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Boone v. Dascani

United States District Court, Third Circuit

October 15, 2013



CYNTHIA REED EDDY, Magistrate Judge.

Presently before the Court are the following:

(1) Motion for Summary Judgment filed by Plaintiff, Edward Leon Boone (ECF No. 77), the Response in opposition filed by Defendants Dr. Dascani, Dr. Mollura, and Debra Yothers, P.A. (the "Medical Defendants") (ECF No. 93), and the Response in opposition filed by Defendants C. O. Daughtery, Lori Kwisnek, C. O. Sheetz, and Ken Sanders[1] (the "Commonwealth Defendants") (ECF No. 102);

(2) Motion for Summary Judgment filed by the Medical Defendants, with brief in support (ECF Nos. 89 and 90), and the Response in Opposition filed by Plaintiff (ECF Nos. 106 and 108); and

(3) Motion for Summary Judgment filed by the Commonwealth Defendants, with brief in support (ECF Nos. 98 and 99), and the Response in Opposition filed by Plaintiff (ECF Nos. 108 and 111).

The issues have been fully briefed and the factual record has also been thoroughly developed. See ECF Nos. 91, 92, 100, 101, 104, 105, 109, 110, and 112.

After careful consideration of the motions, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff, Edward Leon Boone. Therefore, for the reasons that follow, the Motion for Summary Judgment filed by Plaintiff will be denied in its entirety, the Motion for Summary Judgment filed by the Medical Defendants will be granted as to Plaintiff's federal claims, and the Motion for Summary Judgment filed by the Commonwealth Defendants will be granted as to Plaintiff's federal claims. Additionally, summary judgment will be granted sua sponte to Defendants Patricia Meister and W. Allamon. Plaintiff's state law claims of negligence and breach of confidentiality will be dismissed without prejudice.


Plaintiff, Edward Leon Boone, a state prisoner currently incarcerated at the State Correctional Institution at Pittsburgh, PA, has filed a complaint pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, in which he alleges that, while incarcerated at SCI-Greensburg, Defendants violated his rights and caused him irreparable harm.[2] Plaintiff asserts numerous state law and constitutional claims, including: breach of confidentiality, medical malpractice/negligence and deliberate indifference.

Named as defendants are various individuals employed by the Department of Corrections ("DOC") and medical professionals at SCI-Greensburg. Defendant W. Allamon has not been served. See ECF No. 79, Notice of Inability to effectuate service filed by U.S. Marshal as to Defendant Allamon.

Plaintiff alleges that he was first diagnosed as HIV positive in March 2006, and that such diagnosis was confirmed at SCI-Dallas during his pre-release examination in December 2010 conducted prior to being released on parole. After violating his parole, in October 2011, Plaintiff was returned to prison. At the time of his intake evaluation on October 5, 2011, at SCI-Greensburg, Plaintiff was thoroughly questioned about his past and present medical condition. Plaintiff expressly denied being HIV positive. See Initial Reception Screening/PV Returns Greater Than 90 Days (ECF No. 92, Exhibit 7).

Beginning in early February 2012, Plaintiff's routine lab results revealed an unusual white blood cell count. Defendant Yothers ordered a repeat blood test on February 7, 2012. The test was repeated on February 13, 2012, with similar results. Dr. Mollura ordered a third blood test, which was performed at the end of February 2012 and produced similar results to the prior two tests.

The medical record evidence reflects that on February 29, 2012, Defendant Yothers reviewed Plaintiff's medical file, and noted that during Plaintiff's pre-release examination conducted in December 2010, Plaintiff was diagnosed as HIV positive and that Plaintiff was informed of this diagnosis on December 15, 2010. Upon learning this information, Dr. Mollura referred Plaintiff to the Infectious Disease Clinic. Plaintiff began receiving HIV treatment on March 7, 2012.

The summary judgment medical record of evidence reflects that Plaintiff was seen by Dr. Mollura in mid-March 2012, with complaints of weakness and coughing. At that time, he was prescribed a five (5) day antibiotic treatment. At the conclusion of those five (5) days, Plaintiff alleges that he returned to the medical unit complaining of, inter alia, fatigue, decreased appetite, and difficulty breathing. He alleges that he was seen by Defendant Sanner, who took his vitals, told him nothing was wrong, and sent him back to his cell without having Plaintiff examined by either a physician's assistant or a doctor. Pl's Mot for Summ. J. at 7 (ECF No. 77.) Plaintiff contends that within twenty-four (24) hours of seeing Defendant Sanner, his condition worsened and he was rushed to Westmoreland Regional Hospital ("WRH") for treatment.

On March 23, 2013, Plaintiff was admitted to WRH, where he stayed until his discharge on March 31, 2013. (ECF No. 92, at Exhibit 9). Plaintiff alleges that due to the delay of treatment for his HIV, "it progressed and formed pneumonia, TB and Hepatitis B, and Plaintiff nearly lost his life." ECF No. 104, ¶ 4 at 2.

Upon Plaintiff's discharge from WRH, he had a follow-up appointment with Dr. Dascani. According to Plaintiff, although he requested otherwise, Dr. Dascani kept the office door open, which resulted in other inmates overhearing confidential information and "rumors spreading around the Jail." Fifth Amended Complaint, at 4. (ECF No. 72.) Furthermore, according to Plaintiff, a few days later, on April 4, 2012, Dr. Dascani visited the day room in the mental health/medical unit where Plaintiff was being housed. He called Plaintiff into the hallway to discuss his medical condition and, according to the Complaint, Dr. Dascani:

said the word (HIV) very loudly. [Plaintiff] politely asked him again not to say (HIV), but to say condition. He refused and said that he was going to specify what it is, so that [Plaintiff] know what he was talking about.

Id. at 4. The two had a "brief verbal confrontation, " and Dr. Dascani told Plaintiff that in the future, he would make sure that they were in a confidential area when discussing medical matters. Plaintiff alleges that inmates overheard this conversation and subjected him to "mental and emotional anguish." Id.

On or about April 10, 2012, Plaintiff was temporary transferred to the infirmary at SCI-Fayette while awaiting the results of his TB test. Defendants Sheetz and Daughtery transported Plaintiff by van to SCI-Fayette. At the instruction of Dr. Mollura, all three wore medical face masks during the transport. (ECF No. 92, at Exhibit 8). According to Plaintiff, upon exiting SCI-Greensburg, the van was inspected at the outer gate by a community work program inmate, who was informed by "the driver" of the van[3] that Plaintiff had TB.[4]

The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF Nos. 18, 20, and 29.


Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004).

The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989) (the non-movant must present affirmative evidence-more than a scintilla but less than a preponderance-which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Garcia v. Kimmell, 381 F.Appx. 211, 213 (3d Cir. 2010) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005)).

When considering a motion for summary judgment, the Court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

Because Plaintiff is proceeding pro se, the Court is required to liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, this does not require the Court to credit his "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). Thus, for example, the mere allegation by Plaintiff that he suffered from a serious medical need or that Defendants were deliberately indifferent to that need is insufficient to establish that there is a genuine issue of material fact. Rather, the allegation must be supported by evidence, which the Court will evaluate under the standard described above to determine if there is merit beyond mere conclusions.


Defendants argue that they are entitled to summary judgment because Plaintiff has failed to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and, in the alternative, challenge the merits of Plaintiff's various claims. Plaintiff has also filed a ...

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