Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 1 of 46

MARSHALL MARTINEZ, Petitioner-Appellant, v. ALAN KUNIMOTO, Respondent-Appellee. No. 92-15072

DR., Respondent-Appellee, KIM M. THORBURG, et al.,

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 1993 U.S. App. LEXIS 11693

May 7, 1993, ** Submitted, Honolulu, Hawaii ** The panel unanimously finds this case suitable for argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4. May 11, 1993, Filed NOTICE: [*1] 36-3. THIS DISPOSITION IS NOT APPROPRIATE FOR PUBLICATION AND MAY NOT BE submission on the record and briefs and without oral

CITED TO OR BY THE COURTS OF THIS CIRCUIT EXCEPT AS PROVIDED BY THE 9TH CIR. R.

SUBSEQUENT HISTORY: Reported as Table Case at: 993 F.2d 883, 1993 U.S. App. LEXIS 18406.

Certiorari Denied March 7, 1994, Reported at: 1994 U.S. LEXIS 2111. PRIOR HISTORY: Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-90-0076-DAE. David A. Ezra, District Judge, Presiding DISPOSITION: AFFIRMED. CASE SUMMARY PROCEDURAL POSTURE: Appellant prisoner challenged an order from the United

States District Court for the District of Hawaii, which granted summary judgment in favor of appellees, doctor and prison employees, in appellant's 42 U.S.C.S. @ 1983 action against them alleging that they were deliberately

indifferent to his medical needs in violation of his U.S. Const. amend. VIII rights.

OVERVIEW:

doctor and prison employees, alleging that his U.S. Const. amend. VIII rights were violated because appellees were deliberately indifferent to his medical needs related to his glaucoma. The district court granted summary judgment for appellees, and appellant challenged the ruling. On appeal, the court affirmed, therefore, the appeal was timely filed. The court ruled that appellee doctor's finding that appellant's brief properly served as his notice of appeal and that, choice to treat the glaucoma with drops instead of laser surgery was proper and

Appellant prisoner filed a 42 U.S.C.S. @ 1983 against appellees,

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 2 of 46

that appellee nurse's failure to inform officials that appellant's eyesight was appellant failed to even allege that prison officials acted in a wanton manner, court noted that the district court properly found that any @ 1983 claim

deteriorating was isolated and did not cause him harm. The court also found that which was required to rise to a U.S. Const. amend. VIII violation. Finally, the against appellees in their official capacities was without merit because they were entitled to immunity and there were no grounds for injunctive relief. OUTCOME:

summary judgment for appellees, doctor and prison employees, in appellant

The court affirmed the order from the district court that granted

prisoners civil rights action alleging that they violated his Eighth Amendment

rights because they were indifferent to his medical needs. The court ruled that show that prison officials acted in a wanton manner. CORE TERMS:

there was no evidence to support appellant's claims and that appellant failed to

Amendment, glaucoma, clerk, medical treatment, medical condition, summary

prison, deliberate indifference, notice of appeal, prisoner, Eighth

judgment, deliberately, indifferent, construe, wanton, infliction of pain,

injunctive relief, failed to file, medical care, medical need, notice, doctor, liberally, therapy, excerpt

opening brief, date of filing, pro se, administrators, indifference, prescribed,

LexisNexis(R) Headnotes Hide Headnotes Civil Procedure: Appeals: Reviewability: Notice of Appeal intent to seek appellate review, the purpose of this requirement is to ensure that the filing provides sufficient notice to other parties and the courts. [HN1] While a notice of appeal must specifically indicate the litigant's

Thus, the notice afforded by a document determines that document's sufficiency Civ. P. 4 gives the notice required by Rule 3, it is effective as a notice of appeal.

as a notice of appeal. If a document filed within the time specified by Fed. R.

Civil Procedure: Appeals: Reviewability: Notice of Appeal Civil Procedure: Appeals: Briefs App. P. 3. [HN2] Appellate brief may serve as notice of appeal required by Fed. R.

Civil Procedure: Summary Judgment

Civil Procedure: Appeals: Standards of Review: De Novo Review novo. [HN3] An appellate court reviews the grant of summary judgment de

Constitutional Law: Cruel & Unusual Punishment

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage [HN4] The government has an obligation to provide medical care for its

prisoners, and deliberate indifference to serious medical needs of prisoners

constitutes the unnecessary and wanton infliction of pain proscribed by the U.S.

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 3 of 46

Const. amend. VIII. Such conduct is actionable under 42 U.S.C.S. @ 1983. Constitutional Law: Cruel & Unusual Punishment amend. VIII violation involves an analysis of the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. Constitutional Law: Cruel & Unusual Punishment manifested in two ways. It may appear when prison officials deny, delay, or [HN6] Deliberate indifference to a prisoner's medical needs may be [HN5] A determination of deliberate indifference to create a U.S. Const.

intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care. Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's U.S. Const. amend. VIII needs.

Constitutional Law: Cruel & Unusual Punishment faith, that characterize the conduct prohibited by the Cruel and Unusual [HN7] It is obduracy and wantonness, not inadvertence or error in good

Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage Constitutional Law: Civil Rights Enforcement: Immunity: Public Officials subject to suit under 42 U.S.C.S. @ 1983, unless the suit seeks injunctive [HN8] A state official sued in her official capacity is not a "person"

relief.

JUDGES: Before: GOODWIN, TANG, and, NOONAN, Circuit Judges. OPINION: MEMORANDUM Martinez appeals the grant of summary judgment in favor of Dr. Alan

Kunimoto--a private ophthamologist--and Kim Thorburg, Criss Kotz, Charlene

Salmaine, William Oku, and Harold Falk--employees of the Halawa Medium Security to his medical needs in violation of his Eighth Amendment rights. n1 We affirm. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n1 Martinez claimed that appellees "were deliberate [sic] indifference

Facility in Hawaii. Martinez claims that appellees were deliberately indifferent

[sic] to his serious medical needs of [sic] which caused unnecessary and wanton suffering that is in violation of petitioners [sic] 5th, & 8th ConSt. [sic] Amendments." Informal Opening Brief at 5. Although we liberally construe a pro se litigant's pleadings, we find that there is no basis for a claim under the Fifth Amendment. violation of the Eighth Amendment, made applicable to the states by the Fourteenth Amendment. Accordingly, we analyze Martinez's appeal as claiming a

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 4 of 46

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*2] I We reject, at the outset, appellees' argument that Martinez's appeal is

untimely. Martinez improperly filed his notice of appeal on December 31, 1991, entry of final judgment on February 12. of judgment. n2 See Fed. R. App. P. 4.

prior to the district court's order of January 2, 1992 and prior to the court's brief on March 13, within thirty days of the date of the district court's entry

Nonetheless, Martinez filed his opening

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n2 The date of filing is complicated by an error in the clerk's office.

Although the clerk of court received Martinez's opening brief on March 13, it was not filed on that date because Martinez failed to include an excerpt of record. Martinez, however, was proceeding in forma pauperis and was therefore

relieved of the requirement to file excerpts of record. Ninth Circuit Rule 24-1. On April 1, pursuant to a court order waiving this requirement, the clerk filed Martinez's brief. filing to be March 13. We take notice of the clerk's error and construe the date of

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - The Supreme Court[*3] recently announced the principle that governs this [HN1]

case:

While a notice of appeal must specifically indicate the litigants intent to seek appellate review, the purpose of this requirement is to ensure that the filing provides sufficient notice to other parties and the courts. afforded by a document determines that document's sufficiency as a notice of required by Rule 3, it is effective as a notice of appeal. Thus, the notice

appeal. If a document filed within the time specified by Rule 4 gives the notice

identifies the basis of his appeal and provides fair notice to appellees, and therefore satisfies the requirement of a timely notice of appeal. II Martinez, who suffers from glaucoma, alleged several bases for his claim that

Federal Rules of Appellate Procedure).

[HN2] appellate brief may serve as notice of appeal required by Rule 3 of

Smith v. Barry, 112 S. Ct. 678, 682 (1992) (citations omitted) (

Martinez's informal brief adequately

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 5 of 46

appellees were deliberately indifferent to his medical needs: (1) Dr. Kunimoto's inadequate treatment of Martinez, including his decision to treat the disease with drug, rather than laser, therapy; (2) nurse Salmaine's[*4] failure to of Thorburg and Kotz, respectively the Medical Director and Medical Staff

report a complaint by Martinez regarding his medical condition; (3) the failure Supervisor, to notify their staff about Martinez's condition; (4) the failure of Falk and Oku, both prison administrators, to maintain sufficient funds to enable Martinez to obtain adequate treatment; and (5) the prison officials' "false prescription" of the generic drug Akarpine, rather than Pilocarpine as prescribed by Dr. Kunimoto, to treat Martinez's glaucoma.

material fact regarding whether any of the appellees was deliberately indifferent to his medical needs. judgment de novo. 1988).

The district court found that Martinez had not established a genuine issue of [HN3] We review the grant of summary

Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir.

its prisoners, and "deliberate indifference to serious medical needs of by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1975)

[HN4] The government has an obligation to provide medical care for

prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).[*5] Such conduct is 1059 (9th Cir. 1992).

actionable under 42 U.S.C. @ 1983. McGuckin v. Smith, 974 F.2d 1050,

analysis of "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." Id. Glaucoma is a serious medical condition, so our inquiry centers on appellees' response to Martinez's medical needs. Id. (serious medical need exists if failure to treat condition could result in further significant injury or unnecessary infliction of pain). Hutchinson provides the appropriate framework for our analysis: [HN6]

[HN5] A determination of "deliberate indifference" involves an

Such indifference may be manifested in two ways. It may appear when prison

officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care. Mere violate a prisoner's Eighth Amendment needs. negligence in diagnosing or treating a medical condition, without more, does not

838 F.2d at 394 (citations omitted). Dr. Kunimoto chose to treat Martinez's glaucoma through the use of medicated

eye[*6] drops, and he regularly monitored Martinez's eye pressure throughout the course of treatment. Although laser treatment was an alternative treatment option, drug therapy was an acceptable medical procedure. indifference to Martinez's medical needs. Dr. Kunimoto's

professional conduct was not shown to be negligent nor did it exhibit deliberate

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 6 of 46

the vision in his left eye had significantly deteriorated. indifference to Martinez's needs.

Nurse Salmaine failed to file a report detailing Martinez's complaint that Nonetheless, her

action was an "isolated occurrence" which cannot be considered deliberate

later, on March 13, Martinez himself submitted an inmate request form seeking the month. There is therefore no evidence that Salmaine's action caused

(9th Cir. 1990). Although Salmaine improperly failed to file a report, two days

Wood v. Housewright, 900 F.2d 1332, 1334

medical treatment. In response, he was examined by a prison doctor at the end of substantial harm to Martinez.

was not treated by Dr. Kunimoto until May 11. Martinez alleges that this lapse in time was due to a lack[*7] of sufficient funds for prisoner medical part of two prison administrators, Falk and Oku. treatment. He contends that this demonstrates deliberate indifference on the

Following his examination by a prison doctor at the end of March, Martinez

Martinez's allegation, a claim under the Eighth Amendment contains a subjective component, requiring an inquiry into the official's state of mind: [HN7] "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Wilson v. Seiter, 111 S. Ct. 2321, 2324 (1991) (emphasis in original) (quoting Whitley v. Albers, 475 U.S. 312, 319 Clause, whether that conduct occurs in connection with establishing conditions

Assuming arguendo the truth of

(1986)). Martinez has failed to allege, much less prove, that Falk and Oku were aware of his condition or that they acted in an obdurate or wanton manner.

Thorburg and Katz, notified all personnel regarding Martinez's glaucoma, there is no evidence that they failed[*8] to provide adequate treatment of his condition.

Similarly, while it is open to question whether the medical supervisors,

by Dr. Kunimoto. version.

Finally, Akarpine is the generic version of Pilocarpine, which was prescribed Dr. Robert Lau's uncontroverted expert testimony established

that the generic version of the medication is as efficacious as the brand name

the appellees was properly granted. n3

Accordingly, summary judgment with regard to Martinez's claims against all of

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n3 The district court also correctly held that any claim by Martinez against appellees in their official capacities is without merit. official sued in her official capacity is not a "person" subject to suit under [HN8] A state

42 U.S.C. @ 1983, unless the suit seeks injunctive relief. Will v.

to specify what type of injunctive relief would be appropriate in this case. the district court's finding that there does not appear to be any particular

Michigan Dep't of State Police, 491 U.S. 58, 71 & n.10 (1989). Martinez failed

Although we liberally construe the pleadings of a pro se litigant, we agree with

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 7 of 46

conduct which Martinez seeks to have enjoined.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*9] AFFIRMED.

LUCIUS O'BANNER, Plaintiff-Appellant, v. JAMES W. BIZZELL

and ARTHUR BREWER, Defendants-Appellees. No. 97-3518

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 1998 U.S. App. LEXIS 17685

July 29, 1998 *, Submitted * After an examination of the briefs and record, we have

concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and record. See Fed. R. App. P. 34(a); Cir. R. 34(f). July 30, 1998, Decided

NOTICE: [*1] RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

SUBSEQUENT HISTORY: Reported in Table Case Format at: 1998 U.S. App. LEXIS 24195.

PRIOR HISTORY: Appeal from the United States District Court for the Northern

District of Illinois, Eastern Division. No. 92 C 7435. John A. Nordberg, Judge. DISPOSITION: AFFIRMED. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff inmate filed a suit under 42 U.S.C.S. @ 1983

against defendants, a prison physician and the prison's former medical director, alleging that defendant's failure to treat him properly violated his Eighth Amendment right to be free from cruel and unusual punishment. The United States District Court for the Northern District of Illinois, Eastern Division, granted summary judgment to defendants, and the inmate appealed.

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 8 of 46

OVERVIEW:

glaucoma or to arrange treatment for it, violated his Eighth Amendment right to treatment, the inmate alleged that he had gone blind. The inmate submitted the affidavit of an independent ophthalmologist who averred that the prison physician was "grossly negligent" for a long period of time. In affirming

The inmate claimed that defendants, by failing properly to treat his

be free from cruel and unusual punishment. As a result of defendants' inadequate

summary judgment, the court observed that medical malpractice in the form of an incorrect diagnosis or improper treatment did not state an Eighth Amendment claim and that mere negligence or even gross negligence did not constitute

deliberate indifference. The court ruled that the inmate failed to present a at most, the inmate showed that defendants were repeatedly and grossly knowingly disregarded an impending harm easily preventable. OUTCOME:

material issue of fact with regard to either defendants' state of mind and that, negligent. Nothing in the record even remotely suggested that either defendant

The court affirmed summary judgment in favor of defendants. glaucoma, Eighth Amendment, summary judgment, deliberate

CORE TERMS:

indifference, specialist, subjective, right eye, cruel and unusual punishment, grossly negligent, substantial risk, state of mind, ophthalmologist, recommendation, prescribing, prescribed, blindness, disease, blind LexisNexis(R) Headnotes Hide Headnotes Civil Procedure: Summary Judgment: Burdens of Production & Proof Civil Procedure: Summary Judgment: Summary Judgment Standard Civil Procedure: Appeals: Standards of Review: Standards Generally the record and all inferences drawn therefrom will be viewed in the light most favorable to the non-movant. A court may grant summary judgment only if the pleadings, depositions, answers to interrogatories and admissions on file, [HN1] An appellate court reviews a grant of summary judgment de novo; erroneously, preventable, impending, checking, inmate, medical condition,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Constitutional Law: Cruel & Unusual Punishment Rights

Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner [HN2] The Eighth Amendment proscribes cruel and unusual punishments.

U.S. Const. amend. VIII. Prison officials violate the Eighth Amendment when prisoners. The standard involves both an objective element and a subjective

their conduct demonstrates deliberate indifference to serious medical needs of element. In the context of medical care, the objective element requires that the inmate's medical need be sufficiently serious. The subjective element requires and disregard an excessive risk to inmate health or safety; he must both be that an official act with a sufficiently culpable state of mind: he must know of aware of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference. The conduct must be

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 9 of 46

deliberate or otherwise reckless in the criminal law sense, which means that the defendant must have committed an act so dangerous that his knowledge of the risk can be inferred or that the defendant actually knew of an impending harm easily preventable.

Constitutional Law: Cruel & Unusual Punishment

Torts: Malpractice Liability: Healthcare Providers Rights

Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner [HN3] With respect to the subjective element of an Eighth Amendment

cruel and unusual punishment claim, the United States Court of Appeals for the incorrect diagnosis or improper treatment does not state an Eighth Amendment

Seventh Circuit has frequently noted that medical malpractice in the form of an claim. U.S. Const. amend. VIII. Mere negligence or even gross negligence does evidentiary; it is not an alternative theory of liability.

not constitute deliberate indifference. A series of acts of negligence is merely

COUNSEL: LUCIUS O'BANNER, Plaintiff - Appellant, Pro se, Ina, IL USA. For ARTHUR BREWER, Doctor, SALVADOR A. GODINEZ, JAMES W. BIZZELL, Doctor, IL USA.

Defendants - Appellees: Erik G. Light, OFFICE OF THE ATTORNEY GENERAL, Chicago,

JUDGES: Before Hon. Richard A. Posner, Chief Judge, Hon. William J. Bauer, Circuit Judge, Hon. Daniel A. Manion, Circuit Judge. OPINION: ORDER Lucius O'Banner filed an action under 42 U.S.C. @ 1983 against Dr. James

Bizzell and Dr. Arthur Brewer, respectively an ophthalmologist and the former Medical Director at Stateville Correctional Center. O'Banner alleged that the defendants, by failing properly to treat his glaucoma or to arrange treatment for it, violated his Eighth Amendment right to[*2] be free from cruel and unusual punishment. The district court held that O'Banner had failed to raise a genuine issue of material fact; accordingly, the court granted the defendants' motion for summary judgment. We affirm. Background Lucius O'Banner was incarcerated at Stateville Correctional Center from

August, 1990 to March, 1993. O'Banner had been treated for glaucoma since blindness if untreated, as built-up pressure can destroy the optic nerve.

1980. Glaucoma involves an increase of pressure in the eye that can result in Shortly after O'Banner's arrival at Stateville, a member of the Stateville

medical staff examined him and prescribed Timoptic, a medication for treating glaucoma. On September 21, 1990, Dr. Bizzell examined O'Banner for the first time, diagnosed him with right eye advanced optic atrophy, and continued

prescribing Timoptic. O'Banner was almost blind in his right eye at that time. Subsequently, Bizzell examined and treated O'Banner on at least ten occasions

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 10 of 46

in 1991 and 1992. During these examinations Bizzell checked and recorded the pressures in O'Banner's eyes. Bizzell reported that the pressures were controlled or normal.

of incarceration there. Brewer examined O'Banner on various occasions, including August 5, 1991; October 7, 1991; April 6, 1992; and March 10, 1993. O'Banner wrote several letters to Brewer complaining about his treatment and requesting O'Banner to see specialists at the University of Illinois Eye Clinic on six

Dr. Brewer was the Stateville[*3] Medical Director during O'Banner's period

to consult an outside specialist. In 1992, Brewer approved medical furloughs for different occasions. Results from examinations conducted at the University of Illinois indicated that the pressure in O'Banner's right eye was high. At the recommendation of an outside specialist, Brewer prescribed a different eye-medication, Pilocarpine, on February 25, 1992.

against Bizzell, Brewer, and Salvador Godinez, then the warden at Stateville. and constituted cruel and unusual punishment in violation of the Eighth

On November 12, 1992, O'Banner filed a complaint under 42 U.S.C. @ 1983

O'Banner alleged that the defendants' treatment of his glaucoma was inadequate Amendment. As a result of defendants' inadequate treatment, O'Banner alleged

that he had gone blind. O'Banner submitted the affidavit of Dr. Mark Brower, an stated that Bizzell was "grossly negligent" for a long period of time in vision, and in failing to administer a visual field test.

independent[*4] ophthalmologist who reviewed O'Banner's medical records. Brower erroneously checking O'Banner's eye pressures, in erroneously checking his

failure to state a claim. On September 2, 1997, the district court granted

On July 18, 1995, the district court granted Godinez' motion to dismiss for

summary judgment in favor of Bizzell and Brewer. O'Banner appeals the district not appeal the dismissal of Godinez. Analysis [HN1] We review a grant of summary judgment de novo; the record and

court's grant of summary judgment in favor of Bizzell and Brewer. O'Banner does

all inferences drawn therefrom will be viewed in the light most favorable to (7th Cir. 1996). A court may grant summary judgment only if "the pleadings,

O'Banner, the non-movant. See Johnson v. City of Ft. Wayne, 91 F.3d 922, 930

depositions, answers to interrogatories and admissions on file, together with fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). [*5]

the affidavits, if any, show that there is no genuine issue as to any material

Prison officials violate the Eighth Amendment "when their conduct demonstrates v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997) (quoting Estelle v. Gamble, involves "both an objective element and a subjective element." Id. In the 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)). The standard 'deliberate indifference to serious medical needs of prisoners.'" Gutierrez

[HN2] The Eighth Amendment proscribes cruel and unusual punishments.

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 11 of 46

context of medical care, "the objective element requires that the inmate's element requires that an official act with a "sufficiently culpable state of medical need be sufficiently serious." 111 F.3d at 1369. The subjective

mind": he must "know[] of and disregard[] an excessive risk to inmate health or safety; he must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 834, 837, 128 L. Ed. 2d 811,

114 S. Ct. 1970 (1994). The conduct "must be deliberate or otherwise reckless in the criminal law sense, which means that the defendant must have committed the defendant actually knew of an impending harm easily preventable." [*6]an act so dangerous that his knowledge of the risk can be inferred or that Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1995).

suffering from the disease for ten years) is marked by severe migraine satisfy the objective element of the deliberate indifference standard. [HN3] With respect to the subjective element, this court has

Glaucoma causes blindness; its progression (and in 1990 O'Banner had been

headaches. The disease is manifestly a sufficiently serious medical condition to

frequently noted that "medical malpractice in the form of an incorrect diagnosis v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997). "Mere negligence or even gross 95 F.3d 586, 590 (7th Cir. 1996). A series of acts of negligence "is merely Henman, 41 F.3d 1100, 1103 (7th Cir. 1994). or improper treatment does not state an Eighth Amendment claim." Gutierrez

negligence does not constitute deliberate indifference." Snipes V. DeTella, evidentiary; it is not an alternative theory of liability." Sellers v.

medical certainty that Dr. James Bizzell was deliberately indifferent in his treatment of Mr. O'Banner's serious medical condition" (R. # 56, Attach. to Pl.'s Resp. to Defs.' Mot. for Summ. J. at 1), ultimately we agree with the of fact with regard to either of the defendants' state of mind. At most, O'Banner has shown that Bizzell and Brewer were repeatedly and grossly

While we acknowledge Dr. Brower's "opinion to a reasonable degree of[*7]

district court's determination that O'Banner failed to present a material issue

negligent. Bizzell frequently examined O'Banner and prescribed medication; whether he was sufficiently competent in performing his diagnoses is not pertinent to O'Banner's claim that he acted with deliberate indifference.

Similarly, Brewer examined O'Banner on numerous occasions and even referred him treatment.

to outside specialists, whose recommendations he followed in prescribing further

with actual knowledge of or reckless disregard for a substantial risk to him. Nothing in the record even remotely suggests that either Bizzell or Brewer knowingly disregarded an "impending harm easily preventable." Antonelli, 81 Bizzell or Brewer conducted themselves in anything other than a negligent manner, we AFFIRM the district court's ruling.

O'Banner has simply not presented any evidence that Brewer and Bizzell acted

F.3d at 1427. Since O'Banner[*8] has failed to come forward with evidence that

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 12 of 46

BRUCE WAPLES, Plaintiff, v. RICK KEARNEY and MEDICAL DEPARTMENT, Defendants.

Civil Action No.: 00-210-GMS UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2001 U.S. Dist. LEXIS 9050

March 13, 2001, Decided DISPOSITION: [*1] Kearney's and PHS's Motions to Dismiss GRANTED pursuant to Fed. R. Civ. P. 12(b)(6). Waples' complaint DISMISSED. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff, pro se prisoner, sued defendants, the warden and

the prison medical department, under 42 U.S.C.S. @ 1983 alleging that he

was deprived of proper medical care in violation of the Eighth Amendment. The to state a claim upon which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6).

warden and the medical department filed separate motions to dismiss for failure

OVERVIEW:

or omission by the warden that demonstrated deliberate indifference to his serious medical needs. The prisoner did not contend that the warden was

In order to hold the warden liable, the prisoner had to allege an act

personally involved in the medical care provided to him. Absent some sort of not be held liable under a respondeat superior theory. As for the medical department, the prisoner's allegations failed to satisfy the deliberate

personal involvement in the allegedly unconstitutional conduct, the warden could

indifference prong of the test for liability for an Eighth Amendment violation. The allegations of the complaint, even when construed in a light most favorable to the prisoner, did not support a @ 1983 claim against the medical department. OUTCOME: The court granted the warden's and the health department's motions to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and dismissed the complaint. CORE TERMS:

Amendment, infliction of pain, motions to dismiss, medical attention,

deliberate indifference, medical care, deprived, prong, Eighth

incarcerated, omission, wanton, warden, constitutional right, color of state indifferent, presently, favorable, prisoner, culpable, inmate, top LexisNexis(R) Headnotes Hide Headnotes

law, motion to dismiss, prison official, state of mind, pro se, deliberately,

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage [HN1] See 42 U.S.C.S. @ 1983.

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 13 of 46

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Dismiss [HN2] In ruling on a motion to dismiss, the factual allegations of the

complaint must be accepted as true. Moreover, a court must view all reasonable inferences that may be drawn from the complaint in the light most favorable to the non-moving party. A court should dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.

Civil Procedure: Joinder of Claims & Parties: Self-Representing Parties allegations liberally and must hold them to less stringent standards than formal pleadings drafted by lawyers. [HN3] Where the plaintiff is pro se, the court must interpret his

Constitutional Law: Cruel & Unusual Punishment individuals who are incarcerated in its prisons. To recover for the denial of medical care, a prisoner must show that a prison official or employee was disregard for his condition. deliberately indifferent to his serious medical needs or acted with reckless [HN4] A state has an obligation to provide adequate medical care to the

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Dismiss Constitutional Law: Cruel & Unusual Punishment authorities provided inadequate medical care in violation of Eighth Amendment protections must include acts or omissions by a defendant that evidence deliberate indifference towards serious medical needs. Constitutional Law: Cruel & Unusual Punishment [HN5] In order to withstand a motion to dismiss, a claim that prison

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage [HN6] The deliberate indifference prong is met only if the prison

official knows and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference. The plaintiff must show a sufficiently culpable state of mind which demonstrates an unnecessary and wanton infliction of pain. Mere allegations of negligence do not meet the pleading standards for deliberate indifference. Nor can the claim rest solely on the prisoner's dissatisfaction with the medical care he has received.

Constitutional Law: Cruel & Unusual Punishment

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage [HN7] An inmate's condition is "serious" when it is so obvious that an

ordinary person would easily recognize the need for a doctor's attention or when a physician has concluded that treatment is required. The "seriousness" prong is

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 14 of 46

met also if the effect of denying or delaying care results in wanton infliction of pain or a life-long handicap or permanent loss. In addition, the condition unnecessary suffering, injury or death. must be such that a failure to treat can be expected to lead to substantial and

Labor & Employment Law: Employer Liability: Tort Liability: Respondeat Superior

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage [HN8] Absent some sort of personal involvement in the allegedly

unconstitutional conduct, a defendant cannot be held liable under a respondeat superior theory for an Eighth Amendment violation brought under 42 U.S.C.S. @ 1983.

Constitutional Law: Cruel & Unusual Punishment

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage [HN9] A mere difference of opinion regarding the need for treatment, the

preferred course of treatment, the severity of the alleged injury, or other medical judgment does not constitute a showing of deliberate indifference. without some more culpable state of mind, do not constitute deliberate indifference.

Moreover, it is well settled that claims of negligence or medical malpractice,

COUNSEL: BRUCE WAPLES, plaintiff, Pro se, Georgetown, DE. For RICK KEARNY, defendant: Stuart B. Drowos, Department of Justice, State of Delaware, Wilmington, DE.

For MEDICAL DEPARTMENT, defendant: Seth Jason Reidenberg, White & Williams, Wilmington, DE.

JUDGES: Gregory M. Sleet, UNITED STATES DISTRICT JUDGE. OPINIONBY: Gregory M. Sleet OPINION: MEMORANDUM AND ORDER In March of 2000, Bruce L. Waples ("Waples") filed this pro se prisoner civil

rights action against Rick Kearney ("Kearney"), in his capacity as warden, and Prison Health Services ("PHS") (collectively, "the defendants"). n1 Waples is presently incarcerated at the Sussex Correctional Institute ("S.C.I.") in Georgetown, Delaware. In his complaint, Waples alleges that the defendants 42 U.S.C. @ 1983 (1994). n2 In support of his allegations, Waples claims

deprived him of proper medical care in violation of the Eighth Amendment. See that something "popped" in his back while he was a pretrial detainee. According in his cell and is causing him constant problems and pain. Waples also claims that, as a result of his injury, he was forced to sleep on the floor for approximately two to three weeks. For these alleged wrongs, Waples is seeking

to Waples, this injury makes it difficult for him to climb into the top[*2] bunk

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 15 of 46

monetary relief as well as proper medical attention. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n1 Waples originally named the Medical Department as a defendant. In its

motion, PHS noted that it was the correct defendant because it was the department at S.C.I. n2 [HN1]

organization contracted with the State of Delaware to operate the medical

of any statute, ordinance, regulation, custom, or usage, or any State or

42 U.S.C. @ 1983 states: Every person who, under color

Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the suit in equity, or other proper proceeding for redress. . . . Constitution and laws, shall be liable to the party injured in an action at law,

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*3] Presently before the court are the defendant's separate motions to dismiss

Federal Rule of Civil Procedure 12(b)(6). Because Waples has failed to state a claim upon which relief can be granted, the court will grant the defendants' motions. The following sections discuss the basis for this decision more thoroughly.

for failure to state a claim upon which relief can be granted pursuant to

I. STANDARD OF REVIEW [HN2] In ruling on a motion to dismiss, the factual allegations of

726 (3d Cir. 1997); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

the complaint must be accepted as true. See Graves v. Lowery, 117 F.3d 723,

Moreover, a court must view all reasonable inferences that may be drawn from the complaint in the light most favorable to the non-moving party. See Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969);

a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." See Graves, 117 F.3d at 726; Nami, 82 F.3d at 65[*4] (both citing Conley v.

Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court should dismiss

Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). In addition, liberally and must hold them to "less stringent standards than formal pleadings 97 S. Ct. 285 (1976); Zilich v. Lucht, 981 F.2d 694 (3d Cir. 1992). II. DISCUSSION In order to recover against the defendants, Waples must show that he was drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, [HN3] because Waples is pro se, the court must interpret his allegations

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 16 of 46

deprived of a constitutional right by a person acting under the color of state law. See, e.g., Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S.

Ct. 1920 (1980)). In this case, it is clear that the defendants were acting correctional officials or an agent at the institution where Waples was

under color of state law because, at the time of the alleged incident, they were incarcerated. See Cespedes v. Coughlin, 956 F. Supp. 454, 465 (S.D.N.Y.

alleged that any of the defendants deprived him of a constitutional right.

1997). Therefore, the court next turns to whether Waples has sufficiently[*5]

Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)

medical care" to the individuals who are incarcerated in its prisons. See

[HN4] The State of Delaware has an obligation to provide "adequate

(citations omitted). To recover for the denial of medical care, Waples must show that a prison official or employee was deliberately indifferent to his serious medical needs or acted with reckless disregard for his condition. See 1992). Miller v. Correctional Medical Sys., Inc., 802 F. Supp. 1126, 1130 (D. Del.

prison authorities provided inadequate medical care in violation of Eighth Amendment protections must include acts or omissions by a defendant that evidence deliberate indifference towards serious medical needs.

Thus,

[HN5] in order to withstand a motion to dismiss, a claim that

Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Rouse v.

Estelle v.

claims, plaintiffs must demonstrate that: "(1) the defendants were deliberately

Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (stating that to succeed on such

indifferent to[*6] their medical needs and (2) that those needs were serious."). [HN6] The deliberate indifference prong is met only if the prison

official "knows and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the Ct. 1970 (1994); Rouse, 182 F.3d at 197. The plaintiff must show a inference." Farmer v. Brennan, 511 U.S. 825, 837, 128 L. Ed. 2d 811, 114 S. sufficiently culpable state of mind which demonstrates an unnecessary and wanton infliction of pain. Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111

negligence do not meet the pleading standards for deliberate indifference. See prisoner's dissatisfaction with the medical care he has received. 107. Estelle, 429 U.S. at 105-106. Nor can the claim rest solely on the Id. at

S. Ct. 2321 (1991); Rouse, 182 F.3d at 197. Mere allegations of

an ordinary person would easily recognize the need for a doctor's attention or County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.1987)). The "seriousness" prong is met also if the effect of denying or delaying care results in wanton infliction of pain or a life-long handicap or permanent loss. Id. In addition, the "condition must be such that a failure to treat can be when a physician[*7] has concluded that treatment is required. See Monmouth

[HN7] An inmate's condition is "serious" when it is so obvious that

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 17 of 46

expected to lead to substantial and unnecessary suffering, injury or death." See Colburn v. Upper Darby Township, 946 F.2d 1017, 1023 (3d Cir. 1991).

that the defendants deprived him of proper medical care. A. WARDEN KEARNEY

With these standards in mind, the court turns to an analysis of Waples' claim

Kearney that demonstrates deliberate indifference to his serious medical needs. See City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). In his

In order to hold Kearney liable, Waples must allege an act or omission by

complaint, Waples does not contend that Kearney was personally involved in the is the warden . . . he is responsible for his staff." Thus, the Waples' claim established, however, that [HN8] absent some sort of personal

medical care provided to him. Rather, Waples asserts "Kearny [sic] . [*8] . . he against Kearney is premised on the doctrine of respondeat superior. It is well involvement in the allegedly unconstitutional conduct, a defendant cannot be held liable under a respondeat superior theory. See Fagan v. City of Vineland, 22 F.3d 1283, 1291 (3d Cir. 1994); Gay v. Petsock, 917 F.2d 768

Kearney that demonstrates deliberate indifference to Waples serious medical needs, the claim against Kearney must be dismissed. B. PHS

(3d Cir. 1990). Because Waples complaint fails to allege any act or omission of

that when he informed them several times that he was having trouble getting on the top bed, he was denied proper medical attention. These allegations fail to pain" as proscribed by the Eighth Amendment." See Estelle v. Gamble, 429 feels is proper[*9] medical attention, [HN9] a mere difference of establish that PHS conduct constituted an "unnecessary and wanton infliction of U.S. at 104. Although Waples may disagree with the medical experts on what he opinion regarding the need for treatment, the preferred course of treatment, the severity of the alleged injury, or other medical judgment does not constitute a 110 (3rd Cir. 1990). Moreover, it is well settled that claims of negligence or deliberate indifference. See Estelle, 429 U.S. at 105; Rouse, 182 showing of deliberate indifference. See White v. Napoleon, 897 F.2d 103,

Waples alleges that the medical department knew of his medical history and

medical malpractice, without some more culpable state of mind, do not constitute

F.3d at 196. Therefore, Waples' allegations against PHS fail to satisfy the deliberate indifference prong of the Estelle test n3.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n3 Because Waples has failed to satisfy the deliberate indifference prong,

the court does not reach the question of whether Waples injuries were sufficiently serious.

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 18 of 46

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - In sum, the allegations of the complaint, even when construed in a light most

favorable to plaintiff, do not support a Section 1983 claim against PHS n4. Thus, Waples' claim[*10] against Kearney and PHS must be dismissed n5.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n4 The complaint could have alternatively been dismissed for failing to

exhaust the administrative remedies available to Waples prior to filing a @ 1983 action as required by the Prison Litigation Reform Act of 1996, 42 U.S.C. @ 1997e(a). Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000).

Pending Resolution of the motions to dismiss. By virtue of the court's

n5 On October 20, 2000, defendant PHS filed a Motion to Stay Proceedings

disposition of the motions to dismiss, the motion to stay is rendered moot.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - For these reasons IT IS HEREBY ORDERED that: 1. Kearney's Motion to Dismiss (D.I. 16) is GRANTED pursuant to Fed. R. Civ. P. 12(b)(6).

2. PHS's Motion to Dismiss (D.I. 18) is GRANTED pursuant to Fed. R. Civ. P. 12(b)(6).

3. Waples' complaint (D.I. 2) is DISMISSED.

Dated: March 13, 2001 Gregory M. Sleet UNITED STATES DISTRICT JUDGE

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 19 of 46

RICHARD M. CROSS, Plaintiff(s), vs. ROBERT L. AYERS, Warden, Defendant(s).

No. C 97-4108 VRW (PR) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

1998 U.S. Dist. LEXIS 16546

October 6, 1998, Decided October 6, 1998, Filed

DISPOSITION: [*1] Defendant's motion to dismiss GRANTED. Judgment entered in favor of defendant and against plaintiff.

CASE SUMMARY PROCEDURAL POSTURE: Plaintiff inmate brought a cause of action pursuant to

42 U.S.C.S. @ 1983 against defendant warden and alleged that he had not dismiss under Fed. R. Civ. P. 12(b)(6). OVERVIEW:

received proper medical care for chest pains. The warden filed a motion to

deliberately indifferent to his medical needs. In response to the inmate's

The inmate asserted that the prison medical staff had been

medical complaints, the medical staff had seen the inmate over a dozen times, taken x-rays, blood, and gall bladder tests, administered two EKGs, a nerve staff determined that the inmate's chest pains were likely due to gas and conduction study and referred him to a neurologist for consultation. The medical advised that he not swallow and to try burping to remove the gas bubbles. The court granted the warden's motion and found that the complaint and exhibits unequivocally showed that the medical staff did not disregard the inmate's

medical complaints or fail to take reasonable steps to abate them. The court did not equate to deliberate indifference by the medical staff. OUTCOME: pains.

reasoned that the inmate's disagreement with the medical advice and diagnosis

inmate's @ 1983 claim that he had not received proper medical care for chest

The court granted the warden's motion to dismiss and dismissed the

CORE TERMS:

deliberately, indifferent, prisoner, chest, Eighth Amendment, prison official, prison, abate, pains, bubble

medical staff, motion to dismiss, failure to state a claim,

LexisNexis(R) Headnotes Hide Headnotes

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 20 of 46

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Failure to State a Cause of Action [HN1] Dismissal is appropriate if plaintiff fails to state a claim upon

which relief can be granted. A complaint should not be dismissed for failure to no set of facts in support of his claim which would entitle him to relief. is limited to the contents of the complaint and any attached exhibits.

state a claim, however, unless it appears beyond doubt that plaintiff can prove Dismissal for failure to state a claim is a ruling on a question of law. Review Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the non-moving party. From the facts alleged, a court also must draw all reasonable inferences in favor of the nonmoving party. But conclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.

Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights [HN2] A prison official violates the Eighth Amendment if he is

deliberately indifferent to a prisoner's serious medical need. A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to of law, to establish deliberate indifference. abate it. A difference of opinion as to treatment is not sufficient, as a matter

COUNSEL: RICHARD M. CROSS, Plaintiff, Pro se, Crescent City, CA. For PELICAN BAY STAY PRISON, ROBERT L. AYERS, defendants: James M. Humes, Deputy Attorney Gen., CA State Attorney General's Office, San Francisco, CA. JUDGES: VAUGHN R. WALKER, United States District Judge. OPINIONBY: VAUGHN R. WALKER OPINION: ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Plaintiff, a prisoner at Pelican Bay State Prison, filed the instant pro se

civil rights action under 42 USC @ 1983 alleging that he has not received

proper medical care for chest pains. Per orders filed on December 9, 1997 and

May 4, 1998, the court found that plaintiff's allegations, liberally construed, stated a cognizable claim for injunctive relief against the warden and ordered Federal Rule of Civil Procedure 12(b)(6). DISCUSSION the U.S. Marshal to serve him. Defendant now moves for dismissal under

A. Standard of Review [HN1] Dismissal is appropriate if plaintiff fails to state a claim

upon which relief can be granted. See Fed R Civ P 12(b)(6). A complaint should not be dismissed for failure to state a claim, however, unless it appears[*2] beyond doubt that plaintiff can prove no set of facts in support of his claim

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 21 of 46

which would entitle him to relief. See Terracom v Valley Nat'l Bank, 49 F.3d a question of law. See Parks School of Business, Inc., v Symington, 51 F.3d 1480, 1483 (9th Cir 1995).

555, 558 (9th Cir 1995). Dismissal for failure to state a claim is a ruling on

and construed in the light most favorable to the non-moving party. See id. From the facts alleged, the court also must draw all reasonable inferences in favor of the nonmoving party. See Usher v City of Los Angeles, 828 F.2d 556, 561 defeat a motion to dismiss for failure to state a claim. See McGlinchy v Shell Chemical Co., 845 F.2d 802, 810 (9th Cir 1988). B. Analysis [HN2] A prison official violates the Eighth Amendment if he is (9th Cir 1987). But conclusory allegations without more are insufficient to

See id at 1484. Allegations of fact in the complaint must be taken as true

Review is limited to the contents of the complaint and any attached exhibits.

official is deliberately[*3] indifferent if he knows that a prisoner faces a reasonable steps to abate it. See Farmer v Brennan, 511 U.S. 825, 837, 128

v Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). A prison

deliberately indifferent to a prisoner's serious medical need. See Estelle

substantial risk of serious harm and disregards that risk by failing to take L. Ed. 2d 811, 114 S. Ct. 1970 (1994). A difference of opinion as to treatment Sanchez v Vild, 891 F.2d 240, 242 (9th Cir 1989).

is not sufficient, as a matter of law, to establish deliberate indifference. See

indifferent to his medical needs because they have not properly diagnosed and treated his chest pains. The complaint and attached exhibits show that prison medical staff have addressed and evaluated plaintiff's complaints frequently and exhaustively and diagonosed them as likely due to gas. The exhibits

Here, plaintiff claims that prison medical staff have been deliberately

specifically show that in response to plaintiff's complaints, medical staff have seen plaintiff more than a dozen times over a two-year period, taken x-rays, and even referred him to a neurologist for consultation. There has been no blood and gall bladder tests, administered two EKGs, a nerve conduction study evidence of cardiac or neurological disease. On July 25, 1997, plaintiff was

examined by Dr. D. [*4] Thor after a repeat EKG. Dr. Thor noted that the EKG was normal but that plaintiff appeared to have been swallowing air (aerophagia) and had a large gas bubble in his mid to left upper quadrant-lower left chest. gas bubbles. Plaintiff was advised to eliminate this habit and to try burping to remove the

disregarded plaintiff's complaints or failed to take reasonable steps to abate uniform judgment and diagnosis of medical staff. Plaintiff's disagreement does not give rise to an Eighth Amendment claim for which he is entitled to relief. See Sanchez, 891 F.2d at 242. n1 them. See Farmer, 511 U.S. at 837. Plaintiff simply disagrees with the

The complaint and exhibits unequivocally show that medical staff have not

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 22 of 46

the course of treatment medical staff chose was medically unacceptable under the circumstances and in which they chose this course in conscious disregard of an excessive risk to plaintiff's health. Cf Jackson v McIntosh, 90 F.3d 330, 332 (9th Cir 1996).

n1 There is no indication that this case presents the rare scenario in which

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*5] CONCLUSION For the foregoing reasons, defendant's motion to dismiss is GRANTED. The Clerk shall enter judgment in favor of defendant and close the file. SO ORDERED. VAUGHN R. WALKER United States District Judge JUDGMENT. - ENTERED IN CIVIL DOCKET OCT 07 1998 Fed. R. Civ. Pro. 58 In accordance with the court's order of October 6, 1998, defendant's motion

to dismiss is GRANTED. Judgment is entered in favor of defendant and against plaintiff.

Dated: 10-6-98

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 23 of 46

TIMOTHY M. FILLEBROWN, Plaintiff vd. RICK ZETTLEMOYER,

DEBBIE COMP, BRENDA PITRIZZO, and HEATHER FLURER, in their official and individual capacities, Defendants CIVIL ACTION No. 95-4394 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

1996 U.S. Dist. LEXIS 11495

August 8, 1996, Decided August 9, 1996, FILED

DISPOSITION: [*1] Defendants' Motion for Summary Judgment granted. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff pre-trial detainee brought a 42 U.S.C.S. @

claiming violation of his constitutional rights to due process in both the was the motion for summary judgment of the warden and prison staff. OVERVIEW:

1983 claim against defendants, a prison warden and members of the prison staff,

medical treatment given him and the conditions of confinement. Before the court

hurt when he fell from a prison bunk bed that tilted as he tossed and turned in it. In his @ 1983 action, he claimed the bed was defectively designed and maintained and that the medical care he was given as a result of the fall was inadequate. Because plaintiff was not a convicted prisoner when the alleged unconstitutional conduct occurred, his claims had to be judged under Fourteenth Amendment standards, an essential element of which required showing deliberate indifference by the warden and prison staff with respect to the medical care judgment to the warden and prison staff, the court found that deliberate

The pre-trial detainee, who weighed approximately 250 pounds, was

given the pre-trial detainee and the conditions of confinement. Granting summary indifference was missing from both claims. With respect to the medical care, they were allowed to do, deliberate indifference was missing. Deliberate

because the warden and staff relied on the advice of a treating physician, which indifference was also not shown with respect to the bunk bed, because it was a knowledge of problems relating to it. OUTCOME:

standard model, and there was no evidence that the staff or warden had any prior

the civil rights action filed against it by the pre-trial detainee. CORE TERMS:

The court granted summary judgment to the warden and prison staff in

indifferent, infirmary, conditions of confinement, deliberate indifference,

prison, bunk, inmate, summary judgment, medical care, bunk bed,

deliberately, treating physician, prisoner, detainee, pre-trial, staff, medical treatment, Eighth Amendment, professional judgment, bed, Fourteenth Amendment, defectively designed, doctor, deposition, top, entitled to summary judgment,

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 24 of 46

cruel and unusual punishment, constitutional violation, infliction of pain, failure to provide

LexisNexis(R) Headnotes Hide Headnotes Civil Procedure: Summary Judgment: Burdens of Production & Proof Civil Procedure: Summary Judgment: Summary Judgment Standard [HN1] Summary judgment is appropriate where the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment against a party who

fails to make a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear the burden of proof at trial. In order to defeat a motion for summary judgment, the nonmoving party must adduce more than a mere scintilla of evidence in its favor. Constitutional Law: Cruel & Unusual Punishment

Constitutional Law: Substantive Due Process: Scope of Protection must be evaluated under the Fourteenth Amendment rather than the Eighth [HN2] A pre-trial detainee's claims of alleged unconstitutional conduct

Amendment to the United States Constitution. Eighth Amendment scrutiny is

appropriate only after the state has complied with the constitutional guarantees traditionally associated with criminal prosecutions. The inquiry under the Fourteenth Amendment is whether the conditions of confinement or the inadequacy of medical care received by the plaintiff amount to punishment of the detainee of Appeals for the Third Circuit has held that the standards for determining whether conditions of confinement, including medical care, can be considered impermissible "punishment" are essentially the same as those for determining whether prison conditions violate the Eighth Amendment. or are mere incident of legitimate regulatory restraint. The United States Court

Constitutional Law: Substantive Due Process: Scope of Protection inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the deliberate indifference standard to the defendants. [HN3] Whether one characterizes the treatment received by an inmate as

Constitutional Law: Cruel & Unusual Punishment Rights

Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner [HN4] The United States Supreme Court has held that, although an

accidental or inadvertent failure to provide adequate medical care to a prisoner would not rise to the level of a constitutional violation, deliberate indifference to serious medical needs of prisoners would constitute an

unnecessary and wanton infliction of pain and thus would violate the Eighth Amendment's prohibition against cruel and unusual punishment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 25 of 46

access to medical care or intentionally interfering with the treatment once prescribed. In order to establish that prison officials were deliberately indifferent to an inmate's serious medical needs, an inmate must provide

evidence that the officials had actual knowledge of his objectively serious that condition.

medical condition, and deliberately denied or delayed adequate treatment for

Constitutional Law: Cruel & Unusual Punishment Rights

Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner [HN5] In the medical context, an inadvertent failure to provide adequate

medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind. The law is clear that simple medical malpractice is insufficient to present a constitutional indifference to a serious medical need. violation; a prisoner must show more than negligence; he must show deliberate

Constitutional Law: Substantive Due Process: Scope of Protection cannot be found to be deliberately indifferent for failing to defer to an recommendations of the treating physician. [HN6] Prison administrators and the nursing staff of a prison infirmary

inmate's judgment about appropriate diagnostic care when it contradicts the

Labor & Employment Law: Employer Liability: Tort Liability: Respondeat Superior Torts: Vicarious Liability: Respondeat Superior Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage plaintiff--that the prison warden participated in the alleged wrongdoing by having actual knowledge of the plaintiff's situation and acquiescing in its occurrence or continuation, the plaintiff has not stated a 42 U.S.C.S. @ 1983 claim involving supervisory liability against the warden.

Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights [HN8] The standard set forth in precedent affords considerable latitude

to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients.

Governments: State & Territorial Governments: Claims By & Against Constitutional Law: Substantive Due Process: Scope of Protection [HN9] The Due Process Clause is not implicated by a state official's

negligent conduct causing unintended loss of or injury to life, liberty or property.

Constitutional Law: Substantive Due Process: Scope of Protection product of punitive intent on the part of state actors in order to state a due process claim. [HN10] Pre-trial detainees must show that prison conditions are the

Case 3:03-cv-00400-CFD

Document 44-2

Filed 10/21/2004

Page 26 of 46

COUNSEL: TIMOTHY M. FILLEBROWN, PLAINTIFF, [PRO SE], BETHLEHEM, PA, USA. For RICK ZETTLEMOYER, DEBBIE COMP, BRENDA PITRIZZO, HEATHER FLURER, IN THEIR SHIMER & DI GIACOMO, LTD., EASTON, PA, USA. JUDGES: JAN E. DUBOIS, JUDGE OPINIONBY: JAN E. DUBOIS OPINION: MEMORANDUM DUBOIS, J.

OFFICIAL/INDIVIDUAL CAPACITIES, DEFENDANTS: RALPH J. BELLAFATTO, TEEL, STETTZ,

AUGUST 8, 1996 Presently before the Court is defendant's Motion for Summary Judgment on

plaintiff's pro se civil rights suit brought under 42 U.S.C. @ 1983. The Motion will be granted for the reasons set forth below. I. BACKGROUND

Pennsylvania, was injur