C. Rivera v. PA DOC, Bureau of Health Care Services

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carlos Rivera, :
:
Petitioner :
:
v. : No. 673 M.D. 2019
: Submitted: October 16, 2020
Pennsylvania Department of :
Corrections, Bureau of Health :
Care Services, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 23, 2021
Before this Court, in our original jurisdiction, are the Pennsylvania
Department of Corrections, Bureau of Health Care Services’ (Department)
preliminary objections in the nature of a demurrer to the petition for review (Petition)
filed pro se by Carlos Rivera (Inmate).1 In his Petition, Inmate alleges that the
Department violated his constitutional rights against cruel and unusual punishment
under the Eighth Amendment to the United States Constitution,2 and under Article
1
Petitioner Carlos Rivera’s name is written with an alternative spelling on some documents
that have been filed with this Court. We will use “Rivera” as the spelling of his surname.
2
The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “The Eighth
Amendment is made applicable to the states through the Fourteenth Amendment [U.S. Const.
(Footnote continued on next page…)
I, Section 13 of the Pennsylvania Constitution,3 when it failed to provide him with
appropriate medical treatment for problems with his spine and back, severe pain, and
chronic nerve damage. Inmate also alleges that the Department is vicariously liable
for its employees’ medical negligence. Inmate seeks declaratory and injunctive
relief, along with compensable damages, reasonable attorney’s fees, and costs. After
careful review, we sustain the Department’s preliminary objections and dismiss
Inmate’s Petition, because he failed to aver the necessary facts to support his claims.
The facts as averred in Inmate’s Petition are as follows. Inmate is
currently incarcerated in the State Correctional Institution at Forest (SCI-Forest).
Petition ¶1. Inmate has been diagnosed by the Department with “severe problems
to his spine and back.” Id. ¶10. In June 2018, the Department ordered an x-ray for
Inmate, provided him with a lumbar support belt, placed him on, and took him off,
the pain medication, Pamelor. Id. ¶16. Inmate’s medical records state that he had
been instructed to do exercises, but does not require a magnetic resonance imaging
scan (MRI) or extensive physical therapy. Id. During a “sick call” at SCI-Forest on
January 24, 2019, the Department diagnosed Inmate as suffering from “a pressure
fracture in/on his spine, nerve damage related to d[e]bilitation of his sciatic[] nerve,
deter[ior]ation o[f] his sciatic[] nerve, and a growing amount of arthritis.” Id. ¶¶11,
12. At that visit, Inmate described his pain as so intense that he can “barely sleep at
night, and when he does eventually fall asleep, the pain then wakes him up.” Id.
¶13. The Department continued to treat Inmate with various medications, including
pain relief medications and “different psychiatric medication[s],” which did not
amend. XIV.]” Commonwealth v. Real Property & Improvements Commonly Known as 5444
Spruce Street, 832 A.2d 396, 399 (Pa. 2003).
3
Article I, Section 13 states: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel punishments inflicted.” Pa. Const. art. I, §13.
2
noticeably reduce his pain or have any effect on his symptoms. Id. ¶14. The
Department also scheduled Inmate for physical therapy, which he avers is
“substantially inadequate.” Id. ¶15. Inmate admits that “the medical department
does see him when he submits paperwork requests which cost him a co-pay,”
although he avers that it is “not responsive to his medical needs and often tell him
there is nothing more that can be done,” other than the treatment it is already
providing. Id. ¶17. Based on his own medical research, Inmate avers that he should
receive an imaging test such as a “CAT Scan or [MRI]” for his chronic back pain,
which the Department has refused “numerous times.” Id. ¶20. Based on his own
research, Inmate avers that his symptoms “may be a sign of cancer, a herniated disk
or disks[,] or a number of other serious medical problems that [he] wishes to avoid.”
Id. ¶21.
After Inmate utilized the Department’s grievance procedures, which
did not afford him the relief that he sought, he filed the instant Petition in this Court’s
original jurisdiction. Inmate seeks a declaratory judgment from this Court that the
Department violated his rights under the Eighth Amendment and under Article I,
Section 13, which prohibit cruel and unusual punishment. Inmate also seeks
injunctive relief, to compel the Department to schedule an appointment for him to
see a specialist; to follow the specialist’s orders; to schedule an MRI or similar test;
and to reveal the results to him. Inmate further seeks to hold the Department
vicariously liable for negligent acts committed by its employees or agents as they
relate to the medical care that he is receiving. Inmate also seeks compensatory
damages, reasonable attorney’s fees, and costs.
3
The Department filed preliminary objections in the nature of a demurrer
to the Petition,4 and Inmate filed an amended response. The Department seeks
dismissal of Inmate’s Petition because he failed to state a claim that the Department
subjected him to cruel and unusual punishment, and because he failed to establish
sufficient personal involvement by the Department to sustain a negligence claim.
Inmate responds that the Department’s actions to deny him the tests and treatment
that he seeks for his chronic back pain constitute deliberate indifference in violation
of his constitutional rights.
As indicated, Inmate asserts that the Department violated his right to be
free from cruel and unusual punishment under the Eighth Amendment and Article I,
Section 13. Because the guarantee against cruel and unusual punishment in Article
I, Section 13 provides “no greater protection than that afforded by the United States
Constitution,” our analysis of Inmate’s Eighth Amendment claim will also determine
the sufficiency of his claim under the Pennsylvania Constitution. Tindell v.
Department of Corrections, 87 A.3d 1029, 1036 n.8 (Pa. Cmwlth. 2014).
To state a cognizable claim for improper medical care under the Eighth
Amendment, “a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs. It is only such
4
Pa. R.C.P. No. 1028(a)(4) permits preliminary objections to be filed for “legal
insufficiency of a pleading (demurrer).” When ruling on preliminary objections, this Court shall
sustain such objections and dismiss the petition for review, only in cases that are clear and free
from doubt that the law will not permit recovery. In ruling on a preliminary objection in the nature
of a demurrer, this Court must accept as true all well-pleaded allegations in the petition for review
and all inferences reasonably deduced therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. A
demurrer will not be sustained unless the face of the petition for review shows that the law will
not permit recovery, and any doubts should be resolved against sustaining the demurrer. Stone
and Edwards Insurance Agency, Inc. v. Department of Insurance, 616 A.2d 1060, 1063 (Pa.
Cmwlth. 1992) (internal citations omitted).
4
indifference that can offend ‘evolving standards of decency’ in violation of the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted).
This standard requires both deliberate indifference on the part of prison officials and
that the medical needs are serious. West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978).
Whether a medical need is serious is determined by an objective review of whether
the deprivation suffered by the prisoner is “sufficiently serious,” and that a prison
official’s act or omission results in the denial of “the minimal civilized measure of
life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted).
Common factors relied upon by the courts to determine whether a
medical need is serious include: a need that has been diagnosed as requiring
treatment; a need that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention; a need where denial or delay of treatment causes
an inmate to suffer a life-long handicap or permanent loss; a need where denial or
delay of treatment results in unnecessary and wanton infliction of pain; a need that
significantly affects an inmate’s daily activities; or a need that causes chronic and
substantial pain. Tindell, 87 A.3d at 1038-39. When an inmate’s claim is based on
a failure to prevent a future harm, the inmate must show that he is incarcerated under
conditions “posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S.
at 834.
Whether a prison official’s actions meet the deliberate indifference
standard is a subjective inquiry “requiring the demonstration of a state of mind akin
to criminal recklessness.” Tindell, 87 A.3d at 1039. Relying on Farmer v. Brennan,
this Court has held that to demonstrate deliberate indifference to medical needs, an
inmate must establish that: “(i) the prison official knew of and disregarded an
excessive risk to inmate health or safety; (ii) the prison official was aware of facts
5
from which an inference could be drawn that a substantial risk of serious harm exists;
and (iii) the prison official drew the inference.” Id.A difference of opinion as to the proper treatment to be received by an
inmate does not, in and of itself, state a constitutional violation. Farmer v. Carlson,
685 F. Supp. 1335, 1339 (M.D. Pa. 1988). Courts will not attempt to “‘second-guess
the propriety or adequacy of a particular course of treatment,’” which remains a
question of sound medical judgment. Kretchmar v. Department of Corrections, 831
A.2d 793, 799 (Pa. Cmwlth. 2003) (citation omitted). Medical care complaints that
reflect a disagreement with physicians over the proper means of treating an inmate’s
condition do not rise to the level of a constitutional violation. Id. Thus, “‘the key
question . . . is whether [prison officials] have provided [the inmate] with some type
of treatment, regardless of whether it is what [the inmate] desires.’” Farmer, 685 F.
Supp. at 1339 (citation omitted).
Here, the Department does not argue that Inmate’s medical condition is
not serious. The Department argues, however, that Inmate’s Petition fails to aver
sufficient facts to show the Department acted with deliberate indifference to his
chronic back pain. The Department argues that Inmate’s claim is a disagreement of
opinion between himself and medical personnel over the best course of treatment
and, therefore, does not state a viable Eighth Amendment claim. Although Inmate
alleges that the Department’s staff’s refusal to order a “CAT Scan or [MRI]” shows
that the Department’s staff is deliberately indifferent to his condition, he avers no
facts to support this legal conclusion.
As noted above, in ruling on preliminary objections, the Court need not
accept as true conclusions of law or expressions of opinion. Stone and Edwards
Insurance Agency, Inc., 616 A.2d at 1063. In his Petition, Inmate acknowledges that
6
the Department’s staff diagnosed his condition as a pressure fracture in/on his spine,
nerve damage and deterioration to his sciatic nerve, and arthritis, ordered an x-ray,
provided him with a lumbar support belt, scheduled him with physical therapy,
instructed him to do exercises, prescribed various pain medications, and prescribed
various psychiatric medications, all in an effort to relieve and treat his back pain.
See Petition ¶¶11-16. Inmate admits that the medical department has seen him
whenever he submitted a request for treatment. Id. ¶17. Inmate’s complaint is that
the Department has failed to send him to a specialist and to order a “CAT Scan or
[MRI],” which does not rise to the level of a constitutional violation. Medical care
complaints which reflect a disagreement with physicians over the proper means of
treating an inmate’s condition do not rise to the level of a constitutional violation.
Kretchmar, 831 A.2d at 799. Upon careful review of Inmate’s Petition, we conclude
that the Department provided him with various types of treatment for his condition,
even though it is not the treatment that he desires. Farmer, 685 F. Supp. at 1339.
Therefore, based on the facts averred in Inmate’s Petition, we cannot conclude that
the Department acted with deliberate indifference to his medical condition.
Inmate’s Petition focuses on whether the Department’s medical care
violated his constitutional rights, but it is entitled “Petition for Review Related to
Medical-Professional Liability [42 Pa. C.S. §8522(b)(2)],” therefore we will address
this issue. See Petition ¶1. On this point, Inmate argues that the Department should
be liable for the negligent acts of its health care employees under Section 8522(b)(2)
of the Judicial Code, 42 Pa. C.S. §8522(b)(2). Section 8522(b)(2) provides that the
defense of sovereign immunity shall be waived for negligent acts “of health care
employees of Commonwealth agency medical facilities or institutions or by a
Commonwealth party who is a doctor, dentist, nurse or related health care
7
personnel.” The Department acknowledges that the General Assembly has waived
the Commonwealth’s sovereign immunity for acts of negligence in cases of medical
professional liability under Section 8522(b)(2) of the Judicial Code. The
Department argues, however, that this exception applies only to the acts of
Commonwealth health care employees, and that Inmate has failed to name any
individual Department health care employees in his Petition. Moser v. Heistand,
649 A.2d 177, 181 (Pa. Cmwlth. 1994), aff’d, 681 A.2d 1322 (Pa. 1995). The
Department further argues that a public official is not vicariously liable for the
negligent acts of a subordinate employee, citing Antonis v. Liberati, 821 A.2d 666,
668 (Pa. Cmwlth. 2003). On this point we agree with the Department, and we
conclude that because Inmate failed to name any individual Department employees
who were allegedly professionally negligent, Inmate has failed to state a claim for
negligence under 42 Pa. C.S. §8522(b)(2).
Similarly, the Department argues that because Inmate failed to aver
specific facts that the Department was sufficiently personally involved in the alleged
violation of his constitutional rights, it cannot be held vicariously liable for the acts
of its employees. Inmate relies on the theory that the Department or its supervisory
employees should be vicariously liable for the acts of its subordinate employees in
violating his constitutional rights. The Department argues that a constitutional claim
under Section 1983, 42 U.S.C. §1983, (relating to violation of civil rights) requires
personal participation in the alleged wrongdoing. Sutton v. Rasheed, 323 F.3d 236,
249 (3d Cir. 2003). The Department further argues that Inmate failed to demonstrate
that the Department or its officials were personally involved, had actual knowledge
of, or acquiesced in, the alleged constitutional harm. Hampton v. Holmesburg
Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976). The Department further argues
8
that the theory of respondeat superior may not be used to impose liability against a
government or a supervisor, merely by virtue of his or her position. Monell v.
Department of Social Services, 436 U.S. 658, 690-95 (1978). After careful review
of the Petition, we conclude that Inmate has failed to plead specific facts regarding
the Department’s personal involvement in his constitutional claim. Inmate failed to
name individual prison officials in his Petition, and he did not aver that any prison
official was personally involved in the alleged denial of his constitutional rights.
Further, under Antonis, Inmate cannot prevail under a theory of vicarious liability or
respondeat superior.
Finally, because he is not the prevailing party, Inmate is not entitled to
compensatory damages. See 42 U.S.C. §1988(b). Further we conclude that Inmate
is not entitled to attorney’s fees and costs, because it is “well[-]settled that a pro se
litigant cannot recover attorney’s fees for the work expended in litigating his or her
own case.” Kanofsky v. Tax Review Board (Pa. Cmwlth., No. 2740 C.D. 2015, filed
January 5, 2017), slip op. at 4.5
For the foregoing reasons, we sustain the Department’s preliminary
objections, and dismiss Inmate’s Petition, with prejudice.
MICHAEL H. WOJCIK, Judge
Judge McCullough concurs in result only.
5
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carlos Rivera, :
:
Petitioner :
:
v. : No. 673 M.D. 2019
:
Pennsylvania Department of :
Corrections, Bureau of Health :
Care Services, :
:
Respondent :
ORDER
AND NOW, this 23rd day of August, 2021, the preliminary objections
of the Pennsylvania Department of Corrections, Bureau of Health Care Services, are
SUSTAINED, and Carlos Rivera’s Petition for Review is DISMISSED with
prejudice.
__________________________________
MICHAEL H. WOJCIK, Judge