United States District Court, M.D. Pennsylvania
November 4, 2005.
LAFAYE GASKINS, Plaintiff
MARVA CERULLO, et al., Defendants.
The opinion of the court was delivered by: WILLIAM NEALON JR., Senior District Judge
MEMORANDUM AND ORDER
Lafaye Gaskins ("Gaskins"), an inmate confined in the Mahanoy
State Correctional Institution, Frackville, Pennsylvania
("SCI-Mahanoy"), filed the above captioned civil rights action
pursuant to 42 U.S.C. § 1983. He claims that the named defendants
have been deliberately indifferent to his medical treatment for
folliculitis, in that they refuse to provide him with an electric
razor. Named as Defendants in the complaint are Marva Cerullo,
Corrections Health Care Administrator; Edward J. Klem,
SCI-Mahanoy Superintendent; Edward R. Martin, SCI-Mahanoy
Superintendent's Assistant; and Thomas L. James, former Chief
Grievance Coordinator for the Department of Corrections. Presently before the court is Defendants' motion for summary
judgment. (Doc. 55). The motion it fully briefed, and is ripe for
disposition. For the reasons that follow, the motion will be
Standard of Review
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 v. 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 v.
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 v. 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 v. Tartler, 986 F.2d 682
(3d Cir. 1993); Clement v. Consolidated Rail Corporation,
963 F.2d 599, 600 (3d Cir. 1992); White v. 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 v. 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. v. 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 v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
Statement of Facts
On or about May 3, 1990, Gaskins was committed to the custody
of SCI-Mahanoy. He suffers from folliculitis, (also known as
"razor bumps"), a fairly common problem among African American
males. On January 28, 1995, a permanent medical order was issued
by Dr. Young for an electric razor for Gaskins' condition. (Doc.
60, p. 126).
On November 25, 1998, Dr. Lester L. Lewis, the Medical Director
for the Bureau of Health Care Services, issued the following
Memorandum regarding electric razors:
I have been asked to review requests for electric
razors that are granted by staff within the
institutions. The intent of this process is to
minimize the use of electric razors because of the
alternative uses that inmates find for them
(tattoos). The use of an electric razor for the
treatment of pseudofollicultitis is at times
recommended for those individuals who wish to shave.
It should be noted that the only effective management
for PFB is cessation of shaving.
Shaving is a cosmetic activity. To my knowledge,
there is no medical indication to shave unless there
is an infestation or a skin infection that may
require exposure of the skin. I repeat, shaving is
not a necessity. It is not appropriate for referrals
to arrive at central office because of a lack of
comfort in notifying inmates of a change in practice.
I expect every inmate request that reaches central
office to be accompanied by the physician's note indicating the medical need to: 1) shave and 2)
specifically use an electric shaver.
A medical necessity is not created because an inmate
used to have an electric shaver. I expect each
Medical Director to research treatment of PFB and
make informed decisions based on medical necessity,
not inmate wishes. I have included a basic guideline
for the management of PFB according to the U.S. Navy.
As noted, the actual treatment is NOT to shave. I
have also included for your interest an article about
court cases where the right to not shave has been
upheld by the courts. Isn't it interesting that our
population has a request that is opposite from groups
in the free world.
(Doc. 60, November 25, 1998, Memorandum).
In response to the Medical Director's November 25, 1998
Memorandum, on January 29, 1999, the Department of Corrections'
Deputy Secretary for Administration issued the following
Memorandum to all Superintendents:
Recently, Dr. Lewis issued a medical opinion to the
Corrections Health Care Administrators and Medical
Directors, regarding electric razors. Essentially,
Dr. Lewis stated that there is no medical reasons for
approving electric razors. The medical staff have
been issued protocols for the proper treatment of
inmates with Pseudofolliculitis Barbae and "razor
The health care vendors have been instructed to cease
approving electric razors for inmates. The one
institution that is selling electric razors in the
Commissary (You know who you are) should cease dong
Through attrition, we expect to eliminate all
electric razors from the system. In order to do this,
the following should occur: 1. No new electric razors should be authorized for
outside purchase. Any medical orders for electric
razors should be forwarded to Dr. Maue for review.
2. Any time an inmate's property is packed (for
transfer, for RHU/SMU placement, for ATA, etc.), the
electric razor should be confiscated and the attached
notice should be issued to the affected inmate by the
There is no need to confiscate electric razors during
routine or special cell searches. As long as the
inmate is using his electric razor for its intended
purpose, he may retain it. However, in the event he
is transferred (see #2 above), it will be
confiscated. As electric razors become inoperable
through normal wear and tear, they will not be
(Doc. 60, January 29, 1999, Memorandum).
On January 8, 2003, Gaskins wrote to the Director of the Bureau
of Health Care Services for the Department of Corrections,
requesting authorization to purchase a new razor pursuant to his
medical order allowing him an electric razor for his medical
condition. (Doc. 1, Ex. D). In a letter dated January 21, 2003,
Gaskins was informed that he could obtain an electric razor if
the doctor at his institution determined it to be a "medical
necessity." (Doc. 1, Ex. E). Once it is established to be a
medical necessity, it must be approved by the Bureau of Health
Care Services at the Department's Central Office in Camp Hill.
Id. On January 31, 2003, Gaskins filed a Grievance No. 42934,
claiming that he had a "permanent order" from Dr. Young allowing
him to have an electric razor for his skin condition. (Doc. 71,
Ex. 1). On February 7, 2003, Defendant Cerullo responded with the
Since 1995, policy regarding electric razors has
changed dramatically. Here are some facts about the
policy as it now stands:
1. Electric razors must be ordered by the
institutional Medical Director based upon medical
need. This then must go to the Bureau of Health Care
Services Medical Director for final approval.
2. Electric razors issue prior to this policy, which
need to be replaced will not be reordered unless the
above process is followed.
3. Inmates admitted to RHU or transferring to another
facility will have their electric razor confiscated
and the process listed in #1 will be initiated.
It is obvious to me that PA DOC des not want electric
razors in inmate population and the Bureau of Health
Care has advised that really there is no clinical
indication for electric razors. Inmates with skin
conditions should be encouraged to let their beards
grow and have them trimmed by the barber. This is the
only way true healing will take place.
SCI Mahanoy medical staff have not refused to seek
approval from the Bureau of Health Care; rather, they
have said and electric razor is not needed. (Doc. 71, Ex. 2). On February 14, 2003, Gaskins filed an appeal
to the Superintendent and then a final appeal to the Chief
Grievance Coordinator. (Doc. 71, Exs. 3, 4). On March 10, 2003,
the Chief Grievance Coordinator informed Gaskins that a decision
on his final review would be delayed as the Chief Grievance
Coordinator was referring Gaskins' record to the Bureau of Health
Care Services for review. (Doc. 71, Ex. 4). On April 14, 2003,
the Chief Grievance Coordinator denied Gaskins' appeal to final
review, finding the following:
Upon completion of this review, it is the decision of
this office to uphold the responses provided by staff
at the institutional level. I find the issues raised
for final review have been addressed by the Grievance
Coordinator and the Superintendent, and their
responses are reasonable and appropriate. The Bureau
of Health Care Services had reviewed your case and
finds no medical reason to allow an electric razor
(Doc. 1, Ex. F).
On December 22, 2003, Gaskins filed the instant action in which
he claims that "Defendants have ignored their own regulations and
ignored the serious medical needs of plaintiff, in violation of
plaintiff's constitutional rights under the eighth amendment."
(Doc. 1, p. 4). Specifically, he states that his Eighth Amendment
rights were violated by Defendants "when they denied plaintiff
his doctor recommended razor/prescription for his disease folliculitis." Id. For relief, Gaskins seeks
compensatory and punitive damages. Id.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which requires him to demonstrate that: (1) a person deprived him
of a federal right; and (2) the person who deprived him of that
right acted under color of state law. Gorman v. Township of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
The Eighth Amendment "requires prison officials to provide
basic medical treatment to those whom it has incarcerated."
Rouse v. 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 v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004);
Natale v. 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 v. 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 v. 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 v. 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 v. 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 v. 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. Spruill, 372 F.3d at 235; Farmer v. Carlson,
685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones,
562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar,
547 F.2d 112, 113 (10th Cir. 1976), cert. denied, 450 U.S. 1041
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 v. 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 v. 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 v. 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 v. Busby,
953 F.2d 349, 351 (8th Cir. 1991); Monmouth County Correctional
Institution Inmates v. Lanzaro, 834 F.2d at 347; Ramos v. Lamm,
639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981);
West v. 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 v. Lanzaro,
834 F.2d at 347; Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir.
1984); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). Not
every injury or illness invokes constitutional protection only
those that are serious have that effect. Additionally, a
non-physician defendant cannot be considered deliberately
indifferent for failing to respond to an inmate's medical
complaints when the inmate is already receiving treatment from
the prison's medical staff. See Durmer v. O'Carroll,
991 F.2d 64, 69 (3d Cir. 1993).
A review of the documentation submitted by the Defendants
reveals that the Plaintiff was seen and treated for his
folliculitis. He was provided with an electric razor in 1995,
which was the acceptable protocol at that time for the treatment
of folliculitis. However, in the years that Gaskins possessed his
electric razor, both DOC policy and the medical community's
treatment regarding folliculitis changed. In 1999,*fn1 the
DOC determined that the possession of electric razors posed a threat
to security and the medical community determined that shaving is
not a medical necessity, and that inmates with skin conditions
should be encouraged to let their beards grow and have them
trimmed by the barber.
At best, Gaskins' complaint amounts to a subjective
disagreement with the treatment decisions and medical judgment of
the medical staff at the prison. However, a mere disagreement as
to the proper medical treatment for an inmate's medical condition
can not serve as a predicate to liability under § 1983. Hudson
v. Palmer, 468 U.S. 517 (1984); Wheeler v. Beard, 2005 WL
1840159, p. 12 (E.D. Pa.) (holding that plaintiff's disagreement
with prison medical personnel over how best to ameliorate his
shaving-induced skin condition is not a basis for constitutional
relief). Plaintiff's civil rights complaint fails to articulate
an arguable claim under § 1983 and Defendants are entitled to
judgment as a matter of law. See White, 897 F.2d at 108-110.
An appropriate Order is attached. ORDER
AND NOW, this 4th day of November, 2005, for the reasons set
forth in the accompanying Memorandum of this date, IT IS HEREBY
1. Defendants' motion for summary judgment (Doc. 55)
is GRANTED. Judgment is hereby entered in favor of
the Defendants and against the Plaintiff.
2. Plaintiffs' motion to strike Defendants' brief in
support of their motion for summary judgment for
counsel's failure to sign the certificate of service
(Doc. 65) is DENIED.
3. Defendants' motion for enlargement of time to deem
their certificate of service timely signed and
counsel's entry of appearance timely filed on behalf
of Defendants, (Doc. 68) is GRANTED.
4. The Clerk of Court is directed to CLOSE this
case. 5. Any appeal taken from this order will be deemed
frivolous, without probable cause, and not taken in
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