The opinion of the court was delivered by: Judge Munley
Before the court for disposition are three motions for summary judgment. The motions were filed by Defendant Dr. Edward Zaloga, Defendant Correctional Care, Inc., and Defendant Lackawanna County. The motions have been fully briefed and are ripe for disposition. Background
On June 6, 2006, a parole violation landed Plaintiff Rudy Garafola in the Lackawanna County Prison. Many years prior, he had been in an automobile accident and suffered injuries to his hip. He had several hip surgeries, including the surgical placement of a partial artificial hip. (Doc. 98, Plaintiff's Counterstatement of Facts ("Pl. SOF") ¶ 8; Doc. 84-5 Defendant Zaloga's Statement of Facts ("Def. SOF") ¶ 8). During a medical intake interview, plaintiff informed the Lackawanna County Prison intake officer of the multiple surgeries on his right hip. (Doc. 98, Pl.SOF ¶ 9, Pl. Ex. C., Pl. Dep. at 63 - 65).*fn1
When he entered Lackawanna County Prison, plaintiff requested a lower bunk assignment, because he did not want to have to jump off an upper bunk due to his history of hip problems. (Doc. 99-2, Pl. Dep. at 45-46). The prison failed to respond to his request. (Id. at 44-45). He was forced to jump from the bunk to reach the floor of his cell. In late August 2006, plaintiff broke his greater trochanter bone, a part of his upper thigh bone, by jumping from the upper bunk. (Id. at 48-49, 119-124).
During the pertinent times, Lackawanna County contracted with Co-Defendant Correctional Care, Inc. ("CCI") to provide healthcare to the inmates at the county prison. (Doc. 101, Def. Lackawanna County's SOF ¶ 5, and plaintiff's response thereto, Doc. 105, ¶ 5). Defendant Dr. Edward J. Zaloga is the sole owner, president and chief medical officer of CCI. (Doc. 89, Zaloga SOF ¶ 1, and Pl's response thereto, Doc. 96 ¶ 1).
On August 23, 2006, plaintiff went to the prison "sick call" and told a nurse at the prison that his hip was broken or that the hardware from the previous surgeries was broken or loose. (Doc. 99-2, Pl. Dep. at 60). At this time, the prison doctor, Defendant Zaloga did not examine the plaintiff. Rather, he talked to the nurse and authorized plaintiff to receive 600 milligrams of Motrin three times a day. (Def. Zaloga, Ex. F., Prison Medical Records at 1). Motrin is a pain relief medication with an active ingredient of Ibuprofen. It is used to treat minor aches and pains such as headaches and muscle aches. See Http://www.motrin.com/page.jhtml?id=/motrin/products/1_6_1.inc&sec=ove
At this stage of the proceedings, however, the court must examine the facts in the light most favorable to the plaintiff. Therefore, for purposes of this motion, we proceed on the basis that plaintiff do so inform the prison.
Plaintiff next went to sick call on September 6, 2006. (Def. Zaloga, Ex. F., Prison Medical Records at 2). He complained of pain in his hip. Again, he was not seen by a doctor and was prescribed Motrin. (Id.) On September 20, 2006, the same outcome occurred when plaintiff sought medical attention. (Id.)
On October 10, 2006, plaintiff again went to sick call. He explained that he thought he had broken his hip pin when he jumped off the top bunk a month and a half previously. (Id.) Dr. Zaloga examined plaintiff for the first time on this date and noted the possibility of a "damaged/dislodged" right femoral prosthesis. (Id.) He ordered an increase in the Motrin and an x-ray. He further ordered no recreation or work for the plaintiff. (Id.)
Eventually, Dr. Zaloga ordered that the prison supply plaintiff with a lower bunk. Defendants indicate that ordering no recreation or work and a lower bunk is "conservative treatment." Plaintiff argues that this is no treatment at all but a decision to require plaintiff to remain in bed for the remaining nine months of his sentence. (Doc. 99-2, Pl. Dep. at 73). Upon his release from jail, plaintiff sought medical treatment, and, as noted above, it was ultimately determined that he had broken his greater trochanter bone.
Based upon these facts, plaintiff instituted the instant action against the defendants. He asserts the following three claims for relief: 1) 42 U.S.C. § 1983, against Defendant Lackawanna County alleging that its policies and/or customs constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution; 2) 42 U.S.C. § 1983 against Defendants CCI and Zaloga alleging that their actions constituted cruel and unusual punishment under the Eight Amendment to the United States Constitution and 3) Negligence/Gross Negligence, against Defendants Zaloga and CCI.*fn2 At the close of discovery each defendant filed a motion for summary judgment. These motions are now ripe for disposition.
As this case is brought pursuant to 42 U.S.C. § 1983 for constitutional violations, we have jurisdiction under 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."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing 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). In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
As noted above, the defendants filed three separate summary judgment motions. We will address each one in turn.
The second amended complaint contains two claims against Defendant Zaloga. First, it asserts that Zaloga exhibited deliberate indifference to plaintiff's serious medical needs which constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. (Doc. 57, Second Am. Compl. ¶ 42). The second claim against Zaloga is for medical negligence/gross negligence. (Id. ¶¶ 45 - 49). As part of the damages, plaintiff seeks punitive damages. Zaloga moves for summary judgment on the Eighth Amendment claim, the negligence claim and the punitive damages claim. We will address each separately.
1. Eighth Amendment claim
Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of the United States Constitution by state officials. See 42 U.S.C. § 1983. In pertinent part, section 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] 42 U.S.C. § 1983.
Plaintiff alleges that Defendant Zaloga violated his Eighth Amendment right to be free from cruel and unusual punishment because he failed to treat him for the fractured bone he suffered in prison. To demonstrate Eighth Amendment cruel and unusual punishment based on the denial of medical care in a prison, a plaintiff must establish that defendants acted "with deliberate indifference to his or her serious medical needs." Estelle v. Gamble, 429 U.S. 97 (1976); Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir.1993). A prison official's deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment because the government has an "obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. A prisoner plaintiff "must show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cnty Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Defendant Zaloga does not brief the issue of whether plaintiff's hip injury constituted a serious medical need. The court therefore assumes that defendant concedes for purposes of summary judgment that it was a serious medical need. Therefore, we must only determine whether defendant's actions indicate deliberate indifference to plaintiff's medical need.*fn3
Defendant argues that in analyzing deliberate indifference, a court must determine whether the prison official "acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 841 (1994). A prisoner plaintiff must prove that the prison official "knows of and disregards an excessive risk to inmate health or safety." Id. at 837. A mere complaint that medical staff have "been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment [as] medical mistreatment does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. See also Durmer, 991 F.2d at 69 (inadequate medical treatment resulting from negligence is not a constitutional violation).
Plaintiff agrees that in order to make out a claim, he must establish both a serious medical need and deliberate indifference to that need. He asserts, however, that Farmer is not on point. That case dealt with a situation where prison official's provided care, but did so in a negligent manner. Plaintiff argues that this case is about a denial of medical care and that the analysis provided in Monmouth Cnty Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) is more directly on point. Monmouth explains as follows:
Where prison authorities deny reasonable requests for medical treatment, however, and such denial exposes the inmate "to undue suffering or the threat of tangible residual injury," Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976) (cited with approval in Estelle, 429 U.S. at 105 n. 11, 97 S.Ct. at 291 n. 11), deliberate indifference is manifest. Similarly, where "knowledge of the need for medical care [is accompanied by the] . . . intentional refusal to provide that care," Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985), the deliberate indifference standard has been met. See Robinson v. Moreland, 655 F.2d 887, 889-90 (8th Cir. 1981) (jury could properly conclude that provision of ice-pack for inmate's fractured hand constituted deliberate indifference where prison guard knew medical care was needed). Short of absolute denial, "if necessary medical treatment [i]s . . . delayed for non-medical reasons, a case of deliberate indifference has been made out." Ancata, 769 F.2d at 704; accord Archer v. Dutcher, 733 F.2d 14 (2d Cir. 1984) (allegation that emergency medical care to pregnant inmate was delayed in order to make her suffer states a claim of deliberate indifference under Estelle ).
Monmouth, 834 F.2d at 346-7.
We find that a jury could conclude that Defendant Zaloga exhibited deliberate indifference to the plaintiff's serious medical needs. Plaintiff complained over a month and a half regarding the possibility that he had broken his hip, on which he had had many surgeries in the past. Defendant Zaloga did not even examine him during that time, but merely provided him a prescription for a pain reliever via the telephone. Finally, Dr. Zaloga recognized that plaintiff may have had a damaged or dislodged right femoral prosthesis. (Def. Ex. 2, Medical Records, Doc. 84-7, at 4) .
In response, Dr. Zaloga increased the Motrin. A nurse suggested another x-ray would be appropriate, but Dr. Zaloga never ordered one. The technician who had performed the first x-ray evidently did not do it properly. Plaintiff described the x-ray as follows: "I remember I was down the boiler room, and they called me to go to the doctors to get an x-ray. I went to get an x-ray. This lady met me in the doctor in the - - in the medical unit, had me lay down. And she took x-rays - - took three x-rays. I asked her at the end of the x-rays if the doctor was going to be able to tell if my femur is loose or something is broken. And she told me, why didn't you tell me that to begin with. I would have - - I believe she said darkened the film - - I'm pretty sure she said darken the film. She slammed her - - she slammed her x-ray machine shut and left." ( Doc. 99-2, Pl. Ex. C.,Pl. Dep. at 62).
When plaintiff continued to complain, and a nurse suggested an additional x-ray, Zaloga, instead of ordering the x-ray, ordered that the plaintiff perform no work. As a result of no treatment, or merely being provided Motrin, plaintiff suffered from the broken greater trochanter bone from August 23, 2006 through ...