HEARY v. FOLINO et al

Filing 85

OPINION AND ORDER denying 58 Plaintiff's Motion for Summary Judgment; denying 76 Defendant Dr. Jin's Motion for Summary Judgment as to Plaintiff's claims regarding medical treatment received as of September 17, 2013, but granting D r. Jin's Motion for Summary Judgment as to any claims arising out of earlier discrete acts regarding the medical treatment of Plaintiff's hand. Signed by Magistrate Judge Maureen P. Kelly on 3/22/2018. A copy of the Opinion and Order has been mailed to Plaintiff this 22nd day of March, 2018. (ndf)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD HEARY,

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Plaintiff,
v.
LOUIS S. FOLINO, CORRECT CARE
SOLUTIONS, NEDRA GREGO, MS.
VIHLIDAL, and DOCTOR JIN,
Defendants.

Civil Action No. 16-131
Chief Magistrate Judge Maureen P. Kelly
ECF Nos. 58, 76

OPINION AND ORDER
Chief United States Magistrate Judge Maureen P. Kelly
I.

INTRODUCTION
A. Relevant Procedural History
Richard Heary (“Plaintiff”), a prisoner incarcerated at the State Correctional Institution at

Greene, Pennsylvania (“SCI-Greene”), filed this pro se civil rights action on February 2, 2016,
alleging that various prison officials and medical providers were deliberately indifferent to his
medical needs, in violation of his rights provided by the Eighth Amendment to the United States
Constitution. ECF No. 8. This Court subsequently granted Motions to Dismiss filed on behalf
of all Defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to
state a claim upon which relief may be granted. The Court granted Plaintiff leave to file an
Amended Complaint as to Defendant Dr. Jin, to the extent that Plaintiff could allege additional
specific facts to make out an Eighth Amendment claim. ECF Nos. 15, 28, 38.

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On December 20, 2016, Plaintiff filed his Amended Complaint alleging that Dr. Jin failed
to treat persistent severe pain and contractures of the fingers of his left hand, and that Dr. Jin
suggested that as a prisoner serving a life sentence, Plaintiff was not entitled to outside medical
treatment, but could receive only ibuprofen for pain. ECF No. 39 ¶ 8-10. Plaintiff alleged
additional claims for “negligence and malpractice” and sought injunctive relief. ECF No. 39 at
5-6. Dr. Jin responded with a Motion to Dismiss, ECF No. 40, which this Court granted in part
and denied in part. In particular, the Court ordered stricken Plaintiff’s claims of negligence and
malpractice against Dr. Jin, as both claims were not included in Plaintiff’s original Complaint
and, as new claims, were not contemplated by this Court’s Order allowing the filing of an
amended complaint. 1 However, the Court determined that Plaintiff’s Amended Complaint
alleged sufficient facts to state a claim for deliberate indifference to his medical needs in
violation of the Eighth Amendment. ECF No. 47.
Pursuant to the Court’s Case Management Order, ECF No. 51, discovery is now closed
and the parties have filed the pending cross Motions for Summary Judgment. ECF Nos. 58, 76.
The parties have filed their respective briefs in support and in opposition to the pending motions,
ECF Nos. 59, 60, 74, 75, 77, 78, 80, and 81. On March 16, 2018, the Court heard oral argument
on the Motions for Summary Judgment. The Court asked Plaintiff and counsel for Dr. Jin to
address a number of issues, including the failure to refer Plaintiff to a hand specialist and the
statute of limitations. ECF No. 84. As such, the Motions for Summary Judgment are now ripe
for consideration. 2
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In the absence of the timely filing of a Certificate of Merit in compliance with Pennsylvania
law, Plaintiff’s state law negligence and malpractice claims were otherwise barred. See, Pa. R.
Civ. P. 1042.3(a).
The parties have consented to having a United States Magistrate Judge exercise jurisdiction
over this matter. ECF Nos. 22, 23, 27.

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B. Relevant Factual History
The evidence adduced to date establishes that in December 2011, Plaintiff began seeking
medical treatment at SCI-Greene for complaints of a painful nodule on his left palm. Dr. Jin
diagnosed the nodule as a palmar fibroma, and in May 2012, provided a local steroid injection
for possible relief from pain. ECF 77-1 at 80, 138, 250. On June 7, 2012, Plaintiff was seen for
follow-up, and Dr. Jin noted a tender nodule of the left palmar fascia in the area of the fifth
metacarpal. Dr. Jin suggested excising the nodule, which was scheduled and completed with
success two weeks later. This nodule was assessed as sequelae to Dupuytren’s contracture. 3
ECF 77-1 at 79-80, 136-137, 258.
Over the course of the next nine months, Plaintiff was seen by Dr. Jin or other medical
staff for continuing and worsening pain and contractures to his left little finger and hand. Dr. Jin
prescribed various doses of Motrin, Mobic and Naprosyn and provided a steroid injection to
attempt to treat Plaintiff’s pain. On September 24, 2013, Plaintiff submitted an initial grievance
complaining that he most recently requested treatment on September 17, 2013, for “radiating,
shooting, throbbing pain that is unbearably advancing at a rapid rate.” ECF 29-1 at 1-2. Plaintiff
reported continued reduction of his range of motion and requested a consultation with a
specialist. Plaintiff’s grievance was denied and this disposition was upheld at each level of
appeal. A Final Appeal Decision by the Secretary’s Office of Inmate Grievances and Appeals
affirmed the denial on March 6, 2014, based on a finding that Plaintiff’s medical care was
“reasonable and appropriate.” ECF No. 29-1 at 10.

Dupuytren’s contracture is a thickening of the skin over the palm that can affect the mobility of the fingers. ECF
No. 29 at 2 n.1.

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In January 2014, after prescribing Naprosyn, Plaintiff was told to follow-up in six
months. Plaintiff returned in July 2014, and reported continued painful flexion contracture. Dr.
Jin photographed Plaintiff’s finger and forwarded a request to the Regional Medical Director for
consultation with a hard surgeon. ECF 77-1 at 28-29, 76, 130 – 34. The consultation request
does not indicate the identity of the reviewing physician, and contains only Dr. Jin’s signature,
reflecting that on July 14, 2014, it was determined that Plaintiff was to complete an Alternative
Treatment Plan (“PT etc”). 4 Thereafter, Plaintiff attempted physical therapy, to no avail. The
therapist indicated that as of August 14, 2014, Plaintiff suffered “severe left fifth digit
contracture[, with] a dime-sized nodule” in the fifth digit metacarophalangeal area. Two weeks
later, the therapist reported his assessment of no change in Plaintiff’s severe contracture, with the
therapist’s notation that Plaintiff “may benefit from hand surgeon consult” because he was “not
[a] good candidate for PT [at] this time.” ECF No. 77-1 at 129 - 30.
Plaintiff was next seen by medical personnel on December 30, 2014, complaining of pain
that at times went on for twenty minutes without relief or exacerbation. He rated his pain a 7 ½
out of 10 and the provider scheduled a chart review with Dr. Jin. ECF 77-1 at 75, 129. The
provider reviewed Plaintiff’s case with Dr. Jin, and progress notes indicate that Dr. Jin reviewed
Plaintiff’s chart again the following month and noted that while physical therapy was
recommended as an alternative to surgery after the initial consult, he “didn’t expect any help.”
Id. at 128.
Dr. Jin next examined Plaintiff on March 3, 2015. ECF No. 77-1 at 75, 128. By that
time, Plaintiff suffered “a complete contracture with tenderness to the volar aspect.” ECF No.

Dr. Jin states that the request for consultation was submitted to Wexford Health Sources, which rendered its
decision of July 17, 2014. ECF No. 29, 130. However, only Dr. Jin’s name and signature appear on the consultation
record.

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77-1 at 71, 128. On March 24, 2015, Dr. Jin again examined Plaintiff and noted that at this time,
Plaintiff was still in pain, and suffering a complete flexion contracture with pain at the site of the
nodule. Dr. Jin determined that Plaintiff required surgical correction, and prepared a
Consultation Record seeking an evaluation with a hand surgeon. ECF No. 77-1 at 27, 127. The
Consultation Record does not indicate the identity of the consulting physician, but per Dr. Jin’s
notes, states that the request was declined. The record does not reflect the basis for the denial and
Plaintiff’s medical records do not indicate that Dr. Jin sought or initiated an alternative treatment
plan. Id.
Over the course of the next month, Plaintiff injured his left third and fourth fingers while
playing basketball. Dr. Jin was notified, and ordered that Plaintiff’s fingers be splinted and
X-rayed the next day, and that he be treated with Motrin and ice. Plaintiff was seen the
following day, and the X-rays revealed a dislocation of Plaintiff’s left ring finger. On April 9,
2015, Plaintiff was seen by a medical provider for follow-up care to his hand, and it was noted
that Plaintiff’s ring finger was displaced. Dr. Jin was able to reduce the dislocation, and followup x-rays revealed good alignment of the joint and finger. On April 16, 2015, Plaintiff was seen
by Dr. Jin for follow-up of his left ring finger. Dr. Jin buddy taped the ring finger to the
contracted little finger and explained that the surgical consult for his Dupuytren’s contracture
had been denied for the second time. ECF No. 77-1 at 123. Again, there is nothing in the
medical records to reflect the basis for the denial or that Dr. Jin took any further action to seek
referral of Plaintiff to a hand surgeon or to develop an alternative treatment plan. Dr. Jin saw
Plaintiff once more to follow-up on his dislocated finger, and recommended that Plaintiff
continue active range of motion exercises. Id. Dr. Jin transferred out of SCI-Greene in May
2015, and has not seen Plaintiff again. ECF No. 78 at 15.

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Over the course of the remainder of 2015 and 2016, Plaintiff continued to be treated
sporadically for complaints of pain in his left hand and contracture of his little finger. In January
2016, Plaintiff was prescribed pain medication for spasms and enlarged flexor tendons in his left
hand, but was generally noncompliant with medication. A third hand surgeon consultation was
considered but rejected because Plaintiff was able to perform all of his activities of daily living.
ECF 77-1 at 116. After additional complaints of worsening pain, leading to the inability to use
his left hand, in August 2016, four years after the initial excision by Dr. Jin, Correct Care
Solutions, LLC (“CCS”) approved Plaintiff for a telemedicine consultation. The consultation
occurred in November 2016 and after a second consultation in February 2017, Plaintiff was
finally approved for surgery to release the contracture. Plaintiff’s surgery was performed at
Allegheny General Hospital in April 2017, and all complaints regarding his hand have resolved.
Id. at 104-122, 169-173.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” A disputed fact is “material” if proof of its
existence or nonexistence would affect the outcome of the case under applicable substantive law.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Gray v. York Newspapers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257;
Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283,
1287-88 (3d Cir. 1991). When determining whether there is a genuine issue of material fact, the

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court must view the facts and all reasonable inferences in favor of the nonmoving party. EEOC
v. Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015).
In order to avoid summary judgment, a party must produce evidence to show the
existence of every element essential to the case that it bears the burden of proving at trial; “a
complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the nonmoving party fails to make a sufficient showing on any essential element of its
case, the moving party is entitled to judgment as a matter of law. Id.
As indicated, each party has moved for the entry of judgment as a matter of law.
However, the standards under which a court grants or denies each party summary judgment do
not change by virtue of cross-motions being presented. Home for Crippled Children v. Prudential
Insurance Co. of America, 590 F. Supp. 1490, 1495 (W.D. Pa. 1984). “On cross-motions for
summary judgment, the law in our Circuit is clear—the Court considers each Motion on its own
merits, tested against the standards of [Federal Rule of Civil Procedure 56].” U.S. Equal
Employment Opportunity Commission v. Bob Evans Farms, LLC, 275 F. Supp.3d 635, 639
(W.D. Pa. 2017) (internal citations omitted).
III.

DISCUSSION
A. Eighth Amendment – Deliberate Indifference to Serious Medical Need
“The Eighth Amendment, through its prohibition on cruel and unusual punishment,

prohibits the imposition of ‘unnecessary and wanton infliction of pain contrary to contemporary
standards of decency.’” Pearson v. Prison Health Service, 850 F.3d 526, 534 (3d Cir. 2017),
quoting Helling v. McKinney, 509 U.S. 25, 32 (1993). As this Court previously noted when
ruling on Defendants’ Motion to Dismiss, in the medical context, a constitutional violation under

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the Eighth Amendment occurs when prison officials are deliberately indifferent to a prisoner’s
serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). “In order to establish a violation
of [the] constitutional right to adequate medical care, evidence 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 County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 1993), citing
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Mere misdiagnosis or negligent treatment is not actionable as an Eighth Amendment
claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106.
“Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of
prisoners.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (internal citations omitted). 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
judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) quoting
Bowring v. Goodwin, 551 F.2d 44, 48 (4th Cir. 1977). Furthermore, deliberate indifference is
generally not found when some 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, in Pearson, the United States Court of Appeals for the Third Circuit reiterated that
“a plaintiff can only proceed to trial when there is a genuine issue of fact regarding both the
adequacy of medical care and the defendant’s intent.” Pearson, 850 F.3d at 535, citing Durmer
v. O’Carroll, 991 F.2d at 69 n. 13. This requires evidence that a defendant is both “aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists,” and
evidence that he drew the inference. Farmer v. Brennan, 511 U.S. 825, 835-37 (1994).

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Deliberate indifference has been found in a variety of contexts, including an intentional
refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed
medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of
injury, Durmer v. O’Carroll, 991 F.2d at 68, 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).
Here, neither party disputes that Plaintiff suffered a serious medical need. In fact, at oral
argument, defense counsel conceded that Plaintiff was suffering from a serious medical need.
The parties’ differences lie in whether Dr. Jin was deliberately indifferent to Plaintiff’s pain and
the worsening condition of his hand. Plaintiff argues that the undisputed evidence establishes
that Dr. Jin not only failed to provide adequate treatment to resolve the painful contracture of his
little finger, but did so deliberately based on his opinion that prisoners were not entitled to
quality medical care.
In support of his position, Plaintiff contends that for the period August 2013 through
April 2015, Dr. Jin’s treatment was limited to prescriptions for Motrin or Naproxen, which were
insufficient for his persistent pain. ECF No. 59 at 2, 5. Plaintiff further alleges that despite his
ongoing complaints of worsening pain, Dr. Jin explained that Plaintiff “shouldn’t of come to
prison and that this is all he could do for the plaintiff.” ECF 58 at 4.
Plaintiff’s medical records present a stark contrast to Plaintiff’s version of events, but
questions of fact remain concerning whether Dr. Jin’s conduct in the face of continued
complaints of pain and worsening contracture of Plaintiff’s hand constitutes deliberate
indifference, precluding the entry of summary judgment in this matter.
Beginning in August 2012, and throughout his tenure at SCI-Greene, Dr. Jin treated
Plaintiff’s condition, attempting varying modalities of conservative treatment and medications.

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As Plaintiff’s contractures and pain worsened, Dr. Jin states that he submitted two requests to
consult with a hand surgeon, and acceded to an alternative treatment plan despite his recognition
that it would be ineffective. Progress notes in Dr. Jin’s handwriting indicate that an initial
request for a consultation was denied in favor of an alternative treatment plan (physical therapy),
and a second request was denied without an indicated reason. However, the progress notes do
not reflect who Dr. Jin allegedly consulted with, who rendered the decision to delay or deny the
consultation, or whether Dr. Jin took appropriate action to obtain approval for a consultation with
a hand surgeon, in light of Plaintiff’s significant chronic pain and hand contracture.
Further, in light of Plaintiff’s statement during oral argument that Dr. Jin never discussed
a possible referral with him, nor indicated that a request had been made and/or denied, it is
apparent that an issue of fact is presented regarding whether a referral was made. This issue is
particularly relevant to a determination of deliberate indifference on the part of Dr. Jin, given
Plaintiff’s continued complaints of pain, obvious hand contracture, and Dr. Jin’s evident
acknowledgment and conclusion that Plaintiff’s serious medical condition was worsening. See,
Farmer v. Brennan, 511 U.S. at 842 (a culpable state of mind can be found where an official
acted or failed to act despite his knowledge of a substantial risk of serious harm.”) (italics
added).
In addition, based on the record before the Court, significant questions of material fact
exist regarding the issues of Dr. Jin’s alleged deliberate indifference to Plaintiff’s serious
medical need and course of treatment, including but not limited to: gaps in treatment with
instructions to follow up after a span of several months at a time, failure to request an outside
consultation immediately when it was apparent to Dr. Jin that Plaintiff was in pain and the
proposed alternative treatment plan would not aid Plaintiff’s condition, and Dr. Jin’s failure to

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seek or implement alternative treatment when the purported denial was received. Accordingly,
given these issues of fact, neither party has established entitlement to the entry of judgment as a
matter of law.
a. Statute of Limitations
As an alternative basis for summary judgment, Dr. Jin contends that Plaintiff’s claims,
arising out of a surgical procedure in June 2012, are barred by the applicable statute of
limitations. For Section 1983 actions based on conduct in Pennsylvania, the statute of limitations
is two years from the date the claim accrued. See 42 Pa. Cons. Stat. § 5524(2); Kach v. Hose,
589 F.3d 626, 634 (3d Cir. 2009). A claim accrues “when the plaintiff knew or should have
known of the injury upon which [his] action is based.” Kach, 589 F.3d at 634 (internal
quotation marks omitted). Thus, Dr. Jin broadly argues that since Plaintiff’s initial surgery to
remove a node occurred in June 2012, and all of his claims are derivative of this medical
procedure, Plaintiff’s Complaint, not filed until February 2, 2016, is time barred.
This argument fails for a number of reasons. First, where a claim for deliberate
indifference is measured by “persistent conduct in the face of resultant pain and risk of
permanent injury,” White, 897 F.2d at 109, each denial or failure to treat gives rise to a claim,
and the statute of limitations runs anew. See, e.g., McCargo v. Camden County Jail, 693 F.
App’x 164, 166 (3d Cir. 2017) (claims of deliberate indifference accrue while Plaintiff is
enduring circumstances of denied medical treatment); and see, Houser v. Folino, 2014 WL
3696130, at *24 (W.D. Pa. July 23, 2014) (alleged deliberate indifference occurs each time
treatment is refused or the deliberate indifference is otherwise made manifest)(citing Anders v.
Bucks County, 2014 WL 1924114, *5, n. 9 (E.D. Pa. 2014) (“Because deliberate indifference is
manifest when ‘prison authorities deny reasonable requests for medical treatment ... and such

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denial exposes the inmate to undue suffering or the threat of tangible residual injury,’ the
plaintiff has a cause of action for each time her requests for medical care were denied.”);
Robinson v. Superintendent Houtzdale SCI, 693 F. App’x 111, 117 (3d Cir. 2017) (the statute of
limitations does not bar bringing a later claim based on a subsequent grievance when the
challenged policy is ongoing).
Second, the United States Court of Appeals for the Third Circuit has unequivocally
determined that the statutory two-year limitations period applicable to a prisoner’s Section 1983
action is tolled while the prisoner exhausts the prisoner grievance process. Pearson, 775 F.3d at
602 (the mandatory exhaustion requirement set forth in the Prisoner Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), tolls the statute of limitations while a prisoner exhausts
available administrative remedies).
In this instance, the evidence establishes that on September 24, 2013, Plaintiff filed a
timely grievance concerning Dr. Jin’s September 17, 2013, denial of treatment for persistent and
debilitating pain. Pursuant to the PLRA, he was required exhaust available administrative
remedies prior to filing suit. The record in this matter establishes that Plaintiff’s grievance was
not denied at the final level of review until March 6, 2014, which was 163 days after the date he
filed his grievance. ECF No. 29-1 at 10. Plaintiff therefore was required to file his Complaint by
September 24, 2015, plus the 163 days it took to exhaust his administrative remedies – i.e., by
March 5, 2016. Plaintiff submitted his Complaint to this Court on February 2, 2016, well within
this time frame. Accordingly, the statute of limitations does not bar any claims related to the
September 17, 2014, denial of treatment, as well as any manifestations of deliberate indifference
which may have occurred as of that date through the filing of his Complaint. ECF No. 38 at 10
n.4.

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The Court agrees, however, that any claim regarding the June 2012 excision procedure
itself is time-barred. Hunt v. Pa. Dep’t of Corrections, 289 F. App’x 507, 509 (3d Cir. 2008)
(“discrete discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges
alleging that act.”). In light of the foregoing, Dr. Jin’s Motion for Summary Judgment based
upon the statute of limitations is denied as to Plaintiff’s claims arising out of Dr. Jin’s alleged
denial of treatment as of September 17, 2013, but is granted as to any claims arising out of earlier
discrete acts regarding the treatment of Plaintiff’s hand.

An appropriate order follows.
ORDER
AND NOW, this 22nd day of March 2018, for the reasons set forth in the accompanying
Opinion, it is ordered that:
1. Plaintiff’s Motion for Summary Judgment, ECF No. 58, is denied.
2. Defendant Dr. Jin’s Motion for Summary Judgment, ECF No. 76, is denied as to as to
Plaintiff’s claims regarding the denial of treatment as of September 17, 2013, but is granted as to
any claims arising out of earlier discrete acts regarding the treatment of Plaintiff’s hand.

BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

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cc:

Richard Heary
EE1131
SCI Greene
175 Progress Dr.
Waynesburg, PA 15370
All counsel of record via CM/ECF

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