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August 9, 2004.


The opinion of the court was delivered by: STEWART DALZELL, District Judge


Plaintiff Joanne P. Lare was an inmate at Chester County Prison for seven months in 2002. About forty days after her incarceration began, she slipped on a macadam walk and aggravated a pre-existing shoulder condition for which she underwent surgery shortly after her release. In this action, Lare asserts that the Prison Board negligently maintained the walk and that the Chester County Prison Board ("Prison Board"), Warden John Masters, and PrimeCare Medical Services, Inc. ("PrimeCare")*fn1 violated her constitutional right to receive adequate medical care for her shoulder condition.

The defendants have filed motions for summary judgment on both the negligence and civil rights claims.*fn2 For the reasons provided below, we grant the motions and enter judgment for the defendants.

  Factual Background

  On April 14, 2001, Lare struck a nine-year-old child while driving in a drunken state and fled the scene of the accident. She pleaded guilty in the Chester County Court of Common Pleas to aggravated assault while driving under the influence. On January 18, 2002, the Honorable James C. MacElree, II, sentenced her to nine to twenty three months' imprisonment and three years probation, but he stated that he would consider home detention or work release after Lare had served four months of her sentence. See N.T. at 2-3, Commonwealth v. Lare, No. 1974-01 (Chester County C.C.P. May 20, 2002). Lare entered the Prison that day.

  Lare is a breast cancer survivor and has a number of medical conditions that required attention in prison, including insulin-dependent diabetes, hypertension, and depression. Most important for the purposes of this action, at the time of her incarceration she was receiving care from Dr. Joseph V. Vernace, an orthopaedic surgeon, for rotator cuff tendonitis and AC joint impingement. On October 2, 2001, Dr. Vernace had recommended that Lare undergo shoulder surgery "at a time that is convenient for her." See Vernace Treatment Notes of 10/2/01 (PrimeCare Ex. B). Lare decided to postpone the operation because her criminal defense attorney did not believe she would be able to receive physical therapy in prison. Lare Dep. at 44-46 (Prison Board Ex. D).

  Shortly after her arrival at the Prison, Lare received a "new inmate screening" from a PrimeCare nurse. On January 24th, she saw a PrimeCare physician assistant, Jessie Kirsch, who examined her shoulder and noted that she was taking Celebrex for pain management. PrimeCare Treatment Notes of 1/24/01 (hereinafter "T.N.").

  On February 28th, Lare slipped and fell on a macadam walk as a guard escorted her to the Prison's medical facility for diabetes testing.*fn3 At her deposition, Lare testified that as she proceeded down the walk, she fell when her foot went into a semicircular indentation that was between four and six inches deep. Lare Dep. 65-67. PrimeCare nurses cleaned Lare's scrapes and gave her an ice bag for her ankle. Lare Dep. at 64-86. Lare cannot recall whether she complained at that time of increased shoulder pain, but she soon began to experience what she now characterizes as "excruciating pain constantly, day and night, 24 hours a day." Id. at 86.

  In response to Lare's complaints of increased shoulder pain, PrimeCare nurse and contract administrator Mary Ellen Herbert examined her on March 8th. Ms. Herbert referred her to Mr. Kirsch, who saw her five days later. He obtained Lare's authorization to receive her shoulder treatment records from Dr. Vernace, instructed her to perform range of motion exercises and to apply moist heat to her shoulder, and advised that she continue taking Celebrex for pain management. See T.N. of 3/8/02 & 3/13/02; Jackson Aff. ¶¶ 17-22 (PrimeCare Ex. B). Marybeth Jackson, M.D., a PrimeCare physician, reviewed and countersigned Mr. Kirsch's treatment notes. Jackson Aff. ¶ 23. Dr. Davis, a PrimeCare psychiatrist, saw Lare on April 2nd and prescribed Elavil to address her complaints of pain and sleep disturbance. N.T. of 4/2/02. Dr. Jackson examined Lare's shoulder on April 9th. She concluded that shoulder surgery was not immediately necessary and devised a treatment plan in which Lare would continue taking Celebrex and Elavil along with prescriptionstrength Tylenol. N.T. of 4/9/02; Jackson Aff. ¶¶ 26-28.

  Meanwhile, Lare and her defense counsel acted on Judge MacElree's willingness to consider releasing her after four months of imprisonment. On May 7th, she filed a petition in the Court of Common Pleas requesting release on electronic home monitoring. In the petition, as well as at a hearing before Judge MacElree on May 20th, defense counsel emphasized that home monitoring would enable Lare to obtain treatment for her shoulder. Judge MacElree took the matter under advisement and instructed Lare to file a motion for a medical furlough so that she could see Dr. Vernace and provide the Court with a full report on her shoulder. He concluded by advising Lare that
you're going to get the necessary medical care that you can pay for your shoulder. I have to emphasize the word necessary and [counsel] can explain to you what that means. That doesn't mean anything you want. It doesn't necessarily mean that it would be convenient for you because some things can be delayed, other things can't be. Until I see a doctor's report I don't know.
N.T. of 5/20/02, at 24.
  Judge MacElree duly approved Lare's medical furlough. She saw Dr. Vernace on May 23rd, and he reported to PrimeCare that Lare should receive an MRI and lab work. On June 5th, Dr. Vernace wrote to Judge MacElree and advised him as follows:
Joanne was recently seen in my office on 5/23/02 and her right shoulder pain is worse that it was late last year. She has marked diminished range of motion. I understand that she fell on 2/28/02 at the prison injuring her right shoulder further.
It is my recommendation at this time that Joanne undergo arthroscopic shoulder surgery to relieve her pain and to start a physical therapy program to increase her range of motion. Further delay will not only cause her continued pain, but may result in a frozen shoulder, which will be that much more difficult to rehab and will yield much less desirable clinical results.
Letter of Vernace to Judge MacElree of 6/5/02 (Prison Board Ex. L).

  On the same day, Judge MacElree authorized Lare's release on electronic home monitoring to begin on August 17th, at the end of her seventh month of imprisonment. See Order of 6/5/02 (Prison Board Ex. U).

  Back at the Prison, PrimeCare staff asked Lare on June 4th to provide authorization for the release of the records from her recent appointment with Dr. Vernace. According to Lare's treatment notes, she became upset and refused to sign a release. A staff member "advised this was Dr. Hoffman's*fn4 request so we could address her request appropriately but she again refused to sign."*fn5 T.N. of 6/5/02.

  Lare next saw a PrimeCare physician, Dr. Shah, on June 10th. Dr. Shah noted that he did not have Dr. Vernace's recommendations concerning her shoulder, and he deferred the creation of a comprehensive plan for Lare until he had an opportunity to view those records. He concluded that, in the interim, Lare should "continue her medication as prescribed by her physician." T.N. of 6/10/02. Later that day, Lare told a ...

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