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Lombardi v. Pugh

January 17, 2006

LAWRENCE LOMBARDI, PLAINTIFF
v.
MICHAEL PUGH, ET AL., DEFENDANT



The opinion of the court was delivered by: Judge McClure

MEMORANDUM AND ORDER

Background

This pro se civil rights action was initiated by Lawrence Lombardi ("Plaintiff"), an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania ("USP-Lewisburg").

Named as Defendants are the following officials at the Allenwood United States Penitentiary, White Deer, Pennsylvania ("USP-Allenwood"): ex-Warden Michael Pugh, Health Services Administrator Ron Laino, Unit Manager Angel Levi, Warden and Warden Troy Williamson. He is also proceeding against Doctor Lawrence Schiffman, a physician who provided USP-Allenwood prisoners with treatment on a contractual basis.*fn1

Lombardi states that in March, 2003, he spoke with Defendant Laino regarding "a rash that had appeared on Plaintiff's body." Record document no. 1, ¶ 11. On April 30, 2003, Doctor Schiffman "via computer hook up" diagnosed Plaintiff as suffering from hives and prescribed treatment with Prednisone, an oral steroid. Id. at ¶ 12. When Lombardi's condition did not improve, Defendant Laino prescribed an additional course of Prednisone on May 27, 2003.

One week after informing the prison medical staff that his condition was no better, Plaintiff was seen by Doctor Schiffman via "Tele-Med" on June 27, 2003. Schiffman directed that a skin biopsy be taken. During this same time period, the Plaintiff was additionally placed on an anti-depressant by the prison's Psychology Department for his inability to sleep.

Based on the biopsy results, Plaintiff was diagnosed as suffering from Folliculitis, an inflamation of the hair follicles. An additional round of Prednisone was ordered. Three days later, on August 14, 2003, the Prednisone was discontinued and Plaintiff was placed on an antibiotic, Keflex.

On August 23, 2003, Doctor Schiffman placed Lombardi on a different antibiotic, Doxycycline. Thereafter, on September 4, 2003, the Plaintiff began experiencing "a very painful burning sensation" throughout his body. Id. at ¶ 20. He was placed on anti-psychotic medication on September 10, 2003. By the morning of September 13, 2003, Lombardi's rash had intensified and his breathing was labored, he was seen by a prison paramedic. Two days later, Plaintiff's request for outside medical assistance was purportedly denied by Defendant Laino. On September 17, 2003, Laino allegedly told Plaintiff that there was no cure for his condition. After suffering an intense burning sensation on September 29, 2003, Lombardi was again taken to the prison's medical department. In July, 2004, Doctor Schiffman prescribed Acticin, an anti-parastic cream, for the Plaintiff. Lombardi alleges that he suffered an adverse reaction after using the cream. His complaint notes that numerous fellow prisoners developed the same type of rash.

On October 7, 2004, one day after Doctor Schiffman examined several inmates, including Lombardi, Defendant Laino announced that a prisoner had been diagnosed with "scabies." Id. at ¶ 38. As part of a unit wide procedure, Plaintiff agreed to Defendant Laino's October 12, 2004 request that he be taken to the prison infirmary where he was treated with Acticin. The next day Plaintiff was returned to his housing unit. However, due to an alleged shortage of beds, he was placed in the prison's Special Housing Unit ("SHU"). One day later, Defendant Levi informed Plaintiff that the other prisoners in his cell unit erroneously felt that he was the origin of the scabies outbreak. A prison paramedic went to Plaintiff's SHU cell on October 28, 2004 and gave him a prescription for Ivermectin, and was told that the medicine was used by veterinarians to treat horses infected with worms. Lombardi concludes that he remained in the SHU until his November 17, 2004 transfer to USP-Lewisburg.

Plaintiff adds that despite his various complaints and grievances he has been denied needed medical care. Lombardi adds that Defendant Laino chose a less expensive course of treatment, gave the impression to other inmates that Lombardi was responsible for the scabies outbreak, and retaliated against him for his initiation of complaints and grievances. He additionally maintains that Warden Pugh and Unit Manager Levi were deliberately indifferent to his medical needs. His final contention is that Defendant Schiffman's failure to undertake an effort to determine the cause of his rash or refer him for outside treatment constituted deliberate indifference. Plaintiff seeks compensatory and punitive damages.

Defendant Schiffman responded to the complaint by filing a motion to dismiss. See Record document no. 19. Although Plaintiff filed an opposing brief to the remaining Defendants' dispositive motion, he has not submitted a response addressing Doctor Schiffman's arguments for dismissal.

Standard of Review

A court, in rendering a decision on a motion to dismiss, must accept the veracity of the plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. 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 a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"The test in reviewing a motion to dismiss for failure to state a claim is whether, under any reasonable reading of the pleadings, plaintiff may be entitled to relief." Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation omitted). Additionally, a court must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them." Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Independent Enters., Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997). Finally, it is additionally well-settled that pro se complaints should be liberally construed. Haines v. Kerner, 404 U.S. ...


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