ROGER ANTHONY ETKINS, Plaintiff v. JUDY GLENN, et al., Defendants.
C.A. 10-216 Erie
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
October 18, 2011
District Judge McLaughlin; Magistrate Judge Baxter
I. RECOMMENDATION
It is respectfully recommended that Defendants’ motion to dismiss complaint or, in the alternative, for summary judgment [ECF No. 21], be granted, and that this case be dismissed.
II. REPORT
A. Relevant Procedural History
On September 1, 2010, Plaintiff Roger Anthony Etkins, a prisoner formerly incarcerated at the Federal Correctional Institution at McKean in Bradford, Pennsylvania (“FCI-McKean“)1, filed a pro se civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), along with a brief in support thereof. [ECF Nos. 3,4]. Named as Defendants are: Judy Glenn, who, at all times relevant to this lawsuit, was a nurse practitioner employed by Public Health Services and assigned to FCI-McKean (“Glenn“); Rodney Smith, who, at all times relevant to this lawsuit, was Health Services Administrator at FCI-McKean (“Smith“), and Eric Asp, a physician‘s assistant at FCI-McKean (“Asp“).
Defendants have filed a motion to dismiss complaint or, in the alternative, for summary judgment, asserting that: (i) Plaintiff has failed to exhaust his administrative remedies with regard to his claims against Defendant Glenn; (ii) Plaintiff‘s claims against Defendant Glenn should be dismissed, in any event, because she is statutorily immune from Plaintiff‘s lawsuit and/or has not been properly served; (iii) Plaintiff has failed to state a cause of action upon which relief may be granted against either Defendant Smith or Defendant Asp; and (iv) Defendants are entitled to qualified immunity. Plaintiff has filed a response to Defendants motion [ECF No. 25], and Defendants have filed a reply to Plaintiff‘s response [ECF No. 26]. Plaintiff has also filed his own motion for summary judgment, to which no response has been filed. [part of ECF No. 28]. This matter is now ripe for consideration.
B. Relevant Factual History
Plaintiff alleges that on April 29, 2009, he was on medical call-out to have the results of an ultrasound and an x-ray read to him. (ECF No. 3, Complaint, at Section IV.C). Defendant Glenn escorted Plaintiff to the examination room, at which time Plaintiff lifted his left pant leg to show her that his knee “was still quite swollen.” (Id.). Defendant Glenn allegedly responded, “oh, it‘s not that bad, you need to toughen up,” and then denied Plaintiff‘s request for a “knee brace or ace wrap.” (Id.). Defendant Glenn then read the test results, after which Plaintiff told her that even though he was taking pain medication, he still suffered from chronic testicular and knee pain. (Id.). According to Plaintiff, Defendant Glenn became “irritated,” opened the door, and told him he should leave. Plaintiff alleges that when he was half-way through the door,
As Plaintiff was leaving the medical department, Defendant Glenn asked Defendant Smith about the knee wrap, to which Defendant Smith allegedly responded, “no, he gets nothing.” (Id.). Later the same day, Plaintiff was placed in the Special Housing Unit (“SHU“). After being placed in the SHU, Plaintiff was given the eye drops he had been taking for glaucoma, but was not given his prescription pain medication. Four days later, Plaintiff stopped Defendant Smith on his walk through and asked him about the pain medication. Defendant Smith allegedly responded “nah, you ain‘t getting it that easy, it‘s not an emergency.” (Id.).
On May 12, 2009, Defendant Asp went to Plaintiff‘s cell, at which time Plaintiff explained that he had not received his pain medication and requested a knee wrap. Defendant Asp allegedly told Plaintiff that he could not get a knee wrap “because of policy.” (Id.). Plaintiff later received his pain medication on May 22, 2009, and ultimately received a knee sleeve on July 7, 2009. (Id.).
C. Standards of Review
1. Motion to Dismiss
A motion to dismiss filed pursuant to
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’ rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “This ‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556.
The Third Circuit subsequently expounded on the Twombly/Iqbal/Phillips line of cases, as follows:
To prevent dismissal, all civil complaints must now set out “sufficient factual matter” to show that the claim is facially plausible. This then “allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.”
* * *
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint‘s well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff‘s entitlement to relief. A complaint has to “show”
such an entitlement with its facts. As the Supreme Court instructed in Iqbal, “[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.‘” This “plausibility” requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)(emphasis added)(citations omitted).
2. Summary Judgment
A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact.
The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial.
When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).
A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Anderson, 477 U.S. at 248. Summary judgment is only precluded if the dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 247-249.
3. Pro Se Pleadings
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 519, 520-521(1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor
D. Exhaustion of Administrative Remedies
Defendants argue that, with regard to Plaintiff‘s claims against Defendant Glenn, he has failed to exhaust his administrative remedies in accordance with the requirements of the PLRA,
no action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available are exhausted.
1. Exhaustion Standard
It is not a plaintiff‘s burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S. 199, 217 (2007) (“...failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.“). Instead, the failure to exhaust must be asserted and proven by the defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the administrative review process in accordance with the applicable procedural rules of that grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006) (“Proper exhaustion demands compliance with an agency‘s deadlines and other critical procedural rules ...“). Importantly, the exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally defective ... appeal.” Id. at 83; see also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004) (utilizing a procedural default analysis to reach the same conclusion) (” Based on our earlier discussion of the PLRA‘s legislative history, [...] Congress seems to have had three interrelated objectives relevant to our inquiry here: (1) to return control of the inmate grievance process to prison administrators; (2) to encourage development of an administrative record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits.“).
To determine whether Plaintiff has exhausted the administrative remedies required by the Bureau of Prisons’ grievance system, an understanding of the administrative process available to federal prisoners is essential. “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’ The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison‘s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 217 (2007).
The Bureau of Prisons has established a multi-tier system whereby a federal prisoner may seek formal review of any aspect of his imprisonment.
3. Analysis
Defendants assert that Plaintiff has failed to properly exhaust his administrative remedies with regard to his claims against Defendant Glenn. This assertion is supported by the Declaration of Vanessa Herbin-Smith, a Supervisory Paralegal for the BOP‘s Northeast Regional Office, who certifies the following:
6. Following a search of inmate Etkins’ administrative remedy index, I determined the following:
- He fully exhausted his available administrative remedies with respect to the alleged delay and/or denial of pain medication and a knee sleeve, while he was assigned to the SHU at FCI-McKean.
- He has not fully exhausted his available administrative remedies regarding the alleged assault by Defendant Glenn with the examination room door.
7. Inmate Etkins’ Administrative Remedy records reflect the following:
- Since his designation to FCI McKean on February 27, 2009, he has filed 22 Administrative Remedy Requests and/or Appeals.
- Of inmate Etkins’ 22 Administrative Remedy submissions inmate Etkins filed after his designation to FCI McKean, ten (10) involved medical and/or staff issues at FCI-McKean and twelve (12) involved issues and complaints which arose while he was incarcerated at USP Canaan.
- Of the 10 Administrative Remedy filings concerning issues that arose at FCI McKean, six (6) were filed in connection with Case Number 539093, in which he requested pain medication and an MRI. Case Number 53903 was fully exhausted.
- The remaining four (4) Administrative Remedy filings were filed in Case Number 544651, in which inmate Etkins raised a staff complaint concerning an incident which occurred on April 29, 2009. It is possible the staff member who was subject to these
filings was Defendant Glenn. However, each of inmate Etkins’ Administrative Remedy filings for Case Number 544651 was rejected without a substantive response, because of the following technical errors:
- On June 22, 2009, inmate Etkins filed Case Number 544651-F1, in which he raised a complaint regarding a staff member at FCI McKean in connection with an incident which arose on April 29, 2009. On June 25, 2009, Case Number 544651-F1 was rejected without a substantive response because inmate Etkins did not file his Request for Administrative Remedy until after the filing deadline. In this case, he grieved an incident which he alleged arose on April 29, 2009; however, he waited until June 22, 2009, in which to file his Administrative Remedy Request. Under
28 C.F.R. § 542.14(a) inmates have 20 calendar days from the date of the incident in which to file an Administrative Remedy Request.- On July 16, 2009, inmate Etkins filed Case Number 544651-F2, in which he raised a complaint regarding a Health Services staff member. On August 17, 2009, an explanatory response was provided to him. The response neither granted nor denied his Administrative Remedy Request.
- On September 21, 2009, inmate Etkins appealed the institution‘s Response in Case Number 544651-F2 to the Bureau of Prisons Central Office (Case Number 544651-A1). On January 11, 2010, inmate Etkins’ Central office Administrative Remedy Appeal was rejected without a substantive response. Inmate Etkins was advised he needed to appeal to the Regional Office before he could appeal to the Central Office.
- On November 9, 2009, inmate Etkins filed a Central Office Administrative Remedy Appeal in Case Number 544651-A2. It was accepted in error; and it was noted that it should have been rejected.
8. Inmate Etkins has filed no other Administrative Remedy Requests concerning staff or incidents that arose at FCI McKean. Thus, to date, inmate Etkins has fully exhausted his available administrative remedies (for incidents and staff complaints arising a FCI-McKean) only in Case Number 539093, in which he requested an MRI and pain medication. He has not exhausted his available administrative remedies regarding any issue involving or related to Judy Glenn, ...
(ECF No. 22-1, Declaration of Vanessa Herbin-Smith, at ¶¶ 6-8).
Plaintiff has failed to present any arguments or documentary evidence sufficient to
E. Discussion
In the medical context, a constitutional violation under the Eighth Amendment occurs only when prison officials are deliberately indifferent to an inmate‘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.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference to a serious medical need6 involves the “unnecessary and wanton infliction of pain.” Estelle, 429 U.S at 104. Such indifference is manifested by 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 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).
1. Defendant Smith
Plaintiff claims that Defendant Smith refused to provide him his “already prescribed pain medication” in the SHU, allegedly telling Plaintiff “you ain‘t getting it that easy, it‘s not an emergency.” (ECF No. 4, Plaintiff‘s Memorandum in Support of Complaint, at p. 4; ECF No. 3, Complaint, at pp. 5-6). Defendants respond by arguing that, at the time in question, Defendant Smith was the Health Services Administrator and did not render medical care or treatment to inmates, nor was he authorized to prescribe pain medication.
As a Health Services Administrator, Defendant Smith is considered a non-medical prison official in the context of a Section 1983 denial of medical care claim. See Spencer v. Beard, 2010 WL 608276, *4 n. 5 (W.D.Pa. Feb. 17, 2010), citing Hull v. Dotter, 1997 WL 327551, *4 (E.D.Pa. June 12, 1997); Freed v. Horn, 1995 WL 710529, *3-4 (E.D.Pa. Dec. 1, 1995). In Durmer v. O‘Carroll, 991 F.2d 64 (3d Cir. 1993), the Third Circuit held that non-medical prison officials cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the
2. Defendant Asp
Plaintiff alleges that Defendant Asp saw him in the SHU on May 12, 2009, at which time Plaintiff requested his pain medication and a knee wrap. According to Plaintiff, Defendant Asp informed him that BOP policy prevented SHU inmates from wearing knee wraps. In addition, Plaintiff alleges that Defendant Asp told him that pain medication would be provided; however, the pain medication did not arrive until May 22, 2009. Based on these allegations, Plaintiff claims that Defendant Asp was deliberately indifferent to his serious medical needs by delaying his pain medication and denying him a knee wrap. The record evidence proves otherwise.
According to Plaintiff‘s medical records, Defendant Asp renewed Plaintiff‘s prescription pain medication Sulindac on the very day it was requested by Plaintiff — May 12, 2009. (ECF No. 22-3 at p. 45). In addition, the record reflects that Plaintiff first requested a knee sleeve from Defendant Asp on July 7, 2009, and, in response, Defendant Asp ordered a knee brace that same day. (ECF No. 22-3 at p. 37). Thus, Defendant cannot be said to have been deliberately indifferent to Plaintiff‘s medical needs and summary judgment should be entered in his favor accordingly.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Defendants’ motion to dismiss Plaintiff‘s complaint or, in the alternative, for summary judgment, be granted, and that this case be dismissed.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Dated: October 18, 2011
cc: The Honorable Sean J. McLaughlin
United States District Judge