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April 18, 1977


The opinion of the court was delivered by: DAVIS


 In this civil rights action, this Court is presently considering alternative motions to dismiss or for summary judgment on behalf of the named defendants in regard to both federal and pendent state claims.

 Invoking 42 U.S.C. §§ 1983 and 1985, and their jurisdictional counterpart, 28 U.S.C. § 1343 (3) plaintiff filed suit pro se with the Clerk of Court on November 3, 1972. Plaintiff was granted leave to proceed in forma pauperis, and the formal complaint was filed on January 24, 1973. Plaintiff's cause of action is based on the alleged failure of certain prison doctors and officials to render medically prescribed neuromuscular therapy during the term of his imprisonment, which allegedly resulted in the permanent loss of use of his arm. Plaintiff's injury occurred while playing basketball on November 3, 1969 at Holmesburg Prison. He was treated for a brachial plaxus injury on an inpatient basis at Philadelphia General Hospital (PGH) for approximately five months until April 13, 1970. Plaintiff thereafter was returned to Holmesburg until he was transferred on June 8, 1970 to the State Correctional Institution at Graterford (SCIG). On November 10, 1970, he was transferred to the State Correctional Institution at Pittsburgh (SCIP) and remained there until he was paroled on January 9, 1971. During this period of time, plaintiff allegedly received none of the treatment prescribed by PGH doctors to rehabilitate his arm.

 Defendants raise a number of issues, which will be discussed below.

 The defendants assert that plaintiff's cause of action is barred by the statute of limitations. *fn1" In civil rights cases, the statute of limitations is "that which the state would enforce had the action seeking similar relief been brought in State Court." Henig v. Odorioso, 385 F.2d 491, 493 (3d Cir. 1967), cert. denied 390 U.S. 1016, 20 L. Ed. 2d 166, 88 S. Ct. 1269 (1968). In Pennsylvania, the statute of limitations for personal injury actions is two years. 12 P.S. § 34. However, there is a distinction to be drawn between the time in which a civil rights action may be brought and the time of accrual of a civil rights action, i.e. the date at which time the limitations period begins to run. The latter is governed solely by federal law. Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); and Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974) vacated and remanded on other grounds. O'Connor v. Donaldson, 422 U.S. 563, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975). "Federal law holds that the time of accrual is when plaintiff knows or has reason to know of the injury which is the basis of the action." Cox v. Stanton, supra at 50 citing Young v. Clinchfield R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961).

 In determining what is the basis of plaintiff's action, it should be emphasized that an "essential element of an actionable civil rights complaint is the establishment of a constitutional deprivation." Gittlemacker v. Prasse, 428 F.2d 1, 5 (3d Cir. 1970) (emphasis original). Gittlemacker concerned, inter alia, the degree of gravity necessary for allegations of medical malpractice to attain constitutional proportions. It was held that more than mere tortious conduct must be alleged.

It is only where an inmate's complaint of improper or inadequate medical treatment depicts conduct so cruel or unusual as to approach a violation of the Eighth Amendment's prohibition of such punishment that a colorable constitutional claim is presented. [ Gittlemacker at 6]

 This standard was described with more particularity in the recent Supreme Court case of Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251, 45 L W 4023, 4025 (1976):

[In] the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute a "wanton infliction of unnecessary pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment (emphasis supplied).

 See also Fear v. Commonwealth, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 24 L. Ed. 2d 234, 90 S. Ct. 278 (1969) and Commonwealth ex rel. Gatewood v. Hendrick, 368 F.2d 179 (3d Cir. 1966), cert. denied, 386 U.S. 925, 17 L. Ed. 2d 797, 87 S. Ct. 899 (1967). The case of Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974), cert. denied sub nom. Thomas v. Cannon, 419 U.S. 879, 42 L. Ed. 2d 119, 95 S. Ct. 143 (1974), also spoke in terms of the degree of the alleged harm and, in deciding whether or not medical care was essential, found the test to be:

 I am persuaded that in the context of this case, it is the allegation of the permanency of the injury which is important. As I stated in the case of U.S. ex rel. Ingram v. Montgomery County Prison Board, 369 F. Supp. 873, 874 (E.D.Pa. 1974), in a civil rights action the plaintiff must allege an injury from denial of medical care which results in "undue suffering or permanent residual injury." (Emphasis supplied). Other courts have used similar standards, See, e.g. Cox v. Stanton, supra at 59 (permanent deprivation of ability to bear children); Thomas v. Pate, supra at 158 (substantial harm); and Stiltner v. Rhay, 371 F.2d 420, 421 (9th Cir. 1967) (tangible residual injury). It follows from these cases that the ...

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