HAUG v. CEC et al

Filing 114

MEMORANDUM AND ORDER, FILED. SIGNED BY HONORABLE J. CURTIS JOYNER ON 1/23/13. 1/24/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM P. HAUG
vs.
CEC, Operator of George W.
Hill Correctional Facility,
ET. AL.

: CIVIL ACTION
:
:
:
: NO. 11-CV-5290
:
:

MEMORANDUM AND ORDER

JOYNER, C.J.

January

23, 2013

This Section 1983 action has been brought before the Court
on motion of Defendants CEC (Community Education Centers, Inc.),
Emanuel Asante and Frank Green for the entry of summary judgment
in their favor as to all of Prisoner-Plaintiff’s claims against
them.

After careful consideration of the record evidence, the

motion shall be granted.
Summary of Relevant Facts
On October 4, 2010, Plaintiff William Haug was arrested by
the Ridley Township (Delaware County, Pennsylvania) Police
Department for various offenses and transported to the George W.
Hill Correctional Facility in Thornton, PA.
and “C”).

(Def. Exhibits “B”

The following day, when Plaintiff was seen in the

prison medical receiving unit, he advised the intake physician
assistant that he suffered from attention deficit hyperactivity
disorder (ADHD), anxiety and panic attacks.

Plaintiff also

reported that he was then currently taking Xanax, 2 mg., three
times per day and he provided the name and phone number of the
pharmacy in Woodlyn, PA where his prescription was on file and
had been filled.

(Def. Exhibit “C”, CEC-000001-000003, CEC-

000008; Pl’s Dep., pp. 23-26, 36).

Plaintiff’s intake physical

examination revealed him to be in good health otherwise, although
curiously, his mental health intake assessment reflects that
Plaintiff was not taking any psychotropic medications, did not
appear overly anxious or afraid, showed no signs of withdrawal or
mental illness, and that he had no history of outpatient mental
health treatment.

(Def. Exhibit “C”, CEC-000019).

Plaintiff did not receive any of his prescribed medication
after his incarceration with the result that he began
experiencing withdrawal symptoms within days of his admission to
the defendant correctional facility.

According to Plaintiff, he

was sweating, dizzy, nauseous, had diarrhea, couldn’t sleep and
he felt faint and anxious, like he “was crawling out of [his]
skin,” and he “started to think [he] was seeing things.”
Plaintiff testified that, from October 5th until he was
eventually seen on October 14th, he asked the guards every day to
take him to the medical unit.

(Pl’s Dep., pp. 33-34).

Finally,

on October 14th, one of the corrections officers1 whom Plaintiff
1
Two of these corrections officers, whom plaintiff first identified
in his initial pleadings only as “Robert” and “George” are defendants,
although the record indicates that they have not been served. Similarly,
although Plaintiff was granted leave to amend his complaint to join the intake

2

had been asking to call into the medical unit for him, did so
because, according to Plaintiff,

“he seen that I looked pretty

bad...I guess he had sympathy or whatever...”

(Pl’s Dep., pp.

43-44).
As reflected by the prison’s records, Plaintiff submitted a
medical request on October 10, 2010 in which he reported that his
problem was that he was “withdrawing from Xanax and I never
received any medication – I’m very dizzy and having severe panic
attacks...”

(Def. Ex. “C,” CEC-000032).

This request was

purportedly received in the medical unit on October 12, 2010 and
he was thereafter seen by a nurse in the unit on October 14,
2010.

Plaintiff’s symptoms and complaints were recorded, he was

examined and found to have low blood pressure (105/55), a mild
muscle twitch in his left leg, a heart rate of 84 beats per
minute, a slightly elevated body temperature of 99 degrees and to
be alert and oriented to person, place and time.

He was

diagnosed as suffering from anxiety related to Xanax withdrawal,
and was referred to Psychiatry for follow-up and instructed in

physician assistant as a defendant on March 14, 2012, and that he did so on
March 29, 2012, Plaintiff has never amended his pleadings to identify that
intake physician assistant by name or to effectuate service upon that
individual. On the other hand, Plaintiff did so move and leave was granted to
amend his complaint to identify the two corrections officers by name via this
Court’s Order dated August 2, 2012. Plaintiff, however, apparently never did
file such an amendment. We note further that his motion to amend identified
these two officers as Robert Horan and A. Raupers and that while Plaintiff did
provide these officers’ names to the U.S. Marshal’s Service and service was
again attempted on August 3, 2012, the service attempt failed because
“G.H.C.F. requires a full name for service. Amend Complaint to reflect the
full and correct name.” Again, however, it does not appear that Plaintiff
ever acted upon the Marshal’s Service’ directive.

3

anxiety-reducing breathing exercises.

Plaintiff was also

instructed to immediately return to medical if his anxiety
increased or suicidal ideation developed to which Plaintiff
verbalized that he understood.
Dep., 43-45).

(Def. Ex. “C,” CEC-000008; Pl’s

Plaintiff testified that the nurse told him there

was nothing they could do about it and that it would only be a
few more days until withdrawal would be over.

Plaintiff also

testified that his withdrawal symptoms remained bad for over a
week.

(Pl’s Dep., pp. 35-36).
Over the next several months, Plaintiff made a number of

other requests for medical treatment for, in addition to his
panic attacks and anxiety, a red rash and lesions on his leg,
sore throat and sinus pain, a dental check-up and cleaning and
for testing for sexually-transmitted diseases/HIV, all of which
resulted in his being seen and treated in a timely fashion for
those non-psychiatric conditions.

(Def. Exhibit “C”).

However, despite his repeated requests and the psychiatric
referral of October 14, 2010, it does not appear that Plaintiff
was seen by the prison psychiatric unit until January 14, 2011,
when he apparently reluctantly saw a psychologist, Dana Dantzler,
whose notes state only: “pt did not want to come for visit.”
(Def. Ex. “C,” CEC-000004, CEC-000006).

Plaintiff’s recollection

on this visit is spotty – he recalls only seeing her once and
that she “put [him] in for a psych referral.”

4

(Pl’s Dep., pp.

53-56).
Two days later, Plaintiff was seen by David Neal, MSW/LSW,
who took a more complete psychiatric history, noting that
Plaintiff had been previously diagnosed as suffering from the
following disorders: Bipolar, ADHD, PTSD, and Anxiety.
Exhibit “C,” CEC-000015-000016).

(Def.

Mr. Neal noted that Plaintiff

had low frustration tolerance, few/poor coping skills, and found
him to have a mood disorder, not otherwise specified.
likewise referred him to psychiatry for follow up.

He

(CEC-000018).

Approximately one month later, on February 12, 2011,
Plaintiff was seen by Dr. Grato Paneque, a psychiatrist, whose
mental status evaluation revealed a “21-year old angry young man
because ‘I’m not getting my medication.’” Dr. Paneque found that
Plaintiff’s affect was slightly anxious, he was goal directed,
had no psychosis, denied suicidal ideation but did give a history
of one suicide attempt prior to prison.

Dr. Paneque found

Plaintiff to be suffering from anxiety disorder, mood disorder
(not otherwise specified), and personality disorder (not
otherwise specified).

He discussed a trial of mood stabilizer

and SSRI trial with Celexa but Mr. Haug “adamantly” refused all
medications except for Xanax or Klonopin.”
CEC-000006; Exhibit “D”; Pl’s Dep., 52-58).

(Def. Exhibit “C,”
There is no evidence

that Plaintiff was ever seen again for psychiatric care and, on
March 11, 2011, he was transferred from George W. Hill

5

Correctional Facility to Graterford State Correctional
Institution. (Pl’s Dep., 59).
On August 19, 2011, Plaintiff applied for leave to proceed
in forma pauperis, which was granted and Plaintiff’s complaint
accepted for filing on August 24, 2011 against the Warden,
Medical Department and CEC, the operator of the George W. Hill
Correctional Facility, along with Dr. Paneque, Emmanuel Asante,
the prison’s grievance coordinator and the two individual
correctional officers to whom plaintiff alleged he repeatedly
asked for medical care.

Motions to dismiss were filed and

granted with prejudice as to George W. Hill Correctional
Facility, its medical department and Dr. Paneque.

Leave to re-

plead as to the remaining defendants was given and Plaintiff
filed several amended complaints as to these moving defendants
asserting that, by delaying and/or denying him prompt access to
medical care for his Xanax withdrawal, the defendants violated
the plaintiff’s constitutional rights under the Eighth and
Fourteenth Amendments.

It is as to these claims that Defendants2

now move for the entry of judgment in their favor as a matter of
law.
Standards Governing Entry of Summary Judgment

2
The “moving” defendants for purposes of this motion are Community
Education Centers, Inc. (“CEC”) the operator of the prison under a contract
with Delaware County, the (now-former) warden, Frank Green, and Emmanuel
Asante, the prison’s grievance coordinator.

6

Summary judgment is appropriate only if there are no genuine
issues of material fact such that the movant is entitled to
judgment as a matter of law.

Erdman v. Nationwide Insurance Co.,

582 F.3d 500, 502 (3d Cir. 2009); Fed. R. Civ. P. 56(a).

An

issue is genuine only if there is a sufficient evidentiary basis
on which a reasonable jury could find for the non-moving party,
and a factual dispute is material only if it might affect the
outcome of the suit under governing law. Bilibi v. Klein, No. 053496, 2007 U.S. App. LEXIS 20694 at *3, 249 Fed. Appx. 284, 286
(3d Cir. Aug. 29, 2007)(citing Kaucher v. County of Bucks, 455
F.3d 418, 423 (3d Cir. 2006)).

See also, Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.2d 202
(1986).

If the non-moving party bears the burden of persuasion

at trial, “the moving party may meet its burden on summary
judgment by showing that the nonmoving party’s evidence is
insufficient to carry that burden.”

Kaucher, supra, (quoting

Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998)).

In

undertaking review of the evidence, district courts view the
record in the light most favorable to the non-moving party and
draw all reasonable inferences in that party’s favor.

See,

Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135,
140 (3d Cir. 2004); Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.
2000).

“If there is a chance that a reasonable factfinder would

not accept a moving party’s necessary propositions of fact, pre-

7

trial judgment cannot be granted.”

El v. Southeastern

Pennsylvania Transportation Authority, 479 F.3d 232, 238 (3d Cir.
2007).

“Specious objections will not, of course, defeat a motion

for summary judgment, but real questions about credibility, gaps
in the evidence, and doubts as to the sufficiency of the movant’s
proof, will.”

Id.; Crosby v. UPMC, Civ. A. No. 07-501, 2009 U.S.

Dist. LEXIS 23736 at *24 (W.D. Pa. March 20, 2009).
Discussion
As noted, Plaintiff instituted this civil action under
Section 1983, 42 U.S.C., which reads as follows in pertinent
part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress...
Thus, “to make out a claim under §1983, a plaintiff must
demonstrate that a person acting under color of state law
deprived him of rights secured by the Constitution or laws of the
United States.”

Albrecht v. Hamilton, No. 06-4313, 233 Fed.

Appx. 122, 124 (3d Cir. April 26, 2007)(quoting Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994)).

In accord,

Lugar v. Edmondson Oil Co., 487 U.S. 922, 937, 102 S. Ct. 2744,
73 L. Ed.2d 482 (1988)(“The deprivation must be caused by the

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exercise of some right or privilege created by the State ... or
by some person who may fairly be said to be a state actor.”)
Here, Plaintiff seeks relief under the Eighth and Fourteenth
Amendments alleging that, by failing to treat him for Xanax
withdrawal, the defendants were deliberately indifferent to his
serious medical needs.

It is well-settled that, pursuant to the

Eighth Amendment’s prohibition on cruel and unusual punishment,
prison officials are required to provide basic medical treatment
to inmates.

Johnson v. Coleman, No. 12-3556, 2012 U.S. App.

LEXIS 25471 at *4 (3d Cir. Dec. 13, 2012)(citing Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).

However, the

Supreme Court has made clear that “Eighth Amendment scrutiny is
appropriate only after the State has complied with the
constitutional guarantees traditionally associated with criminal
prosecutions.”

Bell v. Wolfish, 441 U.S. 520,535, n. 16, 99 S.

Ct. 1861, 1872, n.16, 60 L. Ed.2d 447 (1979)(quoting Ingraham v.
Wright, 430 U.S. 651, 671-672, n. 40, 97 S. Ct. 1401, 1412-1413,
n. 40, 51 L. Ed.2d 711 (1977)).

Thus, inasmuch as “[u]nder the

Due Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law,” the
“proper inquiry” in evaluating the constitutionality of
conditions or restrictions of pretrial detention is whether those
conditions amount to punishment of the detainee.”

Id.

If so,

the inquiry thus proceeds to “first, whether any legitimate

9

purposes are served by [the challenged] conditions of
confinement, and second, whether these conditions are rationally
related to these purposes.”

Carson v. Mulvihill, No. 10-1470,

2012 U.S. App. LEXIS 14540 at *11 (3d Cir. July 16, 2012)(quoting
Hubbard v. Taylor, 399 F.3d 150, 159 (3d Cir. 2005)).
This is not to say that the concept of deliberate
indifference has no application in the instant case.

As the

Third Circuit has noted, “it would be anomalous to afford a
pretrial detainee less constitutional protection than one who has
been convicted.”

Inmates of Allegheny County Jail v. Pierce, 612

F.2d 754, 762 (3d Cir. 1979)(quoting Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077, 1079-80 (3d Cir. 1976)).

“Thus, at a

minimum the ‘deliberate indifference’ standard of Estelle v.
Gamble3 must be met.”

Id.4

The Estelle standard is by now a familiar one in §1983
jurisprudence.

3

Specifically, it is a two-pronged test requiring

429 U.S. 97, 97 S. Ct. 285, 50 L. Ed.2d 251 (1976).

4

As the Third Circuit alluded in its recent unreported decision in
Carson v. Mulvihill, supra, it really is not entirely clear which standard
should be applied to analyze a Due Process claim in the context of inadequate
medical treatment – the two-pronged legitimate purpose standard of Bell v.
Wolfish, or the deliberate indifference standard of Estelle v. Gamble. See,
Carson, 2012 U.S. App. at *14. However, the Carson Court held,
We need not resolve today which standard applies because even under the
Bell standard, which is arguably more protective of pretrial detainees’
rights than the Estelle standard, we will affirm the District Court’s
determination that Carson’s Due Process rights were not violated....we
find that pursuant to Bell, the ACJF had legitimate, nonpunitive
purposes for its determinations regarding Carson’s asthma medication and
wheelchair footrests...
Id.

Given this confusion, we analyze this case under both standards.

10

a showing of: (1) deliberate indifference on the part of prison
officials, (2) to a prisoner’s serious medical needs.
429 U.S. at 104, 97 S. Ct. at 291.

Estelle,

Deliberate indifference

requires proof that the official “knows of and disregards an
excessive risk to inmate health or safety.”

Mutschler v. SCI

Albion CHCA Health Care, 445 Fed. Appx. 617, 620 (3d Cir. Sept.
27, 2011)(quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.
Ct. 1970, 128 L. Ed.2d 811 (1994) and Natale v. Camden County
Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003)).
“Deliberate indifference inheres in an official’s ‘intentionally
denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.’” Smith v.
Hayman, No. 12-2203. 2012 U.S. App. LEXIS 15322 at *8 (3d Cir.
July 25, 2012)(quoting Estelle, 429 U.S. at 104-105).

Thus,

courts “have found deliberate indifference where a prison
official: ‘(1) knows of a prisoner’s need for medical treatment
but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a non-medical reason; or (3) prevents
a prisoner from receiving needed or recommended treatment.’”
Johnson supra, at *4 (quoting Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999).

A medical need will be considered serious if

it is “one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would
easily recognize the necessity for a doctor’s attention.”

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Albert

v. Yost, Nos. 11-1453, 11-1454, 431 Fed. Appx. 76, 80, 2012 U.S.
App. LEXIS 12401 at *9 (3d Cir. June 14, 2011)(quoting Montmouth
County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 347
(3d Cir. 1987)).
Liability under §1983 also requires the plaintiff to show
the defendant’s personal involvement in the alleged
constitutional violation.

Washington v. Showalter, 2012 U.S.

App. LEXIS 18111 at *7 (3d Cir. Aug. 27, 2012).

Such personal

involvement “can be shown through allegations of personal
direction or of actual knowledge and acquiescence.”

Id, (quoting

Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60,
72 (3d Cir. 2011).

“[A]bsent a reason to believe (or actual

knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner, a non-medical prison
official ... will not be chargeable with the Eighth Amendment
scienter requirement of deliberate indifference.”

Spruill v.

Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
Finally, a deliberate indifference claim can also be made
out against a supervisor, upon a showing that “(1) the
supervisor’s policies created an unreasonable risk of the Eighth
Amendment injury; (2) the supervisor was aware that the
unreasonable risk was created; (3) the supervisor was indifferent
to that risk; and (4) the injury resulted from the policy.”
Lopez v. Correctional Medical Services, Inc., No. 11-1591, 2012

12

U.S. App. LEXIS 20168 at *7 - *8 (3d Cir. Sept. 26, 2012)(quoting
Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001)).
On the other hand, the courts have made clear that
negligence in the administration of medical treatment to
prisoners is not itself actionable under the Constitution.
Inmates of Allegheny County, 612 F.2d at 762.

Similarly, “mere

disagreement as to the proper medical treatment is also
insufficient” to state a claim for constitutional deprivation.
Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)(quoting
Monmouth County, 834 F.2d at 346).

In this fashion, “deference

is given to prison medical authorities in the diagnosis and
treatment of patients,” and consequently, “courts may not second
guess the propriety of a particular course of treatment,
especially in the presence of sound professional judgment.”
Johnson v. Coleman and Smith v. Hayman, both supra, and citing,
inter alia, Inmates of Allegheny County, 612 F.2d at 762.
Applying these standards to the case at hand, we cannot find
that Plaintiff’s rights under either the Eighth or the Fourteenth
Amendments were violated by the actions and/or inactions of the
moving defendants.

Turning first to the more stringent,

deliberate indifference standard, we again note that the gravamen
of Plaintiff’s complaint is these Defendants’ purported
deliberate indifference to his need for medical treatment for
Xanax withdrawal and for his panic attacks and anxiety disorder.

13

Here, however, the record clearly demonstrates that contrary to
his pleadings, Plaintiff in fact was treated for these
conditions.

Specifically, the medical unit notes evince that

Plaintiff was treated for withdrawal on October 14, 2010, albeit
only with a referral for further psychiatric care and counseling
for anxiety-reducing breathing exercises because Xanax was not
available for prescription in the institution.

While we can well

understand Plaintiff’s dissatisfaction with this course of
treatment and his desire to receive some type of medication to
alleviate his symptoms, it is clear that this is not what the law
requires.

See, e.g., U.S. ex. rel Walker v. Fayette County, 599

F.2d 573, 575 (3d Cir. 1979); Norris v. Frame, 585 F.2d 1183,
1188 (3d Cir. 1978); Holly v. Rapone, 476 F. Supp. 226, 230 (E.D.
Pa. 1979)(no constitutional right to methadone or to the
establishment of methadone maintenance facilities at corrective
institutions).

And, in the months that followed, the record

reflects that Plaintiff was seen a number of times in the medical
unit for, inter alia, a rash, a sore throat, dental care and HIV
testing, as well as for his continuing complaints of anxiety.

It

appears that on each of these occasions he received some type of
treatment and was referred on a number of occasions to
psychiatric care, although he did not see a psychiatrist until
February 12, 2011.

Thus, inasmuch as some treatment was provided

to Mr. Haug, it is not the place of this Court to second guess

14

the adequacy of that treatment.
and its progeny.

See generally, Estelle, supra,

For these reasons, we discern no deliberate

indifference on the part of these defendants.5
Moreover, by Plaintiff’s own admission, the withdrawal
symptoms lasted for a little more than one week.
36).

(Pl’s Dep., 35-

Although Plaintiff continued to experience anxiety and was

angry because he wasn’t getting his medication, he nevertheless
refused Dr. Paneque’s offer of another drug - Celexa and/or an
SSRI6 to stabilize his moods, apparently advising the doctor that
the only medications he would take were Xanax and Klonopin.

We

reiterate that the Constitution requires only that medical
treatment be provided – it does not mandate that the medical
treatment provided comport with that desired by the inmate.
Accordingly, we find that summary judgment is properly entered in
favor of Movants with respect to Plaintiff’s Eighth Amendment
claim.
Further, while the parameters of Plaintiff’s Fourteenth
Amendment claim are not entirely clear from the face of his
pleadings or other submissions, we may infer that it too arises
from Plaintiff’s placement in the defendant correctional

5

This finding is limited to these defendants alone, however. We
leave to another day the issue of whether those defendants who have not been
served with process may have been deliberately indifferent.
6
Short for “Selective Serotonin Reuptake Inhibitor” – “any of a class
of drugs that inhibit the uptake of serotonin in the central nervous system
and are used to treat depression and other psychiatric disorders.”
www.thefreedictionary.com.

15

facility’s general population without being administered the
medication of his choice to alleviate the discomfort caused by
his withdrawal from Xanax and by the length of time that elapsed
between Plaintiff’s initial admission to the facility and his
being seen by the psychiatric unit.

Presumably, it is

Plaintiff’s position that such “conditions of confinement”
operated to “punish” him.

If so, it then falls upon the Court to

determine whether any legitimate purposes are served by those
conditions of confinement and whether these conditions are
rationally related to these purposes.
Viewing the record in the light most favorable to the
plaintiff and giving him the benefit of all reasonable
inferences, we would agree that the failure to afford him medical
care for some 9 days, from October 5 - October 14, 2010 for his
withdrawal symptoms constituted punishment of a pre-trial
detainee.

And, inasmuch as the record contains no evidence as to

what, if any, legitimate purposes may have been served by this
delay and the rational relationship which these conditions may
have had to those legitimate purposes, genuine issues of material
fact exist on these points.
However, as the above-referenced precedent makes clear, in
actions against an institutional party or supervisory
individuals, there must be a showing of personal involvement
(i.e. personal direction or actual knowledge and acquiescence)

16

and/or the existence of a custom, policy or practice that caused
the constitutional injury7.

On this record, we find that there

is evidence that a number of the facility’s policies with respect
to making sick call requests available on a daily basis to
inmates, to scheduling inmates to be seen within 24 hours of
receipt of those requests and to continuing to administer
psychotropic medications to those inmates whose prescriptions can
be verified may well have been violated in Plaintiff’s case.8
These facts notwithstanding, however, there is no evidence
whatsoever that either Mr. Green or Mr. Asante had any knowledge
that Plaintiff needed, was asking for and/or was being denied
appropriate psychiatric treatment and care nor any evidence that
they or any other representative of CEC knew or had reason to
know that the written policies and procedures promulgated by CEC
for the provision of such care at the facility were either
inadequate or were not being followed.

For this reason, we are

constrained to also grant the defendants’ motion for summary
judgment on Plaintiff’s claim under the Fourteenth Amendment.9
7

See, Monell v. Department of Social Services of City of New York,
436 U.S. 658, 690-691, 96 S. Ct. 2018, 2035-2036, 56 L. Ed.2d 611 (1978).
8

See, Def. Exhibits “F,” “G,” “H,” “I,” and “J.”

9

In their reply brief, Defendants express concern that Plaintiff may
be raising a claim for common law negligence for the first time in his
response to the motion for summary judgment. This Court, however, does not
read any of Plaintiff’s Amended Complaints as so raising this claim or any
other claim with the exception of those discussed herein. Moreover, even if
Plaintiff’s pleadings may be so interpreted, we agree with Defendants that
such a negligence/medical malpractice claim would fail inasmuch as it does not
contain an appropriate certificate of merit as is required under Pennsylvania

17

Based upon all of the foregoing, we shall grant the motion
of Defendants CEC, Emmanuel Asante and Frank Green for summary
judgment and enter judgment in favor of those defendants as a
matter of law.

law.

An order follows.

See, e.g., Pa. R.C.P. 1042.3, 1042.7.

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