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Brian Mccluskey v. Superintendent Mardi Vincent


June 7, 2011


The opinion of the court was delivered by: Cathy Bissoon United States Magistrate Judge

Magistrate Judge Bissoon


For the reasons that follow, Defendants' Motions for Summary Judgment (Docs. 54 and 61) will be granted.

Plaintiff has filed this prisoner civil rights case, pro se, claiming violations of the Eighth Amendment. Plaintiff's alleges that, as a result of poor conditions of confinement, he contracted Methicillin Resistant Staphylococcus Aureas ("MRSA"), and he claims that his MRSA was treated with deliberate indifference. See generally Compl. (Doc. 3).

Defendants have moved for summary judgment regarding deliberate indifference, arguing that Plaintiff's complaints regarding the treatment of his MRSA reflect a mere difference of opinion between himself and that of Defendants' medical professionals, and that, at most, Plaintiff's allegations amount to negligence or medical malpractice, which fall short of deliberate indifference. See, e.g., Defs.' Br. (Doc. 62) at 32-34. The Court agrees.

Defendants' evidence demonstrates that, between the time Plaintiff allegedly contracted MRSA in September, 2007, and when the condition was addressed to his satisfaction in July, 2008, Plaintiff was treated numerous times, through various regimens, on a regular basis.

See id. at 3-11 (summarizing, with record citations, Plaintiff's treatment for skin conditions/ MRSA on September 7, 14 and 28, 2007; October 15 and 31, 2007; November 8, 26, 28 and 30, 2007; December 3, 6, 13, 14, 17 and 31, 2007; January 7, 11, 14, 15, 16 and 31, 2008; February 18, 19, 23, 25 and 27, 2008; March 4, 7, 10, 11, 12, 13, 14, 16, 17, 18, 21, 24, 25, 28 and 30, 2008; April 4, 7, 15, 18 and 27, 2008; May 11, 12 and 27, 2008; June 2, 11, 18, 19, 23 and 30, 2008; and July 1, 2008).*fn1 While Plaintiff may believe that more effective treatment could have been provided earlier, he has offered no evidence demonstrating that the detailed, ongoing care provided by Defendants was insufficient. Compare Pl.'s Opp'n Br. (Doc. 58) at 2 (claiming that treatment regimens were "ineffective," and that "proper medical treatment was delayed" for over nine months) with, e.g., Defs.' Br. (Doc. 62) at 3-11 (summarizing numerous medications and treatment modalities prescribed for Plaintiff's various conditions and symptoms).*fn2 Even if the Court assumes, while expressly declining to so hold, that Defendants' treatment constituted negligence or medical malpractice, Plaintiff cannot show that Defendants' acts or omissions rose to a level of deliberate indifference. See Mitchell, 2011 WL 2134341 at *2 (deliberate indifference "must entail more than mere allegations of malpractice," and, "[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts . . . generally [will not] second guess medical judgments and . . . constitutionalize claims which sound in state tort law") (citations to published, binding authority omitted).

Plaintiff's conditions of confinement claim fares no better. Plaintiff offers no evidence regarding how or when he contracted MRSA, let alone that it resulted from unfit prison conditions. See Low v. Cox, 2010 WL 2851160, *3 (D. S.C. Jun. 23, 2010) (summary judgment appropriate where plaintiff offered only speculation in support of theory that MRSA infection resulted from conditions of confinement), R&R adopted by dist. ct. in 2010 WL 2851167 (D. S.C. Jul. 15, 2010). The only competent evidence of record reveals that: none of Plaintiff's thirty-five cell/cube mates had MRSA; although a previous occupant of Plaintiff's dormitory and bed had been diagnosed with MRSA, he moved out over one year before Plaintiff moved in; Plaintiff's dormitory and bed had been used by several other occupants in the interim; and that, consistent with DOC policy, the bed was cleaned and disinfected before each new inmate's use. See Defs.' Br. (Doc. 55) at 4-5 (citing record evidence). Even assuming the DOC's policies, or Defendants' implementation thereof, were less than fully effective, Plaintiff cannot meet his high burden of showing that Defendants "were subjectively aware that the policies . . . were so inadequate that they resulted in [Plaintiff] being exposed to a substantial risk of contracting . . . MRSA." Gallo v. Washington County, 2010 WL 318293, *3 (3d Cir. Jan. 28, 2010); accord Malles v. Lehigh County, 639 F. Supp.2d 566, 581 (E.D. Pa. 2009) (holding same wheredefendants "engaged in some efforts to stop the spread of the infection, even if they did not do everything they could or planned to do").*fn3

Defendants have demonstrated their entitlement to summary judgment, and the Court need not reach the other arguments presented in support of their Motions. Accordingly, Defendants' Motions for Summary Judgment (Doc. 54 and Doc. 61) are GRANTED.


cc (via ECF email notification): All Counsel of Record cc (via 1st Class U.S. Mail): Brian Mccluskey (pro se) GE-3337 SCI Laurel Highlands 5706 Glades Pike, Box 631 Somerset, PA 15501-0631

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