1. Plaintiff is currently confined in the Smithfield State

Correctional Facility, Huntingdon, Pennsylvania. 

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS RAY FETTERS, :

:

Plaintiff : No. 4:CV-06-1000

:

vs. : (Complaint Filed 05/17/06)

:

: (Judge Muir)

OLGA BEREGOVSKAYA, et al., :

:

Defendants :

ORDER

January 11, 2007

BACKGROUND

Plaintiff, Thomas Ray Fetter, an inmate formerly confined

in the State Correctional Institution, Huntingdon, Pennsylvania

(“SCI-Huntingdon”), filed the above captioned civil rights

action pursuant to 42 U.S.C. § 1983.1 He complains that

defendants have been deliberately indifferent to his serious

medical needs, in violation of his Eighth Amendment rights.

(Doc. No. 1, complaint). Named as defendants in the complaint

are Dr. Beregovskaya, SCI-Huntingdon Medical Director, and

Prison Health Services, a private contract services health care

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provider. Presently before the court is defendants’ motion to

dismiss the plaintiff’s complaint. (Doc. No. 14). The motion

is fully briefed, and is ripe for disposition. For the reasons

set forth below, defendants’ motion to dismiss will be granted.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the

dismissal of claims that fail to assert a basis upon which

relief can be granted. See FED. R. CIV. P. 12(b)(6). When

deciding a motion to dismiss for failure to state a claim, the

court is required to accept as true all of the factual

allegations in the complaint and all reasonable inferences that

can be drawn therefrom. Langford vs. City of Atlantic City, 235

F.3d 845, 847 (3d Cir. 2000) (citing Nami vs. Fauver, 82 F.3d

63, 65 (3d Cir. 1996)). “The complaint will be deemed to have

alleged sufficient facts if it adequately put[s] the defendant

on notice of the essential elements of the plaintiff’s cause of

action.” Id. The court will not dismiss a complaint for

failure to state a claim unless it appears beyond a doubt that

“no relief could be granted under any set of facts that could be

proved consistent with the allegations.” Swierkiewicz vs.

Sorema N.A., 534 U.S. 506, 514 (2002). Consistent with these

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principles, the court must grant leave to amend before

dismissing a claim that is merely deficient. See Shane vs.

Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). 

Factual Allegations of Plaintiff’s Complaint

Plaintiff states that he suffers from “Hepatitis C, impaired

liver function, IBS, and painful diverticular disease.” (Doc.

No. 1, complaint ). He claims while housed at SCI-Somerset

from November, 2004 through February 2005, he was prescribed

Tylenol #3 codeine, Motrin 400mg and Metamucil “which afforded

plaintiff pain control and bowel function of a normal nature,

without excessive diarrhea.” Id.

In February, 2005, plaintiff was transferred to SCIHuntingdon, where he came under the care of Dr. Beregovskaya.

Id. Initially, Dr. Beregovskaya prescribed “Codeine Sulfate

30mg BID, Lomotil 25mg BID, and Metamucil to treat plaintiff’s

IBS, and painful diverticular disease.” Id. Plaintiff states

that “these medications controlled plaintiff’s symptoms and pain

and were ordered for plaintiff thru August 2005.” Id. 

On August 3, 2005, plaintiff had a verbal dispute with a

prison guard. Id. Plaintiff states that the guard “threatened

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to use his influence with medical to have plaintiff’s pain

control stopped, to ‘learn him something’”. Id. 

On August 12, 2005, plaintiff claims that Dr. Beregovskaya

came to see plaintiff in the RHU. Id. She told plaintiff that

his pain medications would be reduced by 50% for thirty days and

then discontinued, without giving any reason for doing so. Id.

Plaintiff states that he was then prescribed Ultram, a

substitute pain medication. Id. Plaintiff’s other treatments

and medications remained the same. 

In October, 2005, Dr. Beregovskaya sent plaintiff to a

hospital for a liver biopsy and started plaintiff on

Interferon/Ribauarin therapy for plaintiff’s Hepatitis C. Id.

In December, 2005, Dr. Beregovskaya again sent plaintiff to a

hospital for a CT scan of plaintiff’s abdomen. Id. After each

of these trips to the hospital, plaintiff states that he

“complained to defendant, Dr. Beregovskaya about being in bad

pain after defecation, which lasts for hours.” Id. He claims

that he “repeatedly told defendant, Dr. Beregovskaya that Ultram

was not helping control his pain, and asked to be put back on

codeine ordered by specialist, Allen Snyder, M.D., in November,

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2004, or given an effective substitute” and that Dr.

Beregovskaya “denied plaintiff each time.” Id. 

Plaintiff further claims that in December 2005, after

returning from the hospital CT scan, plaintiff experienced a

bursting sensation in his lower left abdomen, and started

experiencing frequent and painful urination, as well as a dry

mouth, which symptoms he claims continue to the present. Id.

Plaintiff also states that beginning in late February, 2006, and

continuing to the present, he experiences pain and swelling in

his feet and legs after lying in bed for any period of time.

Id. Finally, he claims that since late March, 2006, he has been

experiencing constant pain in his calves. Id. 

After exhausting his administrative remedies, plaintiff

filed the instant action in which he seeks compensatory and

punitive damages for defendants’ deliberate indifference to

plaintiff’s medical needs; specifically Dr. Beregovskaya’s

“denial of established prescribed medication by specialist Allen

Snyder, M.D.”. Plaintiff also seeks “a preliminary and

permanent injunction, ordering defendant Olga Beregovskaya,

M.D., to order plaintiff pain control for his conditions [that

was] previously ordered by specialist Allen Snyder, M.D., and by

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2. The Court notes that the adjudicatory power of a federal

court depends upon "the continuing existence of a live and

acute controversy." Steffel vs. Thompson, 415 U.S. 452, 459

(1974) (emphasis in original). "The rule in federal cases is

that an actual controversy must be extant at all stages of

review, not merely at the time the complaint is filed." Id.

at n.10 (citations omitted). "Past exposure to illegal

conduct is insufficient to sustain a present case or

controversy regarding injunctive relief if unaccompanied by

continuing, present adverse effects." Rosenberg vs. Meese,

622 F. Supp. 1451, 1462 (S.D.N.Y. 1985) (citing O'Shea vs.

Littleton, 414 U.S. 488, 495-96 (1974)).

Furthermore, "[a]bsent class certification, an inmate's

claim for injunctive and declaratory relief in a section 1983

action fails to present a case or controversy once the inmate

has been transferred." Wahl vs. McIver, 773 F.2d 1169, 1173

(11th Cir. 1985) (citation omitted); see also Carter vs.

Thompson, 808 F. Supp. 1548, 1555 (M.D. Fla. 1992). The

instant plaintiff is no longer confined at SCI-Huntingdon, and

there is no reasonable probability that he will be returned to

that correctional facility in the foreseeable future. 

Consequently, since plaintiff is not suffering any apparent

continuing adverse effects as a result of his prior

confinement at SCI-Huntingdon, his requests for injunctive and

declaratory relief are moot under the standards set forth in

Rosenberg and Wahl.

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Dr. Beregovskaya herself,” as well as to be “seen by a pain

control specialist, third party, on a recurring basis.” Id.2

Discussion

To state a viable claim under 42 U.S.C. § 1983, a plaintiff

must allege that the defendant, while acting under color of

state law, deprived him of a right, privilege or immunity

secured by the Constitution or by the laws of the United States.

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See 42 U.S.C. § 1983; see also West vs. Atkins, 487 U.S. 42, 48

(1988). A prerequisite for a viable civil rights claim is that

the defendant directed, or knew of and acquiesced in, the

deprivation of the plaintiff's constitutional rights. See

Monell vs. Dep’t of Social Serv., 436 U.S. 658, 694-95 (1978);

Gay vs. Petsock, 917 F.2d 768, 771 (3d Cir. 1990); Rode vs.

Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). The

plaintiff must allege that the defendant was personally involved

in the events or occurrences that underlie the claim. See

Atkinson vs. Taylor, 316 F.3d 257, 270-71 (3d Cir. 2003).

Plaintiff’s complaint against defendant, Prison Health

Services, suffers from a lack of alleged personal involvement in

the events at issue. Aside from naming Prison Health Services

as a defendant, the complaint is devoid of any allegation of

personal involvement by this defendant. Thus, in the absence of

any allegations of direct involvement by Prison Health Services

in the alleged improper care of plaintiff, the complaint fails

to state a claim against this defendant and the court will

dismiss this defendant from the action. The allegations against

Dr. Beregovskaya, in contrast, clearly assert personal

involvement in plaintiff’s medical treatment. 

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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

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). Farmer vs. Brennan, 511 U.S. 825

(1994); 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).

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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

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

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(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.),

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.

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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). 

Plaintiff’s complaint clearly reveals that the plaintiff’s

medical needs were attended to while he housed at SCIHuntingdon. At best, plaintiff’s complaint demonstrates

plaintiff’s disagreement with Dr. Beregovskaya’s choice of

prescribing Ultram over plaintiff’s choice of Codeine. However,

plaintiff’s reliance upon a prior prescription of his preferred

pain reliever by another physician, or the prior prescription of

different pain relievers by Dr. Beregovskaya at an earlier time,

does not serve as a predicate to liability under § 1983. See,

White vs. Napoleon, 897 F.2d at 108-110 (3d Cir. 1990)(No

deliberate indifference claim is stated when a doctor disagrees

with the professional judgment of another doctor since “[t]here

may, for example, be several acceptable ways to treat an

illness.”); Inmates of Allegheny County Jail vs. Pierce, 612

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3. To the extent that plaintiff may be attempting to claim

that his pain medication was reduced as a result of a

conspiracy between Dr. Beregovskaya and the prison guard

plaintiff allegedly had a dispute with, the complaint fails to

set forth a viable conspiracy claim. In setting forth a claim

of conspiracy, a plaintiff can not rely on broad or conclusory

allegations. Dennis vs. Sparks, 449 U.S. 24, 27-36 (1980). 

On the contrary, he must allege with particularity and present

material facts which show that the purported conspirators

reached some understanding or agreement or plotted, planned

and conspired together to deprive plaintiff of a protected

federal right. Chicarelli vs. Plymouth Garden Apartments, 551

F. Supp. 532, 539 (E.D. Pa. 1982).

Plaintiff, nowhere alleges any facts supporting a plan or

agreement between Dr. Beregovskaya and the prison guard, who

is not a named defendant, to conspire or engage in a corrupt

plot to violate plaintiff’s civil rights. The court therefore

rejects plaintiff’s factual contentions as clearly baseless. 

See Young vs. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991)

(conspiracy claims which are based upon pro se plaintiff's

subjective suspicions and unsupported speculation properly

dismissed under § 1915(d)). The allegations in the complaint

are vague and conclusory and do not present a cognizable §

1983 conspiracy claim.

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F.2d 754, 762 (3d Cir. 1979)(claim for deliberate indifference

does not arise just because one doctor disagrees with the

diagnosis of another). This is particularly so in light of the

fact that there are no allegations in the complaint that Dr.

Beregovskaya intentionally withheld plaintiff’s preferred pain

reliever in order to inflict pain or harm upon plaintiff.

Farmer; Rouse.3

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Thus, the allegations contained within the complaint

establish meaningful efforts by Dr. Beregovskaya to provide

plaintiff with necessary medical care, and an attendant mental

state that falls woefully short of deliberate indifference.

Indeed, plaintiff's allegations of the scope and quality of

medical attention that Dr. Beregovskaya provided precludes a

finding of deliberate indifference on behalf of this defendant.

Finally, plaintiff claims that he is “a PTSD and chronically

ill disabled U.S. Service Veteran and falls under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq.” and

that in Yeskey v. Pennsylvania Department of Corrections, 524

U.S. 206, 210 (1998), the United States Supreme Court held that

ADA claims are applicable to inmates. 

Title II, 42 U.S.C. § 12132 provides in relevant part that

“no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied

the benefits of the services or activities of a public entity or

be subjected to discrimination by such entity.” Individual

defendants, however, are not public entities within the meaning

of Title II of the ADA and are, therefore, not subject to suit.

Emerson vs. Thiel College, 296 F.3d 184, 189 (3d Cir.

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2002)(Individuals are not subject to liability under “Titles I

or II of the ADA, which prohibit discrimination by employers and

public entities respectively.”); Wesley vs. Vaughn, 2003 U.S.

Dist. LEXIS 4434 (E.D. Pa. 2003)(Prison supervisors could not be

made defendants in their individual capacities in a lawsuit in

which plaintiff, a prisoner, alleged the individuals failed to

accommodate plaintiff’s need to avoid second hand smoke.)

Further, Prison Health Services is not a public entity

within the meaning of Title II of the ADA and so is also not

subject to suit. Nor does plaintiff allege that Public Health

Services is a public entity for purposes of the ADA claim.

Thus, the plaintiff’s complaint fails to state a cognizable ADA

claim against either Dr. Beregovskaya or Prison Health Services.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion to dismiss the plaintiff’s

complaint (Doc. No. 14) is GRANTED as set

forth in paragraph 3 below. 

2. Plaintiff’s motion for temporary restraining

order (Doc. No. 11) is DISMISSED as moot.

3. The Plaintiff’s complaint is dismissed with 

 leave to file an amended complaint within 20 

days of the date hereof.

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4. If Plaintiff fails to file an amended

complaint in accordance with paragraph 3 of

this order the Clerk of Court is directed to

CLOSE this case without further order of

court. 

5. Any appeal taken from this order will be

deemed frivolous, without probable cause, and

not taken in good faith.

s/Malcolm Muir 

MUIR

United States District Judge

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