United States District Court, M.D. Pennsylvania
September 2, 2005.
IAN SEAN WOOD, Plaintiff
DR. ROMEO, et al., Defendants.
The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
This is a civil rights action filed pursuant to
42 U.S.C. § 1983. Plaintiff, Ian Sean Wood, is an inmate currently confined
in the State Correctional Institution, Coal-Township,
Pennsylvania. He complains of incidents which occurred at his
former place of confinement, the Rockview State Correctional
Institution, Bellefonte, Pennsylvania ("SCI-Rockview"). Named as
defendants in the complaint are Dr. Joseph Romeo, Dr. John J.
Schietroma, and the SCI-Rockview Medical Administration.*fn1 Plaintiff claims that after being attacked by another inmate on
December 3, 2002, defendants were deliberately indifferent to his
serious medical needs resulting from an alleged injury to his
face and eye, in violation of his Eighth Amendment rights. (Doc.
No. 1, complaint). Presently before the court is a motion dismiss
the complaint, filed by defendant Schietroma (Doc. No. 11), and a
motion to dismiss and for summary judgment,*fn2 filed by
defendant Romeo (Doc. No. 22). These motions have been fully
briefed and are ripe for disposition. For the reasons that
follow, the motions will be granted.
Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
courts generally consider only the allegations in the complaint,
exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). All
material allegations of the complaint must be accepted by the Court as true and construed in favor of the
plaintiff. Allah vs. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000); Shaev vs. Saper, 320 F.3d 373, 375 (3d Cir. 2003). Claims
may be dismissed pursuant to a Rule 12(b)(6) motion only if the
plaintiff cannot demonstrate any set of facts that would entitle
him to relief. Conley vs. Gibson, 355 U.S. 41, 45-46 (1957); Lum
vs. Bank of America, 361 F.3d 217, 223 (3d Cir. 2004). However,
the Court is not required to accept legal conclusions, either
alleged or inferred, from the pleaded facts. Morse vs. Lower
Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). In Nami
vs. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), the Court of Appeals
for the Third Circuit added that when considering a motion to
dismiss based on failure to state a claim, a court should "not
inquire whether the plaintiffs will ultimately prevail, only
whether they are entitled to offer evidence to support their
claims." When an unrepresented party is confronted by a motion to
dismiss, the deciding court must be mindful of the well-settled
principle that pro se complaints should be liberally construed,
Haines vs. Kerner, 404 U.S. 519, 520 (1972), and that pro se
litigants are to be granted leave to file a curative amended
complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be
inequitable or futile. Alston vs. Parker, 363 F.3d 229, 235 (3d
Cir. 2004). However, a complaint that sets forth facts which
affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend. Grayson vs.
Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002); see
also Estelle vs. Gamble, 429 U.S. 97, 107-108 (1976).
With respect to a motion for summary judgment, Federal Rule of
Civil Procedure 56(c) requires the court to render summary
judgment ". . . forthwith 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). "[T]his standard
provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson vs.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). A disputed fact is "material" if proof of its existence or
nonexistence would affect the outcome of the case under
applicable substantive law. Anderson, 477 U.S. at 248; Gray vs.
York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An
issue of material fact is "genuine" if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 257; Brenner vs. Local 514, United
Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283,
1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material
fact, the court must view the facts and all reasonable inferences
in favor of the nonmoving party. Moore vs. Tartler, 986 F.2d 682
(3d Cir. 1993); Clement vs. Consolidated Rail Corporation,
963 F.2d 599, 600 (3d Cir. 1992); White vs. Westinghouse Electric
Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid
summary judgment, however, the nonmoving party may not rest on
the unsubstantiated allegations of his or her pleadings. When the
party seeking summary judgment satisfies its burden under Rule
56(c) of identifying evidence which demonstrates the absence of a
genuine issue of material fact, the nonmoving party is required
by Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to
interrogatories or the like in order to demonstrate specific
material facts which give rise to a genuine issue. Celotex
Corporation vs. Catrett, 477 U.S. 317, 324 (1986). The party
opposing the motion "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Electric Industrial Co. vs. Zenith Radio, 475 U.S. 574, 586
(1986). When Rule 56(e) shifts the burden of production to the
nonmoving party, that party must produce evidence to show the
existence of every element essential to its case which it bears
the burden of proving at trial, for "a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Celotex,
477 U.S. at 323. See Harter vs. G.A.F. Corp., 967 F.2d 846, 851 (3d
Statement of Facts
On the morning of December 3, 2002, plaintiff was struck in the
left eye with a combination lock when he was attacked by another
inmate. (Doc. No 1, complaint). He sustained serious bodily harm
to his face and left eye. Id. He was immediately taken to the
SCI-Rockview Medical Department, where at 9:50 a.m., he was evaluated by physician's assistant Bridget Kelly
("PA Kelly"). (Id., Doc. No. 28, Ex. A, Progress Notes dated
12/3/02). PA Kelly ordered Motrin for pain, ice for swelling,
x-rays and around the clock observation. (Doc. No. 28, Ex. A,
Progress Notes dated 12/3/04, Ex. C, Physician's Orders dated
12/3/04). Plaintiff was monitored on an hourly basis by the
nursing staff. Id. At 3:30 pm, he was seen by Dr. Symons. Id.
Dr. Symons ordered a CT Scan, which was performed on the morning
of December 4, 2002. (Doc. No. 28, Ex. A, Progress Notes dated
12/3/02, Ex. B, copy of CT. Scan). The CT Scan confirmed multiple
left sided facial fractures including "a blow-out fracture of the
left orbital floor suspicious for entrapment of orbital contents.
On December 4, 2002, Dr. Symons ordered an ophthalmology exam
and a referral to Dr. Schietroma, noting "plastic/ocular
reconstruction." (Doc. No. 28, Ex. A, Progress Notes dated
12/4/02). He also ordered plaintiff to remain in the infirmary.
(Doc. No. 28, Ex. C, Physician's orders dated 12/5/02).
On December 6, 2002, plaintiff was seen by Dr. Fisher, an
ophthalmologist. (Doc. No. 28, Ex. B, Consultation Record dated
12/4/02). Dr. Fisher recommended that plaintiff be seen immediately by an oral surgeon and that he have a retinal
consult. Id. Dr. Fisher told plaintiff that he could not
perform the type of surgery that plaintiff needed, but that his
partner, Dr. Schietroma, could. (Doc. No. 1, complaint at p. 2).
On December 8, 2002, Dr. Symons spoke with Dr. Collins, who
explained that plaintiff had a prior injury in the early 1990's
which had required extensive reconstruction involving the left
orbit and left ethmoid sinus, and because of the extent of the
current injury, plaintiff should be referred, as soon as
possible, to Dr. Schietroma, an Ophthalmic Plastic and
Reconstructive Surgeon, in Camp Hill, Pennsylvania. (Doc. No. 28,
Ex. A, Progress Notes dated 12/9/02).
On December 10, 2002, plaintiff was transferred from
SCI-Rockview to SCI-Camp Hill, in anticipation of his surgery.
(Doc. No. 28, Ex. C, Physician's Orders dated 12/10/02). Upon
entry into SCI-Camp Hill, plaintiff was admitted into the
infirmary under around the clock observation. Id.
On December 11, 2002, plaintiff was transported to Pinnacle
Health Hospital, where Dr. Schietroma repaired plaintiff's left
orbital floor and medial wall fractures with a metal mesh implant, as well as tamponed a CSF (Cerebrospinal Fluid) leak
with free orbital fat. (Doc. No. 28, Ex. B, Operative Report
dated 12/11/02; Summary Report dated 12/11/02; Consultation
Report dated 12/11/02).
On December 12, 2002, plaintiff was seen by Dr. Schietroma for
a follow-up examination in the morning and afternoon. (Doc. No.
28, Ex. B, Summary Report dated 12/12/02). On December 12, 2002,
Dr. Schietroma discharged the plaintiff, noting the following:
He does not appear to have a CSF leak. I had him keep
his chin down on several occasions during the day and
he had drainage from the left nose consisting of only
two drops on one occasion and this may not been CSF
fluid. He does not appear to have a spinal headache.
I initially had Mr. Wood on Kefzol IV
postoperatively. On the morning afer surgery he
complained of diffuse itching of the skin. I switched
him to Cipro 500 p.o.b.i.b.
I am discharging Mr. Wood on Cipro 500 p.o.b.i.d.,
Bacitracin ophthalmic ointment to the skin incision
site at the lateral canthus and in the left eye three
times a day, and ice compress to the left eye for the
remainder of December 12, 2002 and then switching to
warm compresses four times a day to the left eye for
one week. I asked that he tilt his head forward a
number of time throughout the day to make sure that
there is not CSF leak.
In light of the CSF leak it is probably worth keeping
him in the infirmary for one week to make sure that
he does not develop a fever or signs of meningitis. I
will forward a copy of this letter to Wexford should
he be transferred. I will see him for follow-up in
State College on December 20th or 21st.
(Doc. No. 28, Ex. B, letter to Dr. Young, SCI-Camp Hill Medical
Upon his return to SCI-Camp Hill, plaintiff was admitted to the
infirmary. (Doc. No. 28, Ex. A, Progress Notes dated 12/12/02).
On December 17, 2002, plaintiff was returned to SCI-Rockview.
(Doc. No. 28, Ex. A, Progress Notes dated 12/17/02).
Plaintiff saw Dr. Schietroma for follow-up examinations on
December 20, 2002, January 17, 2003 and April 18, 2003. (Doc. No.
28, Ex. B, Consultation Records). At his April 18, 2003,
follow-up visit, plaintiff complained of "bilateral nasal
discharge" in which he was "treated with a fourteen-day course of
oral antibiotics without success." (Doc. No. 28, Ex. B, letter
from Dr. Schietroma to SCI-Rockview Medical Department). Although
an x-ray taken on March 5, 2003, "did not indicate sinusitis",
Dr. Schietroma suggested plaintiff have a post-operative CT Scan
"in light of the possible sinusitis and the possibility of
herniated soft tissue from the orbit into the maxillary sinus."
Id. On May 13, 2003, plaintiff underwent a post-surgical CT Scan.
(Doc. No. 28, Ex. B, CT Scan). It showed that "there are now post
surgical changes present in relation to the inferomedial aspect
of the left orbital floor" in that "there continues to be a
sizable bony defect in within the inferior wall laterally" and
"there is evidence of prolapse of left orbital contents into the
superior aspect of the maxillary sinus." Id.
On August 22, 2003, plaintiff was seen by Dr. Fisher for
complaints of double vision. (Doc. No. 28, Ex. A, Progress Notes
dated 8/22/03). Dr. Fisher recommended a consult with an ocular
plastic surgeon. Id. On October 3, 2003, plaintiff again
reported double vision to the SCI-Rockview medical staff. (Doc.
No. 28, Ex. A, Progress Notes dated 10/3/03).
On October 16, 2003, Plaintiff was seen by Dr. Romeo concerning
his double vision. (Doc. No. 28, Ex. B, Progress Notes dated
10/16/03). Dr. Romeo wrote a consult for an ocular plastic
surgeon. (Doc. No. 28, Ex. A, Progress Notes dated 10/16/03; Ex.
B, Consultation Authorization Letter dated 11/11/03). On November 10, 2003, plaintiff was seen by Dr. Schietroma for
a follow-up examination. (Doc. No. 28, Ex. B, letter from Dr.
Schietroma to SCI-Rockview Medical Department). Dr. Schietroma
noted the following:
I saw Mr. Wood for follow-up on 11/10/03. As you know
he underwent complex left orbit floor and medial wall
repair on 12/11/02. He complains of episodic diplopia
in primary position, episodic fleeting sharp pain of
the left cheek. He had sinusitis in the spring which
prompted a CT Scan. Unfortunately, he did not have
the scan with him for review.
On exam, visual acuity was 20/25/OS. Extraocular
movements were full with diplopia only in extreme
right and up gaze. There was marked enophthalmos
measuring 6 mm.
I will contact Centre Community Hospital to see if
they will send me a copy of Mr. Wood's most recent CT
Scan. Clearly he has insufficient support of his
orbital tissue. I would recommend reexploration of
the orbit and either repositioning of the metal mesh
implant or addition of medpore implant material to
build up the floor of the orbit.
I will contact you to discuss this further.
Id. On November 11, 2003, Dr. Schietroma's consult was reviewed
by Dr. John Lee. (Doc. No. 28, Ex. A, Progress Notes dated
11/11/03). Dr. Lee agreed with Dr. Schietroma as to the need to
"redo left orbital fracture surgery." Id. That same day, Dr. Romeo wrote a consult for the surgery to be performed by Dr. John
On January 7, 2004, plaintiff was seen by Dr. Schietroma
concerning his surgery. (Doc. No. 28, Ex. A, Progress Notes dated
1/7/04). Plaintiff was under the impression that Dr. Lee would be
performing the surgery. (Doc. No. 28, Ex. B, Pinnacle Health
Hospitals Patient's Refusal to Consent to Blood Transfusion,
Medical Procedure, or Treatment). However, Dr. Lee, a
Philadelphia physician, does not perform surgery at Pinnacle
Health Hospital. Id. Plaintiff refused to have the follow-up
surgery conducted by Dr. Schietroma. Id. Plaintiff was not seen
personally by either Dr. Schietroma or Dr. Romeo since his
refusal of surgery in January, 2004. (Doc. No. 28, Exs. A, B, and
The Eighth Amendment "requires prison officials to provide
basic medical treatment to those whom it has incarcerated." Rouse
vs. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle
vs. Gamble, 429 U.S. 97 (1976)). In order to establish a claim
under § 1983 based on the Eighth Amendment, an inmate must allege
acts or omissions by prison officials sufficiently harmful to evidence deliberate indifference to a serious medical
need. See Spruill vs. Gillis, 372 F.3d 218, 235 (3d Cir. 2004);
Natale vs. Camden Cty. Correctional Facility, 318 F.3d 575, 582
(3d Cir. 2003).
In the context of medical care, the relevant inquiry is whether
the defendant was: (1) deliberately indifferent (the subjective
element) to (2) plaintiff's serious medical needs (the objective
element). Monmouth County Correctional Institution Inmates vs.
Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West vs. Keve,
571 F.2d 158, 161 (3d Cir. 1979). Because only egregious acts or
omissions can violate this standard, mere medical malpractice can
not result in an Eighth Amendment violation, nor can
disagreements over a prison physician's medical judgment. White
vs. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990).
A complaint that a physician or a medical department "has been
negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth
Amendment . . ." Estelle vs. Gamble, 429 U.S. 97, 106, (1976). "A
medical decision not to order an X-ray, or like measures, does
not represent cruel and unusual punishment. At most it is medical malpractice." Id., 429 U.S. at 107.
"Allegations of medical malpractice are not sufficient to
establish a Constitutional violation." Spruill,
372 F.3d at 235. "[A]s long as a physician exercises professional judgment
his behavior will not violate a prisoner's constitutional
rights." Brown vs. Borough of Chambersburg, 903 F.2d 274, 278 (3d
Cir. 1990). In sum, negligence, unsuccessful medical treatment,
or medical malpractice do not give rise to a § 1983 cause of
action, and an inmate's disagreement with medical treatment is
insufficient to establish deliberate indifference. See Durmer
vs. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
A mere difference of opinion between the prison's medical staff
and the inmate regarding the diagnosis or treatment which the
inmate receives does not support a claim of cruel and unusual
punishment. Farmer vs. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa.
1988). See McCracken vs. Jones, 562 F.2d 22, 24 (10th Cir.
1977); Smart vs. Villar, 547 F.2d 112, 113 (10th Cir. 1976),
cert. denied, 450 U.S. 1041 (1981).
Additionally, if there is a dispute over the adequacy of the
received treatment, courts have consistently been reluctant to
second guess the medical judgment of the attending physician.
Little vs. Lycoming County, 912 F. Supp. 809, 815 (M.D. Pa.), aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether
the defendant has provided the plaintiff with some type of
treatment, regardless of whether it is what the plaintiff
desires. Farmer vs. Carlson, 685 F. Supp. at 1339.
The objective component of an Eighth Amendment claim, i.e.,
whether a plaintiff's medical needs were serious, has its roots
in contemporary standards of decency. Hudson vs. McMillian,
503 U.S. 1 (1992). A medical need is serious if it is one that has
been diagnosed by a physician as mandating treatment or is one
that is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention. Johnson vs. Busby,
953 F.2d 349, 351 (8th Cir. 1991); Monmouth County Correctional
Institution Inmates vs. Lanzaro, 834 F.2d at 347; Ramos vs. Lamm,
639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041
(1981); West vs. Keve, 571 F.2d 158, 162-63 n. 6 (3d Cir. 1978).
The serious medical need element contemplates a condition of
urgency, one that may produce death, degeneration, or extreme
pain. See Monmouth County Correctional Institution Inmates vs.
Lanzaro, 834 F.2d at 347; Archer vs. Dutcher, 733 F.2d 14, 16-17
(2d Cir. 1984); Todaro vs. Ward, 565 F.2d 48, 52 (2d Cir. 1977). A review of the documentation submitted by the defendant Romeo
reveals that the plaintiff was treated extensively between
December 3, 2002, the date of the assault, and January 7, 2004,
the date he refused further medical treatment from Dr.
Schietroma. Plaintiff's medical records reveal that he received
numerous x-rays, CT scans, evaluations by specialists, pain
medication, regular evaluations by the prison staff, including
physicians, nurses and physician's assistants. (See Doc. No. 28,
Ex. A, Progress Notes; Ex. B, Consultation Records; and Ex. C,
Physician's Orders). Indeed, the record establishes meaningful
efforts by the defendants to provide plaintiff with necessary
medical care, and an attendant mental state that falls woefully
short of deliberate indifference.
The plaintiff has failed to present evidence from which a
reasonable jury could conclude that the defendants possessed the
culpable mental state necessary for Eighth Amendment liability to
attach. There is insufficient proof in the record for a
fair-minded jury to conclude that the defendants were
deliberately indifferent to plaintiff's medical needs. See
Estelle vs. Gamble, 429 U.S. 97, 106 (1976); Monmouth County
Correctional Institution Inmates vs. Lanzaro, 834 F.2d at 346; West vs. Keve, 571 F.2d at 161. Indeed, the scope and quality of
medical attention that the defendants provided plaintiff
precludes a finding of deliberate indifference.
The record before the court, at best, demonstrates plaintiff's
disagreement with the course of his treatment, specifically,
having to undergo reconstructive surgery again by Dr. Schietroma.
As such, the evidence of record can only rise to the level of
mere negligence. However, as simple negligence can not serve as a
predicate to liability under § 1983, Hudson vs. Palmer,
468 U.S. 517 (1984), defendant Romeo is entitled to summary judgement and
defendant Schietroma's motion to dismiss will be granted. See
White vs. Napoleon, 897 F.2d at 108-110.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Defendant Schietroma's motion to dismiss (Doc. No.
11) is GRANTED.
2. The motion for summary judgment filed by defendant
Romeo (Doc. No. 22) is GRANTED. Judgment is hereby
entered in favor of defendant Romeo and against the
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