REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that Defendants' motion for summary judgment (ECF No. 41) be denied as genuine issues of material fact exist which preclude the granting of summary judgment.

II. REPORT

A. Procedural History

Plaintiff, Stephen Blackstone, is a state prisoner in the custody of the Pennsylvania Department of Corrections ("DOC") and is incarcerated at the State Correctional Institution at Greene ("SCI-Greene"). He brings this suit raising constitutional claims relating to the dental care he received by Defendants in 2014. Defendant Celeste Kostelnik was previously employed by the DOC as a General Dentist from September 10, 2007 through March 3, 2017. Defendant Robert Krak is currently employed by the DOC as a Staff Dentist and has held that position since 1994. Blackstone contends that both Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and that Defendant Kostelnik retaliated again him in violation of the First Amendment.

Following the close of discovery, Defendants filed the instant motion for summary judgment. The issues have been fully briefed and the factual record developed. (ECF Nos. 42, 43, 44, 55, 56, and 57). The motion is ripe for disposition.

B. Standard of Review

To prevail on a motion for summary judgment, the moving party must demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To assess whether the moving party has satisfied this standard, the court does not engage in credibility determinations, Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998), and views the facts and draw all reasonable inferences in the light most favorable to the nonmovant. Scott v. Harris, 550 U.S. 372, 378 (2007).

The moving party bears the initial burden of identifying evidence, or the lack thereof, which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute about a material fact is `genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Pearson v. Prison Health Service, 850 F.3d 526, 533-34 (3d Cir. 2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). Once that burden has been met, the nonmoving party may not rest on the allegations in the complaint, but must "go beyond the pleadings and by [their] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial'." Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).

C. Discussion

Based on the filings, it is clear that the parties agree on very few material facts. Specifically, the parties agree that (i) on June 9, 2014, Blackstone had out patient oral surgery during which William Chung, D.M.D., removed an impacted wisdom tooth and a cyst in Blackstone's jawbone; (ii) Dr. Kostelnik gave Blackstone a mechanical soft food diet1 pass for one week, from June 10, 2014 — June 17, 2014; (iii) Blackstone saw Dr. Kostelnik on June 13, 2014, at which time he told her that he felt that his surgery was done improperly and she gave Blackstone a line pass for pain medication; and (iv) on July 7, 2014, Blackstone returned to Dr. Chung for a post-operative follow-up visit.

Other than these four agreed upon facts, the parties present a much different version of events. As to Plaintiff's deliberate indifference claims, Blackstone contends that Dr. Chung gave the correctional officers who had transported him to the hospital explicit, post-operative care instructions which were to be given to the DOC dentists upon Blackstone's return to SCI-Greene. Specifically, those instructions were that Blackstone was to be placed on a soft food diet for two to three weeks. In support, Blackstone has produced the Physician's Order Form, which was entered upon his return to SCI-Greene after his surgery, which states, "soft diet × 14 days. P.O. Dr. Park/M.McCann, RN." ECF 44-4. Further, Blackstone contends that after his follow-up visit on July 7, 2014, Dr. Chung again instructed that Blackstone should receive a soft food diet for the next 10 days. ECF 57 at 55.

Defendants argue that "Plaintiff's entire deliberate indifference claim is premised upon a non-existent post-operative order from Dr. Chung that Plaintiff alleges was ignored." Defs' Br. at 43. In support of their argument, Defendants rely upon the June 9, 2014, Consultation Record prepared by Dr. Chung which makes no mention of a soft-food diet. ECF No. 44-3 at 4. Defendants do not address the June 9, 2014 Physician's Order Form which specifically states that Blackstone was to have a soft diet for 14 days or the entry made the following day which reflects that Blackstone's medical chart was given to Defendant Krak for review. Id. Nor do Defendants address Dr. Chung's July 7, 2014, Consultation Record, which states in pertinent part as follows and, which the summary judgment evidence reflects was reviewed by Defendant Krak on July 8, 2014:

ECF No. 57-1 at 55.2

Blackstone's retaliation claim against Dr. Kostelnik is summarized as follows: On June 13, 2014, Blackstone saw Dr. Kostelnik and asked how long the dental department had been dealing with the Dr. Chung because he felt his surgery was not done improperly. According to Blackstone, Dr. Kostelnik responded in a hostile manner and told him that "she knew all about the grievances I filed and my family calling the institution and Camp Hill."3 Decl. at ¶ 8. (ECF No. 57-1). Although Dr. Kostelnik gave him a line pass for pain medication, she did not examine his mouth. She told him that she would call his housing unit to have him return to the dental department on June 16, 2014, in order to renew his soft food diet. When Blackstone returned to his cell, he filed Grievance #514455 against Dr. Kostelnik, in which he claimed that her "actions was a clear sign of her trying to retaliate against me for filing grievances and having my family call up here." ECF No. 1-6.

On June 19, 2014, Blackstone filed a second grievance, #514920, against Dr. Kostelnik because she did not call his housing unit on June 16, 2014, which resulted in his soft food diet pass expiring on June 17, 2014. In this grievance, Blackstone claimed that in retaliation for filing a grievance against her, Dr. Kostelnik was intentionally disregarding Dr. Chung's post operative care instructions.

In response, Defendants have submitted the Declaration of Celeste Kostelnik which indicates that she "had no knowledge of these grievances when I treated Plaintiff on June 13, 2014 or thereafter for several months, nor did I have any knowledge that he urged his family to contact the institution." ECF No. 44-7 at ¶ 11.4

Defendants also argue that this is not a case of deliberate indifference to Plaintiff's medical needs, but rather this is merely a difference of medical opinion as to one course of treatment over another, and Plaintiff disagrees with the course of treatment chosen by Defendants. In West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978), our appellate court instructed that "deliberate indifference to serious medical needs, resulting in [] a denial of recommended post-operative treatment . . . violates the constitutional standard enunciated in Estelle." Viewing Blackstone's claims, he has alleged more than mere dissatisfaction or disagreement with his medical care — he has alleged that although Defendants were aware of Dr. Chung's explicit post-operative care instructions, they ignored these instructions which resulted in Blackstone suffering additional pain and emotional distress.

Defendants final argument need not long detain us. Defendants argue that Blackstone has not presented the requisite expert evidence to demonstrate deliberate indifference. The Court of Appeals for the Third Circuit recently decided "for the first time whether and when medical expert testimony may be necessary to create a triable issue on the subjective prong of a deliberate indifference case." Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017). The appellate court concluded that "medical expert testimony may be necessary to establish deliberate indifference in an adequacy of care claim where, as laymen, the jury would not be in a position to determine that the particular treatment or diagnosis fell below a professional standard declaration is drastically reduced because it is unsigned. See Bastista v. U.S. Dept. of Justice, 129 F. App'x 724, 725 (3d Cir. 2005) ("We will not consider the unsigned declaration that the Government submitted to show that [defendant] failed to exhaust his administrative remedies"); see also 28 U.S.C. § 1746 (requiring that unsworn declaration have signature in order to be effective). of care." Id. at 536. However, expert testimony is not required to demonstrate serious medical needs where the prisoner can show that his medical need is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Id. at 536-37. Here, Blackstone has produced evidence that Dr. Chung twice prescribed a soft food diet — initially for 2-3 weeks immediately post-op and again after the follow-up visit. In such circumstances, Defendants intent in not prescribing a soft food diet in accordance with Dr. Chung's explicit instructions is an issue for the trier of fact.

Given the arguments of the parties, the Court recommends that summary judgment be denied as there are disputed genuine issues of material fact, which if resolved in Blackstone's favor, would allow a reasonable factfinder to conclude that Blackstone's constitutional rights were violated.

III. CONCLUSION

For all these reasons, it is recommended that Defendants' motion for summary judgment be denied. The parties are in disagreement about the issues raised in this lawsuit, which results in the existence of genuine issues of material fact. It is for a jury to decide these factual issues.

Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, may file timely objections to this Report and Recommendation by June 11, 2018, and Defendants, because they are electronically registered parties, may timely file objections by June 8, 2018. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).