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. e du/thir dc ir c uit_1996/141UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-1719

ROTHER JONES Appellant

V.

UNITED STATES OF AMERICA Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT C OURT

FOR THE EASTERN DISTRICT OF PENNSYLVANI A (D.C. Civil No. 94-05086)

Argued on March 11, 1996

Before: NYGAARD, SAROKIN and ALDISERT, Circui t Judges

(Opinion Filed July 31, 1996)

David C. Harrison ( Argued) 2100 Arch Street, 5 th Floor

Philadelphia, PA 19 103-1399

Attorney for Appell ant

Susan D. Bricklin ( Argued)
Suite 1250
Office of United St ates Attorney
615 Chestnut Street Philadelphia, PA 19 106 Attorney for Appell ee

OPINION OF THE COURTNYGAARD, Circuit Judge.

Rother Jones alleges that, while he was a federal prisoner, prison officials denied him his prescript ion high blood pressure medication, causing him to suffer a debili tating stroke, which left him aphasic and quadriplegic. The distr ict court granted the United States' motion for summary judgm ent and denied
Jones' motion for reconsideration. We will reverse

. I. Jones alleges that in 1991, while a prison er at the Federal Correctional Institution at Lewisburg, Penn sylvania, he suffered from high blood pressure and had been pres cribed appropriate medication. In October, 1991, he was t ransferred from Lewisburg to the Federal Correctional Institut ion at McKean, Pennsylvania. He did not receive his medication th e morning of the transfer, nor was he medicated when he arrived at McKean, although he did receive a medical examination. Discovery revealed that within twelve hour s of his medication being withheld he suffered a cerebral he morrhage, leaving him aphasic and quadriplegic. Jones allege s that this cerebral hemorrhage was a result of appellee's negl igence in failing to provide him with his prescription medica tion despite knowledge of his need for it; that appellee failed to act with due regard for his rights as a federal prisoner, a status which denied him open access to the medication; and, that appellee deviated from the applicable standard of care.

II. Appellee moved for summary judgment on the ground that this was a malpractice case and that Jones produced no expert testimony that established appellee's negligence. The district court, however, granted summary judgment on a groun d not raised in appellee's motion. It stated that: under a simple negligence theory, Plaintif f has failed to show negligence because he h as failed to show a duty. There is no eviden ce in the record to indicate that the prison authorities had a duty to provide Plaintif f with his medication at a certain period of time. . . . Plaintiff had a duty to establ ish every element of his case.

The court concluded that "Plaintiff has not 'set fo rth specific facts showing that there is a genuine issue for tri al.'" We disagree with the district court's conclusion that summary judgment was appropriate because Mr. Jones "produce d no evidencethat there was a duty" to provide him his prescription medicin e at a certain time. Rather than requiring evidentia ry proof, "[w]hether a defendant owes a duty of care to a pla intiff is a question of law." Kleinknecht v. Gettysburg Colleg e, 989 F.2d 1360, 1366 (3d Cir. 1993) (citing Restatement (Seco nd) of Torts  328(B) (1965)) (other citations omitted). Therefore, we n eed only determine whether, as a matter of law, the def endant owed a duty to Jones. In Paragraph 2 of his complaint, Jones spe cifically pointed to the relevant legal duty the government n egligentlybreached:

Defendant UNITED STATES OF AMERICA operate s a prison system and is responsible for the care, health and welfare of federal prison ers within its custody in the federal prison system. Jones also alleged that federal employees "failed t o supply Plaintiff with his medication although it knew or s hould have known that [the medicine] was necessary for his hea lth." We find the defendant's duty articulated i n 18 U.S.C.
 4042(a)(2) and (3), which provide: The Bureau of Prisons . . . shall -- (2) .

. . provide for the safekeeping, care and subsistence . . . (3) provide for the protection . . . of all persons charged wi th or convicted of offenses against the Unite d

States.

The statute is unambiguous, and to avert summary ju dgment, Jones was not required to provide a further basis for his contention that defendant had a duty of care toward him. Unit ed States v. Muniz, 374 U.S. 164-65, 83 S.Ct. 1850, 1859 (1963). ("[T]he duty of care owed by the Bureau of Prisons to federal pr isoners is fixed by 18 U.S.C.  4042 . . . ."). The facts are undisputed that Jones had be en prescribed medicine to treat his condition; that the medicine had been withheld; and that he then suffered a severe stroke -- just what the medicine was designed to prevent -- which left him permanently disabled. We conclude that this eviden ce is sufficient to allow a jury to determine that the go vernment breached its legal duty of care toward Jones by fai ling to provide him with his medication within twelve hours of its normal prescription time.

III. We will reverse the summary judgment of th e district court and remand the cause for further proceedings consistent with this opinion.