United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is a report (Doc. 78) which recommends that
the Medical Defendants’ motion for summary judgment (Doc.
51) be granted in part and denied in part. The Medical
Defendants have filed objections to the report. (Doc. 79).
Upon review, the report and recommendation will be
ADOPTED IN PART AND NOT ADOPTED IN PART.
of relevant background, on October 24, 2016, the plaintiff, a
former pre-trial detainee at the Lackawanna County Prison,
filed the instant counseled civil rights action pursuant to
42 U.S.C. §1983 challenging his medical treatment, or
lack thereof, related to his colostomy while he was
incarcerated at the Lackawanna County Prison from October 24,
2014 through November 20, 2014. (Doc. 1). After considering
motions to dismiss, the following claims remain: Count I -
Municipal Liability, Failure to Supervise, Failure to Train
and Civil Rights Violations Caused by Policy; Count II
-Individual Violations as to defendant Zaloga and John Doe
Medical Defendants; Count III - Conspiracy, Failure to
Intervene, Failure to Supervise, and Failure to Report as to
Defendants Zaloga and John Doe Medical Defendants; Count IV -
Supplemental State Law Claim for Intentional Infliction of
Emotional Distress against Defendants Zaloga and John Doe
Medical Defendants; and Count V - Supplemental State Law
Claim for Civil Conspiracy Against All Defendants.
August 7, 2018, the Medical Defendants filed the pending
motion for summary judgment. (Doc. 51). A supporting brief,
(Doc. 54), and statement of facts, (Doc. 55), followed on
August 14, 2018. The plaintiff filed a brief in opposition to
the Medical Defendants’ motion for summary judgment on
August 28, 2018, (Doc. 72), along with an answer to the
Medical Defendants’ statement of material facts and
exhibits, (Doc. 71). A reply brief was filed by the Medical
Defendants on September 10, 2018. (Doc. 74).
meantime, on August 27, 2018, a notice of voluntary dismissal
was filed with respect to the Lackawanna County
Defendants. (Doc. 65). An order was entered on the
following day dismissing the Lackawanna County Defendants
with prejudice. (Doc. 67).
February 12, 2019, the pending report was issued, which
recommends that the Medical Defendants’ motion for
summary judgment be denied as to the plaintiff’s
deliberate indifference, state law civil conspiracy and
intentional infliction of emotional distress claims, and
granted in all other respects. (Doc. 78). On February 26,
2019, the Medical Defendants filed objections to the report.
(Doc. 79). A brief in opposition to the defendants’
objections was filed by the plaintiff on March 19, 2019.
(Doc. 82). On March 29, 2019, the defendants filed a reply
brief in support of their objections. (Doc. 83).
STANDARD OF REVIEW
objections are timely filed to the report and recommendation
of a magistrate judge, the district court must review de
novo those portions of the report to which objections
are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the
standard is de novo, the extent of review is
committed to the sound discretion of the district judge, and
the court may rely on the recommendations of the magistrate
judge to the extent it deems proper. Rieder v.
Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing
United States v. Raddatz, 447 U.S. 667, 676 (1980)).
those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good
practice, “satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b), advisory committee
notes; see also Univac Dental Co. v. Dentsply Intern.,
Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987) (explaining judges should give some review to every
report and recommendation)). Nevertheless, whether timely
objections are made or not, the district court may accept,
not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
Medical Defendants first object to the magistrate
judge’s report recommending that summary judgment be
denied on the deliberate indifference claim arguing that the
plaintiff did not have a serious medical need. Specifically,
the Medical Defendants argue that the magistrate judge failed
to consider that the serious medical need element
“contemplates a condition of urgency, one that may
produce death, degeneration, or extreme pain.”
colostomy is when one end of an individual’s large
intestine is brought through a surgically-created hole to the
outside of the abdomen and stitched down in order to allow
the individual’s fecal matter to drain into a bag
attached to the individual’s body.” Champion
v. DiCocco, 2018 WL 4087482, at *5 (E.D. Va. Aug. 24,
2018) (quoting Jones v. Gaetz, 2017 WL 1132560, at
*3 (S.D. Ill. Mar. 27, 2017) (citation omitted)). The use of
a colostomy can constitute a serious medical need as there
are obvious “risks inherent in a colostomy, including
but not limited to, irritation, infection, and herniation.
Without a doubt, a colostomy requires a doctor’s
attention on occasion and significantly affects an
individual’s daily activities.” Id.
(citing Williams v. Erickson, 962 F.Supp.2d 1038,
1042 (N.D. Ill. 2013)). See Ferebee v. Cejas, 161
F.3d 2 (4th Cir. 1998) (unpublished) (alleged need for
colostomy bags constitutes a serious medical need);
Anderson v. Cty. of Kern, 45 F.3d 1310, 1314 (9th
Cir.1995) (“[L]ack of sanitation that is severe or
prolonged can constitute an infliction of pain within the
meaning of the Eighth Amendment.”); Anderson v.
Cty. of Kern, 45 F.3d 1310, 1314 (9th Cir.
1995) (plaintiff’s allegations regarding having his
colostomy improperly maintained plausibly establishes a
serious medical need). As indicated in the magistrate
judge’s report, on the current record, there are
material issues of fact as to whether the condition of the
plaintiff’s colostomy and the need to maintain it
constituted a serious medical need. Therefore, the court will
overrule the Medical Defendants’ objections on this
Medical Defendants further object to the report recommending
denial of summary judgment on the deliberate indifference
claim arguing that, even if the plaintiff had a serious
medical need, he received adequate medical treatment. Here,
the Medical Defendants argue that there is no evidence in the
record that the plaintiff ever requested and was denied
supplies for his colostomy bag. In fact, the Medical
Defendants argue that the record demonstrates that the
plaintiff received continual medical attention and
monitoring. While there are indications in the record that
the plaintiff received certain medical care on a daily basis,
including the taking of his blood pressure and administration
of various medications, as indicated in the magistrate
judge’s report, there are disputed facts with regard to
the treatment of the plaintiff’s colostomy. The
plaintiff’s medical records reflect that on one
occasion during his month-long stay, he was provided with a
colostomy bag and bandage, after which there is a three week
gap regarding the provision of colostomy supplies to the
plaintiff. It is unclear whether during this time the
plaintiff properly requested and was not given his colostomy
supplies. The ...