PSM-207 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1463

___________

RUSSELL ALAN LATONA,

Appellant

v.

PRISON HEALTH SERVICES INC.; RENEE WNEK; SUSAN GEORGE; JOHN 

DOE#1; JOHN DOE#2; JOHN DOE#3

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. Civil Action No. 07-cv-00001 )

District Judge: Honorable Sean J. McLaughlin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 8, 2010

Before: FUENTES, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

(Opinion filed October 14, 2010)

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OPINION

___________

PER CURIAM

Russell Latona, proceeding pro se, appeals an order of the United States District 

Court for the Western District of Pennsylvania granting summary judgment in favor of 
1

Renee Wnek, Susan George, and Prison Health Services, Inc. in his civil rights action. 

Latona claims a violation of his Eighth Amendment rights based on a failure to provide 

medication and medical treatment while he was incarcerated. For the reasons discussed 

below, we will affirm the judgment of the District Court.1

The record reflects that Latona arrived at Erie County Prison on October 4, 2006. 

At 1:00 a.m. on October 5, 2006, Nurse Renee Wnek did a physical assessment of Latona 

and recorded his medical history. Wnek noted AGERD [gastroesophageal reflux 

disease],@ Aback pain/knee pain,@ and Ajaw/rib pain@ on his form, recorded six medications 

Latona was then taking for pain and psychiatric treatment, and noted a 2000 suicide 

attempt and treatment for Abi polar.@ Ex. 4 at 000101-02.2 Wnek also noted that 

Latona=s vital signs were normal, that he had fallen at work in August 2006, and that he 

had brought copies of his medical records, which she would review in the morning. 

Wnek completed a psychiatric referral form and recommended a bottom bunk due to 

Latona=s back injury and rib fractures. There is no evidence that Wnek had any further 

 

 

1As fully described in the Magistrate Judge=s report, this case has a lengthy 

procedural history and includes the filing of several amended complaints. Latona had 

also brought an Eighth Amendment excessive force claim, which was dismissed, and a 

First Amendment freedom of religion claim, which was withdrawn. Latona challenges 

only the grant of summary judgment on his medical claims as set forth in his Third 

Amended Complaint. 

 

2

Latona=s medical records, Exhibit 4 to the defendants= motion for summary 

judgment, were filed under seal in District Court. For ease of reference, we will refer to 

Ex. 4 and the applicable bates-stamp number.
2

contact with Latona.

Susan George, a Mental Health Counselor, also met with Latona on October 5, 

2006. George=s notes reflect that Latona told her that he needed his medications and that 

she intended to follow-up with the treatment team. Latona was placed on regular watch 

status, confined in an observation cell, and observed every thirty minutes. Latona=s 

housing plan document, which was signed by George, reflects that he would be placed 

Aon regular watch until seen for medication stabilization by Dr. Kohn.@ Ex. 4 at 000131.

The following day, the Mental Health Treatment Team, which included George, 

rejected Latona=s request for psychiatric services. The notice provided to Latona stated 

that there was Ano reason for psychiatric intervention at this time because: we have not 

yet received medical records verifying your reported diagnosis and treatment history.@ 

Ex. 4 at 000151. In an affidavit submitted in support of her motion for summary 

judgment, George attested that the medical records Latona had brought with him were 

from December 2005 and did not reflect his current treatment. George also stated that it 

was PHS policy that records be retrieved directly from an inmate=s provider.

Latona completed a medical request form on October 9, 2006, noting that he had 

been without his medications for six days. Latona further stated that the records that he 

brought with him to the prison did reflect his current medications and his existing injury. 

Latona recognized that officials told him they must verify his diagnosis, but he questioned 

why officials could not look at his medical records from his prior incarceration at the 
3

prison in January 2006.3 

On October 10, 2006, Latona submitted another medical request form stating that 

his mental health and medical problems, including esophagitis/reflux and knee, jaw, back, 

and rib pain, were getting worse. He wrote that he had been vomiting extremely hard 

late at night since October 6 and that he had reflux after each meal. Latona further stated 

that he needed his bi-polar medications as soon as possible. Latona also submitted a 

second medical request form that day, noting that he had been without his medications for 

esophagitis/reflux and his knee, jaw, back, and ribs for one week.

George met with Latona on October 10, 2006, and made a note to follow-up with 

AMedical Records; Inmate signed ROI [release of information] to expedite his services. 

Wants back on his psych meds badly.@ Ex. 4 at 000139. That same day, George was 

sent an email message from an individual named Bernice Smith stating:

 

 

3

The record reflects that Latona was incarcerated at the prison in January 2006. His 

medical records from his earlier incarceration show his diagnoses with bi-polar disorder 

and GERD and the various medications that he was taking at that time.

Mr. Latona got here on 10-05-06 and was seen by MHC on 10-05-06 per 

Dep. Warden Kinnane due to the fact that he was acting peculiar and had a 

prior attempted suicide by hanging in 2000. We >suspected= based upon his 

actions to err on the side of safety (if it was bizarre behavior due to drug 

usage) and I placed him on a withdrawal watch which would give the 

Medical Dept time to obtain his records (Even though he brought his 

records with him and they are in his property bin) and he would be able to 

safely come off of any street drugs that he may have in his system. I then 

saw Mr. Latona on 10-10-06 and he was getting angry due to the fact that 

no one has given him his medications. I re-explained to him that I must put 

him in front of Treatment Team and have him Okayed by Treatment Team 
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to see the Psychiatrist once I obtain the medical records. Well, 10/05/06 

was a Thursday, I faxed his records to New York and I didn=t get the 

records back until Monday [October 9] and this Friday is when he will be 

presented to Treatment Team. There is nothing I can do about this and Mr. 

Latona is threatening all kinds of silly things in his Request Slips because 

he thinks that I am ignoring him. I know that he wants his medication, he 

just needs to be patient. I am sure that Treatment Team will approve him 

but I can=t usurp the Treatment Team and place him on Dr. Kohn=s list.

Ex. 4 at 000133.

On October 11, 2006, a note signed by Nurse Perry stated that Latona had vomited 

large amounts of liquid into the toilet and complained of nausea. Latona told the nurse 

he had not received his Nexium or psychiatric medications since he arrived. Nurse Perry 

noted that Latona had a history of GERD and that he saw George earlier that day. Nurse 

Perry wrote that Latona appeared to be a Achronically mentally ill individual in [illegible] 

remission. Will try to get him seen medically later today.@ Ex. 4 at 000107.4

 

 

4On October 12, 2006, Latona received a response to his medical request forms from 

a different nurse stating that he had been placed on doctor=s call for his complaint of acid 

reflux. On October 13, 2006, Latona completed a medical request form at 11:30 p.m. 

stating that he again was getting sick after a meal or at bedtime because of the lack of 

medication for his esophagitis/reflux and that his illness had been witnessed by 

correctional officers. On October 14, 2006, Latona received a response from another 

nurse stating that he would see a doctor on October 23, 2006.

George met with Latona again on October 13, 2006. In her notes, George stated 

that the medical department was aware of his recent bodily injuries and that Latona told 

her that he vomited all of his food every meal. George noted that Latona wanted to see 

the psychiatrist as soon as possible. Although the Mental Health Treatment Team 
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approved Latona for psychiatric services on October 13, 2006, he did not see a doctor 

until October 19, 2006, when he was prescribed psychiatric medications and medications 

for acid reflux and pain. Latona was released from Erie County Prison on November 4, 

2006.

In order to establish a violation of Latona=s constitutional right to adequate medical 

care, evidence must show a serious medical need and acts or omissions by prison officials 

that indicate deliberate indifference to that need. Natale v. Camden Cnty. Corr. Facility, 

318 F.3d 575, 582 (3d Cir. 2003). Deliberate indifference requires proof that the official 

Aknows of and disregards an excessive risk to inmate health or safety.@ Id. (quoting 

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The official must be Aboth [] aware of 

facts from which the inference could be drawn that a substantial risk of serious harm 

exists, and . . . draw the inference.@ Id. We have found deliberate indifference where 

there was objective evidence that prison officials ignored evidence of a serious need for 

medical care and where necessary medical treatment was delayed for non-medical 

reasons. Id. 

In granting summary judgment for Wnek and George, the District Court concluded 

that their actions did not rise to the level of deliberate indifference.

5

 The District Court 

 

 

5Wnek and George appear to concede that Latona=s diagnoses with GERD and 

bi-polar disorder and the injuries he sustained in a fall constitute Aserious medical needs.@

See also Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d 

Cir. 1987) (explaining a medical need is Aserious@ if it is has been diagnosed by a 

physician as requiring treatment). We agree with the District Court that the dispositive 
6

did not err in concluding that Wnek is entitled to summary judgment. Wnek only took 

Latona=s medical history and did a medical screening upon his arrival. There is no 

evidence showing that she was aware that he needed immediate medical attention. There 

is also no evidence showing that Wnek had any further contact with Latona after his 

initial interview or that she played any role in the delay in his treatment.

We also agree with the District Court that Latona is unable to establish that George 

was deliberately indifferent to his mental health needs. Although George had ongoing 

contact with Latona during his incarceration and was a member of the Mental Health 

Treatment Team apparently responsible for arranging treatment by a doctor, the record 

does not reflect that George was aware of a substantial risk of serious harm by the delay 

in treatment. George was apprised of the medications that Latona was taking before his 

arrival at the prison, but George attested that she did not see Aacute signs of mental 

deterioration@ while Latona was on regular watch status. Ex. 2 to Def. Br. in Support of 

Motion for Summary Judgment. Absent from the record is evidence demonstrating that 

George saw Latona suffering or in distress. 

 

question is whether prison health care providers acted with deliberate indifference in 

delaying treatment for these ailments. To the extent Latona pursues a claim based on a 

fever he allegedly had when he arrived at prison, we agree with the District Court=s 

conclusion that Latona=s fever, which was not present when he met with Wnek, did not 

constitute a serious medical need.
7

We recognize that in her notes of her contacts with Latona on October 5, October 

10, and October 13, George did not place Latona Awithin normal limits@ in several 

categories of assessment. Ex. 4 at 000137, 000139-140. George also attested that 

Latona was paranoid, argumentative, and agitated on October 13, 2006. While we do not 

condone the delay in treatment afforded to Latona, we conclude that these medical 

records fall short of establishing that George was deliberately indifferent to Latona=s 

mental health needs. To the extent Latona also complains that George was deliberately 

indifferent to his need for treatment for his physical medical issues, including GERD and 

his fall-related injuries, there is no evidence that George, a Mental Health Counselor, was 

aware that Latona had been vomiting or was in physical pain. Although Latona 

complained to George that he was vomiting, George was at best negligent for not 

investigating his complaint with other staff members.6 

To the extent Latona argues in his brief that the District Court erred in denying his 

motion to file a Fourth Amended Complaint in order to add Jeffrey Barninger, a Medical 

Administrator and member of the Mental Health Treatment Team, as a defendant, Latona 

did not aver that Barninger was deliberately indifferent to his medical needs. He only 

alleged in his proposed amended complaint that Barninger should have been aware of the 

 

 

6

The District Court also adopted the Magistrate Judge=s recommendation to dismiss 

Latona=s claims that PHS failed to adequately train and supervise its employees for failure 

to state a claim upon which relief may be granted. Latona does not address these claims 

in his opening brief on appeal and they are waived. F.D.I.C. v. Deglau, 207 F.3d 153, 

169 (3d Cir. 2000).
8

delays in treatment based on his position. Given the late stage of the litigation and the 

inadequacy of these allegations, the District Court did not abuse its discretion in denying 

Latona=s motion to amend.7

 

 

7Because Latona did not state an Eighth Amendment claim against Barninger, we do 

not consider the District Court=s additional reasons for denying Latona=s motion for leave 

to add him as a defendant. Latona further argues in his brief that the District Court erred 

in dismissing the AJohn Doe@ defendants from his complaint, explaining that at the time of 

dismissal he had yet to receive responses to his discovery requests regarding the proper 

defendants. Even assuming the dismissal was improper, Latona was not prejudiced as he 

only sought to add Barninger as a defendant in his proposed Fourth Amended Complaint, 

which he filed after the defendants responded to his discovery requests. 

Accordingly, we will affirm the judgment of the District Court.