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Lombardi v. Paugh

March 8, 2006

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



The opinion of the court was delivered by: Judge McClure

MEMORANDUM AND ORDER

Background

Lawrence Lombardi ("Plaintiff"), an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania ("USP-Lewisburg"), initiated this pro se civil rights action. By Memorandum and Order dated January 17, 2006, Defendant Lawrence Schiffman, D.O.'s motion to dismiss was granted.

The remaining 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, and Warden Troy Williamson. According to the complaint, the Plaintiff met with Health Services Administrator Laino in March, 2003 regarding a rash that had appeared on his body. The following month, Doctor Schiffman, a dermatologist, diagnosed Plaintiff as suffering from hives and prescribed treatment with Prednisone, an oral steroid. See Record document no. 1, ¶ 12. When Lombardi's condition did not improve, Defendant Laino prescribed an additional course of Prednisone on May 27, 2003.

After telling an unidentified member of the USP-Allenwood Health Services Department that his condition was no better, Plaintiff was seen by Doctor Schiffman via "Tele-Med" on June 27, 2003. Id. at ¶ 15. Doctor Schiffman directed that a skin biopsy be taken. On July 9, 2003, the Plaintiff was placed on anti-depressant medication by a member of the prison's Psychology Services Department due to his inability to sleep.

As a result of the biopsy, Lombardi was diagnosed on August 11, 2003 as suffering from Folliculitis, an inflammation of the hair follicles. Doctor Schiffman ordered an additional round of Prednisone. Three days later, the Prednisone was discontinued by Schiffman and Plaintiff was given a seven (7) day prescription of Keflex, an antibiotic.

On August 23, 2003, Lombardi was prescribed a different antibiotic, Doxycycline. Plaintiff began experiencing "a very painful burning sensation" throughout his body on September 4, 2003. Id. at ¶ 20. His skin was allegedly bright red. After complaining about his inability to sleep, Plaintiff was placed on anti-psychotic medication by an unidentified member of the Psychology Services Department on September 10, 2003. By the morning of September 13, 2003, Lombardi's rash had intensified and his breathing was labored, and he was seen by

A. Duttry, a Prison Paramedic

Two days later, Plaintiff asked Unit Manager Woolever to speak to Defendant Laino about the possibility of the prisoner's being taken to an outside hospital for treatment. A short while later, Woolever informed the Plaintiff that he would not be taken for outside treatment. On September 17, 2003, Laino allegedly told Lombardi that there was no cure for his condition. After suffering an intense burning sensation on September 29, 2003, Lombardi was taken to the prison's Health Services Department as a "medical emergency." Id. at ¶ 27.

Plaintiff next alleges that beginning in August, 2003, other USP-Allenwood prisoners reported having the same type of rash. In response, ex-Warden Pugh issued a memorandum regarding the outbreak of rashes on December 12, 2003.

Thereafter, Lombardi states that he filed numerous complaints with various federal officials regarding his request for outside treatment. On February 4, 2004, Plaintiff informed Laino that a terminally ill inmate had been assigned as his cell mate. The Defendant purportedly responded that the cell mate assignment was Plaintiff's punishment for making so many medical complaints.

The complaint next asserts that in July, 2004, Doctor Schiffman issued Plaintiff a prescription for Acticin, an anti-parasitic cream. However, Lombardi alleges that he suffered an adverse reaction after using the cream. On October 6, 2004, Doctor Schiffman examined several inmates, including Lombardi. The next day Defendant Laino announced at a meeting that a prisoner in Plaintiff's housing unit had been diagnosed with "scabies." Id. at ¶ 38. As part of a unit wide response to the problem, Lombardi's housing unit was locked down on October 12, 2004 and he agreed to be taken to the prison infirmary for the purpose of receiving an application of Acticin. After spending the night in the infirmary, Lombardi was returned to his housing unit the next day. However, due to a shortage of beds, he was placed in the prison's Special Housing Unit ("SHU") by Unit Manager Levi. One day later, Defendant Levi informed Plaintiff that the other prisoners in his cell unit felt that he was the origin of the scabies outbreak.

Paramedic Duttry went to Plaintiff's SHU cell on October 28, 2004 and gave him a prescription for Ivermectin, and told the prisoner that this medicine was used by veterinarians to treat horses infected with worms. On November 4, 2004, Doctor Schiffman allegedly informed the Plaintiff that he was not the origin of the scabies outbreak. Lombardi concludes that he was improperly kept in the SHU until his November 17, 2004 transfer to USP-Lewisburg.

Plaintiff adds that despite various complaints and grievances, the remaining Defendants were deliberately indifferent to his medical needs. Lombardi adds that rather than granting his request for outside treatment, Defendants Pugh and Laino chose a less expensive course of treatment, failed to protect his safety by giving other inmates the impression that Lombardi was responsible for the scabies outbreak, and retaliated against him for his initiation of complaints and grievances. Lombardi additionally maintains that despite having knowledge that Plaintiff had a serious health problem, ex-Warden Pugh failed to order an internal investigation. His final contention is that Warden Williamson approved Defendant Levi's request to have him transferred without any regard for the treatment of Plaintiff's medical needs.

In conclusion, Lombardi claims that the remaining Defendants were deliberately indifferent to his medical needs by not providing him with outside treatment; failed to protect his safety by causing Lombardi to be labeled as a disease carrier during the scabies outbreak; improperly confined him in the SHU; and arranged for his retaliatory, subsequent transfer. His complaint seeks compensatory and punitive damages.

Defendants Pugh, Levi, Laino, and Williamson (hereinafter the "Federal Defendants") responded to the complaint by filing a motion to dismiss or in the alternative for summary judgment. See Record document no. 17. The motion has been briefed and is ripe for disposition.

Discussion Standard of Review

As noted above, the Federal Defendants have filed a motion seeking dismissal or in the alternative entry of summary judgment. The motion raises the following arguments: (1) Lombardi failed to exhaust his administrative remedies with respect to his deliberate indifference to safety and transfer to USP-Allenwood claims; (2) the claims against Warden Pugh are premised on a theory of respondeat superior; and (3) the Federal Defendants are entitled to qualified immunity because a viable constitutional claim of deliberate indifference to his medical needs has not been asserted. See Record document no. 20, ¶ III.

The motion is accompanied by evidentiary materials [documents] outside the pleadings which are relevant for purposes of both determining the issue of administrative exhaustion as well as their alternative arguments. 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, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed. R. Civ. P. 12(b). The Court will not exclude the evidentiary materials [documents] accompanying the Federal Defendants' motion. Thus, their motion will be treated as solely seeking summary judgment.

Plaintiff opposes the motion in part on the grounds that it is prematurely filed because "discovery has not yet been initiated or scheduled in this case." Record document no. 28, p. 4. It is initially noted that the Federal Defendants' pending motion was submitted approximately four (4) months after the initiation of this action. Thus, Lombardi was afforded an opportunity to initiate discovery. Second, Plaintiff has submitted forty-seven (47) pages of documentary evidence in opposition to the dispositive motion. See Record document no. 28.

The Plaintiff's argument is the functional equivalent of a request for continuance under Federal Rule of Civil Procedure 56(f). See St. Surin v. Virgin Island Daily News, 21 F.3d 1309 (3d Cir. 1994). However, Lombardi's opposing brief does not identify any discovery that he wishes to undertake, state how if uncovered, the discovery material would preclude the instant request for summary judgment, and explain why the discovery ...


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