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July 10, 1991


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 staff.

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. Cheung, M.D.

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 Judge Cimini.

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 and 2553.

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 at 48.

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 ...

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