The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Plaintiff Harold Lee ("Lee"), an inmate currently confined in the Mahanoy State Correctional Facility, Frackville, Pennsylvania, ("SCI-Mahanoy"), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2003. He complains of inadequate medical treatment he received while housed at SCI-Mahanoy as well as in his former place of confinement, SCI-Coal Township. Specifically, Lee alleges a lack of treatment and improper treatment for tuberculosis, hepatitis C and sleep apnea. Along with his complaint, Lee filed an application to proceed in forma pauperis. (Doc. 2.)
Named as Defendants in the complaint are Jeffrey Beard, Secretary, Department of Corrections; Frank Gillis, Superintendent, SCI-Coal Township; Kandis Dascani, Assistant Superintendent, SCI-Coal Township; Judy Rodichok, Medical Director, SCI-Coal Township; Wilma Sewell, Correctional Health Care Administrator, SCI-Coal Township; Bradley Loch, SCI-Coal Township; Dr. Kort, SCI-Coal Township; Marva Cerullo, Medical Department Administrator, SCI-Mahanoy; Edgar M. Kneiss, Deputy Superintendent, SCI-Mahanoy; and Edward J. Klemm, Superintendent, SCI-Mahanoy. On June 30, 2003, Lee filed a motion for leave to file an amended complaint, (Doc. 5) in which he sought to name Betty Sue Pugla, Infectious Control Nurse, SCI-Mahanoy and Dr. Edelman, Medical Department, SCI-Mahanoy as additional Defendants.
By Order dated July 10, 2003, the Court granted Lee's motion to proceed in forma pauperis, and his motion to amend to name two additional Defendants. (Doc. 6.) The Court also dismissed Lee's claims pursuant to 28 U.S.C. § 1915(e): the claims against Beard, Gillis, Dascani, Rodichok, Sewell, Loch, Cerullo, Kneiss, Klemm, and Pugla were dismissed without prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b)(i); the complaint was dismissed against Dr. Kort, Dr. Edelman, and Head Nurse Alice Chipriano for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii); and Lee was granted leave to amend within twenty (20) days of the date of the Court's Order. (Doc. 6.) Lee was warned that failure to file such amendment would result in the dismissal of his action. Id.
By Order dated August 11, 2003, Lee's complaint was dismissed for failure to timely comply with the Court's order to file an amended complaint. (Doc. 10.) Subsequently, on August 29, 2003 and September 15, 2003, Lee filed motions for reconsideration of this Court's August 11, 2003 Order dismissing his case. (Docs. 11, 12.) By Order dated February 11, 2004, Lee's motions for reconsideration were granted, and Lee was granted leave to file an amend complaint within twenty (20) days of the date of the Order. (Doc. 14.)
After being granted two enlargements of time (Docs. 16, 18), Lee filed his amended complaint on May 6, 2004. (Doc. 20.) The amended complaint names as defendants Wilma Sewell, Correctional Health Care Administrator, SCI-Coal Township; Judy Rodichok, Medical Director, SCI-Coal Township; Dr. Kort, SCI-Coal Township; Marva Cerullo, Medical Department Administrator; Dr. Edelman, Medical Department, SCI-Mahanoy; and Nurse Betty Sue Pugla, Infectious Control Nurse, SCI-Mahanoy.
On August 10, 2004, defendants Joseph Kort, M.D., Adam Edelman, M.D. and Judith Rodichok filed a motion to dismiss Lee's amended complaint. (Doc. 26.) By Order dated February 10, 2005, Lee's amended complaint was dismissed as barred by the statute of limitations, with respect to Defendants Kort and Rodichok, and for failing to state a claim against Defendant Edelman. (Doc. 38.) Although Defendants Sewell, Cerullo and Pugla did not join in the moving Defendants' motion to dismiss, the Court found that dismissal of these Defendants was appropriate pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), which permits a court, at any time, to dismiss an action if it determines that the action is frivolous, malicious, or fails to state a claim. Id.
On February 25, 2005, Lee filed a Notice of Appeal with the United States Court of Appeals for the Third Circuit. (Doc. 42.) On December 23, 2005, the Court of Appeals affirmed the dismissal of Defendants Kort, Rodichok and Sewell, and reversed the dismissal of Defendants Edelman, Cerullo and Pugla finding that:
It may be that Edelman's decision to postpone treatment for a year was based on a medical judgment, but taking the allegations of the complaint to be true, it may be it was based on deliberate indifference. Similarly, Nurse Pugla told him he needed to wait four months for a new protocol. It is not clear from the record that her actions were based on medical judgment.
As to the claims against Cerullo, Lee alleges in his amended complaint that he submitted grievances and complaints to Cerullo, and that she ignored them. Thus, it appears that Lee's allegations against Cerullo are based on her direct actions or inaction, rather than on respondeat superior. (Doc. 57 at 5-6.) Thus, the Court of Appeals held that for purposes of a motion to dismiss, Lee's allegations were sufficient to state a claim of deliberate indifference. Id.
Presently before the Court are motions for summary judgment filed on behalf of Defendants Cerullo and Pugla, and Dr. Edelman. (Docs. 79, 87.) The motions have been fully briefed by the parties and are ripe for disposition. For the following the reasons, the motions will be granted.
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 Bhd. of Carpenters and Joiners of Am., 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. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Elec. Co., 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 Corp. 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 Elec. Indus. Co. v. Zenith Radio Corp., 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 ...