IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA David Payo, : Appellant : : v. : : PA Department of Corrections, : Wexford Health, : No. 845 C.D Doctor Mohammad Naji : Submitted: September 12, 2014 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: March 9, 2015 David Payo (Payo) appeals the order of the Court of Common Pleas of Clearfield County (common pleas court) which denied Payo s request to proceed in forma pauperis on the ground his complaint was frivolous. 1 Payo underwent surgery on November 20, 2007, after he suffered a work-related injury. He was incarcerated on September 11, 2008, in the Pennsylvania Department of Corrections (DOC). While he was incarcerated at the State Correctional Institution at Coal Township (SCI-Coal Township), he underwent a second back surgery on April 12, Six months after this surgery, 1 Pa.R.C.P. No. 240(j) provides: If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous.

2 the surgeon who performed the operation informed Payo that a more complicated back surgery was needed to correct his condition. On March 30, 2011, DOC transferred Payo to State Correctional Institution-Greensburg (SCI-Greensburg). The medical staff at SCI-Greensburg in conjunction with the consulting neurosurgeon recommended spinal fusion surgery and ordered additional tests. In February 2012, after the tests were completed, Payo was informed that the neurosurgeon was no longer with the consulting group. On September 15, 2012, Payo consulted with neurosurgeon, Ghassan Bejjani (Dr. Bejjani) from the University of Pittsburgh Medical Center. Dr. Bejjani ordered a new MRI which was performed in October On December 21, 2012, Dr. Bejjani ordered additional tests in preparation for surgery. On January 1, 2013, a new medical provider, Wexford Health 2, refused to provide the additional tests but did approve the steroidal injections recommended by Dr. Bejjani. On April 3, 2013, Payo received a steroidal injection. On April 4, 2013, DOC transferred Payo to the State Correctional Institution at Houtzdale (SCI- Houtzdale). At SCI-Houtzdale, the medical director, Mohammad Naji (Dr. Naji) terminated Payo s chronic pain management medication, back brace, and walking cane. Dr. Naji did not permit Payo to consult with Dr. Bejjani. On January 20, 2 Wexford Health, actually Wexford Health Sources Incorporated, provides health care services to correctional institutions. Most of its contracts involve the provision of medical, behavioral health, dental, vision, and pharmaceutical care, as well as health-related products and services including chemical dependency treatment, telehealth, utilization management, and provider network development. 2

3 2014, Dr. Burke, a new neurosurgeon, informed Payo that he required surgery and ordered the same tests that Dr. Bejjani had requested. On December 26, 2013, Payo commenced an action in the common pleas court against DOC, Wexford Health, and Dr. Naji. Payo alleged: 21. Plaintiff [Payo] contends that on April 4, 2013 he was transferred from SCI-Greensburg to SCI-Houtzdale, this sabotoging [sic] and disregarding and [sic] and all previously prescribed medical care and treatment. 22. Plaintiff [Payo] contends, that the transfer of him to another correctional facility, SCI-Houtzdale was for medical purposes, when this is nothing more than the Department of Corrections and/or Wexford Health s deliberate attempt to escape their [sic] responsibility of providing plaintiff [Payo] his much needed Spinal Fusion Surgery and any and all adequate medical treatment. 23. Plaintiff [Payo] asserts, that after arriving at SCI- Houtzdale he has been under the care of this Medical Director, Doctor Mohammad Naji, who terminated all previously prescribed Chronic Pain Management regimen for No medically logical or justifiable reason other than cause plaintiff [Payo] un-do [sic] hardship, pain and suffering and cruel and unusual punishment. 24. Plaintiff [Payo] asserts, that after diligently filing sick call requests, grievance forms and all available avenues within this institution, for almost Nine (9) months, to have his chronic back condition addressed in a professional manner, Doctor Naji on December 6, 2013, had prescribed a minor pain medication that is still not adequately battling plaintiff s [Payo] degree of Chronic Debilitating Pain. 25. Plaintiff [Payo] asserts, that ever since his transfer to this SCI-Houtzdale, his back condition has progressively got [sic] worse with every step plaintiff [Payo] has to 3

4 take, because he has NO choice but to walk to and from the dining hall, pill line and medical department many times per day, which is some Two Hundred (200) yards from plaintiff s [Payo] housing unit, without the support of his back brace and walking cane. 26. Plaintiff [Payo] contends, that after his transfer to this institution, he has of yet to see a specialists [sic] concerning his back condition, whereas he was scheduled to consult with, Dr. Ghassan Bejjani his primary neurosurgeon, while housed at SCI-Greensburg, this consultation was ultimately terminated because of this transfer, in which he now has to consult with a new Neurosurgeon, starting this journey all over again. 27. Plaintiff [Payo] insist [sic] that the transfer of him to SCI-Houtzdale is nothing more than the desire of the aforementioned defendant s [sic], total abandoning all previously recommended tests, surgery and treatment. 28. Plaintiff [Payo] insists that the mere fact that he has been denied the most basic medical care by the refusal of his previously prescribed Chronic Pain Management, Back Brace and Walking Cane for NO penological medical or justifiable reason is Negligence, Deliberate Indifference and Medical Malpractice. 29. Plaintiff [Payo] asserts, that his Chronic Back Condition which is well documented has progressively got [sic] worse and yet this Medical Director here Dr. Naji insist [sic] that plaintiff [Payo] is faking his degree of pain is the real issue whereas his track record of misdiagnosing is at question. Count I DELIBERATE INDIFFERENCE Plaintiff [Payo] has a right under the Eighth Amendment to adequate medical care and to be free from cruel and unusual punishment

5 34. The plaintiff [Payo] had a liberty interest in receiving humane and adequate medical care while incarcerated at SCI-Houtzdale. 35. The conduct of the defendant s [sic] acting individually or in concert with each other as described above, deprived the plaintiff [Payo] of his right to be free from cruel and unusual punishment as guarenteed [sic] to him by the Eighth and Fouteenth [sic] Amendments of the United States Constitution and Article I 13 of the Pennsylvania Constitution by: a) Inflicting unnecessary and unjustified pain and suffering; b) Discontinuing of previously prescribed Chronic Pain Management. c) Failure to properly diagnose and treat a serious medical condition. 36. That a reasonable medical Professional in the position of the defendant, Doctor Mohammad Naji, must have known or should have realized that the medical condition that the plaintiff [Payo] suffered, in which there was ample proof. In all the previously administered tests that were in the plaintiff [Payo] [sic] medical records, that, he was in extreme pain and that this pain could only be increasing with the amount of walking plaintiff [Payo] is forced to do at SCI-Houtzdale, in which this defendant prescribed nothing to help in battling this ever increasing pain Plaintiff [Payo] asserts that the main issue arising from the transfer of plaintiff [Payo] to SCI-Houtzdale was to sabotage and disregard all previously prescribed and recommended treatment, in which plaintiff [Payo] was receiving from his previous specialist, Neurosuregon [sic], Dr. Ghassan Bejjani, that plaintiff [Payo] was required to consult with through the D.O.C. and in which has caused the plaintiff [Payo] undo [sic] hardship, pain and suffering, deliberate indifference and medical malpractice. 5

6 39. Plaintiff [Payo] insist [sic], that it has been the Department of Corrections [sic] total responsibility to ensure plaintiff [Payo] receives adequate medical care for a serious medical condition, in which the mere delay in this treatment is deliberate indifference under the Eighth Amendment to the U.S. Constitution and Article I 13 of the Pennsylvania Constitution, pain and suffering, cruel and unusual punishment. 40. Plaintiff [Payo] avers that the specialist he was required to consult with, Dr. Bejjani, before his transfer to SCI-Houtzdale, had ordered additional tests to be performed to prepare for a much needed Spinal Fusion Surgery on December 21, 2012, none of these additional tests were performed, plaintiff [Payo] has confirmed that these tests were flatly refused before plaintiff [Payo] was transferred to Houtzdale, and plaintiff [Payo] has once again found himself consulting with a different Neurosurgeon, deliberately denying plaintiff [Payo] his right to prompt adequate medical treatment. 41. Plaintiff [Payo] insists that his transfer to SCI- Houtzdale, by the Department of Corrections, was nothing more than their [sic] attempt to delay the plaintiff s [Payo] much needed treatment, thus punishing this plaintiff [Payo] further and avoiding the costs of this much needed surgery because plaintiff [Payo] is preparing for parole. Count II CRUEL AND UNUSUAL PUNISHMENT That the defendant, Pennsylvania Department of Corrections acted individually or in concert with the other defendant s [sic] described above, deprived plaintiff [Payo] his right to be free from cruel and unusual punishment as guaranteed to him by the Eighth and Fourteenth Amendments of the U.S. Constitution and Article I 13 of the Pennsylvania Constitution by: a) The infliction of unnecessary and unjustified pain and suffering, 6

7 b) Refusing to provide adequate pain management medication for a documented and confirmed serious medical condition, c) Deliberately interferring [sic] with established outside doctor s prescriptions and recommendations e) [3] Deliberately interferring [sic] and the assisted abandedment [sic] of prior specialist and his treatment. 46. That a reasonable official in the position of the defendant, Pennsylvania Department of Correction [sic], should have known or realized that the plaintiff s [Payo] back condition and other medical conditions were severe enough that the transfer of plaintiff [Payo] to SCI- Houtzdale, was inadequate, when the track record alone for this institution and the medical director Dr. Naji, is substandard, incompetent and inadequate, and the sole purpose of this transfer was to deliberately disregard and sabotage all prior diagnosis, treatments and specialists that plaintiff [Payo] had [sic] previously was required to consult with..... Count III DELIBERATE INDIFERENCE CRUEL AND UNUSUAL PUNISHMENT 50. That the defendant, Wexford Health, acted individually or in concert with the other defendant s [sic] as described above, deprived the plaintiff [Payo] of his right to be free from cruel and unusual punishment as guaranteed to him by the Eighth and Fourteenth Amendments to the U.S. Constitution and Article I 13 of the Pennsylvania Constitution by: a) Refusing previously prescribed and recommended tests to confirm the need for surgery, by an outside specialist, 3 The complaint does not contain a d. 7

8 b) Act[ing] in concert with other defendant s [sic] to transfer plaintiff [Payo] to avoid and escape their [sic] responsibility of the costs of surgery and medical care, c) Refusing Chronic pain Management medication for a considerable amount of time, d) Delaying a much needed surgery and treatment. 51. That a reasonable official and/or company in the position of the defendant, Wexfor [sic] Health, should have known or realized that, considering all prior tests and medical record of plaintiff s [Payo] medical condition, where any new tests ordered were necessary to diagnose this medical condition, where defendant s refusal to approve these tests was their [sic] deliberate indifference to plaintiff s [Payo] medical care. (Emphasis in original.) Complaint, December 26, 2013, Paragraph Nos , 31, 34-36, 38-41, 45-46, and at Payo sought $250, in damages at each count, punitive damages and costs. Payo also petitioned to proceed in forma pauperis. On January 20, 2014, the common pleas court dismissed Payo s complaint with prejudice pursuant to Pa.R.C.P. No. 240(j): The Court believes that Plaintiff s [Payo] complaint is inadequate to show deliberate indifference particularly in light of prison officials considerable latitude in the diagnosis and treatment of prisoners,.... He does not deny that he received medical treatment for his back condition; he merely takes issue with the type of medical treatment he received. This amounts to a disagreement over the form of treatment, which does not rise to the level of a constitutional violation.... 8

9 Specifically, Plaintiff [Payo] expresses that he was not receiving any pain medication, as was previously prescribed to him. However, Plaintiff [Payo] was subsequently placed on a pain management program by Dr. Naji. Said program is still, according to Plaintiff [Payo], not adequately battling plaintiff s degree of Chronic Debilitating Pain..... This is a disagreement over the course of treatment, not indifference to Plaintiff s [Payo] condition..... In addition, Plaintiff [Payo] complains that he must now consult with a new Neurosurgeon, since he was transferred.... If the Department of Corrections denied Plaintiff [Payo] access to a specialist to address his medical needs, the Court would be more sympathetic to Plaintiff s [Payo] predicament. However, the prison system has provided Plaintiff [Payo] with a new neurosurgeon at every institution Plaintiff [Payo] has been transferred to. This fact hardly demonstrates that the Department of Corrections is attempting to transfer Plaintiff [Payo] to other institutions in an effort to ignore Plaintiff s [Payo] alleged medical complications. It shows exactly the opposite. Plaintiff [Payo] has clearly failed to articulate his claims and necessarily failed to present an arguable basis for his claims in fact or law. The Court believes that Plaintiff s [Payo] failure to plead facts sufficient to constitute a cognizable claim under the law is grounds for dismissing Plaintiff s complaint with prejudice. (Citations omitted.) Common Pleas Court Opinion, January 20, 2014, at 3-4. Payo contends that the common pleas court erred when it dismissed his complaint on the basis that the allegations in the complaint demonstrated a 9

10 disagreement with medical treatment and did not rise to the level of cruel and unusual punishment. 4 Under Pa.R.C.P. No. 240(j), if a party files a petition for leave to proceed in forma pauperis simultaneous with the commencement of an action, the common pleas court has the authority to dismiss the action if the allegation of poverty is untrue or the action is frivolous. According to the note to Pa.R.C.P. No. 240(j), an action is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319 (1990). In Estelle v. Gamble, 429 U.S. 97 (1976), the United States Supreme Court determined that the government has an obligation to provide medical care for those incarcerated. In Farmer v. Brennan, 511 U.S. 825, 837 (1994), the United States Supreme Court held with respect to deliberate indifference: [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. This approach comports best with the text of the Amendment as our cases have interpreted it. The 4 When reviewing a common pleas court s denial of an in forma pauperis petition, this Court is limited to a review of whether constitutional rights were violated or whether the common pleas court abused its discretion or committed an error of law. Thomas v. Holtz, 707 A.2d 569 (Pa. Cmwlth. 1988). 10

11 Eighth Amendment does not outlaw cruel and unusual conditions ; it outlaws cruel and unusual punishments. In Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999), the Court of Appeals for the Third Circuit listed instances where courts have found deliberate indifference: We have found deliberate indifference in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.... We also have found deliberate indifference to exist where the prison official persists in a particular course of treatment in the face of resultant pain and risk of permanent injury.... (Citations omitted.) In his Complaint, Payo asserts that he was the victim of deliberate indifference to his medical needs because DOC and/or Wexford Health transferred him to SCI-Houtzdale in order to avoid expensive surgery and that the physician, with whom he then treated, Dr. Naji, discontinued his course of treatment and did not order the surgery Dr. Bejjani recommended. Payo also alleges that DOC and/or Wexford Health inflicted unnecessary and unjustified pain and suffering on him, refused to provide adequate pain management medication, deliberately interfered with an outside doctor s prescriptions and medications, and deliberately interfered with the treatment by his previous physician when he was moved to SCI- Houtzdale. Payo argues that Dr. Naji s decision to terminate his chronic pain management was made to cause him hardship, pain and suffering, and the wanton infliction of pain. 11

12 With respect to these allegations, the common pleas court determined that the transfer of Payo to SCI-Houtzdale did not constitute deliberate indifference because he then received treatment from Dr. Naji. The common pleas court also determined that the fact that Dr. Naji did not order spinal fusion surgery did not amount to deliberate indifference, given that prison officials have considerable latitude in the diagnosis and treatment of prisoners. Durmer v. O Carroll, 991 F.2d 64, 67 (3d Cir. 1993). The common pleas court determined based on the complaint that Payo received pain medication prescribed by Dr. Naji and has received treatment and evaluation at SCI-Houtzdale and that, once again, the main conflict was a dispute over the type of treatment Payo should receive which does not rise to the level of deliberate indifference. While Payo may not ultimately prevail on his Eighth Amendment claim based on deliberate indifference to his medical treatment, this Court does not agree that his complaint is facially frivolous. Payo s complaint expresses more than a disagreement with his medical providers over the course of his treatment. Payo alleges that the transfers to different state correctional institutions were to deprive him of the treatment needed and provided him only with the treatment DOC wanted to provide, which he alleges was grossly inadequate. On the face of the complaint, the alleged deprivation of medical treatment is sufficiently serious to implicate the Eighth Amendment. Secondly, Payo alleges that DOC, Wexford Health, and Dr. Naji were aware of Payo s physical condition and deliberately disregarded it to create an excessive risk to Payo s health and safety. The key question for a court evaluating whether an action is frivolous is if the action lacks an arguable basis either in law or fact. Neitzke. This Court determines that the 12

13 complaint has an arguable basis either in law or fact and that the common pleas court erred when it denied Payo in forma pauperis status and dismissed his complaint. Accordingly, this Court reverses the order of the court of common pleas and remands the case to the common pleas court to grant Payo s petition to proceed in forma pauperis and to order DOC, Wexford Health, and Dr. Naji to timely file responsive pleadings. BERNARD L. McGINLEY, Judge 13

14 IN THE COMMONWEALTH COURT OF PENNSYLVANIA David Payo, : Appellant : : v. : : PA Department of Corrections, : Wexford Health, : No. 845 C.D Doctor Mohammad Naji : O R D E R AND NOW, this 9 th day of March, 2015, the order of the Court of Common Pleas of Clearfield County in the above-captioned matter is reversed and this case is remanded to the Court of Common Pleas of Clearfield County to grant David Payo s petition to proceed in forma pauperis and to order the Pennsylvania Department of Corrections, Wexford Health, and Dr. Mohammad Naji to timely file responsive pleadings. Jurisdiction relinquished. BERNARD L. McGINLEY, Judge