CHARLESTON v. CORIZON HEALTH, INC. et al

Filing 185

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/12/18. 4/12/18 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WAYNE CHARLESTON, JR.
v.
CORIZON HEALTH, INC., et al

: CIVIL ACTION
:
:
: NO. 17-3039
:
MEMORANDUM

KEARNEY, J.

April 12, 2018

Incarcerated persons awaiting their criminal trial are entitled to medical care under the
Fourteenth Amendment. These pre-trial detainees may request medical care through sick call
slips. We expect our prison medical staff timely evaluate specific medical findings and move
forward on remedial treatment as warranted. We do not expect prison doctors to place x-rays in a
desk drawer and not look at them. We expect our prison officials timely address grievances of
inadequate care. When the pre-trial detainee believes the prison medical staff and wardens
harmed him through inadequate medical care, he may seek damages under the civil rights law.
We today address a delayed diagnosis of cancer for a pretrial detainee after several sick
call slips, medical center visits and, beginning on November 5, 2015, after an outside doctor
recommended urgent action. The pre-trial detainee claims the prison medical staff and wardens
failed to adequately treat his cancer before December 5, 2015. Extensive discovery confirms
genuine issues of disputed material facts concerning many of the named defendants’ inaction
before December 5, 2015. Those issues include whether doctors, on or after November 5, 2015,
and wardens, on or after September 7, 2015, exhibited deliberate indifference under the
Fourteenth Amendment and whether other members of the prison medical staff negligently
treated the pretrial detainee in 2015. Those disputed issues must be tried to the jury but the
remaining claims are dismissed as a matter of law.

I.

Undisputed Facts1
In January 2015, Wayne Charleston, Jr. arrived at Curran Fromhold Correctional Facility

(“Prison”) in Philadelphia as a pre-trial detainee in apparent good health.2 Mr. Charleston
received medical treatment from numerous nurses, nurse practitioners, physician assistants, and
physicians while in the Prison dating from his January 2015 intake through December 2015. In
December 2015, after months of complaining about illnesses to the Prison medical personnel as
confirmed in sick slips, medical records and correctional officers’ recollection, Temple
University Hospital diagnosed Mr. Charleston with Stage IV nasopharyngeal cancer.

Mr.

Charleston challenges the adequacy of medical care he received in response to sick calls and
medical attention as a pretrial detainee. He claims the Prison’s medical providers’ deficient
treatment delayed his eventual diagnosis of nasopharyngeal cancer.
Corizon’s treatment before an outside doctor’s November 5, 2015 diagnosis.
Following an intake screen, the Prison first examined Mr. Charleston on January 16,
2015.3 The Prison, through the City of Philadelphia’s contracted medical provider Corizon
Health, Inc.,4 found Mr. Charleston in good health. Corizon relied upon its Prison Site Director
Dr. Bruce Blatt.5 As Medical Director, Dr. Blatt treated patients at the Prison and oversaw the
treatment provided by Corizon’s non-physician practitioners to Prison inmates.6
It appears the first of Mr. Charleston’s many sick call requests occurred March 6, 2015
when Nurse Barbara Kitter (a Corizon agent) responded to Mr. Charleston’s sick call request
complaining of a sore throat and neck pain.7 Mr. Charleston complained his sore throat and neck
pains lasted for three weeks.8 Nurse Kitter referred Mr. Charleston to a physician assistant for
further evaluation.9 Corizon prescribed antibiotic amoxicillin.10 On March 9, 2015, Physician
Assistant Constance Orji examined Mr. Charleston, suggested Mr. Charleston use a warm

2

compress on his neck if pain continued, and instructed Mr. Charleston to return if his symptoms
worsened.11
On March 19, 2015, Mr. Charleston submitted another sick call request complaining of
neck and throat pains.12 Nurse Kristin Popelak examined Mr. Charleston the next day, instructed
him to take Tylenol as needed, and to return if his symptoms worsened.13
On April 2, 2015, Mr. Charleston submitted a sick call request complaining of ongoing
neck pain for the past month-and-a-half.14 On April 3, 2015, Victor Kak, of unknown title,
evaluated Mr. Charleston but did not note a major concern with Mr. Charleston’s health.15
On May 5, 2015, Mr. Charleston submitted a sick call request again complaining of
ongoing neck and throat pain for the past two months and pain in his left ear.16 On May 6, 2015,
Nurse Lisa Fauntleroy examined Mr. Charleston and suggested he follow up with a practitioner
for chronic care.17 On May 7, 2015, Nurse Orji again evaluated Mr. Charleston and noted his
complaints of a sore throat for the past four months and ear pain for the past several weeks.18
Nurse

Orji

instructed

Mr.

Charleston

to

take

amoxicillin

potassium

claculanate,

chlorpheniramine maleate, and Tylenol.19
Over two months later, Mr. Charleston submitted a sick call request complaining of what
he believed to be an allergic reaction to medication, specifically ibuprofen, which he described as
“eating away at the back of my throat” and causing him to cough up blood. 20 On July 9, 2015,
Mr. Charleston submitted another sick call request again complaining of an allergic reaction to
certain medication, explaining he is coughing up blood, and requested his throat be “properly
looked at.”21
On July 23, 2015, Physician Assistant Karen McKinney examined Mr. Charleston.22 She
noted Mr. Charleston’s complaint of his sore throat lasting almost six months and the prescribed

3

medication did not alleviate his symptoms.23 PA McKinney noted a redness in his throat but
labelled the assessment as “benign.”24
On August 6, 2015, Mr. Charleston submitted a sick call request stating, “I have been
having bad migraines I need to be seen tumors run in my family. Tylenol isn’t working the
aching is constant.”25

On August 9, 2015, an unknown Corizon provider examined Mr.

Charleston.26 The provider gave Mr. Charleston Tylenol and instructed him to follow up if his
symptoms worsen.27
On August 9, 2015, Mr. Charleston reported a headache to Nurse Popelak. Corizon
prescribed Tylenol.28
On August 15, 2015, Mr. Charleston submitted a sick call request stating, “I’m still bad
having headaches & migraines I never received my medication. I need to be checked out
thoroughly. I’ve been having this aching pain in my head for about 2 months now, tumors run in
my family & I believe this aching pain is more serious then migraines & headaches its constantly
getting worse.”29
On August 16, 2015, Mr. Charleston submitted a sick call request stating, “I need to be
seen I’m having throat pains, glands swollen, from an allergic reaction to the medicine given to
me. I need pain medicine, Tylenol. I have G6PD so I can’t take Ibuprofen, Aspirin, etc… I have
been having this same problems things only gotten worse. I keep feeling out these sick call slips
& not being seen nor the proper treatment of getting look at thoroughly.”30
On August 17, 2015, Mr. Charleston filled out another sick call request again
complaining of worsening headaches.31 On August 19, 2015, Nurse Dulie Rene examined Mr.
Charleston.32 Nurse Rene reported Mr. Charleston described his pain at a ten out of a ten point
scale.33 The Prison prescribed Tylenol.34

4

On August 26, 2015, Mr. Charleston submitted a sick call request stating, “I’m still
having these bad migraines & headaches. The Tylenol given to me did not work. The pain is
constant I can’t sleep it hurts when I try to rest my head on the left side. The slightest touch of
my head causes me alot of pain. I need to be seen ASAP for brain cancer please get me the
proper treatment I can’t keep taking this pain its unbearable.”35 On August 27, 2015, Nurse
Rene examined Mr. Charleston.36 Mr. Charleston again described his pain at a ten out of ten.37
Nurse Rene referred Mr. Charleston to a practitioner.38
On August 28, 2015, PA McKinney again examined Mr. Charleston.39 Mr. Charleston
complained of migraines lasting for the past one-and-a-half months.40 Mr. Charleston explained
the medication is not alleviating symptoms.41

Mr. Charleston demanded a CT scan be

performed.42 PA McKinney diagnosed Mr. Charleston with a headache.43 PA McKinney noted
Mr. Charleston became argumentative when she did not provide the treatment he demanded.44
PA McKinney instructed Mr. Charleston to return if his symptoms worsen or change. 45 Given
Mr. Charleston’s demand for a CT scan, PA McKinney sent an internal communication to Dr.
Blatt requesting his input on the next steps.46
On September 2, 2015, PA McKinney again examined Mr. Charleston.47 PA McKinney
reported Mr. Charleston complained of a consistent headache lasting the last six weeks.48 PA
McKinney also reported Mr. Charleston demanded a CT scan.49 PA McKinney submitted a
telephone encounter form, an internal communication, to Dr. Blatt requesting Dr. Blatt’s
guidance on the next steps.50 The same day, Dr. Blatt, without examining Mr. Charleston,
referred Mr. Charleston to Corizon’s chronic care physician Dr. Robin Clemons.51
On September 4, 2015, Mr. Charleston submitted another sick call request explaining,
“I’m still having constant migraines & headaches I’ve been having this problem for 2 months

5

now I need to get looked at properly. I’m afraid that I may have a tumor in my head.” 52 On
September 7, 2015, Mr. Charleston submitted a sick call request stating, “I need to be seen
thoroughly I have a serious issue that concerns my life. I have a tumor in my head its no way
that I should keep having migraines & headaches for the past two months everyday. No
medication has worked please can I get a cat scan for my head I have rights for getting the proper
treatment why are my concerns being ignored?”53
On September 7, 2015, Mr. Charleston filled out an inmate grievance form. 54 Mr.
Charleston explained his issue with constant headaches and migraines and how the medication
prescribed did not alleviate his symptoms.55 Mr. Charleston repeated his concern he had a tumor
in his head.56 Mr. Charleston stated the nurses he met with ignored his concerns he had brain
cancer and ignored his requests for a CT scan.57 In the “Action Requested by Inmate” section of
the grievance form, Mr. Charleston pled, “Please can I just get a cat scan for my head I don’t
want to die my family is worried that things can get worst if I don’t get the proper treatment. All
I’m asking for is a cat scan to see what wrong with me & why I’m having these migraines.” 58
The parties dispute whether Mr. Charleston actually submitted this September 7, 2015 grievance
form.
On September 8, 2015, Mr. Charleston submitted another sick call request requesting
treatment for his migraines.59 The same day, Nurse Popelak entered a progress note in response
to Mr. Charleston’s sick call requests.60 Nurse Popelak explained Mr. Charleston had been seen
recently for the same issues and had an appointment scheduled with a chronic care physician
pending.61 Nurse Popelak did not examine Mr. Charleston on September 8, 2015.62
On September 10, 2015, Mr. Charleston submitted a sick call request explaining, “I need
my tooth pulled immediately I can’t take these headaches & constant migraines everyday

6

anymore it feels like I may have a tumor in my head the migraines & headaches been going on
for 2 months now I’m starting to spit out blood & its scaring me. The whole left side of my face
is in pain my jaw & my head!”63
Dr. Clemons’ initial exam and continued sick call requests.
On September 11, 2015, following Dr. Blatt’s referral of Mr. Charleston to chronic care,
Dr. Robin Clemons examined Mr. Charleston for the first time.64 Dr. Clemons noted Mr.
Charleston complained of headaches for the past two months and the pain worsens when he eats
and sleeps on his left side.65 Dr. Clemons also noted Mr. Charleston’s belief Tylenol did not
help him.66 Dr. Clemons examined Mr. Charleston’s head, eyes, ears, oral cavity, throat, heart,
and lungs.67 Dr. Clemons reported Mr. Charleston may have been experiencing migraines or
may have had an issue with his temporomandibular joint in his jaw (“TMJ”).68 Dr. Clemons
diagnosed Mr. Charleston with headaches.69 Dr. Clemons also observed an infection in Mr.
Charleston’s left ear.70 Following her exam, Dr. Clemons prescribed Mr. Charleston propranolol
and Tylenol in an attempt to decrease the frequency of Mr. Charleston’s headaches. 71 Dr.
Clemons prescribed clindamycin to treat Mr. Charleston’s ear infection.72 Dr. Clemons ordered
a series of lab tests to rule out a possibility of a systemic infection causing Mr. Charleston’s
headaches.73 Finally, Dr. Clemons ordered x-ray tests on Mr. Charleston’s skull and an x-ray
test focusing on Mr. Charleston’s TMJ to explore the potential cause of Mr. Charleston’s
headaches.74 Dr. Clemons ordered a follow up appointment with Mr. Charleston in four weeks.75
Dr. Clemons did not consider ordering a CT scan during her first examination of Mr.
Charleston.76
Between September 11th and October 13th, Mr. Charleston did not submit sick call
requests to the medical center.77

7

On October 14, 2015, Mr. Charleston submitted a sick call request explaining, “I’m still
having these constant migraines & headaches everyday all day. I’ve taken all the medication
prescribed to me as instructed. This problem only gotten worse & on top of that my neck & left
ear has continuously been a problem as well. Please can I have a cat scan on my head I believe I
have a brain tumor this is a life threatening issue please don’t ignore my concerns.” 78 On
October 15, 2015, Nurse Marie Whatley examined Mr. Charleston.79 Nurse Whatley noted Mr.
Charleston felt pain he described as ten out of ten.80 Mr. Charleston explained the Tylenol and
other medications prescribed did not alleviate his symptoms and his headaches have been
persistent for three months.81

Nurse Whatley referred Mr. Charleston to chronic care and

scheduled an appointment for October 22, 2015.82
On October 29, 2015, Mr. Charleston submitted a sick call request explaining he had not
yet seen a physician as scheduled during his last visit and still experienced the same headaches
and migraines.83 Mr. Charleston also warned, “I keep filling out these sick call slips which
seems to be getting ignored if I die in here because your nurses fail to schedule me for a cat scan
on my head to see if I have a tumor then my family will have a major lawsuit please stop
ignoring my health concerns.”84
On October 30, 2015, Dr. Clemons saw Mr. Charleston for a follow up appointment,
despite ordering a follow up appointment to occur on later than October 11, 2015.85 During the
examination, Mr. Charleston expressed concern he had a brain tumor.86 Mr. Charleston also
expressed concern about his symptoms lasting for nearly 6 months without improvement.87 Dr.
Clemons examined Mr. Charleston’s head, eyes, ears, oral cavity, heart and lungs. 88 During her
examination, Dr. Clemons learned the x-rays she ordered back on September 11 were not
performed.89 Dr. Clemons did not investigate why the Prison and Corizon did not obtain the x-

8

rays but she did re-order the x-rays to be performed.90 Dr. Clemons did not know Nurse Whatley
saw Mr. Charleston on October 15 at the time of the examination.91 Dr. Clemons diagnosed Mr.
Charleston with headaches and acute serous otitis media, fluid in the ear.92 In addition to reordering the x-ray tests, Dr. Clemons stopped the prescription of propranolol, refilled the Tylenol
prescription, and prescribed Augmentin to address Mr. Charleston’s ear condition. 93

Dr.

Clemons scheduled a follow up appointment for four weeks.94
Dr. Limberakis recommended a CT and MRI on November 5, 2015.
On November 3, 2015, Corizon performed the x-ray tests first ordered by Dr. Clemons on
September 11 but then re-ordered by Dr. Clemons on October 15.95 Corizon sent the images to
Bustleton Radiology, an off-site facility, for review.96 Dr. Anthony Limberakis, a radiologist
with Bustleton Radiology, reviewed Mr. Charleston’s x-ray images.97

Dr. Limberakis

memorialized his conclusions in a November 5, 2015 report.98 Dr. Limberakis directed his
report to Dr. Blatt.99 Near the top of Dr. Limberakis’s report, Dr. Limberakis wrote, “STAT
REPORT – PHYSICIAN ATTENTION REQUIRED.”100 Dr. Limberakis concluded, “Adenoid
and prevertebral soft tissue enlargement for which clinical correlation and followup are advised;
a prevertebral soft tissue mass at C1 level is suggested and close followup is advised; CT or MRI
of the neck soft tissues is strongly recommended.”101

Bustleton Radiology faxed Dr.

Limberakis’s report to the Prison.102
Dr. Blatt received Dr. Limberakis’s faxed report on November 5, 2015.103

Under

Corizon policy, Dr. Blatt received all x-ray reports to ensure timely delivery and review by the
appropriate person at Corizon.104 Corizon implemented this policy because not all physicians
worked at the Prison full-time but Dr. Blatt remained at the Prison full-time.105 Dr. Blatt read
Dr. Limberakis’s report, including his conclusions strongly recommending further CT or MRI

9

testing.106 After reading the report, Dr. Blatt reviewed Mr. Charleston’s patient chart and learned
Dr. Clemons ordered the x-ray tests.107 Dr. Blatt crossed his name off of Dr. Limberakis’s report
and wrote Dr. Clemons name on the report.108 Dr. Blatt then walked the report down to Dr.
Clemons and handed the report directly to Dr. Clemons.109 Dr. Blatt directed Dr. Clemons to
follow up on the report.110 Dr. Blatt did not take a further step to ensure Dr. Clemons acted on
Dr. Limberakis’s recommendations.111
When handed Dr. Limberakis’s report from Dr. Blatt, Dr. Clemons explained to Dr. Blatt
she had an upcoming appointment with Mr. Charleston (at the end of November) and would
discuss the x-ray results with Mr. Charleston during the appointment.112 Dr. Clemons testified
she did not read the report in its entirety upon receiving it from Dr. Blatt.113 Dr. Clemons
testified she only read the top portion of the report to identify the patient name.114 Dr. Clemons
placed the report in her desk drawer.115

Dr. Limberakis’s November 5 report remained in Dr.

Clemons’ desk drawer without further action.116
On November 8, 2015, Mr. Charleston arrived at the Prison medical center complaining
of blood in his saliva.117

Licensed Practical Nurse Danielle McGettigan examined Mr.

Charleston and instructed him to return if it happens again or the symptoms worsen.118
On November 13, 2015, Mr. Charleston submitted a sick call request stating, “I’m still
having headaches and migraines every day all day. This has been an ongoing problem since I 1st
filled out a sick call request back in August. I been having loss of appetite. I don’t eat, can’t
sleep. I’ve taken every medication prescribed to me the Tylenol doesn’t help. For 3 months I’ve
been having these headaches and migraines it only gotten worse. Please can I have a cat scan on
my head. I’m worried that I may have a tumor.”119

10

On November 14, 2015, in response to his sick call request, recently hired Nurse Anita
Diorio examined Mr. Charleston.120 Mr. Charleston complained of cold sweats and coughing up
blood.121 Concerned Mr. Charleston may have tonsillitis, Nurse Diorio brought Mr. Charleston
to Dr. Clemons for an examination.122

Dr. Clemons testified she noticed Nurse Diorio’s

demeanor, tone and presentation evidenced Nurse Diorio “was very concerned” about Mr.
Charleston’s health.123

Dr. Clemons diagnosed Mr. Charleston with acute tonsillitis and

hemoptysis.124 Dr. Clemons prescribed Augmentin and Tylenol, ordered lab tests and a chest xray.125 Despite having received Dr. Limberakis’s November 5 x-ray report for nearly ten days,
Dr. Clemons still did not review the results and did not discuss Dr. Limberakis’s
recommendations with Mr. Charleston on November 14 because she “forgot about” the report
and x-rays.126 Dr. Limberakis’s report remained in Dr. Clemons’s desk drawer.
On November 15, 2015, Mr. Charleston returned to the Prison medical center and
complained of a sore throat and coughing up blood.127

Nurse Diorio examined Mr.

Charleston.128 Nurse Diorio noted Mr. Charleston seemed anxious.129 Nurse Diorio also noted
Mr. Charleston presented with “tissue with dark red thick 1 cm blood lump.”130 Nurse Diorio
performed a general examination and described Mr. Charleston as “in no acute distress, well
developed, well nourished.”131 Nurse Diorio instructed Mr. Charleston to return if condition
worsens.132 The same day Mr. Charleston also filled out a Request for Staff form requesting a
meeting with a social worker.133 Mr. Charleston sought a social worker to discuss his concern of
his improper medical treatment, medical providers not taking him seriously, his concern of a
brain tumor, and his worsening symptoms.134 On the form Mr. Charleston also indicated the
urgent nature of his concerns by checking off the “EMERGENCY” check box and circling the
subheading “a matter of life or death, or serious bodily injury to any person.”135 Neither party

11

adduced evidence suggesting whether Mr. Charleston actually submitted this form and whether
Prison officials responded.
On November 16, 2015, Mr. Charleston returned to the Prison medical center
complaining of continuing headaches.136 Nurse Popelak noted Mr. Charleston recently visited
Dr. Clemons regarding the same issue and Dr. Clemons ordered x-rays.137 Nurse Popelak told
Mr. Charleston he had a follow up appointment scheduled with Dr. Clemons, but did not provide
treatment.138
On November 17, 2015, Mr. Charleston returned to the Prison medical center
complaining of blurry vision with associated eye pain he rated as an eight out of ten.139 Mr.
Charleston also complained of dizziness for the past two days.140 Mr. Charleston reported he had
to strain to keep his left eye open.141 Nurse Emmanuel Marinho did not mark any assessment or
plan in response to Mr. Charleston’s complaint in his progress note.142
On November 18, 2015, Mr. Charleston again returned to the Prison medical center
complaining he spit up blood.143 Nurse Mary Duffy provided Mr. Charleston with a septum to
produce saliva.144 Nurse Duffy noted Mr. Charleston produced a significant amount of clear
saliva with “an insignificant tinge of red.”145 Mr. Charleston also reported of slight tenderness in
his abdomen, but Nurse Duffy did not observe any swelling, bloating, or distention of Mr.
Charleston’s abdomen.146 Nurse Duffy provided a second septum for Mr. Charleston to produce
an additional sample when possible.147
SIGNIFICANT

SAMPLE

OF

Nurse Duffy’s disposition states, “PENDING A

SPUTUM

SHOWING

SIGNIFICANT

BLOOD

FOR

TESTING.”148
On November 19, 2015, Mr. Charleston again returned to the Prison medical center.149
PA McKinney noted Mr. Charleston came in with varying and changing complaints. 150 Mr.

12

Charleston initially complained of spitting up blood.151 Mr. Charleston produced a blood tinged
sample of saliva while at the medical center.152 Mr. Charleston initially denied having pain in his
throat and ear and denied having issues with his vision.153 Mr. Charleston complained of limited
head rotation movement, his inability to keep his eyes closed, and his inability to completely
open his left eye.154

PA McKinney observed Mr. Charleston’s conduct contradicted his

complaints.155 PA McKinney believed Mr. Charleston suffered from acute serous otits media in
his left ear and hypertrophy of his left nasal turbinate (swelling of an internal nose structure).156
Considering his complaint medications were not helping alleviate his symptoms, PA McKinney
told Mr. Charleston she would discuss alternative options with a physician.157 PA McKinney
wrote Mr. Charleston became angry and refused to leave the medical area due to his
dissatisfaction with his treatment.158

Once in the hallway outside the medical center, Mr.

Charleston began yelling out additional health concerns including his headaches and double
vision.159 PA McKinney noted Mr. Charleston visited with Dr. Clemons on October 30th and
November 14th and had a follow up pending since November 18th.160
PA McKinney sought Dr. Blatt for advisement but Dr. Blatt was not in the office. 161 PA
McKinney sent Dr. Blatt an internal communication regarding Mr. Charleston.162 PA McKinney
also spoke with Dr. Clemons but did not note the content of their conversation.163 On November
20, 2015, Dr. Blatt responded to PA McKinney’s communication stating, “being followed by Dr.
Clemons.”164
On November 21, 2015, Mr. Charleston arrived at the Prison medical center on a
stretcher complaining of blurry and double vision and a pain behind his left eye.165

Mr.

Charleston complained the problem has lasted for weeks and explained he felt like he had an
aneurysm.166 Nurse Christina Marshall consulted with Nurse Practitioner Roseann Green on

13

how to treat Mr. Charleston.167 Nurse Green ordered Mr. Charleston be given Benadryl.168
Nurse Green did not review any of Mr. Charleston’s sick call notes or lab or diagnostic studies
before ordering the Benadryl.169 The same day, Mr. Charleston filed an inmate grievance
detailing his concerns about his lack of proper medical treatment, his fear he has a brain tumor,
his fear of dying in prison, and his repeated requests for a CT scan.170
On November 22, 2015, Mr. Charleston called his family to discuss his medical issues.171
Another inmate became agitated about the duration Mr. Charleston used the telephone and Mr.
Charleston and the other inmate engaged in a physical altercation. 172 A Prison official ordered
Mr. Charleston be sent to solitary confinement and the same day Corizon employee Evelyn Rosa
medically cleared Mr. Charleston for solitary confinement.173
On November 23, 2015, Nurse Practitioner Charlotte Hamilton examined Mr.
Charleston.174

Mr. Charleston complained of headaches and blurred vision.175

Nurse

Practitioner Hamilton referred Mr. Charleston to an optometrist, Dr. Tyler Mills.176
On November 25, 2015, optometrist Dr. Mills examined Mr. Charleston under Nurse
Practitioner Hamilton’s referral.177 For reasons not explained, Dr. Mills had access to and
reviewed Dr. Limberakis’s November 5 report while examining Mr. Charleston.178 Before Dr.
Mills’s review of Dr. Limberakis’s report, no other medical provider reviewed the report or
informed Mr. Charleston of the x-ray results, despite Corizon having received the report twenty
days before. Dr. Mills diagnosed Mr. Charleston with paralytic strabismus, sixth or abducens
nerve palsy (dysfunction of a cranial nerve).179 Dr. Mills recommended urgent MRIs of Mr.
Charleston’s head and orbits.180 The same day Dr. Mills examined Mr. Charleston, he emailed
Dr. Clemons and Corizon’s off-site scheduler to explain his findings and to facilitate the
scheduling of the urgent MRI.181 Dr. Clemons testified she never read Dr. Mills’s email until the

14

day of her deposition.182 Dr. Clemons testified she did not regularly check her Corizon email
and never read Dr. Mills’s email while working at Corizon.183 On December 1, 2015, Dr. Mills
also emailed Dr. Blatt to facilitate the scheduling of the MRI.184
On December 1, 2015, Warden Michelle Farrell approved Deputy Warden Frederick
Abello’s findings of fact and recommendation in response to Mr. Charleston’s recently filed
grievance.185 Deputy Warden Abello found Mr. Charleston received treatment from numerous
providers at the medical center in November and by an off-site optometrist.186

Under

recommended action, Deputy Warden Abello wrote, “Inmate is currently receiving medical
treatment.”187

The findings form includes an area for the inmate to sign accepting the

recommended action. Mr. Charleston refused to sign the form.188
On December 3, 2015, despite Dr. Mills’s November 25 order for urgent MRIs and his
efforts to facilitate scheduling, Corizon scheduled an MRI for almost two months later on
January 31, 2016 at Temple University Hospital.189 Dr. Blatt received the same email and the
same day evaluated Mr. Charleston.190 Dr. Blatt identified the same nerve issue identified by Dr.
Mills and immediately referred Mr. Charleston to Temple University Hospital Emergency
Department for evaluation.191 The same day, Temple Hospital performed a CT scan on Mr.
Charleston’s head. The CT scan of his head identified a soft tissue mass.192
Mr. Charleston learns of his cancer on December 5.
Late night on December 3 into the early morning of December 4, 2015, Robert Bryan,
DO and Joel Passer, MD at Temple ordered a CT scan and MRI on Mr. Charleston’s head.193
The MRI and CT scan results identified a mass “highly suspicious for nasopharyngeal
carcinoma.”194 The biopsy and pathology analysis performed on December 5, 2015 confirmed
Mr. Charleston suffered from Stage IV nasopharyngeal cancer.195

15

Shortly after Mr. Charleston’s December 5 diagnosis, Dr. Eke Kalu, Corizon’s Regional
Medical Director met with Dr. Clemons.196 Dr. Kalu explained to Dr. Clemons she could either
put in her resignation or be terminated for her treatment of Mr. Charleston.197
Correctional officers observe Mr. Charleston’s condition.
While under Corizon’s care and before Mr. Charleston’s cancer diagnosis, Correctional
Officer Sharonna Boyer, among others, observed Mr. Charleston’s discomfort on multiple
occasions while in his cell.198 Officer Boyer observed Mr. Charleston cover his head in a towel
and block his window with his lunch tray to block the sunlight and prevent the irritation the light
caused him.199 On several occasions Mr. Charleston told Officer Boyer he felt he had a brain
aneurysm.200 And on at least one occasion Mr. Charleston told Officer Boyer he felt he did not
receive proper medical treatment from Corizon.201 Officer Boyer became so concerned she
spoke to Sergeant Staci Henderson and ordered Mr. Charleston be taken by stretcher to the
Prison medical center.202

Angelique Williams, another correctional officer, also sent Mr.

Charleston to the Prison medical center after observing Mr. Charleston’s discomfort on a
separate occasion.203
On an unspecified date, Officer Williams observed Mr. Charleston return to his cell from
the medical center crying.204

Officer Williams notified Sergeant Henderson and Sergeant

Henderson met with Mr. Charleston.205 Mr. Charleston showed Sergeant Henderson some sick
call requests and stated he had been examined by several doctors.206 Mr. Charleston cried while
meeting with Sergeant Henderson.207 Sergeant Henderson testified, “I could see in his face that
his head was really hurting him.” And “I could see in his eyes. The whites of his eyes was really
red and he just looked really sick to me.”208
Charleston back to the Prison medical center.209

16

Sergeant Henderson decided to escort Mr.
Upon arrival, a medical staff employee,

identified as PA McKinney by Mr. Charleston during his deposition, approached Sergeant
Henderson and Mr. Charleston.210 PA McKinney told Sergeant Henderson she treated Mr.
Charleston, Mr. Charleston should not be returning to the Prison medical center, and the medical
team could not do anything further for Mr. Charleston.211 Sergeant Henderson described PA
McKinney’s demeanor as “horrible” and “nasty.”212

After a short conversation between

Sergeant Henderson and PA McKinney, Sergeant Henderson escorted Mr. Charleston back to his
cell without further treatment.213
II.

Analysis
Mr. Charleston, now released from state custody, sues the City of Philadelphia, Warden

Farrell, Deputy Warden Abello, Corizon, Nurse Popelak, Nurse Rene, PA McKinney, Nurse
Whatley, Licensed Practical Nurse McGettigan, Nurse Diorio, Nurse Duffy, Nurse Practitioner
Hamilton, Nurse Practitioner Green, Nurse Marshall, PA Orji, Elmeada Frias, Dr. Blatt, and Dr.
Clemons. Mr. Charleston challenges the adequacy of the treatment and claims the Prison’s
medical and non-medical staff’s conduct delayed his ultimate cancer diagnosis. Mr. Charleston
seeks damages for medical negligence, intentional infliction of emotional distress, and claims
arising under the Eighth and Fourteenth Amendments against all Defendants.
The City of Philadelphia, Warden Farrell, Deputy Warden, Dr. Blatt, and Ms. Frias move
for summary judgment on all claims. The remaining Defendants do not challenge the negligence
claim at this stage but move to partially dismiss Mr. Charleston’s intentional infliction of
emotional distress, Eighth Amendment and Fourteenth Amendment claims and punitive damages
demand. 214
The City and Corizon argue Mr. Charleston failed to adduce evidence of a policy or
custom violated to support a constitutional claim against them for their employees’ conduct

17

under Monell v. Dept. of Soc. Servs.215 Corizon employees, other than Dr. Blatt and Ms. Frias,
acknowledge there is triable question as to whether they acted negligently, but argue their
treatment of Mr. Charleston did not rise to the level of deliberate indifference to support a
constitutional claim. All Defendants argue they did not engage in extreme or outrageous conduct
to support an intentional infliction of emotional distress claim.

All Defendants argue the

evidence adduced does not support Mr. Charleston’s claim for punitive damages.
A. We grant summary judgment dismissing the Fourteenth Amendment claim
against Nurse Popelak, Nurse Rene, PA McKinney, Nurse Whatley, Licensed
Practical Nurse McGettigan, Nurse Diorio, Nurse Duffy, Nurse Practitioner
Hamilton, Nurse Practitioner Green, Nurse Marshall, and PA Orji.
Mr. Charleston brings Eighth and Fourteenth Amendment claims against all Defendants
claiming all Defendants acted with deliberate indifference towards his serious medical needs.
Mr. Charleston claims all Defendants delayed and denied him proper medical care exacerbating
his medical condition and significantly reducing his chance of recovery. All individuals, except
Warden Farrell and Abello, argue Mr. Charleston has not adduced evidence sufficient for a
reasonable jury to find they acted with deliberate indifference.216 Warden Farrell and Deputy
Warden Abello argue Mr. Charleston failed to adduce evidence of their personal involvement in
the alleged deprivation of his constitutional right.
A state actor is liable for depriving a constitutional right to an injured prisoner.217 No
party challenges their status as a state actor. The parties dispute whether a violation of Mr.
Charleston’s constitutional rights occurred in relation to the medical care provided to Mr.
Charleston as a pretrial detainee.
A pretrial detainee’s claim for inadequate medical care arises under the Due Process
Clause of the Fourteenth Amendment, rather than the Eighth Amendment.218 The Fourteenth
Amendment offers pretrial detainee rights “at least as great as the Eighth Amendment protections
18

available to a convicted prisoner.”219 Our court of appeals instructs a claim for inadequate
medical care by a pretrial detainee under the Fourteenth Amendment is analyzed under the same
standard applied in Eighth Amendment cruel and unusual punishment claims brought by
convicted prisoners.220

To establish a violation of Mr. Charleston’s constitutional right to

adequate medical care, the evidence must show (1) a serious medical need, and (2) acts or
omissions by prison officials indicating deliberate indifference to the pretrial detainee’s need.221
Deliberate indifference requires more than negligence or medical malpractice. 222 But
deliberate indifference “is satisfied by something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result.”223 Deliberate indifference requires the
official “be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”224 A mere disagreement between
inmate and medical provider regarding proper medical treatment alone does not support a
deliberate indifference claim.225 Our court of appeals has found deliberate indifference “where
(1) prison authorities deny reasonable requests for medical treatment, (2) knowledge of the need
for medical care is accompanied by the intentional refusal to provide it, (3) necessary medical
treatment is delayed for non-medical reasons, and (4) prison authorities prevent an inmate from
receiving recommended treatment for serious medical needs.”226 “In situations involving claims
for inadequate medical care, we have found deliberate indifference in situations where there was
‘objective evidence that [a] plaintiff had serious need for medical care,’ and prison officials
ignored that evidence.”227
Negligent diagnosis by prison medical providers does not support a claim of deliberate
indifference.228 “Where a prisoner has received some amount of medical treatment, it is difficult
to establish deliberate indifference, because prison officials are afforded considerable latitude in

19

the diagnosis and treatment of prisoners.”229 Where there is a dispute regarding the adequacy of
treatment, “federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.”230

“While the distinction between

deliberate indifference and malpractice can be subtle, it is well established that as long as a
physician exercises professional judgment his behavior will not violate a prisoner’s
constitutional rights.”231
Non-medical prison officials may not be found deliberately indifferent “simply because
they failed to respond directly to the medical complaints of a prisoner who was already being
treated by the prison doctor.”232 In Spruill v. Gillis, our court of appeals explained a non-medical
prison official “will generally be justified in believing that the prisoner is in capable hands” if the
prisoner is “under the care of medical experts.”233 Absent reason to believe or actual knowledge
prison medical staff are mistreating or failing to treat an inmate, a non-medical official will not
be found to have acted with deliberate indifference.234
Our court of appeals recently extended the same protection outlined in Spruill to nonphysician prison medical staff. In Pearson v. Prison Health Serv., the court explained, “Given
that it is the physician with the ultimate authority to diagnose and prescribe treatment for the
prisoner, a nurse who knows that the prisoner is under a physician’s care is certainly ‘justified in
believing that the prisoner is in capable hands,’ so long as the nurse has no discernable basis to
question the physician’s medical judgment.”235
To the extent Mr. Charleston seeks to hold supervisory officials liable, such officials
cannot be held liable for the wrongs of others, as is the case under the doctrine of respondeat
superior.236 In other words, a supervisory official’s liability cannot be based merely on an
employer-employee relationship.237

Rather, to hold a supervisor liable for deliberate

20

indifference, Mr. Charleston must adduce evidence the supervisor: (a) directly participated in
violating his rights; (b) directed others to violate his rights; or (c) knew of and acquiesced in his
subordinates’ violations of his rights.238 Policymakers may also be liable under Section 1983
when the policymaker, acting with deliberate indifference to the consequences, established a
policy, practice, or custom which caused a constitutional harm.239
Mr. Charleston sues three categories of defendants (1) medical personnel, (2) nonmedical prison officials, and (3) supervisory employees. Given the nuances in constitutional law
as applied to these three categories of individuals and mindful Mr. Charleston must show each
person’s liability, we address each category separately.
1. Mr. Charleston failed to adduce evidence of deliberate indifference by
Corizon treating medical staff except as to Drs. Blatt and Clemons.
Mr. Charleston sues his treating medical personnel claiming they deliberately ignored his
serious medical needs.

Mr. Charleston received treatment from numerous nurses, nurse

practitioners, licensed practical nurses, physician assistants, and physicians. A proper dividing
line in analyzing each medical personnel’s conduct is care received before Corizon received Dr.
Limberakis’s x-ray analysis on November 5, 2015 and care received after.
Dr. Limberakis’s report identified evidence of a soft tissue mass near the upper part of
Mr. Charleston’s neck near the base of his skull. This is the first piece of medical evidence
adduced identifying a potential tumor and a new cause of Mr. Charleston’s headaches and
migraines, throat pains, ear pains, and bleeding issues which at the time of the report lasted for at
least several months. The record to date confirms no Corizon medical provider considered the
possibility of a tumor causing Mr. Charleston’s symptoms or exercised professional medical
judgment in ruling out the possibility of a tumor before Dr. Limberakis completed and submitted
his report to Corizon.
21

a. Mr. Charleston’s treatment before November 5, 2015.
Three medical providers treated Mr. Charleston before November 5, 2015: PA Orji,
Nurse Rene, and Nurse Whatley.240 PA Orji treated Mr. Charleston on March 9 and May 7,
2015.241 Nurse Rene treated Mr. Charleston on August 19 and August 27, 2015. 242 Nurse
Whatley treated Mr. Charleston on October 15, 2015.243
PA Orji treated Mr. Charleston in response to his first sick call request. Mr. Charleston
complained of a sore throat, neck, and ear.244 PA Orji examined Mr. Charleston’s head, eyes,
ears, nose, oral cavity, throat, neck, lymph nodes, skin, heart, lungs, abdomen, and extremities,
recommended a warm compress on his neck to calm the soreness, and instructed Mr. Charleston
to return should his symptoms worsen.245 PA Orji again examined Mr. Charleston two months
later and believed he suffered from acute allergic serous otitis media and prescribed several
medications.246 PA Orji examined and treated Mr. Charleston on both visits. During PA Orji’s
second examination, she took a different approach and instructed Mr. Charleston take new
medications.

PA Orji’s failure to recognize the symptoms Mr. Charleston experienced as

symptoms of nasopharyngeal cancer and failure to diagnose Mr. Charleston’s cancer on these
dates does not alone constitute deliberate indifference.247 There is a triable issue of fact of
whether PA Orji’s conduct constituted medical negligence, but negligence alone is insufficient to
support a Fourteenth Amendment claim. Mr. Charleston does not adduce evidence PA Orji
knew of facts from which the inference could be drawn a substantial risk of serious harm existed
and PA Orji ignored the risk.
Mr. Charleston’s constitutional claim against Nurse Rene must also fail. Nurse Rene
responded to Mr. Charleston’s sick calls in August complaining of continued headaches and
requests for Tylenol. On August 19, 2015, Nurse Rene examined Mr. Charleston and prescribed

22

him Tylenol. On August 27, 2015, in response to Mr. Charleston’s sick call identifying the
Tylenol did not help, Nurse Rene referred Mr. Charleston to a practitioner. Nurse Rene’s referral
started the chain of events which ultimately lead to Mr. Charleston’s referral to a chronic care
physician. Nurse Rene did not ignore Mr. Charleston’s complaints or refuse him treatment.
Nurse Rene responded to Mr. Charleston’s sick calls, treated him, and referred him to a
practitioner when she recognized the Tylenol she gave Mr. Charleston did not alleviate his
symptoms. Mr. Charleston failed to adduce evidence Nurse Rene knew of facts from which the
inference could be drawn a substantial risk of serious harm existed and Nurse Rene ignored the
risk.
Nurse Whatley examined Mr. Charleston after an October 14th sick call request
complaining of continuing headaches and requesting a CT scan. At the time Nurse Whatley
examined Mr. Charleston, Mr. Charleston received treatment under Dr. Clemons’s care. Given
the frequency of Mr. Charleston’s recent sick call requests, Nurse Whatley referred him back to
chronic care and scheduled an appointment for one week later. Nurse Whatley did not refuse to
examine Mr. Charleston. The fact Nurse Whatley did not provide Mr. Charleston a CT scan as
requested is not sufficient to establish deliberate indifference necessary for a constitutional
claim.248 Mr. Charleston does not adduce evidence Nurse Whatley had a discernable basis to
question Dr. Clemons continued treatment. Mr. Charleston does not adduce evidence Nurse
Whatley knew of facts from which the inference could be drawn a substantial risk of serious
harm existed and Nurse Whatley ignored the risk.
Nurse Rene, Nurse Whatley, and PA Orji did not have the benefit of reviewing Dr.
Limberakis’s report before offering Mr. Charleston treatment. Mr. Charleston has not adduced

23

evidence these providers knew of a substantial risk of cancer and ignored the risk. He cannot
state a constitutional claim against these providers.
Nurse Popelak, PA McKinney, and Dr. Clemons also provided treatment for Mr.
Charleston before November 5, 2015. In response to his sick call requests, Nurse Popelak
examined Mr. Charleston and instructed he take Tylenol.

Nurse Popelak also noted Mr.

Charleston had an upcoming appointment with Dr. Clemons within a few days of her
examination.

PA McKinney examined Mr. Charleston’s throat and assessed the soreness

observed as “benign.” PA McKinney next examined Mr. Charleston over a month later. Mr.
Charleston complained his headaches continued and demanded a CT scan be performed. In
response, PA McKinney contacted Dr. Blatt and Dr. Blatt referred Mr. Charleston to a chronic
care physician, Dr. Clemons.

Dr. Clemons examined Mr. Charleston in September 2015,

prescribed medication, ordered lab tests be performed, and ordered x-rays for Mr. Charleston’s
skull. Dr. Clemons examined Mr. Charleston next on October 30, 2015. She discovered the
unidentified Corizon employee responsible for taking the x-ray images did not perform the x-ray
study as she ordered. Dr. Clemons re-ordered the x-ray images. On November 3, 2015, an
unidentified Corizon employee completed Mr. Charleston’s x-ray study.
Mr. Charleston failed to adduce evidence Nurse Popelak, PA McKinney and Dr. Clemons
acted with deliberate indifference towards a serious medical need before November 5, 2015.
These providers responded to his sick call requests, prescribed medications, performed
examinations, consulted with physicians, and ordered diagnostic tests. The fact Mr. Charleston
disagreed with the course of action taken by the medical staff does not establish deliberate
indifference.249

24

This is not a case where medical staff refused to provide Mr. Charleston treatment.
Rather, this is a challenge to the adequacy of care. Although the medical staff’s failure to
recognize, diagnose, and treat Mr. Charleston’s cancer during this time period may have been
negligent, Mr. Charleston fails to adduce evidence these providers were aware of a substantial
risk of serious harm and ignored the risk.
b. Mr. Charleston’s treatment on or after November 5, 2015.
Nurse Popelak, Nurse Marshall, Nurse Duffy, Nurse Diorio, Licensed Practical Nurse
McGettigan, Nurse Practitioner Hamilton, Nurse Practitioner Green, PA McKinney, Dr.
Clemons, and Dr. Blatt treated Mr. Charleston on or after receiving Dr. Limberakis’s report no
later than November 5, 2015. Dr. Limberakis’s report identified a potential soft tissue mass in
Mr. Charleston’s head. Dr. Limberakis’s report identified a potential serious medical issue,
urged a physician to timely review his findings, and strongly recommended Mr. Charleston
receive further CT or MRI tests. Although the parties do not dispute Dr. Blatt received the
report, handed the report to Dr. Clemons, and Dr. Clemons placed the report in her desk drawer,
Dr. Mills, an off-site optometrist, had access to the report while examining Mr. Charleston on
November 25, 2015. Dr. Mills incorporated Dr. Limberakis’s impressions into his own report
and strongly urged the medical staff at Corizon perform a MRI and CT scan. The fact Dr. Mills
had access to the report during his evaluation suggests at some point between Corizon receiving
Dr. Limberakis’s report on November 5, 2015 and Dr. Mills reviewing the report and evaluating
Mr. Charleston on November 25, 2015, Mr. Charleston’s medical file at Corizon included the
same report. A reasonable juror could infer Mr. Charleston’s treating medical professionals
could have had the opportunity to review Dr. Limberakis’s report in preparation for or while

25

treating Mr. Charleston in triage, sick call examinations, or scheduled appointments after
November 5, 2015.
Dr. Blatt and Dr. Mills are the only two medical providers reviewing Dr. Limberakis’s
report before Mr. Charleston’s December 5, 2015 cancer diagnosis. Dr. Blatt admitted to reading
Dr. Limberakis’s report in its entirety. An issue of fact exists regarding steps Corizon required
Dr. Blatt take after receiving and reviewing a diagnostic report. Dr. Blatt testified he only had to
identify the physician who ordered the diagnostic testing and the deliver the report to the
ordering physician.250 Corizon’s Regional Medical Director Dr. Kalu disagrees with Dr. Blatt
and testified as the Site Medical Director, Corizon policy required Dr. Blatt perform a clinical
correlation of the report and take further steps deemed appropriate using his professional medical
judgment, such as ordering further diagnostic tests as recommended by the report.251 Dr. Kalu
testified he did not know Dr. Blatt did not perform these tasks.252 We do not have a written
policy as part of the summary judgment record to verify either account. A reasonable jury could
find Dr. Blatt had the obligation to take the next steps in analyzing Dr. Limberakis’s report
against Mr. Charleston’s medical history and treatment plan and determine next appropriate
steps, including determining the necessity of further diagnostic testing.
This is not a case where the medical provider exercised professional medical judgment in
response to newly obtained medical information. Dr. Blatt did not exercise professional medical
judgment at all with respect to the impressions and recommendations in Dr. Limberakis’s report.
After reading the report, Dr. Blatt simply crossed his name off the report, wrote Dr. Clemons’s
name on the report, and directed Dr. Clemons review and take necessary steps. In fact, Dr. Blatt
admitted he gave the report to Dr. Clemons with the expectation she would exercise her
professional medical judgment to determine next steps in Mr. Charleston’s treatment plan.253 Dr.

26

Blatt may have exercised administrative or managerial judgment in his decision making on
November 5, but Dr. Blatt did not exercise medical judgment in reviewing the contents of Dr.
Limberakis’s report. Given Dr. Blatt’s awareness of medical evidence suggesting a serious
medical issue but failed to exercise his professional medical judgment with respect to Dr.
Limberakis’s report, a reasonable jury could find Dr. Blatt acted with deliberate indifference to
Mr. Charleston’s serious medical needs.
Dr. Clemons received Dr. Limberakis’s report directly from Dr. Blatt.

Dr. Blatt

instructed her to follow up on the report. Dr. Clemons put the report to the side for review
before her upcoming appointment with Mr. Charleston. Dr. Clemons claims she never reviewed
Dr. Limberakis’s report in its entirety before Mr. Charleston’s cancer diagnosis. Dr. Clemons
admits she did read part of the report in order to identify Mr. Charleston as the relevant
patient.254 Given Dr. Clemons admits she received the report directly from Dr. Blatt and admits
to having read some of the report, a reasonable jury could find Dr. Clemons was aware of Mr.
Charleston’s serious medical needs.

Similar to Dr. Blatt, Dr. Clemons did not exercise

professional medical judgment with respect to the impressions outlined in Dr. Limberakis’s
report. Dr. Clemons claims she forgot about the report after receiving it on November 5th.
Given the report identified a new potential and serious medical cause of Mr. Charleston’s
continuous and worsening symptoms and Dr. Clemons failed to act on the report for a nonmedical reason, a reasonably jury could find Dr. Clemons acted with deliberate indifference
towards Mr. Charleston’s serious medical need.
After November 5, 2015, Mr. Charleston received care from chronic care physician Dr.
Clemons.

Absent a discernable basis to question Dr. Clemons’ medical judgment, non-

physicians treating Mr. Charleston after November 5, 2015 could justifiably believe Mr.

27

Charleston “[was] in capable hands.”255 Nurse Popelak, Nurse Marshall, Nurse Duffy, Nurse
Diorio, Licensed Practical Nurse McGettigan, Nurse Practitioner Hamilton, and Nurse
Practitioner Green provided care to Mr. Charleston after November 5, 2015. Mr. Charleston
does not adduce evidence these nurses had a discernable basis to question Dr. Clemons’ medical
judgment in treating Mr. Charleston. Even assuming these nurses identified Dr. Limberakis’s
report in Mr. Charleston’s medical file, Mr. Charleston does not adduce evidence these nurses
knew or had reason to believe Dr. Clemons did not review and exercise her professional medical
judgment relating to Dr. Limberakis’s impressions. Reviewing the medical evidence and sick
call notes in the record, we cannot identify a complaint made by Mr. Charleston and received by
Prison medical staff regarding a failure of medical staff to review or follow up on the x-ray
images performed. Absent evidence identifying a discernable basis for these nurses to question
Dr. Clemons’ medical judgment, the nurses were justified in believing Mr. Charleston was “in
good hands.”
Similar to the nurses, Mr. Charleston failed to adduce evidence PA McKinney had a
discernable basis to question Dr. Clemons’ medical judgment. Mr. Charleston does not adduce
evidence PA McKinney knew or had reason to believe Dr. Clemons did not review or follow up
with Mr. Charleston regarding Dr. Limberakis’s report. But Mr. Charleston adduced evidence of
a confrontation between PA McKinney and Sergeant Henderson regarding Mr. Charleston’s
symptoms observed by correctional officers.
happened.

We do not know when this confrontation

But we do know the confrontation did take place shortly after Mr. Charleston

received treatment at the Prison medical center the same day.256 PA McKinney explained to
Sergeant Henderson Mr. Charleston received treatment and she could not do anything further for
him. Again Mr. Charleston does not adduce evidence he presented issues different from those

28

addressed earlier in the day, complained he did not receive appropriate medical treatment, or
made PA McKinney aware of a substantial risk of serious harm.
We grant summary judgment dismissing Mr. Charleston’s Fourteenth Amendment claim
against Nurse Popelak, Nurse Rene, PA McKinney, Nurse Whatley, Licensed Practical Nurse
McGettigan, Nurse Diorio, Nurse Duffy, Nurse Practitioner Hamilton, Nurse Practitioner Green,
Nurse Marshall, and PA Orji. We deny summary judgment on Mr. Charleston’s Fourteenth
Amendment claim against Dr. Blatt and Dr. Clemons.
2. Mr. Charleston failed to adduce evidence to support a constitutional
claim against supervisor Ms. Frias.
Mr. Charleston may establish a claim against a supervisory employee in only limited
circumstances. Ms. Frias argues there are no facts supporting Mr. Charleston’s claim against
her. Mr. Charleston does not address Ms. Frias’s argument in his response brief. There is no
evidence of record identifying Ms. Frias’s personal involvement in Mr. Charleston’s treatment.
Ms. Frias acted as the Prison’s Health Services Administrator.257 Ms. Frias does not have
medical training and served Corizon as an administrator.258 Ms. Frias never received an inmate
grievance from Mr. Charleston.259

Mr. Charleston failed to adduce evidence Ms. Frias

participated in the other Defendants’ conduct, directed others to violate Mr. Charleston’s rights,
or knew of and acquiesced in her subordinate’s violation of Mr. Charleston’s rights.

Mr.

Charleston adduced evidence Ms. Frias changed the staffing rotation of nurses at the medical
center.260 But Mr. Charleston does not adduce evidence for a reasonable juror to conclude Ms.
Frias acted with deliberate indifference in implementing this change. Ms. Frias testified she
created a rotation of nurses to handle sick calls so all nurses would have experience in handling
sick calls.261 We grant summary judgment dismissing Mr. Charleston’s Fourteenth Amendment
claim against Ms. Frias.
29

3. Issues of fact require we deny Warden Farrell’s and Deputy Warden
Abello’s motion for summary judgment on the constitutional claim.
Warden Farrell and Deputy Warden Abello argue Mr. Charleston failed to adduce
evidence of their personal involvement in his alleged deprivation of his Fourteenth Amendment
right.

Warden Farrell and Deputy Warden Abello must review and respond to inmate

grievances.262 There is an issue of fact whether Mr. Charleston submitted a grievance on
September 7, 2015 complaining of headaches, claiming medical providers are overlooking the
possibility of brain cancer, and requesting a CT scan be performed. The parties agree Mr.
Charleston completed a grievance on September 7, 2015.263 Two prison officials also testified to
having personally delivered Mr. Charleston’s grievances directly to the warden’s office out of
concern for Mr. Charleston’s health and to ensure a timely investigation and response.264
But the City, Warden Farrell and Deputy Warden Abello argue they never received the
grievance because the grievance form did not have an assigned “G” number, it could not be
found in Mr. Charleston’s inmate file, and it did not get logged in the grievance log book.265
Warden Abello testified to never having received the grievance. 266 Given the serious nature and
subject matter of Mr. Charleston’s grievance, Deputy Warden Abello testified he would
remember reading the grievance today had he done so in September 2015.267 Deputy Warden
Abello also testified if he had received Mr. Charleston’s September 7th grievance, he would have
personally addressed the situation by walking the grievance down to the Prison medical center
and ensuring Mr. Charleston be examined by someone at the medical center immediately.268 We
do not have evidence of whether Warden Farrell, Deputy Warden Abello, or any other prison
official responded to the September 7th grievance, if filed. The next grievance form of record
filed by Mr. Charleston is in late November 2015 raising similar concerns to the September 7th

30

grievance. Warden Farrell Deputy and Warden Abello responded to this grievance finding Mr.
Charleston received medical treatment from a physician.
These are questions of credibility left to the jury. Mr. Charleston adduced evidence of
Warden Farrell and Deputy Warden Abello’s personal involvement in the alleged deprivation of
his due process rights. Mr. Charleston adduced the grievance form at issue and at least two
Prison officials testified to having personally delivered multiple grievance forms to the warden’s
office. We do not know what grievances the officials delivered or on what dates. A reasonable
jury could find Mr. Charleston submitted the grievance form on September 7th and Warden
Farrell and Deputy Warden Abello ignored the grievance. A reasonable jury could find Warden
Farrell and Deputy Warden Abello had reason to believe the medical staff at Corizon were
mistreating or failing to treat Mr. Charleston’s serious medical needs. We deny Warden Farrell
and Warden Abello’s motion for summary judgment on Mr. Charleston’s Fourteenth
Amendment claim.
B. We grant the City’s motion for summary judgment but deny Corizon’s motion
for summary judgment on Mr. Charleston’s Monell claim.
Mr. Charleston seeks to hold Corizon and the City liable for the deliberate indifference of
its employees towards his serious medical needs. Mr. Charleston brings his claim against
Corizon and the City under Section 1983.269 In Mr. Charleston’s Second Amended Complaint,
he alleges Corizon and the City implemented policies, customs and practices including:
deliberately disregarding Mr. Charleston’s serious needs; refusing necessary medical treatment
to maximize savings at the expense of adequate care; failing to implement procedures to ensure
adequate review of inmate medical issues; denying medical treatment for non-medical reasons;
failing to coordinate among medical staff; and ignoring physicians orders and inmate complaints.

31

Corizon argues Mr. Charleston does not adduce evidence of a policy, practice, or custom which
caused a constitutional violation to support a Monell claim.
Corizon and the City cannot be held liable for the acts of its employees under a theory of
respondeat superior.270 To impose liability on a local governmental entity under Section 1983,
Mr. Charleston must establish “(1) [he] possessed a constitutional right of which [he] was
deprived; (2) the municipality had a policy [or custom]; the policy [or custom] ‘amounted to
deliberate indifference’ to the plaintiff’s constitutional right; and (4) the policy [or custom] was
the ‘moving force behind the constitutional violation.’”271 A policy is made “when a decision
maker possess[ing] final authority to establish municipal policy with respect to the action issues
a final proclamation, policy or edict.”272 A custom is an act not formally approved by the
appropriate decision maker but “is so widespread as to have the force of law.”273
There are three situations where a government employee’s acts may be deemed the result
of a policy, practice, or custom: (1) the appropriate officer or entity creates a generally applicable
policy and the subsequent act at issue is an implementation of the policy; (2) no rule is
announced as policy but federal law is violated by the policymaker itself; and (3) the
policymaker fails to act affirmatively, though the need to take action is so obvious and the
inadequacy of existing practices is so likely to result in the infringement of a constitutional right,
the policymaker can reasonably be deemed deliberately indifferent.274
1. Mr. Charleston failed to adduce evidence of a City policy, custom or
practice under Monell.
Mr. Charleston does not address the City’s argument he failed to adduce evidence of a
policy or custom of the City ignoring inmate grievances. But in Mr. Charleston’s response to the
City’s offered statement of undisputed fact Mr. Charleston did not adduce evidence of a policy or

32

custom, Mr. Charleston cites the same facts he cited in opposition to Warden Farrell and Deputy
Warden Abello’s personal involvement argument.
“Proof of a single incident of unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”275
Evidence of Warden Farrell and Deputy Warden Abello’s failure to respond to the September 7th
grievance alone is insufficient for a jury to conclude the City implemented a policy or custom of
ignoring inmate grievances. Mr. Charleston does not adduce evidence the single failure to
respond to his September 7th grievance “was caused by an existing unconstitutional policy.” We
have no evidence of any other grievance being mishandled or ignored. Mr. Charleston failed to
adduce evidence of a policy or custom implemented by the City to ignore inmate grievances.
Further, Mr. Charleston failed to adduce evidence whether Warden Farrell and Deputy Warden
Abello’s were policymakers at CFCF. Mr. Charleston failed to adduce evidence to support his
Monell claim against the City. We grant the City’s motion for summary judgment against Mr.
Charleston’s Monell claim.
2. Issues of fact preclude summary judgment against Mr. Charleston’s
Monell claim against Corizon.
Corizon’s argues Mr. Charleston failed to adduce evidence of a Corizon policy or custom
which caused a violation of his constitutional rights. Corizon argues isolated evidence of Mr.
Charleston’s medical treatment alone is insufficient to establish a policy or custom under Monell.
Mr. Charleston does not address Corizon’s argument in his responding brief.

But in Mr.

Charleston’s response to Corizon’s offered statement of undisputed fact he failed to adduce
evidence of the policies or customs asserted in his Second Amendment Complaint, Mr.
Charleston offers three policies.276 First, Mr. Charleston asserts Dr. Blatt created a policy,
33

contrary to what Regional Director Dr. Kalu believed to be Corizon’s actual policy, of not
exercising his medical judgment or conducting recommended clinical correlation or followup to
x-ray studies mailed to Corizon.277 Rather, he found the physician who ordered the study and
delivered the results to the physician.278 Second, Mr. Charleston claims Ms. Frias changed the
procedure for how nurses handled sick calls from limiting the responsibility to one or two nurses
to a rotation of nurses.279 Mr. Charleston asserts this change in policy foreclosed any possibility
for continuity of care.280 Third, Mr. Charleston claims medical providers at Corizon had a
practice of not reviewing sick call notes.281
Mr. Charleston adduced sufficient evidence for a reasonable jury to find Dr. Blatt served
as a policymaker at Corizon while acting as Site Medical Director. Dr. Blatt testified he acted as
the “top person in charge” of the medical center at CFCF.282 Dr. Blatt testified Dr. Kalu
developed policies and procedures for Corizon.283 But Dr. Blatt admitted he created some
policies relating to Corizon’s medical operations at CFCF.284 Dr. Blatt also admitted to creating
policies or assignments of responsibility at the medical center, including the task of reviewing
lab results.285 A reasonable jury could find Dr. Blatt served as a policymaker at Corizon.
Dr. Blatt also testified to what he believed to be Corizon’s policy regarding the handling
of studies mailed to Corizon.286

All x-ray studies performed off-site ordered by Corizon

physicians were mailed back to CFCF directed to Dr. Blatt.287 Dr. Blatt explained he received all
x-ray studies “as a matter of logistics.”288 Dr. Blatt explained this procedure existed because
many physicians at CFCF worked only nights or only on weekends. 289 Having the studies
directed to Dr. Blatt helped ensure timely review of the study by the appropriate physician.290
Dr. Blatt claimed, under this policy, he had no responsibility to review incoming studies ordered
by physicians working at Corizon during the daytime.291 Dr. Blatt only delivered the study to the

34

ordering physician.292 Regional Medical Director Dr. Kalu disagrees with Dr. Blatt. Dr. Kalu
testified under Corizon’s policy, Dr. Blatt should have reviewed all incoming x-ray studies,
exercised his medical judgment, and ordered any further testing deemed necessary. 293 There is
an issue of fact regarding Corizon’s policy on the review of x-ray studies mailed to Corizon. Mr.
Charleston also adduced evidence Dr. Blatt followed a practice of not exercising his medical
judgment with respect to x-ray studies ordered by daytime physicians, which may have violated
Corizon’s actual policy.

Dr. Blatt failure to exercise his medical judgment against Dr.

Limberakis’s report raises a triable question of fact whether Dr. Blatt acted with deliberate
indifference and violated Mr. Charleston’s constitutional rights. A reasonable jury could find a
policymaker at Corizon violated Mr. Charleston’s Fourteenth Amendment rights sufficient to
impose liability against Corizon under Monell. A reasonable jury could also find Dr. Blatt
exercised a practice of not reviewing x-ray studies ordered by daytime physicians and the
implementation of this policy violated Mr. Charleston’s Fourteenth Amendment rights.
Mr. Charleston’s second asserted policy fails. Mr. Charleston failed to adduce evidence
how the change in one or two nurses handling sick call requests to the rotation of nurses
amounted to deliberate indifference of Mr. Charleston’s constitutional rights.

Ms. Frias

explained she implemented the change so all nurses would have experience in handling sick calls
and would be prepared and capable in handling the calls when they arrive.294 Mr. Charleston
does not adduce evidence contrary evidence for a reasonable jury to conclude the policy
amounted to a deliberate indifference to Mr. Charleston’s constitutional rights.
In support of his third asserted policy of failing to read sick call notes before treating a
patient, Mr. Charleston cites PA McKinney’s deposition testimony admitting she did not review
Mr. Charleston’s sick call notes before treating him, but instead preferred to ask Mr. Charleston

35

questions about his medical issues in person during the appointment.295

PA McKinney’s

deposition testimony alone is insufficient to establish a policy or custom. Mr. Charleston does
not adduce evidence whether PA McKinney is a policymaker at Corizon or whether PA
McKinney did not read sick calls in furtherance of a particular Corizon policy, custom or
practice.

The testimony of one physician assistant is insufficient to suggest Corizon

implemented a policy for its entire medical staff to not review sick call notes before providing
care.
We deny Corizon’s motion for summary judgment on Mr. Charleston’s Monell claim.
C. We deny Dr. Blatt’s motion for summary judgment but grant the City, Warden
Farrell, and Deputy Abello’s and Ms. Frias’s motions for summary judgment on
Mr. Charleston’s negligence claim.
Ms. Frias and Dr. Blatt move for summary judgment to dismiss Mr. Charleston’s
negligence/medical malpractice claim. Ms. Frias argues she is not a medical provider, only an
administrator, and Mr. Charleston does not adduce evidence of her personal involvement in his
treatment. Dr. Blatt argues Mr. Charleston failed to adduce expert evidence opining he breached
the standard of care and caused Mr. Charleston’s injuries. The City, Warden Farrell and Deputy
Warden Abello argue they enjoy governmental and official immunity against Mr. Charleston’s
negligence claim. Mr. Charleston does not respond to Ms. Frias’s arguments. Mr. Charleston
argues Dr. Homer Venter’s expert opinion satisfies his burden in supporting his medical
negligence claim against Dr. Blatt. Mr. Charleston does not respond to the City, Warden Farrell
and Deputy Warden Abello’s argument.
1. Mr. Charleston failed to adduce evidence of Ms. Frias’s involvement in
his medical treatment or grievance process.
Mr. Charleston alleges Ms. Frias is a medical provider whose conduct amounted to
medical malpractice.296 But Ms. Frias does not have medical training and served Corizon as an
36

administrator.297

Mr. Charleston failed to adduce evidence regarding Ms. Frias’s personal

involvement with his medical treatment in 2015.

Ms. Frias’s role as Health Services

Administrator alone is insufficient to support Mr. Charleston’s negligence claim. Ms. Frias
never received an inmate grievance from Mr. Charleston. 298 Absent evidence of Ms. Frias’s
involvement in Mr. Charleston’s medical care or grievance process, we grant Ms. Frias’s motion
for summary judgment on Mr. Charleston’s negligence/medical malpractice claim.
2. Mr. Charleston adduced expert evidence in support of his negligence
claim against Dr. Blatt.
Dr. Blatt is incorrect in arguing Mr. Charleston failed to adduce expert evidence. Mr.
Charleston’s expert Dr. Homer Venters opines Dr. Blatt’s conduct violated the standards for
health services in jail as outlined by the National Commission on Correctional Health Care. 299
Dr. Venters opines Dr. Blatt’s conduct, among others, caused a delay in Mr. Charleston’s
diagnosis and impacted his chance of cure and diminished his life capacity. 300 We deny Dr.
Blatt’s motion for summary judgment on Mr. Charleston’s negligence/medical malpractice
claim.
3. The City, Warden Farrell, and Deputy Warden Abello enjoy immunity
against Mr. Charleston’s negligence claim.
Under the Political Subdivision Tort Claims Act, no local agency, except in limited
circumstances, “shall be liable for any damages on account of any injury to a person or property
caused by any act of the local agency or an employee thereof or any other person.”301 Under the
Act, a local agency employee enjoys official immunity to the extent of his employing agency,
except in an action for damages “on account of an injury caused by the act of the employee in
which it is judicially determined that the act of the employee caused the injury and that such act
constituted a crime, actual fraud, actual malice or willful misconduct.” 302 Willful misconduct “is

37

synonymous with ‘intentional tort.’”303 “More specifically, willful misconduct occurs when the
actor ‘desired to bring about the result that followed, or at least that he was aware that it was
substantially certain to ensue.’”304 Willful misconduct is a “demanding level of fault.”305
Mr. Charleston failed to adduce evidence Warden Farrell and Deputy Warden Abello
acted with actual fraud, actual malice or willful misconduct. Even accepting Mr. Charleston’s
position Warden Farrell and Warden Abello did not respond to his September 7th grievance as
true, Mr. Charleston lacks evidence for a reasonable jury to find Warden Farrell and Warden
Abello acted with actual fraud, malice, or engaged in willful misconduct. Warden Farrell and
Deputy Warden Abello’s conduct may have acted with deliberate indifference towards Mr.
Charleston’s serious medical needs but deliberate indifference requires something less than
intentional conduct. Mr. Charleston does not adduce evidence the wardens failed to act out of ill
will towards Mr. Charleston or with intent to subject Mr. Charleston to inadequate medical
treatment. Absent evidence of fraud, actual malice or willful misconduct, Mr. Charleston does
not meet the demanding level of fault necessary to overcome the Political Subdivision Torts
Claim Act. Warden Farrell and Deputy Warden Abello enjoy official immunity. The City
enjoys governmental immunity. The limited exceptions to governmental immunity do not apply
to Mr. Charleston’s medical negligence claim.306
D. We grant summary judgment dismissing the intentional infliction of emotional
distress claim because the City, Warden Farrell and Deputy Warden Abello are
immune and Mr. Charleston failed to adduce evidence of extreme or outrageous
conduct.
Mr. Charleston asserts a Pennsylvania state law claim for intentional infliction of
emotional distress against all Defendants. Mr. Charleston relies on the same conduct supporting
his Fourteenth Amendment claim to support this state law claim. The City argues it is immune
from an intentional infliction of emotional distress claim under the Political Subdivision Tort
38

Claims Act. All other Defendants argue Mr. Charleston has not adduced evidence to establish
the conduct at issue rose to the level of extreme or outrageous to support an intentional infliction
of emotional distress claim.
1. Mr. Charleston failed to adduce evidence of extreme and outrageous
conduct by Ms. Frias.
Mr. Charleston failed to adduce evidence regarding Ms. Frias’s personal involvement
with his treatment in 2015.

Absent evidence of her conduct relating to Mr. Charleston’s

treatment and absent evidence of extreme and outrageous conduct relating to her decision to
rotate nurses on sick call duties, we grant Ms. Frias’s motion for summary judgment on Mr.
Charleston’s intentional infliction of emotional distress claim.
2. Mr. Charleston failed to adduce evidence of extreme and outrageous
conduct by the Corizon medical personnel.
Under Pennsylvania law, an intentional infliction of emotional distress claim is
established where there is “the most egregious conduct” and where the conduct is “so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in civilized society.”307 “[I]t has not been enough
that the defendant has acted with intent which is tortious or even criminal, or that he has intended
to inflict emotional distress, or even that this conduct has been characterized by ‘malice,’ or a
degree of aggravation that would entitle the plaintiff to punitive damages for another tort.”308
In Miller v. Hoffman, the court denied summary judgment on an intentional infliction of
emotional distress claim relating to inadequate medical care in prison when the evidence
suggested the physician refused the plaintiff’s request to see other physicians, cancelled
appointments with specialists deemed necessary by the physician’s colleagues, and placed the
plaintiff in “reverse isolation” shutting the plaintiff from the outside world without medical

39

evidence supporting the decision.309 In Rodriguez v. Smith, the court explained “a continuous,
deliberate refusal to provide necessary treatment for a brain tumor, together with verbal abuse
could support a claim of intentional infliction of emotional distress.”310
With respect to the Corizon medical personnel, Mr. Charleston failed to adduce evidence
the conduct at issue is extreme or outrageous under Pennsylvania law. This is not a case of
outright refusal to provide medical care. Mr. Charleston challenges the adequacy of his medical
care. The medical providers at Corizon took steps to respond to Mr. Charleston’s complaints.
We have no evidence of the medical staff refusing to allow Mr. Charleston consult with other
physicians or Corizon medical staff taking affirmative steps to cancel ordered treatment as in
Miller.

We have the opposite; on numerous occasions, the Corizon medical staff sought

guidance from others, including Dr. Blatt and Dr. Clemons, and brought Mr. Charleston in for
their examination. Dr. Mills, an optometrist, also examined Mr. Charleston. We also have no
evidence of verbal abuse as in Rodriguez.

Although Mr. Charleston stayed in solitary

confinement during the end of November 2015 because of a physical altercation with another
inmate, his stay in solitary confinement did not prevent his access to medical treatment as he
visited Nurse Hamilton the following day and Dr. Mills two days later. Further, unlike Miller,
non-medical prison officials, not the Corizon medical staff, ordered Mr. Charleston be placed in
solitary confinement.

The decision did not balance on a Corizon physician’s unsupported

medical decision to isolate Mr. Charleston.
Although Dr. Blatt may have been deliberately indifferent to Mr. Charleston’s serious
medical need by not acting himself in response to Dr. Limberakis’s report, he did identify Dr.
Clemons as the ordering physician and did make sure Dr. Clemons received the report by
personally hand delivering it to her.

With respect to Dr. Clemons, she may have been

40

deliberately indifferent to Mr. Charleston by not reading Dr. Limberakis’s report, but she did
continue to provide Mr. Charleston with medical care and did not refuse him treatment. Mr.
Charleston failed to adduce evidence Corizon or its staff engaged in extreme and outrageous
conduct.
3. The City, Warden Farrell, and Deputy Warden Abello enjoy immunity
against Mr. Charleston’s intentional infliction of emotional distress claim.
The Political Subdivision Tort Claims Act bars personal injury suits against the City
except in eight limited subject matters.311 The eight limited subject matters include vehicle
liability; care, custody or control of personal property; real property; trees, traffic controls and
street lighting; utility service facilities; streets; sidewalks; and care, custody or control of
animals.312

The Political Subdivision Tort Claims Act bars Mr. Charleston’s intentional

infliction of emotional distress claim against the City. None of the eight limited subject matters
are applicable to Mr. Charleston’s inadequate medical treatment claim.313 We grant the City’s
motion for summary judgment dismissing Mr. Charleston’s intentional infliction of emotional
distress claim.
As to Warden Farrell and Deputy Warden Abello, Mr. Charleston failed to adduce
evidence the wardens acted with actual fraud, malice, or engaged in willful misconduct. Warden
Farrell and Deputy Warden Abello’s conduct may have acted with deliberate indifference but
Mr. Charleston failed to adduce evidence to meet the demanding level of fault imposed by the
Political Subdivision Tort Claims Act.
E. We partially dismiss Mr. Charleston’s punitive damages demand.
All Defendants move to dismiss Mr. Charleston’s request for punitive damages. The City
argues it is immune from punitive damages. All other Defendants argue Mr. Charleston failed to
adduce evidence sufficient for the jury to consider the imposition of punitive damages.
41

1. We allow Mr. Charleston’s request for punitive damages to proceed
against Dr. Blatt, Dr. Clemons, Warden Farrell, and Warden Abello
subject to evidence at trial.
In a Section 1983 claim, “a jury may be permitted to assess punitive damages . . . when
the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others.”314 Where a plaintiff
adduces sufficient evidence for a jury to find the defendant acted with deliberate indifference to
serious medical needs, “it follows logically that ‘reckless or callous indifference’ has been
noticed.”315
Under Mr. Charleston’s negligence claims, “[p]unitive damages may be awarded for
conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to
the rights of others. As the name suggests, punitive damages are penal in nature and are proper
only where the defendant’s actions are so outrageous as to demonstrate willful, wanton or
reckless conduct . . . [W]hen assessing the propriety of the imposition of punitive damages, ‘the
state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or
malicious.’”316 “The Pennsylvania Supreme Court has held punitive damages may be awarded in
negligence cases if the plaintiff proves greater culpability than ordinary negligence at trial.”317 A
showing of gross negligence is not sufficient but a showing of reckless indifference to the right
of another is sufficient for a jury to assess punitive damages.318
To the extent Mr. Charleston’s Fourteenth Amendment claim survives against Dr. Blatt,
Dr. Clemons, Warden Farrell, and Deputy Warden Abello, we cannot dismiss Mr. Charleston’s
punitive damages demand under Section 1983. Mr. Charleston adduced sufficient evidence for a
reasonable jury to find Dr. Blatt, Dr. Clemons, Warden Farrell, and Deputy Warden Abello acted
with reckless disregard to Mr. Charleston’s medical needs.

42

At this stage, his evidence is

sufficient for a jury to assess punitive damages against Dr. Blatt, Dr. Clemons, Warden Farrell,
and Deputy Warden Abello under Section 1983 and under his state law negligence claim.
2. We allow Mr. Charleston to proceed on his punitive damages claim
against Corizon under Section 1983 but not under his negligence claim.
Corizon’s request to strike punitive damages is premature to the extent Mr. Charleston’s
Monell claim survives summary judgment.319
But Mr. Charleston also seeks to impose both direct and vicarious liability against
Corizon under his state law negligence claim. To seek punitive damages for vicarious liability
against Corizon for the negligence of its employees, Mr. Charleston must show Corizon “knew
of and allowed the conduct by its agent that resulted in the award of punitive damages.” 320 To
seek punitive damages under a direct theory of corporate negligence, Mr. Charleston must satisfy
Pennsylvania’s punitive damages standard requiring an evil motive, reckless indifference to the
rights of others, or willful or wanton conduct.321
On the vicarious liability negligence claim, Mr. Charleston fails to adduce evidence
Corizon “knew of and allowed the conduct by its agent that resulted in the award of punitive
damages.” This is a different standard than the vicarious liability standard we apply under
Monell.

The only Corizon employees liable for punitive damages are Doctors Blatt and

Clemons. Mr. Charleston fails to adduce evidence Corizon knew of Dr. Blatt’s or Dr. Clemons’s
conduct relating to the treatment of Mr. Charleston. With respect to Dr. Blatt, Regional Director
Dr. Kalu testified he had no idea Dr. Blatt did not perform clinical correlations or exercise his
medical judgment in evaluating incoming x-ray studies. Mr. Charleston did not adduce evidence
contradicting Dr. Kalu’s testimony. As to Corizon’s knowledge of Dr. Clemons’s conduct, Mr.
Charleston failed to adduce evidence for a reasonable jury to find Corizon knew she received Dr.
Limberakis’s report but failed to exercise her medical judgment against the report.
43

Mr. Charleston also failed to adduce evidence to impose punitive damages against
Corizon on a direct corporate negligence theory. Mr. Charleston failed to adduce evidence
Corizon acted with an evil motive or reckless indifference to Mr. Charleston’s rights or acted
willfully, wantonly or maliciously. Although Mr. Charleston’s claim against Corizon under
Monell will proceed to trial and Corizon may be liable for punitive damages under Section 1983,
we must distinguish direct and vicarious liability and federal and state standards. Applying
Monell, we found a reasonable jury could find the evidence of Dr. Blatt’s deliberate indifference
sufficient to impose liability against Corizon. Mr. Charleston seeks to hold Corizon liable
directly for its own conduct, not through the conduct of its agents like Dr. Blatt. But Mr.
Charleston fails to adduce evidence of Corizon’s conduct sufficient to ask a jury to assess
punitive damages.

We dismiss Mr. Charleston’s request for punitive damages under his

negligence claim against Corizon.
3. The City is immune from punitive damages and Mr. Charleston’s claims
against the City do not survive summary judgment.
In City of Newport v. Fact Concerts, Inc., the Supreme Court held a municipality is
immune from punitive damages under Section 1983.322 The Political Subdivision Torts Claim
Act also offers a municipality immunity against the imposition of punitive damages. 323
We grant the City’s motion for summary judgment dismissing Mr. Charleston’s claim for
punitive damages because the City is immune from punitive damages and Mr. Charleston’s
claims against the City do not survive summary judgment.
4. We strike Mr. Charleston’s punitive damages claim against the
remaining Defendants sued for negligence.
Mr. Charleston failure to adduce evidence of reckless disregard to his medical needs as to
Nurse Popelak, Nurse Rene, PA McKinney, Nurse Whatley, Licensed Practical Nurse

44

McGettigan, Licensed Nurse Practitioner Diorio, Nurse Duffy, Nurse Practitioner Hamilton,
Nurse Practitioner Green, Nurse Marshall, PA Orji, and Ms. Frias, and Mr. Charleston’s failure
to adduce evidence of evil motive, wanton or willful behavior as to these remaining Defendants
requires dismissal of Mr. Charleston’s request for punitive damages without prejudice. Should
Mr. Charleston adduce evidence of evil motive, reckless indifference or willful, wanton or
malicious conduct at trial, Mr. Charleston may renew his request for punitive damages.
III.

Conclusion
We dismiss Mr. Charleston’s Fourteenth Amendment claim against Nurse Popelak, Nurse

Rene, PA McKinney, Nurse Whatley, Licensed Practical Nurse McGettigan, Licensed Nurse
Practitioner Diorio, Nurse Duffy, Nurse Practitioner Hamilton, Nurse Practitioner Green, Nurse
Marshall, PA Orji, and Ms. Frias. We dismiss Mr. Charleston’s Monell claim against the City
for failing to adduce evidence of a custom, policy, or practice causing Mr. Charleston’s
constitutional rights. We dismiss Mr. Charleston’s negligence claim against Ms. Frias, the City,
Warden Farrell, and Warden Abello. We dismiss Mr. Charleston’s intentional infliction of
emotional distress claim against all Defendants for failing to adduce evidence of extreme or
outrageous conduct and to adduce evidence of willful misconduct or malice from Warden Abello
and Deputy Warden Farrell.

1

Our Policies require a Statement of Undisputed Material Facts in support of a Rule 56 motion,
as well as an appendix of exhibits. City of Philadelphia, Warden Michelle Farrell, Deputy
Warden Frederick Abello, Corizon Health, Inc., Kristin Popelak, R.N., Dulie Rene, R.N., Karen
McKinney, P.A., Marie Whatley, R.N., Danielle McGettigan, L.P.N., Anita Diorio, R.N., Mary
Duffy, R.N., Charlotte Hamilton, N.P., Roseanna Green, N.P., Christina Marshall, R.N.,
Constance Orji, P.A., Elmeada Frias, Bruce Blatt, M.D., and Robin Clemons, M.D. moved for
summary judgment. City of Philadelphia, Warden Farrell, and Deputy Warden Abello filed a
45

Statement of Undisputed Material Facts at ECF Doc. No. 136 (“City SUMF”) and appendix at
ECF Doc. No. 136-3 through 136-6. Wayne Charleston responded to the City SUMF and
submitted a Statement of Additional Undisputed Facts at ECF Doc. No. 159 (“Charleston-City
SUMF”). Corizon, Nurse Popelak, Nurse Rene, PA McKinney, Nurse Whatley, Licensed
Practical Nurse McGettigan, Nurse Diorio, Nurse Duffy, Nurse Practitioner Hamilton, Nurse
Practitioner Green, Nurse Marshall, PA Orji, and Ms. Frias filed a Statement of Undisputed
Material Facts at ECF Doc. No. 137 (“Corizon SUMF”) and appendix at ECF Doc. No. 137-3
through 137-6. Mr. Charleston responded to the Corizon SUMF and submitted a Statement of
Additional Undisputed Facts at ECF Doc. No. 158 (“Charleston-Corizon SUMF”). Dr. Blatt
filed a Statement of Undisputed Material Facts at ECF Doc. No. 135 (“Blatt SUMF”) and
appendix at ECF Doc. No. 135-1 through 135-4. Mr. Charleston responded to the Blatt SUMF
and submitted a Statement of Additional Undisputed Facts at ECF Doc. No. 156 (“CharlestonBlatt SUMF”). Dr. Blatt filed a supplemental appendix attached to his reply brief at ECF Doc.
No. 169-1. Dr. Clemons filed a Statement of Undisputed Material Facts at ECF Doc. No. 133-1
(“Clemons SUMF”) and appendix at ECF Doc. No. 133-2 through 133-10. Mr. Charleston
responded to the Clemons SUMF and submitted a Statement of Additional Undisputed Facts at
ECF Doc. No. 157 (“Charleston-Clemons SUMF”).
Rather than file a separate appendix in response to each motion for summary judgment as
instructed in our Policies, Mr. Charleston filed an omnibus appendix with supplemental exhibits
in support of his responses to all motions at ECF Doc. No. 160 through 160-3. Also violating
our Policies, Mr. Charleston did not consecutively bates stamp his supplemental exhibits to the
Defendants’ appendices. References to the appendices shall be referred to by ECF number.
2

Blatt SUMF at ¶ 16.

3

Id.

4

City SUMF at ¶ 3.

5

Blatt SUMF at ¶ 5.

6

Id. ¶ 7-8.

7

ECF Doc. No. 160-2 at p. 88.

8

Id.

9

Id.

10

Id.

11

Id. at pp. 92-93.

12

ECF Doc. No. 133-4 at p. 6.
46

13

ECF Doc. No. 160-2 at pp. 96-97.

14

ECF Doc. No. 133-4 at p. 6.

15

ECF Doc. No. 160-2 at pp. 99-100.

16

ECF Doc. No. 133-4 at pp. 6-7.

17

ECF Doc. No. 160-2 at pp. 102-04.

18

Id. at pp. 106-07.

19

Id.

20

ECF Doc. No. 160-1 at p. 44.

21

Id. at p. 45.

22

Id. at pp. 47-48.

23

Id. at pp. 47-48.

24

Id.

25

Id. at p. 59.

26

Id. at pp. 70-71.

27

Id.

28

ECF Doc. No. 133-4 at p. 7.

29

ECF Doc. No. 160-1 at p. 80.

30

Id. at p. 82.

31

Id. at p. 84.

32

ECF Doc. No. 133-4 at p. 7.

33

Id.

34

Id.

47

35

ECF Doc. No. 160-1 at p. 86.

36

Id. at pp. 88-90.

37

Id.

38

Id.

39

Id. at pp. 92-93.

40

Id.

41

Id.

42

Id.

43

Id.

44

Id.

45

Id.

46

Id.

47

Blatt SUMF at ¶ 18.

48

Id.

49

Id.

50

Id. ¶ 19.

51

Id.

52

ECF Doc. No. 160-1 at p. 102.

53

Id. at p. 104.

54

Id. at p. 110.

55

Id.

56

Id.

57

Id.
48

58

Id.

59

Id. at p. 106.

60

ECF Doc. No. 160-3 at pp. 39-40.

61

Id.

62

Id. at p. 43.

63

ECF Doc. No. 160-1 at p. 108.

64

Clemons SUMF at ¶ 8.

65

ECF Doc. No. 160-1 at p. 141.

66

Id.

67

Clemons SUMF at ¶ 9.

68

ECF Doc. No. 133-6 at p. 6.

69

ECF Doc. No. 160-1 at p. 141.

70

Id.

71

Clemons SUMF at ¶ 9.

72

Id.

73

ECF Doc. No. 160-1 at p. 141; ECF Doc. No. 133-6 at p. 7.

74

ECF Doc. No. 160-1 at p. 142; Clemons SUMF at ¶ 10.

75

ECF Doc. No. 160-1 at p. 142.

76

ECF Doc. No. 133-6 at p. 12.

77

Blatt SUMF at ¶ 27.

78

ECF Doc. No. 160-1 at p. 112.

79

Id. at pp. 114-16.

49

80

Id.

81

Id.

82

Id.

83

ECF Doc. No. 160-1 at p. 123.

84

Id.

85

Clemons SUMF at ¶ 9.

86

ECF Doc. No. 160-1 at p. 125.

87

Id.

88

Clemons SUMF at ¶ 12.

89

Id. ¶ 11.

90

Id. ¶ 11.

91

ECF Doc. No. 133-6 at p. 25.

92

Clemons SUMF at ¶ 12.

93

Id. ¶ 12.

94

ECF Doc. No. 160-1 at pp. 126-27.

95

Blatt SUMF at ¶ 29.

96

Id. ¶ 29.

97

Id. ¶ 30.

98

ECF Doc. No. 160-1 at pp. 26-27.

99

Id.

100

Id. at p. 26.

101

Id.

102

Blatt SUMF at ¶ 31.
50

103

Id. ¶ 31.

104

ECF Doc. No. 160-1 at p. 21.

105

Id.

106

ECF Doc. No. 160-1 at p. 18-19.

107

Id. at p. 20.

108

Blatt SUMF at ¶ 32.

109

Id.

110

Id.

111

ECF Doc. No. 160-1 at pp. 20-21.

112

Id. at p. 35.

113

Id.; Clemons SUMF at ¶ 16.

114

ECF Doc. No. 133-6 at p. 29.

115

Clemons SUMF at ¶ 16.

116

ECF Doc. No. 160-1 at p. 35.

117

Id. at pp. 134-35.

118

Id.

119

ECF Doc. No. 133-4 at p. 11.

120

ECF Doc. No. 160-1 at 137-39.

121

Id.

122

Clemons SUMF at ¶ 18.

123

ECF Doc. No. 133-6 at p. 37.

124

Clemons SUMF at ¶ 18.

51

125

Id.

126

Id. at ¶ 19.

127

ECF Doc. No. 160-1 at pp. 144-45.

128

Id.

129

Id.

130

Id.

131

Id.

132

Id.

133

ECF Doc. No. 160-3 at p. 18.

134

Id.

135

Id.

136

ECF Doc. No. 160-1 at pp. 149-50.

137

Id.

138

Id.

139

Id. at p. 154.

140

Id.

141

Id.

142

ECF Doc. No. 133-4 at p. 12.

143

Id.

144

ECF Doc. No. 160-1 at pp. 155-56.

145

Id. pp. 155-56.

146

Id.

147

Id.
52

148

Id.

149

Id. at pp. 158-59.

150

Id.

151

Id.

152

Id.

153

Id.

154

Id.

155

Id.

156

Id.

157

Id.

158

Id.

159

Id.

160

Id.

161

Id.

162

Id.

163

Id.

164

ECF Doc. No. 135-1 at p. 78.

165

ECF Doc. No. 160-2 at pp. 36-37.

166

Id.

167

Id.

168

Id. at pp. 36-37, 43.

169

Id. at p. 49.

53

170

ECF Doc. No. 160-3 at pp. 20-21.

171

ECF Doc. No. 133-4 at p. 14.

172

Id.

173

Id.

174

ECF Doc. No. 160-1 at pp. 81-82.

175

Id.

176

Id.

177

Blatt SUMF at ¶ 44.

178

Id.

179

ECF Doc. No. 135-1 at pp. 79-81.

180

Id. at p. 80.

181

ECF Doc. No. 135-3 at p. 207.

182

ECF Doc. No. 160-1 at p. 38.

183

Id.

184

ECF Doc. No. 135-3 at p. 208.

185

ECF Doc. No. 160-3 at p. 45.

186

Id.

187

Id.

188

Id.

189

ECF Doc. No. 135-3 at p. 209.

190

Blatt SUMF at ¶ 47.

191

Id. ¶ 48; ECF Doc. No. 160-1 at pp. 161-62.

192

Blatt SUMF at ¶ 49.
54

193

ECF Doc. No. 135-2 at pp. 1-4.

194

ECF Doc. No. 135 at p. 1.

195

Blatt SUMF at ¶ 49.

196

Clemons-Charleston SUMF at ¶ 20.

197

Id.

198

ECF Doc. No. 160-2 at pp. 30-31.

199

Id. at pp. 33-34.

200

Id. at p. 31.

201

Id. at p. 30.

202

Id. at p. 32.

203

Id. at p. 112.

204

Id.

205

Id. at pp. 112, 135-36.

206

Id. at pp. 135-36.

207

Id. at p. 138.

208

Id. at pp. 136-37.

209

Id. at p. 137.

210

Id.

211

Id.

212

Id. at p. 138.

213

Id.

214

Summary judgment is proper when “the movant shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
55

56(a). “Material facts are those ‘that could affect the outcome’ of the proceeding, and ‘a dispute
about a material fact is ‘genuine’ if the evidence is sufficient to permit a reasonable jury to return
a verdict for the non-moving party.’” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir.
2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). On a motion for
summary judgment, “we view the facts and draw all reasonable inferences in the light most
favorable to the nonmovant.” Pearson, 850 F.3d at 533-34 (3d Cir. 2017) (citing Scott v. Harris,
550 U.S. 372, 378 (2007)). “The party seeking summary judgment ‘has the burden of
demonstrating that the evidentiary record presents no genuine issue of material fact.’” Parkell v.
Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting Willis v. UPMC Children’s Hosp. of
Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)). If the movant carries its burden, “the nonmoving
party must identify facts in the record that would enable them to make a sufficient showing on
essential elements of their care for which they have the burden of proof.” Willis, 808 F.3d at 643
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If, after adequate time for
discovery, the nonmoving party has not met its burden, pursuant to Federal Rule of Civil
Procedure 56, the court must enter summary judgment against the nonmoving party.” Willis, 808
F.3d at 643 (citing Celotex Corp., 477 U.S. at 322-323).
215

436 U.S. 658 (1978).

216

Dr. Blatt also argues a “but-for” causation standard applies to Mr. Charleston’s Section 1983
claim and Mr. Charleston failed to adduce expert evidence identifying Dr. Blatt’s conduct as a
“but-for” cause of Mr. Charleston’s injuries. Dr. Blatt does not cite controlling authority. We
apply the causation standard articulated by our court of appeals. “It is axiomatic that ‘[a] 1983
action, like its state court analogs, employs the principle of proximate causation.’” Hedges v.
Musco, 204 F.3d 109, 121 (3d Cir. 2000) (citation omitted). In a Section 1983 action, the
plaintiff must establish a “plausible nexus” or “affirmative link” between the defendant’s
conduct and the deprivation of the constitutional right. Id. (citation omitted). As discussed in
our Memorandum, Mr. Charleston adduces expert evidence identifying Dr. Blatt’s conduct as a
cause of Mr. Charleston’s injury.
217

42 U.S.C. § 1983.

218

Natale v. Camden Cnty. Corr. Fac., 318 F.3d 575, 581-82 (3d Cir. 2003). As to all
Defendants, we dismiss Mr. Charleston’s Eighth Amendment claim as Mr. Charleston admits his
status as a pretrial detainee during the relevant time period governing his claims and only the
Fourteenth Amendment is applicable. ECF Doc. No. 161-1 at p. 4.
219

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (citation omitted).

220

Natale, 318 F.3d at 582.

221

Id. (citing Rouse v. Plaintier, 182 F.3d 192, 197 (3d Cir. 1999)).

222

Rouse, 182 F.3d at 197.

56

223

Farmer v. Brennan, 511 U.S. 825, 835 (1994)).

224

Farmer, 511 U.S. at 837.

225

Pearson v. Prison Health Servs., 850 F.3d 526, 542 (3d Cir. 2017) (Monmouth Cnty. Corr.
Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)).
226

Pearson, 850 F.3d at 538 (citation omitted).

227

Natale, 318 F.3d at 582.

228

Estelle v. Gamble, 429 U.S. 97, 106 (1976).

229

Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (citing Durmer v. O’Carroll, 991 F.2d
64, 67 (3d Cir. 1993)).
230

Id. at 228 (citation omitted).

231

Brown v. Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (citing Youngberg v. Romero, 457
U.S. 307, 322-23 (1982)).
232

Durmer, 991 F.2d at 69.

233

372 F.3d 218, 236 (3d Cir. 2004).

234

Id. at 237.

235

850 F.3d 526, 540 n. 4 (3d Cir. 2017) (internal citation omitted).

236

Miller v. Hoffman, No. 97–7987, 1998 WL 404034, at *3 (E.D. Pa. July 7, 1998) (citing
Rode, 845 F.2d at 1207).
237

Santiago, 629 F.3d at 128.

238

Id. at 129.

239

A.M. v. Luzerne Cnty. Juvenile Det. Cntr., 372 F.3d 572, 586 (3d Cir. 2004).

240

Corizon SUMF at ¶¶ 6-7, 9.

241

Id. ¶ 6.

242

Id. ¶ 7.

243

Id. ¶ 9.
57

244

ECF Doc. No. 160-2 at pp. 92-93.

245

Id.

246

Id. at pp. 106-07.

247

See Estelle, 429 U.S. at 106.

248

See Pearson, 850 F.3d at 542 (citing Monmouth Cnty. Corr. Inst. Inmates, 834 F.2d at 346.

249

Id. (citation omitted).

250

ECF Doc. No. 160-1 at pp. 20-21

251

Id. at pp. 11-14

252

Id. at p. 14.

253

Id. at pp. 20-21.

254

Id. at p. 35.

255

See Pearson, 850 F.3d at 540 n. 4.

256

ECF Doc. No. 160-2 at p. 112.

257

Corizon SUMF at ¶ 38.

258

Id. ¶ 38.

259

Id. ¶ 40.

260

ECF Doc. No. 135-3 at p. 121.

261

Id.

262

City SUMF at ¶ 5.

263

ECF Doc. No. 136-3 at p.31.

264

ECF Doc. No. 160-2 at pp. 144-47.

265

ECF Doc. No. 160-3 at pp. 35-37.

58

266

ECF Doc. No. 136-6 at pp. 3-5.

267

ECF Doc. No. 160-3 at p. 36.

268

Id.

269

42 U.S.C. § 1983.

270

Monell v. New York City. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978)). Corizon does not
dispute it acted under color of state law. ECF Doc. No. 137-1 at pp. 7-8.
271

Vargas v. City of Phila., 783 F.3d 962, 974 (3d Cir. 2015) (quoting City of Canton v. Harris,
489 U.S. 378, 385 (1989)).
272

Natale, 318 F.3d at 584.

273

Id. (citing Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997)).

274

Id. (citations omitted).

275

Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)).

276

ECF Doc. No. 158 at pp. 2-5.

277

Id.

278

Id.

279

Id. at pp. 4-5.

280

Id.

281

Id. at p. 5.

282

ECF Doc. No. 160-1 at p. 23.

283

Id. at p. 23.

284

Id.

285

ECF Doc. No. 135-3 at p. 82.

286

ECF Doc. No. 160-1 at p. 21.

287

Id.
59

288

Id.

289

Id.

290

Id.

291

Id.

292

Id.

293

Id. at pp. 5, 11, 14.

294

ECF Doc. No. 135-3 at p. 121.

295

ECF Doc. No. 160-1 at pp. 99-100.

296

ECF Doc. No. 93 at ¶¶ 91-97.

297

Corizon SUMF at ¶ 38.

298

Id. ¶ 40.

299

ECF Doc. No. 160-1 at p. 131-32.

300

Id. at p. 128.

301

42 Pa. Cons. Stat. §§ 8541-42.

302

Id. §§ 8545, 8550.

303

Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1023 (Pa. Cmmw. Ct. 2014) (quoting
R.H.S. v. Alleghany Cnty. Dep’t of Human Servs., 936 A.2d 2329, 1230 (Pa. Cmmw. Ct. 2007)).
304

Id.

305

Sullivan v. Warminster Twp., 765 F. Supp. 2d 687, 707 (M.D. Pa. 2011) (quoting Sanford v.
Stiles, 456 F.3d 298, 315 (3d Cir. 2006)).
306

See 42 Pa Cons Stat. § 8542(b).

307

Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998).

308

Id. (quoting Restatement (Second) of Torts § 46, comment d).

60

309

1999 WL 415397, *8-9 (E.D. Pa. Jun. 22, 1999).

310

2006 WL 680965, *15 (E.D. Pa. Mar. 16, 2006).

311

42 Pa. Cons. Stat. §§ 8541-42.

312

Id. § 8542(b).

313

Id. § 8542(b).

314

Smith v. Wade, 461 U.S. 30, 56 (1983).

315

Bermundez v. City of Philadelphia, No. 06-4701, 2007 WL 1816469, at *3 (E.D. Pa. Jun. 21,
2007).
316

Hutchinson v. Luddy, 870 A.2d 766, 770 (Pa. 2005).

317

Brand Mktg. Grp., LLC v. Intertek Testing Servs., 801 F.3d 347, 358 (3d Cir. 2015) (citing
Hutchinson, 870 A.2d at 773).
318

Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005).

319

See Bermundez, 2007 WL 1816469, at *3.

320

40 Pa. Stat. § 1303.505(c).

321

Hutchinson, 870 A.2d at 770.

322

453 U.S. 247, 271 (1981).

323

42 Pa. Cons. Stat. § 8553(c); The Choice is Yours, Inc. v. The Choice is Yours, No. 14-1804,
2015 WL 5584302, at *8 (E.D. Pa. Sept. 22, 2015).

61