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Boring v. Kozakiewicz

argued: June 24, 1987.

TERRY ALAN BORING, ANDREW CALHOUN, WELDON FELLS, DALE E. GEIDEL, RONALD PERRY, BOBBY ROBINSON, DAVID BEATTY, PHILIP MEIGHAN, PRENTISS JOHNSON, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED; INMATES OF ALLEGHENY COUNTY JAIL, APPELLANTS,
v.
CHARLES J. KOZAKIEWICZ, WARDEN, GARY KNOTTS, DEPUTY WARDEN, EDWARD DE SABATO, ADMINISTRATOR, LT. MATTHEW KERR, LT. JAMES GREGG, LT. URBAN, LT. RALPH LA GROTTO SGT. CALLAS SMITH, SGT. ELIJAH RUCKER, CORPORAL ISTIVANBALOGH, CORPORAL MARTY TUDACE, CORPORAL AUGUSTINE, CORRECTIONAL OFFICERS MCMASTERS, MCNEELY, WILLIAMS, BROKOFF, MCCAFFERY, STAR, DILLINGER, JOBES, MANUEL, INDOVINA, AZIZ, BARUM, CIELINSKI, DR. MARSHALL JOHNSON, DR. CHARLES FOSTER, DR. LEONA HUANG, NURSE COLEMAN, NURSE SCHRODER, DR. RANII, DIETICIAN KATHERINE O'CONNOR, GEORGE GAINES AND GEORGE MONECK, COUNSELORS, SILAS WHITEHEAD AND ALLEGHENY COUNTY, THOMAS FOERSTER, CYRIL WECHT, DR. WILLIAM HUNT, COMMISSIONERS OF ALLEGHENY COUNTY, FRANK LUCCHINO, MSGR., CHARLES RICE, EUGENE COON, HONORABLE MICHAEL J. O'MALLEY, HONORABLE PATRICK R. TAMILIA, HONORABLE MARION FINKELHOR, AND HARRIETTE MCCRAY, ALL MEMBERS OF THE ALLEGHENY COUNTY BOARD OF PRISON INSPECTORS AND THE COMMISSIONERS OF CORRECTIONS AND THE DIRECTOR OF COUNTY CORRECTIONAL SERVICES



Appeal from the United States District Court for the Western District Of Pennsylvania, Civil Action No. 81-1446.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

The principal issue on this appeal is whether former pretrial detainees seeking damages in constitutional claims for lack of medical care must produce expert testimony to establish that their ailments were serious. The district court required such evidence and in its absence granted a directed verdict in favor of defendants. We will affirm.

In addition to the counts under 42 U.S.C. ยง 1983 alleging failure to provide medical treatment, plaintiffs presented other issues not the subject of this appeal. They were resolved by a jury verdict and no further action has been taken on those matters.

The questions before us at this point center on the claims made by three of the plaintiffs -- Boring, Perry, and Geidel. Each of these individuals entered the Allegheny County Jail as a pretrial detainee. Each complains of inadequate medical care, but he facts as to the three vary substantially.

Boring entered the jail in May 1981. In the preceding three weeks, he experienced pain in his left arm caused by ulnar nerve neuropathy. He had first injured his arm while administering an injection in December 1980, and suffered a reinjury while in the jail. This condition resulted in numbness and spasm of the third and fourth fingers of his left and and throbbing pain in the left wrist.

Three or four days after his incarceration, Boring was seen by defendant Dr. Johnson, the jail physician, who suggested a consultation with a specialist. The consultation ultimately took place at Mercy Hospital in Pittsburgh five months later.

According to plaintiff, after receiving a report, Dr. Johnson said that corrective surgery was "elective" and could wait until Boring was released or sent to another institution. In January 1982, about three months after plaintiff was transferred to the Western Penitentiary, he was examined at St. Francis Hospital. Surgery was never performed. He still has pain, but can use his arm on the job that he has held since his release from jail. Another physician, whom plaintiff saw eight times since his release, recommended massage to the point of pain, but this treatment has not alleviated his discomfort.

Boring also suffers from seborrheic dermatitis, a scalp condition which causes itchiness and scaling. He protested that although he had requested a specific brand of shampoo, the jail personnel gave him another that had proved ineffective during a previous incarceration.

While Boring was in the jail, a dentist replaced old fillings that had fallen out with temporary ones. Boring contends that, as a result, after he was released two of the teeth had to be extracted.

Plaintiff Perry was in the county jail from June until October 1981 as a pretrial detainee. He served a six-month sentence there until April 1982. At the time of trial, he was an inmate at a state institution.

Perry had periodic attacks of migraine headache. During a previous incarceration at the Western Penitentiary, a low-sodium, non-dairy product diet was prescribed for him. He followed this regimen for periods of three or four days until the headaches subsided. During the summer of 1981, when he asked for this special diet at the county jail, he was told, "We don't give special diets out for anyone, diabetics or anyone." He also denied receiving any medication at the jail when he complained of headaches.

Plaintiff Geidel was housed at the jail as a pretrial detainee from March 1980 until his conviction in April 1981 and remained there for one year thereafter. Before admission to the jail, he had been scheduled to undergo exploratory surgery for a knee injury that he had incurred in a childhood accident. When he was unable to make bail, the surgery was cancelled.

Two months after entering the jail, while playing handball in the exercise yard, Geidel reinjured the same knee. A nurse at the jail supplied ice to reduce the selling but refused to give him crutches. Geidel stayed in his cell for three days until he was able to walk on the leg while wearing a knee brace.

Geidel introduced in evidence portions of Dr. Johnson's deposition in which he had testified about his suggestion that plaintiff obtain x-rays of the knee at an outside hospital. Geidel refused to have the x-rays taken. Ultimately in October 1983 Geidel had surgery on his knee while incarceration at a state institution.

All of the plaintiffs contended that, because Dr. Johnson had failed to answer their amended complaint, he never denied the allegations against him. During the trial plaintiffs sought to introduce these allegations as admissions, arguing that although the county solicitor had filed an answer on behalf of other defendants, he did not represent Dr. Johnson. The court ruled that at the time the answer was filed Dr. Johnson was represented by the county solicitor and, therefore, the averments in the complaint had been properly denied.

At the conclusion of the plaintiffs' case on the health care aspects, the trial judge directed verdicts in favor of the medical personnel. He reasoned that there was no evidence to show that the medical conditions were serious; consequently plaintiffs had failed to meet their burden of proof. The court explained that plaintiffs should have provided expert evidence to show that the conditions for which they had requested treatment were serious.

On appeal, plaintiffs argue that the court erred in excluding allegations in the complaint as admissions against Dr. Johnson and in requiring that expert testimony be produced to demonstrate the seriousness of their various injuries and ailments. Alleging that they were indigent and therefore unable to pay for expert witnesses, plaintiffs also contend that the district court erred in refusing to provide funds for that purpose.

I.

We are persuaded that the district court acted within its discretion in ruling that the county solicitor had included Dr. Johnson in the answer filed on behalf of the "county defendants." Dr. Johnson's representation had been somewhat unsettled in the early stages of the litigation, apparently because various insurers were uncertain about his status as a county defendant. He had been employed as the jail physician by the county, and thus was properly considered its employee. Moreover, the answer prepared by the county solicitor responded to a paragraph in the complaint which referred specifically to Dr. Johnson.

The district court could reasonably conclude under the circumstances that the doctor was one of the persons on whose behalf the answer had been filed. In addition, we note that plaintiffs had taken Dr. Johnson's deposition and were aware of his defense well in advance of trial. The plaintiffs' contention on this phase of the case must be rejected.

II.

Our review of the medical treatment is complicated by the differences in the plaintiffs' status. Plaintiff Geidel entered the jail and remained there for some months as an unsentenced pretrial detainee. During the latter portion of his confinement, however, he was a convicted prisoner. As a convicted prisoner, the Eighth Amendment's prohibition against cruel and unusual punishment governed the conditions of his medical care. Plaintiffs Boring and Perry, at the times pertinent to this suit, were pretrial detainees.

Pretrial detainees are not within the ambit of the Eighth Amendment but are entitled to the protections of the Due Process clause. Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). The Due Process clause requires the government to provide appropriate medical care. City of Revere v. Massachusetts Hospital, 463 U.S. 239, 244, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983). As the Court observed in that case, the Due Process rights of a pretrial detainee are "at least as great as the Eighth Amendment protections available to a convicted prisoner." However, the court found no need at that time to define the extent of the duty to provide medical attention for pretrial detainees. Id. at 244. City of Revere, therefore, does not establish the standard which we must apply in the case at hand.

The Supreme Court outlined the government's obligations toward pretrial detainees in Bell v. Wolfish, observing that in evaluating complaints, "the proper inquiry is whether those conditions amount to punishment of the detainee." 441 U.S. at 535. If an aspect of detention is "reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment'." Id. at 539. The opinion cautioned that federal courts should not, "in the name of the Constitution, become increasingly enmeshed in the minutiae of prison operations." Id. at 562.

The protection afforded a sentence prisoner under the Eighth Amendment was discussed in Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). There the Court said: "Acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs" constitute cruel and unusual punishment under the Constitution. The Court emphasized that simple negligence was not the appropriate standard because "medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id. Conversely, to prevail on a negligence claim an inmate need not hurdle the constitutional standard of "deliberate indifference" to serious medical needs. Medical malpractice may give rise to a tort claim in a state court but not necessarily to a constitutional claim.

Whether the standard for pretrial detainees under the Due Process clause is the same as the articulated in Estelle v. Gamble was provoked various responses by the courts of appeals. In Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir. 1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1492, 89 L. Ed. 2d 894 (1986), the court held that "in regard to providing pretrial detainees with such basic necessities as food, living space, and medical care the minimum standard allowed by the due process clause is the same as that allowed by the eighth amendment for convicted prisoners." Id. at 1574. Courts of appeals for the Fourth, Ninth and Tenth Circuits follow the same approach. Whisenant v. Yuam, 739 F.2d 160, 163 n.4 (4th Cir. 1984); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986); Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir. 1985).

Other courts have suggested that the two standards are not identical. In Matzker v. Herr, 748 F.2d 1142, 1147 (7th Cir. 1984), the court of appeals said that a pretrial detainee's rights are violated "when a jailer fails to promptly and reasonably procure competent medical aid for a pretrial detainee who suffers a serious illness or injury while confined." That court had used similar language in an Eighth Amendment case, Wood v. Worachek, 618 F.2d 1225, 1233 (7th Cir. 1980). See also Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986). It is a matter of conjecture whether, in a given factual circumstance, there would be a difference in outcome if the Matzker test of Estelle v. Gamble, were used.

In an earlier case we determined that pretrial detainees are entitled to at least as much protection as convicted prisoners and that decisions interpreting the Eighth Amendment serve as "useful analogies." Hampton v. Holmesburg Prison Officials, 546 F.2d at 1080. In Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979), we concluded that "at a minimum, the 'deliberate indifference' standard of Estelle v. Gamble, must be met" at an institution housing pretrial detainees.

In Norris v. Frame, 585 F.2d 1183, 1187 (3d Cir. 1978), the court voiced reservations about applying the Eighth Amendment standard to a pretrial detainee and stated that the Fourteenth Amendment "must be read so as to recognize the distinct status of a pretrial detainee: a citizen not yet convicted, yet at the same time not possessing the full range of freedoms of an incarcerated citizen." The continued vitality of Norris v. Frame, however, is questionable in view of the Supreme Court's rejection of its holding in Bell v. Wolfish, 441 U.S. at 524 n.2. Norris had cited with approval the test used by the ...


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