UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

PAUL KIMBLE, :

Plaintiff :

:

v. : CIVIL NO.4:CV-05-1871

:

: (Judge McClure) 

FRANKLIN TENNIS, ET AL., :

Defendants :

MEMORANDUM AND ORDER

June 5, 2006

Background

This pro se civil rights action was filed by Paul Kimble (“Plaintiff”), an

inmate presently confined at the Rockview State Correctional Institution,

Bellefonte, Pennsylvania (“SCI-Rockview”). Named as Defendants are SCIRockview Superintendent Franklin Tennis; Health Care Administrator Richard

Ellers; Wexford Health Sources; Doctor Joseph Romeo; and Doctor John

Symons. Service of the complaint was previously ordered. 

Plaintiff states that he is presently serving a life sentence following his

conviction for criminal homicide. He was transferred to SCI-Rockview from the

State Correctional Institution, Camp Hill, Pennsylvania. On March 7, 2003,

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Plaintiff underwent an open Cholecystectomy at Altoona Hospital. Upon his

return to SCI-Rockview, Kimble was placed in the prison’s Special Needs Block.

While housed in that unit, he befriended another prisoner named Keith Hart.

His complaint alleges that there was an outbreak of a highly contagious

staph infection Methicillin Resistant Staphylococcus Aureus (“MRSA”) within

SCI-Rockview. Plaintiff indicates that MRSA can be transmitted via saliva or

blood or “passed from touching surfaces that others have touched.” Record

document no. 1, Addendum, ¶ 14. Kimble contends that Defendants failed to

inform the general population inmates as to the spread of MRSA. They also

purportedly neglected to take adequate precautions to prevent the spread of the

infection. Specifically, Plaintiff maintains that Inmate Hart, despite having been

diagnosed with MRSA, was allowed to return to general population with “open

wounds” from the infection. Id. at ¶ 12. Kimble adds that correctional staff 

“made no attempt to wipe down the prison to stop the spread of this disease.” Id.

at ¶ 13.

As a result of the Defendants’ alleged deliberate indifference, Plaintiff 

contracted the “deadly flesh eating disease” from Inmate Hart, while they were

housed together in the Special Needs Block. Id., Complaint at ¶ IV (3). Kimble

seeks injunctive relief as well as punitive and compensatory damages.

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Defendants Romeo and Symons have filed a motion seeking dismissal of

Plaintiff’s complaint for failure to state a claim upon which relief may be granted. 

See Record document no. 15. The motion has been briefed and is ripe for

consideration.

Discussion

Standard of Review

A court, in rendering a decision on a motion to dismiss, must accept the

veracity of the plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver,

82 F.3d 63, 65 (3d Cir. 1996), the Court of Appeals for the Third Circuit added

that when considering a motion to dismiss based on a failure to state a claim

argument, a court should "not inquire whether the plaintiffs will ultimately prevail,

only whether they are entitled to offer evidence to support their claims." "[A]

complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"The test in reviewing a motion to dismiss for failure to state a claim is

whether, under any reasonable reading of the pleadings, plaintiff may be entitled to

relief." Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation

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omitted). Additionally, a court must "accept as true the factual allegations in the

complaint and all reasonable inferences that can be drawn from them." Markowitz

v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Independent Enters.,

Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997). 

Finally, it is additionally well-settled that pro se complaints should be liberally

construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). This Court will now

discuss Defendants Romeo and Symons’ motion in light of the standards set

forth above and Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The moving Defendants claim entitlement to an entry of dismissal on the

grounds that: (1) the claims against Dr. Romeo are improperly premised on a

theory of respondeat superior, and (2) the complaint is devoid of any facts which

could support a claim that either Dr. Romeo or Dr. Symons violated the Eighth

Amendment.

Respondeat Superior

The moving Defendants note that Doctor Romeo is described as being the

Medical Director at SCI-Rockview and having authority over the prison’s medical

staff. They correctly add that there are no allegations that Doctor Romeo ordered

Plaintiff’s placement in the Special Needs Block, was aware that Inmate Hart had

MRSA, knew that Hart was released to general population with open wounds, or

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had any involvement in the making of any decision as to whether to undertake a

wipe down of the prison. Consequently, they conclude that the complaint fails to

allege facts which could support a supervisory liability claim. See Record

document no. 16, p. 7.

A plaintiff, in order to state an actionable civil rights claim under § 1983,

must plead two essential elements: (1) that the conduct complained of was

committed by a person acting under color of state law, and (2) that said conduct

deprived the plaintiff of a right, privilege, or immunity secured by the Constitution

or laws of the United States. Groman v. Township of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d

Cir. 1990). 

Claims brought under § 1983 cannot be premised on a theory of respondeat

superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather,

each named defendant must be shown, via the complaint's allegations, to have

been personally involved in the events or occurrences which underlie a claim. See

Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,

546 F.2d 1077 (3d Cir. 1976). As explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs. . . . [P]ersonal involvement

can be shown through allegations of personal direction or of

actual knowledge and acquiescence. Allegations of

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participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity. 

Rode, 845 F.2d at 1207.

“Supervisory liability will also attach if plaintiff identifies ‘a specific supervisory

practice or procedure’ that the defendants failed to employ which created an

unreasonable risk of harm to plaintiff, for which the defendants were aware and

indifferent.” Bethune v. Warden, Berks County, 2005 WL 35912 * 2 (E.D. Pa.

Jan. 5, 2005).

Plaintiff’s opposing brief contends that Doctor Romeo treated both he and

Inmate Hart. Kimble also indicates that pursuant to institutional policy a prisoner’s

treating physician and the “Directing staff” must give approval before a prisoner

can be released from the infirmary to general population. Record document no.

17, p. 2. He adds that Doctor Symons was the treating physician who authorized

Inmate Hart’s release to general population. 

Based on this Court’s review of the complaint and opposing brief filed by

the Plaintiff, he has not set forth any facts which would show that Doctor Romeo

had any personal involvement or acquiescence in the decision to allow Inmate Hart

to be placed in general population. Kimble’s opposing brief indicates that Romeo

provided treatment to both he and Hart. However, his opposing brief clearly

asserts that Doctor Symons was Hart’s treating physician and was the one who

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gave approval for that inmate’s general population placement. There are also no

facts alleged which would show that Doctor Romeo ratified or otherwise

acquiesced in that decision.

Plaintiff also contends that Doctor Romeo failed to take necessary steps to

prevent an MRSA outbreak. Although Doctor Romeo allegedly treated Inmate

Hart, Kimble identifies Doctor Symons as being Hart’s treating physician at the

time said prisoner was placed in general population. There are no facts alleged that

Doctor Romeo had knowledge of the existence of the potential for an outbreak of

MRSA prior to the Plaintiff’s infection and failed to take appropriate preventive

measures. There are also no allegations which could support a claim that Doctor

Romeo’s failure to create a plan or protocol for the prevention of MRSA led to

Kimble’s infection. On the contrary, Plaintiff alleges that he was infected with

MRSA because Doctor Symons allowed Hart to enter general population and he

acknowledges that there was a protocol in place regarding the release of prisoners

from the infirmary into general population.

 Consequently, under the standards developed in Capone, the assertions

raised against Doctor Romeo with respect to Hart’s placement in general

population and the purported failure to prevent an MRSA outbreak are insufficient

for purposes of alleging personal involvement by Romeo in any constitutional

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misconduct. Dismissal will be entered in favor of Doctor Romeo. 

Deliberate Indifference

 The moving Defendants argue that dismissal is appropriate because there

are no facts alleged which could establish that they were deliberately indifferent to

any serious medical need of the Plaintiff. As previously noted, this Court has

already concluded that Doctor Romeo is entitled to an entry of dismissal. With

respect to the remaining Defendant, Doctor Symons, Plaintiff’s complaint asserts

that Doctor Symons has provided him with medical treatment for different medical

problems including MRSA. However, Kimble clearly asserts that Symons was the

treating physician who authorized Inmate Hart’s placement in general population

despite the fact that said inmate was being treated for MRSA and had open sores

(which presumably made him highly contagious).

An Eighth Amendment claim against a prison official must meet two

requirements: (1) “the deprivation alleged must be, objectively, sufficiently

serious;” and (2) the “prison official must have a sufficiently culpable state of

mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). In prison conditions cases,

“that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” 

Id. Mere negligent conduct that leads to serious injury of a prisoner by a prisoner

does not expose a prison official to liability under § 1983. Davidson v. Cannon,

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474 U.S. 344, 347-48 (1986).

Under Farmer, deliberate indifference is a subjective standard in that the

prison official must actually have known or been aware of the excessive risk to

inmate safety. Beers-Capitol v. Whetzel, 256 F. 3d 120, 125 (3d Cir. 2001). This

requirement of actual knowledge means that “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.” Farmer, 511 U.S. at 837. In

Beers-Capitol it was also recognized that a defendant’s knowledge of a risk can be

proved indirectly by circumstantial evidence. 

It is noted that the Plaintiff does not assert that Doctor Symons failed to

provide him with adequate medical care. Rather, the complaint contends that by

approving Inmate Hart for release into general population, Doctor Symons was

deliberately indifferent to a known serious health risk, namely that Hart’s MRSA

condition would be spread among the prison population. See Record document

no. 1, ¶ IV(3); Addendum, ¶ 12. As a result of that purported deliberate

indifference, Kimble became infected with MRSA.

This Court has undertaken a liberal reading of the pro se complaint and

accepted the veracity of the Plaintiff’s allegations as is required when considering a

motion to dismiss. Based on an application of the standards announced in

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Farmer, this Court is satisfied that a viable claim of deliberate indifference

sufficient enough to withstand scrutiny under Rule 12(b)(6) has been stated against

Doctor Symons. Specifically, that an inmate infected with MRSA and with open

sores could constitute a serious health risk and that allowing a prisoner with said

condition to be released from the infirmary and placed in general population

sufficiently states a claim of deliberate indifference to withstand scrutiny under rule

12(b)(6). Consequently,

IT IS HEREBY ORDERED THAT:

1. Defendants Romeo and Symons’ motion to dismiss

(Record document no. 15) is granted in part.

2. Dismissal is entered in favor of Doctor Romeo.

3. The motion to dismiss is denied with respect to

Plaintiff’s claim that Doctor Symons’ deliberate

indifference to a serious health risk caused him to

become infected with MRSA.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

 

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