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
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
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.
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
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. ¶¶
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
Letter of Vernace to Judge MacElree of 6/5/02 (Prison Board Ex.
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 ...