WAREHAM v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 58

ORDER adopting Report and Recommendations 47 ; Overruling Objections; granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim. The motion to dismiss is granted as to all claims against Dr. Michael Herbik, and Dr. Herbik is hereby dismissed from this lawsuit. The motion to dismiss is denied as to all claims against defendants PHS and Dr. Joseph Mollura. Signed by Judge Arthur J. Schwab on 8-27-13. (nam)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH WAREHAM,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; MR. JOSEPH
MAZURKIEWICZ, MRS. LORI
KWISNEK, DR. JOSEPH MOLLURA,
PRISON HEALTH SERVICES,
MRS. SUSAN BERRIER, MR. ERIC
ARMEL, DR. MICHAEL HERBIK, AND
DR. DENNIS J. PHILLIPS, individually
and in their official capacities,
Defendants.

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Civil Action No. 2: 13-cv-00188
District Judge Arthur J. Schwab
Magistrate Judge Cynthia Reed Eddy

MEMORANDUM ORDER
Before the Court is the Report and Recommendation of the Magistrate Judge (ECF No.
47) recommending that the Motion to Dismiss filed by Dr. Joseph Mollura, Prison Health
Services (“PHS”), and Dr. Michael Herbik (collectively referred to as the “Medical Defendants”)
(ECF No. 23) be granted in part and denied in part. Objections to the Report and
Recommendation have been lodged by Plaintiff, Joseph Wareham, and Defendant PHS. The
matter is ripe for disposition.
Background
The above captioned case was initiated by the filing of a motion to proceed in forma
pauperis (ECF No. 1) on February 5, 2013, and was referred to a United States Magistrate Judge
for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and
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the local rules of court. The Complaint avers, inter alia, that the Medical Defendants failed to
provide Plaintiff with appropriate medical treatment for pain associated with his pre-existing
lower extremity problems and for injuries he sustained as a result of a fall during his
incarceration at SCI-Greensburg.
On July 11, 2013, the Magistrate Judge filed a Report and Recommendation (ECF No.
47) recommending that the Motion to Dismiss filed by the Medical Defendants be granted in part
and denied in part. The Magistrate Judge recommended that the motion be granted as to all
claims against Dr. Herbik and denied as to all claims against Dr. Mollura and PHS. Objections
to the Report and Recommendation were lodged by Plaintiff on July 26, 2013 (ECF No. 50) and
by PHS on August 12, 2013 (ECF No. 55). Plaintiff filed a Response to PHS’ Objections on
August 22, 2013 (ECF No. 57).
For the reasons that follow, the objections filed by Plaintiff and PHS will be overruled,
the Report and Recommendation will be adopted, and the Motion to Dismiss will be granted in
part and denied in part.
Standard of Review
In disposing of objections to a magistrate judge's report and recommendation, the district
court must make a de novo determination of those portions of the report to which objections are
made. 28 U.S.C. § 636(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.
1987). This Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The district court judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions.
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Discussion
1.

Plaintiff’s Objection (ECF No. 50)
Plaintiff objects to the recommendation that the motion to dismiss be granted as to all

claims against Defendant Dr. Herbik.

He again argues that Dr. Herbik violated his Eighth

Amendment rights when he (i) refused to send Plaintiff for a second opinion and (ii) refused to
renew Plaintiff’s “prescription” for a double mattress.
With respect to Plaintiff’s first contention, as the Magistrate Judge explained, the United
States Court of Appeals for the Third Circuit has held that “no [Eighth Amendment] claim is
stated when a doctor disagrees with the professional judgment of another doctor.” White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990); Baez v. Falor, 2012 WL 4356768 at *47 (W.D. Pa.
Sept. 24, 2012). See also Owens v. Ayalew, No. 11cv2926, 2012 WL 3779174, at *5 (D. Md.
Aug. 30, 2012) (prison doctor's disagreement with orthopedic surgeon's recommendation that
inmate should see a neurosurgeon and be evaluated for possible cervical surgery did not
demonstrate deliberate indifference).
Likewise, as to Plaintiff’s second contention, that Dr. Herbik violated Plaintiff’s
constitutional rights when he refused to renew Plaintiff’s prescription for a double mattress,
again, the limited record before the Court reflects that Plaintiff was first given authorization for a
double mattress on December 19, 2000. On September 15, 2011, almost eleven (11) years later,
Plaintiff was examined by Dr. Herbik upon his transfer to SCI-Fayette. Dr. Herbik determined
that Plaintiff no longer needed a double mattress. Again, “disagreement of professional opinion

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among doctors does not equal deliberate indifference.” DeFranco v. Wolfe, 387 F. App’x 147,
158 (3d Cir. 2010).
Having reviewed Plaintiff’s objections, the Court fails to find that the magistrate judge
erred in recommending that the Motion to Dismiss should be granted as to all claims against Dr.
Herbik. Thus, the Court will overrule Plaintiff’s objections.

2.

PHS’ Objection (ECF No. 55) and Plaintiff’s Response to PHS’ Objection (ECF No. 57)
PHS objects to the recommendation that the motion to dismiss be denied as to Plaintiff’s

claims against PHS, arguing that Plaintiff’s claims against it are time-barred. Due to the
application of the prisoner mail box rule, Plaintiff’s Complaint is deemed filed as of January 29,
2013, the date he delivered his IFP application to prison officials. Therefore, as explained in the
Report and Recommendation, only those claims that accrued prior to January 29, 2011 are barred
by the applicable statute of limitations. PHS argues that because the three referrals to the
orthopedic surgeon occurred before January 29, 2011, Plaintiff’s claims are barred1 and PHS
should be dismissed from this lawsuit. Plaintiff responds that he “had received nothing but
stalling tactics from PHS for more than seven months leading up to February 2, 2011,” the date
he “is finally transported to the Allegheny General Hospital where he was examined by Dr.
Edward Snell (Orthopedic).” Pl’s Resp. at 1, 2 (ECF No. 57).
The law is clear that if a defendant's conduct is part of a continuing practice, an action is
timely so long as the last act evidencing the continuing pattern falls within the limitations period.

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The referrals were made on three separate occasions: June 30, 2010; October 14, 2010;
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Brenner v. Local 514, 927 F.2d 1283, 1295 (3d Cir.1991). The Court finds that at this early stage
of litigation, the contentions Plaintiff advances are sufficient to overcome the statute of
limitations defense. The Complaint avers that despite Plaintiff’s ongoing pain and discomfort
and despite receiving three (3) referrals by PHS’ own physician (Dr. Mollura) for Plaintiff to be
evaluated by an orthopedic surgeon, PHS “delayed treatment for non-medical reasons” until
February 2, 2011. In his Response, Plaintiff states that he “continuously asked every day, when
he saw a medical department employee at the medical department or in passing around the SCI
Greensburg compound, when he would be taken to see an orthopedic.” Resp. at 2.
Thus, viewing the Complaint in the light most favorable to Plaintiff, the Court concludes
that Plaintiff’s allegations are sufficient to establish the type of ongoing and continuing pattern
needed for application of the continuing violation doctrine.
Having reviewed Defendant PHS’ objection, the Court fails to find that the magistrate
judge erred in recommending that the Motion to Dismiss be denied as to PHS. Thus, the Court
will overrule PHS’ objections based on the statute of limitations.
Conclusion
For the reasons stated above, the Objections filed by Plaintiff and PHS will be overruled,
the Report and Recommendation will be adopted by the Court, and the Motion to Dismiss will be
granted in part and denied in part.

and December 29, 2010.
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AND NOW, this 27th day of August, 2013, it is hereby ORDERED, ADJUDGED
AND DECREED as follows:
IT IS ORDERED that the Objections filed by Plaintiff and PHS are OVERRULED and
the Report and Recommendation (ECF No. 47) is ADOPTED as the Opinion of the Court.
It is FURTHER ORDERED that Defendants’ motion to dismiss (ECF No. 23) is granted
in part and denied in part, as follows:
1.

The Motion to Dismiss is GRANTED as to all claims against Defendant Dr.

Michael Herbik and Dr. Herbik is hereby DISMISSED from this lawsuit;
2.

The Motion to Dismiss is DENIED as to all claims against Defendants PHS and

Dr. Joseph Mollura.
It is FURTHER ORDERED that Defendants Dr. Mollura and PHS shall file an Answer
in accordance with Federal Rule of Civil Procedure 12(a)(4)(A).

SO ORDERED this 27th day of August, 2013.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

JOSEPH WAREHAM
AF-5939
SCI Fayette
Box 9999
LaBelle, PA 15450-0999
Mary Lynch Friedline
Office of Attorney General
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Email: [e-mail]
J. Eric Barchiesi
Eisenberg & Torisky
Email: [e-mail]
Christopher E. Ballod
Marshall Dennehey Warner Coleman & Goggin
Email: [e-mail]
Steven J. Forry
Marshall, Dennehey, Warner, Coleman & Goggin
Email: [e-mail]

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