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Plaster v. Kneal

August 11, 2009


The opinion of the court was delivered by: Judge Munley

Magistrate Judge Blewitt


Before the court are Plaintiff Ronald Plaster's objections (Doc. 189) to the Report and Recommendation of Magistrate Judge Thomas M. Blewitt (Doc. 183). Magistrate Judge Blewitt proposes that we grant the defendants' Motion for Summary Judgment (Doc. 165), in regard to defendants Dr. Scott Sterling, D.O. and Ronald Slivka, P.A. (hereinafter "Medical Defendants"). Having been briefed, this matter is ripe for disposition.


This case arises out of the plaintiff's incarceration at the State Correctional Institution at Frackville ("SCI-Frackville"). (Amended Complaint (Doc. 112) at ¶ 3) (hereinafter "Am. Compl."). Originally, the plaintiff filed, pro se, a civil rights action pursuant to 42 U.S.C. § 1983 naming ten defendants, nine of whom are employed by the Pennsylvania Department of Corrections at SCI-Frackville. (Doc. 1) (hereinafter "Compl."). The remaining defendants in this case are: Kevin Kneal, security captain at SCI-Frackville; Barbara Malewski, the correctional healthcare administrator at SCI-Frackville; Scott Sterling, the doctor at SCI-Frackville, and Ronald Slivka, a physician's assistant at SCI-Frackville. (Am. Compl. ¶¶ 4-8).

Plaintiff Plaster contends that prison guards, officials, and medical staff denied him access to a specific type of knee brace that would prevent him from suffering continued injury to his left knee. (Id. at ¶¶ 11-13). The plaintiff asserts that the prison and its medical staff demonstrated deliberate indifference to his serious medical needs, thus violating the Eighth Amendment prohibition of cruel and unusual punishment. (Id. ¶¶ 40-53).

Plaintiff Plaster first entered SCI-Frackville in 2005 with a history of chronic dislocating left knee and loose knee syndrome. (Compl. at ¶ 13). A knee stabilizer brace with a metal or plastic hinge was ordered in August 2005 by a member of the prison medical staff to treat his condition; however, according to the plaintiff, this brace was not the proper brace for his medical needs. (Compl. at ¶ 14-15). The Plaintiff admitted that he was offered another type of knee brace, but claimed that he would not sign a waiver for it since it was not the proper, hinged knee stabilizer brace that prison medical staff had ordered. (Id.)

Plaintiff Plaster avers that he was given the wrong knee brace due to security concerns. (Id. at ¶ 16). According to the plaintiff, his knee dislocated eleven times in one year and that this happened because he was issued the improper brace and was given substandard medical treatment. (Id. at ¶ 17). These actions, as the plaintiff alleges, amounted to deliberate indifference to his serious medical needs. Moreover, the plaintiff maintains that the deliberate indifference to his dislocating knee caused him severe pain and suffering and lasting damage. (Id. at ¶ 20).

On December 27, 2006, this court entered a memorandum and order adopting previous recommendations of Magistrate Judge Blewitt and dismissed all claims against the moving defendants except Plainitff Plaster's Eighth Amendment claims. (Doc. 23). The Magistrate Judge granted Plaintiff Plaster's motion to file an amended complaint against the Medical Defendants and Lora Ellsworth, P.A. on October 18, 2007. Medical Defendants and Ellsworth subsequently filed a motion to dismiss the plaintiff's amended complaint. (Doc. 120, 121). Magistrate Judge Blewitt issued a report and recommendation on the motion to dismiss on April 29, 2008. (Doc. 139). On August 29, 2008, this court entered a memorandum and order adopting in part Magistrate Judge Blewitt's recommendations. We granted the motion to dismiss Defendant Ellsworth only and remanded the case to Magistrate Judge Blewitt for further proceedings. (Doc. 151). The remaining Medical Defendants subsequently filed a motion for summary judgment on December 18, 2008. (Doc. 165).

A brief in opposition was due by February 9, 2009, in accordance with the Magistrate Judge's Order. (Doc. 171). Plaintiff Plaster did not respond by that date. Magistrate Judge Blewitt subsequently filed a Report and Recommendation on the Motion for Summary Judgment on April 13, 2009. The Magistrate Judge recommended that the Motion for Summary Judgment be deemed unopposed and that the motion be granted on the merits. That same day, however, Plaintiff Plaster's brief in opposition was filed. The plaintiff also later filed objections to the report and recommendation on June 3, 2009. Although untimely, we accept both filings and render a decision based on the merits.


Because this case is brought pursuant to 42 U.S.C. § 1983 and alleges violations of the plaintiff's Eighth Amendment rights, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").


In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The district court ...

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