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Kerwin v. Varner

December 15, 2006

RYAN KERWIN, PLAINTIFF
v.
BEN VARNER, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

Ryan Kerwin, an inmate at SCI-Albion, Albion, Pennsylvania, filed this action setting forth several federal civil-rights claims arising from his former confinement at the Smithfield State Correctional Institution ("SCI-Smithfield"), Huntingdon, Pennsylvania. In his amended complaint, Kerwin alleges that various Department of Corrections ("DOC") employees failed to protect him from assault by another inmate, denied him proper medical care for his injuries after the assault, and then issued a fabricated charge.

Presently before the Court for consideration are the following motions filed by Kerwin: (1) Third Motion for Appointment of Counsel (doc. 186); (2) Motion Requesting a Court Appointed Expert Witness and Private Investigator (doc. 188); (3) Motion to Strike Dr. McGarvie's Motion for Summary Judgment for failing to Comply with Local Rule of Court 56.1 (doc. 190); and a (4) Motion for Extension of Time to Respond to Dr. McGarvie's Motion for Summary Judgment (doc. 192).

For the reasons that follow, all four motions will be denied.

II. Procedural History and Background

In his Amended Complaint, Kerwin alleged that several Pennsylvania Department of Corrections ("DOC") employees at SCIHuntingdon failed to protect him from harm after his cellmate, Gary Peterson, attacked him on December 5, 2001. Kerwin averred he was improperly housed with Peterson, who was known to Defendants as psychologically unstable as well as suffering from Hepatitis C. He also alleged that Dr. McGarvie, a former contract-care medical provider, refused him adequate medical care after the assault.

We granted in part and denied in part the DOC defendants' Motion to Dismiss, and the following Eighth Amendment claims remain: (1) a failure-to-protect claim against defendants Ersik, Knopp, Hannah and John Doe members of SCI-Huntingdon's psychology department for failing to protect Kerwin from assault by Peterson; (2) a failure-to-protect claim against Secretary Bear, McCullough and Varner; and (3) a claim of deliberate indifference to a serious medical against Dr. McGarvie for her failure to test Plaintiff for Hepatitis C on the day of the assault, or afterwards.

On May 22, 2006, Plaintiff filed a Motion for Partial Summary Judgment against Dr. McGarvie. After DOC counsel realized that Dr. McGarvie was not a DOC employee, and had not agreed to Commonwealth representation, separate counsel for Dr. McGarvie entered an appearance and filed a response to Plaintiff's motion as well as a counter-motion for summary judgment.

Dr. McGarvie's Motion for Summary Judgment, in part, relies upon Kerwin's failure to demonstrate harm as a result of her medical decision not to test him on the day of the assault based on her opinion that no Hepatitis C test was medically necessary under the circumstances presented by Kerwin. Additionally, Dr. McGarvie asserts that she lost any ability to order a Hepatitis C test for Kerwin upon the February 2, 2002, expiration of her employment with the contract medical-care provider.

Kerwin recently filed an answer to Dr. McGarvie's statement of undisputed facts and brief in opposition to defendant's motion for summary judgment with supporting exhibits. Dr. McGarvie has not yet filed a reply brief.

III. Discussion

A. Plaintiff's Motion to Strike Dr. McGarvie's Motion for Summary Judgment

Kerwin requests that the Court strike Dr. McGarvie's Motion for Summary Judgment due to her failure to comply with Local Rule 56.1 requiring that all such motions be accompanied by a separate statement of material facts for which the moving party contends there is no genuine issue to be tried. See M.D. Pa. Local Rule 56.1. We will deny the motion. It is true that Dr. McGarvie did not submit a statement of material facts simultaneously with her Motion for Summary Judgment, but the statement was later filed on November 21, 2006. (See Docs. 196-1 and 196-2, Dr. McGarvie's Statement of Undisputed Facts and ...


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