ARTIS v. JIN et al
Filing
8
MEMORANDUM ORDER denying 2 Motion for free copies of medical records; denying 6 Motion for Preliminary Injunction; denying 7 Motion to Appoint Counsel. Signed by Magistrate Judge Maureen P. Kelly on 11/5/2013. A copy of the Memorandum Order has been mailed this day to Plaintiff at his address of record. (ndf )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IVES T. ARTIS,
Plaintiff,
vs.
BYUNGHAK JIN, Medical Director
(indiviaul Compasity); CORIZON
HEALTH, Formerly Prison Healthcare
Services (Official Compasity),
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 13-1226
Magistrate Judge Maureen P.Kelly
ECF Nos. 2, 6 and 7
MEMORANDUM ORDER
KELLY, Magistrate Judge
Plaintiff Ives T. Artis has filed this pro se civil rights action seeking compensatory and
punitive damages, as well as injunctive relief, arising out of Defendants’ treatment of an ankle
injury while he has been incarcerated at the Pennsylvania State Corrections Institute at Greene
(“SCI – Greene”). Plaintiff has been granted his request to proceed in forma pauperis and has
filed a series of motions for consideration by the Court prior to the initiation of service of the
Complaint. Pending before the Court are Plaintiff’s “Motion to Order Prison to Provide Free
Copies of Medical Records” [ECF No. 2], “Motion for Injunction” [ECF No. 6], and “Request
for Appointment of Counsel” [ECF No. 7]. For the reasons more fully set forth below, each of
Plaintiff’s motions are denied.
I. Facts
Plaintiff’s Complaint [ECF No. 1-1] alleges that Defendants’ three year course of
medical treatment for an ankle injury constituted cruel and unusual punishment in violation of
1
his rights under the Eighth and Fourteenth Amendments to the United States Constitution.
Plaintiff’s medical treatment included physical therapy, a six-month course of Vicodin, allegedly
dangerously high dosages of acetaminophen, at least six sets of x-rays leading to an MRI and,
eventually, surgery to treat mild swelling, small fracture fragments and apparent ligament tears
with resulting mild edema and arthritic changes to Plaintiff’s ankle. Plaintiff alleges that
Defendant Jin stopped prescribed treatment of ankle braces and pain medication while Plaintiff
was placed in the Restricted Housing Unit (“RHU”), leading to difficulty walking and additional
injuries in conjunction with the provision of a defective walker. 1 Plaintiff alleges that his
prescribed footwear was returned upon his return to general housing, but that the failure to
provide the footwear while in the RHU caused injury to his healthy ankle. In addition, Dr. Jin
allegedly refused to see Plaintiff for follow-up care and treatment and otherwise allowed him to
suffer in pain.
II. Discussion
1. Motion to Order Free Copies of Medical Records
Plaintiff’s Motion to Order Prison to Provide Free Copies of Medical Records [ECF No.
2] is denied because Plaintiff has failed to establish that he has followed appropriate prison
procedures to inspect the requested documents and to copy any documents by paying the
appropriate photocopying charge. See Victor v. Varano, No. 11-891, 2012 WL 1514845 (M.D.
Pa. May 1, 2012) (finding that requiring an inmate to submit an Inmate Request to Staff to the
Superintendent’s Assistant “is a fitting and proper procedure for [an inmate] to follow in
securing access to these medical records”); Daniels v. Kelchner, No. 05–1601, 2007 WL
1
Plaintiff attaches to his Complaint copies of grievances filed in accordance with the Pennsylvania Department of
Corrections’ administrative review process [ECF 1-2], which indicate that Plaintiff’s medication was “adjusted”
after he was caught selling his Vicodin and that his air cushioned shoes and braces were removed while housed in
the RHU for security reasons. [ECF No. 1-2, pp. 25, 28].
2
2068631 (M.D.Pa. July 17, 2007). (Kane, J.) (denying the plaintiff’s motion to compel discovery
because he had not executed a DC–108 medical release form in accordance with prison policy
regarding production of an inmate’s medical records).
Plaintiff contends that his indigent status entitles him to free copies of his records;
however, the United States Supreme Court has noted that the “expenditure of public funds [on
behalf of an indigent litigant] is proper only when authorized by Congress.” United States v.
McCollom, 436 U.S. 317, 321 (1976). The in forma pauperis statute, 28 U.S.C. § 1915, provides
that a federal court may authorize the commencement and prosecution of a lawsuit “without
prepayment of fees or security therefor, by a person who submits an affidavit that includes a
statement of all assets such prisoner possesses that the person is unable to pay such fees or give
security therefor.” 28 U .S.C. § 1915(a)(1). While the statute does not define what constitutes
“fees” within the meaning of its provisions, in Tabron v. Grace, 6 F.3d 147 (3d Cir.1993), the
United States Court of Appeals for the Third Circuit held that “[t]here is no provision in [28 U.S
.C. § 1915] for the payment by the government of the costs of deposition transcripts, or any other
litigation expenses, and no other statute authorizes courts to commit federal monies for payment
of the necessary expenses in a suit brought by an indigent litigant.” Id. at 159 (emphasis added);
citing In re Richard, 914 F.2d 1526, 1527 (6th Cir.1990) (Section 1915 “does not give the litigant
a right to have documents copied and returned to him at government expense.”).
Here, although Plaintiff has established his entitlement to proceed in forma pauperis,
there is no statutory authority permitting the Court to direct that his discovery expenses be paid
on his behalf. Payo v. Rustin, No. 08-1147, 2010 WL 1254926 (W.D. Pa. Mar. 25, 2010).
Further, the Court finds that even if its equitable powers grant it the ability to grant some form of
relief in this case, Plaintiff has not made any showing that he is unable to obtain those copies
3
beyond his bare assertion that he lacks funds to pay the required fee. Id. Accordingly,
Plaintiff’s Motion to Order Prison to Provide Free Copies of Medical Records [ECF No. 2] is
hereby denied.
2. Motion for Injunction.
Plaintiff has also filed an apparent motion for an “Injunction” [ECF No. 6], which seeks a
temporary transfer to another facility because Plaintiff is “in danger because the lack of
[medical] treatment that is being received.” [ECF No. 6, p. 2]. Plaintiff broadly alleges that (1)
he is not being provided prescribed medication, sick call visits and follow-up appointments with
a specialist; (2) that medical records are being removed and/or falsified; (3) that he is not being
permitted copies of his records; and (4) is being charged erroneous fees to his prisoner account.
As most recently examined in Goodwin v. Glunt, No.13-C0148, 2013 WL 5202088
(W.D. Pa. Sept. 16, 2013), inmate pro se pleadings which seek extraordinary, or emergency
relief, in the form of preliminary injunctions are governed by Rule 65 of the Federal Rules of
Civil Procedure and are judged against exacting legal standards. As the United States Court of
Appeals for the Third Circuit has explained:
Four factors govern a district court’s decision whether to issue a preliminary
injunction: (1) whether the movant has shown a reasonable probability of success
on the merits; (2) whether the movant will be irreparably injured by denial of the
relief, (3) whether granting preliminary relief will result in even greater harm to
the nonmoving party; and (4) whether granting the preliminary relief will be in
the public interest.
Gerardi v. Pelullo, 16 F.3d 1363 (3d Cir.1994) (quoting SI Handling Systems, Inc. v. Heisley,
753 F.2d 1244, 1254 (3d Cir. 1985)).
A preliminary injunction is not granted as a matter of right. Kerschner v. Mazurkewicz,
670 F.2d 440, 443 (3d Cir. 1982). It is an extraordinary remedy. Given the extraordinary nature
4
of this form of relief, a motion for preliminary injunction places precise burdens on the moving
party. As a threshold matter, “it is a movant’s burden to show that the ‘preliminary injunction
must be the only way of protecting the plaintiff from harm.’” Emile v. SCI–Pittsburgh, No. 94–
974, 2006 WL 2773261 at *6 (W.D. Pa. Sept. 24, 2006) (quoting Campbell Soup Co. v.
ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992)). Thus, when considering such requests, courts are
cautioned that:
[A] preliminary injunction is an extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 138
L.Ed.2d 162 (1997) (emphasis deleted). Furthermore, the Court must recognize
that ‘an [i]njunction is an equitable remedy which should not be lightly indulged
in, but used sparingly and only in a clear and plain case.’ Plain Dealer Publishing
Co. v. Cleveland Typographical Union # 53, 520 F.2d 1220, 1230 (6th Cir. 1975),
cert. denied, 428 U.S. 909, 96 S. Ct. 3221, 49 L.Ed.2d 1217 (1977). As a
corollary to the principle that preliminary injunctions should issue only in a clear
and plain case, the Court of Appeals for the Third Circuit has observed that ‘upon
an application for a preliminary injunction to doubt is to deny.” Madison Square
Garden Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir.1937).
Emile, 2006 WL 2773261, at *6.
Accordingly, for an inmate to sustain his burden of proof that he is entitled to a
preliminary injunction under Federal Rule of Civil Procedure 65, he must demonstrate both a
reasonable likelihood of success on the merits and that he will be irreparably harmed if the
requested relief is not granted. Abu–Jamal v. Price, 154 F.3d 128, 133 (3d Cir. 1998). If the
movant fails to carry this burden on either of these elements, the motion should be denied since a
party seeking such relief must “demonstrate both a likelihood of success on the merits and the
probability of irreparable harm if relief is not granted.” Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.
1989) (emphasis added).
Furthermore, in assessing a motion for preliminary injunction, the court must also
consider the possible harm to other interested parties if the relief is granted. Kershner, 670 F.2d
5
at 443. In addition, a request for injunctive relief in the prison context must be viewed with great
caution because of the intractable problems of prison administration. Goff v. Harper, 60 F.3d
518, 520 (8th Cir. 1995). Finally, a party who seeks an injunction must show that the issuance of
the injunctive relief would not be adverse to the public interest. Emile, 2006 WL 2773261, at * 6
(citing Dominion Video Satellite, Inc. v. Echostar Corp., 269 F.3d 1149, 1154 (10th Cir.2001)).
In the past, inmates have frequently sought preliminary injunctive relief compelling
prison officials to take certain actions with respect to them during the pendency of a lawsuit. Yet,
such requests, while often made, are rarely embraced by the courts. Instead, applying Rule 65’s
exacting standards courts have frequently held that prisoner-plaintiffs have not shown that they
are entitled to use a motion for preliminary injunction as a vehicle to compel prison officials to
provide them with some specific relief and services pending completion of their lawsuits. See,
e.g., Messner v. Bunner, No. 07–112E, 2009 WL 1406986 (W.D. Pa. May 19, 2009) (denying
inmate preliminary injunction); No. 08–128E, 2008 WL 4500482 (W.D. Pa. Oct.7, 2008)
(denying inmate preliminary injunction); No. 04–974, 2006 WL 2773261, *6 (W.D .Pa. Sept.24,
2006) (denying inmate preliminary injunction).
In particular, courts have been reluctant to accept inmate invitations to use preliminary
injunctions as a means to judicially prescribe specific medical courses of treatment for inmates.
In such instances, courts have typically declined such requests citing the inmate’s failure to
either demonstrate irreparable harm; Rivera v. Pennsylvania Dep’t. Of Corrections, 346 F. App’x
749 (3d Cir. 2009), Rush v. Correctional Medical Services, Inc., 287 F. App’x 142 (3d Cir.
2008), or show a likelihood of success on the merits. Quinn v. Palakovich, 204 F. App’x 116 (3d
Cir.2006).
6
While the Court does not in any way diminish Plaintiff’s complaints and concerns, a
review of the motion for preliminary injunction leads the Court to conclude that Plaintiff has not
made the demanding showing required by Rule 65 for this extraordinary relief. At the outset, the
Court finds that Plaintiff has not yet met his threshold obligation of showing reasonable
probability of success on the merits. The Court begins by observing that the gravamen of
Plaintiff’s complaint is that prison medical providers have violated his rights under the Eighth
Amendment to the United States Constitution by displaying “deliberate indifference” to his
medical needs. Plaintiff faces an exacting burden in advancing this Eighth Amendment claim
against such personnel in their individual capacities. To sustain such a claim, he must plead facts
which:
[M]eet two requirements: (1) “the deprivation alleged must be, objectively,
sufficiently serious;” and (2) the “prison official must have a sufficiently culpable
state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions
cases, “that state of mind is one of ‘deliberate indifference’ to inmate health or
safety.” Id. “Deliberate indifference” is a subjective standard under Farmer-the
prison official-defendant must actually have known or been aware of the
excessive risk to inmate safety.
Beers–Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.2001).
These principles apply with particular force to Eighth Amendment claims premised upon
inadequate medical care. In the medical context, a constitutional violation under the Eighth
Amendment occurs only when state officials are deliberately indifferent to an inmate’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
It is also clear that the mere misdiagnosis of a condition or medical need, or negligent
treatment provided for a condition, is not actionable as an Eighth Amendment claim because
medical malpractice standing alone is not a constitutional violation. Estelle, 429 U.S. at 106.
“Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of
7
prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context,
deliberate indifference is generally not found when, as is the case here, some significant level of
medical care has been offered to the inmate. Clark v. Doe, 2000 WL 1522855, at *2
(E.D.Pa.Oct.13, 2000) (“courts have consistently rejected Eighth Amendment claims where an
inmate has received some level of medical care”). Thus, such complaints fail as constitutional
claims under § 1983 since “the exercise by a doctor of his professional judgment is never
deliberate indifference. 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.’).” Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D. Pa.1997).
Applying this exacting standard, courts have frequently rejected Eighth Amendment
claims that are based upon the level of professional care that an inmate received; see, e.g., Ham
v. Greer, 269 F. App’x 149 (3d Cir. 2008); James v. Dep’t of Corrections, 230 F. App’x 195 (3d.
Cir. 2007); Gillespie v. Hogan, 182 F. App’x 103 (3d Cir. 2006); particularly where it can be
shown that significant medical services were provided to the inmate but the prisoner is
dissatisfied with the outcome of these services. Instead, courts have defined the precise burden
which an inmate must sustain in order to advance an Eighth Amendment claim against a
healthcare professional premised on allegedly inadequate care, stating that:
The district court [may] properly dis[miss an] Eighth Amendment claim, as it
concerned [a care giver], because [the] allegations merely amounted to a
disagreement over the proper course of his treatment and thus failed to allege a
reckless disregard with respect to his ... care. The standard for cruel and unusual
punishment under the Eighth Amendment, established by the Supreme Court in
Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976), and its
progeny, has two prongs: 1) deliberate indifference by prison officials and 2)
serious medical needs. “It is well-settled that claims of negligence or medical
malpractice, without some more culpable state of mind, do not constitute
‘deliberate indifference.’ ” “Nor does mere disagreement as to the proper medical
treatment support a claim of an eighth amendment violation.”.... [The inmate]
alleged no undue delay in receiving treatment and, as the district court noted, the
8
evidence he presented established that he received timely care.... Although [an
inmate plaintiff] may have preferred a different course of treatment, [t]his
preference alone cannot establish deliberate indifference as such second-guessing
is not the province of the courts.
James, 230 F. App’x. at 197–198. (citations omitted).
Furthermore, it is well-settled that an inmate’s dissatisfaction with a course of medical
treatment, standing alone, does not give rise to a viable Eighth Amendment claim. Therefore,
where a dispute in essence entails nothing more than a disagreement between an inmate and
doctors over alternate treatment plans, the inmate’s complaint will fail as a constitutional claim
under § 1983; see e.g., Cause v. Diguglielmo, 339 F. App’x 132 (3d Cir. 2009) (dispute over
choice of medication does not rise to the level of an Eighth Amendment violation); Innis v.
Wilson, 334 F. App’x 454 (3d Cir. 2009); Ascemi v. Diaz, 247 F. App’x 390 (3d Cir. 2007),
since “the exercise by a doctor of his professional judgment is never deliberate indifference.”
Gindraw v. Dendler, 967 F.S upp. 833, 836 (E.D. Pa.1997) (citations omitted).
In short, in the context of the Eighth Amendment, any attempt to second-guess the
propriety or adequacy of a particular course of treatment is disavowed by courts since such
determinations remain a question of sound professional medical judgment. Inmates of Allegheny
County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d
44, 48 (4th Cir. 1977)).
These guiding principles, which determine the ultimate merits of inmate Eighth
Amendment claims, also frequently define the availability of preliminary injunctive relief in such
cases. State inmates in Pennsylvania have in the past often invited federal courts to entertain
preliminary injunctions directing their jailers to provide them with specially tailored treatment
protocols. Yet, these requests, while frequently made, have rarely been embraced by the courts.
Rivera v. Pennsylvania Dep’t. Of Corrections, 346 F. App’x 749 (3d Cir. 2009); Rush v.
9
Correctional Medical Services, Inc., 287 F. App’x 142 (3d Cir. 2008); Quinn v. Palakovich, 204
F. App’x 116 (3d Cir. 2006).
In this case, much of Plaintiff’s argument in his motion for preliminary injunction
amounts to little more than a disagreement between an inmate and doctor, which as a matter of
law fails as a constitutional claim see, e.g., Cause v. Diguglielmo, 339 F. App’x 132 (3d Cir.
2009). The gravamen of Plaintiff’s motion is devoted to his dispute with the SCI–Greene
Medical Department and its decisions regarding treatment of his persistent ankle injury. Plaintiff
has not shown a substantial likelihood of success on the merits of his claims warranting a
preliminary injunction in this case. In addition, Plaintiff’s unsupported allegations regarding
record tampering are subject to review at the appropriate stage of the litigation. Given that
Plaintiff’s Complaint has not yet been served and Defendants have not yet filed their response
thereto, Plaintiff’s discovery related claims may be addressed after the service of an appropriate
request for the production of documents in accordance with the Federal Rules of Civil
Procedures. Accordingly, because of Plaintiff’s low likelihood of success on the merits of his
claims, the remaining factors need not be addressed and Plaintiff’s motion for an injunction
ordering his temporary transfer to another facility is denied. Goodwin v. Glunt, 2013 WL
5202088 * 4.
3. Request for Appointment of Counsel
Plaintiff has also filed a “Request for Appointment of Counsel” which requires the Court
to determine whether or not, under the facts and circumstances of this case, the Court should
exercise its discretion pursuant to 28 U.S.C. ' 1915(e)(1) and request an attorney to represent
Plaintiff in the prosecution of this action. In considering a motion for the appointment of counsel,
the Court must determine whether or not to request counsel to represent this indigent litigant
10
under the provisions of 28 U.S.C. ' 1915(e)(1), fully recognizing that if successful counsel may
be entitled to recover fees under the provisions of Section 1988 of Title 42, United States Code.
Section 1915(e)(1) gives the Court broad discretion to determine whether appointment of counsel
is warranted, and that determination must be made on a case-by-case basis. Tabron v. Grace, 6
F.3d 147, 157-58 (3d Cir. 1993).
As a threshold matter the district court should consider whether the plaintiff=s claim has
arguable merit in fact or law. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). See Tabron
v. Grace, 6 F.3d at 155. If the court determines that the claim has some merit, the court should
then consider the following factors:
1.
the plaintiff=s ability to present his or her own case;
2.
the complexity of the legal issues;
3.
the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue
such investigation;
4.
the amount the case is likely to turn on credibility
determinations;
5.
whether the case will require the testimony of
expert witnesses; and
6.
whether the plaintiff can attain and afford counsel
on his own behalf.
Parham v. Johnson, 126 F.3d at 457. AThe list of factors is not exhaustive, but instead should
serve as a guidepost for the district courts. Correspondingly, courts should exercise care in
appointing counsel because volunteer lawyer time is a precious commodity and should not be
wasted on frivolous cases.@ Id. at 458.
After careful consideration of Plaintiff=s allegations, it would appear that the appointment
of counsel is not warranted and, therefore, the Court will not exercise its discretion.
11
Initially, as set forth supra, it does not appear with any degree of certainty that Plaintiff is
setting forth a factual basis which demonstrates that he will ultimately prevail on the merits.
Nevertheless, in considering factors one and two B the litigant=s ability to present his case and the
difficulty of the legal issues involved B it is clear that the issues presented in the complaint are
neither difficult nor complex, and nothing in the record indicates that Plaintiff is incapable of
presenting his case. In fact, Plaintiff has amply demonstrated his ability to file motions and
otherwise communicate with the Court during the course of this litigation. Similarly, the third
consideration B the degree to which factual investigation will be necessary and Plaintiff=s ability
to conduct such investigation B does not weigh in favor of the appointment of counsel it is too
early in the litigation to what, if any, factual investigation will be necessary.
Further, while it may be that the credibility of witnesses will be at issue in the case, it
does not appear that the case will become a Aswearing contest@ nor does it appear that proper
adjudication will require the testimony of expert witnesses. Indeed, the only factor that
seemingly weighs in Plaintiff=s favor is the fact that he would be unable to afford to retain
counsel on his own behalf as evidenced by his having requested and been granted in forma
pauperis status. While it may be that this factor weighs in favor of appointing counsel, standing
alone, it does not outweigh the other factors discussed. See Torrence v. Saunders, 2012 WL
137744, at *2 (D.N.J. Jan. 18, 2012); Torres v. Yocum, 2011 WL 6100333, at *2 (M.D. Pa. Dec.
07, 2011); Ortiz v. Schmidt, 2011 WL 282745, at *2 (D.N.J. Jan. 24, 2011).
The Court does not intimate that Plaintiff would not benefit from the appointment of
counsel, but rather it appears that the appointment of counsel will not materially aid justice to
such a degree as to warrant the exercise of our discretion. Thus, until such time as a showing is
made that the interests of justice require our exercise of discretion, the Court declines to do so.
12
See Lassiter v. Dept. Social Services, 452 U.S. 18 (1981). Accordingly, the following Order is
entered:
AND NOW, this 5th day of November, 2013, IT IS HEREBY ORDERED that
(1) Plaintiff=s “Motion to Order Prison to Provide Free Copies of Medical Records” [ECF
No. 2] is DENIED;
(2) Plaintiff’s Motion for Injunction [ECF No. 6] is DENIED; and
(3) Plaintiff’s “Request [Motion] for Appointment of Counsel” [ECF No. 7] is DENIED.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of
the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to
file an appeal to the District Judge which includes the basis for objection to this Order. Any
appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street,
Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any
appellate rights.
BY THE COURT,
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc:
Ives T. Artis
HF-0596
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?