JORDAN v. MURIN et al

Filing 181

MEMORANDUM ORDER ON JUDGMENT: AND NOW, this 16th day of February, 2021; IT IS ORDERED that the motion for summary judgment filed on behalf of Defendants Alpert, Eslenberg, and McKeel, ECF No. 111 , shall be, and hereby is, GRANTED. IT IS FURTHER ORDERED that the report and recommendation of Magistrate Judge Lanzillo, issued on November 4, 2020, ECF No. 163 , is adopted as the opinion of the Court, and Plaintiff's objections thereto 179 are OVERRULED. In accordance with the foreg oing, IT IS ORDERED, pursuant to Rule 58 of the Federal Rules of Civil Procedure, that JUDGMENT shall be, and hereby is, entered in favor of Defendants Alpert, Eslenberg, and McKeel and against Plaintiff David V. Jordan relative to Counts 2, 4, 5, 6, and 7 of the complaint. Signed by Judge Susan Paradise Baxter on 2/16/2021. (esa)

Case 1:18-cv-00228-SPB-RAL Document 181 Filed 02/17/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID V. JORDAN,
Plaintiff,
v.
LIEUTENANT MURIN, et al.,
Defendants.

)
)
)
)
)
)
)
)

Case No. 1:18-cv-228

MEMORANDUM ORDER OF JUDGMENT
This prisoner civil rights action was received by the Clerk of Court on August 16, 2018
and referred to the undersigned, then a United States Magistrate Judge, for report and
recommendation (“R&R”), in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and
the Local Civil Rules of this Court. After the undersigned was sworn in as a United States
District Judge, the case was referred to United States Magistrate Judge Richard A. Lanzillo for
all pretrial proceedings. ECF No. 9. The undersigned became the presiding U.S. District Judge
on July 23, 2019.
The claims in this case concern events that allegedly transpired while Plaintiff was
incarcerated at SCI-Forest. As set forth in his complaint, ECF No. 3, Plaintiff alleges that he was
assaulted by corrections officials on May 1, 2016 in retaliation for having filed a lawsuit against
fellow corrections officers. He further avers that he was denied constitutionally adequate
medical care following the May 1, 2016 assault. Plaintiff now seeks redress under 42 U.S.C.
§1983 for the alleged violation of his federal constitutional rights. In his complaint, he names
nine current or former employees of the Pennsylvania Department of Corrections, along with
four individuals who provided medical services at SCI-Forest during times relevant to this
lawsuit. Among the individuals named as Defendants are the following medical personnel,
1

Case 1:18-cv-00228-SPB-RAL Document 181 Filed 02/17/21 Page 2 of 4

hereafter referred to collectively as the “Medical Defendants”: Heather G. McKeel (“McKeel”),
Dr. Alpert (“Alpert”), and Dr. Eslenberg (“Eslenberg”).
Plaintiff’s claims against these Defendants are set forth in Counts 2, 4, 5, 6, and 7 of the
Complaint. In relevant part, Count 2 asserts a First Amendment retaliation claim against
McKeel; Counts 4, 5 and 6 assert Eighth Amendment deliberate indifference claims against all
three Medical Defendants; Count 7 asserts an additional Eighth Amendment deliberate
indifference claim against Alpert and McKeel. ECF No. 163 at 2.
On March 2, 2020, the Medical Defendants filed a motion for summary judgment as to
all of the claims asserted against them. ECF No. 111. Plaintiff filed his responsive documents
on May 8 and 11, 2020. ECF Nos. 129, 130, 131, 132, 133. The Medical Defendants replied on
May 27 and 28, 2020. ECF Nos. 141, 142.
On November 4, 2020, Magistrate Judge Lanzillo issued an R&R recommending that the
Medical Defendants’ motion for summary judgment be granted. ECF No. 163. Following a
lengthy analysis, Judge Lanzillo concluded that Plaintiff had failed to demonstrate a genuine
issue of material fact relative to his retaliation and deliberate indifference claims. As to the
deliberate indifference claims at Counts 4-6 and Count 7, Judge Lanzillo opined that the
evidence could not support a reasonable finding of deliberate indifference on the part of the
Medical Defendants. With respect to the retaliation claim in Count 2, Judge Lanzillo opined that
the evidence could not support Plaintiff’s theory that Defendant McKeel retaliated against him
by performing a “false and retaliatory medical examination.” To the extent McKeel’s treatment
notes included any inaccuracies, Judge Lanzillo concluded that these alleged inaccuracies could
not reasonably be construed as adverse action that would be sufficient to deter a person of
ordinary firmness from exercising his or her constitutionally protected rights.

2

Case 1:18-cv-00228-SPB-RAL Document 181 Filed 02/17/21 Page 3 of 4

Plaintiff filed objections on January 26, 2021. ECF No. 179. With respect to the Eighth
Amendment deliberate indifference claims in Counts 4 through 6 and Count 7 of the complaint,
Plaintiff insists that the record evidences a material issue of fact on the question of deliberate
indifference relative to treatment rendered on May 5, May 18, and May 28, 2016. With regard to
the retaliation claim in Count 2 of the Complaint, Plaintiff contends that there is a disputed issue
of fact as to whether McKeel’s conduct satisfied the “adverse action” prong of his retaliation
claim.
The Medical Defendants responded to Plaintiff’s objections on February 11, 2021. ECF
No. 180. Therein, Defendants dispute Plaintiff’s objection that the Magistrate Judge failed to
fully consider his arguments. They further contend that Plaintiff did not directly respond to their
Concise Statement of Material Facts to dispute the record evidence which rebuts his claims.
Having fully reviewed and considered the Plaintiff’s objections, the Court finds them to
be lacking in merit. Accordingly, after de novo review of the complaint and documents in the
case, together with the report and recommendation, Plaintiffs’ objections, and the Medical
Defendants’ reply thereto, the following order is entered:
AND NOW, this 16th day of February, 2021;
IT IS ORDERED that the motion for summary judgment filed on behalf of Defendants
Alpert, Eslenberg, and McKeel, ECF No. [111], shall be, and hereby is, GRANTED.
IT IS FURTHER ORDERED that the report and recommendation of Magistrate Judge
Lanzillo, issued on November 4, 2020, ECF No. [163], is adopted as the opinion of the Court,
and Plaintiffs’ objections thereto [179] are OVERRULED.
In accordance with the foregoing, IT IS ORDERED, pursuant to Rule 58 of the Federal
Rules of Civil Procedure, that JUDGMENT shall be, and hereby is, entered in favor of
3

Case 1:18-cv-00228-SPB-RAL Document 181 Filed 02/17/21 Page 4 of 4

Defendants Alpert, Eslenberg, and McKeel and against Plaintiff David V. Jordan relative to
Counts 2, 4, 5, 6, and 7 of the complaint.

______________________________
SUSAN PARADISE BAXTER
United States District Judge

cm:

David V. Jordan
JY-4119
SCI Phoenix
P.O. Box 244
Collegeville, PA 19426
(via U.S. mail, First Class)
Counsel of Record
United States Magistrate Judge Richard A. Lanzillo
(via CM/ECF)

4