Whitenight v. Harry et al
Filing
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ORDER: IT IS HEREBY ORDERED that: Plaintiff's 16 Motion for Reconsideration is DENIED; Plaintiff's 20 Motion to Appoint Counsel; 22 Motion to Certify Class; 26 Motion to Clarify are DENIED. Signed by Honorable Matthew W. Brann on 5/25/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN WHITENIGHT,
Plaintiff,
v.
LAUREL HARRY, ET AL.,
Defendants.
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No.: 4:16-CV-1350
(Judge Brann)
ORDER
MAY 25, 2017
I.
Background
This pro se civil rights action pursuant to 42 U.S.C. § 1983 was filed by
Shawn Whitenight, an inmate presently confined at the Greene State Correctional
Institution, Waynesburg, Pennsylvania. By Memorandum and Order dated
October 19, 2016, Plaintiff’s action was dismissed, without prejudice, as legally
frivolous pursuant to the screening provisions of 28 U.S.C. § 1915.
Following dismissal of his action, Plaintiff filed a motion seeking
reconsideration of that decision. See Doc. 16. Thereafter, this Court granted
Whitenight’s request for an extension of time in which to file a proposed amended
complaint as part of his reconsideration request. Also presently pending before
this Court are Whitemight’s motions seeking appointment of counsel (Doc. 20);
class certification (Doc. 22); and clarification of the case (Doc. 26).
II.
Reconsideration
Plaintiff has filed a one paragraph motion for reconsideration which
generally asserts only that the deficiencies outlined by this Court’s October 9,
2016 Memorandum and Order may be cured through submission of an amended
complaint. M.D. Pa. Local Rule 7.10 requires that any motion for reconsideration
or reargument be accompanied by a supporting brief and filed within fourteen (14)
days after the entry of the order concerned. The Plaintiff has not submitted a
supporting brief with respect to his motion. Accordingly, the motion for
reconsideration is subject to dismissal under Local Rule 7.10.
Moreover, although granted an enlargement of time in which to do so, a
review of the docket shows that Whitenight has not submitted a proposed amended
complaint. In light of that failure and the lack of a brief supporting the
reconsideration motion, there is no discernible basis upon which to grant the
unsupported request for reconsideration.
It is acknowledged that Plaintiff did file one hundred and thirty-seven
(137) pages of exhibits (Doc. 19). However, those exhibits cannot stand as an
adequate proposed amended complaint. The exhibits show that while previously
confined at the State Correctional Institution, Camp Hill, Pennsylvania (SCI-Camp
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Hill) the Plaintiff was treated for a back condition. The medical care provided to
the prisoner included surgical and physical therapy evaluations, a liver function
test, and MRI testing. It was determined by the medical staff that there was no
need for surgery. See Doc. 19, p. 8.
The Eighth Amendment “requires prison officials to provide basic medical
treatment to those whom it has incarcerated.” Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). In order to
establish an Eighth Amendment medical claim, an inmate must allege acts or
omissions by prison officials sufficiently harmful to evidence deliberate
indifference to a serious medical need. See Spruill v. Gillis, 372 F.3d 218, 235-36
(3d Cir. 2004); Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582
(3d Cir. 2003). In the context of medical care, the relevant inquiry is whether the
defendant was: (1) deliberately indifferent (the subjective component) to (2) the
plaintiff’s serious medical needs (the objective component). Monmouth Cty. Corr.
Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West v. Keve, 571 F.2d
158, 161 (3d Cir. 1979).
With respect to the subjective deliberate indifference component of Estelle,
the proper analysis for deliberate indifference is whether a prison official “acted or
failed to act despite his knowledge of a substantial risk of serious harm.” Farmer
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v. Brennan, 511 U.S. 825, 841 (1994). A complaint that a physician “has been
negligent in diagnosing or treating a medical condition does not state a valid claim
of medical mistreatment under the Eighth Amendment [as] medical malpractice
does not become a constitutional violation merely because the victim is a
prisoner.” Estelle, 429 U.S. at 106.
When a prisoner has actually been provided with medical treatment, one
cannot always conclude that, if such treatment was inadequate, it was no more
than mere negligence. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
In Davidson v. Cannon, 474 U.S. 344, 347-48 (1986), the Supreme Court of the
United States noted that although a lack of due care had resulted in serious injury
to an inmate plaintiff, "that lack of care simply does not approach the sort of
abusive government conduct" which would warrant recovery under § 1983. Id. at
347-348. Simply put, allegations of negligence “do not trigger constitutional
protections.” Whooten v. Bussanich, No. 07-1441, slip op. at 4 (3d Cir. Sept. 12,
2007)(citation omitted).1
Since Plaintiff’s exhibits show that he was afforded medical treatment at
SCI-Camp Hill it appears that Whitenight wishes to challenge the quality of the
1
There is no discernible request by Plaintiff that this Court exercise supplemental jurisdiction
over a state law negligence claim. See 28 U.S.C. § 1367
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medical care provided to him there. However, claims which represent a prisoner’s
disagreement with the quality of the medical care provided to him are not
actionable in a civil rights suit pursuant to the standards announced in Davidson
and Whooten.
III.
Certificate of Merit
Plaintiff has also filed a proposed certificate of merit which generally claims
that expert testimony by an appropriate licensed professional is not necessary in
this case. See Doc. 24. In order to present a prima facie case of medical
malpractice/negligence under Pennsylvania state law, a plaintiff has the burden of
presenting expert testimony by an appropriate licensed professional who can
testify to a reasonable degree of medical certainty that the actions or omissions of
the defendant deviated from acceptable medical standards, and that said deviation
constituted a substantial factor in causing the Plaintiff’s injury. See Simpson v.
Bureau of Prisons, 2005 WL 2387631 *5 (M.D. Pa. Sept. 28, 2005)(Vanaskie,
C.J.).2
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The only exception to this rule is where the matter “is so simple and the lack of skill or want of
care is so obvious as to be within the range of ordinary experience and comprehension of even
nonprofessional persons.” Berman v. United States, 205 F. Supp.2d 362, 264 (M.D. Pa. 2002)
(citing Brannan v. Lankenau Hospital, 490 Pa. 588 (1980). However, the instances when expert
opinions may be unnecessary are rare. See Simpson, 2005 WL *6; Arrington v. Inch, 2006 WL
860961 *7 (M.D. Pa. March 30, 2006) (Conner, J.).
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Rule 1042.3 requires a person who brings a claim of medical
malpractice/negligence to file an appropriate certificate of merit. The Rule
1042.3 certificate must certify that either: (1) an appropriate licensed professional
has supplied a written statement that there exists a reasonable probability that the
conduct which is the subject of the complaint fell outside acceptable professional
standards and was a cause in bringing about the harm; (2) the claim of deviation
by defendant from an acceptable professional standard is based solely upon
allegations that other licensed professionals for whom defendant is responsible
deviated from an acceptable professional standard; or (3) expert testimony of an
appropriate licensed professional is unnecessary.
Plaintiff’s submission of a proposed certificate of merit does not warrant
reconsideration of the dismissal of this matter. His filing also cannot stand by
itself as a proposed amended complaint.
IV.
Class Certification
Whitenight has also filed a motion requesting that this matter be certified as
a class action. See Doc. 22. In addition to being subject to dismissal on the basis
of mootness, it is also noted that numerous federal courts have recognized that a
pro se litigant such as lacks the capacity to represent the interests of his fellow
inmates in a class action. Cahn v. United States, 269 F. Supp.2d 537, 547 (D.N.J.
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2003); Caputo v. Fauver, 800 F. Supp 168, 170 (D.N.J. 1992); Collinsgru v.
Palmyra Board Of Education, 161 F.3d 225, 232 (3d Cir. 1998)(non-attorneys
cannot litigate the rights of others); Osei-Afriye v. Medical College of Pa., 937
F.2d 876, 883 (3d Cir. 1991). It is plain error to permit a pro se inmate litigant to
represent fellow inmates. Whalen v. Wiley, No. 06- 809, 2007 WL 433340 *2
(D.Col. Feb. 1, 2007).
However, a pro se litigant seeking class certification may “continue
individually to pursue his claims.” Id. Simply put, a pro se prisoner pursuing a
civil rights claim in federal court “must allege a personal loss and seek to vindicate
a deprivation of his own constitutional rights.” Id.; Nilsson v. Coughlin, 670 F.
Supp. 1186, 1190 (S.D.N.Y. 1987).
Accordingly, since a pro se litigant cannot represent and protect the
interests of a class fairly and adequately, Plaintiff’s request for class certification
will be denied. See Sacaza-Jackson v. Aviles, 2007 WL 38905 *3 (D.N.J. Jan. 4,
2007). .
V.
Appointment of Counsel/Clarification
Whitenight has additionally submitted a motion seeking appointment of
counsel and a motion seeking clarification which requests that this matter be
allowed to proceed.
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Since Plaintiff’s request for reconsideration is denied, both of those motions
are subject to dismissal on the basis of mootness. It is also noted that neither of
those submissions could be properly construed as a proposed amended complaint.
An appropriate Order follows.
AND NOW, this 25th day of May 2017, for the reasons set forth herein, IT
IS HEREBY ORDERED that:
1.
Plaintiff’s motion for reconsideration (Doc. 16) is DENIED.
2.
The Plaintiff’s motions to appoint counsel (Doc. 20); seeking
class certification (Doc. 22); and for clarification (Doc. 26) are
DENIED.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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