United States District Court, Middle District of Pennsylvania
July 10, 1991
FRANK GEORGE MCALEESE, PLAINTIFF,
DAVID S. OWENS, ET AL., DEFENDANTS.
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
Plaintiff alleges after he tested positive for tuberculosis in
September of 1986 (while he was incarcerated at SCI-Camp
Hill), the medical staff prescribed a regimen of chemotherapy
which included a drug called Isoniazid, but failed to warn him of
its possible side effects. He further alleges that as a result of
ingesting the Isoniazid he suffered vision problems which he
reported to the medical staff. Plaintiff contends, among other
things, that the state defendants followed a policy of
withholding label warnings and other pertinent information from
inmates taking prescription drugs and further contends that he
was not permitted to examine the container which the Isoniazid
came in or review cautionary instructions concerning its use.
Following his transfer to SCI-Huntingdon, he continued on the
Isoniazid regimen and allegedly continued to suffer vision
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 (8th Cir. 1976), and Green v.
Carlson, 581 F.2d 669, 675 (7th Cir. 1978), aff'd,
446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
D. Motion for summary judgment by Drs. Meloy and Arora
Magistrate Judge Cimini bases his recommendation that summary
judgment be denied as to Drs. Meloy and Arora and Medical
Director Suomela*fn1 on a finding that material issues of fact
remain as to their alleged role in denying plaintiff pertinent
information about the possible side effects of Isoniazid. We
reject that recommendation and find that both the Magistrate
Judge and the parties have failed to focus on the central
issue,*fn2 which is whether McAleese has demonstrated facts
sufficient to show a violation of his constitutional rights due
to defendants' alleged failure to convey complete and accurate
information about the potential side effects of Isoniazid and/or
to discontinue the course of medication after McAleese began
reporting vision problems.
The Third Circuit addressed these issues in White v.
Napoleon, 897 F.2d 103, 111-14 (3d Cir. 1990). The court held
that under the due process clause of the Fourteenth Amendment,
"convicted prisoners, like involuntarily committed mental
patients, retain a limited right to refuse treatment and a
related right to be informed of the proposed treatment and viable
alternatives." This right is circumscribed by "legitimate
countervailing State interests." "[A] prison may compel a
prisoner to accept treatment when prison officials, in the
exercise of professional judgment, deem it necessary to carry out
valid medical or penological objectives." White, supra, 897
F.2d at 113. Additionally, the judgment of prison authorities is
presumed valid unless plaintiff can demonstrate that the
procedure followed was "such a substantial departure from
accepted professional judgment, practice or standards as to
demonstrate that the person responsible actually did not base the
decision on such judgment." White, supra, 897 F.2d at 113. Cf.
Youngberg v. Romeo, 457 U.S. 307, 323, 102 S.Ct. 2452, 2462, 73
L.Ed.2d 28 (1982) and Rennie v.
Klein, 720 F.2d 266, 274 (3d Cir. 1983). The Third Circuit
A prisoner's right to refuse treatment is useless
without knowledge of the proposed treatment.
Prisoners have a right to such information as is
reasonably necessary to make an informed decision to
accept or reject proposed treatment, as well as a
reasonable explanation of the viable alternative
treatments that can be made available in a prison
setting. We recognize that prison doctor's task in
communicating with their patients may be difficult.
Prisoners' questions may range from reasonable to
obstructionist. Prisoners may not bring treatment to
a halt, insisting on answers to questions that are
unreasonable, time-wasting or intended to turn the
doctor-patient relationship into a battle for control
Like the right to refuse treatment, a prisoner's
right to know must be balanced against valid State
interests. One such interest is in providing for the
basic needs of inmates — food, shelter, clothing and
medical care. The medical care of prison inmates is
entrusted to prison doctors, to whose judgment and
training courts owe substantial deference. Courts are
ill-equipped to specify the medical information that
must be provided to prison patients. As in the case
of forced treatment of mental patients, courts must
exercise a limited form of review. A prison doctor's
decision to refuse to answer an inmate's questions
about treatment will be presumed valid unless it is
such a substantial departure from professional
judgment, practice or standards as to demonstrate
that the doctor did not base the decision on such a
judgment. In exercising judgment, however, the doctor
must consider a prisoner's reasonable need to make an
informed decision to accept or reject treatment, as
well as his need to know any viable alternatives that
can be made available in prison.
White, supra, 897 F.2d at 113 (emphasis supplied).
Applying these criteria to the facts before us, we find that
the treating physicians have demonstrated valid medical reasons
for prescribing Isoniazid without warning McAleese of possible
adverse consequences to his eyesight, and that McAleese's
attempts to rebut this showing have been unsuccessful.
Evidence adduced by the defendants on this issue includes an
affidavit from Thomas R. Meloy, M.D., Medical Director at
SCI-Huntingdon, in which he states, inter alia, that the
standard, and accepted, preventive therapy for a patient in
McAleese's position, (who has tested positive on a skin test for
tuberculosis but has a normal chest x-ray) is a "regime of nine
to twelve months of INH" (Isoniazid); that McAleese had been
started on this course of treatment while he was incarcerated at
SCI-Camp Hill and was continued on it after his transfer to
SCI-Huntingdon in November, 1986 "so that he would receive the
twelve-month regimen"; that as a physician, Meloy has been
"prescribing Isoniazid for tuberculosis-related problems for over
twenty years" and that Isoniazid is currently the only effective
tuberculosis preventive medication available. Meloy states that
other medications used in combination with, or as a substitute
for, Isoniazid are not tuberculosis-preventive, but are instead
intended for the treatment of actual tuberculosis disease and do
not have the preventive properties Isoniazid possesses.*fn3 Dr.
Meloy further stated:
20. In over twenty years of prescribing Isoniazid,
I have only encountered an inmate's adverse reaction
to Isoniazid once. That one time, the inmate
developed an elevated liver enzyme level.
21. I have never seen an inmate who has developed
vision problems as a result
of being administered Isoniazid. Isoniazid is not a
prime suspect of vision problems in users. Rather,
the incidence of Isoniazid-induced adverse side
effects resulting in visual damage are quite rare.
23. On November 21, 1986, the first time I saw
McAleese, I prescribed the Isoniazid continued
because of the previous [tuberculosis] tests. At that
time, McAleese stated that he was having some visual
difficulty. Because of his complaint, I referred him
to Dr. Burgess, the institution's optometrist, for a
24. McAleese was examined for his visual complaints
by Dr. Burgess on January 15, 1987.
25. I next saw McAleese in regard to his visual
complaints on December 2, 1986. At that time,
McAleese said he felt his problem may be related to
the Isoniazid. I suggested that the Isoniazid be
discontinued. McAleese, however, did not want to stop
taking the medication.*fn4
26. On December 21, 1986, I again saw McAleese and
ordered a 30 day refill of the Isoniazid
prescription. At that time, McAleese did not complain
of blurred vision.
27. On January 25, 1987, I ordered McAleese's
Isoniazid prescription renewed. McAleese did not
complain of vision problems at this time.
28. On April 20, 1987, I again renewed McAleese's
prescription of Isoniazid. McAleese did not complain
of vision problems at that time although he did
complain of other physical problems.
29. I again authorized the refill of McAleese's
Isoniazid prescription on May 31, 1987.
30. On June 5, 1987, I examined McAleese in regard
to complaints of blurred vision. Because of his
complaints, I referred McAleese to Dr. Agnes Bunyor,
32. The final contact I had in regard to McAleese's
vision problems was on July 29, 1987 when I refilled
his Isoniazid prescription for a thirty-day period.
35. During the period that Isoniazid was
prescribed to McAleese and through my examination and
the examination of two outside physicians, there was
never any indication that Isoniazid was the cause of
McAleese's alleged eye problems.
36. If any inmate wishes to read literature
regarding a medication being prescribed to him, he
only needs to ask for such information. The infirmary
at SCI-Huntingdon has a Physicians Desk Reference
manual available for inmate's consultation.
37. During the time I treated McAleese, he never
asked me to see information regarding the medicinal
38. I acted in good faith at all time (sic) when
dealing with McAleese with the sole intent of
treating his actual physical ailments.
(Record Document No. 113, Exhibit "B". Emphasis supplied.) Dr.
Meloy's statements about the course of treatment which McAleese
receiving while he was on the Isoniazid regime at SCI-Huntingdon
are consistent with his medical records. (Record Document No.
113, Exhibit "H")
Defendants also submitted an affidavit from Hugh Rogers, M.D.,
a physician under contract with the Pennsylvania Department of
Corrections to provide medical services to inmates at
SCI-Rockview/Dr. Rogers reaffirms many of the statements made by
Dr. Meloy regarding the advisability of the course of treatment
on Isoniazid prescribed for McAleese. Dr. Rogers further states
8. In my forty-three years of medical practice and
through countless prescriptions of Isoniazid, I have
never observed one instance in which a patient has
experienced vision problems
induced by the administration of Isoniazid.
10. McAleese's medical records indicate that he had
been examined by Dr. Lenworth Johnson of the Hershey
Medical Center on July 20, 1988.
11. Dr. Johnson states. . . . `Mr. McAleese does
not have optic neuropathy from Isoniazid.'
12. The report of Dr. Johnson is unmistakably
clear. . . . There is simply no reason to believe
that Isoniazid caused any visual problem to McAleese
as there is no objective evidence of any real or
disease-related injury presented in the report.
(Record Document No. 113, Exhibit "D". Emphasis supplied.)
Defendants' evidence in support of their motion may be
summarized as follows. Both physicians stated that Isoniazid is
standard treatment for a patient with McAleese's symptoms, is
commonly used for the purpose for which it was prescribed, that
there are no alternative medications currently available which
function as a preventive treatment and that complications causing
visual problems from this course of treatment are virtually
unheard of, even though it is commonly prescribed. Prison
physicians monitored McAleese's course of treatment, took his
complaints of vision problems seriously and referred him for
further evaluation when the circumstances warranted. (Record
Document No. 113, Exhibit "H").
The evidence presented by McAleese to counter defendants'
motion establishes nothing more than that an inference that a
difference of opinion among medical professionals is possible,
i.e. that the advisability of continuing a patient on a regime of
Isoniazid may be questioned if the patient experiences vision
problems. Even this we are not certain is justified by the
evidence presented by plaintiff,*fn5 but, in the spirit of
giving plaintiff the benefit of all reasonable inferences which
might be drawn from the evidence, we will presume it to be an
established fact. It is, nevertheless, insufficient to prove a
violation of plaintiff's constitutional right to informed
treatment under White.
Although plaintiff has submitted some medical evidence*fn6
substantiating his claim
that use of Isoniazid has been linked to vision damage and that
he suffers from optical damage, that alone, is insufficient to
establish a constitutional claim.
In White, the court was careful to note that its decision did
not limit or abrogate traditional principles requiring that
courts accord considerable deference to physicians' professional
judgment, particularly in the prison setting, and stressed that
it is not the court's role to second-guess the professional
decisions or to engage in its own risk-benefit analysis. That is
precisely what this court, or the trier of fact, would have to do
if we were to allow McAleese to proceed to trial against the
physicians. The trier of fact would have to decide the propriety
of their decision to continue McAleese on Isoniazid in the face
of a risk, possibly slight, possibly substantial, that he would
suffer a documented, but apparently rare, side effect from the
Allowing the case to proceed to trial on this basis would
result in our converting a common law tort, alleged medical
malpractice, into a constitutional violation, and that is a
result that the Third Circuit did not intend. Its purpose was to
recognize that inmates have a constitutional avenue for
challenging medical care if the conduct of the treating physician
falls so far outside the bounds of professional conduct that it
does not constitute an exercise of professional discretion at
This impression is reenforced when we compare the facts
presented here with those alleged in White. The gravamen of
White's complaint was that the prison physician had deliberately
refused to tell him whether the medication prescribed for him
contained penicillin. This outright refusal to convey information
specifically requested by the inmate could not readily be
justified on any medical or professional basis and created the
possibility of serious health risk to White, since he could have
suffered life-threatening complications due to a penicillin
allergy. This refusal, the Third Circuit found, "was so far
outside the realm of professional judgment as to demonstrate that
Dr. Napoleon was not exercising professional judgment at all."
White, supra, 897 F.2d at 114. The Third Circuit did not
foreclose the possibility that Dr. Napoleon could prevail on a
motion for summary judgment if he demonstrated valid medical
reasons for withholding the information White requested. White,
supra, 897 F.2d at 114.
Based on these distinctions and on the nature of the right
recognized by the Third Circuit, we find that McAleese has failed
to demonstrate a viable claim for violation of a constitutional
right and on that basis will enter an order directing summary
judgment in favor of the physicians, Drs. Meloy and Arora.
E. Motion for summary judgment by defendant Suomela
We conclude that summary judgment in favor of defendant Suomela
is also appropriate, although for different reasons. Suomela
states in an affidavit filed in support of defendants' motion for
summary judgement, that as Health Care Administrator, his duties
consist, among other
things, of ensuring that medical care is available to inmates. He
further states that he is not a physician, and does not prescribe
medication or make decisions regarding the course of treatment
prescribed for inmates and that such decisions are left to the
medical staff. (Record Document No. 113, Exhibit "A") We could
find no evidence in the record controverting these statements.
An individual cannot be held liable in a section 1983 action
unless he caused or participated in an alleged violation of
constitutional rights. Section 1983 claims cannot be based on
respondeat superior. Without a showing of direct responsibility
for an alleged violation, liability will not lie against a
supervisory official. "A causal connection, or an affirmative
link, between the misconduct complained of and the official sued
is necessary." Campbell v. Lane, No. 89-C-8289 (E.D.Ill. Oct.
25, 1990) (available on WESTLAW at 1990 WL 171598) citing
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). See
also: Duncan v. Duckworth, 644 F.2d 653, 656 (7th Cir. 1981)
(Plaintiff could not recover against prison warden for alleged
Eighth Amendment violations, since it was unlikely that he
participated in day-to-day decisions leading to the alleged delay
in plaintiff receiving treatment) and Ford v. Lane, 714 F. Supp. 310,
315-16 (N.D.Ill. 1989) (Prison warden and director of
Department of Corrections could not be held responsible, based on
their supervisory positions, for medical care alleged to be
If supervisory individuals have knowledge of a constitutional
violation and fail to act, their inaction may constitute a basis
for liability. See, e.g., Chapman v. Pickett, 801 F.2d 912, 918
(7th Cir. 1986) and Smith v. Rowe, 761 F.2d 360, 368-69 (7th
As stated above, we view the issue in this case as whether
failure of a physician to inform an inmate of the risks
associated with medication he is administered can constitute
deliberate indifference under the Eighth Amendment. We do not see
a basis in the record for holding Suomela, the Health Care
Administrator, liable under the circumstances, since he is not a
physician and was not in a position to assess on a case-by-case
basis whether critical information about potential side effects
was withheld from inmates. Although plaintiff alleges that the
medical staff routinely does not disclose such information to
inmates, we view the issue as whether, in this case, the
information withheld was so critical — the potential side effects
so serious — that to withhold such information under the
circumstances constituted deliberate indifference to plaintiff's
welfare. We perceive no basis for a finding of individual
involvement on the part of the health care administrator, and,
accordingly, find that summary judgment in his favor is
An order will be entered consistent with this memorandum.
For the reasons stated in the accompanying memorandum, IT IS
1. The court adopts the report of Magistrate Judge Joseph F.
Cimini (Record Document No. 27, filed January 16, 1991) and
follows the recommendations made therein to the extent stated in
this order and the accompanying memorandum.
2. All claims against defendant HPI Health Care are dismissed
with prejudice in light of the uncontested representations that a
settlement has been effected.
3. The motion for summary judgment filed by defendant Rugby
Laboratories, Inc. ("Rugby") is granted. Summary judgment is
entered in favor of Rugby on all claims and cross-claims.
4. The motion for summary judgment filed by defendant Diamond
Drugs, Inc. is denied.
5. The motion for summary judgment filed by defendants David S.
Owens, Pennsylvania Commissioner of Corrections; Glen Jeffes, the
former Commissioner; Robert Freeman, Superintendent of the State
Correctional Institution at Camp Hill, Pennsylvania; Thomas
Fulcomer, the Superintendent of the State Correctional
Institution at Huntingdon, Pennsylvania;
Thomas Meloy, M.D.; R. Arora, M.D., and Martin Suomela is
6. The Clerk of Court is directed to defer entry of summary
judgment in favor of any defendant until conclusion of the entire
7. Plaintiff's claims against defendants Anthony Zumpetta and
John Doe Pharmaceutical Company are dismissed pursuant to
Fed.R.Civ.P. 41(b) for failure to prosecute.
8. This case is remanded to Magistrate Judge Cimini for further
proceedings consistent with this order.
9. The Clerk of Court is directed to send a copy of this order
and the accompanying memorandum to Magistrate Judge Cimini.