Michael Markowitz v. William Nicholson

• Court: Court of Appeals for the Third Circuit
• Decided: September 26, 2023
• Docket: 23-1691
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1691 __________

MICHAEL MARKOWITZ, Appellant

v.

WILLIAM NICHOLSON, CHCA; ROBERT GILMORE, Former Superintendent; JAMES FETTERMAN, CRNP; SHARON COLAIZZI, CRNP; DR. TIMOTHY KROSS ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2:20-cv-01311) District Judge: Honorable David Stewart Cercone ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) September 18, 2023

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed: September 26, 2023) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Pro se appellant Michael Markowitz, a Pennsylvania state prisoner, suffers from

chronic pain. He alleges that prison doctors and administrators stopped prescribing him

the pain medication he had relied on for many years without providing any effective

replacement, leaving him in constant pain—and violating the Eighth Amendment. The

District Court granted summary judgment for all defendants. For the following reasons,

we will affirm.

I.

Because Markowitz appeals from the grant of summary judgment, we construe the

facts in the light most favorable to him. Markowitz is incarcerated at SCI-Greene. He

suffers from medical conditions and injuries—primarily a .38-caliber bullet wound to his

neck—that cause him chronic neuropathic pain. ECF No. 4 at 3. For about 15 years,

Markowitz’s pain had been treated with the drug gabapentin, also known by the brand

name Neurontin. In April 2019, prison doctor Timothy Kross took Markowitz off

gabapentin because of its potential for abuse and because other pain medications are

available. Markowitz immediately filed two prison grievances. Prison officials denied the

grievances, finding that Kross’s decision was based on his sound medical judgment.

Nonetheless, Markowitz’s gabapentin was renewed about a month after Kross had

stopped it, and he continued to receive gabapentin until mid-December 2019. That

month, Markowitz learned that the prison planned to discontinue his gabapentin

2 prescription once again and transition him to a different drug, duloxetine (brand name

Cymbalta). Markowitz immediately filed another grievance protesting the change, but

prison officials denied the grievance as frivolous. The officials noted that Markowitz had

already filed unsuccessful grievances about not getting gabapentin and said that his

complaints amounted to mere disagreements about his preferred pain medication. Over

the next month, Markowitz’s gabapentin dosage was lowered and duloxetine introduced,

until his gabapentin was stopped completely in January 2020.

After exhausting the grievance process, Markowitz filed a verified complaint in

September 2020 under 42 U.S.C. § 1983, stating that the loss of gabapentin had left him

in constant and extreme pain for the past nine months. He further stated that the

duloxetine was ineffective at treating the pain, that prison officials knew it because he

had told them so through the grievance process, and that the officials failed to remedy the

situation. Markowitz argues that this amounts to cruel and unusual punishment under the

Eighth Amendment. His complaint named five defendants. Three, Dr. Kross, Nurse

Colaizzi, and Nurse Fetterman, are medical providers who treated him. Two are prison

administrators: Nicholson was the Corrections Health Care Administrator at SCI-Greene,

and Gilmore was the prison superintendent.

3 The District Court denied the administrators’ motion to dismiss the complaint for

failure to state a claim against them. ECF No. 29. But following discovery, the District

Court granted summary judgment for all defendants.1 ECF No. 118. Markowitz appeals.

II.

We have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary

judgment de novo. Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 345 (3d Cir.

2022). Summary judgment is appropriate only when the evidence on record shows that

“there is no genuine dispute as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the facts in the light most

favorable to the non-moving party, Markowitz, and draw all reasonable inferences in his

favor. See Hugh v. Butler Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005). And

because Markowitz is pro se, we construe his pleadings liberally. See Haines v. Kerner,

404 U.S. 519, 520–521. But the “mere existence of some evidence in support of the

nonmovant is insufficient to deny a motion for summary judgment; enough evidence

must exist to enable a jury to reasonably find for the nonmovant on the issue.” Wharton

v. Danberg, 854 F.3d 234, 241 (3d Cir. 2017). We may affirm on any basis supported by

the record. Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 751 (3d Cir. 2019).

III.

1 Markowitz also moved for summary judgment, which the District Court denied. 4 To avoid summary judgment and proceed to trial, Markowitz had to present

evidence sufficient for a reasonable jury to find (1) that his medical needs were serious,

and (2) that prison officials were deliberately indifferent to those needs. Pearson v. Prison

Health Serv., 850 F.3d 526, 534 (3d Cir. 2017). Like the District Court, we assume

without deciding that Markowitz’s medical needs were serious. See ECF No. 110 at 6. So

this appeal turns on whether a reasonable jury, viewing the evidence in the light most

favorable to Markowitz, could find that the Defendants showed deliberate indifference to

those needs.

Not every complaint of inadequate prison medical care rises to the level of

deliberate indifference. Where a prisoner has received some amount of medical

treatment, we presume that the treatment was adequate absent evidence that it violated

professional standards of care. Brown v. Borough of Chambersburg, 903 F.2d 274, 278

(3d Cir. 1990). “Nonetheless, there are circumstances in which some care is provided yet

it is insufficient to satisfy constitutional requirements.” Palakovic v. Wetzel, 854 F.3d

209, 228 (3d Cir. 2017). But the bar to relief is a high one. Even if the prisoner’s medical

care is inadequate, the prisoner must also show that the prison doctor or administrator

acted with a sufficiently culpable state of mind. Mere medical negligence or malpractice

is not enough. Palakovic, 854 F.3d at 227, citing Estelle v. Gamble, 429 U.S. 97, 105–06

(1976). Rather, the prisoner must show that the prison doctors or administrators (1)

delayed, denied, or interfered with needed medical care intentionally, or (2) recklessly

5 disregarded a substantial risk that the prisoner would suffer serious harm. Giles v.

Kearney, 571 F.3d 318, 330 (3d Cir. 2009); Estelle, 429 U.S. at 104–05.

One way to establish the requisite mental state is to show that a medical provider

persisted in a course of treatment despite knowing that it was ineffective. See, e.g., White

v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). This is Markowitz’s theory of relief.

IV.

Markowitz has failed to produce sufficient evidence of deliberate indifference to

his pain by any of the medical providers. Dr. Kross saw Markowitz only once, on April

12, 2019. ECF No. 92-2 at 237–39. Markowitz explained that he has suffered from

neuropathic pain since he was shot in the neck and asked Kross to renew his prescription

for gabapentin. See id. Kross performed some clinical assessments and ordered x-rays of

Markowitz’s neck to better understand his pain. Id. Kross states that he decided not to

renew Markowitz’s gabapentin prescription due to its known propensity for abuse, and

because other pain medications are available. ECF No. 92-4 at 9–10. And Markowitz has

produced no evidence indicating that this was based on anything other than his

professional judgment. Kross does not appear to have any involvement in Markowitz’s

care apart from this one visit, so he cannot be said to have “persisted” in any course of

treatment. True, Kross did not prescribe Markowitz any pain medication to replace the

gabapentin that he had decided should be discontinued. But Kross was not the only

medical professional treating Markowitz at the time, and Markowitz has not shown that it

6 was Kross’s duty to prescribe a gabapentin substitute after this visit. Markowitz has

provided no other evidence that would allow a jury to infer that Kross intended to harm

him or acted with reckless disregard for his pain. So the District Court’s grant of

summary judgment for Kross was proper.

Markowitz’s claims against Nurse Colaizzi fail for similar reasons. After Dr.

Kross initially stopped Markowitz’s gabapentin in April 2019, Markowitz saw Colaizzi

for medical care three times. At the first visit, Markowitz complained that he was in pain,

and Colaizzi restarted his gabapentin. ECF No. 86-2 at 2; ECF No. 92-2 at 358. At the

second visit, he again complained of pain, and Colaizzi renewed his gabapentin. ECF No.

86-2 at 3; ECF No. 92-2 at 376. The third visit was on January 7, 2020, as Markowitz

was being transitioned from gabapentin to duloxetine. ECF No. 86-2 at 4. Markowitz

complained that the duloxetine was ineffective and that his pain was agonizing. Id.

Colaizzi did not put him back on gabapentin, but she suggested a different medication,

topiramate (brand name Topamax), that he agreed to try. Id. Colaizzi does not appear to

have any involvement in Markowitz’s care after this third visit, and she did not prescribe

him the topiramate or any other medication after seeing him. But Colaizzi was not the

only medical professional treating Markowitz at the time, and Markowitz has not shown

that it was her duty to prescribe him medications after this third visit. Markowitz has

provided no other evidence that would allow a jury to infer that Colaizzi intended to harm

7 him or acted with reckless disregard for his pain. So the District Court’s grant of

summary judgment for Colaizzi was proper.

Markowitz has also not shown evidence of deliberate indifference by Nurse

Fetterman. On December 12, 2019 he asked Fetterman why his gabapentin was being cut

again. Fetterman told him “The doctor did that,”2 and that “[T]he government doesn’t

want it prescribed and also the D.O.C.” ECF No. 4-1 at 2; ECF No. 92-2 at 197. So by

Markowitz’s own telling, the decision to take him off gabapentin was not Fetterman’s.

Nor did Fetterman persist in a course of conduct that he knew was ineffective. On

December 30, Markowitz complained to Fetterman that the duloxetine was not working

and asked to see a specialist for his pain and arthritis. ECF No. 92-2 at 195. Fetterman

prescribed Markowitz acetaminophen (Tylenol), ordered follow-up lab work from the

chronic care clinic, and referred him to the “doc line” for further evaluation for pain

control. Id. at 195–96.3 After this visit, Fetterman renewed Markowitz’s duloxetine

prescription on multiple occasions. See id. at 390, 396, 401, 418, 423, and 509. And

Fetterman treated Markowitz for unrelated conditions as well, including renewal of his

chronic care medications. See id. at 443–47, 454, 484, 494, and 509. There is no evidence

2 Fetterman may have been referring to Dr. Paul Delbianco, who entered a reduced gabapentin prescription for Markowitz the next day. See ECF No. 92-2 at 389. 3 Prescribing acetaminophen alone might have presented a closer question. See West v. Keve, 571 F.2d 158 (3d Cir. 1978) (reversing dismissal of a prisoner’s § 1983 complaint alleging that the prison had used aspirin alone to treat his pain following surgery and would not allow him to see a doctor for post-operative treatment). 8 that Markowitz complained to Fetterman on these or any other occasions about the

duloxetine being ineffective. So there is no evidence that Fetterman knew that he was

persisting in a course of treatment that did not work. Thus, the District Court’s grant of

summary judgment for Fetterman was proper.

Markowitz also fails to show deliberate indifference by the prison administrators

Nicholson and Gilmore. Markowitz correctly notes that one way to show that prison

administrators acted with the requisite mental state is if they had “a reason to believe (or

actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a

prisoner.” Pearson, 850 F.3d at 543, quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.

2004). And Markowitz has provided evidence that his grievances put the administrators

on notice of his complaints about ineffective pain treatment. See, e.g., ECF No. 86-1 at 6.

But that while this knowledge is necessary to prove deliberate indifference, it is not

sufficient. As these defendants correctly note, to hold them personally liable under §

1983, Markowitz must also show that they were personally involved in the conduct that

violated his constitutional rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). “Personal involvement can be shown through allegations of personal direction or

of actual knowledge and acquiescence.” Id. Here, Markowitz has not alleged (much less

proven) that either administrator personally directed the medical staff to stop giving him

gabapentin. And he has not shown that the medical providers who treated him violated

his Eighth Amendment rights, so the administrators cannot have “acquiesced” to such a

9 violation. Therefore, Markowitz has failed to show deliberate indifference by the

administrators, and we need not reach their arguments on qualified immunity or Eleventh

Amendment immunity.

For these reasons, we will affirm the judgment of the District Court.