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Gallo v. Washington County

February 4, 2009

RONALD J. GALLO, PLAINTIFF(S),
v.
WASHINGTON COUNTY ET AL., DEFENDANT(S).



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

Memorandum Opinion on Summary Judgment

I. Introduction

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff, Ronald Gallo ("Gallo"), contracted Methicillin Resistant Staphylococcua Aureua ("MRSA"), while an inmate at Washington County Prison. He alleges that defendants Washington County, Joseph S. Pelzer ("Warden Pelzer") and Cheryl McGavitt ("Nurse McGavitt") (collectively referred to as "Washington County defendants") were deliberately indifferent to his medical needs, in violation of the Eighth Amendment to the United States Constitution, and that they failed to implement and enforce policies to protect plaintiff from MRSA, while utilizing policies and customs that placed plaintiff (and others) at risk of infection, in violation of 42 U.S.C. § 1983. Plaintiff also brings supplemental state law claims for professional negligence against Drs. Jeffrey Minteer, M.D., Richard Aprea, M.D., and David Druskin, P.A. (collectively referred to as "the physician defendants") for their alleged negligence in treating and/or failing to treat plaintiff's serious medical condition.

Pending before this Court are the motions for summary judgment and supporting documentation filed on behalf of the physician defendants (doc. no. 59) and the Washington County defendants (doc. no 62). After careful consideration, and for the reasons that follow, this Court finds that plaintiff has failed to adduce evidence from which a reasonable finder of fact could determine that the actions and policies of the Washington County defendants amounted to deliberate indifference, as is required in order to maintain an action under the Eighth Amendment. The Court finds that when judging the facts in the light most favorable to plaintiff as the non-moving party, the facts may establish a case of negligence against the Washington County defendants, but falls short of the quantum of culpability required in order to maintain a civil rights action for violation of the Eighth Amendment. Therefore, summary judgment will be GRANTED as to the Washington County defendants (doc. no. 62). The Court will decline to exercise its supplemental jurisdiction to hear the remaining state law professional negligence claim against the physicians, will dismiss this claim without prejudice for said claim to be refiled in state court, and accordingly, the Court will decline to rule on the physician defendants' motion for summary judgment (doc. no. 59).

II. Summary Judgment Standards

Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "'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 a judgment as a matter of law." Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). In deciding a summary judgment motion, the court must "view the evidence . . . through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and 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); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).

"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004.) See also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (court must view facts in the light most favorable, draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party ).

III. Material Facts

The Court has gleaned to following factual background, which unless otherwise noted, is undisputed.*fn1

a. Plaintiff's First Antibiotic Treatment at Washington County Correctional Facility

Plaintiff was admitted to the Washington County Correctional Facility on June 30, 2006 for an alleged parole violation and was seen by a nurse upon intake. Prior to his incarceration, plaintiff was treated at a local hospital for an infection in his finger and was prescribed a prescription for Keflex, which he did not take. Plaintiff was again prescribed Keflex by defendant David Druskin, a Physicians Assistant ("Druskin") at the Washington County Correctional Facility for the infection in his finger. That medication was administered by the nursing staff four times a day for five days. Plaintiff was re-evaluated by defendant Druskin on July 3, 2006.

b. Plaintiff is Moved to a New Cell

According to plaintiff, on the night he was placed into a new cell, at 9:15 p.m. on August 21, 2006, he was not permitted to clean his cell by the corrections officer who placed him in his cell, despite jail policy requiring him to clean and disinfect his cell (jail policies are discussed more fully below in section d). Plaintiff was not permitted to clean his cell until a few days later.

Shortly after being placed into the cell, plaintiff was allegedly told by some unnamed person that the prior inhabitant in his cell had MRSA. The inmate housed in the cell immediately before plaintiff (S.M.) was treated on August 21, 2006 (the same day as plaintiff's transfer into the new cell) for MRSA-like symptoms and was prescribed Bactrim.*fn2 The inmate's culture for MRSA came back positive.

c. Plaintiff Is Diagnosed With MRSA

On August 24, 2006, defendant Nurse McGavitt (who is the nursing supervisor at the Washington County Correctional Facility) evaluated plaintiff at the direction of Deputy Warden John Temas because of a concern expressed by family members that he was not getting enough to eat, and during that evaluation, plaintiff made no complaints to defendant Nurse McGavitt. Two days later, on August 26, 2006, plaintiff complained of a sore on his arm which was beginning to hurt. On August 26, 2006, as a result of that complaint, plaintiff was examined by a nurse and was told to place warm compresses on the area and that a recheck would be done in the morning.

On the morning of August 27, 2006, plaintiff was rechecked by the nurse at which the sore exhibited no redness, swelling or drainage. However, on the evening of August 27th, the sore began to exude a light tan colored drainage and, according to defendant Nurse McGavitt, plaintiff was advised to keep it clean and covered, and he was placed on sick call for the next day.

On August 28, 2006, plaintiff was again evaluated by defendant Druskin, a culture of the wound was taken, and he was started on Augmentin (an antibiotic). On August 30, 2006, the antibiotic was changed to Bactrim and prescribed for seven days because the culture showed MRSA bacteria ("numerous MRSA"). During the time period when plaintiff was being treated with Bactrim, plaintiff told his grandmother that his elbow was clearing up and that he was feeling better.

Nonetheless, plaintiff was given instructions by the prison staff as to the restrictions that were going to be placed upon him by the prison as a result of his MRSA diagnosis - -specifically, that he would be the last inmate to take a shower and that he would be required to disinfect the shower after his use of it. Plaintiff complained to his grandmother about being the last person to take a shower and then having to clean it after all of the other ...


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