MILLINER v. DIGUGLIELMO et al

Filing 94

MEMORANDUM/ORDER THAT MOTION OF DEFTS OSGOOD AND ALTOONA HOSPITAL TO DISMISS THE FOURTH AMENDED COMPLAINT IS DENIED. FURTHER THE MOTION FO DEFT STANISHEFSKI TO DISMISS THE FOURTH AMENDED COMPLAINT IS DENIED.. SIGNED BY HONORABLE LOUIS H. POLLAK ON 3/26/12. 3/29/12 ENTERED AND COPIES E-MAILED TO COUNSEL.(lvj, ) Modified on 3/29/2012 (lvj, ).

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

JOHN MILLINER,

No. 08-4905

Plaintiff,
v.
DAVID DIGUGLIELMO, et al.,
Defendants.

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
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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 spinal surgery was performed;

X

State-law negligence against Machak and Drs. Zaro, Stefanic, and Nwosu.

Count I of the third amended complaint, alleging deliberate indifference by three
prison administrators (David DiGuglielmo, Julie Knauer, and Myron Stanishefski), was
dismissed without prejudice to the filing of a responsive amendment. Similarly dismissed
were claims for deliberate indifference by Dr. Stefanic, Dr. Nwosu, and Machak (pleaded
as part of Count II); a claim for state-law corporate liability against Altoona Hospital
(Count VIII); and a claim for state-law negligence against the three prisoner
administrators, DiGuglielmo, Knauer, and Stanishefski; Dr. Osgood; PHS; and Altoona
Hospital (all pleaded as part of Count X).
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Milliner moved for leave to file an amended complaint on July 8, 2011 (Docket
No. 83). The motion was granted by order dated July 11, 2011 (Docket No. 84), and the
plaintiff’s fourth amended complaint was filed on July 12, 2011 (Docket No. 85). The
fourth amended complaint contains the following three additional claims for relief:1
Count

Description
Deliberate indifference to Milliner’s serious medical needs in violation of the
Eighth Amendment by prison administrator Myron Stanishefski;

I

IX

State-law negligence against Stanishefski, predicated on Stanishefski’s
alleged failings in coordinating medical care at SCI-Graterford and in
supervising those directly responsible for providing medical care;

X

State-law negligence against PHS, Stanishefski, and Dr. Richard Stefanic,
predicated on alleged failure to exercise due care in ensuring that Milliner
was assigned to a single-bunk after his spinal surgery.

Myron Stanishefski moved to dismiss the fourth amended complaint on July 28,
2011 (Docket No. 87). The plaintiff filed a response in opposition to Stanishefski’s
motion to dismiss on August 17, 2011 (Docket No. 89). Defendants Altoona Hospital
and Dr. Osgood jointly moved to dismiss the fourth amendment complaint on January 6,

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The numbering of counts below follows the fourth amended complaint, which
varies slightly from the third amended complaint. After deletion of one of the claims
dismissed in the June 8 M&O, the claim of vicarious liability for medical malpractice
against Altoona Hospital (Count IX of the third amended complaint) appears as Count
VIII of the fourth amended complaint. The plaintiff has also, apparently, abandoned the
state-law negligence count against Raymond Machak, Dr. John Zaro, and Dr. Caleb
Nwosu. That claim was pleaded as Count X of the third amended complaint and was not
dismissed in the June 8 M&O. It appears nowhere in the fourth amended complaint.
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2012 (Docket No. 92). The plaintiff filed a response in opposition to the joint motion on
January 27, 2012 (Docket No. 93). Both motions are ripe for disposition.
II. Discussion
A.

Altoona Hospital/Carroll Osgood Motion to Dismiss
Altoona Hospital and Dr. Osgood move to dismiss the fourth amended complaint

as to them for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1).
The first three counts of the fourth amended complaint, pleaded pursuant to 42
U.S.C. § 1983, allege violations of Milliner’s rights under the Eighth Amendment of the
U.S. Constitution. This court has subject-matter jurisdiction to hear these claims because
they raise federal questions. 28 U.S.C. § 1331. The first three counts are asserted only
against Stanishefski, Dr. Zaro, and PHS.
The remaining counts of the fourth amended complaint, including the counts
against Altoona Hospital and Dr. Osgood (Counts VII and VIII), assert violations of state
law. To be heard in federal court, they must fall within the court’s supplemental
jurisdiction.2 The supplemental-jurisdiction statute provides as follows:
Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or

2

The parties are not completely diverse, so 28 U.S.C. § 1332 is not available as an
alternate source of federal jurisdiction. See Zambelli Fireworks Mfg. Co. v. Wood, 592
F.3d 412, 419 (3d Cir. 2010) (explaining complete diversity requirement).
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controversy under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the joinder or
intervention of additional parties.
28 U.S.C. § 1367(a). Two claims are sufficiently related as to “form part of the same
case or controversy under Article III,” as required by § 1367(a), when the claims derive
from “a common nucleus of operative fact” and would ordinarily be expected to be tried
in one judicial proceeding. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725
(1966); see also Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 275 (3d Cir. 2001).
Altoona Hospital and Dr. Osgood argue that the claims against them do not share a
common nucleus of operative fact with the jurisdiction-conferring claims against
Stanishefski, Dr. Zaro, and PHS.
According to the allegations of the fourth amended complaint, assumed to be true
at this procedural juncture, see Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,
891 (3d Cir. 1977), Milliner was referred to Dr. Osgood at the State Correctional Institute
at Smithfield (“SCI-Smithfield”) in Altoona, Pennsylvania, in August 2007 for treatment
of his back injury. Dr. Osgood advised Milliner that he needed spinal surgery. Dr.
Osgood performed the surgery on September 27, 2007, at Altoona Hospital. As a result
of the surgery, Milliner was temporarily paralyzed from the neck down. Dr. Osgood did
not order diagnostic imaging (such as an x-ray) of Milliner’s back immediately after the
surgery and did not ensure that such diagnostic imaging or other post-operative care was
performed in a timely manner. Count VII of the fourth amended complaint alleges that

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Dr. Osgood’s performance of the surgery and post-operative conduct both constitute
medical malpractice under state law. Count VIII asserts that Altoona Hospital is
vicariously liable for Dr. Osgood’s medical malpractice.
The allegations against Stanishefski, Dr. Zaro, and PHS concern conduct at SCIGraterford both before and after Milliner’s spinal surgery. Count I of the fourth amended
complaint alleges that Stanishefski, an administrator, was deliberately indifferent to
Milliner’s serious medical needs in supervising the diagnosis and care (both pre- and
post-operative) of Milliner’s spinal injury. Count II alleges that Dr. Zaro, a physician
who provided medical care at SCI-Graterford, was deliberately indifferent to Milliner’s
serious medical needs in treating and diagnosing Milliner’s injury prior to the surgery.
Count III alleges that PHS is liable because its customs and polices at SCI-Graterford
caused Milliner’s constitutional injuries.
The moving defendants stress that the medical treatment or lack thereof at issue in
the federal claims is not identical to the treatment at issue in the state-law claims against
Altoona Hospital and Dr. Osgood. The spinal surgery underlying the malpractice claim
against Dr. Osgood occurred in a different locale than the federal claims—Altoona
Hospital, rather than SCI-Graterford. The evidence relevant to the alleged malpractice
during the spinal surgery will not be identical to the evidence of the alleged deliberate
indifference in providing care to Milliner before and after the surgery.
Nevertheless, the state-law claims against Altoona Hospital and Dr. Osgood derive

7

from a common nucleus of operative fact as the federal claims. The operative facts center
Milliner’s spinal injury and subsequent medical treatment in the prison system. The
evidence of his injury and the care he received will be at issue in both sets of claims. The
federal claims concern both Milliner’s pre- and post-operative care at SCI-Graterford. It
would make little sense to carve out the surgical malpractice claim from the federal
claims of deliberate indifference to serious medical needs, when the allegation is that
Milliner’s serious medical needs gave rise to the need for surgery and/or resulted from the
deficient performance of that surgery. Cf. Urena v. Wolfson, Civ. No. 09-1107, 2010 WL
5057208, at *12-14 (E.D.N.Y. Dec. 6, 2010) (exercising supplemental jurisdiction over
plaintiff’s malpractice claim against private doctor and hospital, where plaintiff asserted
jurisdiction-conferring Bivens claim against prison doctor involved in course of
treatment). Thus, for purposes of 28 U.S.C. § 1367(a), the state-law claims and the
federal claims constitute a single case or controversy.
The defendants’ motion to dismiss could be read as asking the court, in the
alternative, to decline to exercise supplemental jurisdiction. A district court may be
permitted to do so under 28 U.S.C. § 1367(c).3 But in this case, the defendants offer no

3

The statute provides as follows:

The district courts may decline to exercise supplemental jurisdiction over a
claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
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compelling reason to decline to exercise supplemental jurisdiction. Judicial economy
would not be well served by bifurcating the claims into two actions, which would require
the redundant presentation of evidence concerning Milliner’s care at SCI-Graterford, SCISmithfield, and Altoona Hospital. The malpractice claims do not appear to raise complex
or unsettled questions of state law, and they do not threaten to predominate over the
federal claims.
Accordingly, in the order that follows, the defendants’ motion to dismiss for lack
of subject-matter jurisdiction will be denied.
B.

Stanishefski Motion to Dismiss
Myron Stanishefski moves to dismiss the fourth amended complaint for failure to

state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). To survive such
a motion, the fourth amended complaint “must contain factual allegations that, taken as a
whole, render the plaintiff’s entitlement to relief plausible.” West Penn Allegheny Health
Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010). In determining the plausibility of the
claim for relief, the well-pleaded factual allegations of the plaintiff’s complaint must be

(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c); see also Growth Horizons, Inc. v. Del. Cnty., 983 F.2d 1277, 128485 (3d Cir. 1993) (“In making its determination, the district court should take into account
generally accepted principles of ‘judicial economy, convenience, and fairness to the
litigants.’” (quoting United Mine Workers of Am., 383 U.S. at 726)).
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taken as true. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Stanishefski’s motion to dismiss focuses primarily on allegations concerning
Milliner’s housing accommodations at SCI-Graterford. According to the fourth amended
complaint, Milliner first complained of his housing conditions in a grievance filed on
December 26, 2006, prior to his surgery. The grievance stated that Milliner’s cell lacked
any place for him to sit in a way that would take pressure off of his injured back;
apparently, sitting on a bunk bed forced Milliner to stoop over, exacerbating his pain and
discomfort. It is unclear whether Milliner was ever assigned to a “single-bed” cell (i.e., a
cell without bunk beds) prior to his surgery.
Milliner’s surgery was performed in September 2007, and he underwent physical
therapy at the State Correctional Institute at Laurel Highlands for three months thereafter.
On January 15, 2008, he returned to SCI-Graterford. He was again assigned to a cell with
bunk beds. Within a week, on January 22, Milliner complained to Dr. Stefanic that the
bunk-bed arrangement forced him to bend his spine painfully when sitting up in bed. Dr.
Stefanic told Milliner that he (Stefanic) “had notified the proper party in order to have
[Milliner] placed in a cell that did not have a double bunk.” 4th Am. Compl. ¶ 53.
However, Milliner remained in a cell with bunk beds for several months, until a member
of the Pennsylvania Prison Society contacted Stanishefski regarding the situation.
As of June 20, 2008, Milliner “had not been seen for a post-operative neurological
follow-up, nor had he undergone post-operative medical imaging to determine if the

10

surgical fusion performed nearly a year prior had been successful.” 4th Am. Compl. ¶ 57.
Milliner filed a grievance on that date to complain about his continued pain and the lack
of follow-up care. On June 28, 2008, Milliner’s grievance was denied by Stanishefski, on
the ground that a neurosurgical consultation had been ordered as of June 26—i.e., several
days after Milliner filed the grievance. Dr. Osgood had recommended that a follow-up
consultation and medical imaging occur within one month of Milliner’s surgery in
September 2007.
The fourth amended complaint alleges that Stanishefski is employed as a “Health
Care Administrator” at SCI-Graterford. The duties of such an administrator include:
“planning, coordinating, and supervising inmate health care services” and “responding to
inmate grievances regarding medical treatment and accommodation.” 4th Am. Compl.
¶ 2. Although the fourth amended complaint alleges that Stanishefski is a registered
nurse, there is no suggestion that he was personally involved in the direct provision of
medical care to the plaintiff. His role was administrative only.
The legal standard applicable under the circumstances is clear. To plead an Eighth
Amendment claim, “a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S.
97, 106 (1976). “The standard enunciated in Estelle is two-pronged: ‘[i]t requires
deliberate indifference on the part of the prison officials and it requires the prisoner’s
medical needs to be serious.’” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro,

11

834 F.2d 326, 346 (3d Cir. 1987) (quoting West v. Keve, 571 F.2d 158, 161 (3d Cir.
1978)). Here, the moving defendant does not dispute that Milliner’s medical needs were
serious, which leaves only the element of deliberate indifference at issue.
“To act with deliberate indifference to serious medical needs is to recklessly
disregard a substantial risk of serious harm.” Giles v. Kearney, 517 F.3d 318, 330 (3d
Cir. 2009) (citing Estelle, 429 U.S. at 104-05, and Farmer v. Brennan, 511 U.S. 825, 836
(1994)). In Monmouth County Correctional Institutional Inmates, the court collected
several examples of the sort of improper conduct that might constitute “deliberate
indifference,” including the intentional refusal to provide care, the delay of necessary care
for improper reasons, or the choice of inefficacious treatments to cut costs. See 834 F.2d
at 346-47. But when a prison administrator knows that a prisoner with serious medical
needs is under the care of medical providers, the administrator is generally justified in
believing that the prisoner is receiving adequate care. Spruill v. Gillis, 372 F.3d 218, 236
(3d Cir. 2004). Put differently, a prisoner cannot state a claim for deliberate indifference
against an administrator who believes that the prisoner is receiving medical care unless
the prisoner can allege facts that give rise to a plausible inference that the administrator
had “a reason to believe (or actual knowledge) that prison doctors or their assistants are
mistreating (or not treating)” the serious medical needs of the prisoner. Id.
In the pending motion, Stanishefski argues that the fourth amended complaint does
not allege sufficient facts to show that “Stanishefski had a reason to believe or actual

12

knowledge that Milliner needed to be housed in a cell with a single bunk for a medical
reason until he was notified by the Pennsylvania Prison Society[,] at which time Milliner
was placed in a cell with a single bunk.” Stanishefski Mem., at 6 (Docket No. 87).
The argument is unpersuasive. Milliner identifies two bases from which to infer
that Stanishefski had actual knowledge or reason to believe that Milliner had a serious
and unmet medical need for a single-bed cell following his surgery. As to actual
knowledge, Stanishefski is alleged to have personally responded to Milliner’s December
2006 grievance, in which Milliner first complained of the pain caused by sitting in a bunk
bed. Although this grievance preceded Milliner’s post-operative return to SCI-Graterford
in January 2008, it provides a basis to infer that Stanishefski was or should have been
aware of the pain Milliner would experience if housed in a cell with bunk beds. Further,
the fourth amended alleges that Stanishefski should have been aware of Milliner’s need
for a single-bed cell because Stanishefski’s duties as a health care administrator included
a role in the arrangement of medically necessary housing arrangements.4

4

There is some uncertainty regarding whether Stanishefski additionally had actual
knowledge as of January 2008 (upon Milliner’s post-operative return to SCI-Graterford)
that Milliner’s serious medical need for a housing accommodation was going unmet. The
fourth amended complaint alleges that Dr. Stefanic told Milliner on January 22, 2008, that
Stefanic had “notified the proper party” to have Milliner placed in a single-bed cell. 4th
Am. Compl. ¶ 53. But the pleading does not allege that Dr. Stefanic in fact told the
proper party, and it does not allege that Stanishefski was that party. The parties dispute
whether it is reasonable to infer, on the basis of Dr. Stefanic’s statement, that Stanishefski
had actual knowledge of Milliner’s unmet serious medical need for a single-bed cell in
January 2008. Because the other allegations of the complaint discussed in the text are
sufficient to state a claim, it is unnecessary to resolve the reasonableness of this inference.
13

At the pleading stage, the allegations concerning the duties attendant to
Stanishefski’s administrative role, as well as his handling of the December 2006
grievance, are sufficient to ground a plausible inference that Stanishefski knew or should
have known that medical personnel at SCI-Graterford had failed to address Milliner’s
serious medical need for a housing accommodation. Accordingly, the motion to dismiss
for failure to state a claim will be denied.5
*****
AND NOW, this 26th day of March 2012, upon consideration of the January 6,
2012, motion of defendants Carroll Osgood and Altoona Hospital to dismiss the fourth
amended complaint for lack of subject matter jurisdiction (Docket No. 92) and the
plaintiff’s January 27, 2012, response in opposition thereto (Docket No. 93), it is hereby
ORDERED that the motion is DENIED.

5

The fourth amended complaint contains several additional theories for stating a
deliberate indifference claim. These include, inter alia, allegations regarding
Stanishefski’s failure to take steps to schedule or ensure the scheduling of Milliner’s
surgery until four months after his injury, and Stanishefski’s failure to ensure that medical
personnel conducted timely follow-up care after Milliner’s surgery. 4th Am. Compl.
¶¶ 81, 83. As with the allegations concerning housing accommodations, Milliner relies
heavily on Stanishefski’s job duties as a health care administrator to ground an inference
that Stanishefski had actual knowledge or reason to know that medical personnel were
improperly delaying Milliner’s surgery and/or post-operative follow-up care. Whether
those inferences are reasonable is debatable; it is also open to question whether the
alleged delays transcend ordinary negligence or medical malpractice, which is not
actionable under the Eighth Amendment. Estelle, 429 U.S. at 105-06. But Stanishefski
fails to address these alternate theories of liability in his motion to dismiss. Thus, even if
the theory of deliberate indifference premised on Milliner’s housing accommodations
failed (which it does not), these alternate theories of liability would remain.
14

Further, upon consideration of the July 28, 2011, motion of defendant Myron
Stanishefski to dismiss the fourth amended complaint for failure to state a claim (Docket
No. 87) and the plaintiff’s August 17, 2011, response in opposition thereto (Docket No.
89), it is hereby ORDERED that the motion is DENIED.

BY THE COURT:

/s/ Louis H. Pollak
Pollak, J.

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