Payne v. Bora

Full title: JOSHUA PAYNE, Plaintiff, v. MEDICAL DIRECTOR BORA, et al., Defendants.

Court: United States District Court, Middle District of Pennsylvania

Date published: Jun 27, 2024

Civil 1:22-CV-00559 (M.D. Pa. Jun. 27, 2024)

Opinion

Civil 1:22-CV-00559

06-27-2024

JOSHUA PAYNE, Plaintiff, v. MEDICAL DIRECTOR BORA, et al., Defendants.

Daryl F. Bloom United States Magistrate Judge.

Munley Judge.

REPORT AND RECOMMENDATION

Daryl F. Bloom United States Magistrate Judge.

I. Introduction

Before the Court is a motion for summary judgment filed by the remaining defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 73.) For the reasons set forth below, the Court recommends that the motion be granted in part and denied in part.

II. Background

A. Procedural Background

The plaintiff, Joshua Payne (“Plaintiff”), is a convicted state prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”). (Doc. 1 at 11.) On April 18, 2022, while he was incarcerated at State Correctional Institution Mahanoy (“SCI Mahanoy”) in Frackville, Pennsylvania, he commenced the above-captioned action by filing a pro se complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Id. at 9, 10.) His complaint asserts violations of the Eighth Amendment to the United States Constitution, as well as medical negligence under Pennsylvania state law. (Id. at 2-7.) In addition, his complaint alleges that the defendants were deliberately indifferent to, and provided inadequate medical care for, his Type II diabetes while he was incarcerated at SCI Mahanoy. (Id.) His complaint names, as the defendants, numerous individuals consisting of both DOC correctional officials and medical personnel who work at SCI Mahanoy, including two John Does (i.e., “John Doe 1” and “John Doe 2”). (Id.)

As reflected by the Court's docket, the correctional officials- namely, L. White and Mason-have been dismissed from this litigation following the Court's disposition of their motion to dismiss, filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See (Docs. 11 (containing their motion to dismiss); 46 (containing United States Magistrate Judge Martin C. Carlson's Report and Recommendation as to their motion to dismiss); 49 (containing United States District Judge Robert D. Mariani's Order adopting that Report and Recommendation)).¹

1 Notably, although Mason had been named as a defendant in Plaintiff's complaint (Doc. 1 at 1), he was neither identified as a defendant on the Court's docket, nor had service of Plaintiff's complaint been effectuated upon him. However, because the Commonwealth's arguments for dismissal were the same as to these two DOC correctional officials, Mason was also dismissed by the Court as a prospective defendant. See (Docs. 11, 46, 49).

With the exception of the John Does, the remaining defendants- i.e., Dr. Baddick (“Baddick”), Dr. Pinky Bora Saikia (“Bora Saikia”), PA Williams (“Williams”), and Dr. Loscalzo (“Loscalzo”) (collectively, “Medical Defendants”) (Doc. 1 at 2)-filed an answer with affirmative defenses to Plaintiff's complaint (Doc. 44).² On March 23, 2023, the Court issued a Case Management Order, setting a September 29, 2023 deadline for the parties to complete fact discovery and to file dispositive motions and supporting briefs. (Doc. 50.) However, after that Case Management Order was issued, Plaintiff filed a motion seeking leave to file an amended pleading, along with his proposed amended pleading. (Docs. 51, 51-1.) Plaintiff's motion was ultimately granted, and his proposed amended pleading (Doc. 51-1) was accepted as the operative pleading in this case, see (Docs. 54, 55, 59). It has been docketed as Plaintiff's second amended complaint (Doc. 60),³ and it names only the Medical Defendants (id. at 1).⁴

2 The Court has taken the spelling of the Medical Defendants' names from their filings. See, e.g., (Docs. 73, 74, 76).

3 By way of background, Plaintiff had previously filed a motion for leave to file an amended complaint, which the Court denied without prejudice. (Docs. 40, 43.) Plaintiff's second motion was titled as a motion for leave to file a “second amended complaint.” (Doc. 51.) While the Court refers to Plaintiff's operative pleading as the second amended complaint for consistency purposes, this operative pleading is, technically speaking, Plaintiff's first amended complaint.

4 In other words, because “John Doe #1” and “John Doe #2” were not named in Plaintiff's second amended complaint (Doc. 60), they are no longer parties to this litigation and should, therefore, be terminated from the Court's docket.

To provide context for the Court's statement of material facts, set forth infra, the Court briefly recounts the allegations in Plaintiff's second amended complaint. More specifically, Plaintiff alleges that he was diagnosed with type II diabetes in or around 2016 or 2017 and that he began taking insulin at that time. (Docs. 60 at 2; 82-2 at 3 (identifying the specific date as October 19, 2016).) In October 2020, while he was incarcerated at SCI Mahanoy, Plaintiff noticed swelling, a burning sensation, and severe pain in his feet and legs. (Doc. 60 at 2.) He alleges that he notified the Medical Defendants, as well as other medical staff at SCI Mahanoy, of his chronic pain and his need to see a specialist for evaluation and treatment, but they refused to provide him with such care. (Id. at 6.) As a result, Plaintiff claims that he experienced, inter alia, weakness in his legs, pain in his toes and the bottom of his feet, joint damage, cramps in his arms and legs, and muscle weakness. (Id.)

In connection with these allegations, Plaintiff challenges several discrete encounters that he had with the Medical Defendants at SCI Mahanoy. (Id. at 2-6.) In some instances, Plaintiff's second amended complaint does not clearly set forth when or where such encounters occurred or the overall timeframe that is relevant to his second amended complaint. See (id.). That said, Plaintiff alleges that: during a sick call visit in October 2020, Defendant Williams examined his feet and legs, asked him questions, and prescribed him medication for his pain and swelling (id. at 2); in the following weeks, Plaintiff's symptoms did not improve, so he saw Defendant Williams at another sick call visit, during which she examined him and explained that she was limited in terms of the pain medication she could prescribe to him, that it was not her “job or duty” to schedule him to be seen by a doctor or a specialist, and that he would have wait until he is called for chronic care clinic to “bring that up to the doctor” (id. at 2-3); after “months” of experiencing pain and discomfort, Plaintiff was seen by Defendant Loscalzo (on an unspecified date) at the chronic care clinic; Defendant Loscalzo allegedly told Plaintiff that he had diabetic neuropathy for which there is no cure or specialist (id. at 3-4); thereafter, Plaintiff “went back and forth from sick-call” for months, “trying to get some type of treatment” for his diabetic neuropathy (id. at 4); “after over an [sic] year[,]” Plaintiff was admitted to the infirmary on or about July 25, 2021 (id.); while in the infirmary, he was seen by Defendant Bora Saikia with whom he had a disagreement over his medication and, specifically, the adjustments that she made to his diabetic medication (idat 4-5); while Plaintiffwas still in the infirmary, he saw Defendant Baddick on or about August 2, 2021, “about getting treatment for his diabetic neuropathy and renewing his insulin injections[;]” and Defendant Baddick told Plaintiff that he would not go against another doctor's decision (id. at 5).

In connection with these encounters, Plaintiff contends that the Medical Defendants failed to provide him with proper medical treatment, which resulted in his admission to the emergency room. (Id.) During one visit (date and location unspecified), a doctor (unknown) prescribed Plaintiff medication (unspecified) for his diabetic neuropathy. (Id.) Plaintiff asserts, however, that when he returned to the institution, he was not given this medication. (Id.) Plaintiff further asserts that, because Defendants Bora Saikia and Baddick did not consider the doctor's “recommendations/adjustments[,]” Plaintiff had to go back to the emergency room again (date and location unspecified) so that he could receive further treatment for his diabetic neuropathy and “bring” his glucose levels to “normal levels[.]” (Id. at 6.)

Based upon these allegations, Plaintiff's second amended complaint asserts an Eighth Amendment claim for deliberate indifference to his serious medical needs, as well as medical negligence under Pennsylvania state law. (Id. at 7.) For relief, Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive damages. (Id. at 7-8.)

On November 3, 2023, in response to Plaintiff's second amended complaint, the Medical Defendants filed an answer with affirmative defenses. (Doc. 61.) After receiving extensions of the previously ordered case management deadlines (Docs. 59, 64, 69), the Medical Defendants filed a motion for summary judgment and statement of material facts on January 24, 2024 (Docs. 73, 74), followed by a supporting brief on February 7, 2024 (Doc. 76). Plaintiff has opposed their motion by filing a counter statement of material facts and an opposition brief (Docs. 81, 82), to which the Medical Defendants have filed a reply brief (Doc. 83). Thus, the Medical Defendants' motion, which has been fully briefed by the parties, is ripe for the Court's resolution.

B. Factual Background

1. The Court's Local Rules

Local Rule 56.1 of the Court's Local Rules requires that a motion for summary judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, “shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.” M.D. Pa. L.R. 56.1. Local Rule 56.1 further requires that a party opposing a motion for summary judgment shall file “a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in” in the moving party's statement, “as to which it is contended that there exists a genuine issue to be tried.” (Id.)

Here, the Medical Defendants have filed a statement of material facts in support of their motion for summary judgment. (Doc. 74.) Their statement consists of 68 pages and 182 numbered paragraphs. (Id.) It provides, essentially, a summary of Plaintiff's DOC medical records from January 10, 2020, up until October 3, 2022. (Id.) This summary concerns medical treatment that Plaintiff received at SCI Mahanoy, SCI Camp Hill, and outside medical entities, and involves various medical personnel who are not named as defendants in this litigation. (Id.) The Medical Defendants argue that this comprehensive approach is intended to capture the cause of Plaintiff's diabetes complications, as well as the treatment he received for those complications. (Docs. 74 ¶4; 83 at 2 n.1.) In support, the Medical Defendants have attached to their statement Plaintiff's DOC medical records. (Docs. 74-1 through 74-4.) The Medical Defendants have not submitted any other evidence in support of their motion for summary judgment; they rely solely on Plaintiff's medical records in moving for judgment as a matter of law. (Id.)

In response, Plaintiff has filed a counter statement of material facts, asserting that the Medical Defendants have provided unnecessary and irrelevant information and that, because of this, he “will only address the relevant lack of medical care” that they failed to provide him. (Doc. 81 at 1.) Plaintiff further asserts that the pertinent timeframe for such lack of care begins on July 14, 2020, when he started complaining of neuropathic pain in his feet and legs, and ends on October 29, 2021, when he was finally prescribed medication from the Medical Defendants to treat such pain. (Id. at 2; Docs. 82 at 5; 82-2 at 3.)

The Court finds that the statements of material facts, filed by the Medical Defendants and Plaintiff, have both fallen short of complying with the Court's Local Rule 56.1. The Medical Defendants statement, while comprehensive, is neither short nor concise, and it contains immaterial facts. See, e.g., (Doc. 84 ¶¶ 132-82 (setting forth factual averments related to Plaintiff's incarceration at SCI Camp Hill, while this litigation pertains to Plaintiff's incarceration at SCI Mahanoy); id. ¶¶ 118-82 (discussing factual averments from April 19, 2022, to October 3, 2022, a time period beyond the date of Plaintiff's complaint)).⁵ On the other hand, Plaintiff's counter-statement, while short, concise, and pertaining to the material facts, does not respond to any of the numbered paragraphs set forth in the Medical Defendants' statement, including the paragraphs that address the timeframe which Plaintiff characterizes as the relevant timeframe to this litigation. (Doc. 81 ¶¶ 1-14.)

5 The Court received Plaintiff's complaint on April 18, 2022. (Doc. 1.) Although Plaintiff sought and was ultimately granted leave to file a second amended complaint, Plaintiff did not seek leave to file a supplemental pleading to set out any transaction, occurrence, or event that happened after April 18, 2022.

Under these circumstances, the Court has broad discretion to sanction a party's noncompliance with Local Rule 56.1. See Rice-Smith v. Misericordia Convalescent Home, No. 1:20-CV-01473, 2022 WL 2231822, at *5 (M.D. Pa. June 21, 2022) (citing Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d Cir. 2018)). “As opinions from [this District] have explained,” Local Rule 56.1 “‘is essential to the Court's resolution of a summary judgment motion' due to its role in ‘organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence.'” Weitzner, 909 F.3d at 613 (quoting Kramer v. Peerless Indem. Ins. Co., No. 3:08-CV-02096, 2010 WL 11553711, at *1 (M.D. Pa. Apr. 21, 2010)).

Permitted sanctions for a party's “failure to strictly comply with Local Rule 56.1 include striking nonresponsive statements of fact[s]” or deeming a moving party's statement of facts “to be unopposed when not properly controverted.” Rice-Smith, at *5 (citing Weitzner, 909 F.3d at 613-14); see also Fed.R.Civ.P. 56(e) (providing that, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may[,]” inter alia, “consider the fact undisputed for purposes of the motion”).

Despite its authority to do so, the Court will not strike either party's statement of material facts. Instead, the Court will use its broad discretion to cull the material facts in this Report from the parties' respective statements. (Docs. 74, 81.) In doing so, the Court will limit those facts, more closely, to the relevant timeframe identified by Plaintiff-i.e., July 14, 2020, to October 19, 2021.⁶ In addition, to the extent that Plaintiff's counter statement of the material facts demonstrates a genuine dispute of any material fact contained in the Medical Defendants' statement, the Court will expressly note such disputes herein.

6 In their reply brief, the Medical Defendants acknowledge that Plaintiff has asserted in his summary judgment filings that the timeframe relevant to his claims is July 14, 2020, to October 28, 2021. (Doc. 83 at 1, 2.) However, they argue that their summary of Plaintiff's DOC medical records from January 2020 to October 2022 is relevant to “demonstrate the cause of [Plaintiff's] diabetes complications and treatment he received in response thereto[.]” (Id. at 2 n.1.) The Court, however, is unpersuaded. As discussed more fully below, the critical issue here is whether, between July 14, 2020, and October 28, 2021, the Medical Defendants acted with deliberate indifference in treating Plaintiff's diabetic neuropathic pain.

2. Statement of the Material Facts

On July 14, 2020, Plaintiff was seen at sick call by Defendant Williams complaining of tingling in his feet. (Doc. 74 ¶ 7.) It was noted that Plaintiff had stated that he does not always take his insulin medications because he feels like he does not always need them. (Id.) It was also noted that Defendant Williams saw Plaintiff on his cell block due to a “state wide lockdown.” (Id.) On examination, Plaintiff was in no acute distress, exhibited no labored breathing or gait problems, and his speech was fluent and clear. (Id.) His toenails were long, but there was no deformity of his feet, no open areas, blisters, edema, or erythema, and he had brisk capillary refill. (Id.) Plaintiff's compliance with Novolin was 84.2% and with Metformin was 88.1%. (Id.); see also (id. ¶ 7 n.1 (noting that Novolin is an insulin replacement, and Metformin is used to treat diabetic related hypertension)). In addition, Plaintiff's most recent labs from May showed an A1C of 11.9% (high), and his glucose was 171 (h). (Id. ¶ 7.) Defendant Williams' assessment of Plaintiff was diabetes. (Id.) She noted that she would discuss discontinuing Plaintiff's current medications with psychiatry before any neuropathy medications were ordered. (Id.) She discussed the effects of uncontrolled sugars and diabetes, including neuropathy of the feet. (Id.) Defendant Williams instructed Plaintiff to check his feet daily, and she stressed the importance of compliance with his medications, diet, exercise, and weight loss. (Id.) She also educated Plaintiff on watching what foods he ordered and ate from the commissary. (Id.) The following day, Defendant Williams made an addendum to her July 14, 2020 progress note, indicating that she spoke with psychiatry and that they would request to see Plaintiff to potentially change his medications. (Id. ¶ 8.)

On July 29, 2020, Defendant Williams sought to see Plaintiff for sick call, but he was a no show. (Id. ¶ 9.) Defendant Williams noted that “block [was] called.” (Id.) On August 3, 2020, PA Donald O'Brien (“PA O'Brien”) saw Plaintiff for sick call, as Plaintiff had requested to have his nails cut. (Id. ¶ 10.) PA O'Brien's assessment of Plaintiff was diabetic foot care, and Plaintiff was put on the list for diabetic foot care clinic. (Id.) Three days later, on August 6, 2020, RN Dannyella Germello noted that Plaintiff was seen in medical for a routine EKG. (Id. ¶ 11.)

On August 13, 2020, PA O'Brien saw Plaintiff for diabetic foot clinic, and he noted that he trimmed Plaintiff's toenails. (Id. ¶ 12.) He noted they were thick and onychomycotic bilaterally. (Id.); see also (id. ¶ 12 n.3 (noting that onychomycosis describes a fungal infection of the nails, usually in the feet, which is generally harmless but regarded as unsightly as it causes the nails to yellow and thicken)).

On October 6, 2020, RN Janice Hale (“RN Hale”) noted that Plaintiff's blood sugar “read HI[,]” that the “[p]rovider” was notified, and that 12 units of “R” were “given as ordered.” (Id. ¶ 13.) On October 20, 2020, RN Ann McAllister (“RN McAllister”) noted that Plaintiff was a no show for a lab draw. (Id. ¶ 14.) On October 25, 2020, RN Amy Bing noted that “[m]edication non-compliance education [was] sent to inmate on block due to COVID-19 restrictions.” (Id. ¶ 15.) On October 29, 2020, RN McAllister noted that Plaintiff refused labs and that she could not fill out a DC-462 form (i.e., a Release from Responsibility for Medical/Psychiatric Treatment) (“DC-462 Release”) due to a broken keypad. (Id. ¶ 16.)

On November 11, 2020, RN Jane Shields (“RN Shields”) noted that Plaintiff was examined in chronic care clinic by Defendant Loscalzo. (Id. ¶ 17.) He noted Plaintiff's vitals, and that Plaintiff was educated about the importance of adhering to his medication schedule. (Id.) Also on November 11, 2020, Defendant Loscalzo noted seeing Plaintiff at chronic care clinic for the following: diabetes; dyslipidemia; hypertension and cardiac; and pulmonary. (Id. ¶ 18.) Defendant Loscalzo also noted that Plaintiff's mother, father, and brothers have “DM[,]” and that Plaintiff: was 5'10” 343.6 pounds; had gained 29 pounds in the past year; complained of nocturia and tingling in his feet; had decreased acuity right eye secondary to cataract; confirmed medication compliance was in 30- 60% range; had cataract removed “OS” in January, “OD” approved but not yet scheduled; had an A1C (May 2020) of 11.9%; refused lab work for the chronic care clinic (hence the May results); and had accu-checks in the 300-500 range. (Id.) In addition, Defendant Loscalzo commented that Plaintiff was a poorly controlled diabetic with an A1C “increasingly above 7%[.]” (Id.) Defendant Loscalzo also commented, as follows: “Overall condition worse. Discussed the role of medication in the treatment of his disease processes and the consequences of continuing to allow these same diseases to remain uncontrolled- [Plaintiff] relate[d] understanding and agree[d] to attempt improved compliance with present treatment plan. Will repeat hbgA1C and lipid [p]rofile in January and continue to monitor accu-checks[.]” (Id.) On November 22, 2020, Defendant Loscalzo entered an order requesting a consult with optometry for yearly diabetic eye exam. (Id.)

On December 22, 2020, PA O'Brien saw Plaintiff at sick call on the block due to COVID-19. (Id. ¶ 19.) Plaintiff complained of diarrhea five times a day for the past two months and reported blood on toilet paper when wiping. (Id.) Plaintiff denied nausea/vomiting. (Id.) PA O'Brien noted that Imodium and labs were ordered. (Id.)

On February 4, 2021, Defendant Williams noted that Plaintiff's labs were abnormal with an elevated A1C and glucose. (Id. ¶ 20.) She also noted mandatory sick call sign-up for Plaintiff. (Id.) On February 5, 2021, Plaintiff was seen by Defendant Williams. (Id. ¶ 21.) Plaintiff stated that he had been taking his medications without any side effects. (Id.) He denied any headaches, lightheadedness, dizziness, blurry vision, chest pain, shortness of breath, and edema. (Id.) On examination, Plaintiff was alert and oriented, his vital signs were stable, and his overall physical examination was generally within normal limits. (Id.) Defendant Williams noted that Plaintiff had poor compliance with insulin and that he had an elevated A1C. (Id.) Defendant Williams discussed the importance of medication compliance, diet, portion control, exercise, watching foods from commissary, as well as the possible side effects of uncontrolled diabetes. (Id.) It was also discussed that, if there was continued noncompliance with insulin, Plaintiff would be placed in the infirmary to monitor “dka.” (Id.)

On February 15, 2021, Nurse Amy Bing noted that Plaintiff appeared for triage, complaining of shortness of breath for the past few days. (Id. ¶ 22.) It was noted that Plaintiff was alert and oriented with even and unlabored respirations and that no distress was noted. (Id.) In addition, Plaintiff's lungs were clear, a dry cough was present, there was no cyanosis, and he was “covid recovered.” (Id.) She discharged Plaintiff but scheduled him for mandatory sick call for the next day. (Id.)

On February 25, 2021, RN Quito Weiser (“RN Weiser”) noted that Plaintiff reported to medical and stated that his “sugar [was] high.” (Id. ¶ 23.) RN Weiser also noted that Plaintiff's blood glucose level was over 400 and that he had reported to medical for urinalysis ketone screening, which was negative. (Id.) RN Weiser commented that Plaintiff had reported that he was eating sweets that day, prior to checking his blood glucose level. (Id.)

On March 6, 2021, Plaintiff's medical chart includes a urinalysis result for ketones, which was negative. (Id. ¶ 24); see also (id. ¶ 72 n.7 (noting that ketones are acids which are produced when the body breaks down fat for energy because it cannot get enough glucose)). While some ketones in the urine is normal, the Medical Defendants assert that an excess can indicate diabetic ketoacidosis, which can require emergent care and is potentially life threatening. (Id.) As for the March 6, 2021 encounter, it was noted that Plaintiff had eaten two servings of macaroni salad. (Id. ¶ 24.) This note was entered by Cynthia Gronski, RN, and countersigned by Dr. Leclerc. (Id.)

On March 8, 2021, Plaintiff was seen by Defendant Williams. (Id. ¶ 25.) Plaintiff stated that he had been taking medication every day without any side effects. (Id.) He denied headaches, lightheadedness, dizziness, blurry vision, chest pain, shortness of breath, and edema. (Id.) Defendant Williams noted, as follows: “adjustments in insulin discussed with [Plaintiff]. [D]iscussed importance of medication compliance. Discussed importance of diet, portion control, exercise and watching foods from commissary. Discussed possible side effects of uncontrolled [diabetes].” (Id.)

On March 30, 2021, Defendant Williams noted that Plaintiff's insulin was adjusted based on glucose checks and that Plaintiff had labs scheduled “for April with cc in May.” (Id. ¶ 26.) She also noted as follows: “will monitor fingersticks to see if further adjustment is needed.” (Id.) On April 7, 2021, Defendant Williams noted that Plaintiff asked to be scheduled for foot clinic but that he was already on the list for it. (Id. ¶ 27.) Two days later, on April 9, 2021, RN Jill Ferretti (“RN Ferretti”) noted that Plaintiff complained of bilateral foot swelling, which had begun the day before. (Id. ¶ 28.) RN Ferretti also noted bilateral pitting edema and that positive dorsalis pedis pulses were present bilaterally. (Id.) Plaintiff denied pain, but he reported bilateral tingling. (Id.) Plaintiff also reported medication compliance. (Id.) He was put on mandatory sick call for April 12, 2021. (Id.)

On April 12, 2021, Defendant Williams noted that Plaintiff was seen on “cell block” following complaints to nursing the night before of potential COVID-19 vaccination side effects. (Id. ¶ 29.) Specifically, Plaintiff complained of an upset stomach and headache. (Id.) Defendant Williams noted no acute distress, gait disturbance, labored breathing, or diaphoresis. (Id.) Potential vaccine side effects were discussed in detail with Plaintiff, as well as what “he should make medical aware of.” (Id.)

On April 27, 2021, Plaintiff was seen by Defendant Williams for a mandatory sick call for a “recheck” of bilateral foot edema. (Id. ¶ 30.) Plaintiff stated that he still had swelling and pain and that there had been “no change with medication for swelling.” (Id.) Plaintiff also stated that the pain comes and goes and is mostly when he walks or at night. (Id.) Plaintiff reported that, sometimes, he does not take the Lasix because it wakes him up in the night to urinate. (Id.) He denied any shortness of breath or chest pain. (Id.) On examination, PA Williams noted, as follows: “2+ pitting edema” bilateral calf and feet; no tenderness to palpation; no overlying erythema; no masses; no open areas or signs of infection; brisk cap refill; and 5/5 sensation of feet. (Id.) Her assessment of Plaintiff was edema in lower extremities. (Id.) An ultrasound was ordered, and she discussed the importance of medication compliance, exercise, diet, and weight loss with Plaintiff. (Id.) It was also noted that Plaintiff had chronic care clinic scheduled for May 12, 2021, which could be used as a follow-up. (Id.) Finally, it was discussed that, if there was no improvement or there was worsening of symptoms, Plaintiff was to inform medical. (Id.)

On May 25, 2021, Defendant Williams noted that Plaintiff was a no show for sick call and that “block [was] called.” (Id. ¶ 31.) On that same date, Defendant Loscalzo ordered clinical tests for HgbA1C and labs for a comprehensive panel and lipid panel in advance of Plaintiff's November 2021 chronic care clinic. (Id. ¶ 32.) Defendant Loscalzo also ordered fasting labs for diabetes mellitus and lipids, as well as a basic snack bag supplement. (Id.)

On June 7, 2021, Plaintiff underwent a duplex ultrasound examination of the deep venous system of both lower extremities. (Id. ¶ 33.) Per the “[i]mpression[,]” the study was negative “with no definite DVT of the right or left leg.” (Id.) It was also noted that “[l]arge body habitus degrades image quality of the right and left calf.” (Id.)

On June 11, 2021, RN Michele Donovan noted that Plaintiff was a no show for an immunization appointment and that “block [was] called[,]” but Plaintiff was still a no show. (Id. ¶ 34.) The following day, RN Weiser filled out a shortness of breath Nursing Evaluation Tool (“NET”),⁷ noting that, at “21:01[,]” Plaintiff had reported shortness of breath. (Id. ¶ 35.) Plaintiff's notable vitals on this NET include: Pulse 125; Respiratory Rate 30; and Pulse Ox % on room air 85%. (Id.) In addition, it was noted that stridor, wheezing, and rhonchi were present. (Id.) PA O'Brien was contacted, and RN Weiser noted that Plaintiff was to be seen for sick call the next day, but, ultimately, Plaintiff was admitted to the infirmary on that same day (i.e., June 12, 2021). (Id.) RN Hale took the initial infirmary orders for Plaintiff's vitals to be checked every shift. (Id. ¶ 36.)

7 Per the Medical Defendants, an NET is a “nursing evaluation tool” that is, essentially, “a checklist of what to examine, look for, and consider for a type of problem[.]” (Doc. 74 ¶ 114.)

On June 13, 2021, RN Kim Murray (“RN Murray”) completed a round in the infirmary at “02:47:25” and noted that Plaintiff reported “feeling better since [he] had the treatment.” (Id. ¶ 37.) RN Murray explained that Plaintiff was “[r]eferring to nebulizer treatment given prior to 2200[,]” and she noted, as follows: his “SPO2” was 96% “with O2 on @ 2l/m via nasal cannula[;]” and his “[w]heezes throughout all fields auscultated.” (Id.)

Also on June 13, 2021, at “09:44:44[,]” Plaintiff was seen by PA O'Brien in the infirmary. (Id. ¶ 38.) Plaintiff stated that: “[he] was having problems breathing. That happens when [he] get[s] a cold. [He] started to get a cold yesterday. [He] used [his] rescue inhaler twice yesterday.” (Id.) On examination, PA O'Brien noted that Plaintiff was in no acute distress, and he was alert and oriented. (Id.) PA O'Brien also noted, as follows: Plaintiff has a very large body habitus; lying in bed with “O2 via NC [nasal cannula] at 2 LPM [liters per minute] diffuse wheezing; reviewed EHR; Plaintiff's triage note from last night “contains information that was not provided to me last night - [Plaintiff] was reported to have an 02 sat of 91% on room air with wheezing, not stridor[;] [nursing] was directed to initiate supplemental O2 . . . at 2 LPM via NC and admit to infirmary[;] [nursing] was also directed to call me back if O2 did not get to 94% or above within 10 minutes on O2[;] there was no return call.” (Id.) Plaintiff's vitals were taken, and he was at 96% O2, which is within normal limits. (Id.) As for PA O'Brien's assessment of Plaintiff, it was noted that Plaintiff has a history of asthma and upper respiratory infection. (Id.) The plan was to increase vital sign checks to every four hours and to notify the on-call practitioner of Plaintiff's: “O2 SAT [falling below] 94% while on 2 LPM via NC[;] RESP RATE [being greater than] 20[;] [or] TEMP [being greater than] 100.5[.]” (Id.) Solumedrol, DuoNeb treatments, Claritin, mucosa, and extra strength Tylenol were ordered. (Id.)

Also on June 13, 2021, at “15:26:15[,]” RN Hall completed a round in the infirmary. (Id. ¶ 39.) Plaintiff stated that he felt better. (Id.) Plaintiff's O2 SAT was 95% via nasal cannula. (Id.) Plaintiff's bilateral lung sounds had decreased “at lower bases with no wheezing heard” at that time. (Id.) In addition, Plaintiff's respirations were unlabored at rest. (Id.) Another round was completed at “18:26,” and it was noted that Plaintiff offered no complaints and that his SAT was 96%. (Id.)

On June 14, 2021, at “00:03[,]” RN Joshua Lech (“RN Lech”) completed a round. (Id. ¶ 40.) Plaintiff reported that he believed his breathing was “getting better.” (Id.) Plaintiff's O2 SAT was 95%. (Id.) RN Lech again completed a round at “03:00” per infirmary orders. (Id.) Plaintiff's O2 SAT was 96%. (Id.) RN Ferretti took over on first shift and completed a round at or about “0700.” (Id.) Plaintiff stated that he was “ok.” (Id.) His O2 SAT was 96%. (Id.)

Also on June 14, 2021, Plaintiff was seen by Defendant Loscalzo at “14:30” during infirmary rounds. (Id. ¶ 41.) Defendant Loscalzo noted that Plaintiff reported that his breathing was better that day but that he had not yet increased his activity. (Id.) Plaintiff was able to eat without the use of supplemental oxygen, and his O2 SAT was maintained at 96%. (Id.) In addition, Defendant Loscalzo reported that Plaintiff's lungs were “mild end-expiratory wheezing [bilaterally]” and that his assessment of Plaintiff was acute exacerbation of asthma. (Id.) The plan was to continue monitoring Plaintiff in the infirmary as his activity increased, in order to demonstrate continued improvement in oxygenation. (Id.)

The nursing rounds continued on June 14, 2021. (Id. ¶ 42.) RN Weiser noted that Plaintiff reported feeling okay at “1610” and that he was watching TV in bed with on O2 SAT of 96%. (Id.) The following day, on June 15, 2021, RN Murray completed a round on third shift at “00:37.” (Id. ¶ 43.) Plaintiff reported feeling “[a]lright.” (Id.) His O2 SAT was 96%. (Id.) Also on June 15, 2021, Defendant Baddick completed a round, noting that Plaintiff was awake, oriented, and in no acute medical distress. (Id. ¶ 44.) Plaintiff reported feeling “much better[,]” and he denied “SOB or chest pain and would like to be discharged to general population.” (Id.) Defendant Baddick noted that Plaintiff's lunges were: “positive mild inspiratory and expiratory diffuse wheeze in b/l lobes.” (Id.) In addition, Plaintiff's O2 SAT was 95%. (Id.) Defendant Baddick's progress note instructed, as follows: Plaintiff was to be discharged to general population that day; and he was to be issued “a pass card for QID PRN breathing / nebulized treatments x 30 days[;] [and to] [s]ee MAR for adjustments.” (Id.)

On June 18, 2021, Plaintiff was seen by Defendant Williams who noted that Plaintiff was “asking to be placed on a medication to have with neuropathy in both feet related to his diabetes and to have miralax ordered for constipation.” (Id. ¶ 45.) Plaintiff reported that he eats a lot of pasta and noodles. (Id.) On examination, there were no significant findings. (Id.) As for the assessment, Defendant Williams reported diabetes neuropathy and constipation, and, as for the plan, Defendant Williams discussed with Plaintiff the importance of fingerstick checks, medication compliance, diet, portion control, exercise, and watching foods from the commissary, as well as the possible side effects of uncontrolled diabetes. (Id.) Plaintiff was to be seen at mandatory sick call in three weeks to review glucose checks. (Id.)

On June 29, 2021, Plaintiff was seen by PA O'Brien at mandatory sick call. (Id. ¶ 46.) Plaintiff sated that he had not been taking “the blood pressure meds because they give [him] diarrhea.” (Id.) It was noted that Plaintiff is morbidly obese and that “EHR” was reviewed.⁸ (Id.) It was also noted that Plaintiff has very poor compliance with his hypertension medication. (Id.) The plan was patient education-i.e., “uncontrolled htn [hypertension] is going to kill him.” (Id.) Plaintiff agreed to start taking the hypertension medication again. (Id.) In addition, Plaintiff was instructed that, if his diarrhea started again, he was to return to the clinic. (Id.) Plaintiff was scheduled for a mandatory sick call for July 14, 2021, to “recheck BP [and] med compliance.” (Id.)

8 “EHR” appears to stand for electronic health record.

On July 7, 2021, RN Kenneth Johnson filled out a musculoskeletal pain NET, explaining that Plaintiff had bilateral leg pain for two days. (Id. ¶ 47.) Plaintiff rated the intensity of the pain as 7/10. (Id.) It was noted that Plaintiff had a slow gait and “+2” edema. (Id.) Plaintiff was given 500 mg Tylenol “x 2 PO NOW” and instructed to rest and to see sick call the next day. (Id.) Plaintiff was then “[r]eturn[ed] to block.”

The following day, on July 8, 2021, Plaintiff was seen by Defendant Bora Saikia at mandatory sick call. (Id. ¶ 48.) It was noted that Plaintiff's compliance with medication is “a big issue and this was extensively address[ed][,]” and Plaintiff was educated on the importance of adhering to his medications. (Id.) Plaintiff is “38.6% complaint with prinizide and that is DOT.” (Id.); see also (id. ¶ 48 n.4 (noting that DOT refers to a medication that an inmate must take by going to pill line and having each dose given to him by a nurse who can verify it was taken and document that it was taken)). In addition, Plaintiff's vitals were noted, including a blood pressure of 150/90. (Id. ¶ 48.) Defendant Bora Saikia commented that Plaintiff has “2 plus edema of both legs[;] chest CTA [clear to auscultation][;] CVS s1s2 present no mmr [murmur][;] [and] bs in 300s.” (Id.) Defendant Bora Saikia's assessment of Plaintiff was “[u]ncontrolled IDDM [insulin-dependent diabetes mellitus]”. (Id.) Defendant Bora Saikia's plan was to increase intermediate dosing, emphasize compliance, resume taking Prinizide, and double the diuretic for two days. (Id.)

On July 20, 2021, RN Shields filled out a DC-462 Release, which Plaintiff signed, refusing the basic snack bag that had been ordered previously for him. (Id. ¶ 49.) Plaintiff's reason for refusal was that he had been “approved for Kosher diet[.]” (Id.) Plaintiff understood that “this [would] not comply with recommended basic snack bag.” (Id.)

On July 26, 2021, Plaintiff was seen by PA O'Brien at sick call, complaining of persistent bilateral lower extremity edema and some breathing issues. (Id. ¶ 50.) It was noted that: Plaintiff was morbidly obese, weighing 393 pounds; his respirations were nonlabored; he had bilateral lower extremity with +2 pitting edema to the knees; and mild expiratory wheeze in all lobes. (Id.) His vitals consisted of 104 pulse and his O2 SAT was 93%. (Id.) PA O'Brien's assessment of Plaintiff was hypoxia with significant lower extremity edema. (Id.) As for the plan, PA O'Brien discussed the information with Defendant Bora Saikia, and Plaintiff would be admitted to the infirmary. (Id.) PA O'Brien also entered initial infirmary orders, including “[c]hecks” on Plaintiff's blood pressure, temperature, pulse, respirations, and pulse ox. See (id.). A practitioner was to be contacted if Plaintiff's “O2 SAT [was] 94% or less PR [was greater than] 110 [and] RESP [was greater than] 20.” (Id.) On that same date, PA O'Brien ordered a chest X-ray, and Defendant Bora Saikia ordered blood work for Plaintiff. (Id.)

On July 27, 2021, Defendant Williams completed a round in the infirmary at “08:23[,]” noting that Plaintiff reported that he was “feeling better with his breathing[,]” that he wore his oxygen during the night, and that he did not need it in the morning. (Id. ¶ 51.) Plaintiff also reported that he still has swelling in his legs. (Id.) Defendant Williams noted that Plaintiff had “slight expiratory wheezing all lung fields[,]” but that there was “no labored breathing[.]” (Id.) She also noted “2+ pitting edema b/l le [bilateral lower extremities][.]” (Id.) As for her assessment of Plaintiff, Defendant Williams reported hypoxia with lower extremity edema bilaterally. (Id.) And, as for the plan, Defendant Williams commented that Plaintiff was scheduled for labs that morning and a chest x-ray for the following day. (Id.)

On July 28, 2021, Plaintiff was seen by Defendant Bora Saikia in the infirmary. (Id. ¶ 52.) She noted that Plaintiff had no shortness of breath, but that he was complaining of leg swelling, which was increasing in size. (Id.) She also noted, as follows: “2 plus edema pitting with stasis dermatitis[;] chest bl cta no crackles; cvs s1s2 present no mmr[;] and pulses present on both foot dorsalis pedis.” (Id.) Defendant Bora Saikia's assessment was “bl le edema likely multifactorial from circulation and neuropathy from dm[;] IDDM uncontrolled[;] htn with failed po diuretics[.]” (Id.) The plan was to “dc [discontinue] glipizde[,] already on insulin[;]” follow-up cxr ordered today[;] rule out chf [congestive heart failure][;] echo; may need vascular evaluation[;] and vital signs q every shift.” (Id.)

The following day, on July 29, 2021, Defendant Bora Saikia completed another round in the infirmary, noting that Plaintiff still had leg swelling and shortness of breath and had been on two liters of O2 at 96-97% that day. (Id. ¶ 53.) Plaintiff was encouraged to get out of bed and ambulate. (Id.) Defendant Bora Saikia noted that “he is less motivated.” (Id.). She also noted, inter alia, that Plaintiff had no fever, that his “extremities still with 2+ edema and stasis venous dermatitis clearing up[.]” (Id.) As for her assessment, Defendant Bora Saikia stated, as follows: “IDDM previously uncontrolled” and “bl le.” (Id.) And, as for the plan, she stated that: “BS [blood sugars] are just getting better after medication adjustment yesterday[,] increase long acting insulin by 4 units[;] cxr reviewed, no acute findings[;] anticipating dc [discharge] in the next 24 hours after taking off O2, since he is monitored closely[;] he will benefit from extra injectables of Lasix[;] noted [Plaintiff] to be tachycardic[;] USG at the next availability to rule out venous insufficiency[;] and no clinical suspicion of PE at this time.” (Id.)

The next day, July 30, 2021, Plaintiff was seen by Defendant Bora Saikia in the infirmary. (Id. ¶ 54.) There was very little improvement of his leg swelling, “despite diuretics[ ] use im [intramuscularly][,]” and “no iv lines could be placed due to poor circulation.” (Id.) Defendant Bora Saikia noted “2 plus edema” and “bs 300s[.]” (Id.) Her assessment of Plaintiff was “IDDM uncontrolled” and “LE B/l 2 edema plus.” (Id.) According to her plan, Plaintiff would “benefit from infirmary care due to need for im [intramuscular] diuretics, close clinical monitoring[,] and blood sugar management.” (Id.) In addition, there was “pending us [ultrasound] of le and echocardiogram to assess lvh functions[,]” and there was to be an increase in “long acting insulin.” (Id.)

On July 31, 2021, Plaintiff was seen by PA O'Brien in the infirmary. (Id. ¶ 55.) PA O'Brien noted that Plaintiff had no complaints and reported that he was “ok.” (Id.) In addition, PA O'Brien noted that: Plaintiff's lungs were clear to auscultation bilaterally; he had “2+ pitting edema” in his lower extremities; and his O2 SAT was 97% on room air. (Id.) PA O'Brien's assessment of Plaintiff was “LE edema[,] episodic hypoxia.” (Id.) Plaintiff was to continue with the treatment plan. (Id.)

On August 1, 2021, Plaintiff was seen by PA O'Brien in the infirmary. (Id. ¶ 56.) Plaintiff complained that his legs were “bothering” him that day, but that his breathing was “ok.” (Id.) PA O'Brien noted, as follows: no acute distress; bilateral pitting edema to knees, but his legs were not as taut as they were previously; and his O2 SAT was 97%. (Id.) PA O'Brien's assessment of Plaintiff was “LE edema[,] episodic hypoxia.” (Id.) His plan for Plaintiff was to order extra strength Tylenol and to continue with the treatment plan. (Id.)

On August 2, 2021, Plaintiff was seen by Defendant Baddick in the infirmary. (Id. ¶ 57.) It was noted that Plaintiff had been admitted to the infirmary for adjustment of his diabetes medications and close monitoring of his serum glucose for control. (Id.) Plaintiff was also admitted for increased bilateral lower extremity edema which, per nursing staff, had greatly improved at that time. (Id.) Plaintiff reported that he felt fine and would like to be released to general population. (Id.) Defendant Baddick noted, as follows: no edema bilaterally; and bilateral lower extremity “to +1 Edema.” (Id.) Defendant Baddick's plan was to discharge Plaintiff to general population and to have him follow-up at sick call, as needed. (Id.)

On August 13, 2021, Defendant Bora Saikia sent Plaintiff back to the infirmary for mild diabetic ketoacidosis, uncontrolled diabetes, and accelerated hypertension. (Id. ¶ 58.) In her progress note, she explained that Plaintiff reported feeling weak and thirsty for the last few days. (Id.) His labs were reviewed and, that day, he had a urinalysis positive for ketones and protein with glucose. (Id.) His chest was clear to auscultation. (Id.) Defendant Bora Saikia's assessment of Plaintiff was “hyperglycemia with uncontrolled dm with accelerated HTN.” (Id.) Defendant Bora Saikia also commented, as follows: “[n]eed to get stat labs for anion gap; hold metformin; increase long acting insulin with correction scale; hold hctz [hydrochlorothiazide]; increase lisinopril to 40 mg; [and] give one dose of catapres.” (Id.)

On August 14, 2021, Defendant Williams completed a round in the infirmary, noting that Plaintiff stated that he had no issues besides some swelling of the feet and that he asked if he could “go back to the block.” (Id. ¶ 59.) Plaintiff was reported having, inter alia, “1+ edema” bilateral lower extremity, “2+ pulses, 5/5 sensation” bilateral feet, and glucose of 362. (Id.) Plaintiff was “cleared from 23hr [observation] to discharge with discussion with [Defendant Bora Saikia].” (Id.) Plaintiff was counseled on compliance and explained that if he missed any accu-checks and insulin, which had been adjusted, he would be housed in the infirmary. (Id.) The importance of diet, exercise, and weight loss was also discussed with Plaintiff. (Id.)

However, later that day, Plaintiff was transferred to the Lehigh Valley Hospital-East Norwegian Emergency Room. While there, Plaintiff was seen by Waqas Shuaib, M.D. (“Dr. Shuaib”). (Id. ¶ 60.) Dr. Shuaib prescribed Plaintiff Gabapentin (Neurontin) to be taken twice per day for 30 days. (Id.) More specifically, Dr. Shuaib's discharge instructions state as follows:

Please follow-up with your PCP to discuss your diabetic medical management. All labs today were normal. You are being given a prescription of gabapentin for your neuropathic pain which often times is secondary worsening diabetes of uncontrolled diabetes. Please discuss refill of these medication [sic] with your PCP.

(Docs. 74-3 at 4; 82-3 at 10.) Although not mentioned or discussed in the Medical Defendants' statement of material facts, Plaintiff did not receive Gabapentin when he returned to SCI Mahanoy.

The following day, on August 15, 2021, Defendant Williams saw Plaintiff. (Doc. 74 ¶ 61.) Plaintiff reported that: “they ended up sending me to the hospital not because I had any[ ] symptoms but I had ketones in my urine.” (Id.) Plaintiff also reported that the hospital gave him insulin and sent him back to SCI Mahanoy. (Id.) Defendant Williams noted that Plaintiff is obese, “1+ edema b/l le, 2+ pulses, 5/5 sensation b/l feet, [and] glucose 264[.]” (Id.) Defendant Williams also noted that the plan was to continue to monitor him. (Id.) Plaintiff was counseled on compliance and that if he missed any accu-checks and insulin, he would be housed in the infirmary. (Id.)

On August 16, 2021, Defendant Bora Saikia entered a progress note, indicating that she reviewed Plaintiff's labs and that he was “prescribed dual antilipidemic based on [his] labs (he was informed earlier while admitting in infirmary that medications will be adjested [sic] as per labs so he is aware).” (Id. ¶ 62.) She also noted “low sodium” and that it would be followed up on at the next “cc labs[.]” (Id.) Finally, she noted that “hyponatremia is likely secondary to ssr/snri use.” (Id.)

On August 16, 2021, Plaintiff was seen by Defendant Baddick at the infirmary. (Id. ¶ 63.) Defendant Baddick noted that Plaintiff was in the infirmary “as an active admission for severe uncontrolled hyperglycemia.” (Id.) Defendant Baddick also noted: that, per protocol, Plaintiff had been sent to the emergency room over the weekend because he had severely elevated blood glucose levels and tested positive for ketones in his urine; and that Plaintiff was seen and evaluated in the emergency room and ultimately determined to be stable and, thus, returned to SCI Mahanoy's infirmary for continued admission to obtain adequate glycemic control. (Id.) In addition to these notes, Defendant Baddick remarked that Plaintiff was awake, alert, oriented to person, place, and time,⁹ and that he was very upset about being admitted to the infirmary, stating: “I will refuse to be here and I will refuse all my medications because I know my rights and I ain't staying in no infirmary. I will go to file a grievance and work on a law suit [sic] if I am forced to stay in the infirmary.” (Id.) Defendant Baddick explained to Plaintiff that he could refuse his medications and could refuse admission to the infirmary, but that his housing status could be changed to the infirmary and then the DOC could pursue a court order to have him be medicated for his life threatening and uncontrolled diabetes. (Id.) In addition, Defendant Baddick commented that all lab data was reviewed and that medication adjustments were made as per Defendant Bora Saikia. (Id.) Defendant Baddick also commented that the plan for Plaintiff was to continue his admission to the infirmary and to monitor his compliance with medications, diet, and lab testing. (Id.)

9 Throughout Plaintiff's medical records, the medical providers' description of “alert and oriented to person, place, and time” description is, at times, set forth as “AOx3” or “A&Ox3.”

On August 17, 2021, Defendant Baddick completed a round in the infirmary and noted that Plaintiff was an active admission for severe uncontrolled hyperglycemia and that Plaintiff continues, at times, with refusing his medications. (Id. ¶ 64.) Defendant Baddick discussed at length with Plaintiff the need for Plaintiff to take his medications as scheduled so that medical can titrate dosage to a level that controls Plaintiff's glucose quicker and, thus, would enable him to be discharged from the infirmary sooner. (Id.)

On August 18, 2021, Defendant Baddick completed a round in the infirmary. (Id. ¶ 65.) Defendant Baddick noted that Plaintiff's glucose levels were improving and that he remained compliant with his medications as prescribed. (Id.) The plan was to continue Plaintiff's admission to the infirmary and monitor his compliance with medication, diet, and lab testing. (Id.)

On August 19, 2021, Plaintiff was seen by Defendant Baddick in the infirmary. (Id. ¶ 66.) Defendant Baddick noted that Plaintiff “has much better glucose control today with current dosages of insulin[,] and [Plaintiff] will be medically cleared for discharge to general population today.” (Id.)

On August 23, 2021, Plaintiff underwent a transthoracic echocardiogram, read by Jack Newman, M.D. at Lackawanna Mobile X-Ray, Inc. (Id. ¶ 67.) Per the “[c]onclusions[,]” it was: “[t]echnically difficult study limited to parasternal views[;] [g]rossly unremarkable transthoracic echocardiogram, but very limited study; [r]ecommend repeating in hospital OP or cardiology office to see if able to obtain additional views.” (Id.)

On August 30, 2021, Plaintiff was seen by Defendant Williams, and he complained of swelling and pain in his legs and feet, which he had been experiencing since April. (Id. ¶ 68.) Plaintiff reported that this had improved some when his water pill dose was raised, but that he was still having some issues with this because he is no longer on the water pill. (Id.) Plaintiff also reported that he does not have compression socks to wear and that he had an echo completed last week. (Id.) He denied any associated symptoms of chest pain, shortness of breath, and abdominal pain, and stated that the pain was mostly in his legs. (Id.) Defendant Williams examined Plaintiff, noting that he was alert and oriented to person, place, and time, that he was not in acute distress, that he weighed 367 pounds, and that he had edema in his bilateral lower extremities. (Id.) Defendant Williams' assessment of Plaintiff was edema. (Id.) According to the plan, Plaintiff was ordered TED socks, and this item was “updated in the restrictions[;] however[,] the item was not given” at that time. (Id.) Defendant Williams noted that a DC-443 form would be completed by a staff member who hands out the item when it is received. (Id.) Defendant Williams and Plaintiff also discussed: Lasix; Plaintiff decreasing his salt intake; his upcoming labs and doppler; and that the echo would be obtained for review and that further treatment would be provided based upon the results. (Id.) Defendant Williams also directed Plaintiff to make medical aware if there was no improvement or worsening of his symptoms. (Id.)

On September 2, 2021, Plaintiff received eye treatment. (Id. ¶ 69.) On that same date, Plaintiff was seen by PA O'Brien at the foot care clinic. (Id. ¶ 70.) PA O'Brien examined Plaintiff, noting that he was not in any distress and that he was alert and oriented to person, place, and time. (Id.) PA O'Brien also reviewed Plaintiff's electronic health record, noting that he had bilateral feet with long, onychomycotic nails. (Id.) PA O'Brien's assessment of Plaintiff was foot care. (Id.) Per the plan, PA O'Brien cut Plaintiff's nails and directed him to return to medical if his symptoms increased and on an as-needed basis. (Id.)

On September 7, 2021, Plaintiff was seen by Defendant Williams. (Id. ¶ 71.) Plaintiff requested that something be ordered for dry cracking skin on his feet, and he reported that he had decreased sensation in his feet from his diabetes and could not tell if he had any open areas. (Id.) On examination, Plaintiff was alert and oriented to person, place, and time and his vitals were stable. (Id.) Defendant Williams reviewed Sapphire¹⁰and noted that he had dry skin with few scattered areas of cracks, no erythema, and no signs of infection in his bilateral feet. (Id.) Her assessment was dry skin, and the plan was to order him medication. (Id.) Defendant Williams and Plaintiff discussed “proper use and possible side effects[,]” checking his feet daily for signs of infection since he is a diabetic, and Plaintiff was provided education. (Id.) Defendant Williams advised him to make medical aware if there was no improvement or worsening of his symptoms and to return to sick call on an as-needed basis. (Id.) Plaintiff agreed to this plan, and he did not raise any further questions, concerns, or complaints. (Id.)

10 “Sapphire” appears to be an electronic health platform designed for electronic health records in correctional facilities. Its website is publicly available at: https://www.sapphire-health.com/.

On September 11, 2021, Plaintiff was seen by Dr. Shuaib in the LVH-East Norwegian Emergency Room. (Id. ¶ 75.) Plaintiff was seen for ketones in his urine, and he was diagnosed with “[e]levated blood sugar level” and “edema of foot.” (Doc. 74-3 at 27.) He was provided information on hyperglycemia. (Id.) After his discharge from the emergency room, Plaintiff was seen at SCI Mahanoy by Defendant Baddick in the infirmary for his discharge to general population. (Id. ¶ 72.) Defendant Baddick noted that Plaintiff was awake, alert, and oriented to person, place, and time and was not in acute medical distress. (Id.) Defendant Baddick further noted that Plaintiff had been admitted to the infirmary as a 23-hour observation status, post his emergency room discharge for hyperglycemia and urine dip test that was positive for ketones. (Id.) Defendant Baddick commented that, at times, Plaintiff continues to be noncompliant with his medications and diet. (Id.) Defendant Baddick examined Plaintiff, noting that he was awake, alert, and oriented to person, place, and time, that his heart had regular rate and rhythm, that his bilateral lungs were clear, and that there was no edema on his bilateral lower extremities. (Id.) Defendant Baddick also checked Plaintiff's vitals, including the following: Plaintiff's temperature was 98.2 degrees; his blood pressure was 144-86; and his pulse was 79. (Id.) Defendant Baddick reviewed Plaintiff's hospital records, and his assessment was localized edema, unspecified hyperlipidemia, benign hypertension, uncomplicated Type 2 diabetes, moderate persistent asthma, and unspecified hyperglycemia. (Id.) Per the discharge plan, Plaintiff was discharged to general population, placed on mandatory Monday sick call for follow up on his hyperglycemia, and directed to continue all his medications. (Id.) In addition, Defendant Baddick directed that labs be ordered and that Plaintiff be signed up as a new patient for the diabetes chronic care clinic. (Id.)

On September 13, 2021, Plaintiff was seen by Defendant Bora Saikia at sick call. (Id. ¶ 73.) Plaintiff denied dizziness, and he raised no issues at that time except for requesting gloves and stockings for chronic numbness. (Id.) Defendant Bora Saikia noted that Plaintiff's blood sugar was in the 300-500s and that he was noncompliant with his morning Novolog8 prescription. (Id. (explaining that Novolog is a mealtime insulin made to help control blood sugar spikes in adult and children with diabetes).) On examination, Plaintiff's bilateral chest was clear to auscultation with no wheezing and his abdomen was soft, nontender, nondistended, and he had present bowel sounds. (Id.) He was alert and oriented to person, place, and time and had no edema of his extremities, but there was paresthesia, and he had 5/5 sensation in all extremities. (Id.) Defendant Bora Saikia's assessment of Plaintiff was insulin dependent diabetes mellitus. As for the plan, Defendant Bora Saikia noted that the best way to ensure compliance was to increase Plaintiff's long-acting insulin to 70 units at night and “correction scale.” (Id.) She further directed that Plaintiff be monitored in a week and “titrate[d] up as needed.” (Id.) The plan was also to consider Cymbalta during the next visit and after he had better control of his blood sugar. (Id.); see also (id. ¶ 73 n.9 (noting that Cymbalta (Duloxetine) is an antidepressant, but also an effective nerve pain medication especially for diabetic peripheral neuropathy)).

On September 16, 2021, Plaintiff underwent a bilateral lower extremity venous ultrasound. (Id. ¶ 74.) The ultrasound of his right lower extremity revealed: “[t]he common femoral, femoral, popliteal, posterior tibial, and peroneal veins were patent and compressible[;] [n]o intraluminal thrombus was noted[;] [t]he interrogated veins demonstrate augmentation with manual maneuvers[;] and the CFV/GSV confluence is patent.” (Id.) The ultrasound of his left lower extremity revealed: “[t]he common femoral, femoral, popliteal, posterior tibial, and peroneal veins are patent and compressible[;] [n]o intraluminal thrombus is noted[;] [t]he interrogated veins demonstrate augmentation with manual maneuvers[;] [and] [t]he CFV/GSV confluence is patent.” (Id.) Per the “impression[,]” no deep vein thrombosis was found in the bilateral lower extremities. (Id.)

On September 20, 2021, Plaintiff was seen by Defendant Williams at mandatory sick call for abnormal labs and glucose. (Id. ¶ 76.) Plaintiff complained, as follows: “my numbers have been high. I am trying to change my diet.” (Id.) Plaintiff also stated that he is urinating a little more, but he denied any other symptoms of diabetes mellitus. (Id.) On examination, Plaintiff's vitals were stable, and he was alert and oriented to person, place, and time. (Id.) Defendant Williams noted that Plaintiff was obese, that the September 9, 2021 labs showed that his glucose blood level was 436 MG/DL and his hemoglobin A1C was 13.3%, and that his Semglee10 medication compliance was 100%. (Id.); see also (id. ¶ 76 n. 10 (noting that Semglee is a once-daily long-acting insulin)). Defendant Williams discussed this information with the site medical doctor and ordered Novolin 70/30 three times daily with accu-checks. (Id.) In addition, Defendant Williams discussed a number of topics with Plaintiff, including, but not limited to, the importance of medication compliance, diet, portion control, exercise, and watching foods from the commissary, as well as the possible side effects of uncontrolled diabetes mellitus, an adjustment in insulin, and the significance of fingerstick checks. (Id.) Defendant Williams further educated Plaintiff, advised him that he would be housed in the medical infirmary for closer monitoring if he was noncompliant with his uncontrolled sugars, and directed him to return to sick call on an as-needed basis. (Id.) Plaintiff agreed with this plan and presented no further questions, concerns, or complaints. (Id.)¹¹

11 Next, the Medical Defendants have included a medical encounter that Plaintiff had on “September 27, 2022.” (Doc. 74 ¶ 77.) The Court has not included that encounter here, as the evidence cited by the Medical Defendants could not be displayed at docket entry 74-2 at 74. In any event, this encounter-even if accepted as true-would not change the Court's ultimate outcome on Plaintiff's claims.

On September 28, 2021, Plaintiff was a no show for his mandatory sick call. (Id. ¶ 78.) Defendant Williams rescheduled Plaintiff for the next day. (Id.) Plaintiff was also a no show for his mandatory sick call on September 29, 2021. (Id. ¶ 79.) PA O'Brien reviewed Plaintiff's chart, noting that he had been a no show for his mandatory sick call the day before. (Id.) PA O'Brien notified the block that Plaintiff was to “medically lay in” until he was seen at mandatory sick call. (Id.) The plan was for Plaintiff to be seen the following day at the September 30, 2021 mandatory sick call for his accu-checks. (Id.)

On October 1, 2021, Plaintiff was seen by Defendant Williams at mandatory sick call. (Id. ¶ 80.) At that time, Defendant Williams rechecked Plaintiff's medication compliance and accu-checks. (Id.) Plaintiff stated that he had not been compliant with his medication or insulin because he was not waking up in the morning. (Id.) Plaintiff denied headaches, lightheadedness, dizziness, blurry vision, shortness of breath, edema, increased thirst or urination, and chest pains. (Id.) On examination, Plaintiff was alert and oriented to person, place, and time, was not in acute distress, was obese, and generally appeared well. (Id.) Defendant Williams reviewed his Sapphire, and she observed his September 9, 2021 glucose blood level and hemoglobin lab test results, and she noted that his Semglee medication compliance was 100% but that his Novolin 70/30 compliance was 39%. (Id.) She also commented that Plaintiff's low compliance was noted with respect to his other medications, including Lisinopril, Lopid, Lasix, Metformin, and Verapamil. (Id.) Her assessment of Plaintiff was uncontrolled diabetes mellitus and poor medication compliance. (Id.) Following this encounter, Defendant Williams completed Initial Infirmary Orders, admitting Plaintiff to the infirmary for his uncontrolled diabetes and medication noncompliance. (Id.) The plan was for his vitals to be checked every shift and on an as-needed basis and for the “practitioner” to be called for any change in his status. (Id.)

On October 2, 2021, Defendant Bora Saikia saw Plaintiff on his rounds in the infirmary. (Id. ¶ 81.) Defendant Bora Saikia noted that Plaintiff reported feeling well. (Id.) Plaintiff was educated on his diabetes and how his blood sugar was better. (Id.) Plaintiff denied having shortness of breath or chest pain. (Id.) On examination, he had clear to auscultation in his bilateral chest, first and second heart sounds (CVS S1S2) with no murmur, and his abdomen was soft, nontender, nondistended with present bowel sounds. (Id.) Defendant Bora Saikia also noted that Plaintiff had a temperature of 98.1, blood pressure of 130/94, pulse of 86, and respiration rate of 18 breaths per minute. (Id.) Her assessment was insulin dependent diabetes mellitus uncontrolled. (Id.) Thereafter, she noted that he was “ok” for discharge to general population when able, and his medications were renewed. (Id.) She also noted that there was already a “task generated” to check with mandatory sick call process. (Id.)

In a subsequent October 2, 2021 progress note, Defendant Bora Saikia stated that Plaintiff “was getting both intermediate and long-acting [insulin]” so his doses were adjusted so that he could be on long- acting insulin only-but that “the dose [be] divided so he doesnot [sic] become hypoglycemic”-and to continue with correction insulin. (Id.)¹²

12 Next, the Medical Defendants have included a medical encounter that Plaintiff had on “October 5, 2022.” (Doc. 74 ¶ 82.) The Court has not included that encounter here, as the evidence cited by the Medical Defendants could not be displayed at docket entry 74-2 at 75. This encounter-even if accepted as true-would not change the Court's ultimate outcome on Plaintiff's claims.

On October 14, 2021, Plaintiff was seen by Defendant Williams at mandatory sick callin triage. (Id. ¶ 83.) Plaintiff reported, as follows: “I was on medication for my neuropathy but it ran out and was low dose so wasn't going [sic] much. Also can you change my medications that I can keep them. I just can't seem to get up in the morning to take these medications. I am trying but, at least if I have them, I will take them when I wake up.” (Id.) Defendant Williams examined Plaintiff, noting, inter alia, that he was alert and oriented to person, place, and time and was not in acute distress. (Id.) She also reviewed his Sapphire. (Id.) Her assessment was “neuropathy, low compliance.” (Id.) With respect to his request, she explained that she is willing to try KOP (keep on person) as long as he is compliant in picking them up on time every month and, if he was not, she would place him back on DOT. (Id.) Plaintiff agreed with this. (Id.) Defendant Williams also advised Plaintiff that he still needs to “come up” for his insulin in the morning and evening, as scheduled. (Id.) Plaintiff confirmed his understanding of this. (Id.) Finally, Defendant Williams instructed Plaintiff to make medical aware if there was no improvement in or if there was worsening of his symptoms, and to return to sick call on an as-needed basis. (Id.) Plaintiff agreed to this plan and offered no further questions, complaints, or concerns. (Id.)

III. Discussion

A. Motion for Summary Judgment - Standard of Review

The Medical Defendants have filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 73.) Rule 56(a) provides that a court shall grant summary judgment “if the movant shows 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). The materiality of the facts depend on the substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under governing law” will preclude summary judgment. Id. A dispute is only genuine if a reasonable juror could find in favor of the nonmoving party. Id.

The moving party bears the initial burden to “demonstrate the absence of a genuine issue of material fact,” relying on pleadings, depositions, affidavits, and other evidence in the record. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant “successfully points to evidence of all of the facts needed to decide the case on the law,” the nonmovant can still defeat summary judgment by pointing to evidence in the record that creates a genuine dispute of material fact and from which a jury could find in its favor. El v. Southeastern Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007). However, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted). A court may not make credibility determinations or weigh the evidence, but “must view the facts in the light most favorable to the nonmoving party.” Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

B. The Medical Defendants' Motion for Summary Judgment Should be Granted in Part and Denied in Part

a. Plaintiff's Eighth Amendment Claim

“The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual punishments' on those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (internal citation omitted). However, the United States Constitution “does not mandate comfortable prisons, and only those deprivations denying the minimal civilized measure of life's necessities, are sufficiently grave to form the basis of an Eighth Amendment violation.” Id. at 298 (internal citations and quotation marks omitted). Thus, “[t]o determine whether prison officials have violated the Eighth Amendment, [courts] apply a two-prong test[.]” Porter v. Pennsylvania Dep't of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Under the first prong, courts consider whether the deprivation was “‘objectively, sufficiently serious[,]” that is, whether “a prison official's act or omission [resulted] in the denial of the minimal civilized measure of life's necessities[.]'” Id. (quoting Farmer, 511 U.S. at 834). And under the second prong, courts consider whether the prison official was “‘deliberate[ly] indifferen[t] to inmate health or safety.'” Id. (quoting Farmer, 511 U.S. at 834).

Regarding the first prong (i.e., the objective prong), the United States Supreme Court has explained that prison officials have a duty to provide inmates with life's necessities, including “adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.'” Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). Indeed, “when the government takes a person into custody against his or her will, it assumes responsibility for satisfying [these] basic human needs[.]” Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000) (citing DeShaney v. Winnebago Co. Dep't of Social Svcs., 489 U.S. 189, 199-200 (1989)).

Regarding the second prong (i.e., the subjective prong), the United States Supreme Court has explained that a prison official does not act with deliberate indifference “unless the official knows of and disregards an excessive risk to inmate health or safety[.]” Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” and the official “must also draw the inference.” Id. “The knowledge element of deliberate indifference is subjective, . . . meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware.” Beers-Capitolv. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 837-38)).

In accordance with these standards, the Eighth Amendment “requires prison officials to provide basic medical treatment to those whom it has incarcerated[,]” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999), and prison officials violate the Eighth Amendment “when they are deliberately indifferent to an inmate's serious medical need.” Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Rouse, 182 F.3d at 197 (explaining that plaintiffs must demonstrate the following two (2) elements: (1) “that the defendants were deliberately indifferent to their medical needs[;]” and (2) “that those needs were serious”).

In the prison medical context, the Third Circuit has found deliberate indifference when a “prison official: (1) knows of a prisoner's need for medical treatment and 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.” Rouse, 182 F.3d at 197 (citation omitted). However, “[i]t is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.'” Id.

Here, the Medical Defendants do not appear to dispute that Plaintiff's Type II diabetes constitutes a serious medical need, as required to satisfy the objective prong of his Eighth Amendment claim. See (Doc. 76 at 6-24). Rather, they argue that Plaintiff has not demonstrated that they acted with deliberate indifference to that serious medical need, as required to satisfy the subjective prong of his Eighth Amendment claim. (Id.) The Court, having reviewed the parties' arguments, the evidence of record, and binding authority, is not persuaded by the Medical Defendants' argument. The Court will, therefore, recommend that their motion be denied as to Plaintiff's Eighth Amendment claim of deliberate indifference.

The Medical Defendants have produced record evidence that, during the relevant period, Plaintiff: suffered from Type II diabetes; received medical treatment for his condition and accompanying complications, including various medications, sick call and chronic care clinic visits, DOC infirmary admissions, emergency room visits, labs, blood work, podiatry treatment, and eye care-and that he was educated and counseled on the significance of medication and treatment compliance. See (Doc. 74 ¶¶ 7-84). The Medical Defendants have also produced record evidence revealing that Plaintiff, on numerous occasions, failed to comply with his recommended and prescribed medical treatment. See, e.g., (id. ¶¶ 15, 21, 46, 49, 72, 73, 80, 83). Plaintiff was cautioned that if such noncompliance continued, he would be admitted to the infirmary, and, on several occasions, Plaintiff was admitted to the infirmary. See, e.g., (id. ¶¶ 21, 35, 50, 58, 61). In addition, to his noncompliance, Plaintiff engaged in poor eating habits, and it does not appear that he participated in the recommended exercise. (Id. ¶¶ 7, 21, 25, 46, 50, 59, 61, 76.)

Based upon this record evidence, the Court finds that the Medical Defendants have met their summary judgment burden, as the movants, to demonstrate that there is no genuine dispute of material fact as to Plaintiff's Eighth Amendment claim of deliberate indifference to his serious medical needs. See Fed.R.Civ.P. 56; Celotex, 477 U.S. at 325. Under Rule 56 of the Federal Rules of Civil Procedure, the burden shifts to Plaintiff who is required to point to specific facts, supported by evidence in the record, to show a genuine dispute of material fact for trial. See id.; Celotex, 477 U.S. at 324.

In this regard, Plaintiff asserts, essentially, two grounds upon which he argues that the Medical Defendants acted with deliberate indifference to his serious medical needs. First, Plaintiff argues that he requested treatment for his diabetic neuropathy, including a referral to an outside specialist, but that the Medical Defendants denied his request. (Docs. 81 at 2; 82-2 at 4-8.) Second, Plaintiff argues that, on August 14, 2021, he was sent to the emergency room, where he was prescribed “GabaPentin (Neurontin) for 30 days” to treat his neuropathic pain, but when he returned to SCI Mahanoy, he was not administered this prescription. (Docs. 81 at 2; 82-2 at 8-9.) In further support of these two arguments, Plaintiff avers that, despite being diagnosed with diabetic neuropathy in 2016, he was not prescribed neuropathic medication to relieve his pain until October 29, 2021, when he was prescribed Duloxetine. (Doc. 81 at 3.)

In connection with his arguments, Plaintiff has submitted portions of his medical records, a supporting declaration, and a “Mayo Clinic” document, titled “Diabetic neuropathy.” (Docs. 82-1 through 82-4.) The relevant portions of his medical records appear to be, as follows: he was diagnosed with diabetic neuropathy on October 19, 2016 (Doc. 82-1 at 2, 5, 7); he was prescribed Gabapentin during an emergency room visit on August 14, 2021 (Doc. 82-3 at 2-21); and he was subsequently prescribed Duloxetine (Doc. 82-1 at 2, 5, 7).¹³ Plaintiff's declaration sets forth various statements concerning the encounters that he had with the Medical Defendants regarding his neuropathic pain and requests for treatment of such pain. (Doc. 82-2.) Plaintiff declares, under the penalty of perjury, that these statements in his declaration are true and correct to the best of his knowledge, information, and belief. (Doc. 82-2 at 10.)¹⁴ Because Plaintiff's summary judgment filings address separate and distinct encounters that he had with the Medical Defendants, the Court addresses these encounters in turn.

13 It is not clear when, exactly, Plaintiff was prescribed Duloxetine. Plaintiff asserts that he was prescribed this medication on October 29, 2021 (Doc. 81 at 3.) The Medical Defendants have not, however, addressed this medication, when Plaintiff was prescribed it, or why he was prescribed it.

14 While the Medical Defendants argue that Plaintiff's “self-serving” declaration does not create a genuine dispute of material fact (Doc. 83 at 3), the Court is unpersuaded. The Third Circuit has explained that, while “conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment[,]” a “non-conclusory affidavit . . . when based on personal knowledge and directed at a material issue, is sufficient to defeat summary judgment.” See Paladino v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018) (footnotes, citations, and internal quotation marks omitted); Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 320 (3d Cir. 2014) (recognizing the same). “This is true even where, as here, the information is self-serving.” See Paladino, 885 F.3d at 209 (footnote and citation omitted); see also Cooper v. Pennsylvania Dep't of Corr., 756 Fed.Appx. 130, 134 n.3 (3d Cir. 2018) (nonprecedential) (discussing these principles and noting that the pro se prisoner's affidavit was “detailed” and “not conclusory” and, thus, could be considered in determining whether there was a genuine issue of material fact (citations omitted)).

Regarding Defendant Williams, Plaintiff asserts that he was seen by Defendant Williams on numerous occasions at SCI Mahanoy (i.e., July 14, 2020, February 5, 2021, April 27, 2021, June 18, 2021, July 27, 2021, August 14, 2021, August 30, 2021, and September 7, 2021), complaining of severe neuropathic pain in his legs and feet and requesting to see an outside specialist for the treatment of such pain. See (Doc. 82 at 3, 4, 5, 6, 7, 8, 9). Plaintiff claims, however, that Defendant Williams explained that: she could only prescribe him Ibuprofen but that she would “look into” it; and informed him that there was no such specialist to treat neuropathic pain and/or he did not need to see a specialist for his complaints. See (id.).

With respect to Defendant Loscalzo, Plaintiff asserts that he was seen by Defendant Loscalzo on November 11, 2020, complaining of neuropathic pain and that Defendant Loscalzo informed him that it “sound[ed] like” he had diabetic neuropathy for which there is no cure. (Id. at 3-4). When Plaintiff requested to be seen by an outside specialist, Defendant Loscalzo told Plaintiff that there is no such specialist. (Id. at 4.)

Concerning Defendant Bora Saikia, Plaintiff avers that he was seen by Defendant Bora Saikia on several dates (i.e., July 8, 2021, July 28, 29, and 30, 2021, September 13, 2021, and October 2, 2021), complaining of severe neuropathic pain in his legs and feet and requesting to be seen by a specialist to treat him for his complaints, but that Defendant Bora Saikia explained that she could only prescribe Plaintiff Tylenol for his pain and/or that should “look into it.” (Id. at 6, 7.)

Finally, regarding Defendant Baddick, Plaintiff states that he was seen by Defendant Baddick on August 2, 2021, complaining of pain in his legs and feet and requesting to be seen by an outside specialist. (Id. at 8.) Defendant Baddick acknowledged that Plaintiff has neuropathy but stated that there was no specialist who could treat his complaints. (Id.)

Plaintiff also asserts that he was seen by Defendant Baddick on August 16, 2021, after being discharged from the emergency room, and that he explained to Defendant Baddick that the emergency room doctor (i.e., Dr. Shuaib) had prescribed him a medication to treat his neuropathy- namely, Gabapentin-but that he had not yet received it. (Id. at 9.) Defendant Baddick, allegedly, informed Plaintiff that it was not the emergency room doctor's job to prescribe medication to an inmate, who is already being treated by him, and that Plaintiff would not get this prescription because neither he nor the DOC would approve it for him. (Id.) Finally, on September 11, 2021, Plaintiff claims that he was seen by Defendant Baddick, complaining of his neuropathic pain, and requesting his Neurontin medication that had been prescribed by the emergency room doctor, but Defendant Baddick stated that Plaintiff was not allowed to receive this medication and that an inmate can only receive Ibuprofen to treat his pain. (Id. at 10.)

Having reviewed Plaintiff's arguments and supporting documentation, the Court finds that Plaintiff has presented evidence that: he has had a diagnosis of neuropathy since 2016; he continually complained of severe neuropathic pain in his legs and feet from July 14, 2020, up until at least September 18, 2021; and despite making the Medical Defendants aware of his pain, and despite requesting treatment for such pain, including a referral to an outside specialist or neuropathic pain medication, the Medical Defendants informed him that no such specialist existed, that he could not see such specialist at that time, and/or that he could only be prescribed Ibuprofen or Tylenol. In addition, Plaintiff has also presented evidence that, although the Medical Defendants initially told him that he could only be prescribed Ibuprofen or Tylenol for his neuropathic pain, he was eventually prescribed Duloxetine to treat such pain. Finally, the record reveals that, after Dr. Shuaib (an outside emergency room doctor) prescribed Plaintiff Gabapentin, he was individually seen by Defendants Baddick, Bora Saikia, and Williams, but he was not given the Gabapentin, and he was informed only that he would not be approved for it.

Thus, although the Medical Defendants have, as the movants, presented evidence that they provided treatment and care for Plaintiff's Type II diabetes, the issue here appears to be a narrower one: whether they were deliberately indifferent to Plaintiff's severe neuropathic pain. And Plaintiff, as the non-movant, has come forward with evidence demonstrating that there exists issues of fact material to determining whether the Medical Defendants acted with such deliberate indifference to his pain-that is, whether they deliberately chose a less efficacious treatment regimen for Plaintiff's severe neuropathic pain, or whether they deliberately denied or delayed Plaintiff's reasonable request for treatment of such pain, including a specifically tailored neuropathic pain medication and/or referral to an outside specialist. See, e.g., Rouse, 182 F.3d at 197 (finding deliberate indifference when a “prison official: (1) knows of a prisoner's need for medical treatment and 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”); Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (stating that deliberate indifference can exist in a variety of circumstances, including where “knowledge of the need for medical care [is accompanied by the] . . . intentional refusal to provide that care or where ‘[s]hort of absolute denial . . . ‘necessary medical treatment [i]s . . . delayed for non-medical reasons, or where prison authorities prevent an inmate from receiving recommended treatment” (alternations in original) (citation and internal quotation marks omitted)).

In reaching this conclusion, the Court emphasizes that the issue of deliberate indifference embodies a subjective state of mind and that, here, the only evidence the Medical Defendants have presented in support of their summary judgment motion is Plaintiff's DOC medical records. The Medical Defendants have not submitted evidence (such as an affidavit, declaration, deposition testimony, or otherwise) outlining or more fully discussing their treatment plan of Plaintiff's diabetic neuropathic pain such that the Court could conclude, as a matter of law, that their decision to not prescribe Plaintiff neuropathic pain medication (i.e., Gabapentin) or that their decision to delay their administration of such pain medication (i.e., Duloxetine) was based upon their professional experience and judgment and not the result of deliberate indifference.¹⁵

15 The Medical Defendants argue, and the Court generally agrees, that a prison doctor's use of a different treatment regimen, other than that prescribed by another medical provider, does not in itself amount to deliberate indifference. (Doc. 83 at 6-7). As such, any failure on the part of the Medical Defendants to follow Dr. Shuaib's specific discharge instruction regarding the Gabapentin prescription does not alone suggest deliberate indifference. However, the problem here is that the Medical Defendants have neither discussed the specific treatment regimen for Plaintiff's neuropathic pain nor addressed the efficacy of such treatment regimen in comparison to Dr. Shuaib's recommendation for Gabapentin. Moreover, while Plaintiff asserts that he was eventually prescribed Duloxetine for his neuropathic pain, the Medical Defendants have also failed to address the circumstances surrounding this medication.

Moreover, the fact that the Medical Defendants provided Plaintiff with a variety of treatment and care for Plaintiff's Type II diabetes does not preclude issues of fact concerning whether their conduct amounted to deliberate indifference with respect to Plaintiff's neuropathic pain. As explained by the Third Circuit:

There are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements. For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for “an easier and less efficacious treatment” of the inmate's condition. West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). Nor may “prison authorities deny reasonable requests for medical treatment . . . [when] such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.'” Monmouth County Corr. Inst. Inmates, 834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)). And, “knowledge of the need for medical care [may not be accompanied by the] ... intentional refusal to provide that care.” Id. (alterations in original) (quoting Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985)).

Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017).

Accordingly, for these reasons, the Court concludes that there are Accordingly, while the Medical Defendants were certainly free to exercise their professional judgment here, it is simply not clear to the Court what that judgment or the accompanying treatment regimen entailed with respect to, specifically, Plaintiff's neuropathic pain. genuine disputes of fact material to determining the issue of deliberate indifference. To conclude otherwise would require the Court to resolve the factual dispute in the record by weighing the evidence and rendering a credibility determination as to whose version of the events is more believable, which is improper in connection with a summary judgment motion. See Anderson, 477 U.S. at 249 (instructing that, “[a]t the summary judgment stage[,] the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial”); Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 262 (3d Cir. 2017) (explaining that “[c]redibility determinations are for the factfinder and are inappropriate at the summary judgment stage” (citation omitted)). The Court will, therefore, recommend that the Medical Defendants' motion for summary judgment (Doc. 73) be denied with respect to Plaintiff's Eighth Amendment claim of deliberate indifference to his serious medical needs.

b. Plaintiff's Medical Negligence Claims

For a plaintiff to prevail on a medical negligence (or medical malpractice) claim under Pennsylvania state law, “the plaintiff must prove that the defendant's treatment fell below the appropriate standard of care.” Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015) (citations omitted); Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003) (stating that “medical malpractice can be broadly defined as the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient . . . ”). “[W]hen a plaintiff's medical malpractice claim sounds in negligence, the elements of the plaintiff's case are the same as those in ordinary negligence actions.” Id.; accord Ditch v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa. Super. Ct. 2007), aff'd, 17 A.3d 310 (Pa. 2011), (providing that “the basic elements of medical malpractice and ordinary negligence are the same . . . ” (citation omitted)).

Thus, to establish a prima facie case for ordinary and medical negligence claims, a plaintiff must establish: (1) a duty of care owed by the physician to the patient; (2) a breach of that duty; (3) the breach of that duty was the proximate cause of the harm suffered by the patient; and (4) the damages suffered were a direct result of that harm. See Mitchell v. Shikora, 209 A.3d 307, 314 (Pa. 2019) (citing Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997)). Put differently, “to prevail on a claim of medical negligence, the plaintiff must prove, inter alia, that the defendant's treatment fell below the appropriate standard of care- that is, varied from accepted medical practice.” See Mitchell, 209 A.3d at 314-15.

As “[w]ith all but the most self-evident medical malpractice actions[,] there is also the added requirement that the plaintiff must provide a medical expert who will testify as to the elements of duty, breach, and causation.” Quinby v. Plumsteadville Fam. Prac., Inc., 907 A.2d 1061, 1070-71 (Pa. 2006) (citation omitted); Mitchell, 209 A.3d at 315 (providing that a “plaintiff in a medical negligence matter is required to present an expert witness who will testify, to a reasonable degree of medical certainty, regarding the standard of care (duty); that the acts of the physician deviated from the standard or care (breach); and that such deviation was the proximate cause of the harm suffered” (citation omitted)). Indeed, as explained by the Pennsylvania Supreme Court, “[e]xpert testimony in support of the plaintiff's claim is an indispensable requirement in establishing a plaintiff's right of action, as the treatment and injury typically involved are such that the common knowledge or experience of a layperson is insufficient to form the basis for passing judgment.” Mitchell, 209 A.3d at 315 (citation omitted); Toogood, 824 A.2d at 1145 (explaining that, “[b]ecause the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury” (citation omitted)).

This requirement is further set forth in Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, which provides that, “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party[.]” Pa. R. Civ. P. 1042.3(a). This certificate of merit shall either state that: (1) “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm[;]” (2) “the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard[;]” or (3) “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Pa. R. Civ. P. 1042.3(a)(1), (2), (3).

Particularly relevant here, in the event that a party certifies under subsection (3) that expert testimony is unnecessary, “in the absence of exceptional circumstances [that party] is bound by the certification and, subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.” Pa. R. Civ. P. 1042.3(a)(3), Note; Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011) (“Pennsylvania law expressly allows a plaintiff to proceed on the basis of a certification that expert testimony will not be required to prove her claim. Of course, the consequence of such a filing is a prohibition against offering expert testimony later in the litigation, absent ‘exceptional circumstances'” (citing Pa. R. Civ. P. 1042.3(a)(3), Note)). Additionally, the Third Circuit has explained that Rule 1042.3 is substantive state law under Erie R.R. v. Thompkins, 304 U.S. 64 (1983) and must, therefore, be applied as such by federal courts. See Liggon-Redding, 659 F.3d at 262- 65.

Accordingly, and in sum, the general rule in medical negligence actions brought under Pennsylvania state law is that a plaintiff must present medical expert testimony to establish that the care and treatment he received by the defendant fell short of the required standard of care and that such breach proximately caused his injury. See Toodgood, 824 A.2d at 1145. The only exception to that general rule “applies where the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even non-professional persons, . . . also conceptualized as the doctrine of res ipsa loquitur.” Id. (internal citation and quotation marks omitted); see also Brady v. Urbas, 111 A.3d 1155, 1162 n.6 (Pa. 2015) (noting that, “[e]xcept in the most obvious cases of negligence (such as where a gauze pad is left inside a patient's body), expert testimony is necessary to establish the standard of care”).

Even where this exception applies, however, it “must be carefully limited[,]” and “three conditions must be met before the doctrine of res ipsa loquitur may be invoked”-that is: (1) “either a lay person is able to determine as a matter of common knowledge, or an expert testifies, that the result which has occurred does not ordinarily occur in the absence of negligence;” (2) the agent or instrumentality causing the harm was within the exclusive control of the defendant;” and (3) “the evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event.” See id. at 1149-50.

Here, Plaintiff has filed certificates of merit as to each of the Medical Defendants wherein he asserts that expert testimony of an appropriate licensed professional is unnecessary for the prosecution of his claims against each Defendant. (Docs. 1-1, 40-1.)¹⁶ The Court, however, is unpersuaded.

16 Plaintiff filed certificates of merit in support of his initial complaint and proposed first amended complaint. (Docs. 1-1, 40-1.) As noted by the Medical Defendants, however, (Doc. 76 at 25 n.10), Plaintiff did not file new certificates of merit with his second amended complaint, the operative pleading in this matter. See (Doc. 60). Nevertheless, the Court treats Plaintiff's previously filed certificates as the certificates upon which he intends proceed in connection with his second amended complaint.

Having reviewed the parties' arguments and relevant authority, the Court agrees with the Medical Defendants that the material facts in this case demonstrate that expert testimony is required for Plaintiff's medical negligence claim. (Doc. 76 at 27-29.) More specifically, the issues in this case (a) present various situations wherein Plaintiff challenges medical judgment and expertise, (b) address the adequacy of medical care provided during those situations, and (c) introduce complex issues concerning Type II diabetes and diabetic neuropathy. As a result, these complicated medical issues do not encompass matters within the common knowledge and experience of laypersons. Indeed, they are not so simple, and the lack of medical skill or care is not so obvious, that they cannot be considered issues within the range of the comprehension of non-medical individuals.

Accordingly, the Court concludes that the limited exception of res ipsa loquitur does not apply here and that, therefore, medical expert testimony is required for Plaintiff to prove his medical negligence claim. Thus, the Court will recommend that the Medical Defendants' motion for summary judgment (Doc. 73) be granted as to Plaintiff's medical negligence claim brought under Pennsylvania law.¹⁷

17 While there are genuine issues of fact material to determining the issue of deliberate indifference with respect to Plaintiff's Eighth Amendment claim, there are no genuine issues of fact as to whether the narrow exception to expert testimony in medical negligence actions applies here, such that the Court could not make such determination at this time.

IV. Recommendation

For the foregoing reasons, IT IS RECOMMENDED THAT:

1. The Medical Defendants' motion for summary judgment (Doc. 73) be GRANTED in part and DENIED in part, as follows: the Medical Defendants' motion should be granted as to Plaintiff's medical negligence claim brought under Pennsylvania law; and the Medical Defendants' motion should be denied as to Plaintiff's Eighth Amendment claim of deliberate indifference to his serious medical needs brought under Section 1983;

2. The Clerk of Court should be directed to terminate John Doe #1 and John Doe #2 from the caption of this case; and

3. The Clerk of Court should be directed to change the spelling of the remaining defendants' names on the caption of this case, as follows: Martin Loscalzo, M.D. (incorrectly identified as Loscal); Peter Baddick, M.D. (identified as Medical Director Baddick); Bora Pinky Saikia, M.D. (identified as Medical Director Bora); and Jenna Williams, PA (identified as Williams).

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.