LISA PUPO LENIHAN, Magistrate Judge.
This is a civil rights action that was initiated by Plaintiff pro se on October 18, 2012.
The following facts are undisputed unless otherwise indicated and are taken from the parties' Statements of Material Facts and Responses thereto at ECF Nos. 117/120 & 125, 123 & 126, 127 & 134.
As previously stated, Plaintiff's claims stem from medical issues he experienced while he was incarcerated at SCI-Fayette in 2009 and 2010.
According to Plaintiff, he started to have difficulty breathing, and experienced fatigue and weakness sometime in late March 2010. (ECF No. 127, ¶ 23.) He claims he was not able to exercise and run the track as he had before because he was "breathing all heavy and got light-headed." (
Plaintiff states that he complained to nurses and doctors about his difficulties in breathing, fatigue and weakness, and that two of these people were PA Darla Cowen and Nurse Byron Bilohlavek, who performed insulin injections for Plaintiff. (
Plaintiff claims that he talked to Dr. Park at least twice. (ECF No. 127, at ¶ 42.) He states that one of those times he complained about his respiratory distress and then afterward he received an EKG and a chest x-ray. (
Defendants dispute Plaintiff's allegations of having x-rays taken- see fn. 7- and also dispute Plaintiff's claims regarding his communication with any of the Defendants about his difficulties in breathing and feeling fatigued and weak. Defendants state that while Dr. Park has no recollection of Plaintiff and his treatment, Plaintiff's medical records indicate that Dr. Park only twice examined him, the first time on March 6, 2009, at which time Plaintiff made no complaints of respiratory distress, and his chest was found to have regular respirations and lungs were reported as clear. (ECF No. 117, at ¶¶ 14, 18.) Dr. Park also examined Plaintiff at the chronic care unit on March 9, 2009, where he provided Plaintiff with treatment for his diabetes and hypertension. (ECF No. 117, at ¶ 13.)
Plaintiff's medical records do not indicate any complaints of cough, discharge from the larynx, dyspnea or shortness of breath. (ECF No. 117, at ¶ 11.) In fact, they show that Plaintiff's lungs were checked on August 31, 2009 and the record indicates "lungs clear to auscultation." (ECF No. 117, at ¶ 17.) Defendants also point out that the "Inter-System Transfer Reception Screening" document Plaintiff signed on September 20, 2010, indicates that he denied any acute conditions or problems. (ECF No. 117, at ¶ 10.) However, Plaintiff claims that this was because he could not see the form due to his sight issues as a result of his diabetes and he did not know what the diagnosis was in the release. (ECF No. 125, at ¶ 10.)
As to Dr. Balk, Defendants contend that he never met Plaintiff personally and his only involvement with respect to Plaintiff was to cosign medical records of physician's assistants. (ECF No. 117, at ¶¶ 16, 19.) Plaintiff disputes this and alleges that he met Dr. Balk at least twice, complained to him about his symptoms and asked Dr. Balk to send him to an outside hospital. (ECF No. 125, at ¶ 16.).
After his release from SCI-Fayette on September 20, 2010, Plaintiff saw a primary care physician, Dr. Dolan Wenner, because of complaints of dyspnea on exertion and fatigue. (ECF Nos. 127, 134, 138, at ¶ 30.) He underwent a chest x-ray on October 13, 2010, (id., at ¶ 31), and a CT scan on October 20, 2010, (ECF No. 127-2, at p.1).
On October 27, 2010, he visited Dr. Chinskey at Chest Diseases of Northwestern PA under referral of Dr. Wenner to evaluate a pulmonary nodule. (ECF Nos. 127, 134, 138, at ¶ 32.) Dr. Chinskey's consultation note indicates that Plaintiff's chest x-ray "described an ill-defined left upper lobe lesion" that "felt suspicious for neoplasm." (ECF No. 127-2, at p.1.) It also indicates that his CT scan "confirmed an irregular spiculated lesion in the left upper lobe" that was "noncalcified." (
On November 11, 2010, Plaintiff had a PET/CT scan that indicated a "somewhat nodular and irregular" lesion on his left lung. (ECF No. 127-3, at p.1.) On November 16, 2010, Plaintiff underwent exercise stress testing with perfusion imaging to evaluate hypertension. (ECF No. 127-4, at p.1.)
On November 18, 2010, Plaintiff returned for a follow-up visit with Dr. Chinskey. (ECF No. 127-5, at p.1.) Dr. Chinskey noted that the cause of Plaintiff's dyspnea was "uncertain," and that Plaintiff had "normal pulmonary function" and "no obvious cardiac disease." (
After the navigational bronchoscopy, Plaintiff returned to see Dr. Chinskey on December 16, 2010. (ECF No. 127-6, at p.1.) He was diagnosed with "nonsmall cell cancer in his left upper lobe," and he agreed to proceed with "surgical and other intervention." (
On December 22, 2010, Dr. Jan M. Rothman confirmed that Plaintiff had "what appear[ed] to be early stage lung cancer" and recommended lobectomy/node dissection. (ECF No. 127-7, at pp.1-2.) Also on this day, Dr. Walter E. Rizzoni recommended that Plaintiff undergo "intraoperative fiberoptic bronchoscopy, left upper lobectomy and mediastinal node dissection." (ECF No. 127-8, at pp.1-2.) Dr. Rizzoni performed the recommended surgical procedure on Plaintiff on January 5, 2011. (ECF No. 127-9, at pp.1-3.)
Defendants move for summary judgment on the basis that Plaintiff did not exhaust his administrative remedies prior to filing this lawsuit. In this regard, the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), Congress amended 42 U.S.C. § 1997e(a), prohibits prisoners from bringing an action with respect to prison conditions pursuant to 42 U.S.C. § 1983 or any other federal law, until such administrative remedies as are available are exhausted. Specifically, the act provides in pertinent part as follows:
42 U.S.C. § 1997e(a). Exhaustion is required under this provision regardless of the type of relief sought and the type of relief available through administrative procedures. See Booth v. Churner, 532 U.S. 731, 741 (2001). In addition, the exhaustion requirement applies to all claims relating to prison life which do not implicate the duration of the prisoner's sentence, including those that involve general circumstances as well as particular episodes.
One of the primary purposes of the PLRA's mandatory exhaustion requirement is to "afford[] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation." Porter, 534 U.S. at 525 (citing Booth, 532 U.S. at 737). "And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy."
As discussed in Footnote 4 of this Opinion, Defendants have previously argued for the dismissal of Plaintiff's claims based on his failure to exhaust his administrative remedies. The first time this issue was addressed by the Court, it was denied without prejudice to raise again on summary judgment.
It is undisputed that while he was at SCI-Fayette Plaintiff did not file a grievance concerning the medical care that is the subject of his Complaint, and, therefore, he did not exhaust his administrative remedies as required by the PLRA. However, Plaintiff argues that his failure to exhaust his administrative remedies should not bar his claims because (1) he had no need for administrative intervention of the grievance system to express his medical concerns, (2) until discovery of his lung cancer, he had no "good cause" for grievances, and (3) he was not a "prisoner" when he filed his Complaint because his claim is based upon knowledge that he learned while outside of prison. (ECF No. 128, at pp. 8-9.) For the following reasons, none of these arguments relieve Plaintiff from having to comply with the PLRA's exhaustion requirement.
In the first of his arguments, Plaintiff states that the prison grievance system is a way for inmates to express their concerns, and he had no reason to file a grievance because he had everyday access to the medical staff whereby he could express his medical concerns without the need for administrative intervention. Essentially, this argument implies that the filing of a grievance would have been futile. However, as discussed in the next section, as of the spring and summer of 2010, Plaintiff was clearly dissatisfied with the way medical staff were addressing, or not addressing his medical concerns, even going so far as to request that he be sent to an outside hospital. As such, even if he had everyday access to medical staff to whom he expressed his concerns, it would not have been futile for him to complain about his medical care in a grievance so as to put the DOC on notice that he believed his medical concerns were not being adequately addressed. Such action would have given the DOC an opportunity to review Plaintiff's medical care and take corrective action if necessary. Moreover, the Third Circuit Court of Appeals has specifically rejected the futility argument subscribed to by other courts of appeal, and has held that the PLRA makes exhaustion of all administrative remedies mandatory. Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000). As stated by the Third Circuit, "it is beyond the power of the court — or any other — to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis."
In the second of Plaintiff's arguments, which is much related to the first, Plaintiff states that he had no "good cause" to file a grievance because he complained to the medical staff directly and they assured him that he had no cause to worry. While Plaintiff may try to paint a picture that it was not until after he was released from prison and discovered that he had lung cancer that he had "good cause" to complain about what did or did not occur at SCI-Fayette, his deposition testimony paints a much different picture, one that reveals he was clearly dissatisfied with the treatment, or lack thereof, that he was receiving while he was there. Specifically, Plaintiff testified as follows:
(ECF No. 131, at pp.34-35.) When asked whether he believed the medical staff when they told him he was fine, he said no and that he thought they were just "blowing smoke up [his] ass."
Finally, in the last of Plaintiff's arguments, he states that because his claim is based on knowledge that he learned while outside of prison, i.e., that he had lung cancer, he cannot be considered a "prisoner" who is subject to the strictures of the PLRA. The Court has already addressed this issue in a prior Opinion, see fn. 9, and it sees no reason to depart from its finding that Plaintiff was indeed a "prisoner" at the time he "brought" his Complaint in this action, which is the standard that governs under the PLRA, not when the alleged violations occurred. Nevertheless, the alleged violations in this case did occur while Plaintiff was a prisoner at SCI-Fayette. Plaintiff's claims are that Defendants were deliberately indifferent to his medical needs and concerns, which may or may not have stemmed from his lung cancer,
For the reasons stated herein, Defendants' Motions for Summary Judgment (ECF Nos. 115 & 121) will be granted for Plaintiff's failure to exhaust his administrative remedies prior to filing this lawsuit as required by the PLRA.
AND NOW, this 29th day of March 2017, after the Plaintiff, Gary Halaka, filed an action in the above-captioned case, and after Defendants filed Motions for Summary Judgment,
IT IS HEREBY ORDERED that for the reasons set forth in this Court's Opinion filed contemporaneously herewith, Defendants' Motions for Summary Judgment (ECF No. 115 &121) are GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case closed.
AND IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, if Plaintiff wishes to appeal from this Order a notice of appeal, as provided in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court, at 700 Grant Street, Room 3110, Pittsburgh, PA 15219, within thirty (30) days.
