and Robert E. McLaughlin were previously dismissed from this action.
(Doc. 44); (Doc. 56 at ¶ 2); (Doc. 70, at 1). The remaining defendants are PrimeCare Medical
Inc., Kendle Jeminola, Denise Jeminola, Derek Hughes, Thomas J. Weber, Todd W. Haskins
(the “PrimeCare Defendants” or “PrimeCare”) and Correct Care. Cowher brings an Eighth
Amendment deliberate indifference claim and a Monell claim against both the Prime Care and
Correct Care Defendants. (Doc. 29, at 11; 19). Cowher also asserts state law claims against
both Defendants. (Doc. 29, at 15; 17).1 Specifically, Cower alleges the Defendants acted
unlawfully and with deliberate, intentional, willful, unreasonable, malicious, and/or reckless
indifference to his need for surgery and to following his prescription medication regiment, by
failing to recognize the need for medical attention, and failing to provide medical care, all in
violation of his Eighth Amendment rights. (Doc. 29). Cowher’s claims against the PrimeCare
Defendants arise from his medical treatment by those defendants during his incarceration at
the Pike County Correctional Facility from May 23, 2016 through November 17, 2016, when
he was transferred to SCI-Graterford. (Doc. 72 at 6 ¶ 18; at 36 ¶ 132); (Doc. 73 at 7). His
claims against Correct Care stem from his medical treatment at SCI Camp Hill, SCI
Graterford, and SCI Mahanoy. (Doc. 77 at 1 ¶ 2).
Cowher seeks “compensatory damages, including damages for pain and suffering and
emotional distress in excess of $75,000.00, as well as attorney’s fees under 42 U.S.C. § 1988
and punitive damages, pre- and post- judgment interest, delay damages, and… other
monetary relief.” (Doc. 29 at 22).
However, in his briefs in opposition to Defendants’ motions for summary judgment,
Cowher withdrew his claims for medical negligence and intentional infliction of emotional
distress against the Defendants. (Doc. 82, at 4, n. 1; Doc. 84, at 3, n. 1).
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2
Following the close of discovery, both the PrimeCare Defendants and Correct Care
moved for summary judgment (Doc. 71; Doc. 75) and submitted briefs in support (Doc. 73;
Doc. 76) and statements of material facts (Doc. 72; Doc. 77). Both the PrimeCare Defendants
and Correct Care aver that the undisputed record does not support either Cowher’s claim of
deliberate indifference to a serious medical need, his Monell claim, or his remaining state law
claims of negligence and intentional infliction of emotional distress. Additionally, Correct
Care submits that Cowher failed to exhaust his administrative remedies and is thus barred
from pursuing his claims in this Court. Cowher filed briefs in opposition to the motions for
summary judgment (Doc. 82; Doc. 84), and answers to each statement of facts (Doc. 81; Doc.
83). The PrimeCare Defendants filed a reply brief (Doc. 84) and an answer to Cowher’s
responsive statement of facts (Doc. 86).
Both motions for summary judgment are ripe for review. The following facts are
material to the motions for summary judgment.2
The material facts from the movant’s statement of facts will be deemed admitted,
unless the opposing party specifically disputes that fact in its response. See M.D. Pa. Local
Rule (“LR”) 56.1. Although separate counterstatements of fact not directly responsive to the
movant’s statement of fact are not contemplated by the Local Rule, the Court may consider
the entire record to ascertain the relevant factual background for this matter, but the Court
may assign those additional statements no evidentiary value. Rau v. Allstate Fire & Cas. Ins.
Co., No. 3:16-CV-0359, 2018 WL 6422121, at *2 (M.D. Pa. Dec. 6, 2018); Williams Controls,
Inc. v. Parente, Randolph, Orlando, Carey & Associates, 39 F. Supp. 2d 517, 519 n.1 (M.D. Pa.
1999); see also Ball v. Buckley, No. 1:11-CV-1829, 2012 WL 6681797, at *1 (M.D. Pa. Dec.
21, 2012) (declining to strike counterstatements of fact not directly responsive to the statement
of material fact in support of a motion, so that litigation could proceed without the
unnecessary delay that would be caused by striking the counterstatements and directing the
plaintiff to attempt to file a new counterstatement that more closely adheres to the Local Rules
of this Court.).
2
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A. COWHER’S PRE-INCARCERATION MEDICAL HISTORY
In 2008, Cowher underwent surgery for a right meniscus tear and for left-sided
arthritis. (Doc. 72, at ¶ 1). On April 16, 2016, Cowher suffered a work-related injury. (Doc.
72, at ¶ 2). On April 27, 2016, Cowher saw medical providers at a MedExpress and reported
that he was suffering from shoulder and back pain, as well as leg numbness, stemming from
his work-related injury. (Doc. 72, at ¶ 2). Cowher received X-Rays, which did not reveal any
significant medical abnormality, and MedExpress recommended that Cowher receive an
MRI. (Doc. 72, at ¶¶ 3-4). Cowher underwent three MRI’s in early May 2016, none of which
noted an urgent need for surgery. (Doc. 72, at ¶¶ 7-8, 10).
On May 10, 2016, a MedExpress physician “recommended that MedExpress arrange
for the cervical spine MRI and re-schedule the neurosurgery appointment that was previously
scheduled to occur on June 21, 2016, to occur sooner.” (Doc. 72, at ¶ 9). Cowher met with
Dr. Dana Louise Vanino, a neurologist at Geisinger Medical Center, on May 19, 2016. (Doc.
72, at ¶ 12). Dr. Vanino recommended that Cowher be evaluated by a neurosurgeon. (Doc.
72, at ¶ 13). At his final evaluation at MedExpress on May 21, 2016, the physician noted
“significant findings mostly on cervical MRI; Intensity: Now-4.” (Doc. 72, at ¶ 14); (Doc. 721, at 14); (Doc. 81, at ¶ 14).
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B. INCARCERATION AT PIKE COUNTY CORRECTIONAL FACILITY
Cowher began his incarceration at the Pike County Correctional Facility on May 23,
2016, with an expected end date of August 4, 2016. (Doc. 72, at ¶¶ 16-17). Cowher first
presented to the PrimeCare Medical Defendants at the Correctional Facility on May 23, 2016
and received medical care from them through November 17, 2016. (Doc. 72, at ¶ 19). At
Cowher’s intake screening evaluation, LPN Melissa Erickson noted Cowher walked with a
cane, was taking a few medications at the time, and stated a medical history which included
cervical stenosis of spinal canal and disc herniation C4-C7. (Doc. 72, at ¶ 20). She assigned
Cowher a bottom bunk and allowed him to retain his cane and neck brace. (Doc. 72, at ¶ 20).
At his intake evaluation, Cowher stated he had not taken any of his medications since May
20, 2016 because he did not want to be medicated during his trial. (Doc. 72, at ¶ 22).
PrimeCare verified Cowher’s prescriptions with his outside medical providers, who
ordered that: Cowher’s course of Flexeril be completed by May 24, 2016; his course of
Neurontin be completed by May 29, 2016; and his course of Prednisone taper be completed
by June 16, 2016. (Doc. 72, at ¶ 24). On May 24, 2016, Dr. Wloczewski of PrimeCare met
with Cowher and noted mild distortion with C6-C7 of the spinal cord, C4-C5 stenosis, and
that a neurosurgery office appointment was scheduled for June 21, 2016. (Doc. 72, at ¶ 30).
Dr. Wloczewski issued orders for Cyclobenzaprine (aka Flexeril), Nortriptyline rather than
Gabapentin (aka Neurontin), and the Prednisone taper. (Doc. 72, at ¶ 31). The neurosurgery
office appointment was moved to May 31, 2016; however, Cowher did not attend this
appointment. (Doc. 72, at ¶¶ 33, 40).
Cowher’s next neurosurgery appointment was scheduled to take place on July 19,
2016. (Doc. 72, at ¶ 46). However, on June 7, 2016, PrimeCare did not approve the July 19th
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surgery because workers’ compensation would not pay for the surgery while Cowher was
incarcerated. (Doc. 72, at ¶ 48). On June 9, 2016, PA-C Andrew McMaster evaluated Cowher
for his complaint of pain. (Doc. 72, at ¶ 49). PA McMaster discontinued Robaxin and added
Flexeril, but otherwise continued with Cowher’s previously prescribed medication. (Doc. 72,
at ¶ 49). On June 16, 2016, PrimeCare increased Cowher’s dosage of Flexeril from 5 mg to
10 mg, in light of Cowher’s muscle spasms. (Doc. 72, at ¶ 55). On June 28, 2016, Dr.
Wloczewski evaluated Cowher and assessed that he had chronic pain, thereby increasing
Cowher’s dosage of Nortriptyline for nerve pain from one capsule at bedtime to two. (Doc.
72, at ¶¶ 59-60). The following day Cowher underwent X-rays for his right hip and pelvis,
which showed Cowher had a normal right hip, and a “normal limited pelvis.” (Doc. 72, at ¶
61).
On July 12, 2016, PrimeCare approved Cowher’s July 19th neurosurgery appointment,
but again noted that the workers’ compensation carrier continued to refuse to pay for the
appointment while he was incarcerated. (Doc. 72, at ¶ 64). On July 19th, Dr. Rajjoub, of
Lycoming Neurological Associates, reviewed three of Cowher’s previous MRIs and noted a
variety of ailments. (Doc. 72, at ¶ 65). Dr. Rajjoub documented the following treatment plan:
Discussed the findings with Mr. Cowher at length. Explained surgery and
alternatives. Explained non-surgical treatment and risks including doing
nothing. Explained risks such as infection, numbness, pain, paralysis,
weakness, hoarse voice, swallowing difficulty, pain, blood loss, CSF leak, nonunion of fusion, instability, vocal cord paralysis or voice change, etc. He
indicated understanding and wishes to proceed with surgery. Please call to
arrange for anterior cervical diskectomy C6-7 with allograft bone and
instrumentation. B proteins are not used in this procedure.
(Doc. 72, at ¶ 66).
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Dr. Rajjoub’s evaluation did not recommend Cowher undergo lumbar back, knee, or
hip surgery of any kind, but noted that an anterior cervical diskectomy C4-5 and C6-7 with
allograft bone and instrumentation should be arranged. (Doc. 72, at ¶ 68; Doc. 81, at ¶ 66).
On July 19, 2016, LPN Kimberly Montauredes documented that “[p]atient is recommended
to have cervical diskectomy with fusion – will have HSA call office to schedule.” (Doc. 72, at
¶ 70).3
As of July 21, 2016, Cowher was scheduled for cervical surgery to occur at
Williamsport Hospital on September 2, 2016. (Doc. 72, at ¶ 71). On July 26, 2016, PrimeCare
noted “Corporate will NOT pay for surgery. If Pt. wants it he must pay on his own.” (Doc.
81, at ¶ 72). In late July, PrimeCare made orders for certain prescription medications on
Cowher’s behalf. (Doc. 72, at ¶¶ 74, 77, 78). On August 7, 2016, LPN Kimberly Montauredes
evaluated Cowher with respect to his complaints that his musculoskeletal pain was not
relieved by his current medications. (Doc. 72, at ¶ 81). However, Cowher was to continue
with the medication regimen until such time as he could be further evaluated by a medical
provider. (Doc. 72, at ¶ 81).
On August 11, 2016, the Honorable Gregory H. Chelak sentenced Cowher to a period
of incarceration, to be served in State Correctional Institutions, where PrimeCare would no
longer be responsible for providing Cowher’s medical care. (Doc. 72, at ¶ 82). On September
Cowher disputes the date this note was made, asserting the note “appears to have
been made between May 23, 2016 and June 14, 2016.” (Doc. 81, at ¶ 70).
3
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1, 2016, HSA Kendle Jeminola completed a Transfer of Health Information, noting Cowher’s
chronic and acute health problems. (Doc. 72, at ¶ 84).
On September 12, 2016, LPN Erickson evaluated Cowher and assessed him with back
pain and referred him to a provider. (Doc. 72 at, ¶ 86). On September 20, Dr. Wloczewski
evaluated Plaintiff's right hand and assessed Plaintiff as possibly having Raynaud's disease
and ordered a trial of Norvac. (Doc. 72, at ¶ 89). On October 6, 2016, Paulina Foley, PA-C
re-evaluated Plaintiff's right hand because he reported that the trial of Norvac was ineffective.
(Doc. 72, at ¶ 95). On October 18, 2016, Cowher underwent the pre-operative consultation
with Dr. Rajjoub. (Doc. 72, at ¶ 99). Dr. Rajjoub noted Cowher’s diagnosis of Raynaud's
disease and documented the ongoing pain in his cervical spine, shoulder and/or arm, and
right hip, as well as numbness and/or tingling to his low back. (Doc. 72, at 99). Pre-admission
testing and surgical instructions were provided. (Doc. 72, at ¶ 99). Dr. Rajjoub's notes from
October 18, 2016 specifically include:
Discussed the findings with Mr. Cowher at length. Explained surgery and
alternatives. Explained non-surgical treatment and risks including doing
nothing. Explained risks such as infection, numbness, pain, paralysis,
weakness, hoarse voice, swallowing difficulty, pain, blood loss, CSF leak, nonunion of fusion, instability, vocal cord paralysis or voice change, etc. He
indicated understanding and wishes to proceed with surgery. Please call to
arrange for anterior cervical diskectomy C4-5 and C6-7 with allograft bone and
instrumentation. B proteins are not used in this procedure.
(Doc. 72, at ¶ 101).
Dr. Rajjoub did not recommend that Plaintiff undergo any further lumbar back or hip
treatment (including, but not limited to surgery, as a result of this office appointment.) (Doc.
72, at ¶ 104).
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On October 19, 2016, Cowher received a Release of Financial Responsibility, which
outlined that the surgery he requested was either elective or cosmetic in nature. (Doc. 72, at ¶ 105)
(emphasis added). PrimeCare is not required to provide elective or cosmetic surgeries. (Doc.
72, at ¶ 105). Cowher would need to assume personal financial responsibility for such
procedures. (Doc. 72, at ¶ 105). Specifically, the Release states “I understand that PrimeCare
Medical, Inc. will schedule the treatment but is not responsible for payment.” (Doc. 72-5, at
42). Cowher refused to sign the document; however, it was signed by HSA Jeminola and
another staff witness. (Doc. 72, at ¶ 105); (Doc. 72-5, at 42); (Doc. 82, at ¶ 105). Cowher
testified in his deposition that he never saw this document because a “Nurse Bill” covered the
form and told him that he would not get the surgery if he did not release PrimeCare for any
liability. (Doc. 81, at ¶ 106). On October 20, Cowher told PA Pauline Foley that the
neurosurgeon found his symptoms were caused by a cervical spine issue, not Raynaud’s
disease. (Doc. 72, at ¶ 107). PrimeCare documented that Cowher’s cervical spine surgery
would occur on January 4, 2017, as that was the first available date. (Doc. 72, at ¶ 108).
On November 3, 2016, PA Foley evaluated Cowher and offered an increase in his pain
medications, an additional x-ray (the earlier hip x-ray was normal), and crutches. (Doc. 72,
at ¶ 119). According to the notes, Cowher “was not happy with this response" and declined
the offer of crutches in favor of a cane. (Doc. 72, at ¶ 119). PA Foley prescribed Ultram and
ordered a pelvic x-ray to be taken the next day. (Doc. 72, at ¶ 119). On November 4, 2016,
right hip and pelvis X-rays revealed no fracture, dislocation, or abnormalities. (Doc. 72, at ¶
121). The following afternoon LPN Tara Donaghy observed Cowher walking without his
cane during medication pass. (Doc. 72, at ¶ 122). On November 16 or 17, 2016, PrimeCare
shared the results of the November 4th X-rays with Cowher. (Doc. 72, at ¶ 144). On November
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17, 2016, HAS Jeminola spoke to personnel at SCI Graterford to arrange Cowher’s transfer
to that facility, where PrimeCare would no longer provide healthcare to Cowher. (Doc. 72,
at ¶¶ 130; 132). During this conversation, HAS Jeminola noted Cowher’s surgery was
scheduled for January 4, 2017. (Doc. 72, at ¶ 130).
C. INCARCERATION WITH THE DEPARTMENT OF CORRECTIONS
1. SCI Graterford
Cowher was transferred to SCI Graterford, and to the care of Correct Care, on
November 17, 2016. (Doc. 72 at ¶¶ 18, 132); (Doc. 73, at 7). Cowher’s medical history
included constipation, right hip issues, hypertension, acid reflux, and chronic pain. (Doc. 77,
at ¶ 33). Cowher reported additional medical history, notably a history of C4-C7 stenosis.
(Doc. 77, at ¶ 33). RN Link noted a current diagnosis of “C6-7 disc distortion with cord
involvement, C4-5 stenosis.” (Doc. 77, at ¶ 33). Cowher was placed in the infirmary for a
twenty-three-hour observational period, due to his ambulatory dysfunction and C-spine
herniations. (Doc. 77, at ¶ 33).
On November 18, 2016, Dr. David Edwards monitored Cowher in the infirmary.
(Doc. 77, at ¶ 35). Dr. Edwards noted a history of ambulatory dysfunction, a hip problem,
and C-spine herniation. (Doc. 77, at ¶ 35). Dr. Edwards planned to change Cowher’s housing
from the infirmary to the general prison population. (Doc. 77, at ¶ 35). On November 29,
2016, nursing staff at SCI-Graterford noted that Cowher was to be directly transferred to the
infirmary at SCI-Camp Hill due to his continued ambulatory dysfunction. (Doc. 76-1, at 127;
Doc. 77, at ¶ 35).
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2. SCI Camp Hill
On November 30, 2016, Cowher was transferred to SCI Camp Hill. (Doc. 77, at ¶¶ 3738). Upon his transfer to SCI Camp Hill, Cowher signed a receipt for an inmate handbook
and administrative directives. (Doc. 77, ¶ 39). Medical staff noted acute conditions of: C4-7
herniated discs, lumbar bulging discs, spinal stenosis, mild distortion spinal cord, numbness
right lower extremity, right meniscus tear, degenerative disc disease. (Doc. 77, at ¶ 38).
Medical staff also noted Cowher’s appendectomy, partial amputation of left hand with repair,
and left lower extremity shrapnel injury. (Doc. 77, at ¶ 38). The staff continued Cowher’s
prescribed medications – Flexeril, Colace, Naproxen, Pamelor, and Zantac. (Doc. 77, at ¶
38).
PA Okurowski noted that Mr. Cowher would be admitted to infirmary for 23-hour
observation to document gait/ambulatory baseline. (Doc. 77, at ¶ 40). During Cowher’s stay
in the infirmary, Cowher reported to Nurse Henderson that he was “doing well,” although he
complained of herniated discs in his neck as well as right hip pain and shoulder pain. (Doc.
77, at ¶ 41). On December 2, 2016, Cowher complained to nursing staff of right shoulder pain,
as well as back and neck pain; staff reviewed his MRI records and noted herniations and
bulging discs at several levels. (Doc. 77, at ¶ 42). Cowher was discharged from the infirmary
to the block and permitted to use a cane and a wheelchair. (Doc. 77, at ¶ 42). Cowher again
presented to sick call on December 5, 2016, when he asked for a cervical collar to wear at
night to prevent spasm in his neck and arm. (Doc. 77, at ¶ 43). PA Bates ordered the collar
and Cowher received it the same day. (Doc. 77, at ¶ 43). Cowher returned to sick call on
December 7, 2016, when he requested a medical mattress. (Doc. 77, at ¶ 44). CRNP Peace
wrote an order for the mattress. (Doc. 77, at ¶ 44).
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On December 20, 2016, Dr. Voorstaad evaluated Cowher in the MD line, noting a
herniation of Cowher’s cervical spine. (Doc. 77, at ¶ 48). Cowher reported that he saw
neurosurgeon while at county who wanted to do surgery, but that he was since transferred
into the DOC and the surgery had yet to take place. (Doc. 77, at ¶ 48). On December 29,
2016, Cowher returned to the MD line to follow up regarding his chronic pain related to
cervical disc disease and herniation. (Doc. 77, at ¶ 50). Dr. Voorstaad continued Cymbalta,
discontinued Nortriptyline, and was unable to renew Flexeril. (Doc. 77, at ¶ 50).
3. SCI Mahanoy
Cowher was transferred to SCI Mahanoy on January 11, 2017, and his Intra-System
Transfer Reception Screening form was completed that same day. (Doc. 77, at ¶¶ 51-52). The
screening form noted Cowher’s chronic conditions and problems, including his cervical
disorder not otherwise specified, pain/neuropathy (right sided), gastroesophageal reflux
disease (GERD), and constipation. (Doc. 77, at ¶ 52). The screening form also noted his
medical history, including previous surgeries, and his then-present medications, including
Cymbalta and Zantac. (Doc. 77, at ¶ 52). The form also noted that Cowher was limited to
bottom bunk/bottom tier due to a mobility impairment, was not able to engage in weight
lifting, was limited to passive sports, and used physical aids, including a cane, a wheelchair
for distance, and both hard and soft cervical collars. (Doc. 77, at ¶ 52).
On January 16, 2017, Cowher met with PA Miller and reported that he was supposed
to have cervical disc surgery while at SCI Camp Hill. (Doc. 77, at ¶ 53). Cowher stated that
he had all his MRI records in his cell. (Doc. 77, at ¶ 53). Cowher brought his hospital records
to sick call on January 18, 2017, and reported that he needed surgery. (Doc. 77, at ¶ 54).
Cowher also relayed that he was supposed to get the surgery but “was shipped” to SCI
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Mahanoy instead. (Doc. 77, at ¶ 54). PA Palmigiano explained to Cowher that she was not
sure if the MRI reports that he had in his possession could be accepted into his medical chart.
(Doc. 77, at ¶ 54). Cowher was prescribed Flexeril, Pamelor, and Naprosyn. (Doc. 77, at ¶
54). Cowher provided copies of his MRIs to the medical department on January 20, 2017,
and these copies were placed into his medical chart. (Doc. 77, at ¶ 55).
On January 31, 2017, PA Palmigiano scheduled Cowher on the MD line regarding
pain management and to discuss an MRI of his spine. (Doc. 77, at ¶ 58). On February 8, 2017,
Dr. Rodgers reviewed Cowher’s prior MRIs with him, noting cervical issues, including
herniated discs. (Doc. 77, at ¶ 59). Cowher reported intermittent pain shooting down his right
arm and back. (Doc. 77, at ¶ 59). Cowher also reported that prior to his incarceration, and
while in the county system, he was seen by neurosurgery twice, and that surgery on his Cspine was recommended. (Doc. 77, at ¶ 59). Some of the paperwork reviewed by Dr. Rodgers
indicated Cowher had significant cervical issues. (Doc. 83, at ¶ 4).
Dr. Rodgers wrote an order to obtain Cowher’s visit notes and recommendations from
his previously seen neurosurgeon, Dr. Rajjoub, of Lycoming Neurosurgical Associates. (Doc.
77, at ¶ 59). Dr. Rogers testified that even if an inmate arrives with a pre-existing scheduled
surgery, and provides supporting medical records such as MRI reports, Correct Care must
still secure copies of the records from the original providers as needed to complete the patient’s
medical chart. (Doc. 84, at ¶¶ 2, 10-11).
Dr. Rodgers again evaluated Cowher in the MD line on March 1, 2017. (Doc. 77, at ¶
62). At this time none of Cowher’s outside medical records had been obtained, but Dr.
Rodgers told Cowher that he would put in another request. (Doc. 77, at ¶ 62). Cowher stated
that Pamelor seemed to be working pretty good for his pain. (Doc. 77, at ¶ 62). Dr. Rodgers
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noted that, while Cowher was wheelchair bound, he was oriented and in no acute distress.
(Doc. 77, at ¶ 62). Dr. Rodgers’ assessment included C-spine degenerative disc disease with
neuropathy. (Doc. 77, at ¶ 62).
On April 21, 2017, Cowher stated to PA Miller that he needed a temporary medication
refill due to neck and back pain. (Doc. 77, at ¶ 73). Cowher presented in his wheelchair, but
PA Miller noted Cowher was alert and in no distress. (Doc. 77, at ¶ 73). PA Miller noted that
the medications were refilled. (Doc. 77, at ¶ 73).
Cowher was subsequently released from DOC custody on July 6, 2017. (Doc. 77, at ¶
84).
D. GRIEVANCE HISTORY
Cowher filed a number of grievances while in DOC Custody – three of which relate to
his claims in this case, and none of which were properly exhausted. On March 28, 2017, while
incarcerated at SCI Mahanoy, Cowher commenced grievance number 670733. Therein,
Cowher grieved the pace of scheduling his neck surgery, the treatment provided for his knee
and back, and the denial of certain medical prescriptions. (Doc. 76-2, at 8). Prison staff denied
grievance number 670733 on initial review. (Doc. 76-2, at 6). Cowher’s response was due on
April 8, 2017, but he did not file an appeal. (Doc. 76-2, at 7; Doc. 77, at ¶ 69).
On April 13, 2017, Cowher commenced grievance number 673492, which pertained
to his appointments for neurology and physical therapy. (Doc. 76-2, at 14). Prison staff denied
the grievance on initial review. (Doc. 76-2, at 12). Cowher appealed this denial to the facility
manager on April 26, 2017, who denied Cowher’s appeal on May 11, 2017. (Doc. 76-2, at 911). Cowher did not further appeal this grievance. (Doc. 77 at ¶ 79).
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On April 20, 2017 Cowher commenced grievance number 674917, complaining that
he needed prescribed medication, specifically Naprosyn, Zantac, and Rantidine [sic]. (Doc.
77, at ¶ 79). Prison staff denied Cowher’s grievance on initial review. (Doc. 76-2, at 15).
Although Cowher’s response was due May 15, 2017, he did not appeal the denial of this
grievance. (Doc. 76-2, at 16; Doc. 77, at ¶ 78).
Following his release from custody on July 6, 2017, personnel for the Secretary’s Office
of Inmate Grievances and Appeals (“SOIGA”) reported that Cowher had not filed anything
with their office. (Doc. 77, at ¶ 87). Cowher does not dispute that he failed to appeal his
grievances through Final Review with SOIGA. (Doc. 83, at ¶¶ 33-99).
E. POST-INCARCERATION SURGERY
On November 18, 2017, after he was released from custody, Cowher had surgery for
an anterior cervical discectomy and fusion (C4-7). (Doc. 72, at ¶ 138; Doc. 82, at 3). Dr.
Michael Haak performed this surgery at Geisinger Medical Center. (Doc. 72, at ¶ 138; Doc.
82, at 3). On April 25, 2018, Dr. Haak also performed surgery on Cowher’s lumbar spine.
(Doc. 72, at ¶¶ 144, 146).
II.
DISCUSSION
A. SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be
granted only if “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might
affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return
a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary
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judgment motion, all inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party’s evidence contradicts the movant’s, then the
non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.
1994).
A federal court should grant summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).
The Court need not accept mere conclusory allegations, whether they are made in the
complaint or a sworn statement. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). In
deciding a motion for summary judgment, the court’s function is not to make credibility
determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.
Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249.
Finally, “although the party opposing summary judgment is entitled to the ‘benefit of
all factual inferences in the court's consideration of a motion for summary judgment, the
nonmoving party must point to some evidence in the record that creates a genuine issue of
material fact.’” Velentzas v. U.S., No. 4: CV -07-1255, 2010 WL 3896192, at *7 (M.D. Pa.
August 31, 2010) (quoting Goode v. Nash, 241 F. App’x. 868, 868 (3d. Cir. 2007) (citation
omitted). The opposing party “cannot rest solely on assertions made in the pleadings, legal
memorandum, or oral argument.” Velentzas, 2010 WL 3896192, at *7. If the non-moving
party “fails to make a showing sufficient to establish the existence of an element essential to
[the non-movant's] case, and on which [the non-movant] will bear the burden of proof at
16
trial,” Rule 56 mandates the entry of summary judgment because such a failure “necessarily
renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Jakimas v. Hoffmann–La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
B. EXHAUSTION OF CLAIMS AGAINST CORRECT CARE
In moving for summary judgment, Correct Care asserts Cowher failed to exhaust his
administrative remedies with respect to all of the claims he asserts in this action. (Doc. 76, at
5).4 In response, Cowher contends that the grievances he filed put Correct Care on “notice of
[his] complaint.” (Doc. 84, at 4). Cowher argues that he satisfied the Prison Litigation Reform
Act’s (“PLRA”) exhaustion requirement because the purpose of exhaustion “is to provide
notice of the prisoner’s grievances and a chance for the prison system to address them.”(Doc.
84, at 4). In support of this argument, Cowher relies solely on two non-binding cases from the
Fourth and Fifth Circuits. (Doc. 84, at 4).
The PLRA mandates that prisoners exhaust all available administrative remedies prior
to initiating a suit under § 1983 for the deprivation of Constitutional rights. 42 U.S.C. §
1997e(a). As the statutory language makes clear, § 1997e(a) applies equally to § 1983 actions,
which involve state actors, and to Bivens5 actions, which involve federal actors. Nyhuis v. Reno,
The PrimeCare Defendants do not move for summary judgment on the basis of
failure to exhaust administrative remedies. As such, the Court only examines whether
Cowher exhausted his administrative remedies as to his claims against Correct Care. As
discussed infra, Cowher’s claims against Correct Care did not accrue until after he initiated
this lawsuit, after he was transferred into DOC custody, and after Correct Care assumed his
treatment during his incarceration with the DOC.
4
5
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971).
17
204 F.3d 65, 68 (3d Cir. 2000); see also Dillon v. Rogers, 596 F. 3d 260, 272-73 (3d Cir. 2010)
(noting that exhaustion under the PLRA is a threshold issue, and that “the judge should
usually resolve disputes concerning exhaustion prior to allowing the case to proceed to the
merits.”). “[T]he PLRA amended § 1997e(a) in such a way as to make exhaustion of all
administrative remedies mandatory—whether or not they provide the inmate-plaintiff with
the relief he says he desires in his federal action.” Nyhuis, 204 F. 3d at 67; see also Spruill v.
Gillis, 372 F.3d 218, 227 (3d Cir. 2004). Even where the relief sought is unavailable through
administrative remedies, prisoners must pursue their claims through prison channels prior to
commencing related litigation in federal courts. See Woodford v. Ngo, 548 U.S. 81, 85 (2006).
Further, inmates must see their grievances through to the final level of review possible
under the administrative review system in place. Woodford, 548 U.S. at 93. Compliance with
the prison’s internal grievance system, as opposed to rules defined by the PLRA itself, is
needed to satisfy the PLRA’s exhaustion requirement. See Small v. Camden Cnty., 728 F.3d
265, 272 (3d Cir. 2013); Moore v. Lamas, NO. 3:12-CV-223, 2017 WL 4180378, at *6 (M.D.
Pa. Sept. 21, 2017). Claims not made within the parameters set forth by the prisons, and
therefore not reviewed on the merits, are considered procedurally defaulted, precluding courts
from considering those claims. See Spruill, 372 F.3d at 227-32.
Courts may take “judicial notice of the Pennsylvania Department of Corrections'
(DOC) policy statement, DC–ADM 804, captioned Inmate Grievance System.” See Ali v.
Superintendent SCI Camp Hill, No. 1:CV-14-1851, 2015 WL 5913197, at *3 (M.D. Pa. Oct. 7,
2015) (internal citations omitted). The Inmate Grievance System (“IGS”) requires a concern
about prison life to be filed initially with the Facility Grievance Coordinator. DC-ADM 804
§ 1(A)(5). If the inmate receives an unfavorable response to his initial filing, he must appeal
18
within fifteen working days to the Facility Manager. DC-ADM 804, §2(A)(1)(a-b). If the
inmate receives an unfavorable response from the Facility Manager’s review, he must appeal
within fifteen working days to the Final Review. DC-ADM 804, § 2(B)(1)(b). A proper appeal
to Final Review must include a written appeal to the SOIGA. DC-ADM 804 § 2(B)(1)(j)(5).
A prisoner may not fulfill the PLRA's exhaustion requirement by exhausting
administrative remedies after the filing of the complaint in federal court. Glaster v. Fed. BOPInmate Designation and Custody Classification Pers. / Officer, No. 3:CV–08–0193, 2009 WL
2515787, at *2 (M.D. Pa. Aug. 13, 2009) (quoting Oriakhi v. United States, 165 F. App’x 991,
993 (3d Cir. 2006) (not precedential)). “Under the [PLRA], prisoners may file supplemental
complaints if the claims in question 1) have truly accrued since the beginning of the suit and
2) are exhausted per 42 U.S.C. § 1997e(a) before the supplement is filed.” Moneyham v. Potter,
NO. 3:15-cv-00436, 2017 WL 4079543, at *4 (M.D. Pa. Aug. 3, 2017) (emphasis omitted)
(report and recommendation adopted 2017 WL 4073794 (M.D. Pa. Sept. 14, 2017) (quoting Boone
v. Nose, 530 F. App’x 112, 113 n.1 (3d Cir. 2013) (per curiam)). Finally, transfer to another
facility does not excuse the PLRA's exhaustion requirement. Ball v. Bower, No. 1:10–CV–
2561, 2011 WL 6782621, *5 (M.D. Pa. Oct. 13, 2011) (report and recommendation adopted 2011
WL 6782428, Dec. 21, 2011) (citing Williamson v. Wexford Health Sources, Inc., 131 F. App'x
888, 890 (3d Cir.2005)).
Here, Cowher filed the initial complaint in this matter on November 10, 2016. (Doc.
1). At that time, Cowher was incarcerated at Pike County Correctional Facility, and Prime
Care provided his medical care. (Doc. 72, at ¶ 132). Cowher’s prison transfer, which occurred
in the interim between his filing of the initial complaint and his filing of the operative
complaint, resulted in a change of his medical care provider from Prime Care to Correct Care.
19
(Doc. 72, at ¶ 132); (Doc. 73, at 7); (Doc. 77, at ¶ 2). Correct Care did not provide any
allegedly constitutionally deficient care to Cowher until after he filed the initial complaint.
Cowher filed an amended complaint, the operative complaint in the instant action, on June
27, 2017. (Doc. 29). At that time, Cowher was incarcerated at SCI-Mahanoy, and Correct
Care provided his medical care. (Doc. 77, at ¶ 2). Cowher named Correct Care as a Defendant
for the first time in that amended complaint. (Doc. 29, at ¶ 20). Thus, in order for the Court
to consider Cowher’s claim of deliberate indifference against Correct Care, first asserted in
the amended complaint, his claim must 1) have accrued since the filing of his initial complaint
and 2) be properly exhausted. See Moneyham, 2017 WL 4079543, at *4 (citing Boone, 530 F.
App’x at 113 n.1). A deliberate indifference claim accrues “when a plaintiff knows or has
reason to know of the injury which is the basis of the action.” Monroe v. Hogsten, 2009 WL
1138123, at *4-5 (M.D. Pa. Apr. 27, 2009) (citing Gentry v. Resolution Trust Corp., 937 F.2d
899, 919 (3d Cir. 1991)). Based on the above, Cowher’s additional deliberate indifference
claim against Correct Care would not have accrued until after he filed the initial complaint in
this matter. See Monroe, 2009 WL 1138123, at *4-5 (citing Gentry, 937 F.2d at 919).
District courts must determine whether any of the claims in a suit are unexhausted,
then dismiss those claims from the suit and proceed only with those claims which are
exhausted. See Jones v. Bock, 549 U.S. 199, 223-24 (2007) (holding no total exhaustion rule for
PLRA suits). Each grievance that relates to each distinct incident forming the basis of a
complaint must be exhausted. See also Small v. Camden Cty., 728 F.3d 265 , 268 (3d Cir. 2013)
(approving district court’s process of determining whether plaintiff “properly filed a grievance
and thereafter exhausted each of the fourteen incidents of which he complained”); see also
Mitchell v. Dodrill, 696 F. Supp. 2d 454, 465 (M.D. Pa. 2010) (consolidating two actions then
20
requiring prisoner-plaintiff to file amended complaint because exhaustion must be complete
at the time of filing an amended complaint).
Thus, at issue is whether Cowher properly exhausted his claim against Correct Care
once it accrued. Proper exhaustion of Cowher’s claims against Correct Care requires him to
appeal unfavorable grievances to SOIGA in writing. See Small, 728 F.3d at 272; DC-ADM
804 § 2. Here, Cowher filed three grievances concerning Correct Care’s provision of medical
care regarding his back or shoulder pain while in DOC Custody.
Cowher failed to appeal the initial denial of two of these grievances, numbers 670733
and 674917, to the Facility Manager. (Doc. 77, at ¶ 69); (Doc. 77, at ¶ 78). Notably, the
deadlines for Cowher to complete an appeal (April 8, 2017, as to grievance number 670733,
and May 15, 2017, as to grievance number 674917) passed before Cowher filed the amended
complaint in this matter. (Doc. 76-2, at 7; Doc. 76-2, at 16). Thus, it is evidence that Cowher
did not exhaust his administrative remedies as to these two grievances. Cowher, however, did
appeal the third grievance, number 673492, to the Facility Manager. (Doc. 76-2, at 10-11).
However, after receiving the Facility Manager’s denial of his grievance, Cowher did not
appeal this grievance to Final Review. (Doc. 77 at ¶ 79). The Facility Manager’s denial is
dated May 11, 2017, and Cowher would have had fifteen working days to appeal to final
review from the date he received this denial. (Doc. 76-2, at 9). While the record does not
disclose when Cowher received this denial, he does not dispute that he failed to timely appeal
any of his grievances to Final Review. (Doc. 76-2, at 8, 14, 17). Therefore, Cowher’s claims
against Correct Care are procedurally defaulted.
21
C. COWHER’S EIGHTH AMENDMENT DELIBERATE INDIFFERENCE CLAIMS
Cowher submits that Defendants were deliberately indifferent to his serious medical
needs in not scheduling his cervical spine surgery, and in their decisions about his medication.
With regard to PrimeCare, Cowher submits that PrimeCare was deliberately indifferent to his
serious medical need by delaying and changing his medications, and postponing the surgery
due to “bureaucracy and an unwillingness to assume financial responsibility” for the surgery.
(Doc. 82, at 7). As to Correct Care, Cowher argues that Correct Care displayed deliberate
indifference to his serious medical need by not scheduling surgery that was previously
scheduled by other providers, and instead chose “to engage its bureaucracy.” (Doc. 84, at 5).
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 Cnty. 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 easily recognize the necessity for a doctor's attention.” Monmouth Cnty. 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 medical need is of the serious nature contemplated by the eighth
amendment.” Lanzaro, 834 F.2d at 347 (citations omitted). A serious medical need exists if
failure to treat such condition would constitute a “denial of the minimal civilized measure of
life's necessities.” Farmer v. Brennan, 511 U.S. 824, 825 (1994).
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
22
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, 511 U.S. at 837.
Deliberate indifference is manifested by an intentional refusal to provide care, delayed
medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of
reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll,
991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of
permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). However, prison
medical authorities are given considerable latitude in the diagnosis and treatment of inmate
patients. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Mere
negligence, unsuccessful medical treatment, or medical malpractice do not give rise to a §
1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to
establish deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Spruill v. Gillis,
372 F.3d 218, 237 (3d Cir. 2004); Lanzaro, 834 F.2d at 346. Further, a prison doctor's failure
to perform additional diagnostic tests does not constitute cruel and unusual punishment. See
Estelle, 429 U.S. at 107. The key question is whether the defendant has provided the inmate
with some type of treatment, regardless of whether it is what the inmate desires. Farmer v.
Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. Feb. 29, 1988); see, e.g., Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises
professional judgment his behavior will not violate a prisoner's constitutional rights.”).
The deliberate indifference prong of an adequacy of care claim in particular contains
both an objective component, the “adequacy of the medical care[,]” and a subjective
component, the “individual defendant’s state of mind.” Pearson v. Prison Health Serv., 850 F.3d
526, 536 (3d Cir. 2017). “[A] plaintiff must set forth evidence of an objectively serious medical
23
need. A medical need qualifies as serious … if… it is one that has been diagnosed by a
physician as requiring treatment or is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” Young v. Kazmerski, 266 F. App’x 191, 193 (3d Cir. 2008)
(citing Lanzaro, 834 F.2d at 346-47) (quotations omitted). Here, there is no real dispute by the
parties as to the seriousness of Cowher’s medical need. Rather, the lies in whether or not
either set of defendants were deliberately indifferent to that need.
Where, as here, “a prisoner has received some amount of medical treatment, it is
difficult to establish deliberate indifference, because prison officials are afforded considerable
latitude in the diagnosis and treatment of prisoners.” Palakovic v. Wetzel, 854 F.3d 209, 227-28
(3d Cir. 2017); accord United States ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir.
1979) (“[w]here a prisoner has received some medical attention and the dispute is over the
adequacy of treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims which sound in state tort law.”). “When medical
care is provided, [courts] presume that the treatment of a prisoner is proper absent evidence that
it violates professional standards of care.” Pearson, 850 F.3d at 535 (emphasis added); accord
Brown v. Borough of Chambersburg, 903 F.2d 274. 278 (3d Cir. 1990) (“[I]t is well established
that as long as a physician exercises professional judgment his behavior will not violate a
prisoner’s constitutional rights.”); Lanzaro, 834 F.2d at 346 (“[M]ere disagreement as to the
proper medical treatment” does not “support a claim of an eighth amendment violation.”);
Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (“[T]he propriety or
adequacy of a particular course of treatment ... remains a question of sound professional
judgment.”). Neither a prisoner’s personal, subjective dissatisfaction with the care he has been
provided, nor his disagreement with the professional judgment of trained medical staff, in and
24
of itself, is sufficient to establish deliberate indifference. See Hairston v. Director Bureau of
Prisons, 563 F. App’x. 893. 895 (3d Cir. 2014); White v. Napoleon, 897 F.2d 103, 110 (3d Cir.
1990): Andrews v. Camden Cty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000).
There are, however, “circumstances in which some care is provided yet it is insufficient
to satisfy constitutional requirements.” Palakovic, 854 F.3d at 228. For example, prison
officials “cannot deny reasonable requests for medical treatment ... [when] such denial
exposes the inmate ‘to undue suffering or the threat of tangible residual injury.” Palakovic, 854
F.3d at 228 (citations and internal quotations omitted). Likewise, “knowledge of the need for
medical care may not be accompanied by the intentional refusal to provide that care.”
Palakovic, 854 F.3d at 228. The court should also consider the effect of denying medical
treatment under any particular circumstances, including where such denial or delay results in
unnecessary and wanton infliction of pain, or causes an inmate to suffer a life-long handicap
or permanent loss, or render a condition irreparable. Banks v. Beard, No. 2:03CV659, 2006
WL 2192015, at *13 (W.D. Pa. Aug. 1, 2006). Outside of such situations, each claim must be
evaluated to determine whether the treatment or lack thereof implicates the “broad and
idealistic concepts of dignity, civilized standards, humanity and decency” that provide the
underpinnings for defining the reaches of the Eight Amendment. Banks, 2006 WL 2192015,
at *13 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).
Both PrimeCare and Correct Care submit that they are entitled to summary judgment
in part because Cowher has not produced expert medical testimony in support of his claim.
(Doc. 73, at 14, 16; Doc. 78, at 28-29). In response, Cowher avers that PrimeCare’s changing
of his medication, and the fact that it ultimately approved his surgery, is extrinsic evidence
precluding summary judgment on his Eighth Amendment claim against PrimeCare. (Doc.
25
82, at 8). Cowher further submits that the fact that surgery was already scheduled when he
arrived in state custody is extrinsic evidence precluding summary judgment in favor of Correct
Care. (Doc. 84, at 5).
1. Delays and Changes to Cowher’s Medication
As to Cowher’s claims related to delays and changes in his pain medication, the Court
finds that the undisputed evidence in the record does not amount to deliberate indifference
under the Eighth Amendment. “[S]poradic delays (not exceeding four days at any one time)
in providing prescription medication … do not amount to deliberate indifference.” Ayala v.
Terhune, 195 F. App’x 87, 91 (3d Cir. 2006). Here, Cowher testified that he thinks he went
four or five days without pain medication “a couple times.” (Doc. 81, at ¶¶ 3-17). Cowher
going four or five days without medication is insufficient to survive summary judgment. See
Ayala, 195 F. App’x at 91. Furthermore, Cowher’s allegations that sometimes his medication
was mixed up, or that he was given the wrong dosage, are insufficient to show that the named
defendants acted with a culpable state of mind. See Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999). Thus, Cowher’s deliberate indifference claim related to the administering of his
medications does not survive summary judgment. See also Hartman v. Corr. Med. Serv., 366 F.
App’x 453, 455 (3d Cir. 2010) (dismissing plaintiff’s complaint as not based on an Eighth
Amendment deliberate indifference theory when “his allegations reflect his frustrations with
repeated occurrences of medication lapses, as well as his disagreement with the manner in
which defendant… directed that all of [plaintiff]'s medications be administered by medical
staff”). Accordingly, the motions for summary judgment by PrimeCare and Correct Care are
GRANTED on this ground.
26
2. Delay and Denial of Surgery
Cowher’s deliberate indifference claim related to the delay or denial of surgery also
fails. In evaluating deliberate indifference in an adequacy of care claim, as Cowher brings
here, medical expert testimony may be necessary to establish deliberate indifference where,
as laymen, the jury would not be in a position to determine that the particular treatment or
diagnosis fell below a professional standard of care. Pearson v. Prison Health Serv., 850 F.3d
526, 536 (3d Cir. 2017); see also Jackson v. Ivens, 565 F. App’x 115, 118 (3d Cir. 2014) (citing
Montgomery v. Pinchak, 294 F.3d 492, 504 (3d Cir. 2002) (“[w]hile the parties do not dispute
that sarcoidosis is a serious medical issue, the necessary treatment for sarcoidosis is not
obvious to a lay person”)); Capozzi v. Pigos, 640 F. App’x 142, 144 (3d Cir. 2016) (upholding
district court’s grant of summary judgment when prisoner-plaintiff’s eighth amendment claim
“involve[d], at bottom, a dispute with his doctors over whether surgery [was] currently
appropriate”); Mitchell v. Gershen, 466 F. App’x 84, 87 (3d Cir. 2011) (“[I]n order to sustain
his deliberate indifference claim based on his objection to the type of diagnosis and treatment
he received, [plaintiff] needs … expert testimony because the ability to diagnose a foot
infection and determine the proper treatment and medication protocol is not readily apparent
to lay persons.”). Evaluating whether medical treatment is adequate presents an objective
question typically beyond the competence of a non-medical professional, and this requires a
prisoner to offer extrinsic proof regarding the quality of medical care to defeat the
presumption that the medical care provided to him or her was adequate. Gershen, 466 F. App’x
at 87; Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (“[P]rison authorities are accorded
considerable latitude in the diagnosis and treatment of prisoners.”); Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises
27
professional judgment his behavior will not violate a prisoner’s constitutional rights.”).
Nonetheless, expert testimony may not be required where other forms of extrinsic evidence
may suffice. Pearson, 850 F.3d at 536; Brighthwell v. Lehman, 637 F.3d 187, 194 n.8 (3d Cir.
2011). Extrinsic proof of the quality of medical care may include a training manual,
photograph, or medical records. Pearson, 850 F.3d at 536.
Cowher submits that PrimeCare’s decision to approve the surgery only after it decided
to pay for it is evidence of deliberate indifference. (Doc. 82, at 8). The denial of medical care,
when based on non-medical factors such as cost, may violate the Eighth Amendment. See
Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).
However, “prisoners do not have a constitutional right to limitless medical care, free of the
cost constraints under which law-abiding citizens receive treatment.” Winslow v. Prison Health
Serv., 406 F. App’x 671, 674 (3d Cir. 2011) (citing Reynolds v. Wagner, 128 F.3d 166, 175 (3d
Cir. 1997).6 Here, the record contains some evidence that PrimeCare considered cost in
deciding not to provide Cowher’s surgery. (Doc. 72-4, at 17); (Doc. 72-5, at 42). PrimeCare’s
“release of financial responsibility” states that PrimeCare will not pay for surgery which is
elective or cosmetic in nature. (Doc. 72-5, at 42). However, Cowher testified that cost was never
brought up regarding PrimeCare’s decision not to pay for the surgery. (Doc. 72, at ¶ 106; Doc.
81, at ¶ 106).
The Court in Winslow upheld summary judgment for defendants responsible for
providing prisoner-plaintiff’s medical care despite “some record evidence suggesting that
Defendants considered the cost of [plaintiff’s] treatment” because “the record is equally clear
that [defendants] did not focus exclusively or even predominantly on cost and that the
treatment that they ordered was consistent with their professional judgment.”
6
28
In response to Correct Care’s motion for summary judgment, Cowher submits that
“Correct Care chose instead to engage its bureaucracy rather than secure the surgery that
everyone else said was warranted,” including requesting an inmate’s medical records through
the DOC as opposed to ordering treatment based on the inmate’s “obvious needs.” (Doc. 84,
at 5, 7). Cowher also argues that Correct Care was deliberately indifferent to his serious
medical need by waiting to secure medical records, as opposed to relying on a pre-scheduled
surgery. (Doc. 83, at ¶ 2; 10-11). The undisputed record, however, establishes that an order
for medical records is processed through the DOC’s Medical Records Department, not
through Correct Care, and as such, Correct Care was not able to obtain Cowher’s records
from his incarceration at Pike County Correctional Facility, including his records with Dr.
Rajjoub. (Doc. 76, at 35-37). Further, Correct Care submits that Cowher’s condition was not
urgent such that “subvert[ing] the normal consultation process and order[ing] an emergency
consultation” would have been warranted. (Doc. 76, at 37).
It is also undisputed from the record that Correct Care used various treatments to
address Cowher’s back and shoulder pain. For example, Cowher was provided a medical
mattress at SCI Graterford. (Doc. 77, at ¶ 44). Cowher requested and received a cervical collar
to prevent spasms in his neck and down his arm. (Doc. 77, at ¶ 43). When Cowher presented
to SCI Mahanoy in January 2017, his physical aids included a cane, wheelchair for distance,
and both hard and soft cervical collars. (Doc. 77, at ¶ 52). This record, undisputed by Cowher,
demonstrates that DOC medical personal attended to his back and shoulder pain, and that
Correct Care officials addressed Cowher’s complaints of pain with medication throughout his
incarceration with the DOC. (Doc. 77, at ¶ 49, ¶ 52, ¶ 54, ¶ 62, ¶ 73).
29
Both sets of Defendants produced expert reports that concluded the defendants were
not deliberately indifferent to Cowher’s serious medical needs. Specifically, PrimeCare
produced expert testimony recounting the medications Cowher received, and its expert found
that the treatment which Cowher received was “in concert with conservative care for spinal
disc disease with radiculopathy.” (Doc. 72, at ¶ 149). Notably, Cowher did not point to record
evidence to dispute this testimony. (Doc. 81, at ¶¶ 148-152). Cowher’s allegation that
PrimeCare considered cost in deciding to deny him elective surgery, coupled with record
evidence which shows the decision was consistent with professional judgment, is insufficient
to create a disputed material fact on the subjective prong of this deliberate indifference claim.
See Winslow, 406 F. App’x at 672, 675; see also Fantone v. Herbik, 528 F. App’x 123, 125-26;
126 n. 3 (3d Cir. 2013) (evidence which shows defendants reviewed MRI’s and x-rays of
prisoner-plaintiff’s ailment, but did not refer him for elective surgery, does “not
demonstrate… the [defendants] had a sufficient[ly] “culpable state of mind”). The undisputed
record evidence indicates Cowher twice consulted with Dr. Rajjoub while under PrimeCare’s
medical care, in July and October of 2016. (Doc. 72, at ¶¶ 66; 101; Doc. 81, ¶¶ 66, 99-104).
On both occasions, Dr. Rajjoub discussed surgery and non-surgical alternatives, including
doing nothing. (Doc. 72 at ¶¶ 66; 101). At the October appointment, although Cowher
indicated that he wished to proceed with surgery, surgery was not the only recommendation
made by Dr. Rajjoub. (Doc. 72-8, at 9). On neither occasion did Dr. Rajjoub state Cowher’s
current treatment plan was not effective, or that Cowher was not responding to it. See Brown
v. Deparlos, 2011 WL 1158289, at *3, 5 (M.D. Pa. March 28, 2011); (Doc. 72-8, at 9, 16).
Ultimately, medical personal at Pike County Correctional Facility determined Cowher’s
surgery was “elective” in nature. (Doc. 72, at ¶¶ 75, 105; Doc. 81 at ¶¶ 74-79, 105). Further,
30
despite Cowher’s assertion that Dr. Rajjoub did not discuss non-surgical alternatives, which
led Cowher to believe that surgery was necessary, Cowher does not cite to any record evidence
supporting this assertion. (Doc. 72-11, at 14). “Averments that are ‘entirely unsupported by
the record and directly contrary to ... testimony,’ or that are ‘offered solely to defeat summary
judgment,’ may be disregarded.” Jugan v. Econ. Premier Assurance Co., 728 F. App’x 86, 91 (3d
Cir. 2018) (quoting Daubert v. NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017)).
Cowher has not provided any extrinsic evidence to show the course of treatment was
improper, and the course of treatment for a cervical spine and bulging disc issue would not be
obvious to a lay person. See Jackson v. Ivens, 565 F. App’x 115, 118 (3d Cir. 2014). Moreover,
where medical care is provided, the Court presumes the care to be adequate. See Pearson v.
Prison Health Serv., 850 F. 3d 526, 535 (citing Brown v. Borough of Chambersburg, 903 F.2d 274,
278 (3d Cir. 1990)). PrimeCare may consider costs when denying elective surgery, so long as
the treatment PrimeCare provides is consistent with its sound medical judgment. See Winslow,
406 F. App’x at 672, 675. Thus, even assuming, arguendo, that Cowher created a triable issue
regarding the objective prong of his deliberate indifference claim, Cowher has not created a
genuine issue of material fact regarding the subjective prong of his deliberate indifference
claim against PrimeCare. See Fantone, 528 F. App’x at 125-26; 126 n. 3; Gershen, 466 F. App’x
at 87.
Correct Care also produced expert testimony regarding the adequacy of Cowher’s
care. According to expert testimony from Dr. Winer, “[i]n 75% of patients with [Cowher’s]
presentation, no surgery is every [sic] necessary, hence the first approach to care.” (Doc. 729, at 2). Therefore, the only expert testimony regarding the adequacy of Correct Care’s
treatment reveals no disputed material fact regarding the adequacy of that treatment. Even
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assuming the record contained evidence that the treatment was inadequate, “the mere receipt
of inadequate medical care does not itself amount to deliberate indifference” when there is no
evidence that said treatment violated proper standards of care. Pearson, 850 F. 3d at 535 (citing
O’Carroll, 991 F.2d at 69 n. 13; Brown, 903 F.2d at 278); see also Serrano v. Folino, 339 F. App’x
254, 256-57 (3rd Cir. 2009) (summary judgment warranted when record “indicates that
[prisoner-plaintiff] received frequent medical attention, including an MRI, a recommendation
that he receive physical therapy, and an assessment by a team of physicians, including an
orthopedic specialist” and prisoner-plaintiff’s claim that “knee surgery was improperly
withheld rests entirely on his allegation that [defendant physican] promised to recommend
knee surgery and did not do so”). Further, although there may be a question of fact regarding
the motives of the prison doctor responsible for delaying treatment when delay eliminates the
possibility of that treatment’s effectiveness, there is no dispute that the outcome of Cowher’s
surgery was not affected by the delay. Cf. O’Carroll, 991 F.2d at 68-69 (finding question of fact
regarding prison physician’s intent precluded summary judgment on deliberate indifference
claim when inmate suffered stroke pre-incarceration, repeatedly notified prison authorities of
his deteriorating condition, prison physician sent plaintiff to a neurologist who “specifically
recommended physical therapy,” and it was “undisputed that physical therapy must take
place within approximately eighteen months of a stroke to be effective,[and so] time was of
the essence”). As such, even if Cowher had exhausted his administrative remedies against
Correct Care, the record is devoid of any disputed material fact precluding summary judgment
on the deliberate indifference claim against Correct Care.
For these reasons, summary judgment is GRANTED in favor of Prime Care and
Correct Care as to Cowher’s Eighth Amendment medical needs claim.
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D. COWHER’S MONELL CLAIMS
PrimeCare and Correct Care seek summary judgment on Cowher’s Monell claims. A
claimant can seek to hold a municipality liable with respect to its constitutionally deficient
customs or policies. Berg v. Cnty. of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (citing Monell
v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 696 (1978)). “[A] municipality may be
liable under section 1983 only if it can be shown that its employees violated a plaintiff’s civil
rights as a result of a municipal policy or practice.” Williams v. Borough of West Chester, 891
F.2d 458, 467 (3d Cir. 1989) (internal citations omitted). Further, “private physicians or
hospitals which provide medical services to inmates pursuant to a contract with the
prison may be held liable in a civil rights suit.” Little v. Lycoming Cnty., 912 F. Supp. 809, 815
(M.D. Pa. 1996) (citing West v. Atkins, 487 U.S. 42, 54 (1988)).
However, regardless of any policy or practice it may have adopted, a medical services
contractor, such as PrimeCare or Correct Care, cannot be held vicariously liable under Monell
unless one of the individual defendants “is primarily liable under section 1983 itself.”
Williams, 891 F.2d at 467; see also City of L.A. v. Heller, 475 U.S. 796, 799 (1986) (municipal
liability requires an underlying constitutional violation). As discussed above, Cowher failed
to exhaust his claims against Correct Care. Further, he has not created a genuine issue of
material fact regarding his deliberate indifference claim against both PrimeCare and Correct
Care. Accordingly, Cowher cannot maintain a Monell claim against PrimeCare or Correct
Care, and summary judgment is entered in their favor. See Heller, 475 U.S. at 796.
E.
COWHER’S STATE LAW CLAIMS
Cowher’s amended complaint asserts state law negligence and intentional infliction of
emotional distress claims. (Doc. 29, at 15; 17). However, in his briefs in opposition to
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Defendants’ motions for summary judgment, Cowher withdrew his claims for medical
negligence and intentional infliction of emotional distress against the Defendants. (Doc. 82,
at 4, n. 1; Doc. 84, at 3, n. 1). As such, it does not appear that any claims remain against the
Defendants. However, to the extent any state law claims do remain, the Court declines to
exercise supplemental jurisdiction over those state law claims. 28 U.S.C. § 1367(c)(3); Kach v.
Hose, 589 F.3d 626, 650 (3d Cir. 2009); Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108
S.Ct. 614, 98 L.Ed.2d 720 (1988).
III.
CONCLUSION
Cowher failed to exhaust his administrative remedies against Correct Care, and on
that basis, Correct Care is entitled to summary judgment in its favor. Further, having
considered the record before this Court in a light most favorable to Cowher, the Court finds
that the undisputed material facts in the record establish that both Correct Care and the
PrimeCare defendants are entitled to summary judgment on Cowher’s claim of Eighth
Amendment deliberate indifference to a serious medical need, and Cowher’s Monell claims
against these Defendants. Finally, Cowher has withdrawn his state law claims, and as such
no claims remain pending against these Defendants. Therefore, Defendants’ motions for
summary judgment (Doc. 71); (Doc. 75) will be granted, and judgment entered in favor of
Defendants.
An appropriate Order follows.
BY THE COURT:
s/ Karoline Mehalchick
Dated: July 23, 2019
KAROLINE MEHALCHICK
United States Magistrate Judge
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