MCCLUSKEY v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 74

ORDER granting Defendants' Motions for Summary Judgment (Docs. 54 & 61 ). Signed by Judge Cathy Bissoon on 6/7/11. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIAN MCCLUSKEY,
Plaintiff,
v.
SUPERINTENDENT MARDI
VINCENT, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 09-215J
Magistrate Judge Bissoon

ORDER
For the reasons that follow, Defendants’ Motions for Summary Judgment (Docs. 54
and 61) will be granted.
Plaintiff has filed this prisoner civil rights case, pro se, claiming violations of the Eighth
Amendment. Plaintiff’s alleges that, as a result of poor conditions of confinement, he contracted
Methicillin Resistant Staphylococcus Aureas (“MRSA”), and he claims that his MRSA was
treated with deliberate indifference. See generally Compl. (Doc. 3).
Defendants have moved for summary judgment regarding deliberate indifference, arguing
that Plaintiff’s complaints regarding the treatment of his MRSA reflect a mere difference of
opinion between himself and that of Defendants’ medical professionals, and that, at most,
Plaintiff’s allegations amount to negligence or medical malpractice, which fall short of deliberate
indifference. See, e.g., Defs.’ Br. (Doc. 62) at 32-34. The Court agrees.
Defendants’ evidence demonstrates that, between the time Plaintiff allegedly contracted
MRSA in September, 2007, and when the condition was addressed to his satisfaction in July,
2008, Plaintiff was treated numerous times, through various regimens, on a regular basis.

See id. at 3-11 (summarizing, with record citations, Plaintiff’s treatment for skin conditions/
MRSA on September 7, 14 and 28, 2007; October 15 and 31, 2007; November 8, 26, 28 and 30,
2007; December 3, 6, 13, 14, 17 and 31, 2007; January 7, 11, 14, 15, 16 and 31, 2008;
February 18, 19, 23, 25 and 27, 2008; March 4, 7, 10, 11, 12, 13, 14, 16, 17, 18, 21, 24, 25, 28
and 30, 2008; April 4, 7, 15, 18 and 27, 2008; May 11, 12 and 27, 2008; June 2, 11, 18, 19, 23
and 30, 2008; and July 1, 2008).1 While Plaintiff may believe that more effective treatment
could have been provided earlier, he has offered no evidence demonstrating that the detailed,
ongoing care provided by Defendants was insufficient. Compare Pl.’s Opp’n Br. (Doc. 58) at 2
(claiming that treatment regimens were “ineffective,” and that “proper medical treatment was
delayed” for over nine months) with, e.g., Defs.’ Br. (Doc. 62) at 3-11 (summarizing numerous
medications and treatment modalities prescribed for Plaintiff’s various conditions and
symptoms).2 Even if the Court assumes, while expressly declining to so hold, that Defendants’
treatment constituted negligence or medical malpractice, Plaintiff cannot show that Defendants’

Although Plaintiff claims to have suffered a continuous, active MRSA infection, Defendants
have presented evidence indicating that he suffered multiple skin conditions that responded,
to varying degrees, to treatment. See Defs.’ Br. (Doc. 55) at 10 & n.3 (citing record evidence);
see also id. (Plaintiff’s longstanding treatment notwithstanding, presence of MRSA was only
detected in February 2008). Given the dearth of evidence to the contrary, Plaintiff can only
speculate regarding when he first suffered an active MRSA infection. Similarly speculative is
Plaintiff’s suggestion that Defendants were negligent in failing to detect the condition sooner.
2
Plaintiff offers no evidence to contradict Defendants’ properly-supported Motions for
Summary Judgment, relying instead on assertions in his briefs and an unsworn declaration.
McCullough v. Miller, 2009 WL 1416690, *2 (3d Cir. May 21, 2009) (“unsworn statements . . .
do not constitute evidence for purposes of summary judgment”) (citations to published,
binding authority omitted). Even had Plaintiff offered a sworn affidavit, there is nothing in his
current submissions, beyond his own layperson’s belief, to support his contention that
Defendants’ diagnosis and treatment of MRSA was inadequate. See Mitchell v. Gershen,
2011 WL 2134341, *2 (3d Cir. May 31, 2011) (affirming district court’s ruling that, in order to
pursue deliberate indifference claim based on objection to diagnosis and treatment of MRSA,
plaintiff was required to provide expert testimony “because the ability to diagnose [such an]
infection and determine the proper treatment and medication protocol is not readily apparent to
lay persons”) (citations to published, binding authority omitted).
1

2

acts or omissions rose to a level of deliberate indifference. See Mitchell, 2011 WL 2134341
at *2 (deliberate indifference “must entail more than mere allegations of malpractice,” and,
“[w]here a prisoner has received some medical attention and the dispute is over the adequacy of
the treatment, federal courts . . . generally [will not] second guess medical judgments and . . .
constitutionalize claims which sound in state tort law”) (citations to published, binding authority
omitted).
Plaintiff’s conditions of confinement claim fares no better. Plaintiff offers no evidence
regarding how or when he contracted MRSA, let alone that it resulted from unfit prison
conditions. See Low v. Cox, 2010 WL 2851160, *3 (D. S.C. Jun. 23, 2010) (summary judgment
appropriate where plaintiff offered only speculation in support of theory that MRSA infection
resulted from conditions of confinement), R&R adopted by dist. ct. in 2010 WL 2851167
(D. S.C. Jul. 15, 2010). The only competent evidence of record reveals that: none of Plaintiff’s
thirty-five cell/cube mates had MRSA; although a previous occupant of Plaintiff’s dormitory and
bed had been diagnosed with MRSA, he moved out over one year before Plaintiff moved in;
Plaintiff’s dormitory and bed had been used by several other occupants in the interim; and that,
consistent with DOC policy, the bed was cleaned and disinfected before each new inmate’s use.
See Defs.’ Br. (Doc. 55) at 4-5 (citing record evidence). Even assuming the DOC’s policies,
or Defendants’ implementation thereof, were less than fully effective, Plaintiff cannot meet his
high burden of showing that Defendants “were subjectively aware that the policies . . . were so
inadequate that they resulted in [Plaintiff] being exposed to a substantial risk of contracting
. . . MRSA.” Gallo v. Washington County, 2010 WL 318293, *3 (3d Cir. Jan. 28, 2010);
accord Malles v. Lehigh County, 639 F. Supp.2d 566, 581 (E.D. Pa. 2009) (holding same where

3

defendants “engaged in some efforts to stop the spread of the infection, even if they did not do
everything they could or planned to do”).3
Defendants have demonstrated their entitlement to summary judgment, and the Court
need not reach the other arguments presented in support of their Motions. Accordingly,
Defendants’ Motions for Summary Judgment (Doc. 54 and Doc. 61) are GRANTED.
IT IS SO ORDERED.

June 7, 2011

s/Cathy Bissoon
Cathy Bissoon
United States Magistrate Judge

cc (via ECF email notification):
All Counsel of Record
cc (via 1st Class U.S. Mail):
Brian Mccluskey (pro se)
GE-3337
SCI Laurel Highlands
5706 Glades Pike, Box 631
Somerset, PA 15501-0631

Plaintiff’s case is distinguishable from the one in Keller v. County of Bucks, 2006 WL
3779749 (3d Cir. Dec. 22, 2006). There, the Court of Appeals for the Third Circuit affirmed a
jury verdict in favor of prisoners who had contracted MRSA under “grossly inadequate”
conditions of confinement, as evidenced by widespread uncleanliness in the showers, food
handling and other common areas. See id. at *4-5; see also Gallo v. Washington County,
2009 WL 274500, *9 n.7 (W.D. Pa. Feb. 4, 2009) (distinguishing Keller). The Keller Court
highlighted the plaintiffs’ testimony that “filthy water [was] pooled in the showers, water seeped
into the cells, clean laundry was not always readily available, the mattresses were stained,
and mildew grew on walls covered in peeling paint.” Keller, 2006 WL 3779749 at *4.
The Third Circuit Court found that these facts “barely fulfill[ed] the minimum requirements of a
conditions of confinement claim,” and it cautioned that allowing claims to proceed under
“situations of even slightly lesser magnitude would likely be an abuse of discretion.” Id. at *5.
Plaintiff allegations do not even begin to approach those in Keller, and summary judgment is
appropriate.
3

4