The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay
Re: Dkt. Nos.  & 
Douglas Birckbichler ("Plaintiff"), a prisoner at various county jails and now currently incarcerated in the Pennsylvania Department of Corrections, contracted AIDS. He has brought the instant suit against the Butler County Prison ("BCP"), the Butler County Prison Board, the County of Butler and Southern Health Partners ("SHP"), a private medical provider under contract with the BCP. Plaintiff alleges that while he was most recently incarcerated at BCP, he did not receive the drugs he needed to treat his AIDS even though he was given drugs to treat the opportunistic diseases that AIDS essentially causes or permits to occur. Because he has failed to adduce evidence of a policy on the part of either Butler County or on the part of SHP, summary judgment must be entered in favor of the Defendants. In the alternative, because his personal AIDS specialist physician recommended against the provision of the drugs intended to treat AIDS while he was at BCP given Plaintiff's history of non-compliance in taking these specific drugs and due to the anticipated short stay at BCP, and this recommendation was followed by the BCP, Plaintiff cannot establish a deliberate indifference claim.
Plaintiff complained that as of June 26, 2007 (i.e., the date of his most recent incarceration in BCP) until December 1, 2007 (i.e., the date he signed his complaint), his right to be free of cruel and unusual punishment was being violated in that the Defendants were not providing him with medical care. In his pro se complaint, he complained that the Warden and two Deputy Wardens at BCP "refused me medical care[,]" Dkt.  at 2, ¶ IV.C, by their refusals to answer Plaintiff's requests, complaints and grievances and by their failure to force SHP to provide Plaintiff with care. Plaintiff complained that BCP "refused me appropiate [sic] care by collusion of all staff to ignore my condition, symptoms, pain, suffering, sores, disfigurement, sick call slips, request slips and grievance forms." Dkt.  at 3, ¶ IV.4. Plaintiff also alleged that the Butler County Prison Board, refused him care by "failing to contract with an adequate and competent medical care provider for inmates at the Butler County prison." Id., at ¶ 5.
Next, Plaintiff alleged that Butler County "refused me and/or caused me to be refused appropriate care by failing to properly evaluate Southern Health Partners as an adequate and competent provider of medical care before entering into [a] binding contract with Southern Health Partners. A five minute period of time on the Internet [shows that] the doctor, Dr. Wilcox [i.e, Dr. Simmon Wilcox], is neither an adequate nor competent medical doctor and that parts of his medical license are suspended as a result of criminal conduct on his part which forced him to flee the United States for a period of time. I am sure that further investigation would have been even more revealing." Dkt.  at 3 to 4, ¶ 6.*fn1
Lastly, Plaintiff's complaints concerning SHP are as follows:
[a]ll staff of Southern Health Partners have been denying me appropiate [sic], medically necessary, life sustaining/prolonging, preventive and prophylactic care for the past 5 months. I have been and still am being refused all medically necessary testing, treatment, medications, pain relief and physical exam by Southern Health Partners that are necessary to treat appropriately, my primary diagnosis of AIDS. This refusal to treat my primary AIDS diagnosis has caused my immune system to deteriorate to the point that I have had to suffer intolerable and unnecessary pain from opportunistic infections and other illnesses that could have been avoided by providing me with appropiate [sic] care, medication and treatments for my primary diagnosis of AIDS. This opportunistic infections [sic] and associated illnesses are either undertreated or ignored altogether.
Presently before the Court*fn2 are the motions for summary judgment filed by the Defendants. For the reasons that follow, the motions will be granted.
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden to show or point out why there is no genuine issue of material fact. Walters ex rel. Walters v. General Motors Corp., 209 F.Supp.2d 481, 484 (W.D. Pa. 2002). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial..." or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing the summary judgment evidence, the Court has no duty to search the record for triable issues; rather, it need rely only on those portions of the evidentiary record to which the nonmoving party directs its attention. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
"The substantive law governing the dispute will determine which facts are material, and only disputes over those facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004)(internal quotations omitted). An issue of material fact is genuinely disputed only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587. The inquiry involves determining whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable... or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Moreover, it is not enough for the nonmovant to show that there is some dispute as to facts, rather, "only disputes over facts that might affect the outcome of the suit will prevent summary judgment." Anderson, 477 U.S. at 248. AccordRexnord Holdings v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) ("[T]he mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]"); Dykes v. DePuy, Inc., 140 F.3d 31, 36 (1st Cir. 1998) ("summary judgment is not precluded by just any factual quibble").
In short, the summary judgment motion is an evidence testing device to see if there is sufficient evidence to support a party's position with respect to an issue for which that party bears the burden of proof at trial so as to justify holding a trial. See, e.g., Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001)(summary judgment "is the... moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.").
1. Relevant Right at Issue
Although Plaintiff's complaint does not specifically reference Section 1983 of the Civil Rights Act, a liberal reading of the complaint requires the Court to infer that Plaintiff is making his claim under the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983 ("Section 1983"). Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)("a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983."); Pauk v. Board of Trustees of City University of New York, 654 F.2d 856 (2d Cir 1981)(where a federal statute governing civil action for deprivation of rights provides a remedy, i.e., 42 U.S.C. § 1983, an implied cause of action grounded on Constitution is not available), overruling on other grounds as recognized in, Brandman v. North Shore Guidance Center, 636 F.Supp. 877, 879 (E.D.N.Y. 1986).
In order to prove a Section 1983 cause of action, a plaintiff must produce evidence of (1) misconduct that was committed by a person acting under color of state law and (2) that as a result of such misconduct, the plaintiff was deprived of rights, privileges or immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988). "The first step in evaluating a section 1983 claim is to 'identify the exact contours of the underlying right said to have been violated' and to determine 'whether the plaintiff has alleged a deprivation of a constitutional right at all.'" Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc).
As an initial matter, all of the parties appear to assume that the relevant right at issue herein is Plaintiff's Eighth Amendment rights to be free of deliberate indifference. It appears, however, that at least between June 26, 2207 and October 22, 2007, Plaintiff was a pre-trial detainee. We take judicial notice of the dockets of the Court of Common Pleas of Butler County which demonstrate that Plaintiff was housed at BCP from June 27, 2007, after he failed to make bond, until October 23, 2007, when he plead guilty to three criminal cases*fn3 and was sentenced that same date. Thus, the Fourteenth Amendment substantive due process standards applicable to non-convicted/non-sentenced prisoners would seem to apply here, at least from the period of time between June 26, 2007 and October 22, 2007. See Gary v. Modena, 2006 WL 3741364, at *3 (11th Cir. 2006)(unpublished)(Butts was a person arrested for violation of probation and the court stated that "[s]ince Butts was a pre-trial detainee at the time of alleged violations, Gary's deliberate indifference claims fall under the due process clause of the Fourteenth Amendment and not the cruel and unusual punishment prohibition of the Eight [sic] Amendment."); Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001)("Although the state had already 'secured a formal adjudication of guilt' for the crime underlying Brown's probation, it had not yet secured 'a formal adjudication' that Brown had violated his probation and should be returned to state custody. And, if Brown was a pretrial detainee rather than a convicted prisoner, then the Due Process Clause of the Fourteenth Amendment, rather than the ...