The opinion of the court was delivered by: McCLURE, District Judge.
Plaintiff Frank George McAleese, an inmate at the Pennsylvania
State Correctional Institution at Rockview ("SCI-Rockview"),
filed this section 1983 action alleging violations of his Eighth
and Fourteenth Amendment rights by the administrative and medical
staff at Rockview. He also alleges negligence and strict
liability claims against drug and pharmaceutical companies who
supplied a drug prescribed for McAleese by the prison medical
The defendants can be categorized in four groups: (1) state
employees — David S. Owens, Pennsylvania Commissioner of
Corrections; Glen Jeffes, the former Commissioner; Robert
Freeman, the Superintendent of the State Correctional Institution
at Camp Hill, Pennsylvania ("SCI-Camp Hill") (where plaintiff was
formerly incarcerated); Thomas Fulcomer, the Superintendent of
the State Correctional Institution at Huntingdon, Pennsylvania
("SCI-Huntingdon") (where plaintiff was formerly incarcerated);
Terry Henry, Deputy Superintendent for Treatment at SCI-Camp
Hill; Thomas Meloy, M.D., a prison physician who treated
plaintiff; R. Arora, M.D., the prison physician who allegedly
initiated Isoniazid therapy for plaintiff; and Martin Suomela,
the Director of Medical Services at SCI-Huntingdon (hereafter
collectively the "state defendants"); (2) the drug companies and
pharmaceutical manufacturers whom plaintiff has sued in
negligence and strict liability — Diamond Drugs, Inc.; Rugby
Laboratories, Inc. and HPI Health Care; (3) defendants who were
named in the complaint but against whom service has never been
effected — Anthony Zumpetta and "John Doe Pharmaceutical
Company"; and (4) defendants who have been dismissed from the
case by prior order of court — Edith Burkett, M.D. and Hoo J.
In a report filed January 16, 1991, the Honorable Joseph F.
Cimini, United States Magistrate Judge, recommended the
following: (1) dismissal of all claims against HPI Health Care in
light of defense counsel's unrefuted representation that this
claim has been settled; (2) grant of summary judgment in favor of
defendant Rugby Laboratories, Inc. ("Rugby") on all claims; (3)
denial of summary judgment in favor of defendant Diamond Drugs,
Inc. ("Diamond"); and (4) grant in part, and denial in part, of
the motion for summary judgment filed by the state defendants —
denial of the motion as to defendants Meloy, Arora and Suomela
and grant of the motion as to defendants Owens, Jeffes, Freeman,
Fulcomer and Henry.
For the reasons stated below, the court will accept most, but
not all, of the magistrate judge's recommendations.
A. Standard of judicial review of magistrate report
Defendants Meloy, Arora and Suomela have filed objections to
Magistrate Judge Cimini's report, protesting his recommendation
that their motion for summary judgment be denied. No objections
have been filed to any other recommendations made by Magistrate
When no objections are filed, the court need only review a
magistrate judge's report as it in its discretion deems
appropriate. A magistrate judge's finding or ruling on a motion
or issue properly becomes the holding of the court unless
objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985).
If objections are filed to the report of a magistrate judge, we
are required to make a de novo determination of those portions
of the report or specified proposed findings or recommendations
to which objections are made. We may accept, reject, or modify,
in whole or in part, the magistrate judge's findings or
recommendations. 28 U.S.C. § 636(b)(1) and Local Rule 904.2.
Although our review is de novo, we are permitted, by statute,
to rely upon the
magistrate judge's proposed findings and recommendations to the
extent we, in the exercise of sound discretion, deem proper.
United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406,
2412, 65 L.Ed.2d 424 (1980). Accord: Goney v. Clark,
749 F.2d 5, 7 (3d Cir. 1984).
Because objections were filed only to the recommendation that
summary judgment be denied as to defendants Meloy, Arora and
Suomela, we will conduct a de novo review of only that portion
of the report. The remainder of the report we adopt as our own,
because we agree with the reasons stated and because no
objections were filed.
B. Motion for summary judgment standard
Summary judgment is appropriate if the "pleadings, depositions,
answers to interrogatories, and admissions on file, 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) (Emphasis
. . [T]he plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the
existence of an element essential to that party's
case, an on which that party will bear the burden of
proof at trial. In such a situation, there can be `no
genuine issue as to any material fact,' since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is `entitled to judgment as a matter of law' because
the nonmoving party has failed to make a sufficient
showing on an essential element of her case with
respect to which she has the burden of proof.
Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552,
91 L.Ed.2d 265 (1986).
The moving party bears the initial responsibility of stating
the basis for its motions and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. He or she can discharge that burden by "showing .
. . that there is an absence of evidence to support the nonmoving
party's case." Celotex, supra at 323 and 325, 106 S.Ct. at 2552
Issues of fact are "genuine only if a reasonable jury,
considering the evidence presented, could find for the non-moving
party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988),
citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Material facts are those
which will affect the outcome of the trial under governing law.
Anderson, supra, 477 U.S. at 248, 106 S.Ct. at 2510. In
determining whether an issue of material fact exists, the court
must consider all evidence in the light most favorable to the
non-moving party. White v. Westinghouse Electric Company,
862 F.2d 56, 59 (3d Cir. 1988).
C. Eighth Amendment standards
Plaintiff's claims against defendants Meloy, Arora and Suomela
are based on their alleged violation of his Eighth Amendment
rights. To recover under the Eighth Amendment claim, the
plaintiff must prove specific facts which show that the
defendants exhibited a "deliberate indifference" to his serious
medical needs. Deliberate indifference is more than inadvertence
or a good faith error; it is characterized by "obduracy and
wantonness." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct.
1078, 1084, 89 L.Ed.2d 251 (1986). A "serious medical need" is
one "that is so obvious that a lay person would easily recognize
the necessity for a doctor's attention." Farmer v. Carlson,
685 F. Supp. 1335, 1339 (M.D.Pa. 1988). Negligent misdiagnosis or an
inadvertent failure to provide care does not establish a
constitutional violation. Estelle v. Gamble, 429 U.S. 97,
104-106, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). "The courts
will not intervene upon allegation of mere negligence, mistake or
difference of opinion . . . For a constitutional tort to arise
and for a cause of action to be stated under section 1983,
the complainant must allege deliberate indifference to his
continued health and well-being." Bowring v. Godwin,
551 F.2d 44, 48 (4th Cir. 1977). There must be proof that the conduct
alleged was deliberate and intentional. Hampton v. Holmesburg,
546 F.2d 1077, 1081 (3d Cir. 1976).
This test "affords considerable latitude to prison medical
authorities in the diagnosis and treatment of the medical
problems of inmate patients. Courts will `disavow any attempt to
second guess the propriety or adequacy of a particular course of
treatment . . . which remains a question of sound professional
judgment.'" Inmates of Allegheny County Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979), quoting Bowring, supra, 551 F.2d
Although the courts generally are reluctant to find an Eighth
Amendment violation if a prison inmate has received medical
treatment of some kind, that reluctance does not mean that
"deliberate indifference" can never be found if a course of
treatment has been followed. If the treatment rendered was so
inappropriate or inadequate as to "evidence intentional
maltreatment" it violates the Eighth Amendment. Smith v.
Jenkins, 919 F.2d 90, 93 (8th Cir. 1990), citing Cotton v.
Hutto, 540 F.2d 412, 414 ...