United States District Court, W.D. Pennsylvania
September 7, 2005.
TYRONE GREEN Plaintiffs,
MARTIN HORN, et al. Defendants.
The opinion of the court was delivered by: SEAN McLAUGHLIN, District Judge
On May 2, 2003, Plaintiff, a state prisoner appearing pro se,
filed the instant civil rights action. This matter was assigned
to United States District Judge Sean J. McLaughlin and was
referred to United States Magistrate Judge Susan Paradise Baxter
for report and recommendation in accordance with the Magistrates
Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the
Local Rules for Magistrates.
On July 27, 2005, Magistrate Judge Baxter issued a Report and
Recommendation recommending that this case be dismissed. Document
Plaintiff filed Objections to the Report and Recommendation.
Documents # 67 and 69. Defendant Baker has filed a response to
Plaintiff's Objections [Document # 68], but the Commonwealth
Defendants have not filed a response.
De Novo Review
Plaintiff alleges that following a fall he was denied
prescribed followup medical treatment (in the form of a permanent
cast for a broken hand) in violation of his Eighth Amendment
rights. In his original complaint, Plaintiff explains:
On August 26, 2002, Plaintiff was transported to
Millcreek Hospital wherein Plaintiff was issued a
temporary cast which was placed upon Plaintiff's
broken hand. Plaintiff was given said temporary cast
due to the immense swelling in his right hand. Plaintiff was scheduled by attending
physicians to have the temporary cast removed in two
(2) days to have [been] replaced with full cast.
Plaintiff was never rescheduled or transported back
to Millcreek Hospital for his replaced cast by the
institution. . . . The Institution's medical
department failed to adhere to physicians
instructions for returning Plaintiff for his intended
Document # 1.
In her Report and Recommendation, Magistrate Judge Baxter
specifically noted that the illegible medical records provided by
Defendants (as well as the lack of an affidavit summarizing the
medical records) hampered her analysis. Magistrate Judge Baxter
then concluded that Plaintiff had not raised a triable issue of
fact with respect to his allegations of deliberate indifference
because he had received repeated medical care for his hand and
because there was nothing in the medical records which
specifically indicated that Plaintiff's hand needed to be cast
after the swelling subsided. Document # 66, page 9.
In his Objections, Plaintiff argued that there is a notation in
the medical records which reads: "Patient is to be sent to
Millcreek Hospital via state corrections for casting." That
notation in the medical records is signed by Physician's Assitant
Telega, a Department of Corrections' employee. Document # 67,
pages 2 and 13. This reading of the notation is uncontradicted by
In his Objections, Plaintiff also complains that the medical
record is not complete as the files from Millcreek Hospital are
missing and he complains that Dr. Baker has not responded to his
discovery requests dated June 16, 2005. Id.
In light of the previously described medical record, as well as
the lack of a response from Defendant Dr. Baker to Plaintiff's
requests for discovery, the motions to dismiss or for summary
judgment must be denied. AND NOW, this 7th day of September, 2005;
Following a de novo review of the record in this case, IT IS
HEREBY ORDERED that the pending motions to dismiss or for summary
judgment [Documents # 51, 58 and 60] are DENIED. The Report and
Recommendation by Magistrate Judge Baxter is not adopted as the
opinion of this Court.
IT IS FURTHER ORDERED that this case is referred back to
Magistrate Judge Baxter for further pre-trial proceedings.
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