WAREHAM v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 68

ORDER granting 41 Motion to Dismiss; adopting Report and Recommendations 59 as Opinion of the Court.. Signed by Judge Arthur J. Schwab on 10-4-13. (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.
59) recommending that the Motion to Dismiss filed by Defendant Dr. Dennis J. Phillips be
granted. Objections to the Report and Recommendation have been lodged by Plaintiff, Joseph
Wareham (ECF No. 67). 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 United States Magistrate Judge
Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrate Judges Act, 28
U.S.C. § 636(b)(1), and Local Civil Rule 72. The Complaint avers, inter alia, that Defendant

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Phillips demonstrated deliberate indifference to Plaintiff’s serious medical needs by not pursuing
the treatment plan he had recommended, namely surgery on Plaintiff’s left knee.
On September 3, 2013, the Magistrate Judge filed a Report and Recommendation (ECF
No. 59) recommending that the Motion to Dismiss filed by Defendant Phillips be granted.
Objections to the Report and Recommendation were lodged by Plaintiff on September 27, 2013
(ECF No. 67).
For the reasons that follow, the objections filed by Plaintiff will be overruled, the Report
and Recommendation will be adopted, and the Motion to Dismiss will be granted.
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.
Discussion
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
Defendant Phillips. Plaintiff continues to argue that Defendant Phillips demonstrated deliberate
indifference “by not pursuing the surgical repair” and “abandon[ing] the surgical treatment that
he knew was necessary . . . .” Pl’s Obj. at 8-9.
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However, as Defendant Phillips pointed out in his Reply Brief (ECF No. 51), “he could
not unilaterally schedule Mr. Wareham for surgery or other care.” In fact, Section 13.2.1 of the
Department of Corrections, Access to Health Care Procedures Manual, specifically provides that
an off-site specialty consultant will record his findings and recommendations on Form DC-441
and same will be returned to the medical department at the time of the inmate’s return.
Thereafter, the Medical Director will review the consultant’s recommendations.1
This is the exact procedure Defendant Phillips followed. As reflected in Exhibit A to
Plaintiff’s objections, Defendant Phillips completed form DC-441 in which he stated “2nd
opinion with Sam Akharon, M.D.” and returned the form to the Medical Director at SCI-Fayette
for his review.
The Court finds that Plaintiff's Objections do not undermine the recommendation of the
Magistrate Judge. Thus, the Court will overrule Plaintiff’s objections.
Conclusion
For the reasons stated above, the Objections filed by Plaintiff will be overruled, the
Report and Recommendation will be adopted by the Court, and the Motion to Dismiss will be
granted.
ORDER OF COURT
AND NOW, this 4th day of October, 2013, it is hereby ORDERED, ADJUDGED AND
DECREED as follows:

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Public Document located at www.cor.state.pa.us/DOC policies.
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IT IS ORDERED that the Objections filed by Plaintiff are OVERRULED and the
Report and Recommendation (ECF No. 59) is ADOPTED as the Opinion of the Court.
It is FURTHER ORDERED that Defendant’s motion to dismiss (ECF No. 41) is
GRANTED and Dr. Phillips is hereby DISMISSED from this lawsuit.

SO ORDERED this 4th day of October, 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
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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