1

The United States Supreme Court held in Bivens that “a

citizen suffering a compensable injury to a constitutionally

protected interest could invoke the general federal question

jurisdiction of the district court to obtain an award of monetary

damages against the responsible federal official.” Butz v.

Economou, 438 U.S. 478, 504 (1978).

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD HARTMAN, :

:

Plaintiff : No. 4:CV-04-0209

:

vs. : (Case Transferred 01/28/04)

:

LOW SECURITY CORRECTIONAL : (Judge Muir)

INSTITUTION ALLENWOOD, et al.,:

:

Defendants :

ORDER

August 24, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On July 29, 2003, Plaintiff Richard Hartman, an inmate

formerly confined at the Low Security Correctional Institution at

Allenwood, in White Deer, Pennsylvania (hereinafter at times

“Allenwood”), initiated this action by filing a three-count

complaint pursuant to, inter alia, the United States Supreme

Court case of Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971).1 At all relevant times,

Hartman was incarcerated at Allenwood because of charges not

related to this action. The originally named Defendants were

Susan Gerlinski, a former warden of Allenwood; former Health

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Services Administrator Dan DeSantis; Dr. Tawfig Ansari; Nurse

Donna Bertone; Nurse Kim Thomas (formerly Kim Herrold);

Physician’s Assistant Francis Fasciana; Nurse Joan Reaser;

Physician’s Assistant Jim Reid; Physician’s Assistant Regina

Henry Ali; Physician’s Assistant Charles Craig; Physician’s

Assistant Edgardo Ong; Evangelical Hospital; Dr. Dennis R. Smith;

and Pfizer, Inc.

By order dated May 21, 2004, we granted in part and denied

in part a number of motions to dismiss certain claims asserted by

Hartman. As a result of that order, all of the claims against

Defendants Ong, Bertone, and Reid were dismissed. On January 12,

2005, the court entered a stipulation (which had been filed by

the parties for court approval) providing that the claims against

Pfizer, Inc., be dismissed with prejudice. By order dated May

27, 2005, Hartman’s claims against Dr. Smith and Evangelical

Community Hospital were dismissed. The only remaining claims in

this case relate to the actions taken by the employees on the

staff of Allenwood. All of those claims are contained in count 1

of Hartman’s complaint. Those claims have been brought against

Defendants Gerlinski, DeSantis, Ansari, Thomas, Fasciana, Reaser,

Ali, and Craig.

On June 15, 2005, the remaining Defendants associated with

Allenwood filed a motion for summary judgment with respect to

Hartman’s claims against them. A brief in support of that motion

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Hartman also contends that the Defendants’ supporting brief

was untimely filed. This argument has no merit because Hartman

failed to consider Federal Rule of Civil Procedure 6(a) in

computing the deadline for the Defendants’ brief. According to

manner in which time is measured in that rule, the Defendants’

brief was timely filed.

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was filed on June 29, 2004. Hartman filed an opposition brief on

July 18, 2005. The moving Defendants filed a reply brief on

August 1, 2005. By order dated August 9, 2005, we granted

Hartman’s motion to file a sur-reply brief. On August 11, 2005,

Hartman timely filed that brief, thereby ripening for disposition

the Defendants’ motion for summary judgment.

As a threshold matter, we address Hartman’s request that we

summarily deny the summary judgment motion because of flaws in

the brief filed by the Defendants in support of their motion. 

The defects noted by Hartman are the failure to 1) include a

table of contents, 2) include a table of authorities, 3) include

a certificate as to number of words in the brief, and 4) file the

motion to exceed the page limit in the local rules in a timely

manner.2 There is no indication that Hartman has been prejudiced

by any of the defects in the Defendants’ brief. In addition,

none of the defects cited by Hartman has hindered our ability to

rule on the pending summary judgment motion. 

Hartman’s exacting scrutiny is somewhat ironic because he

has failed to provide any certificate as to the number of words

in his brief, and his brief exceeds the number of pages allowed

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by our order of July 15, 2005. Consequently, if we were to apply

rigidly the requirements imposed upon the parties by the local

rules and orders issued in this case we would disregard not only

the Defendants’ supporting brief but also Hartman’s opposition

brief. Adopting such a course would unnecessarily delay the

processing of this case. 

We choose instead to exercise our discretion, overlook all

of the deficiencies in the parties’ briefs, and proceed to

consider the merits of the summary judgment motion. See U.S. v.

Eleven Vehicles, Their Equipment and Accessories, 200 F.3d 203,

215 (3d Cir. 2000)(holding that “a district court can depart from

the strictures of its own local procedural rules where (1) it has

a sound rationale for doing so, and (2) so doing does not

unfairly prejudice a party who has relied on the local rule to

his detriment.”)

Summary judgment is appropriate only when there is no

genuine issue of material fact which is unresolved and the moving

party is entitled to a judgment as a matter of law. Fed. R. Civ.

P. 56(c). Summary judgment should not be granted when there is a

disagreement about the facts or the proper inferences which a

fact finder could draw from them. Peterson v. Lehigh Valley Dist.

Council, 676 F.2d 81, 84 (3d Cir. 1982). “When a motion for

summary judgment is made and supported as provided in ...[Rule

56], an adverse party may not rest upon mere allegations or

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denials of the adverse party’s pleading....” Fed. R. Civ. P.

56(e).

Initially, the moving party has a burden of demonstrating

the absence of a genuine issue of material fact. Celotex

Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be

met by the moving party pointing out to the court that there is

an absence of evidence to support an essential element as to

which the non-moving party will bear the burden of proof at

trial. Id. at 325. 

Rule 56 provides that, where such a motion is made and

properly supported, the adverse party must show by affidavits,

pleadings, depositions, answers to interrogatories, and

admissions on file that there is a genuine issue for trial. Fed.

R. Civ. P. 56(e). The United States Supreme Court has commented

that this requirement is tantamount to the non-moving party

making a sufficient showing as to the essential elements of his

or her case that a reasonable jury could find in their favor.

Celotex Corporation v. Catrett, 477 U.S. 317, 322-23 (1986).

Because summary judgment is a severe remedy, the Court

should resolve any doubt about the existence of genuine issues of

fact against the moving party. Ness v. Marshall, 660 F.2d 517,

519 (3d Cir. 1981).

The United States Supreme Court has stated that in motions

for summary judgment a material fact is one which might affect

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the outcome of the suit under relevant substantive law. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The

Supreme Court also stated in Anderson that a dispute about a

material fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.”

Id. at 248. “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is

no ‘genuine issue for trial.’” Matsushita Electric Industrial

Company, Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587

(1986).

When addressing such a motion, our inquiry focuses on

“whether the evidence presents a sufficient disagreement to

require submission to the jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986)(emphasis added).

As summarized by the Advisory Committee On Civil Rules,

“[t]he very mission of the summary judgment procedure is to

pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial.” Fed. R. Civ. P. 56

advisory committee note to 1963 Amendment. 

We will apply those principles to the pending motion for

summary judgment. Before discussing the summary judgment

motion’s merits, we will set forth the claims alleged against the

moving Defendants. 

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All of Hartman’s claims against the moving Defendants are

based on the alleged violation of his Eighth Amendment rights as

a result of the moving Defendants’ failure to provide adequate

medical treatment to Hartman. In the complaint’s so-called

“Preliminary Statement” Hartman declares that the 

[d]efendants include physicians, physician assistants and

correctional officers who have knowingly engaged in

deliberate indifference to the plaintiff’s serious and lifethreatening medical condition, pain and suffering, from July

29, 2001, to October 15, 2002.

(Complaint, p. 1) Each of the moving Defendants is identified in

paragraph 3 of the complaint and Hartman describes them as being

“assigned to Allenwood from the time of plaintiff’s heart attack

on July 29, 2001 until his release on October 15, 2002.” (Id., p.

2, ¶3) Count 1 of the complaint is the only one directed at the

moving defendants and in it Hartman alleges the following:

The correctional and medical staff of Allenwood was allowed

to commit recurrent and ongoing acts of deliberate

indifference to plaintiff’s lack of medical care throughout

the last fifteen (15) months of his incarceration from

August, 2001 until October, 2002.

(Id., p. 4, ¶17)

Hartman specifically alleges the following in paragraph 19

of his complaint:

 On or about July 29, 2001 in the very early morning hours,

the plaintiff suffered his initial myocardial infarction

(heart attack). His chest pains were constant and severe

and he conveyed that to the female correctional officer who

told him that the institution’s health facility was closed

until 6:00 a.m. and there was nothing that she could do for

him. The plaintiff prevailed upon her to convey his

situation to a superior officer who did ultimately respond

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to the unit, but again told the plaintiff that there was

nothing that could be done because the health facility was

closed and they suggested that he take a hot shower and lie

down. They assured him that they would visit his room from

time to time to determine if the pain continued to increase. 

After 6:00am [sic] in the morning, he walked one-half mile

to the Health Services [offices] where the P.A. (Physician

Assistant) attempted to give the plaintiff [an] EKG, but the

machine initially proved to be inoperable. After about

forty-five (45) minutes and several attempts, the

physician’s assistant agreed that the reading showed that

the plaintiff was undergoing a heart attack. An ambulance

was contacted and the plaintiff was taken to the defendant

Evangelical Hospital at Lewisburg, Pennsylvania.

(Id., pp. 6-7, ¶19)

The undisputed material facts of record establish that at

all relevant times Hartman was incarcerated at the Low Security

Institution at Allenwood, Pennsylvania. While at Allenwood

Hartman suffered from various serious physical ailments,

including but not limited to high blood pressure, blockage of his

coronary arteries, renal conditions, and an abdominal aortic

aneurysm. In the weeks leading up to July 28, 2001, Hartman

experienced symptoms consistent with heart disease and indicating

that he may suffer a myocardial infarction, or heart attack. 

Despite the absence of any medical records documenting requests

for treatment by Hartman during that period, Hartman insists that

he made such requests and that they were ignored by unidentified

members of the staff at Allenwood. 

During the early morning hours of July 28 or 29, 2001,

Hartman experienced severe pain in his chest and upper left arm. 

At this point we note that Hartman’s assertions regarding the

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date and time of his heart attack have not been consistent. The

complaint and medical records indicate that Hartman’s heart

attack occurred during the early morning hours of July 29, 2001. 

In the brief Hartman filed in opposition to the summary judgment

motion, he states that the heart attack occurred “[o]n the

evening of July 28, 2001.” (Opposition Brief, p. 6) In the

affidavit Hartman filed with that brief he states that the heart

attack occurred during “the early hours of July 28, 2001.”

(Affidavit, p. 2, ¶5) We take a dim view of Hartman’s failure to

pinpoint such a critical event. However, for the purposes

discussed below in detail the discrepancy is inconsequential and

the precise date of Hartman’s heart attack need not be

determined.

Although he attempted to obtain emergency medical treatment

through the aid of a corrections officer and her supervisor,

those individuals advised Hartman that nothing could be done for

him until the institution’s health facility opened at 6:00 a.m. 

The corrections officers who provided that advice are not named

defendants in this case and their advice was contrary to the

institution’s policy. 

The policy in place at the relevant time provided that 1)

medical care would be provided “24 hours per day, seven days per

week” and 2) emergency issues arising after normal business hours

would be referred directly to a hospital in the local community

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for care to be provided “as soon as possible, once it has been

determined that an emergency exists.” (Bureau of Prisons Program

Statement 6000.05, p. 2)

Hartman appeared at the institution’s health facility at

6:00 a.m. on the morning he experienced his severe symptoms. He

was given an EKG which revealed that a heart attack had recently

occurred. Dr. Toa Chaw evaluated Hartman and determined that

Hartman needed to be evaluated at a hospital emergency room. Dr.

Chaw is not a defendant in this case. An ambulance was summoned

and Hartman was transferred to Evangelical Community Hospital via

an Advanced Life Support Unit. The examining physician

determined that Hartman should be admitted for medical management

because at that point it was too late for any further treatment

of the heart attack. Hartman was discharged on August 1, 2001. 

The discharge instructions stated that Hartman would be able to

resume his normal functions.

The medical records submitted by the Defendants in support

of their summary judgment motion indicate that Hartman received

substantial treatment for all of his ailments after his heart

attack. All of the moving Defendants who personally treated

Hartman first did so after he returned to Allenwood on August 1,

2001. Hartman concedes that he received medical treatment from

those Defendants “‘almost every day’ AFTER he had sustained a

severe myocardial infarction ....” (Opposition Brief, p.

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For some reason unknown to us, the parties have asserted

that the complaint was filed on July 28, 2001. The date-stamped

copy of the complaint we received in the file from the United

States District Court for the Southern District of New York bears

a filing date of July 29, 2001.

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29)(Emphasis in original)

On July 29, 2003, Hartman, who at all times has been

represented by counsel, filed the complaint in this case in the

United States District Court for the Southern District of New

York.3 The case was subsequently transferred to this court.

Based on the above procedural and historical facts, the

moving Defendants first contend that they are entitled to summary

judgment as to all of the claims in the complaint because they

are entitled to qualified immunity. In Harlow v. Fitzgerald, 457

U.S. 800 (1982), the United States Supreme Court held 

that government officials performing discretionary functions

generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.

Id. at 818; Sherwood v. Mulvihill, 113 F.3d 396, 398-99 (3d Cir.

1997); Showers v. Spangler, 957 F. Supp. 584, 589 (M.D. Pa.

1997). 

The initial factor in a qualified immunity inquiry is

whether the plaintiff has alleged “the violation of a clearly

established constitutional right.” Siegart v. Gilley, 500 U.S.

226, 231 (1991); Sherwood, 113 F.3d at 399; In re City of

Philadelphia Litig., 49 F.3d 945, 960 (3d Cir.), cert. denied sub

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nom., City of Philadelphia v. Africa, 516 U.S. 863, 116 S. Ct.

176 (1995); Turiano v. Schnarrs, 904 F. Supp. 400, 413 (M.D. Pa.

1995).

In considering whether any or all of the Defendants are

entitled to qualified immunity we will organize Hartman’s causes

of action into the following three distinct time periods: 1)

claims based on actions taken by any Defendant before Hartman’s

heart attack; 2) claims based on actions taken by any Defendant

on the date of his heart attack; and 3) claims based on actions

taken by any Defendant after the date of his heart attack. 

Structuring our consideration of Hartman’s claims in that manner

is advisable for the following reason: although the complaint

clearly focuses on events which occurred “from August, 2001 until

October, 2002,” in the briefs he filed in connection with the

summary judgment motion Hartman completely eschews reliance on

that period and instead highlights events which occurred in the

weeks and days preceding his heart attack.

The first period to consider predates Hartman’s myocardial

infarction, which occurred on either July 28, 2001, or July 29,

2001. The moving Defendants assert that their actions in that

period are not relevant because any attempt by Hartman to base a

claim thereon is barred by the applicable two-year statute of

limitations. See Napier v. Thirty or more Unidentified Federal

Agents, 855 F.2d 1080, 1087-1088 (3d Cir. 1988). The Defendants

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are clearly correct. Hartman’s complaint was filed on July 29,

2003. Hartman admits that a two-year statute of limitations

applies to all of his claims in this case. (Sur-reply Brief, p.

3) With respect to the claims that are based on events predating July 29, 2001, we need not consider whether any Defendant

is entitled to qualified immunity because the statute of

limitations bars Hartman from pursuing those claims. The

Defendants are entitled to summary judgment as to all such claims

based on the applicable statute of limitations.

At this point we note that if Hartman stands by his

assertion that his heart attack occurred on July 28, 2001, then

any claim based on events which occurred on that date are also

barred by the statute of limitations. However, out of an

abundance of cation, we will proceed as though Hartman’s heart

attack occurred on July 29, 2001, so that any resulting claim

would not be time-barred.

The next period to consider is the date on which Hartman

suffered his heart attack, which at this point we consider to be

July 29, 2001. It is crucial to note that Hartman has never

identified the two individuals responsible for delaying his

medical treatment when he first reported his symptoms and they

are not defendants in this case. Based on the evidentiary record

submitted to us, there is no indication that any named Defendant

participated in the events which arose on the date that Hartman

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suffered his heart attack. Consequently, Hartman has failed to

establish a legitimate basis to hold any of the named Defendants

responsible for either the conduct of the two unidentified

individuals or the harm resulting to Hartman because of that

conduct. 

Hartman attempts to hold Warden Gerlinski and former Health

Services Administrator Dan DeSantis responsible because of the

policies that had been in place on the date of his heart attack. 

This argument is unpersuasive because the policy in effect

provided for the prompt provision of emergency care at all times. 

The evidence of record demonstrates that Hartman’s situation on

the morning of his heart attack stemmed not from an inadequate

policy, but from the failure of the two unnamed individuals to

follow the policy.

The Defendants are entitled to qualified immunity, and

therefore summary judgment, as to any claim based on events that

occurred on the date of Hartman’s heart attack because Hartman

has failed to show how any named Defendant was deliberately

indifferent to any serious medical need on that date. In other

words, Hartman has failed to establish that a named Defendant

violated any of Hartman’s clearly defined constitutional rights

on the date of his heart attack.

The third and final period to consider is that which postdates Hartman’s heart attack. In his sur-reply brief Hartman

Case 4:04-cv-00209-MM Document 86 Filed 08/24/05 Page 14 of 16
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states that

Defendants’ Brief outlines the medical records from July 29,

2001 onward, at which point the medical staff and

correctional officers [had] already [been] deliberately

indifferent to Mr. Hartman and Mr. Hartman already suffered

a myocardial infarction. Indeed, the description of medical

case rendered to Plaintiff Richard Hartman as set forth in

defendants’ Brief essentially begins its detailed chronology

at a point AFTER plaintiff had sustained a preventable

severe myocardial infarction.

(Opposition Brief, pp. 28-29) Hartman also states in his

affidavit that 

[t]he gravamen of my claims herein against defendants is

with reference to the deprivation of requisite emergency

medical treatment required to prevent my heart attack, a

deprivation which occurred exclusively due to the deliberate

indifference of defendants .... In that defendants seek to

distract the court from the issues at bar by efforts to

present to the court “facts and circumstances” that post

date the focus of the issues herein, it is respectfully

submitted that defendants’ motion is essentially

inappositive [sic], and must be denied ....

((Affidavit, pp. 11-12, ¶11) states

To the extent that Hartman considers all of the facts postdating his heart attack as a “distraction,” it appears as though

he has abandoned all claims based on those facts and the

defendants are entitled to summary judgment on that basis. 

However, since the circumstances that occurred after his heart

attack are the primary, if not exclusive, basis of the

allegations and claims stated in the complaint, we will consider

them more thoroughly.

The Defendants attach as exhibits to their summary judgment

brief literally hundreds of pages of medical records from

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Hartman’s file which were generated after the date of his heart

attack. As noted above, those records demonstrate that Hartman

received medical treatment almost daily from the Defendants for

his various ailments. The undisputed material facts established

by those records entitle the defendants to qualified immunity,

and therefore summary judgment, as to any claim based on events

that occurred after the date of Hartman’s heart attack. Hartman

has failed to establish that a named Defendant violated any of

Hartman’s clearly defined constitutional rights during that

period. 

The Defendants are entitled to summary judgment on all of

the claims in Hartman’s complaint. We will grant their motion

for that relief.

AND NOW, IT IS HEREBY ORDERED THAT:

1. The Defendants’ motion for summary judgment (Document

64) is granted.

2. The Clerk of Court shall enter judgment in favor of the

moving Defendants as to the claims in count 1 of

Hartman’s complaint.

3. The Clerk of Court shall close this case.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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