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John Milliner v. David Diguglielmo

March 26, 2012

JOHN MILLINER,
PLAINTIFF,
v.
DAVID DIGUGLIELMO, ET AL., DEFENDANTS.



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

MEMORANDUM/ORDER

This is an action brought pursuant to 42 U.S.C. § 1983 by John Milliner, a prisoner incarcerated at the Pennsylvania State Correctional Institution at Graterford ("SCIGraterford"), against various individuals and entities involved in the provision of Milliner's medical care while in state custody. Milliner's claims were the subject of a prior memorandum and order, entered on June 8, 2011 ("June 8 M&O"), which dismissed some of the claims of the complaint without prejudice. Milliner was subsequently granted leave to file a fourth amended complaint. Now pending before the court are two motions to dismiss the fourth amended complaint.

I. Background

A full summary of the case has already been provided in the June 8 M&O (Docket Nos. 81, 82). See Milliner v. DiGuglielmo, Civ. No. 08-4905, 2011 WL 2357824 (E.D. Pa. June 8, 2011). In brief, Milliner commenced this action pro se on October 14, 2008, against numerous medical providers and administrators at SCI-Graterford (Docket No. 1). Milliner subsequently moved for an appointment of pro bono counsel. That request was granted on September 30, 2009 (Docket No. 37). After the appointment of counsel, Milliner filed a new pleading-styled as the third amended complaint, Milliner having submitted several amendments pro se-on August 6, 2010 (Docket No. 62).

The third amended complaint alleged, in substance, that Milliner was injured during a fall from the top bunk of his cell at SCI-Graterford in October 2006; that Milliner was eventually referred to a neurosurgeon at Altoona Hospital, Dr. Carroll Osgood, for spinal surgery; that Dr. Osgood's spinal surgery was "botched" and resulted in Milliner becoming temporarily paralyzed; and that Milliner's post-operative care was woefully inadequate.

The third amended complaint was the subject of three motions to dismiss (Docket Nos. 64, 66, 76), which were granted in part and denied in part in the June 8 M&O. The June 8 M&O permitted Milliner to proceed with the following claims:

Count Description

II Deliberate indifference to Milliner's serious medical needs in violation of the

Eighth Amendment by Dr. John Zaro at SCI-Graterford, predicated on Dr. Zaro's conduct prior to Milliner's surgery;

III Municipal liability of Prison Health Services, Inc. ("PHS")-the private corporation with whom the state had contracted to provide medical services at SCI-Graterford-for Eighth Amendment violations allegedly caused by PHS's failure to establish a policy to ensure adequate post-operative care and/or adequate housing accommodations for a patient such as Milliner;

IV State-law medical malpractice against Dr. Zaro and three other medical providers at SCI-Graterford-Raymond Machak, Dr. Richard Stefanic, and Dr. Caleb Nwosu-predicated on the care or lack thereof received by Milliner both before and after Milliner's spinal surgery;

V State-law corporate liability for medical malpractice against PHS;

VI State-law vicarious liability for medical malpractice against PHS;

VII State-law medical malpractice against Dr. Carroll Osgood, the physician who performed Milliner's spinal surgery;

IX State-law vicarious liability for medical malpractice against Altoona Hospital, where Milliner's ...


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