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January 18, 1996

JOYCE D. LITTLE, Plaintiff
LYCOMING COUNTY, et al., Defendants

The opinion of the court was delivered by: MCCLURE

 January 18, 1996


 Plaintiff Joyce D. Little filed this section 1983 *fn1" action against Lycoming County, Pennsylvania (the county), the Lycoming County Prison Board (the board), Lycoming County Prison Warden David A. Desmond, The Williamsport Hospital (the hospital), and various Physicians who render care at the prison and are identified originally by plaintiff as Drs. John Doe # 1, # 2 and # 3 and various nurses who render care at the same facility and are identified originally by plaintiff as "Nurse Elaine," "Nurse Denise" and "Nurse John Doe."

 Plaintiff asserts claims under the Eighth Amendment to the United States Constitution and under the "Americans With Disabilities Act of 1990," (ADA) 42 U.S.C. §§ 12101-12134.

 Certain counts of plaintiff's original complaint were dismissed, and plaintiff was granted leave to file an amended complaint. Plaintiff filed an amended complaint on May 22, 1995 in which she alleges the basis for her remaining claims asserted under the Eighth Amendment and the ADA.

 Currently before the court are: 1) a motion by the county defendants to dismiss or in the alternative for summary judgment on plaintiff's claims (record document no. 8); 2) a motion by the hospital and other related defendants to dismiss or, in the alternative, for summary judgment in their favor (record document no. 12); and 3) plaintiff's motion urging the denial of defendants' pending motions and entry of judgment on the pleadings in her favor (record document no. 16).

 For the reasons which follow, we will enter an order: 1) granting the motions of both sets of defendants for judgment in their favor; and 2) denying plaintiff's motion.


 Summary judgment standard

 Defendants move, in the alternative, for dismissal of the complaint or for summary judgment in favor. As discussed below, defendants' motions can be decided based on the pleadings alone and plaintiff's complaint dismissed as untimely.

 We do, however, for the sake of thoroughness and in the interest of allowing the pro se plaintiff every opportunity to litigate the merits of her case, consider plaintiff's claims on the merits on the basis of the record before us.

 Plaintiff does not oppose the consideration of the pending motions as motions for summary judgment and has, in fact, filed her own affidavit *fn2" in opposition to the pending motions as well as her own motion for judgment on the pleadings in her favor. Further, given the nature of plaintiff's claims and the fact that her entire case rests essentially on her medical records while incarcerated, all of which have been produced by defendant and made a part of this record, it is not unjust to consider the pending motions as motions for summary judgment. See: Fed.R.Civ.P. 12(b)(6).

 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)

. . . The 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, and 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, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (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, 477 U.S. at 323 and 325.

 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, 693-94 (3d Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. 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).

 Statute of limitations

 Claims arising under section 1983 are subject to a two-year statute of limitations. Any claims based on events which predate the filing date by more than two years are time-barred. Federal courts apply the state personal injury statute of limitations in section 1983 actions, Wilson v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). Pennsylvania's statute of limitations applies here, and under it, the time limit for filing a section 1983 claim is two years. Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985) and 42 Pa. Cons. Stat. Ann. § 5524.

 Plaintiff was incarcerated in the Lycoming County Prison from February 4, 1993 through May 7, 1993. The complaint was filed on March 16, 1995. All of plaintiff's allegations pre-date the filing of her complaint by more than two years. The last date on which she alleges the denial of adequate medical care is March 1, 1993.

 No legitimate basis for tolling the statute of limitations with respect to plaintiff's Eighth Amendment claims for the denial of medical care has been alleged or is indicated in the record before us. Since all such claims predate the March 16, 1995 filing date by more than two years, they are time-barred and could be dismissed on that basis alone. We will, however, in light of plaintiff's pro se status, consider such claims on the merits.

 Plaintiff's claims asserted under the ADA and her constitutional claim arising out of her alleged exposure to second-hand smoke are another matter. Such claims are arguably of a continuing nature and could reasonably be construed as having existed throughout plaintiff's term of incarceration. Those claims are, therefore, not time-barred.

 Section 1983 standards

 To state a viable section 1983 claim, a plaintiff must allege that the conduct complained of was committed by a person acting under color of state law and that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or by laws of the United States. Cohen v. City of Philadelphia, 736 F.2d 81, 83 (3d Cir.), cert. denied, 469 U.S. 1019, 83 L. Ed. 2d 360, 105 S. Ct. 434 (1984). Private physicians or hospitals which provide medical services to inmates pursuant to a contract with the prison may be held liable in a civil rights suit. West v. Atkins, 487 U.S. 42, 54, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988).

 A defendant's conduct must have a close causal connection to plaintiff's injury for section 1983 liability to attach. Martinez v. California, 444 U.S. 277, 285, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980). Negligent conduct is not actionable under section 1983. Davidson v. Cannon, 474 U.S. 344, 347-48, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986) and Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986).

 Eighth Amendment standards

 To state an Eighth Amendment claim for denial of medical care, the plaintiff must prove specific facts which show that the defendants exhibited a "deliberate indifference" to her serious medical needs.

 The standard established by the United States Supreme Court in Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) and its progeny has two prongs: 1) it requires deliberate indifference on the part of the prison officials and 2) it requires the prisoner's medical needs to be serious. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) cert. denied, 486 U.S. 1006, 100 L. Ed. 2d 195, 108 S. Ct. 1731 (1988).

 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, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986). Negligent misdiagnosis or an inadvertent failure to provide care does not establish a constitutional violation. Estelle, 429 U.S. 97, 104-106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (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).

 With regard to the deliberate indifference prong, "'It is only such [deliberate] indifference' that can violate the Eighth Amendment; allegations of 'inadvertent failure to provide adequate medical care,' or of a 'negligent ... diagnosis' simply fail to establish the requisite culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991) (quoting Estelle, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (Other citations omitted.).

 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, 551 F.2d at 48. See also: Ellison v. Scheipe, 570 F. Supp. 1361, 1363 (E.D.Pa. 1983) ("prison officials cannot be required to second guess the medical judgment of the physician.")

 Along the same lines, evidence which shows only that an inmate disagrees with a diagnosis or the course of treatment selected for him are not sufficient. Estelle, 429 U.S. at 105-06. "The key whether defendants have provided plaintiff with some type of treatment, regardless of whether it is what plaintiff desires." Lamb v. Maschner, 633 F. Supp. 351, 353 (D.Kan. 1986). See also: Tulibacki v. Prison Health Services, 1995 U.S. Dist. LEXIS 17928, 1995 WL 710595 at * 1 (E.D.Pa. Nov. 29, 1995.).

 Alleged Eighth Amendment violations

 Plaintiff's Eighth Amendment claims are based on the medical care which she allegedly received or failed to receive while ...

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