Ayala v. Terhune , 195 F. App'x 87 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-15-2006
Ayala v. Terhune
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1925
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"Ayala v. Terhune" (2006). 2006 Decisions. Paper 593.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1925
________________
TEOFILO AYALA,
Appellant
v.
JACK TERHUNE, Commissioner of DOCS;
ST. FRANCIS MEDICAL CENTER;
ELLEN WARNER, Ms., Hospital Administrator of NJSP;
JAMES A. WEBB, DR.; ROSNER, DR.; RICKETTI, DR.;
MARC R. RUBIN, DR.; SEELAGY, DR.; STEEGER, DR.;
NUGENT, DR.; LESLIE SALLOUM, DR.;
KIMBERLEY A. BUSCH, Nurse; JENNIFER P. WOODY, Nurse;
JACKSON, Medical Unit Officer; KEVIN GERALD, Officer;
SHIRLEY TYLER, Assistant Medical Matter;
JUDITH A. PERSCHILLI, CEO of SFMCH;
SUSAN MAURER, Acting Commissioner of DOCS;
ROY L. HENDRICKS, Administrator of New Jersey State Prison;
GEORGE ACHEEBE, DR.; WILLIAM H. FAUVER, Commissioner;
S. CAROLE HOLT, Regional Manager Correctional Medical Service;
PETERSON, MS, Director of Nurses;
DONALD LEWIS, Assistant Supt. Medical Matters;
SHEILA LEE, Quality Assurance of Medical Mtr.;
HOWARD L. BEYER, Administrator of NJSP, Until 1994;
DEVON BROWN, Commissioner, Department of Corrections;
KIRBY, Special Corrections Officer
_______________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 02-cv-00373)
District Judge: Mary L. Cooper
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
August 10, 2006
Before: SLOVITER, SMITH AND VAN ANTWERPEN
(Filed: August 15, 2006)
____________________
OPINION
_______________________
PER CURIAM
Teofilo Ayala, pro se, appeals an order of the United States District Court for the
District of New Jersey dismissing his civil rights action pursuant to Federal Rules of Civil
Procedure 56(c).
The procedural history and factual background of this matter are well known to the
parties and, thus, we need only provide a summary here. Ayala has been incarcerated in
New Jersey since 1983, and was an inmate at the New Jersey State Prison (NJSP) from
1997 until his transfer to South Woods State Prison on August 6, 2003. Ayala has a
history of hospitalizations for abdominal problems, including one for acute ulcerative
colitis in 1992. In January 1995, Ayala underwent an unsuccessful sub-total colectomy
and an end ileostomy at the St. Francis Medical Center. In March 1995, surgeons
attempted to replace the portion of the colon that was removed two months before, but the
corrective surgery proved unsuccessful. In her discharge instructions, Dr. Salloum
suggested that Ayala “may require” future evaluation at a larger medical center for
possible colostomy reversal surgery.
From 2000 through 2003, Ayala made repeated requests to NJSP and CMS
administrators seeking approval for colostomy reversal surgery, to which he received
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little or no response. After he filed suit in 2002, Ayala was evaluated by Dr. Herzog at St.
Francis Medical Center at the request of Dr. Achebe. Although Dr. Herzog’s initial
impression in early 2003 was that the surgery could be done at St. Francis Hospital, he
ultimately recommended in May 2003, that Ayala should be evaluated and treated at a
“tertiary University Center.” St. of Undisputed Facts of Defendants Busch, Woody,
Peterson, Achebe and Warner, at ¶¶ 65, 67, and 69.1
Ayala also filed inmate request forms in 2000-2003, complaining that he was not
given some of his prescription medications and vitamins/supplements because of the
prison’s unnecessary delay in ordering refills. He claimed that correctional officers
seized the medication and colostomy supplies he was allowed to store in his cell; he was
not getting adequate colostomy supplies; he was forced to store used colostomy bags in
his cell; and he was verbally harassed and threatened when he complained about these
conditions.2
1
In September 2003, while Ayala was incarcerated at South Woods State Prison, Dr.
Alvarez of the University of Medicine and Dentistry in Newark, New Jersey, evaluated
Ayala for a possible colostomy reversal in early 2004. In October and November 2003,
Dr. Alvarez performed surgery to repair Ayala’s colostomy and bladder leak. Id. at ¶¶
87-89. In December 2003, Dr. Alvarez told the prison’s medical director that the
colostomy would have to be permanent. Id. at ¶¶ 91-92; 117(5)-(6).
2
Although Ayala alleges that the delay in receiving medication and adequate
colostomy supplies has been a problem since his discharge from the hospital in 1995,
there is no evidence of the extent or nature of these delays. Furthermore, there is no
record evidence that Ayala pursued inmate grievances prior to 2000, and thus, to the
extent that Ayala claims delay in medical treatment before 2000, the claim is not
exhausted.
3
In January 2002, Ayala filed a complaint pursuant to 42 U.S.C. § 1983, which was
amended by counsel in February 2003 (“the Complaint”), alleging that Kimberley A.
Busch, LPN; Jennifer P. Woody, LPN; Ellen Peterson, Nursing Supervisor; and George
Achebe, M.D. Supervising Physician, N.J. State Prison (hereafter the “Medical
Defendants”); and Devon Brown, Commissioner, violated his Eighth and Fourteenth
Amendment rights by: denying Ayala surgery to reverse the colostomy that was
recommended by Dr. Salloum in 1995; denying Ayala full access to the medical supplies
necessary to manage his colostomy; refusing Ayala access to the medical waste bin to
dispose of used colostomy supplies and bags, requiring Ayala to store the used materials
in his cell instead; and failing to order timely refills of medically necessary and prescribed
medications. He also asserted that supervisory staff were aware of his complaints
regarding the denial of surgery, medical supplies, and medications but did nothing about
them.
Ayala also alleged that Roy Hendricks, Administrator, N.J. State Prison; S. Carole
Holt, Sheila Lee, Donald Lewis, Ellen Warner, and Shirley Tyler (collectively “NJSP
administrative defendants”) were deliberately indifferent to his medical needs for
inadequately handling Ayala’s prison grievances concerning his medical care. Ayala
further claimed that defendants Gerald, Jackson, Kirby and Nurse Busch discriminated
against him based on his race and immigration status in violation of his civil rights under
§§ 1983, 1985 and 1986 and the Fourteenth Amendment. In addition to these federal
claims, Ayala asserted two state law claims: medical malpractice against the Medical
4
defendants; and intentional infliction of emotional distress against defendants Gerald,
Jackson, Kirby and Nurse Busch.
The Medical defendants, NJSP Administrative defendants, and Kirby filed
separate motions for summary judgment. Ayala cross-moved for summary judgment on
the federal claims. On February 24, 2005, the District Court granted summary judgment
in the defendants’ favor and denied Ayala’s cross-motion. Ayala timely appealed.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s order granting summary judgment. See Pub. Interest
Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir.
1990). Summary judgment shall be granted when “no genuine issue [exists] as to any
material fact and [when] the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We view the facts in the light most favorable to the nonmoving
party and we draw all inferences in that party’s favor. See Reitz v. County of Bucks, 125
F.3d 139, 143 (3d Cir. 1997). We will affirm.
We turn first to Ayala’s Eighth Amendment claims against the Medical
defendants. “It is well-settled that claims of negligence or medical malpractice, without
some more culpable state of mind, do not constitute ‘deliberate indifference.’” Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999); see also White v. Napoleon, 897 F.2d 103,
108 (3d Cir.1990) (concluding that mere medical malpractice cannot give rise to a
violation of the Eighth Amendment). The protections afforded prisoners by the Due
Process Clause of the Fourteenth Amendment are not triggered by the mere negligence of
5
prison officials. See Daniels v. Williams, 474 U.S. 327 (1986). Likewise, Eighth
Amendment liability under 42 U.S.C. § 1983 requires “more than ordinary lack of due
care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).
Only “unnecessary and wanton infliction of pain” or “deliberate indifference to the
serious medical needs” of prisoners is sufficiently egregious to rise to the level of a
constitutional violation. White v. Napolean. 897 F.2d at 108-09 (quoting Estelle v.
Gamble, 429 U.S. 97, 103 (1976)).
The District Court properly disposed of Ayala’s Eighth Amendment claim against
the Medical defendants. The evidence clearly establishes that Ayala received regular
medical care for his ulcerative colitis, including evaluations by various medical
personnel, prescriptions, and conservative treatment plans. Although Ayala argues that
the Medical defendants should have approved the colostomy reversal surgery suggested
by Dr. Salloum in 1995, and should have referred him to a specialist who could perform
the surgery, these allegations are simply not enough, in and of themselves, to state a claim
under the Eighth Amendment. See Estelle, 429 U.S. at 107. In short, although Ayala
would have preferred a different course of treatment, his preference does not establish a
cause of action. Inmates of Allegheny Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)
(noting that courts will “disavow any attempt to second-guess the propriety or adequacy
of a particular course of treatment . . . which remains a question of sound professional
judgment” (citations omitted)).
Moreover, as the District Court correctly determined, sporadic delays (not
6
exceeding four days at any one time) in providing prescription medication to Ayala in
2002-2003, do not amount to deliberate indifference on the part of the named defendants.
As for the failure to provide a new colostomy bag every day, even assuming that it is
medically necessary for colostomy bags to be changed daily, the record reveals no pattern
of deprivation that rises to the level of deliberate indifference. Ayala admitted that the
typical practice at the prison was to provide him a thirty-day supply of colostomy bags.
See Ayala’s Reply Br. at 7. Although the defendants may have failed to provide a new
colostomy bag to Ayala on occasion, at best, their failure amounts to negligence, not
deliberate indifference. Likewise, requiring Ayala to store used bags in his cell or throw
them in the regular trash, although unseemly and ill-advised, also fails to rise to the level
of deliberate indifference. Moreover, we note that Ayala alleges no injury resulting from
this practice. Accordingly, Ayala has not established an Eighth Amendment violation
with respect to the treatment of his ulcerative colitis.
To the extent that Ayala is alleging deliberate indifference by the NJSP
Administrative defendants and Commissioner Devon Brown for failing to approve
colostomy reversal surgery, prison administrators cannot be found deliberately indifferent
under the Eighth Amendment because they fail to respond to the medical complaints of an
inmate being treated by a prison physician, or because, as non-physicians, they defer to
the medical judgment of prison physicians. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d
Cir. 1993) (holding that non-physician defendants were not deliberately indifferent where
they did not respond to the medical complaints of a prisoner who was being treated by a
7
prison doctor); see also White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988) (concluding
that supervisory official “justifiably relied” on the opinion of medical staff concerning the
medical need for treatment). Here, Dr. Salloum’s discharge summary recommended, but
did not direct, that Ayala undergo colostomy reversal surgery.
Ayala’s claims against the NJSP Administrative defendants for their allegedly
inadequate responses to his internal prison grievances concerning his medical care and
treatment were properly dismissed. Prison inmates do not have a constitutionally
protected right to a grievance process. See Massey v. Helman, 259 F.3d 641, 647 (7th
Cir.2001) (citing cases). Accordingly, because Ayala cannot establish a due process
violation stemming from the handling of his grievances, the claims against the NJSP
Administrative defendants were properly dismissed at summary judgment.
Turning to Ayala’s discrimination claims, the District Court properly ruled that
Ayala failed to establish that he was singled out or treated differently from other similarly
situated inmates based on his race or alien status. Furthermore, Ayala’s allegations of
verbal abuse, no matter how deplorable, do not present actionable claims under § 1983.
See Ivey v. Wilson, 832 F.2d 950, 954-955 (6th Cir. 1987) (holding that verbal abuse,
alone, is not an Eighth Amendment violation); Patton v. Przybylski, 822 F.2d 697 700 (7th
Cir. 1987) (holding that use of derogatory racial epithets does not violate the Fourteenth
Amendment); see also Balliet v. Whitmire, 626 F. Supp. 219 (M.D. Pa. 1986) (holding
that use of profane and vulgar language by a state investigator during an interview is not a
civil rights violation), aff’d, 800 F.2d 1130 (3d Cir. 1986) (Table).
8
To the extent that Ayala claims that Correctional Officer Gerald used excessive
force when he stepped on the backs of Ayala’s feet as he walked to his cell from the
shower on one occasion, there is no basis in the record to show that the force used was
excessive. See Whitley v. Albers, 475 U.S. 312, 320-22 (1986).
Finally, Ayala’s state law claims were properly rejected by the District Court.
Because the negligence in a medical malpractice action encompasses matters not within
the ordinary knowledge and experience of laypersons, New Jersey law generally requires
that a medical expert testify with a reasonable degree of medical certainty that the acts in
question deviated from acceptable medical standards, and that such deviation caused the
harm suffered. See N.J. Stat. Ann. § 2A:53A-27; Hubbard v. Reed, 774 A.2d 495, 499
(N.J. 2001). We agree with the District Court that lay people lack the experience and
understanding required to assess the standard of care for a colostomy patient like Ayala
who seeks reversal of a colostomy or medication for his medical condition. Ayala failed
to produce the required affidavit of an expert and, thus, he did not establish a claim for
medical malpractice under New Jersey law.
Ayala argues that he was excused from submitting an affidavit concerning the
delay in providing colostomy supplies because the meritorious nature of this claim was
readily apparent from a reading of his Complaint. We disagree. But even assuming that
no affidavit was required, we find nothing in the record that shows that Ayala suffered
any harm, especially where it is undisputed that the normal practice was to provide new
colostomy bags daily.
9
Ayala’s intentional infliction of emotional distress claim was properly dismissed at
summary judgment substantially for the reasons set forth by the District Court in its
Opinion. Viewing the undisputed facts in the light most favorable to Ayala, the
defendants’ conduct was not outrageous or extreme as a matter of law. See Buckley v.
Trenton Sav. Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988).
Accordingly, we will affirm the judgment of the District Court. Ayala’s motion for
appointment of counsel is denied.
10