MIDGLEY v. McMILLIAN

Civ. No. 3:13-CV-1941.

MICHAEL MIDGLEY, Plaintiff, v. WARDEN ROBERT McMILLIAN, et. al., Defendants.

United States District Court, M.D. Pennsylvania.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Michael T Midgley, Plaintiff, Pro Se.

Robert McMillian, Defendant, represented by Thomas B. Helbig , Helbig Law Offices.

CCI Medical, Defendant, represented by Joseph T. Healey , O'Malley, Harris, Durkin & Perry.

Dr. Zolaga, Defendant, represented by Joseph T. Healey , O'Malley, Harris, Durkin & Perry.

Nurse Kenny, Defendant, represented by Joseph T. Healey , O'Malley, Harris, Durkin & Perry.

Tony Innauzzi, Defendant, represented by Joseph T. Healey , O'Malley, Harris, Durkin & Perry.

Nurse Jackie, Defendant, represented by Joseph T. Healey , O'Malley, Harris, Durkin & Perry.

Robert McMillian, Counterclaim Plaintiff, represented by Thomas B. Helbig , Helbig Law Offices.


REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Introduction

Michael Midgley is an inmate who was formerly housed in the Lackawanna County Prison. On July 17, 2013, Midgley filed a complaint with this court, which alleged in part that prison medical staff were deliberately indifferent to his serious medical needs during a period which spanned from May through July of 2013. (Doc. 1.) Midgley's complaint named five individual and institutional medical defendants: CCI Medical, Inc., the institutional health care provider at the prison, Dr. Zaloga, the prison medical director, Nurse Jackie, Nurse Kenny, and Tony Ianuzzi, a Nurse-Physician Assistant at the prison.

Liberally construed, Midgely's complaint lodged two allegations of deliberate indifference to his medical needs against these medical defendants. First, Midgley complained that prison staff improperly compelled the plaintiff, an inmate who suffered from chronic high blood pressure, to take additional blood pressure medication on May 6, 2013, when he appeared at the prison medical department complaining of a headache, and testing revealed that he had an elevated blood pressure. (Doc. 1, ¶9.) When Midgley angrily disputed this course of treatment, he alleges that he was improperly placed in a psychiatric observation cell overnight. (Id., ¶22.)

The following day, May 7, 2013, Midgley contends that unnamed correctional officers then used excessive force against him when they removed him from this cell. According to Midgley this use of force resulted in the plaintiff suffering both a broken and a dislocated knee. (Id., ¶¶34, 36, and 42.) Despite purportedly suffering these serious injuries, and allegedly submitting multiple requests for medical care, Midgley's complaint alleged that the defendants ignored his medical needs and failed to treat these serious conditions. (Id., ¶¶46, 67.) This allegation forms the second Eighth Amendment claim lodged by Midgley in this lawsuit.

The case against these medical personnel has proceeded on the basis of these allegations, allegations which the medical defendants now challenge through a thoroughly documented motion for summary judgment, which details the care, treatment and medical conditions experienced by Midgley in the Summer of 2013. (Docs. 90-92.) Midgley has responded to this motion in an erratic and largely inarticulate fashion, filing an unsworn declaration which consists of little more that denunciation of the defendants' well-documented pleadings as lies, coupled with a collection of unrelated articles apparently gleaned from the internet which discuss the hazards of generic drugs and other largely unrelated conditions at the Lackawanna County Prison. (Docs. 95 and 96.)

II. Statement of Facts and of The Case

With the factual record framed in this fashion, we find that the following facts are essentially undisputed in this case: Michael Midgley is a criminal recidivist who has been incarcerated at the Lackawanna County Prison on six occasions. The events which give rise to the instant case took place during a period of incarceration at this institution which spanned from July 6, 2012, to July 17, 2013. On July 17, 2013, Midgley was transferred from the Lackawanna County Prison to the State Correctional Institution (SCI) Graterford. (Doc. 91, ¶3.)

Midgley has a longstanding medical history marked by chronic complaints of high blood pressure dating back to when he was approximately 13 or 14 years old. Midgley has received on-going medical care for this high blood pressure and been taking medication for this condition since he was approximately 21 years old. (Id., ¶¶ 4-5.) In May of 2013, while he was incarcerated at the Lackawanna County Prison, prison medical staff were treating Midgley's chronic high blood pressure through medications, including Lopressor and HCTZ. (Id., ¶7.)

While he was housed at the Lackawanna County Prison, Midgley also had a history of episodic non-compliance with his medication regimen. These episodes of non-compliance with health care often accompanied moments of interpersonal strife arising from the dissolution of Midgley's marriage. For example, in a letter to medical staff dated October 15, 2012, seven months prior to the events set forth in this complaint, Midgley lamented the separation from his family, claimed that he was having a nervous breakdown, stated that "I can't take this pain any more," and refused his medications, writing as follows:

Do what you want with me. I'm done taking meds. I'm done eating. I'm done talking. I don't care about anything except my children and I'm useless to them and to myself . . . Don't bring me meds or trays or anything.

(Doc. 93, Ex. F.)

In May of 2013, Midgley once again found himself confronting domestic interpersonal strife, and became non-complaint with his blood pressure medication. On the morning of May 6, 2013, Midgley was scheduled to attend a domestic relations divorce hearing. Prison medical records reveal that Midgley either refused or failed to appear to receive his blood pressure medication prior to that court appearance. (Doc. 90, ¶8.) Later that morning, Midgley was transported by Sheriff to the Lackawanna County Courthouse in order to attend an all-day divorce hearing in family court. (Id., ¶9.) When Midgley returned from court at approximately 4:00 p.m. on May 6, 2013, prison medical dispensary records indicate that he received his evening blood pressure medications. (Id., ¶10.)

At 10:00 p.m. on May 6, 2016, Midgley required, and received, further medical care and attention as documented in prison medical progress records. According to those medical records:

Nurse Terry states I/M (inmate) blood pressure was 184/106 after having given Lopressor 50 mg & Clonidine 0.1 mg. Nurse states she was called twice to unit. Second time I/M c/o (complaining of) headache. I/M brought down to medical. I/M states he is stressed, had court today due to a divorce. I/M crying off and on. I/M noncompliant and (with) medications bp at this time 200/100-84-20. I/M continues to insist he doesn't need medications and is due to stress. Nurses have instructed I/M to be compliant (with) medication numerous times. Tony Iannuzzi, CRNP, aware. I/M placed on thirty minute behavior watch and medical watch until further notice.

(Id., ¶11.).

Approximately two hours and forty-five minutes later, in the early morning hours of May 7, 2013, the nurse recorded a further decline in Midgley's physical and emotional state and described efforts undertaken by medical personnel to ensure his safety and well-being, noting that:

Nurse to unit for med watches — I/M became belligerent — verbally abusive — refused v.s. (vital signs) stating that—(medical) is not giving the right meds — that's why he has not been taking his meds. I/M stated that he keeps falling out of bed, is having a stroke. Refused v.s. and neuro checks — belligerent — threatening to staff. I/M moved to Delta camera cell for observation.

(Id., ¶12.)

Midgley's angry and irrational behavior continued throughout the morning of May 7, 2013, with Midgley refusing to comply with medical instructions and engaging in self-destructive and harmful behaviors. As medical personnel noted at 11:00 a.m. on May 7, 2013.

I/M in cell. Refusing meds and v.s. (vital signs) illegible. I/M placed into four point restraints. I/M stated that "I want to have a stroke . . . I'm on a hunger strike . . . I'm not taking meds or anything." Four point restraints applied. Illegible. BP 220/120. Refusing meds. Shift supervisor aware. Call into Dr. Mallik (prison psychiatrist).

(Id., ¶13.)

Thus, the undisputed evidence shows that with respect to Midgley's health care on May 6 and 7, 2013, health care which forms the basis for his initial Eighth Amendment claim, the prison care-givers were presented with an emotionally distraught, medically non-complaint and belligerent inmate who was experiencing significant symptoms of chronic high blood pressure. Presented with this constellation of medical, emotional and psychological concerns, the nursing staff provided Midgley with additional medication to try to curb the spike in his blood pressure, instituted a 30-minute medical watch regimen, and transferred Midgley to an observation cell so his health and safety could be closely monitored. While Midgley was plainly displeased with this care and treatment, it is difficult to discern how this course of conduct—which involved on-going medical care and monitoring—could be characterized as deliberate indifference to Midgley's medical needs.

Midgley has also alleged that, when he was removed from the observation cell on May 7, 2013, by unnamed correctional staff, those unnamed staff used excessive force and he suffered a "broken left hand," and a "dislocated knee." (Doc. 1 ¶ 34, 36). Midgley further contends that the medical defendants ignored these injuries, and failed to respond to multiple sick call requests Midgley alleges that he submitted to them between May 6, 2013 and July 1, 2013. (Doc. 1 ¶ 69-71). With respect to this allegation, the second Eighth Amendment claim leveled against these defendants by Midgley, the defendants have produced all of the sick call requests from Midgley's medical chart for each and every incarceration at the Lackawanna County Prison from 2010 through the present. These records wholly undermine Midgley's claims in this lawsuit since they reveal that, while Midgley made frequent use of the sick call system, there were no sick call requests from Midgley contained in the plaintiff's medical chart from May 6, 2013, through July 1, 2013. (Doc. 91, Ex. L.)

On July 1, 2013, Midgley did undergo a lengthy medical history and physical examination at the Lackawanna County Prison which was documented in a prison medical progress note. (Doc. 91, Ex. M.) These July 1 examination results, which are not contested in any meaningful way by Midgley, are noteworthy in several respects. First, they reflect on-going care and treatment of Midgley and thus rebut any allegation of deliberate indifference to his medical needs. In addition, this progress note contradicts Midgley's claims that he had suffered both a broken hand and a dislocated knee. According to these contemporaneous medical notes in the course of this examination Midgley claimed pain in his hands and blurry vision, but:

Offer[ed] no other complaint, denie[d] syncopy, near syncopy, loss of timeline, fever, stiff neck, headache, hearing changes, gait disturbance, difficulty concentrating, nausea, vomiting, bleeding, diarrhea, cough, fatigue, weakness, and others. No other symptom or sign.

Notably, Midgley's medical complaints could not be confirmed. Instead, based upon an examination of Midgley, medical personnel found "no current clinical indicator of significant pathology," and simply prescribed 650 mg Tylenol as needed for the plaintiff. (Doc. 91, Ex. M.) Midgley's allegations of severe injuries, including a broken hand and dislocated knee, were further undermined by other undisputed medical evidence. Thus, shortly after his transfer from the Lackawanna County Prison, on July 19, 2013, while he was housed as an inmate at SCI Graterford, Midgley underwent radiology studies of his left hand and his left orbit. Both of those x-rays were interpreted as normal with no evidence of fracture, dislocation or bony reaction. (Doc. 91, Ex. N.) Later, on April 9, 2014, while an inmate at SCI Chester, Midgley underwent an x-ray study of his left knee. That x-ray study was also interpreted as normal with no fracture or dislocation seen and only mild osteoarthritis of the left knee noted. It was stamped "NCS — not clinically significant." (Doc. 91, Ex. O.)

It is against the backdrop of this essentially uncontested medical record that we now assess the legal sufficiency of Midgley's Eighth Amendment medical deliberate indifference claims against these prison health care providers. In conducting this assessment we are mindful of three legal benchmarks: First, the standards governing summary judgment; second, the guideposts defining Eighth Amendment claims in a prison medical context; and finally, the rules governing institutional and supervisory civil rights liability under federal law. These controlling legal tenets are set forth below.

III. Discussion

A. Summary Judgment Standard of Review

Rule 56 of the Federal Rules of Civil Procedure, governs motions for summary judgment, and provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P., Rule 56 (a). Through summary adjudication a court is empowered to dispose of those claims that do not present a "genuine issue as to any material fact," Fed. R. Civ. P. 56, and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010).

The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, "only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment." Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). Similarly, it is well-settled that: "[o]ne cannot create an issue of fact merely by . . . denying averments. . . without producing any supporting evidence of the denials." Thimons v. PNC Bank, NA, 254 F. App'x 896, 899 (3d Cir. 2007)(citation omitted). Thus, "[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial." Fireman's Ins. Co. of Newark NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982), see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d Cir. 1982). "[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)(citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). Yet, while "only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment," Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995), and "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions," Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), the court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

Finally, a party who seeks to resist a summary judgment motion must also comply with Local Rule 56.1, which specifically directs a party opposing a motion for summary judgment to submit a "statement of the material facts, responding to the numbered paragraphs set forth in the statement required [to be filed by the movant], as to which it is contended that there exists a genuine issue to be tried"; if the nonmovant fails to do so, "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted." L.R. 56.1. Under the Local Rules, the failure to follow these instructions and appropriately challenge the material facts tendered by the defendant means that those facts must be deemed, since:

A failure to file a counter-statement equates to an admission of all the facts set forth in the movant's statement. This Local Rule serves several purposes. First, it is designed to aid the Court in its determination of whether any genuine issue of material fact is in dispute. Second, it affixes the burden imposed by Federal Rule of Civil Procedure 56(e), as recognized in Celotex Corp. v. Catrett, on the nonmoving party `to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designated specific facts showing that there is a genuine issue for trial.' 477 U.S. 317, 324 (1986) (internal quotations omitted) (emphasis added).

Doe v. Winter, No. 04-CV-2170, 2007 U.S. Dist. LEXIS 25517, *2 n.2 (M.D. Pa. Apr. 5, 2007) (parallel citations omitted; court's emphasis). A party cannot evade these litigation responsibilities in this regard simply by citing the fact that he is a pro se litigant. These rules apply with equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 U.S. Dist. LEXIS, *15 (M.D. Pa. July 20, 2010) (pro se parties "are not excused from complying with court orders and the local rules of court"); Thomas v. Norris, No. 02-CV-01854, 2006 U.S. Dist. LEXIS 64347, *11 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules of Civil Procedure).

B. Eighth Amendment Deliberate Indifference Claims in a Prison Medical Context

Prison officials may also violate an inmate's rights under the Eighth Amendment to the United States Constitution by displaying "deliberate indifference" to this inmate's medical needs. To sustain such a claim, an inmate must make an exacting showing by pleading and proving 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 (1976). To establish a violation of his constitutional right to adequate medical care in accordance with this standard, an inmate is required to point to evidence that demonstrates (1) a serious medical need, and (2) 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 need involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104. Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of 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, 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 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, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Clark v. Doe, 2000 U.S. Dist. LEXIS 14999, 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); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D. Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D. Pa. 1997), 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 (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 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).

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 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)).

C. Legal Benchmarks for Supervisory and Institutional Liability

Finally, we note that these medical defendants include CCI Medical, Inc., the institutional health care provider at the prison, and Dr. Zaloga, the prison medical director, both of whom are sued by Midgley in their institutional and supervisory capacities since Midgley simply alleges in his complaint that they are "responsible for the actions of the medical staff." (Doc. 1, ¶73.) These institutional and supervisory civil rights liability claims, in turn, implicate an additional set of legal guideposts which Midgley must satisfy in order to sustain these allegations.

At the outset, it is clear that a claim of a constitutional deprivation cannot be premised merely on the fact that one of the named defendants was a prison medical supervisor when the incidents set forth in the complaint occurred. Quite the contrary, to state a constitutional tort claim the plaintiff must show that the supervisory defendants actively deprived him of a right secured by the Constitution. Morse v. Lower Merion School Dist., 132 F.3d 902 (3d Cir. 1997); see also Maine v. Thiboutot, 448 U.S. 1 (1980). Constitutional tort liability is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence in the challenged practice. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997).

In particular, with respect to prison supervisors it is well-established that:

"A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988).

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

As the Supreme Court has observed:

Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. . . . See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding no vicarious liability for a municipal "person" under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch 242, 269, 3 S.Ct. 329 (1812) (a federal official's liability "will only result from his own neglect in not properly superintending the discharge" of his subordinates' duties); Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 3 S.Ct. 203 (1888) ("A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties"). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

Applying these benchmarks, courts have frequently held that, in the absence of evidence of supervisory knowledge and approval of subordinates' actions, a plaintiff may not maintain an action against supervisors based upon the misdeeds of their subordinates. O'Connell v. Sobina, No. 06-238, 2008 WL 144199, * 21 (W.D. Pa. Jan. 11, 2008); Neuburger v. Thompson, 305 F.Supp.2d 521, 535 (W. D. Pa. 2004). Rather, "[p]ersonal involvement must be alleged and is only present where the supervisor directed the actions of supervisees or actually knew of the actions and acquiesced in them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)." Jetter v. Beard, 183 F. App'x 178, 181 (3d Cir. 2006)(emphasis added).

Likewise a plaintiff must make a specific and particularized showing in order to hold a corporate defendant, like CCI, liable for alleged civil rights violations. On this score it is well-settled that:

[P]rivate corporations that contract with the state to provide services also cannot be subjected to liability under § 1983 on the basis of respondeat superior. See Natale v. Camden County Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-94 (1978) (holding that a municipality cannot be liable under § 1983 on a theory of respondeat superior). Instead, in order to hold a private corporation liable under § 1983, a plaintiff must prove that he suffered a constitutional deprivation as a result of an official corporate policy or custom. Natale, 318 F.3d at 583-84; see also Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404 (1997); Griggs v. Dauphin County Prison, No. 1:06-0823; 2008 WL 2518090, at *4 (M.D. Pa. June 19, 2008); Miller v. City of Phila., No. 96-3578, 1996 U.S. Dist. LEXIS 17514, 1996 WL 683827, at *4 (E.D. Pa. Nov. 26, 1996) (in order to establish liability for a private corporation, a plaintiff must show that the corporation, "with `deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [plaintiff's] constitutional harm.'") (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). As the Third Circuit has explained, a policy or custom can be established in two ways. Policy is made when a "decisionmaker possessing final authority to establish municipal policy with respect to the action" issues an official proclamation, policy, or edict. A course of conduct is considered to be a "custom" when, though not authorized by law, "such practices of state officials [are] so permanent and well-settled" as to virtually constitute law. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). Custom may also be established by evidence that demonstrates knowledge or acquiescence. Beck, 89 F.3d at 971 (citing Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989)).

Mason v. PrimeCare Med., Inc., No. 1:14-CV-1680, 2017 WL 1386198, at *8 (M.D. Pa. Apr. 18, 2017).

D. The Medical Defendants Are Entitled to Summary Judgment

Applying these legal yardsticks, we find that the medical defendants are entitled to summary judgment on Midgley's Eighth Amendment medical deliberate indifference claims. Indeed, on the current factual record these claims fail for at least three separate and independent reasons.

First, these claims fail as a matter of law with respect to the institutional and supervisory defendants, Dr. Zaloga and CCI, Inc. Indeed, a review of Midgley's complaint suggests that Midgley has brought this claim against these particular defendants on a legally infirm theory of liability, since Midgley essentially contends that the doctor and corporate health care provider are liable on a respondeat superior theory of culpability since they are "responsible for the actions of the medical staff." (Doc. 1, ¶73.) As a matter of law, this bald assertion is insufficient to sustain corporate or supervisory civil rights liability since it is entirely undisputed that "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Instead, much more must be shown to establish corporate or supervisory civil rights liability. Supervisory liability only stems from "[p]ersonal involvement [in wrongdoing] and is only present where the supervisor directed the actions of supervisees or actually knew of the actions and acquiesced in them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)." Jetter v. Beard, 183 F. App'x 178, 181 (3d Cir. 2006)(emphasis added). Similarly, "in order to hold a private corporation liable under § 1983, a plaintiff must prove that he suffered a constitutional deprivation as a result of an official corporate policy or custom." Mason v. PrimeCare Med., Inc., No. 1:14-CV-1680, 2017 WL 1386198, at *8 (M.D. Pa. Apr. 18, 2017)(citations omitted.)

In the instant case, there is no evidentiary basis for concluding that Dr. Zaloga participated in, or acquiesced in, constitutional misconduct directed at Midgley. In the same vein, Midgely has not alleged, and certainly has not shown by any competent proof, that his medical care was a direct result of some constitutionally infirm policy or custom adopted by CCI. Since such proof is essential to a supervisory or institutional liability claim, this failure of proof is fatal to these claims. Thus, these supervisory and institutional liability claims simply collapse under the weight of the law and the uncontested facts and should be dismissed.

Moreover, Midgley's Eighth Amendment claims fail for a more basic and fundamental reason: There simply is no evidence of any deliberate indifference to Midgley's serious medical needs in this case. Instead, the undisputed evidence before the Court shows that Midgley was an emotionally unstable, and occasionally non-complaint prisoner who would engage in self-destructive episodes of refusing to take his medication at times of domestic strife. When one such episode took place on May 6, 2013, medical staff responded by providing Midgley with blood pressure medication, closely monitoring his condition, moving him to an observation cell when he was voicing self-destructive and harmful thoughts, and notifying the prison mental health staff of Midgley's emotional distress. While Midgley may have been displeased with aspects of this care, his displeasure does not equate with deliberate indifference to his medical needs, the constitutional benchmark in this field. Since the care provided to Midgley in May of 2013 fully satisfied these constitutional benchmarks, Midgley's Eighth Amendment claim as to this initial health care fails.

As for Midgley's second Eighth Amendment assertion that he later suffered a broken hand and dislocated knee, and medical personnel ignored his repeated requests for care between May and July of 2013, Midgley cannot sustain this claim for at least two reasons. First, the uncontradicted evidence discloses that medical officials did not receive medical request slips from Midgley during this period of time. Therefore, there is no competent evidence to support Midgley's claim that he made frequent medical complaints which were ignored. Moreover, and more fundamentally, immutable medical records reveal that when Midgley was seen by health care providers on July 1, 2013, he was not suffering from any of the injuries which he alleged in his complaint. Further, follow-up examinations at two other prisons did not disclose the injuries which Medgley has claimed in this lawsuit, a broken hand and dislocated knee. In sum, the uncontradicted evidence discloses that there is no proof of either: (1) the serious injuries now alleged by Midgley; or (2) a failure to timely respond to requests for medical treatment. Given the paucity of proof of these two essential elements of any Eighth Amendment claim, these allegations also fail as a matter of law.

This failure of proof, in turn, highlights yet another reason why summary judgment is appropriate in this case. In the face of the defendants' well-documented pleading, Midgley has neglected to meet his responsibilities as a plaintiff in contesting this summary judgment motion. As we have observed, the defendants bore the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). They have carried this threshold burden in this case. Their motion for summary judgment is fully supported by declarations and medical records detailing the care and treatment that Midgley received during the events at issue in this lawsuit.

Therefore, it was now incumbent upon Midgley to "rebut the motion with facts in the record." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In this regard Midgley "cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials." Thimons v. PNC Bank, NA, 254 F. App'x 896, 899 (3d Cir. 2007)(citation omitted). "[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, Midgley "cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions" in an effort to try to defeat this summary judgment motion. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)(citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981).

In this case Midgley's response to this thoroughly-documented summary judgment motion falls well short of what the law demands. That response consists of little more than an unsworn averment by Midgley which denies what the evidence reveals, without providing any evidentiary support for those denials. Midgley then attempts to buttress this inadequate response with an array of articles of unknown provenance, and little relevance to the issues presented by the plaintiff's complaint. Simply put, much more is needed in order for Midgley to create a genuine issue of material fact that would defeat this motion for summary judgment. Since Midgley's response to this motion merely relies upon "bare assertions, conclusory allegations or suspicions" Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), that response is legally insufficient and the medical defendants are now entitled to judgment in their favor as a matter of law.

IV. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion for summary judgment (Doc. 90.) be GRANTED, and this complaint should be dismissed with respect to: CCI Medical, Inc., the institutional health care provider at the prison, Dr. Zaloga, the prison medical director, Nurse Jackie, Nurse Kenny, and Tony Ianuzzi, a Nurse-Physician Assistant at the prison.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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