Turner v. Lopez et al

Filing 38

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 12/9/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MELVIN TURNER,

:

Plaintiff

:

CIVIL ACTION NO. 3:13-872

v.

:

(MANNION, D.J.)
(CARLSON, M.J.)

RAFEL LOPEZ, et al.,

:

Defendants

:
MEMORANDUM

Pending before the court is a report and recommendation filed by Judge
Carlson on October 11, 2013, (Doc. No. 34), to which the plaintiff has filed an
objection. (Doc. No. 35). In his report, Judge Carlson recommends that
plaintiff’s Eighth Amendment claim be dismissed. The plaintiff’s objection
does not contest that he failed to respond to the motion to dismiss or that he
failed to prosecute the case, but asks this court to allow the case to proceed
on the merits. The court will construe this as an objection to Judge Carlson’s
determination that the plaintiff’s claim fails as a matter of law.

I. FACTUAL BACKGROUND
On July, 21, 2011, the defendant, Doctor Rafel Lopez, operated on the
plaintiff’s prostate gland. The plaintiff alleges that the defendant performed the
wrong procedure, cutting the underside of his penis. (Doc. No. 1). As a result
of the surgery, the plaintiff’s penis now has a hole in it and is enlarged. He
also alleges he now urinates uncontrollably, wetting his body and clothing

constantly. The plaintiff alleges the defendant admitted fault and said he could
correct the errant procedure, but his contract with the Board of Prisons was
terminated before he could do so. (Doc. No. 1). He is seeking $25,000 in
damages and wants the prison to schedule a follow-up surgery to correct the
issues with his penis. (Doc. No. 36).

II. PROCEDURAL BACKGROUND
This case commenced on April 5, 2013 when the plaintiff filed his
complaint alleging violation of his Eighth Amendment rights and also other
state law tort claims. (Doc. No. 1). The original complaint named two
defendants, but on October 10, 2013, Wayne Memorial Hospital was
dismissed from this action. (Doc. No. 33). The remaining defendant filed his
motion to dismiss, (Doc. No. 19), and brief in support on July 16, 2013. (Doc.
No. 20). The plaintiff did not file a brief in opposition to the defendant’s
motion. Judge Carlson filed his report and recommendations on July 30,
2013. (Doc. No. 34). The plaintiff filed an objection to the report and
recommendations on October 15, 2013. (Doc. No. 35).

III. STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
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Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.

IV. DISCUSSION
In order to establish an Eighth Amendment claim based upon
allegations of denial of proper medical care, an inmate must demonstrate a
deliberate indifference to a serious medical need. See Estelle v. Gamble, 429
U.S. 97 (1976). This standard requires both deliberate indifference on the part
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of the prison officials and a serious medical need on the part of the prisoner.
See West v. Keve, 571 F.2d 158 (3d Cir. 1978).
A deliberate action is one which is intentional, requiring the actor to
have knowledge of the events attributed to the injury and the ability to control
the outcome. "To establish a constitutional violation, the indifference must be
deliberate and the actions intentional." Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077, 1081 (3d Cir. 1976). A mere difference of opinion
between the prison's medical staff and the inmate as to the diagnosis or
treatment which the inmate receives, does not support an Eighth Amendment
claim. Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See
McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547
F.2d 112, 113 (10th Cir. 1976). A medical need is "serious" where it has been
"diagnosed by a physician as mandating treatment," or if it is "so obvious that
even a lay person would easily recognize the necessity for a doctor's
attention." Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st
Cir. 1990) (citing Monmouth County Correctional Institutional Inmates v.
Lanzaro, 834 F.2d 326, 347( 3d Cir 1987)), cert. denied, 500 U.S. 956 (1991).
The Supreme Court has held that negligence or inadvertence alone do not
rise to the level of a constitutional deprivation. Whitley v. Albers, 475 U.S. 312
(1986); Davidson v. Cannon, 474 U.S. 344 (1986). In Daniels v. Williams, 474
U.S. 327, 332 (1986), the Court noted that "lack of due care suggests no
more than a failure to measure up to the conduct of a reasonable person."
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Where a state of mind is relevant, the complaint is inadequate if it merely
contains conclusory allegations describing the requisite state of mind such as
"intentionally" or "recklessly" without supporting factual allegations. See
generally Wilson v. Seiter, 501 U.S. 294 (1991).
Further, where a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, the federal courts are generally
reluctant to second guess medical judgment and to constitutionalize claims
which sound in state tort law. See Ellison v. Scheipe, 570 F. Supp. 1361,
1363 (E.D. Pa. 1983); Inmates of Allegheny County Jail v. Pierce, 612 F.2d
754,762 (3d Cir. 1979); see also Westlake v. Lucas, 537 F.2d 857, 860 n.5
(6th Cir. 1976). The key question is whether the defendant has provided the
plaintiff with some type of treatment, regardless of whether it is what the
plaintiff desired. Farmer v. Carlson, supra, 685 F. Supp. at 1339.
This case mirrors the circumstance found in Gillespie v. Hogan, 182 F.
App’x 103 (3d Cir. 2006). In that case, the defendant dentist negligently
removed the tooth of a prisoner, leaving part of the tooth in his gums for over
a year. Id. at 104. This caused the prisoner significant pain and hardship while
the tooth fragment remained embedded in his mouth. Id. at 105. The Third
Circuit held that the negligent oral surgery did not rise to the level of
“deliberate indifference” required for a 42 U.S.C. §1983 claim. Id.
Here, the plaintiff’s allegations do not rise to the level of “deliberate
indifference” necessary for his civil rights action to proceed to the merits. The
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court acknowledges the plaintiff has alleged a significant hardship in his
uncontrolled urination, his enlarged penis, and the hole left from the surgery.
However, the plaintiff’s surgery and follow-up exams, even liberally construed,
amounts to no more than negligent treatment. Without more, “mere
allegations of malpractice do not raise issues of constitutional import,” and the
plaintiff’s claim must fail. Lanzaro, 834 F.2d at 346.
Any other claims the plaintiff has remaining are tort claims arising under
state law. Under 28 U.S.C. §1367(a), “[o]nce the claims are dismissed under
the Court’s original jurisdiction, the Court has discretion whether to hear any
remaining [state law] claims.” Lahaza v. Azeff, 790 F.Supp. 88, 93-94 (E.D.
Pa. 1992). As the court’s jurisdiction arose under 42 U.S.C. §1983, no other
federal claims exist. As such, the court declines to exercise its supplemental
jurisdiction and any tort action arising from the defendant’s alleged negligence
are dismissed as well.
Beyond this determination, the court agrees with Judge Carlson that
dismissal is further appropriate given the plaintiff’s failure to oppose the
motion to dismiss, his failure to prosecute the case, and his failure to follow
the Pennsylvania Rules of Civil procedure in filing a certificate of merit to
support his negligence claims. Pa.R.C.P. No. 1042.3.

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V. CONCLUSION
For the reasons discussed above, Judge Carlson’s report and
recommendation, (Doc. No. 34), is ADOPTED IN FULL. The plaintiff’s Eighth
Amendment claim brought pursuant to 42 U.S.C. §1983 is DISMISSED WITH
PREJUDICE. All other state law tort claims are DISMISSED WITHOUT
PREJUDICE.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: December 9, 2013
O:\Mannion\shared\MEMORANDA - DJ\2013 MEMORANDA\13-872-02.wpd

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