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October 5, 2005.

SHAWN C. PALMER, Plaintiff,
DAUPHIN COUNTY PRISON, et al., Defendants.

The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge


I. Introduction

Plaintiff, Shawn Palmer, an inmate at the State Correctional Institution at Coal Township, Pennsylvania, commenced this pro se action with a civil rights complaint filed pursuant to the provisions of 42 U.S.C. § 1983. Named as Defendants are Dauphin County Prison ("DCP") in Harrisburg, Pennsylvania, as well as the following DCP officials: (1) Warden Dominick DeRose; (2) Deputy Wardens James M. DeWees and Elizabeth Nichols; (3) Treatment Evaluator Michele Jiszenka; (4) Head Nurse Tom Toolen;*fn1 and (5) Dr. Jane Doe. Plaintiff alleges mistreatment by Defendants while he was previously incarcerated at DCP, and he claims "denial of adequate medical treatment and care, cruel and unusual punishment, deliberate indifference, wanton and unnecessary infliction of emotional distress, gross negligence, mental anguish, denied access to the courts, professional incompetence, subordinate [sic], deprivation of character, due process and equal protection of the law." (Doc. 1 at 2.) Thereafter, Plaintiff filed a supplemental complaint (Doc. 42) alleging further acts of mistreatment by Defendants during a short return to DCP. Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, and attorney's fees.

  Presently before the Court is: (a) the "Jane Doe"*fn2 Defendant's motion to dismiss or, in the alternative, for summary judgment (Doc. 19); (b) Tom Toolan's motion to dismiss or, in the alternative, for summary judgment (Doc. 34); and (c) the motion for summary judgment (Doc. 15) filed by Dominick DeRose, James DeWees, Michelle Jeszenka and Deputy Nichols ("corrections Defendants"). The motions have been briefed, and they are ripe for disposition. For the following reasons, the motions will be granted, and the complaint will be dismissed as it relates to DCP under 28 U.S.C. § 1915. II. Background

  Plaintiff challenges the sufficiency of his medical care he received while incarcerated at DCP from April 9, 2003 to June 26, 2003 (Doc. 1; Doc. 17, Ex. A) as well as from December 15, 2004 to December 22, 2004 (Doc. 42 at 2-3.) During an intake medical screening at DCP on April 9, 2003, Plaintiff noted left leg weakness, precipitated by a gunshot wound he suffered in 2000, for which Plaintiff's private physician prescribed a metal cane to assist in ambulation. (Doc. 17, Ex. B at 1.; Ex. C). Plaintiff's medical history was conveyed by telephone to Dr. Jackson, and the doctor ordered: (a) bottom bunk/tier assignment for thirty (30) days; (b) use of one (1) crutch for thirty (30) days; and (c) referral to a physician's assistant for evaluation. (Id.)

  Subsequently, Plaintiff was relocated within the prison several times,*fn3 and his crutch was taken from him by nurse Toolan after Plaintiff was observed walking without his crutch on May 8 and May 9, 2003. He claims that these actions were retaliatory*fn4 (Doc. 1 at ¶¶ 14-15), for assistance he rendered to another inmate. On May 14, 2003, after his crutch had been taken, Plaintiff slipped and fell while exiting the shower. (Id. ¶ 17.) Plaintiff was seen by medical personnel. (Id.) He was prescribed Motrin for his reported head, back, neck and jaw pain (Id. ¶ 18) and his crutch was returned (Id. ¶ 22.) Although Plaintiff requested x-rays, none were taken. (Id. ¶ 24.)

  For the duration of his 2003 incarceration at DCP, Plaintiff made repeated complaints of head, back, and jaw pain, and he filed no fewer than twenty-seven (27) inmate request forms related to his malady. (Id., Ex. D). The record indicates that Plaintiff was seen by medical personnel no fewer than twenty-four (24) times in the period of April 9, 2003 through June 26, 2003, yet Plaintiff continued to challenge the sufficiency of treatment. (Id., Exs. N and O). This action ensued.

  III. Legal Standard

  The Jane Doe Defendant, now identified as Dr. MaryBeth Jackson, and Tom Toolan have filed motions to dismiss or, in the alternative, for summary judgment (Docs. 19 and 34). The motions to dismiss are based upon a contention that Plaintiff's complaint fails to state a claim upon which relief can be granted, as provided by Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b) provides in part as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .
Fed.R.Civ.P. 12(b). The motions both incorporate by reference the statement of material facts not in dispute (Doc. 16) and the exhibits (Doc. 17) submitted by the corrections Defendants in support of their motion for summary judgment (See Doc. 20 at 2-3; Doc. 36 at 2-3). Since the court will not exclude the supplemental materials, and since Plaintiff has responded to the motions for summary judgment, the motions to dismiss will be construed as motions for summary judgment under Rule 12(b).

  Accordingly, with the exception of DCP, all of the Defendants have filed motions for summary judgment. Under Federal Rule of Civil Procedure 56(c), summary judgment may be entered only "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). The party moving for summary judgment has the burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Additionally, on summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Mraz v. County of Lehigh, 862 F. Supp. 1344, 1347 (E.D. Pa. 1994). Moreover, Rule 56 provides that the adverse party may not simply sit back and rest on the allegations contained in the pleadings. Rather, the adverse party must show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). When addressing a summary judgment motion, our inquiry focuses on "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52 (emphasis added).

  IV. Deliberate Indifference*fn5

  To state a viable § 1983 claim, Plaintiff must establish (1) that the alleged wrongful conduct was committed by a person acting under color of state law, and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). Both elements must be present to sustain a § 1983 action, and Plaintiff fails to satisfy the second. The Constitutional issue implicated in this case is the Eighth Amendment requirement that prison officials provide adequate medical care to inmates, and make reasonable efforts to assure prisoner health and safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994). That duty is violated when prison officials know of and disregard an excessive risk to inmate health or safety. Id. at 837. Not every illness or injury enjoys constitutional protection; only serious medical needs or injuries will give rise to constitutional scrutiny. Gerber v. Sweeney, 292 F.Supp.2d 700, 706 (E.D. Pa. 2003). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); McCabe Prison Health Services, 117 F.Supp. 2d 443, 450 (E.D. Pa. 1997).

  In Estelle v. Gamble, 429 U.S. 97 (1976), as here, the prisoner/plaintiff claimed that inadequate medical treatment violated his Eighth Amendment protection from cruel and unusual punishment. The Supreme Court acknowledged that the government has an obligation to provide medical care to its prisoners, but held that a constitutional violation does not occur unless the Plaintiff can show Defendants had a "deliberate indifference to serious medical needs of prisoners" which constitutes "unnecessary and wanton infliction of pain." Id. ...

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