BRADLEY v. MILLER et al

Filing 75

MEMORANDUM OPINION re 62 Motion for Summary Judgment filed by Defendant Dr. Domenick Dilio and 67 Motion for Summary Judgment filed by Defendant Warden Brian Miller. For the reasons discussed in the attached Memorandum Opinion, both motions will be granted. An appropriate Order will follow. Signed by Magistrate Judge Lisa Pupo Lenihan on 1/23/2017. (vad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
YVONNE I. BRADLEY (YATES)
Plaintiff,
v.
BRIAN MILLER, Warden, and
DR. DOMENICK DILIO
Defendants.

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Civil Action No. 14-1698

Magistrate Judge Lenihan

ECF Nos. 62 & 67

MEMORANDUM OPINION

LENIHAN, M.J.
Presently before the Court are Motions for Summary Judgement filed by Defendants Dr.
Domenick Dilio (ECF No. 62) and Warden Brian Miller (ECF No. 67). For the reasons
discussed below, both Motions will be granted.

FACTS
The following facts are undisputed unless otherwise indicated and are taken from the
parties’ Concise Statements of Facts and Responses thereto at ECF Nos. 64, 69 and 73. The
Court also relies on the exhibits attached to the parties’ respective briefs where appropriate. 1
Plaintiff Yvonne I. Bradley (Yates) (“Plaintiff”) proceeding pro se, brings this action
pursuant to 42 U.S.C. § 1983 arising out of Plaintiff’s incarceration at the Fayette County Prison
(“FCP”) between July 11, 2012 through April 2014. (ECF Nos. 64 & 73 ¶ 1.)

1

Evidence used to support a motion for summary judgment must be admissible, although it is not
necessary for it to be in admissible form on summary judgment. See Fed. R. Civ. P. 56(c) (2);
Celotex v. Catrett, 477 U.S. 317, 324 (1986); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d
1524, 1542 (3d Cir. 1990).

A.

Facts pertaining to Dr. Dominic DiLeo2

Upon entering FCP on July 11, 2012, Plaintiff underwent a health assessment and intake
screening. (ECF Nos. 64 & 73 ¶ 2.) A document entitled “Medical History and Physical Exam”
is dated July 12, 2012 and indicates that Plaintiff’s neck was normal with no indication of a
mass. The document also reflects, among other health assessments, Plaintiff’s temperature,
pulse, respirations and blood pressure. Plaintiff denies that a physical took place on that date
because she only provided answers to questions asked of her. (ECF Nos. 64 & 73 ¶ 3.)
Plaintiff was housed at the Green County Jail from August 2012 until November 2012.
(ECF Nos. 69 & 73 ¶ 22.)
Upon return to FCP, another document entitled “Annual History & Physical” dated July
8, 2013, includes the same information as noted above along with a result for blood glucose
testing. Again, Plaintiff denies that a physical examination by Dr. DiLeo took place on that date
because she only provided answers to questions asked of her. (ECF Nos. 64 & 73 ¶ 4.)
Thereafter, in September 2013, Plaintiff was committed to Torrance State Hospital and
remained in that institution through December 23, 2013, when she was discharged back to FCP.
(ECF Nos. 64 & 73 ¶ 5; ECF Nos. 69 & 73 ¶ 23.) When Plaintiff returned to FCP in December
2013, the women’s quarters had been moved upstairs. (ECF Nos. 69 & 73 ¶ 24.)
On February 11, 2014, Plaintiff was seen by the medical unit for complaints of chest
pain, headache and a lump on the left side of the neck, below the jaw. (ECF Nos. 64 & 73 ¶ 6.)
According to medical notes, Plaintiff had a lump on the left side of her neck which had been
ongoing for the past two months. The notes further indicate that the mass measured “2cm x 2
cm” and was non-tender. Plaintiff denies the above in part, but does not indicate any basis for
Defendant’s name appears to be misspelled in the caption. The Court will use the spelling as
presented by Defendant in his submissions to the Court, which is Dominic DiLeo.
2

2

the denial, nor does she include an appropriate reference to the record that might reflect her basis
for partial denial.3 (ECF Nos. 64 & 73 ¶ 7.)
Plaintiff underwent mobile x-rays which showed a soft tissue abnormality in the left
neck. Plaintiff was prescribed an antibiotic, Cephalexin, 500 milligrams. On that same day, Dr.
DiLeo ordered a comprehensive metabolic panel and CBC. Plaintiff also underwent an
ultrasound of the left-side neck lump on February 12, 2014. The ultrasound showed that the
mass measured 2.8 centimeters at the greatest diameter and showed some vascularity. It was
recommended that the Plaintiff undergo a CT scan for further evaluation. Plaintiff presented for
a general sick call on February 18, 2014. Dr. Dileo noted that the neck mass appeared to have
decreased in size with antibiotics. Plaintiff was ordered to undergo a CT scan of the neck on
February 28, 2014. Plaintiff admits the above in part, stating that Dr. DiLeo infers that the mass
grew in two (2) weeks. (ECF Nos. 64 & 73 ¶¶ 8-11.)
On February 28, 2014, the CT scan of Plaintiff’s neck was performed at Uniontown
Hospital. The CT scan noted that the lump did not appear to invade the surrounding fat planes
and appeared to be benign. The report noted that the lump may represent a pleomorphic
adenoma or an enlarged lymph node. On April 1, 2014, Plaintiff was seen at a general sick call
for a follow up with regard to the mass on her neck. Dr. DiLeo indicated that the mass was
apparently either a lymph node or a pleomorphic adenoma. It was also noted that the left neck
mass was now “1 cm x 1 cm,” which was smaller than the prior evaluation. On April 22, 2014
Plaintiff had a follow-up appointment with Dr. DiLeo in regard to the left submandibular cyst.

3

The Local Rules of Court for the Western District of Pennsylvania require that a Responsive
Concise Statement of Material Facts indicate the basis for the denial of any fact contained in the
moving party’s Concise Statement of Material Facts that is not admitted in its entirety, with
appropriate reference to the record. LCvR 56 C.1.b. In this Court’s Order at ECF No. 66,
Plaintiff was informed of this requirement, and all requirements on summary judgment.
3

Examination of the neck showed an abnormal submandibular mass which was unchanged. It
was also noted that the Plaintiff was to be transferred to SCI-Pittsburgh, and it was recommended
that she see an ENT after transfer. Plaintiff was thereafter transferred from FCP. Plaintiff denies
the above in part, but does not indicate any basis for the denial, nor does she include an
appropriate reference to the record that might reflect her basis for partial denial. (ECF Nos. 64 &
73 ¶¶ 12-15.)
In her deposition, Plaintiff admits that she was seen and evaluated by Dr. DiLeo on
several occasions; that two rounds of medication were ordered for treatment of the lump; that she
received a “scan” off site at Uniontown Hospital that was ordered by Dr. DiLeo; that Dr. DiLeo
followed-up with Plaintiff after the scan; that he advised her as to the condition of the lump; that
she was sent out for a second round of diagnostic studies for a possible x-ray or other scan; that
she was provided a diagnosis from Dr. DiLeo that the lump was benign; and that she was seen by
him in April 2014 in reference to the condition of the lump, shortly before she was transferred
from FCP. (Bradley Deposition, ECF No.65-9 at 9-11.) [hereinafter “ECF No. 65-9 at __”].
Finally, the Court notes that in her Second Amended Complaint, Plaintiff avers that she
“has gone through rigorous cancer treatments due to Dr. Dileo’s [] proven negligence.” (Second
Amended Complaint, ECF No. 36 ¶ 13.) [hereinafter “ECF No. 36 ¶ __”].
B.

Facts Pertaining to Warden Brian Miller
Facts relating to Plaintiff’s Access to the Courts Claim

Plaintiff entered FCP in July 2012 on charges relating to the fraudulent sale of a vehicle
and a separate action for kidnapping. (ECF Nos. 69 & 73 ¶ 1.) When Plaintiff was arrested in
connection with these charges, she had $5,237.00 in cash on her person. The money was seized
as evidence. (ECF Nos. 69 & 73 ¶ 2.)

4

On August 13, 2012, Plaintiff sought use of the law library. The request was approved
and she was permitted to use the library on August 15, 2012. Plaintiff denies this statement in
part indicating that a 30 minute usage of the library in 20 months was hardly adequate. (ECF
Nos. 69 & 73 ¶ 3.)
On January 22, 2013, bail was set and the criminal information was filed against Plaintiff
for Theft by Deception, among other charges, in the Court of Common Pleas of Fayette County
relating to the fraudulent sale of a vehicle. It was alleged, inter alia, that Plaintiff defrauded
victim Paula Marie Thorpe out of about $11,000 in connection with the sale. (ECF Nos. 69 & 73
¶ 4.)
On March 26, 2013, the Court appointed public defender Jeffrey Whiteko (“Whiteko”)
to represent Plaintiff in this matter until another attorney hired by Plaintiff could enter his/her
appearance. (ECF No. 70-3 at 8.) On April 30, 2013, Whiteko petitioned the Court for an
evaluation of Plaintiff’s competency and the pretrial conference was continued. In response to
Plaintiff’s counsel’s motion, the Court ordered that Plaintiff be evaluated at Torrance State
Mental Hospital. On August 23, 2013, the Court determined that Plaintiff was not competent to
stand trial and that Plaintiff was to receive inpatient treatment at Torrance. (ECF Nos. 69 & 73 ¶
6.) Thereafter, Plaintiff was transferred to Torrance State Mental Hospital from September
through December 2013. She was then transferred back to FCP and was deemed competent for
trial at that time. (ECF Nos. 69 & 73 ¶ 7.)
On December 31, 2013, Paula Thorpe filed a Motion for Return of Evidence, seeking the
money she gave to Plaintiff during the course of the theft. This Motion was denied without
prejudice on the basis that the money was evidence in the criminal case and could be paid back
as restitution. (ECF Nos. 69 & 73 ¶ 8.)

5

During the trial, Plaintiff was represented by the Public Defender’s Office. (ECF Nos. 69
& 73 ¶ 9.) On February 5, 2014, Plaintiff was found guilty by a jury on all charges. On the
claim of Theft by Deception, the jury found that Plaintiff had defrauded in the amount of
$11,000. (ECF Nos. 69 & 73 ¶ 10.)
On February 13, 2014, Judge Joseph M. George, Jr. imposed sentencing on Plaintiff in
relation to the conviction for Theft by Deception. Plaintiff was sentenced to make restitution in
the amount of $10, 663.88 to victim Paula Marie Thorpe. (ECF Nos. 69 & 73 ¶ 11.) During
sentencing, Plaintiff was represented by the Public Defender’s Office. (ECF Nos. 69 & 73 ¶ 12.)
The Court ordered that the amount of $5,237.00 found on Plaintiff at the time of the crime be
returned to Thorpe and be considered partial restitution. Plaintiff denies this statement in part
but does not indicate any basis for the denial, nor does she include an appropriate reference to the
record that might reflect her basis for partial denial. (ECF Nos. 69 & 73 ¶ 13.)
Plaintiff has appealed her conviction and sentence both through post-trial motions and to
the appellate court. Throughout these proceedings and currently, Plaintiff was and is represented
by the Public Defender’s Office. Her conviction still stands. In response to an interrogatory as
to what “personal property” she allegedly lost as a result of purportedly inadequate law library
access, Plaintiff indicated that she:
asked continually to use the law-library services to prepare for case
#112-2013 as well as the self-attempted representation of the posttrial motions. Plaintiff was not able to prepare informative
motions to obtain relief and validate claims and facts relevant to
Plaintiff’s innocence. Plaintiff loss [sic] $5,327.00 to Paula
Thorpe in Fayette Court at [the order of] Honorable Joe George.”

6

(ECF No. 69 ¶ 15.) Plaintiff denies the above in part but does not indicate any basis for the
denial, nor does she include an appropriate reference to the record that might reflect her basis for
partial denial. (ECF Nos. 69 & 73 ¶¶ 14-15.)
Facts Pertaining to Plaintiff’s Conditions of Confinement Claims
At FCP, cells and bathrooms are cleaned by inmates. Inmates are assigned as cleaning
personnel and will earn $4.50 per week for cleaning. Inmates are responsible for cleaning their
own space.
Plaintiff testified that upon undergoing a medical exam during initial processing into the
jail, the intake officer did not always check inmates upon arrival for lice. Plaintiff further
testified that if an inmate was found to have lice, the jail staff would disinfect the area and treat
the inmates with lice medication. The jail used this procedure to ensure that lice would not
spread to the other inmates if one inmate was infected. Plaintiff indicated that she does not know
if she ever caught lice while in the jail.
While being held in the women’s quarters in the basement of FCP from July 2012 and
during the beginning of her incarceration, Plaintiff described that there were at least 6 toilets
available for the women inmates to use.
Plaintiff denies all the facts in the above three (3) paragraphs but does not indicate any
basis for the denials, nor does she include an appropriate reference to the record that might
reflect her bases for the denials. (ECF Nos. 69 & 73 ¶¶ 16-21.)
Plaintiff testified that she began staying in the upstairs housing at FCP in December 2013
and remained there until she was transferred out of FCP in April 2014. Plaintiff testified that on
one occasion, while in the upstairs housing, another inmate, who was detoxing in the middle of
the night, defecated in the shower while another inmate was using the toilet. The inmate was

7

only in the jail for an hour or two when the accident occurred. The mess in the shower was
cleaned up that night.
Plaintiff also testified that she received a mattress and a small blanket upon arriving at the
prison in the summer of 2012. She indicated that she received a larger blanket at some point
during her stay at FCP. Plaintiff further testified that at times, she stayed in bunk beds. Plaintiff
indicated that within 4 days of arriving at the jail in July 2012, she received a sheet from an
inmate who was leaving the facility. She washed the sheet in the shower of the prison and hung
it to dry. She used this sheet to cover the mattress. In her answers to interrogatories, Plaintiff
indicated that she used this sheet for the next year and a half. During her deposition, however,
she testified that a corrections officer immediately took the sheet from her upon seeing that she
received the sheet from another inmate. Plaintiff denies all of the above in part, but does not
indicate any bases for the partial denials, nor does she include an appropriate reference to the
record that might reflect her bases for the denials. (ECF Nos. 69 & 73 ¶¶ 25-33.)
Plaintiff further testified that there were insects in the cells and that Correctional Officer
Prinky would spray the cells at night with bug spray. (ECF Nos. 69 & 73 ¶¶ 34-35.)
She also testified she saw a mouse twice while housed at FCP. Plaintiff indicated that
she saw a mouse in the cell area. In this instance, the women inmates were evacuated from the
cells and put in the chapel so that officers could catch the mouse. In addition, Plaintiff saw a
mouse on one of the cafeteria trays and the tray was sent back to the kitchen. Plaintiff denies all
of the above in part, but does not indicate any bases for the partial denials, nor does she include
an appropriate reference to the record that might reflect her bases for the denials. (ECF Nos. 69
& 73 ¶¶ 36-39.)

8

LEGAL STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving
party, the pleadings, documents, electronically stored information, depositions, answers to
interrogatories and admissions on file, together with any affidavits or declarations, show “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56 (a) & (c). Summary judgment may be granted against a party
who fails to adduce facts sufficient to establish the existence of any element essential to that
party’s case, and for which that party will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying
evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant
must show that the evidence of record is insufficient to carry the non- movant’s burden of proof.
Id. Once that burden has been met, the nonmoving party must set forth “specific facts showing
that there is a genuine issue for trial” or the factual record will be taken as presented by the
moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis added
by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242,
248 (1986). In Anderson, the United States Supreme Court noted the following:
[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial. . . .
[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.

Id. at 249-50 (internal citations omitted).
9

ANALYSIS
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or any other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate
that the conduct in the complaint was committed by a person or entity acting under color of state
law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the
Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36
F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a
remedy for violations of those rights created by the United States Constitution or federal law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Dr. Domenick DiLeo
In support of his motion for summary judgment, Dr. DiLeo argues that record evidence
demonstrates that he was not deliberately indifferent to Plaintiff’s medical needs. (ECF No. 63
at 8-9.) Plaintiff responds that Defendants’ conduct . . . [was] reckless, callous, intentional and
malicious” and that “Defendants’ actions and intentional inactions have and continue to cause
Plaintiff physical and emotional harm.” (ECF No. 74-1 at 1.)
In Estelle v. Gamble, the United States Supreme Court noted that the most elementary
principles underlying Eighth Amendment constitutional jurisprudence “establish the
government=s obligation to provide medical care for those whom it is punishing by
10

incarceration.” 429 U.S. 97, 103 (1976).4 The Estelle Court concluded that the Eighth
Amendment prohibits the deliberate indifference to serious medical needs of prisoners. Id. at
104. The Court continued that a cause of action under § 1983 is thereby established “whether the
indifference is manifested by prison doctors in their response to the prisoner=s needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally interfering
with the treatment once prescribed.” Id. at 104-05 (footnotes omitted).
It was not until 1994, however, in Farmer v. Brennan, that the United States Supreme
Court clarified its meaning of the term “deliberate indifference.” 511 U.S. 825 (1994). In
Farmer, the Court held as follows:
We hold instead that a prison official cannot be found liable under
the Eighth Amendment . . . unless the official knows of and
disregards an excessive risk to inmate health or safety; the official
must both 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. . . . But an official=s failure to alleviate a
significant risk that he should have perceived but did not, while no
cause for commendation, cannot under our cases be condemned as
the infliction of punishment.
Id. at 837-38. The Farmer Court also discussed its reasoning in Estelle, noting that negligence in
diagnosing or treating the medical conditions of prisoners will not rise to the level of an Eighth
Amendment violation. Farmer, 511 U.S. at 835 (quoting Estelle, 429 U.S. at 106).
Conversely, a plaintiff must also demonstrate a medical need that is objectively
4

Although Plaintiff was a pretrial detainee during the majority of the relevant time period,
claims of denial of medical treatment by pretrial detainees are “evaluate[d] . . . under the Due
Process Clause of the Fourteenth Amendment, which prohibits the defendants from undertaking
acts that amount to punishment.” Thrower v. Alvies, 425 F. App’x 102, 104 (3d Cir. 2011)
(citing Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005)). However, the Third Circuit has
held that the “Due Process Clause provides pretrial detainees with at least as much protection as
is afforded to prisoners raising denial-of-medical-treatment claims under the Eighth
Amendment.” Id. at 105 (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581-82
(3d Cir. 2003)).
11

“sufficiently serious.” A medical need is “serious” if it is one that has been diagnosed by a
physician as mandating treatment, or one that is so obvious that even a lay person easily would
recognize the necessity for a doctor=s attention. Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
The parties do not dispute that Plaintiff’s medical needs, objectively, were “sufficiently
serious.” The dispute arises with regard to the subjective inquiry, that is, whether Defendant Dr.
DiLeo was deliberately indifferent to Plaintif’s medical needs. Plaintiff has come forward with
no evidence to raise a disputed issue of material fact as to whether Dr. DiLeo acted with “a
sufficiently culpable state of mind.” See Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.
2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). That is, there is no record evidence to
suggest that Dr. DiLeo was subjectively aware that Plaintiff faced a “substantial risk of serious
harm,” and then disregarded it.
Instead, the medical records reflect that Dr. DiLeo did not become aware of a medical
issue concerning Plaintiff’s neck until February 11, 2014, when she first complained of the
“lump in her left neck for past two months.” (ECF No. 65-5 at 3.) Plaintiff had just been
transferred back to FCP from Torrance State Hospital on December 23, 2013, and there is no
indication in the Torrance State Hospital records that the Plaintiff complained of a lump in the
neck or that a lump in the neck was assessed. (ECF No. 65-4 at 2-18.) After Dr. DiLeo became
aware of the lump, he prescribed medication and ordered x-rays. Also on February 11, 2014, Dr.
DiLeo ordered a comprehensive metabolic panel and CBC. The next day, Plaintiff underwent an
ultrasound on the lump. (ECF No. 65-7 at 2.) The final ultra sound report recommended a CT
scan. (Id.) On February 18, 2014 Plaintiff presented for a general sick call wherein Dr. DiLeo
noted that the neck mass appeared to have decreased in size with the antibiotics. Ten (10 days)

12

later, however, the recommended CT scan was performed on Plaintiff’s neck at Uniontown
Hospital and revealed that the lump appeared to be benign. Dr. DiLeo examined Plaintiff on
April 1, 2014 and noted that the mass was smaller than the prior evaluation. A follow-up
appointment on April 22, 2014 showed an abnormal submandibular mass which was unchanged.
Dr. DiLeo recommended that Plaintiff see an ENT after her anticipated transfer. Clearly, the
summary judgment record in no way reflects that Dr. DiLeo was subjectively aware that Plaintiff
faced a substantial risk of serious harm and then disregarded it.
Although Plaintiff avers that she has suffered because of Dr. DiLeo’s negligence,
negligence is simply not enough to impose liability pursuant to 42 U.S.C. § 1983 and a claim for
deliberate indifference to the serious medical needs of prisoners. See Farmer, 511 U.S. at 835.
That is, the fact that Dr. DiLeo did not “alleviate a significant risk” to Plaintiff which she
believes he should have perceived but did not, will not make out a constitutional violation. See
Farmer, 511 U.S. at 837-38.
Brian Miller
Access to the Courts
Plaintiff’s First Amendment access to the courts claim is premised upon her allegation
that she “was not able to prepare for a pre-trial proceeding as she was not permitted to use the
law library which resulted in loss of personal property.” (ECF No. 36 ¶ 10.) In response to
interrogatories, Plaintiff clarified her alleged loss of personal property as follows:
Plaintiff asked continually to use the law-library services to
prepare for case #112-2013 as well as well as the self-attempted
representation of the post-trial motions. Plaintiff was not able to
prepare informative motions to obtain relief and validate claims
and facts relevant to Plaintiff’s innocence. Plaintiff loss [sic]
$5,327.00 to Paula Thorpe in Fayette Court at [sic] Honorable
George.

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(Plaintiff’s Answers to Interrogatories and requests for Production of Documents Directed to
Plaintiff, Exhibit E, ECF No. 70-5, Interrog. No. 6.)
In support of his Motion for Summary Judgment on this claim, Defendant Miller argues
that because Plaintiff was represented by counsel at all material times in the underlying criminal
case, whether she had access to a law library is irrelevant. (ECF No. 68 at 4.)
Since 1977, the United States Supreme Court has recognized that inmates have a
constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). As the
Supreme Court initially observed, this right of access to the courts is satisfied when corrections
officials facilitate “meaningful” access for those incarcerated, either through legal materials or
the assistance of those trained in the law. Id. at 827 (“[T]he fundamental constitutional right of
access to the courts requires prison authorities to assist inmates in the preparation and filing or
meaning legal papers by providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.”). Two decades later, in 1996, the Supreme Court provided
further definition and guidance regarding the scope and nature of this right of access to the courts
in Lewis v. Casey, 518 U.S. 343 (1996). In Lewis, the Court eschewed efforts to define this right
in abstract, or theoretical terms, but rather cautioned courts to focus on concrete outcomes when
assessing such claims. As the court observed:
Because Bounds did not create an abstract, freestanding right to a
law library or legal assistance, an inmate cannot establish relevant
actual injury simply by establishing that his prison’s . . . legal
assistance program is subpar in some theoretical sense . . . .
Insofar as the right vindicated by Bounds is concerned,
“meaningful access to the courts is the touchstone,” id., at 823, 97
S. Ct., at 1495 (internal quotation marks omitted), and the inmate
therefore must go one step further and demonstrate that the alleged
shortcomings in the . . . legal assistance program hindered his
efforts to pursue a legal claim. Although Bounds itself made no
mention of an actual-injury requirement, it can hardly be thought
to have eliminated that constitutional prerequisite. And actual
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injury is apparent on the face of almost all the opinions in the 35year line of access-to-courts cases on which Bounds relied, see id.,
at 821-825, 97 S. Ct., at 1494-1497. Moreover, the assumption of
an actual-injury requirement seems to us implicit in the opinion’s
statement that “we encourage local experimentation” in various
methods of assuring access to the courts. Id., at 832, 97 S. Ct., at
1500.
Lewis, 518 U.S. at 351-52.
Thus, following Lewis, courts have consistently recognized two guiding principles which
animate access-to-court claims by prisoners. First, such claims require some proof of an actual,
concrete injury, in the form of direct prejudice to the plaintiff in the pursuit of some legal claim.
See, e.g., Oliver v. Fauver, 118 F.3d 175 (3d Cir. 1997); Demeter v Buskirk, No. 03-1005, 2003
WL 22139780 (E.D. Pa. Aug. 27, 2003); Castro v. Chesney, No. 97-4983, 1998 WL 150961
(E.D. Pa. March 31, 1998). Second, consistent with the Supreme Court’s express view that “‘we
encourage local experimentation’ in various methods of assuring access to the courts,” Lewis,
518 U.S. at 352, courts have long recognized that public officials have significant discretion in
the field and can provide meaningful access to the courts through a wide variety of means. See,
e.g., Peterkin v. Jeffes, 855 F.2d 1021, 1042 (3d Cir. 1988) (construing “Bounds to hold that the
provision of lawyers is one means by which a state may provide prisoners with meaningful
access to the courts); Hester v. Morgan, No. 10-309, 2010 WL 3907770, *3 (D. Del. Sept. 29,
2010) (“The fact that Plaintiff has appointed counsel belies his claim that he is denied
meaningful access to the courts.”); Tinsley v. Del Rosso, No. 08-1251, 2008 WL 2236598 (D.
N.J. May 30, 2008) (same) (collecting cases); Annis v. Fayette County Jail, No. 07-1628, 2008
WL 763735, *2 (W.D. Pa. March 20, 2008) (once plaintiff given counsel, total denial of access
to law library will not constitute denial of access to courts) (citing Rogers v. Thomas, No. 94-

15

4692, 1995 WL 70548, at *2 (E.D. Pa. Feb. 17, 1995), aff’d, 65 F.3d 165 (3d Cir. 1995) (Table));
Hunter v. Schouppe, No. 06-1023, 2007 WL 120030 (W.D. Pa. Jan. 10, 2007) (same).
Here, Plaintiff’s claim fails as a matter of law because the record reflects that she was
provided with counsel during pretrial, jury trial, and sentencing proceedings in the underlying
criminal action where she was ordered to make restitution. See Court of Common Pleas of
Fayette County Docket Sheet, CP-26-CR-0000112-2013, Exhibit C, ECF No. 70-3 at 1-24
[hereinafter “ECF No. 70-3 at __”]. That is, a state can fully discharge its obligation to provide a
prisoner with access to the courts by appointing counsel. Lindsey v. Shaffer, 411 F. App’x 466,
469 (3d Cir. 2011) (citing Peterkin, 855 F.2d at 1042).5
For the reasons discussed above, Defendant Miller’s Motion for Summary Judgment on
Plaintiff’s First Amendment access to the courts claim will be granted.

Conditions of Confinement
As to Defendant Miller, Plaintiff’s remaining claims concern conditions of confinement.
Specifically, Plaintiff was allegedly “plagued by lice twice, exposed to tuberculosis, as well as
continual rashes due to the overcrowding in quarters alongside residents who weren’t cleared for
general population.” (ECF No. 36 ¶ 8.) Plaintiff further avers that she “utilized newspaper as
bedding until another inmate was released, at which time Plaintiff washed a sheet as clean linen
was not provided.” (ECF No. 36 ¶ 9.) Plaintiff also alleges that she “was constantly at war with
cockroaches.” (ECF No. 36 ¶ 14.) Finally, Plaintiff claims that she “waited almost 4 hours to
use the bathroom because the only one that was available to the 30-40 women was defiled by a

5

Of course, Plaintiff’s claim for denial of access to the courts is barred by the doctrine of Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994) (damages remedy that necessarily implies the invalidity
of a criminal conviction is impermissible while that conviction stands).
16

resident who was ‘detoxing’ and was in the process of vomiting and defecating.” (ECF No. 36 ¶
12.)
Because Plaintiff was a pretrial detainee during the majority of the time relevant to her
conditions of confinement claims, the Court will analyze her claims under the Due Process
Clause of the Fourteenth Amendment. Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005)
(Hubbard I). “Under the Fourteenth Amendment, when a pretrial detainee complains about the
conditions of his confinement, courts are to consider whether the conditions ‘amount to
punishment prior to an adjudication of guilt in accordance with law.’” Mohorcic v. Hogue, No.
CIV. A. 11-575, 2013 WL 6118693, at *2 (W.D. Pa. Nov. 21, 2013) (citing Hubbard I at 158).
In making such a determination, the court must ask (1) whether any legitimate purposes are
served by the conditions at issue, and (2) whether those conditions are rationally related to those
purposes. Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008) (Hubbard II) (quoting Union
County Jail Inmates v. Pi Buono, 713 F.2d 984, 992 (3d Cir. 1983)). If a particular condition of
pretrial detention is “reasonably related to a legitimate government objective, it does not, without
more, amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 539 (1979). If a condition is
arbitrary or purposeless, and thus not reasonably related to a legitimate goal, a court may infer its
purpose is punishment. Id.
The summary judgment record fails to support a conditions of confinement claim based
upon the existence of pests or rodents. While unsanitary living conditions may give rise to a
conditions of confinement claim, the conditions described here do not rise to a level that is
constitutionally impermissible. See Thomas v. SCI-Graterford, Civil Action No. 11-6799, 2014
WL 550555, at *4 (E.D. Pa. Feb. 12, 2014) (holding exposure to mice, insects and mold in a cell
for two weeks was not a constitutionally impermissible condition); Hill v. Smith, No. 4:05-CV-

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1724, 2005 WL 2666597, at *7 (M.D. Pa. Oct. 19, 2005) (holding that the presence of mice and
cockroaches, while uncomfortable, did not pose a serious health risk to the plaintiff and did not
by themselves articulate an unconstitutional situation). Plaintiff has failed to allege or come
forward with evidence that these conditions jeopardized or potentially jeopardized her health.
See Mitchell v. Dodrill, 696 F. Supp.2d 454, 467 (M.D. Pa. 2010). The prison sprayed for pests,
and responded quickly to catch mice when they were spotted by inmates. (ECF No. 65-9 at 3839.) Similarly, any alleged presence of mold in the cells does not give rise to a constitutional
violation where no health problems have been alleged as a result of the mold. (Id. at 43.)
Likewise, Plaintiff’s complaints about her lack of a bed sheet do not rise to the level of a
constitutional violation. Plaintiff alleges that she was not issued clean linen upon entry to FCP,
and was forced to utilize newspaper as bedding. (ECF No. 36 ¶ 9.) Plaintiff, however, gave
differing statements in her deposition and answers to interrogatories. In deposition, Plaintiff
testified that she received half a blanket, and two days later, a sheet from another inmate that she
washed and used until it was taken from her by a prison official who saw that she had a sheet
after just arriving at FCP in July 2012. Eventually she traded her half-blanket for a full size
blanket when another inmate left. (ECF No. 65-9 at 36-37.) In response to interrogatories,
Plaintiff indicated that she waited 4 to 6 days for a sheet from another inmate that Plaintiff
washed and used for the next year and a half. (Exhibit E, ECF No. 70-5 at 4.) In either event,
while admittedly not ideal, the denial of a sheet for a short period of time does not rise to the
level of a constitutional violation. See Gutridge v. Chesney, No. CIV. A. 97-3441, 1998 WL
248913, at * 1 (E.D. Pa. May 8, 1998) (failure to provide blanket for a month and a half from
mid-April until early June was not constitutional violation); Lane v. Culp, Civil Action No. 05576, 2007 WL 954101, at *5 (W.D. Pa. Mar. 28, 2007) (denial of bedding for a period of 7 days

18

does not rise to the level of a constitutional violation). Plaintiff comes forward with no evidence
that she was harmed as a result of her complaints regarding bedding.
The Court also finds that Plaintiff has failed to raise a genuine issue of fact as to her
bathroom access claim. Plaintiff complains that she once “waited almost 4 hours to use the
bathroom because the only one that was available to the 30-40 women was defiled by a resident
who was ‘detoxing.’” (ECF No. 36 ¶ 12.) The conditions that Plaintiff describes do not appear
to be “particularly dehumanizing,” result in unsanitary conditions, or endanger the health of
residents so as to mark unconstitutional conditions. See Lindsey v. Shaffer, 411 F. App’x 466,
468 (3d Cir. 2011). Instead, Plaintiff testified that there were at least 6 toilets when the women’s
quarters were in their original location in the lower level of FCP. (ECF No. 65-9 at 21.) When
she returned to FCP from Torrance State Hospital, women were held for a period of time in the
upstairs of the jail. Plaintiff comes forward with no evidence that she was harmed as a result of
her complaints regarding bathroom access. In fact, the particular incident involving a detoxing
inmate was not caused by Defendant and was resolved that same evening. An isolated incident
and sharing of facilities will not give rise to a constitutional violation. See Lindsey, 411 F. App’x
at 468 (one toilet shared by all inmates in unit did not harm prisoner and did not rise to
constitutional violation).
Finally, Plaintiff fails to come forward with any evidence that she was “plagued by lice
twice, exposed to tuberculosis, as well as continual rashes due to the overcrowding in quarters
alongside residents who weren’t cleared for general population.” (ECF No. 36 ¶ 8.) Plaintiff
comes forward with no evidence that another inmate had tuberculosis, testifying only that the
inmate was “coughing all over the place.” (ECF No. 65-9 at 141-42.) Plaintiff did not contract
tuberculosis while in jail or after she left FCP in April 2014. Similarly, jail records do not reflect

19

that Plaintiff was infested with lice. Instead, contrary to her allegations in the Second Amended
Complaint, Plaintiff testified that she does not know if she ever caught lice while in FCP. (ECF
No. 65-9 at 142.) Plaintiff further testified that if an inmate was found to have lice, the jail staff
would take measures to address the problem with medication and cleaning. (ECF No. 65-9 at
142.) Most importantly, Plaintiff testified that inmates would be housed before being medically
cleared only on isolated occasions when medical was not on site in the middle of the night.
(ECF No. 65-9 at 37.) Plaintiff comes forward with no evidence that the practice or custom at
FCP was to provide no medical screening of incoming inmates by medical personnel.6 Contrary
to Plaintiff’s allegations, and considering the totality of circumstances within FCP, the record
reflects that the complained of conditions reflect no intent to punish by FCP. See Ramsier v.
Allegheny County, Civil Action No. 15-539, 2016 WL 890603, at *4-5 (W.D. Pa. Mar. 9, 2016)
(citing Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007)). Therefore, judgment as a matter of
law is appropriate on this issue.
Viewing the record in a light most favorable to Plaintiff, the Court concludes that
Plaintiff has failed to come forward with evidence to raise a genuine issue of fact that the
conditions alleged by Plaintiff amounted to punishment prior to adjudication of guilt. The
conditions suffered by Plaintiff, while uncomfortable, do not constitute a violation of due process
under the Fourteenth Amendment. Therefore, the Court will grant Defendant Miller’s Motion
for Summary Judgment on Plaintiff’s conditions of confinement claims.

6

But see Lareau v. Manson, 651 F.2d 96, 102, 109 (2d Cir. 1981) (practice of providing no
screening of any incoming inmates by medical personnel violated constitutional rights of pretrial
detainees and convicted prisoners).
20

Personal Involvement
Finally, the record reflects that Plaintiff attempts to hold Warden Miller liable on the
basis of the doctrine of respondeat superior. Plaintiff testified that she never spoke with
Defendant Miller and it appears that she seeks to hold him liable because he was in charge of
FCP. (ECF No. 65-9 at 34.) The law is clear, however, that “‘[an] individual government
defendant in a civil rights action must have personal involvement in the alleged wrongdoing;
liability cannot be predicated solely on the operation of respondeat superior. Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence.’” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). The Court could uncover no references to
Defendant Miller in the summary judgment record other than the deposition excerpt referenced
above, and Plaintiff has directed the Court to none. Without more, Plaintiff has failed to raise a
genuine issue of material fact as to the personal involvement of Defendant Miller “in the alleged
wrongdoing.” See Evancho, 423 F.3d at 353. Therefore, Defendant Miller’s Motion for
Summary Judgment will be granted on this basis as well.

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CONCLUSION
For the reasons discussed above, the Motions for Summary Judgement filed by
Defendants Dr. Domenick Dilio (ECF No. 62) and Warden Brian Miller (ECF No. 67) will be
granted.

An appropriate Order will follow.
Dated: January 23, 2017
BY THE COURT

s/ Lisa Pupo Lenihan
LISA PUPO LENIHAN
United States Magistrate Judge

cc:

Yvonne I. Bradley (Yates)
OY 1131
SCI Cambridge Springs
451 Fullerton Avenue
Cambridge Springs, PA 16403

All counsel of record
Via electronic filing

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