1. Defendants, SCI-Rockview Medical Administration filed an

answer to the complaint on May 25, 2005. (Doc. No. 46). They

currently have a motion for judgment of the pleadings pending. 

(Doc. No. 47). Plaintiff's motion for enlargement of time to

file a brief in opposition to this motion, will be granted by

separate order. 

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

IAN SEAN WOOD, :

:

Plaintiff : No. 4:CV-04-1693

:

vs. : (Complaint Filed 08/02/04)

:

: (Judge Muir)

DR. ROMEO, et al., :

:

Defendants :

ORDER

September 2, 2005

BACKGROUND

This is a civil rights action filed pursuant to 42 U.S.C.

§ 1983. Plaintiff, Ian Sean Wood, is an inmate currently

confined in the State Correctional Institution, Coal-Township,

Pennsylvania. He complains of incidents which occurred at his

former place of confinement, the Rockview State Correctional

Institution, Bellefonte, Pennsylvania (“SCI-Rockview”). Named as

defendants in the complaint are Dr. Joseph Romeo, Dr. John J.

Schietroma, and the SCI-Rockview Medical Administration1. 

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 1 of 18
2. Because defendant's motion to dismiss and for summary

judgment, contained matters outside of the pleadings, which

could not be excluded, by Order dated December 8, 2004,

defendant's motion was converted solely to a motion for

summary judgment and the parties were directed to submit any

additional material deemed pertinent to the motion, including

a statement of material facts. (Doc. No. 33). 

2

Plaintiff claims that after being attacked by another inmate

on December 3, 2002, defendants were deliberately indifferent to

his serious medical needs resulting from an alleged injury to

his face and eye, in violation of his Eighth Amendment rights.

(Doc. No. 1, complaint). Presently before the court is a motion

dismiss the complaint, filed by defendant Schietroma (Doc. No.

11), and a motion to dismiss and for summary judgment2, filed by

defendant Romeo (Doc. No. 22). These motions have been fully

briefed and are ripe for disposition. For the reasons that

follow, the motions will be granted. 

Standard of Review

In deciding a motion to dismiss pursuant to Rule 12(b)(6),

courts generally consider only the allegations in the complaint,

exhibits attached to the complaint, matters of public record,

and documents that form the basis of a claim. See In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d

Cir.1997). All material allegations of the complaint must be

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 2 of 18
3

accepted by the Court as true and construed in favor of the

plaintiff. Allah vs. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000); Shaev vs. Saper, 320 F.3d 373, 375 (3d Cir. 2003).

Claims may be dismissed pursuant to a Rule 12(b)(6) motion only

if the plaintiff cannot demonstrate any set of facts that would

entitle him to relief. Conley vs. Gibson, 355 U.S. 41, 45-46

(1957); Lum vs. Bank of America, 361 F.3d 217, 223 (3d Cir.

2004). However, the Court is not required to accept legal

conclusions, either alleged or inferred, from the pleaded facts.

Morse vs. Lower Merion School District, 132 F.3d 902, 906 (3d

Cir. 1997). In Nami vs. 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 failure to state a

claim, a court should “not inquire whether the plaintiffs will

ultimately prevail, only whether they are entitled to offer

evidence to support their claims.” When an unrepresented party

is confronted by a motion to dismiss, the deciding court must be

mindful of the well-settled principle that pro se complaints

should be liberally construed, Haines vs. Kerner, 404 U.S. 519,

520 (1972), and that pro se litigants are to be granted leave to

file a curative amended complaint “even when a plaintiff does

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4

not seek leave to amend,” unless such an amendment would be

inequitable or futile. Alston vs. Parker, 363 F.3d 229, 235 (3d

Cir. 2004). However, a complaint that sets forth facts which

affirmatively demonstrate that the plaintiff has no right to

recover is properly dismissed without leave to amend. Grayson

vs. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002);

see also Estelle vs. Gamble, 429 U.S. 97, 107-108 (1976).

With respect to a motion for summary judgment, Federal Rule

of Civil Procedure 56(c) requires the court to render summary

judgment " . . . forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]his

standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact." Anderson

vs. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis

in original). 

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5

A disputed fact is "material" if proof of its existence or

nonexistence would affect the outcome of the case under

applicable substantive law. Anderson, 477 U.S. at 248; Gray vs.

York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is "genuine" if the evidence is such that

a reasonable jury could return a verdict for the nonmoving

party. Anderson, 477 U.S. at 257; Brenner vs. Local 514, United

Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283,

1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of

material fact, the court must view the facts and all reasonable

inferences in favor of the nonmoving party. Moore vs. Tartler,

986 F.2d 682 (3d Cir. 1993); Clement vs. Consolidated Rail

Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White vs.

Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).

In order to avoid summary judgment, however, the nonmoving party

may not rest on the unsubstantiated allegations of his or her

pleadings. When the party seeking summary judgment satisfies

its burden under Rule 56(c) of identifying evidence which

demonstrates the absence of a genuine issue of material fact,

the nonmoving party is required by Rule 56(e) to go beyond the

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6

pleadings with affidavits, depositions, answers to

interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Celotex

Corporation vs. Catrett, 477 U.S. 317, 324 (1986). The party

opposing the motion "must do more than simply show that there is

some metaphysical doubt as to the material facts." Matsushita

Electric Industrial Co. vs. Zenith Radio, 475 U.S. 574, 586

(1986). When Rule 56(e) shifts the burden of production to the

nonmoving party, that party must produce evidence to show the

existence of every element essential to its case which it bears

the burden of proving at trial, for "a complete failure of proof

concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial." Celotex, 477

U.S. at 323. See Harter vs. G.A.F. Corp., 967 F.2d 846, 851 (3d

Cir. 1992). 

Statement of Facts

On the morning of December 3, 2002, plaintiff was struck in

the left eye with a combination lock when he was attacked by

another inmate. (Doc. No 1, complaint). He sustained serious

bodily harm to his face and left eye. Id. He was immediately

taken to the SCI-Rockview Medical Department, where at 9:50

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7

a.m., he was evaluated by physician's assistant Bridget Kelly

(“PA Kelly”). (Id., Doc. No. 28, Ex. A, Progress Notes dated

12/3/02). PA Kelly ordered Motrin for pain, ice for swelling,

x-rays and around the clock observation. (Doc. No. 28, Ex. A,

Progress Notes dated 12/3/04, Ex. C, Physician's Orders dated

12/3/04). Plaintiff was monitored on an hourly basis by the

nursing staff. Id. At 3:30 pm, he was seen by Dr. Symons. Id.

Dr. Symons ordered a CT Scan, which was performed on the morning

of December 4, 2002. (Doc. No. 28, Ex. A, Progress Notes dated

12/3/02, Ex. B, copy of CT. Scan). The CT Scan confirmed

multiple left sided facial fractures including “a blow-out

fracture of the left orbital floor suspicious for entrapment of

orbital contents. Id. 

On December 4, 2002, Dr. Symons ordered an ophthalmology

exam and a referral to Dr. Schietroma, noting “plastic/ocular

reconstruction.” (Doc. No. 28, Ex. A, Progress Notes dated

12/4/02). He also ordered plaintiff to remain in the infirmary.

(Doc. No. 28, Ex. C, Physician's orders dated 12/5/02). 

On December 6, 2002, plaintiff was seen by Dr. Fisher, an

ophthalmologist. (Doc. No. 28, Ex. B, Consultation Record dated

12/4/02). Dr. Fisher recommended that plaintiff be seen

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8

immediately by an oral surgeon and that he have a retinal

consult. Id. Dr. Fisher told plaintiff that he could not

perform the type of surgery that plaintiff needed, but that his

partner, Dr. Schietroma, could. (Doc. No. 1, complaint at p.

2). 

On December 8, 2002, Dr. Symons spoke with Dr. Collins, who

explained that plaintiff had a prior injury in the early 1990's

which had required extensive reconstruction involving the left

orbit and left ethmoid sinus, and because of the extent of the

current injury, plaintiff should be referred, as soon as

possible, to Dr. Schietroma, an Ophthalmic Plastic and

Reconstructive Surgeon, in Camp Hill, Pennsylvania. (Doc. No.

28, Ex. A, Progress Notes dated 12/9/02). 

On December 10, 2002, plaintiff was transferred from SCIRockview to SCI-Camp Hill, in anticipation of his surgery.

(Doc. No. 28, Ex. C, Physician's Orders dated 12/10/02). Upon

entry into SCI-Camp Hill, plaintiff was admitted into the

infirmary under around the clock observation. Id. 

On December 11, 2002, plaintiff was transported to Pinnacle

Health Hospital, where Dr. Schietroma repaired plaintiff's left

orbital floor and medial wall fractures with a metal mesh

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 8 of 18
9

implant, as well as tamponed a CSF (Cerebrospinal Fluid)leak

with free orbital fat. (Doc. No. 28, Ex. B, Operative Report

dated 12/11/02; Summary Report dated 12/11/02; Consultation

Report dated 12/11/02). 

On December 12, 2002, plaintiff was seen by Dr. Schietroma

for a follow-up examination in the morning and afternoon. (Doc.

No. 28, Ex. B, Summary Report dated 12/12/02). On December 12,

2002, Dr. Schietroma discharged the plaintiff, noting the

following:

He does not appear to have a CSF leak. I had him keep

his chin down on several occasions during the day and

he had drainage from the left nose consisting of only

two drops on one occasion and this may not been CSF

fluid. He does not appear to have a spinal headache.

I initially had Mr. Wood on Kefzol IV postoperatively.

On the morning afer surgery he complained of diffuse

itching of the skin. I switched him to Cipro 500 p.o.

b.i.b. 

I am discharging Mr. Wood on Cipro 500 p.o. b.i.d.,

Bacitracin ophthalmic ointment to the skin incision

site at the lateral canthus and in the left eye three

times a day, and ice compress to the left eye for the

remainder of December 12, 2002 and then switching to

warm compresses four times a day to the left eye for

one week. I asked that he tilt his head forward a

number of time throughout the day to make sure that

there is not CSF leak.

In light of the CSF leak it is probably worth keeping

him in the infirmary for one week to make sure that he

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 9 of 18
10

does not develop a fever or signs of meningitis. I

will forward a copy of this letter to Wexford should he

be transferred. I will see him for follow-up in State

College on December 20th or 21st. 

(Doc. No. 28, Ex. B, letter to Dr. Young, SCI-Camp Hill Medical

Department).

Upon his return to SCI-Camp Hill, plaintiff was admitted to

the infirmary. (Doc. No. 28, Ex. A, Progress Notes dated

12/12/02). On December 17, 2002, plaintiff was returned to SCIRockview. (Doc. No. 28, Ex. A, Progress Notes dated 12/17/02).

 Plaintiff saw Dr. Schietroma for follow-up examinations on

December 20, 2002, January 17, 2003 and April 18, 2003. (Doc.

No. 28, Ex. B, Consultation Records). At his April 18, 2003,

follow-up visit, plaintiff complained of “bilateral nasal

discharge” in which he was “treated with a fourteen-day course

of oral antibiotics without success.” (Doc. No. 28, Ex. B,

letter from Dr. Schietroma to SCI-Rockview Medical Department).

Although an x-ray taken on March 5, 2003, “did not indicate

sinusitis”, Dr. Schietroma suggested plaintiff have a postoperative CT Scan “in light of the possible sinusitis and the

possibility of herniated soft tissue from the orbit into the

maxillary sinus.” Id. 

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On May 13, 2003, plaintiff underwent a post-surgical CT

Scan. (Doc. No. 28, Ex. B, CT Scan). It showed that “there are

now post surgical changes present in relation to the

inferomedial aspect of the left orbital floor” in that “there

continues to be a sizable bony defect in within the inferior

wall laterally” and “there is evidence of prolapse of left

orbital contents into the superior aspect of the maxillary

sinus.” Id. 

On August 22, 2003, plaintiff was seen by Dr. Fisher for

complaints of double vision. (Doc. No. 28, Ex. A, Progress

Notes dated 8/22/03). Dr. Fisher recommended a consult with an

ocular plastic surgeon. Id. On October 3, 2003, plaintiff

again reported double vision to the SCI-Rockview medical staff.

(Doc. No. 28, Ex. A, Progress Notes dated 10/3/03). 

On October 16, 2003, Plaintiff was seen by Dr. Romeo

concerning his double vision. (Doc. No. 28, Ex. B, Progress

Notes dated 10/16/03). Dr. Romeo wrote a consult for an ocular

plastic surgeon. (Doc. No. 28, Ex. A, Progress Notes dated

10/16/03; Ex. B, Consultation Authorization Letter dated

11/11/03). 

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 11 of 18
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On November 10, 2003, plaintiff was seen by Dr. Schietroma

for a follow-up examination. (Doc. No. 28, Ex. B, letter from

Dr. Schietroma to SCI-Rockview Medical Department). Dr.

Schietroma noted the following: 

I saw Mr. Wood for follow-up on 11/10/03. As you know

he underwent complex left orbit floor and medial wall

repair on 12/11/02. He complains of episodic diplopia

in primary position, episodic fleeting sharp pain of

the left cheek. He had sinusitis in the spring which

prompted a CT Scan. Unfortunately, he did not have the

scan with him for review. 

On exam, visual acuity was 20/25/OS. Extraocular

movements were full with diplopia only in extreme right

and up gaze. There was marked enophthalmos measuring

6 mm. 

I will contact Centre Community Hospital to see if they

will send me a copy of Mr. Wood's most recent CT Scan.

Clearly he has insufficient support of his orbital

tissue. I would recommend reexploration of the orbit

and either repositioning of the metal mesh implant or

addition of medpore implant material to build up the

floor of the orbit. 

I will contact you to discuss this further. 

Id. On November 11, 2003, Dr. Schietroma's consult was reviewed

by Dr. John Lee. (Doc. No. 28, Ex. A, Progress Notes dated

11/11/03). Dr. Lee agreed with Dr. Schietroma as to the need to

“redo left orbital fracture surgery.” Id. That same day, Dr.

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13

Romeo wrote a consult for the surgery to be performed by Dr.

John Lee. Id. 

On January 7, 2004, plaintiff was seen by Dr. Schietroma

concerning his surgery. (Doc. No. 28, Ex. A, Progress Notes

dated 1/7/04). Plaintiff was under the impression that Dr. Lee

would be performing the surgery. (Doc. No. 28, Ex. B, Pinnacle

Health Hospitals Patient's Refusal to Consent to Blood

Transfusion, Medical Procedure, or Treatment). However, Dr.

Lee, a Philadelphia physician, does not perform surgery at

Pinnacle Health Hospital. Id. Plaintiff refused to have the

follow-up surgery conducted by Dr. Schietroma. Id. Plaintiff

was not seen personally by either Dr. Schietroma or Dr. Romeo

since his refusal of surgery in January, 2004. (Doc. No. 28,

Exs. A, B, and C). 

Discussion

The Eighth Amendment “requires prison officials to provide

basic medical treatment to those whom it has incarcerated.”

Rouse vs. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)(citing

Estelle vs. Gamble, 429 U.S. 97 (1976)). In order to establish

a claim under § 1983 based on the Eighth Amendment, an inmate

must allege acts or omissions by prison officials sufficiently

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14

harmful to evidence deliberate indifference to a serious medical

need. See Spruill vs. Gillis, 372 F.3d 218, 235 (3d Cir. 2004);

Natale vs. Camden Cty. Correctional Facility, 318 F.3d 575, 582

(3d Cir. 2003). 

In the context of medical care, the relevant inquiry is

whether the defendant was: (1) deliberately indifferent (the

subjective element) to (2) plaintiff's serious medical needs

(the objective element). Monmouth County Correctional

Institution Inmates vs. Lanzaro, 834 F.2d 326, 346 (3d Cir.

1987); West vs. Keve, 571 F.2d 158, 161 (3d Cir. 1979). Because

only egregious acts or omissions can violate this standard, mere

medical malpractice can not result in an Eighth Amendment

violation, nor can disagreements over a prison physician's

medical judgment. White vs. Napoleon, 897 F.2d 103, 108-10 (3d

Cir. 1990).

A complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition

does not state a valid claim of medical mistreatment under the

Eighth Amendment...” Estelle vs. Gamble, 429 U.S. 97, 106,

(1976). “A medical decision not to order an X-ray, or like

measures, does not represent cruel and unusual punishment. At

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 14 of 18
most it is medical malpractice.” Id., 429 U.S. at 107.

“Allegations of medical malpractice are not sufficient to

establish a Constitutional violation.” Spruill, 372 F.3d at

235. “[A]s long as a physician exercises professional judgment

his behavior will not violate a prisoner’s constitutional

rights.” Brown vs. Borough of Chambersburg, 903 F.2d 274, 278

(3d Cir. 1990). In sum, negligence, unsuccessful medical

treatment, or medical malpractice do not give rise to a § 1983

cause of action, and an inmate’s disagreement with medical

treatment is insufficient to establish deliberate indifference.

See Durmer vs. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

A mere difference of opinion between the prison's medical

staff and the inmate regarding the diagnosis or treatment which

the inmate receives does not support a claim of cruel and

unusual punishment. Farmer vs. Carlson, 685 F. Supp. 1335, 1339

(M.D. Pa. 1988). See McCracken vs. Jones, 562 F.2d 22, 24 (10th

Cir. 1977); Smart vs. Villar, 547 F.2d 112, 113 (10th Cir.

1976), cert. denied, 450 U.S. 1041 (1981). 

Additionally, if there is a dispute over the adequacy of the

received treatment, courts have consistently been reluctant to

second guess the medical judgment of the attending physician.

Little vs. Lycoming County, 912 F. Supp. 809, 815 (M.D. Pa.),

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 15 of 18
16

aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether

the defendant has provided the plaintiff with some type of

treatment, regardless of whether it is what the plaintiff

desires. Farmer vs. Carlson, 685 F. Supp. at 1339. 

The objective component of an Eighth Amendment claim, i.e.,

whether a plaintiff's medical needs were serious, has its roots

in contemporary standards of decency. Hudson vs. McMillian, 503

U.S. 1 (1992). A medical need is serious if it is one that has

been diagnosed by a physician as mandating treatment or is one

that is so obvious that even a lay person would easily recognize

the necessity for a doctor's attention. Johnson vs. Busby, 953

F.2d 349, 351 (8th Cir. 1991); Monmouth County Correctional

Institution Inmates vs. Lanzaro, 834 F.2d at 347; Ramos vs.

Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S.

1041 (1981); West vs. Keve, 571 F.2d 158, 162-63 n.6 (3d Cir.

1978). The serious medical need element contemplates a

condition of urgency, one that may produce death, degeneration,

or extreme pain. See Monmouth County Correctional Institution

Inmates vs. Lanzaro, 834 F.2d at 347; Archer vs. Dutcher, 733

F.2d 14, 16-17 (2d Cir. 1984); Todaro vs. Ward, 565 F.2d 48, 52

(2d Cir. 1977). 

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 16 of 18
17

A review of the documentation submitted by the defendant

Romeo reveals that the plaintiff was treated extensively between

December 3, 2002, the date of the assault, and January 7, 2004,

the date he refused further medical treatment from Dr.

Schietroma. Plaintiff's medical records reveal that he received

numerous x-rays, CT scans, evaluations by specialists, pain

medication, regular evaluations by the prison staff, including

physicians, nurses and physician's assistants. (See Doc. No.

28, Ex. A, Progress Notes; Ex. B, Consultation Records; and Ex.

C, Physician's Orders). Indeed, the record establishes

meaningful efforts by the defendants to provide plaintiff with

necessary medical care, and an attendant mental state that falls

woefully short of deliberate indifference. 

The plaintiff has failed to present evidence from which a

reasonable jury could conclude that the defendants possessed the

culpable mental state necessary for Eighth Amendment liability

to attach. There is insufficient proof in the record for a

fair-minded jury to conclude that the defendants were

deliberately indifferent to plaintiff's medical needs. See

Estelle vs. Gamble, 429 U.S. 97, 106 (1976); Monmouth County

Correctional Institution Inmates vs. Lanzaro, 834 F.2d at 346;

Case 4:04-cv-01693-MM-DB Document 67 Filed 09/02/05 Page 17 of 18
West vs. Keve, 571 F.2d at 161. Indeed, the scope and quality

of medical attention that the defendants provided plaintiff

precludes a finding of deliberate indifference. 

The record before the court, at best, demonstrates

plaintiff's disagreement with the course of his treatment,

specifically, having to undergo reconstructive surgery again by

Dr. Schietroma. As such, the evidence of record can only rise

to the level of mere negligence. However, as simple negligence

can not serve as a predicate to liability under § 1983, Hudson

vs. Palmer, 468 U.S. 517 (1984), defendant Romeo is entitled to

summary judgement and defendant Schietroma's motion to dismiss

will be granted. See White vs. Napoleon, 897 F.2d at 108-110.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendant Schietroma's motion to dismiss

(Doc. No. 11) is GRANTED. 

2. The motion for summary judgment filed by

defendant Romeo (Doc. No. 22) is GRANTED.

Judgment is hereby entered in favor of

defendant Romeo and against the plaintiff.

 s/Malcolm Muir

 

MUIR

United States District Judge

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