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Warren v. Prime Care Medical Inc.

United States District Court, E.D. Pennsylvania

December 20, 2019

PRIME CARE MEDICAL INC., et al. Defendants.


          RUFE, J.

         Plaintiff Daniel Warren filed this civil action pursuant to 42 U.S.C. § 1983 and Pennsylvania law to recover damages for injuries he suffered at the Lehigh County Jail (“LCJ”). Warren alleges that the Defendants violated his rights through their detection, treatment, and prevention of his Methicillin-Resistant Staphylococcus Aureus (“MRSA”) infection. Defendants PrimeCare Medical, Inc. and Dr. Deborah J. Wilson (“PrimeCare Defendants”) and Corrections Officers Jennifer Sanchez and Kurt Stametz (“Officer Defendants”), who are the remaining defendants in this case, have each filed a motion for summary judgment. The PrimeCare Defendants' motion will be granted and the Officer Defendants' motion be granted in part and denied in part for the reasons set forth below.


         Plaintiff developed MRSA while he was a pretrial detainee at LCJ. MRSA is:

[A] drug-resistant strain of staph bacteria. MRSA is only susceptible to a limited number of antibiotics, but most MRSA skin infections can be treated without antibiotics by draining the sores. MRSA can be spread through direct contact with infected individuals or through contact with materials that have been exposed to the bacteria. Conditions frequently associated with corrections facilities- including overcrowding, shared facilities, and close contact between inmates- can increase the risk of spreading. Unsanitary conditions can exacerbate the problem.[2]

         PrimeCare contracted with Lehigh County to provide medical services to inmates incarcerated at LCJ. To address the risk of MRSA, LCJ and PrimeCare adopted policies that required both medical and non-medical staff, as well as prisoners, to follow procedures for the prompt detection and treatment of the disease.[3] These procedures included warnings that MRSA could be misdiagnosed as a spider bite.[4]

         A. CO Sanchez and Prime Care's Initial Delay in Providing Medical Care

         On the evening of July 12, 2015, Warren noticed a large pus-filled blister developing on his right calf. CO Sanchez alleges that Warren told her that he had been bitten by a spider. She asserts that, in response, she twice called PrimeCare, and each time PrimeCare informed her that Warren needed to complete a sick call slip in order to be seen by the medical unit but that Warren refused to fill out a sick call slip.[5]

         Warren disputes CO Sanchez's retelling of the events. He alleges that, based on the materials he had received during his intake, on warnings he received from other inmates who saw his blister, and from a comparison of his blister to pictures of MRSA posted on the walls, he reported to CO Sanchez that he had contracted MRSA and requested that she immediately contact the medical unit. Warren further alleges that CO Sanchez independently decided that the blister was only a spider bite and decided not to call PrimeCare.

         However, Warren alleges that he persisted, and eventually, CO Sanchez called PrimeCare and told the responding medical staff member that Warren had a spider bite, that he refused to fill out a sick call slip, and that he did not need to be seen. CO Sanchez never told PrimeCare that Warren believed he had contracted MRSA. Warren attempted to protest this account but Officer Sanchez told him to “step away” from her podium.[6] Several hours later, Warren tried again to persuade CO Sanchez to take him to medical to no avail.

         According to Warren, later than night, two separate correctional officers noticed the condition of Warren's leg and called the PrimeCare medical staff and described Warren's symptoms.[7] However, the PrimeCare staff refused to see Warren because he had failed to submit a sick call slip.

         Warren asserts that PrimeCare and CO Sanchez's refusal to treat Warren based on his failure to complete a sick call slip had no basis in any policy. Rather, for an emergency medical problem[8] or for a skin condition, [9] Warren explains that he was only required to notify corrections staff. Moreover, Warren explained that he did not want to submit a sick call slip because there was no way to know how long it would take for the slip to be picked up and he needed immediate medical attention.

         Warren avers that, the next day, a sergeant intervened and demanded that PrimeCare see Warren and treat him. At this point, Warren asserts that he was unable to apply pressure to his leg and had difficulty walking on his own.

         B. Prime Care's Initial Treatment

         At approximately 11:30 a.m. on July 13, 2015, Warren was taken to the medical department. PrimeCare prescribed several medications for Warren, including Tylenol and Clindamycin, an antibiotic, for what they deemed to be possible cellulitis.[10] PrimeCare also assigned him crutches because he was having trouble walking. However, Warren alleges that PrimeCare failed to take the appropriate steps to identify that Warren had contracted MRSA. PrimeCare did not culture Warren's blister. It did not fill out a “MRSA form” which is required when an inmate presents a wound, a pimple, or a boil.[11] Warren was not placed in medical isolation, which Warren asserts is mandated by LCJ policy when an inmate has MRSA symptoms.

         Warren alleges that, each of the next two days, he returned to the medical unit because his condition had progressively worsened-his leg had become more swollen and he could barely function. However, PrimeCare still did not culture his blister or place Warren in medical isolation. Instead, PrimeCare took away Warren's crutches.

         The next day, on July 16, Warren alleges that his condition had deteriorated to the point that he actually believed that he was dying. He had an extremely high temperature and was drifting in and out of consciousness. His bed was soaked from cold sweats, pus and blood oozed from his wound, and he looked like the “elephant man.”[12] At the urging of other inmates, a corrections officer called PrimeCare and requested that Warren be seen. Several hours later, PrimeCare took Warren to the medical unit in a wheelchair. Shortly thereafter, PrimeCare sent Warren to the emergency room at St. Luke's Hospital.

         At St. Luke's, Warren's wound was immediately cultured and the culture confirmed that Warren had MRSA. By this time, Warren alleges that his MRSA had spread from a 5x5 inch patch on his right calf all the way to his groin.[13] Warren remained at St. Luke's for five days where he was treated for MRSA and underwent surgery in order to drain his abscess.

         PrimeCare asserts that its actions were appropriate and met the standard of care. It has presented expert witness reports which opine that the prescribed medications were appropriate under the circumstances. PrimeCare further disputes that Warren's wound worsened from when he was first seen and, instead, maintains that the swelling steadily improved and that his temperature was within normal limits.

         PrimeCare further maintains that it was not until the evening of July 16, 2015, that Warren's condition changed. PrimeCare states that, at this point, Warren had swelling from his ankle to knee and he had a fever.[14] While he was in the medical department, the swelling and temperature increased. PrimeCare then ordered that Warren be taken to the hospital.

         C. PrimeCare Defendants' Care for Warren After His Return from the Hospital

         Warren's discharge instructions provided by St. Luke's Hospital on July 21, 2015 included, “Pack RLE wound with 1in plain packing and cover with 4x4 and wrap with kerlex. Change dressing 2-3 times daily.”[15] Packing involved placing long strips of gauze directly into Warren's open wound to keep the wound open and allow for drainage.

         Warren alleges that the St. Luke's staff lightly packed Warren's leg wound with care so as to not hurt him and to ensure that the wound would properly heal.[16] Warren further alleges that St. Luke's sent discharge instructions to LCJ and PrimeCare including how to properly pack the wound.

         Three days after his discharge, Dr. Wilson first examined Warren, who asserts that Dr. Wilson brought together the nurses who were in the medical unit that day to instruct them to “alter the wound packing procedure” by packing the wound “tightly, ” which “was intentionally calculated to maximize Warren's pain and prevent his wound from healing.”[17] Warren alleges that despite his continued pleas that they pack the wound less tightly, Dr. Wilson and the PrimeCare medical staff continued with the painful method of packing for weeks.[18]

         Although most treated MRSA wounds heal within ten days, on August 13, 2015, Warren saw Dr. Wloczewski, another physician employed by PrimeCare at LCJ. Dr. Wloczewski made an appointment for Warren with a wound specialist at Sacred Heart because the wound was not healing “as well as [he] thought it should.”[19] According to Warren, following this meeting, Dr. Wloczewski instructed Dr. Wilson and the nurses to pack the wound lightly so that it could properly heal.[20]

         On August 21, 2015, Warren was examined by Dr. Hortner at Sacred Heart Hospital. Dr. Hortner gave instructions upon Warren's discharge to take care that Warren's wound not be packed too tightly.[21] Dr. Hortner also had Warren's calf cultured which confirmed that Warren had again contracted MRSA. Just one week after Dr. Hortner's initial examination, Warren saw Dr. Hortner again, who concluded that Warren's wound had healed and closed.[22] Warren asserts that his quick recovery following his visit with Dr. Hortner was a direct result of Dr. Hortner's instructions that PrimeCare should not pack the wound too tightly.

         PrimeCare disputes Warren's account. PrimeCare alleges that Warren's wound had to be packed tightly so that no pockets could form within the wound. PrimeCare also states that there is no indication in the medical notes that Dr. Wilson instructed the nurses on how to pack the wound and that it is implausible that all nine nurses who eventually packed the wound happened to be with Dr. Wilson when she allegedly gave those instructions. Furthermore, PrimeCare asserts that Dr. Hortner only gave instructions that Warren's wound not be packed too tightly because Warren had complained-it was not based on his own determination that PrimeCare's method of packing was harming Warren.

         D. CO Stametz and Prime Care's Decision to Transfer Warren to a New Cell

         As a result of his MRSA, upon his release from St. Luke's, Warren was housed in the medical isolation unit. Although Warren still had an open wound by mid-August 2015, he alleges that, at some point after his release from St. Luke's, a culture of his wound tested negative for MRSA. Warren asserts that on August 17, CO Stametz, the housing unit officer, attempted to transfer Warren to share a cell with LP, an inmate with active MRSA, because another inmate was being transferred for medical isolation and needed to be placed in Warren's cell. Warren objected and explained to CO Stametz that, although he was negative for MRSA, his wound had not yet healed and was still open, and he could contract MRSA from the other inmate if moved into the cell with him. CO Stametz initially ignored Warren's protestations but eventually he called PrimeCare. After the call, CO Stametz revised his plan and moved LP to a new cell and then immediately moved Warren into the cell just vacated by LP.

         Warren further avers that LCJ's policy required corrections officers to sanitize medical isolation cells before transferring a new inmate in, and that after the cell is sanitized with a “staph attack, ” the cell is left “dormant.”[23] Furthermore, the housing unit officer “must complete and submit an incident report to the Shift Commander explaining the reason for the move.”[24]Warren asserts that CO Stametz did not sanitize the cell and did not either complete an incident report. Therefore, Warren maintains that his re-infection with MRSA, diagnosed by Dr. Hortner, was a result of being placed in the unsanitized cell.

         CO Stametz disputes that LP had MRSA, and also asserts that, even though he could not recall sanitizing the cell, Warren would not have been placed in an unsanitized cell because that was against procedure.


         “The underlying purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.”[25] A court will award summary judgment on a claim or part of a claim where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[26] A fact is “material” if it could affect the outcome of the suit, given the applicable substantive law.[27] A dispute is “genuine” if the evidence presented “is such that a reasonable jury could return a verdict for the nonmoving party.”[28]

         In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party, ” and make every reasonable inference in that party's favor.[29]Further, a court may not weigh the evidence or make credibility determinations.[30] Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.[31] “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”[32] Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.[33]


         After motions to dismiss were decided by the judge to whom the case was previously assigned, the following claims remain in the case:

(1) the § 1983 claims for violations of the Due Process Clause of the Fourteenth Amendment against Defendants Sanchez and Stametz; (2) the state law claims for negligence and negligent infliction of emotional distress against Defendants Sanchez, Stametz, Wilson, and PCM; and (3) the punitive damages claims against Defendants Sanchez and Stametz for their alleged violations of § 1983.[34]

         With regard to Warren's federal claims, CO Stametz argues that summary judgment should be granted because: 1) Warren failed to exhaust his administrative remedies; and 2) Warren cannot establish that CO Stametz violated his constitutional rights. CO Sanchez also argues that summary judgment should be granted on Warren's federal claims against her because Warren cannot establish that she violated his constitutional rights. Both CO Stametz and CO Sanchez further argue that Warren's state tort claims are barred by the Pennsylvania Political Subdivision Tort Claims Act (“Tort Claims Act”). The PrimeCare Defendants move for summary judgment on the basis that, pursuant to state law, Warren was required to submit expert reports demonstrating that the PrimeCare Defendants violated the applicable standard of care, and that this violation caused Warren's injuries.

         A. Officer Defendants

         1. Whether Warren exhausted all administrative remedies available to him

         The Prison Litigation Reform Act of 1995 (“PLRA”) requires that inmates exhaust all prison grievance procedures before suing in court.[35] The “exhaustion of administrative remedies under the PLRA is a question of law to be determined by the judge.”[36] The Third Circuit has explained that exhaustion requires “substantial compliance with the prison's grievance procedures.”[37] “If there is no genuine dispute of material fact, then the exhaustion defense may be evaluated as a matter of law at summary judgment. If there is a genuine dispute of material fact related to exhaustion, then summary judgment is inappropriate[.]”[38]

         Warren testified in his deposition that on September 16, 2015, he filed a grievance regarding CO Stametz's alleged actions but never received a response.[39] Warren further asserts that before he filed the grievance, CO Stametz would not give him a grievance form and worked to thwart his ability to file a grievance by claiming that there were no grievance forms on the block.[40] Warren further states that on November 9, 2015, he filed a second grievance noting that he had never received a response to his September 2015 grievance.[41] However, by this point, Warren had been transferred to a different facility and the grievance was returned to him.[42]Warren alleges that he also filed at least two other grievances to which he never received a response, including one that expressly named CO Stametz.[43]

         CO Stametz responds with a number of arguments, including that there is no evidence that Warren actually filed the September 16 grievance form and that, even if the September 16 grievance form was filed, it was procedurally deficient.[44] In his reply brief, CO Stametz supplements this argument with an affidavit filed from the then-Grievance Coordinator at the Lehigh County Jail who testified that the internal records do not show a grievance filed by Warren with regard to this incident.[45]

         There is a genuine dispute of material fact as to whether Warren exhausted the administrative procedures. The Third Circuit has explained that a “conflict between the Prison's records and [the prisoner's] deposition testimony” creates “a genuine issue of material fact” when the prisoner “sets forth specific facts” regarding whether they exhausted their claim.[46]

         That is the case here. Warren specifically testified that he filed the September 16 grievance form, [47] that he filed several other grievances to which he never received a response, and that his attempts to follow up on those grievances after being transferred to a new facility were “returned to sender.”[48] A prison “render[s] its administrative remedies unavailable . . . “when it fail[s] to timely (by its own procedural rules) respond to [the prisoner's] grievance[.]”[49] Therefore, based on Warren's sworn testimony, summary judgment on the issue of exhaustion is not appropriate because there is a genuine dispute of material fact as to whether the prison's grievance procedures were available to Warren.[50]

         2. Whether CO Sanchez or CO Stametz violated Warren's constitutional rights

         “Section 1983, enacted as part of the Civil Rights Act of 1871, establishes a federal remedy against a person who, acting under color of state law, deprives another of constitutional rights.”[51] The Constitution requires that “prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.'”[52] Therefore, the Supreme Court has established that prison officials violate the Constitution by “intentionally denying or delaying access to medical care”[53]-as Warren alleges CO Sanchez did-or by failing to “provide humane conditions of confinement”-as he alleges CO Stametz did.[54]

         Typically, delay of medical care and conditions of confinement claims are asserted under the Eighth Amendment's prohibition on cruel and unusual punishment.[55] However, because Warren was a pretrial detainee, his “claim should be evaluated under the Due Process Clause of the Fourteenth Amendment, as opposed to the Eighth Amendment.”[56] Nevertheless, because the “the Fourteenth Amendment affords pretrial detainees protections at least as great as the Eighth Amendment protections available to a convicted prisoner, ”[57] the Court will evaluate Warren's § 1983 claims “under the same standard used to evaluate similar claims brought under the Eighth Amendment.”[58]

         Under the Eighth Amendment, the deliberate indifference standard-consisting of two conditions that a prisoner must meet-applies to both claims. First, the prisoner must show that the alleged deprivation was objectively serious.[59] When the claim is based on the denial of medical care, the inmate must show that the medical “needs were serious.”[60] When the conditions of confinement claim is “based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”[61] Second, the inmate must make a subjective showing that the defendants acted with ‘“deliberate indifference' to inmate health or safety.”[62] In addition, “to survive summary judgment . . . a plaintiff is required to produce sufficient evidence of . . . causation.”[63]

         Neither CO Sanchez nor CO Stametz disputes the first requirement.[64] Therefore, the Court must determine whether Warren has produced sufficient evidence that: 1) either corrections officer acted with deliberate indifference; and 2) that the actions caused injury to Warren.[65]

         Deliberate indifference is a “subjective standard of liability consistent with recklessness as that term is defined in criminal law.”[66] To act with deliberate indifference is to “recklessly disregard a substantial risk of harm.”[67] “[F]inding a prison official liable for violating a prisoner's Eighth Amendment rights requires proof that the official ‘knows of and disregards an excessive risk to inmate health or safety.'”[68] Thus, “to survive a summary judgment motion on this issue, [Warren] must point to some evidence . . . that [CO Sanchez or CO Stametz] knew or [were] aware of [the risk to Warren].”[69]

         With regard to causation “[i]t is axiomatic that [a] § 1983 action, like its state tort analogs, employs the principles of proximate causation.”[70] “To establish the necessary causation, a plaintiff must demonstrate a ‘plausible nexus' or ‘affirmative link' between the [defendant's action] and the specific deprivation of constitutional rights at issue.”[71] “Although the issue of proximate causation is typically determined by the factfinder, this issue may be addressed as a matter of law where the outcome is clear or when highly extraordinary events or conduct takes place.”[72] Therefore, if the Court determines that CO Sanchez or CO Stametz acted with deliberate indifference, the Court must then determine whether, construing the evidence in the light most favorable to Warren, a reasonable jury could find a “plausible nexus” or “affirmative link” between the deliberate indifference and the injury to Warren.

         a. CO Sanchez

         CO Sanchez argues that she did not act with deliberate indifference because she did not know that Warren's blister could have been MRSA and because “Warren cannot point to evidence from which a jury could conclude that CO Sanchez knew (or should have known if the reckless indifference standard is applied) that a failure to secure immediate medical attention for Warren could lead to ‘substantial and unnecessary suffering, injury, or death[.]”[73] However, the record shows disputed issues of material fact on these points.

         First, Warren testified that he told CO Sanchez that his blister looked like MRSA.[74] CO Sanchez also testified that she was “trained to recognize symptoms of MRSA, ”[75] that in her training she was shown pictures of MRSA, and that there were pictures of MRSA posted on the walls of the housing units.[76] Therefore, whether CO Sanchez knew or should have known that Warren's blister could have been MRSA is a disputed fact.

         Second, CO Sanchez knew that MRSA is a “serious condition, ” which raises a disputed issue of fact as to whether she knew, or should have known, that forcing Warren to wait for treatment would be harmful.[77] CO Sanchez argues that because “she followed the prescribed course of action [listed on the MRSA posters] by referring [Warren] to the sick call process” she did not act recklessly by failing to secure immediate medical attention.[78] However, the MRSA posters merely told inmates to fill out sick call slips if they had MRSA symptoms; they did not state a policy that inmates could only be treated if they filled out the slips even if they were suffering a medical emergency.[79] In fact, the record details a disputed issue of fact whether filling out a sick call slip policy was mandatory for emergency medical problems[80] or skin conditions-Dr. Wilson testified that inmates did not need to fill out the sick call slip when they complained of MRSA.[81]

         Therefore, viewing the facts, and drawing every reasonable inference, in the light most favorable to Warren, [82] the record shows that, despite Warren informing CO Sanchez that the blister was MRSA, and despite her training on the symptoms of MRSA and her knowledge of the seriousness of MRSA, CO Sanchez recklessly made the decision that Warren did not need immediate medical attention and told the medical staff that Warren merely had a spider bite.[83]Accordingly, Warren has pointed “to some evidence . . . that [CO Stametz] knew or [was] aware of [the risk to Warren]” yet recklessly disregarded the risk.[84]

         Warren also asserts that it “is common sense that, by commencing the effective treatment for Warren's MRSA one day earlier, he could have avoided some or all of the additional pain, suffering and other longer lasting consequences that he instead experienced over the next 24 hours and long thereafter.”[85] In other words, had CO Sanchez brought him to the medical staff when he first complained of the MRSA, Warren argues that he would have been spared the pain he suffered between he first complained to CO Sanchez about his MRSA and when he was actually brought to the medical staff.[86]

         CO Sanchez argues that Warren's argument is an “unsupported speculation” which must be supported by expert testimony.[87] However, at this stage, all that Warren needs to show is that there is a “plausible nexus” or “affirmative link” between the delay in receiving medical care and the “specific deprivation of constitutional rights at issue.”[88] Taking the facts as stated by Warren as true, CO Sanchez recklessly reported to the medical staff that Warren only had a spider bite. This action directly caused the medical staff to delay treating Warren. A “natural and probable outcome” of a delay in medical treatment is an increase in the time spent in pain.[89]Therefore, Warren has presented sufficient evidence of causation.

         In sum, there are disputed issues of material fact regarding whether CO Sanchez knew or should have known that Warren's blister was MRSA, whether she recklessly disregarded the risk, and whether her actions were the proximate cause of the deprivation of Warren's rights. Moreover, the Third Circuit has “explained that deliberate indifference is ‘evident' in certain circumstances, including: (i) the denial of reasonable requests for medical treatment that expose the complainant to undue suffering.[90] Therefore, the Court will not grant CO Sanchez's request for summary judgment.

         b. CO Stametz

         As explained above, “finding a prison official liable for violating a prisoner's Eighth Amendment rights requires proof that the official ‘knows of and disregards an excessive risk to inmate health or safety.'”[91] Warren argues that CO Stametz acted with deliberate indifference because he acknowledged that “if an individual were transferred to a cell in which the prior inmate had MRSA and it was not cleaned, . . . that would be endangering that individual's life, ” yet still “caused or allowed Warren to be placed in [a] MRSA-infected cell.”[92]

         CO Stametz argues that Warren cannot prove: 1) that he was cured of MRSA and ‘re-infected' with MRSA”[93]; 2) that “the prior occupant of the cell was MRSA-infected”[94]; 3) that CO Stametz knew that Warren “was cured of MRSA and susceptible to re-infection”[95]; 4) that CO Stametz made the cell transfer decision; and 5) that CO Stametz did not sanitize LP's cell.[96]However, there are genuine issues of material fact regarding each of these arguments.

         First, CO Stametz asserts that “Warren's testimony cannot establish that he was cured of MRSA and re-infected with MRSA” because his testimony is inadmissible hearsay evidence and because “expert testimony is required to interpret the results of diagnostic testing or render an opinion regarding an infectious disease like MRSA.”[97] Plaintiff has not produced any expert opinions in this case.

         However, contrary to the CO Stametz's assertion that inadmissible hearsay statements may never be considered for purposes of summary judgment, [98] “hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present the evidence through direct testimony, i.e., in a form that ‘would be admissible at trial.'”[99] Warren may present his testimony about his first-hand observations of his wound at trial. Moreover, at trial, Warren may present testimony both from the physician who he alleges cultured his wound and found that it tested negative after he returned from St. Luke's and from the physician who Warren alleges administered the later culture that showed that he had contracted MRSA again. Therefore, Warren's deposition testimony creates a disputed issue of material fact.

         In addition to his deposition, Warren also presents medical records, which fall under the exceptions to the hearsay rule listed in Federal Rule of Evidence 803(4) & (6).[100] The medical records state that on August 7, 2015, Dr. Wilson informed the sheriff that Warren could attend court because “he is only over there because of his open wound.”[101] This record indicates that Warren was able to be taken to court because his open wound was no longer infected with MRSA-the infection had dissipated and Warren's only medical issue was the still-healing open wound. CO Stametz transferred Warren to the allegedly unsanitized cell on August 17.[102] Then, on August 21, 2015, Warren's hospital records state that his culture and sensitivity “returned with ㄔ again.”[103] The medical records therefore also create a disputed issue of material fact as to whether Warren was cured of his MRSA before becoming re-infected, without requiring expert testimony.

         Second, CO Stametz argues that Warren's “claim inherently depends on his ability to show that the cell into which he was moved was previously occupied by a MRSA-infected inmate” but that the only evidence he presents is inadmissible hearsay evidence.[104]

         However, as explained above, “hearsay evidence may be considered if the out-of-court declarant could later present the evidence through direct testimony.”[105] Although Warren's deposition testimony about what LP told him is hearsay, LP could testify at trial. Therefore, Warren's deposition testimony is admissible and creates a disputed issue of material fact.

         Third, CO Stametz asserts that, assuming Warren was cured and then re-infected with MRSA, he could not have been deliberately indifferent because there is no evidence that he had knowledge that “Warren had been cured of MRSA and was susceptible to being re-infected if he came into contact with a MRSA-infected person or item.”[106] However, Warren testified that he told CO Stametz that he had already been cured of MRSA and that LP was actively fighting MRSA.[107] Moreover, as mentioned above, CO Stametz testified that “if an individual were transferred to a cell in which the prior inmate had MRSA and it was not cleaned, . . . that would be endangering that individual's life.”[108] Therefore, there is also a disputed issue of fact whether CO Stametz knew that Warren had been cured of MRSA and was susceptible to being re-infected.

         Fourth, CO Stametz concedes that LCJ's Medical Isolation Policy establishes that the housing unit officer makes cell transfer decisions but, in his reply brief, presents an affidavit from Officer Hamm who stated that, in practice, “where the cell-to-cell moves within the medical isolation unit will impact the medical condition of inmates, the jail staff consults with the medical department, and the medical department decides how the cell-to-cell transfers will be made.”[109]

         However, Dr. Wilson testified that she was unaware of the medical department having anything to do with cell transfers of inmates within medical isolation.[110] It is for a jury, not the Court, to weigh Dr. Wilson's statement, which was in accordance with the stated policy, against Officer Hamm's contrary assertion.[111]

         Fifth, Plaintiff has testified that he was moved into the new cell directly after LP was moved out, indicating that the cell was not sanitized.[112] CO Stametz concedes that he “does not have an independent recollection of sanitizing cells on August 17.”[113] However, CO Stametz argues that there is evidence that the cell was sanitized because the Medical Isolation Policy provides that every time an inmate is moved from a cell in the medical isolation unit it must be sanitized and because the Daily Log states “Rounds completed/Cell sanitizing completed.”[114]

         However, although the Medical Isolation Policy required sanitization, the policy does not conclusively show that the prison officials adhered to the policy-especially considering CO Stametz's argument that prison officials did not follow the stated policy when it came to cell transfers.

         Furthermore, the Daily Log, which was not prepared by CO Stametz, only states generally that some cells were sanitized and that the sanitizing occurred at 19:18.[115] The Daily Log also states that LP was moved out of the cell at 19:23, after the sanitization. Although CO Stametz argues that the 19:23 entry states that it is a “late entry, ” these are disputed facts.[116]

         In sum, there are genuine disputed material facts regarding whether Warren was cured of MRSA and then re-infected, whether LP was MRSA-infected, whether CO Stametz knew of the risk to Warren by placing him in the cell, whether CO Stametz made the decision to transfer Warren, and whether CO Stametz sanitized the cell. Because Warren has “point[ed] to some evidence” showing that CO Stametz “knew or [was] aware of [the risk to Warren]”[117] but acted with “reckless disregard” by placing him in the cell, summary judgment is not warranted on the issue of deliberate indifference.[118]

         CO Stametz also argues that summary judgment must be granted because “whether an inmate contracted MRSA as a proximate result of prison conditions cannot be inferred in the absence of expert medical testimony” and “Warren has not presented expert medical testimony to establish a causal connection between his placement in LP's cell and his re-infection with MRSA.”[119]

         However, Warren has demonstrated a “plausible nexus” or “affirmative link” between CO Stametz transferring Warren and his re-infection with MRSA.[120] As explained above, Warren has presented medical records indicating that his MRSA infection had been cured before he was transferred to the new cell, and that after his transfer, his infection returned.[121] An “ordinary person, ” with knowledge that Warren was recovering from MRSA, would have “foreseen” the re-infection “as the natural and probable outcome” of transferring Warren to an unsanitized cell formerly occupied by a prisoner with MRSA.[122] Thus, Warren has produced sufficient evidence of proximate causation to survive summary judgment without expert testimony.[123] Accordingly, CO Stametz's motion for summary judgment on Warren's federal claims will be denied.

         3. Whether Warren's state tort claims against Officers Stametz and Sanchez are barred by the Pennsylvania Tort Claims Act

         Warren also asserted state law tort claims against the Officer Defendants for negligence and negligent infliction of emotional distress. The Officer Defendants moved to dismiss these claims on the ...

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