United States District Court, E.D. Pennsylvania
August 9, 2004.
JOANNE P. LARE
CHESTER COUNTY PRISON BOARD et al.
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 PrimeCare nurse that she
would authorize the release of the records from her recent
appointment with Dr. Vernace. Id.
On June 19th, Judge MacElree sent Warden Masters a copy of Dr.
Vernace's letter along with a cover letter summarizing the
doctor's opinion that Lare should have shoulder surgery. The
Judge noted that defense counsel had asked for a conference, and
he asked Warden Masters for any information he could provide
concerning Lare's condition. Letter of Judge MacElree to Masters of 6/19/02 (Lare Ex. C). The request for information made its way
to Director of Inmate Services Ronald Phillips, who passed it
along to Ms. Herbert. On June 21st, Ms. Herbert sent Mr. Phillips
a memorandum that summarized Lare's notes of treatment. The
memorandum concluded with Lare's refusal to sign a release and
her subsequent decision to let PrimeCare see her records, but it
noted that "[t]o date we have not received these records."
Memorandum of Herbert to Phillips of 6/21/02 (Prison Board Ex.
In a letter dated June 26th that appears to be based on Ms.
Herbert's memorandum, Masters reported to Judge MacElree that
Lare "had been receiving ongoing treatment from PrimeCare" but
concluded that "[i]t should be noted . . . that Ms. Lare has
refused to sign a Release of Information so that adequate and
accurate services may be provided."*fn6 Letter of Masters to
Judge MacElree of 6/26/02 (Prison Board Ex. W).
During her final two months of incarceration, Lare had several
appointments with PrimeCare doctors and nurses. On June 21st,
Mark Evans, a PrimeCare nurse, met with Lare about monitoring her
breast cancer and asked her to authorize release of her oncology
records. Lare stated that she would "think about it and confer
with [her] spouse and let us know [her] decision." T.N. of 6/21/02. The nurse noted that "if records attained will
try to order any necessary monitoring." Id. PrimeCare received
oncology records toward the end of June, and Mr. Evans began to
make monitoring arrangements. T.N. of 6/25/02. Lare saw a
PrimeCare psychiatrist on July 16th, and he noted that "[i]nmate
is upset because of medical report that she feels that affected
her release from prison. She is not sleeping well." T.N. of
7/16/02. He raised her Elavil dosage and continued her on Zoloft.
Finally, on July 22nd, Lare met with Dr. Shah concerning her
shoulder. Dr. Shah summarized their discussion as follows:
Pt. says I can't help her much and she need[s]
surgery. Orthopedist's recommendation suggests
arthroscopic surgery followed by PT. Also orthopedic
surgeon's opinion may result in frozen shoulder if
surgery not done soon.
Pt. thinks she was examined by her physician &
physician here also & do[es] not need further
Pt. had long discussion with administration.
Pt. also says she has her surgery scheduled on July
19 but can't be done now.
Pt. is taking Celebrex for pain/Elavil.
Pt. has stopped PT on recommendation of her
F/u as needed.
T.N. of 7/22/04.
Lare was indeed discharged on August 17th. Dr. Vernace
performed arthroscopic surgery on her shoulder six days later.
Lare underwent physical therapy for two months, and Dr. Vernace
discharged her in January of 2003. Discussion
The defendants have moved for summary judgment on both Lare's
negligence and § 1983 claims. We examine each in turn.
Count I alleges that the Prison Board negligently maintained
the macadam walk upon which Lare slipped and fell on February
28th. Lare seeks damages for pain and suffering as well as
medical expenses. Compl. ¶¶ 25-29.
The Prison Board has exclusive authority over the government
and management of the Prison. 61 Pa. C.S. § 408. It is a local
agency within the meaning of Pennsylvania's Political Subdivision
Tort Claims Act, 42 Pa. C.S. § 8541 et seq., which provides
that no local agency shall be liable for any damages on account
of any injury to a person unless it comes within one of eight
exceptions set forth in § 8542. Damron v. Smith, 616 F. Supp. 424,
426 (E.D. Pa. 1986). Lare's negligence claim falls within
one of the exceptions because her injury occurred on "real
property in the possession of the local agency." §
8542(b)(3).*fn7 However, it is also governed by § 8553(c),
which authorizes her to seek actual medical expenses and damages
for pain and suffering, but she may only claim the latter if she
sustained "permanent loss of a bodily function, permanent disfigurement or
permanent dismemberment" and her medical expenses exceeded $1500.
See § 8553(c)(2)(ii).
As the Prison Board argues, Lare's claim for medical expenses
fails because she had already planned to have shoulder surgery
before she entered the Prison. She has not pointed to any
evidence suggesting that her operation on August 23, 2002 was
different from or more expensive than the procedure Dr.
Vernace contemplated in October of 2001. Thus, Lare has failed to
show that her medical expenses were any greater than they would
have been had she not fallen on the macadam walk.
Lare's pain and suffering claim founders for similar reasons.
Because there is no evidence of record that the fall increased
her medical expenses, she has failed to show that she satisfies
the $1500 statutory threshold. Moreover, the Prison Board's
medical expert, Dr. David Glaser of the University of
Pennsylvania Health System's Department of Orthopaedic Surgery,
has examined Lare and concluded that she is "not demonstrating
any permanent limitation of bodily function related to her fall"
on the Prison grounds. Letter of Glaser to Donahue of 1/6/04, at
5 (PrimeCare Ex. C). Although Lare complains that Dr. Glaser's
opinion is entitled to no weight because he was not her treating
physician and examined her after she had completed physical
therapy, the fact remains that she has not come forward with any
evidence not even an affidavit from Dr. Vernace to contest
Dr. Glaser's opinion. B. Section 1983
Lare's § 1983 claims allege that the Prison Board, PrimeCare,
and Warden Masters violated her constitutional right to adequate
medical care in their response to her shoulder injury. The
Supreme Court has held that the Eighth Amendment entitles
prisoners to treatment for serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 103-04 (1976). However, it is not enough
for Lare to show that a defendant was negligent in ignoring or
mishandling her medical need. Instead, she must show a serious
medical need, and acts or omissions that indicate deliberate
indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197
(3d Cir. 1999). Because Lare's deliberate indifference claim
against Warden Masters, an individual official, is governed by a
very different standard than her claims against the Prison Board
and PrimeCare, we examine them separately.
1. Warden Masters
Although the complaint could be more clearly worded, Lare
appears to allege that Warden Masters both directly manifested
deliberate indifference to her medical needs and failed to
supervise PrimeCare's provision of care. We agree with Masters
that he is entitled to summary judgment on both theories of
liability because Lare has not come forward with evidence showing
the existence of genuine issues of material fact that are
relevant to either dimension of her claim. a. Direct Liability
As we note above, Lare must show that she had a serious medical
need and that Warden Masters's omissions demonstrated deliberate
indifference to that need. Our Court of Appeals has found
deliberate indifference where there was "objective evidence that
[a] plaintiff had serious need for medical care," and the
defendant ignored that evidence. It has also found deliberate
indifference where "necessary medical treatment is delayed for
non-medical reasons." Natale v. Camden County Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003), quoting Nicini v.
Morra, 212 F.3d 798, 815 n. 14 (3d Cir. 2000), and Monmouth
County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
Even if Lare could show that she had a serious medical need,
there is nothing in the record to suggest that Masters ignored it
or had a hand in delaying her treatment for nonmedical reasons.
Masters had no awareness of Lare's medical condition until he
received Judge MacElree's letter in June, and the uncontroverted
evidence of record is that his role in responding to the letter
was largely ministerial. Masters testified at his deposition that
he has no actual memory of corresponding with Judge MacElree
about Lare. However, his usual practice upon receiving such an
inquiry is to refer the matter to PrimeCare and Director of
Inmate Services Ronald Phillips, and he has confirmed that he
followed this practice in Lare's case and then based his letter
on Herbert's memorandum. Masters Dep. at 48-49 (Lare Ex. G). Regardless of whether Ms. Herbert's memorandum was accurate or
not, the record offers no reason to conclude that Masters was
unreasonable in relying on it. Lare asserts that Warden Masters,
the top administrator at a prison with over eight hundred
inmates, had a constitutional duty to launch a personal
investigation of her situation once Judge MacElree wrote to him.
This argument is devoid of merit. Ms. Herbert has worked at the
Prison for sixteen years, first as a nurse and later as an
administrator, and she deals regularly with Masters and other
Prison officials. Herbert Dep. at 8, 12-13, 81-82. As we explain
in some detail below, the Prison administration is in regular
contact with PrimeCare, and there is no evidence here that
PrimeCare is systemically deficient in addressing prisoners'
needs. It was thus entirely reasonable for Masters to delegate
day-to-day responsibility over health care matters to his
deputies and to rely on Ms. Herbert's memorandum in responding to
Finally, there is absolutely no factual support for Lare's
fanciful suggestion that when Masters "had an opportunity to
stick it to Ms. Lare he did." Pl.'s Resp. at 17.
b. Supervisory Liability
To establish Warden Master's liability in his supervisory
capacity, Lare must
(1) identify the specific supervisory practice or
procedure that the supervisor failed to employ, and
show that (2) the existing custom and practice
without the identified, absent custom or procedure
created an unreasonable risk of the ultimate injury,
(3) the supervisor was aware that this unreasonable risk
existed, (4) the supervisor was indifferent to the
risk; and (5) the underling's violation resulted from
the supervisor's failure to employ that supervisory
practice or procedure.
Brown v. Muhlenberg Twp., 269 F.3d 205
, 216 (3d Cir. 2001).
Lare has not come forward with any evidence that Warden
Masters's supervision of PrimeCare was deficient. To the
contrary, the only evidence in the record suggests that the
Prison's arrangements for medical care function reasonably well
and that Masters has delegated day-to-day responsibility for
inmate health care to his deputies, who in turn maintain adequate
control over PrimeCare. As Masters explained at his deposition,
the Prison has made provisions for inmates to communicate their
medical needs to PrimeCare. Masters Dep. at 18-21. Messrs.
Phillips and McFadden have testified that the Prison has a
grievance system in place and that they regularly investigate and
resolve prisoners' complaints concerning PrimeCare. Phillips Dep.
at 25-28; McFadden Dep. at 14-15. Moreover, Prison administrators
have monthly meetings with PrimeCare representatives. Mr.
McFadden attends these meetings and provides Masters with an oral
report. PrimeCare also provides Masters with a monthly written
report. Masters Dep. at 22-24. 2. PrimeCare and the Prison Board
PrimeCare and the Prison Board are not responsible for the acts
of their employees under a theory of vicarious liability or
respondeat superior.*fn8 Monell v. New York City Dept. of
Soc. Servs., 436 U.S. 658, 691 (1978). Instead, Lare must show
that each maintains a custom or policy of sanctioning the
maintenance of prison conditions that infringe upon the
constitutional rights of the prisoners. Estate of Novack ex rel.
v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000).
An employee's acts are deemed to be the result of a custom or
policy in three circumstances. The first is where the entity or
supervisor promulgates a generally applicable statement of
policy, and the employee was simply implementing that policy. The
second is where there is no formally announced policy, but an act
of the policymaker violates federal law. The third is where
the policymaker has failed to act affirmatively at
all, [though] the need to take some action to control
the agents of the government is so obvious, and the
inadequacy of existing practice so likely to result
in the violation of constitutional rights, that the
policymaker can reasonably be said to have been
deliberately indifferent to the need.
Natale, 318 F.3d at 584, quoting Bd. of County Comm'rs of
Bryan County, Oklahoma v. Brown, 520 U.S. 397
, 417-18 (1997).
Lare has failed to show the existence of any factual issues
that, if resolved in her favor, would enable her to satisfy this
standard. Although Lare is critical of the care she received from individual doctors, physician assistants, and
nurses, there is no evidence suggesting that their alleged
malfeasance stemmed from a custom or policy of the Prison Board
At the time of Lare's incarceration, there were PrimeCare
nurses on duty at the Prison around the clock, and a physician
was on call at all times. A doctor or physician assistant was at
the Prison several days a week for approximately four hours per
visit and stayed until he or she had seen all prisoners with
appointments. Herbert Dep. at 15-16, 20-22. Ms. Herbert has
testified that one or two prisoners receive off-site medical
testing every month and that prisoners occasionally receive
operations and physical therapy, id. at 69, all of which belies
Lare's unsubstantiated suggestion that the contractor has a
policy of fobbing off sick prisoners with Band-Aids, ice packs,
and painkillers. Finally, the uncontradicted evidence in the
record is that although overcrowding at the Prison in recent
years has slowed down the day-to-day provision of health care, it
has not affected inmates' access to care or its overall quality.
McFadden Dep. at 36.
Finally, as we detail above, all of the practices and policies
that the parties have identified confirm that the Prison
administration appropriately supervises PrimeCare's performance
under the contract. Conclusion
Lare's negligence claim cannot withstand summary judgment
because she has not shown that her surgery in August of 2002 was
any different from, or more expensive than, the procedure Dr.
Vernace contemplated before she entered the Prison.
As to her § 1983 claims, there is no evidence here that Warden
Masters was deliberately indifferent to Lare's needs. His only
involvement in her case was to pass along to Judge MacElree the
information he received from Ms. Herbert, a longstanding
PrimeCare employee whose assessment he could reasonably rely upon
because she worked on a daily basis with his deputies. Moreover,
under the very high standard for municipal liability that the
Supreme Court set forth in Monell, there is no evidence here
that the Prison Board or PrimeCare maintained a custom or policy
of deliberate indifference to inmates' medical needs. The
defendants are therefore entitled to summary judgment on these
An appropriate Order and Judgment follow. ORDER
AND NOW, this 9th day of August, 2004, upon consideration of
defendants' motions for summary judgment (docket entries ## 18
and 20) and plaintiff's omnibus response thereto, and in
accordance with the accompanying Memorandum, it is hereby ORDERED
that the motions are GRANTED. JUDGMENT
AND NOW, this 9th day of August, 2004, the Court having granted
defendants' motions for summary judgment, and in accordance with
the accompanying Memorandum and Order, it is hereby ORDERED that:
1. Judgment is ENTERED in favor of defendants Chester County
Prison Board, Warden John Masters, and PrimeCare Medical, Inc;
2. The Clerk of Court shall CLOSE this action statistically.