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Malles v. Lehigh County

July 27, 2009

JAMES R. MALLES
v.
LEHIGH COUNTY, ET AL.



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

James Malles sues Lehigh County and PrimeCare Medical, Inc. ("PrimeCare")*fn1 pursuant to 42 U.S.C. § 1983 for allegedly violating his Eighth Amendment rights while he was an inmate at Lehigh County Prison. Malles claims that he contracted Methicillin Resistant Staphylococcus Aureus ("MRSA") while he was incarcerated there and that the defendants unconstitutionally failed (1) to provide him timely, adequate medical care and (2) to protect him from getting infected. He also sues PrimeCare for negligence under state law.

The defendants filed motions for summary judgment, and Malles responded to both motions. For the reasons we discuss at length below, we will grant summary judgment regarding Malles's § 1983 claims and decline to exercise supplemental jurisdiction over the remaining state law claim.

I. Factual Background

A. Plaintiff's History

Plaintiff James Malles was born on July 30, 1949 and graduated from Overbrook High School in Philadelphia. Malles Dep. at 5-6. After high school he worked at a variety of jobs, including assisting in a photographer's studio in Philadelphia and working at a car wash and bakery in Florida. Id. at 6-8. He went to the emergency room once in Florida because his arms popped out of joint.*fn2 Id. at 30. He returned to Pennsylvania to care for his ailing mother, who died in 1988 or 1989. Id. at 8-10.

From 1989 to 1999 Malles served a ten-year sentence at SCIGraterford for sexual assaults that occurred in Florida and Pennsylvania. Id. at 10-13. During his time in custody, Malles was treated for gastroesophageal reflux, and he has taken Zantac to treat those symptoms. Malles Dep. at 33. After Malles was released, he worked in warehouses through a staffing or employment agency in Allentown. Id. at 14. During that period he suffered two hernias, for which he had surgeries. Id. at 15-17, 36-37. Malles then moved into a hotel, where he also worked part-time. Id. at 19-20. He was taken to the hospital during this time with chest pains, but it turned out to be "gas building up around [his] chest." Id. at 33-35.

Malles was again arrested in 2005 for sexual assault. Id. at 20, 22. He pled guilty and received a sentence of ten to forty years. Id. at 23, 38. Malles was held at Lehigh County Prison from the day of his arrest, April 30, 2005, through December 1, 2006. Id. at 24, 38. He was transferred to Graterford and then to Camp Hill. Id. at 24-25. He is currently held at Albion. Id.

B. Inmates' Medical Care at Lehigh County Prison

At Lehigh County Prison ("Prison"), PrimeCare is responsible for the inmates' medical care, and Nancy Afflerbach, the Deputy Warden of Treatment, was the liaison between PrimeCare and the Prison. Afflerbach Dep. at 29, 75. To request medical care from PrimeCare, inmates at the Prison would fill out a "sick call slip." Id. at 73. PrimeCare nurses also visit the inmates three times each day to deliver medications, and, according to PrimeCare, these nurses may -- but are not required to -- have slips with them. Haskins Dep. at 79; Bahnick Dep. at 20. Usually, when inmates ask these medication nurses for medical advice, the nurses tell them to fill out a slip. Haskins Dep. at 79. PrimeCare believes that correctional officers also have the slips, but PrimeCare will consider any request from an inmate, even if it is not on a slip. Id. at 80 ("An inmate can write a request literally on a piece of toilet paper and place it in a sick call box. And we would have to respond to it."). See also Bahnick Dep. at 20. But is not sufficient for inmates to simply make an oral request to the medication nurses. Haskins Dep. at 80. According to Malles, inmates were "lucky" to get sick call slips, which were not readily available.*fn3 Malles Dep. at 73.

C. MRSA at Lehigh County Prison

MRSA is an infection that is resistant to methicillin, which PrimeCare Health Services Administrator Josephine Bahnick characterized as "one of the stronger antibiotics." Bahnick Dep. at 22. One can contract MRSA from poor personal hygiene or by sharing gym equipment, toilet facilities, or soap. Id. at 22-23. Some people with skin conditions, such as boils or skin eruptions, are more prone to getting MRSA. Id. at 25.

Afflerbach knew that a female inmate with MRSA had come to the Prison in 2003, and there was a meeting between Prison officials and PrimeCare in February of 2004 to discuss changes that they were considering at the Prison in response to MRSA. Afflerbach Dep. at 50-51, 63-64. Beginning in at least 2004, Warden Meisel was aware that MRSA could spread from one person to another. Meisel Dep. at 19, 31. He believes that MRSA is a "problem" and that suppressing MRSA and other diseases, such as hepatitis C or scabies, is "an issue." Id. at 30. Meisel reviews information about MRSA outbreaks at the Prison on a quarterly basis. Id. at 28. PrimeCare Vice-President Todd Haskins said that the Prison had "an established protocol for treatment in dealing with" MRSA when PrimeCare took over the healthcare services contract at the Prison in the fall of 2004, but he could not name any specific procedures. Haskins Dep. at 41.

PrimeCare and the Prison did establish a process for addressing MRSA infections. Inmates who possibly have MRSA are tested for the infection and placed in medical isolation while the prison waits for lab results. Bahnick Dep. at 42. After the lab results come in, an infected inmate stays in isolation until any wounds are closed, and he takes an antibiotic to which his particular strain of MRSA will respond.*fn4 Id. at 42-43. Bahnick receives information about MRSA infections from PrimeCare and makes monthly reports to the Quality Assurance Committee -- which is comprised of Bahnick, the Nursing Supervisor, the Warden, and Afflerbach. Id. at 53-54. But when one inmate is infected with MRSA, PrimeCare does not usually notify other inmates. Id. at 55.

The defendants also took some steps to try to prevent MRSA infections. Prison staff began receiving a handout about MRSA in February of 2004.*fn5 Meisel Dep. at 32. That year, the Prison also eliminated inmates' use of wash-cloths. Id. at 20. Every time PrimeCare inspected the laundry facilities at the Prison, the water temperature was at the appropriate level. Bahnick Dep. at 63-64. There is no evidence to support Malles's claim that the Prison was cited for health violations.*fn6 In 2004, the Prison also switched to antimicrobial or antibacterial soaps for inmates' personal use, and inmates in medical isolation used a Hypacleanse or Dial soap that was not mandated for the rest of the population. Afflerbach Dep. at 65, 68, 85; Bahnick Dep. at 38-40. The Prison also implemented other changes in medical isolation that it did not put into place for the general population. Afflerbach Dep. at 83. For example, Afflerbach knows that since 2004 they have used a chlorine bleach cleaning solution for the cells of inmates in medical isolation and have since then implemented that for the general prison population. Id. at 83-84.

On June 20, 2005, PrimeCare distributed a "Policy Review Update" to a number of people, including Health Services Administrators and "All Contract Sites." Memo from Francis J. Komykoski to Junior Vice Presidents, et al., June 20, 2005, Pl.'s Ex. I. This document included a policy titled "MRSA Infection Control Measures," which explained what MRSA is, how people contract it, how to identify it, and other basic information.

See MRSA Infection Control Measures, Pl.'s Ex. I ("Control Measures"). The Control Measures included a list of activities and procedures for "[s]uccessful management" of MRSA, such as discussing prevention with all new inmates, posting a fact sheet for inmates about MRSA, teaching good hygienic practices "including access to showers," review of a MRSA fact sheet by medical staff, assuring "prompt access to medical care for all skin complaints,"*fn7 and frequent changing of laundry and "adequate environmental cleaning." Id. at 5. The policy also directed PrimeCare staff to, among other things, encourage inmates to report skin lesions, "[c]ulture if possible all skin infections upon presentation," evaluate those whose cellmates have MRSA and others who may have close contact with them, and isolate inmates suspected of having MRSA. Id. at 5-6. Inmates with suspected or diagnosed MRSA were to shower daily, and the shower was thereafter to be cleaned with a bleach solution. Id. at 7. Cells of infected inmates were also to be cleaned with the bleach solution. Id. at 7.

As described above, PrimeCare issued the Control Measures during Malles's time at the Prison, and some -- but by no means all -- of these recommendations were put ...


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