UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN POWELL, : CIVIL NO. 4:07-CV-02225

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

DR. SYMONS, :

:

Defendant :

REPORT AND RECOMMENDATION

I. Background and Procedural History.

The plaintiff, a prisoner proceeding pro se, commenced

this 42 U.S.C. § 1983 action by filing a complaint on December

7, 2007. The defendant is John Symons, M.D. 

The plaintiff alleges that the defendant has repeatedly

ignored his complaints concerning burning feelings in his

chest, stomach, liver, kidney area and back. He alleges that

his symptoms are getting worse and occur more frequently. The

plaintiff alleges that by ignoring his complaints the

defendant has disregarded a substantial risk of further injury

to the plaintiff. He alleges that he has sustained further

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injury as a result of the defendant’s treatment. The

plaintiff alleges that the defendant has been and is being

deliberately indifferent to his medical needs. 

The plaintiff is seeking compensatory and punitive

damages as well as injunctive relief in the form of medical

care from a doctor outside of the prison system.

On September 26, 2008, the defendant filed an answer to

the complaint. 

On December 15, 2008, the defendant filed a motion for

summary judgment, a statement of undisputed material facts, a

brief and documents in support of that motion.

The plaintiff was granted numerous extensions of time

to respond to the defendant’s motion for summary judgment. By

an Order dated December 7, 2009, the plaintiff was granted a

final extension of time until February 26, 2010 to file a

brief in opposition to the motion for summary judgment, a

response to the defendant’s statement of material facts and

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any summary judgment evidence in opposition to the motion. 

The Order of December 7 provided that no further extensions th

of time will be granted. The plaintiff nevertheless filed

another motion for an extension of time on February 22, 2010. 

By an Order dated February 24, 2010, that motion was denied. 

Despite being given more than a year to do so, the

plaintiff has not filed a brief in opposition to the

defendant’s summary judgment motion. Pursuant to Local Rule 1

7.6, the plaintiff is deemed not to oppose the motion. Even

though the plaintiff is deemed not to oppose the motion, we

must determine whether the defendant is entitled to judgment

as a matter of law. Anchorage Associates v. Virgin Islands

Board of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990)(even

where motion for summary judgment is unopposed court must

1. Even though the plaintiff has not filed a brief in

opposition to the motion for summary judgment, the

plaintiff has filed numerous letters with the court and he

has recently filed another motion for the appointment of

counsel. Thus, the plaintiff has indicated that he does

not intend to abandon this lawsuit. We have addressed the

plaintiff’s most-recent motion for the appointment of

counsel by a separate order.

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determine if moving party is entitled to judgment as a matter

of law). 

II. Summary Judgment Standard.

Summary judgment is appropriate if the "pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of

law." Fed.R.Civ.P. 56(c)(2). The moving party bears the

initial responsibility of informing the court of the basis for

its motion and identifying those portions of the record which

demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With

respect to an issue on which the nonmoving party bears the

burden of proof, the moving party may discharge that burden by

“‘showing’–- that is, pointing out to the district court –-

that there is an absence of evidence to support the nonmoving

party’s case.” Id. at 325. Once the moving party has met its

burden, the nonmoving party may not rest upon the mere

allegations or denials of its pleading; rather, the nonmoving

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party must “set out specific facts showing a genuine issue for

trial.” Fed.R.Civ.P. 56(e)(2). 

A material factual dispute is a dispute as to a factual

issue the determination of which will affect the outcome of

the trial under governing law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts

that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Id.

Summary judgment is not appropriate when there is a

genuine dispute about a material fact. Id. at 248. A dispute

as to an issue of fact is "'genuine' only if a reasonable

jury, considering the evidence presented, could find for the

non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94

(3d Cir. 1988). “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

Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). “If the evidence is merely colorable . . . or is not

significantly probative . . . summary judgment may be

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granted.” Anderson, supra, 477 U.S. at 249-50. In determining

whether a genuine issue of material fact exists, the court

must consider all evidence in the light most favorable to the

non-moving party. White v. Westinghouse Electric Co., 862

F.2d 56, 59 (3d Cir. 1988).

At the summary judgment stage, the judge’s function is

not to weigh the evidence and determine the truth of the

matter, but is to determine whether there is a genuine issue

for trial. Anderson, supra, 477 U.S. at 249. The proper

inquiry of the court in connection with a motion for summary

judgement “is the threshold inquiry of determining whether

there is the need for a trial - whether, in other words, there

are any genuine factual issues that properly can be resolved

only by a finder of fact because they may reasonably be

resolved in favor of either party.” Id. at 250. 

“[T]he plain language of Rule 56(c) mandates the entry

of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential

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to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex, supra, 477 U.S. at 322. 

“Under such circumstances, ‘there can be no genuine issue as

to any material fact, since a complete failure of proof

concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.’” Anderson v.

CONRAIL, 297 F.3d 242, 247 (3d Cir. 2002)(quoting Celotex,

supra, 477 U.S. at 323).

III. Discussion.

The plaintiff’s claim is an Eighth Amendment medical

claim.

In order for the plaintiff to establish an Eighth

Amendment violation he must establish that the defendant

acted, or failed to act, with deliberate indifference to his

serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976).

The concept of serious medical need has two components,

one relating to the consequences of a failure to treat and the

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other relating to the obviousness of those consequences.

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir.

1991). The condition must be such that a failure to treat can

be expected to lead to substantial and unnecessary suffering,

injury or death. Id. Also, the condition must be one that has

been diagnosed by a doctor as requiring treatment or one that

is so obvious that a lay person would easily recognize the

need for a doctor's attention. Id.

Mere medical malpractice does not give rise to a

violation of the Eighth Amendment. White v. Napoleon, 897

F.2d 103, 108 (3d Cir. 1990). "While the distinction between

deliberate indifference and malpractice can be subtle, it is

well established that as long as a physician exercises

professional judgment his behavior will not violate a

prisoner's constitutional rights." Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). The Third

Circuit has “found ‘deliberate indifference’ in a variety of

circumstances, including where the prison official (1) knows

of a prisoner’s need for medical treatment but intentionally

refuses to provide it; (2) delays necessary medical treatment

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based on a non-medical reason; or (3) prevents a prisoner from

receiving needed or recommended medical treatment.” Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999). The Third Circuit

has also “found ‘deliberate indifference’ to exist when the

prison official persists in a particular course of treatment

‘in the face of resultant pain and risk of permanent injury.’”

Id. (quoting White v. Napoleon, 897 F.2d 103, 109 (3d Cir.

1990)). 

Prison medical authorities are given considerable

latitude in the diagnosis and treatment of medical problems of

inmates. Courts will “disavow any attempt to second guess the

propriety or adequacy of a particular course of treatment . .

. which remains a question of sound professional judgment.”

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

1996)(quoting Inmates of Allegheny County Jail v. Pierce, 612

F.2d 754, 762 (3d Cir. 1979)). Mere disagreement as to the

proper medical treatment does not support an Eighth Amendment

claim. Monmouth County Correctional Institutional Inmates v.

Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)(“Courts, determining

what constitutes deliberate indifference, have consistently

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held that mere allegations of malpractice do not raise issues

of constitutional import. . . . Nor does mere disagreement as

to the proper medical treatment support a claim of an eighth

amendment violation.”); White, supra, 897 F.2d at 110 (mere

disagreement over proper treatment does not state a claim upon

which relief can be granted).

The defendant contends that he is entitled to summary

judgment because there is no evidence that he was deliberately

indifferent to the plaintiff’s medical needs. The defendant

also contends that he is entitled to summary judgment because

the plaintiff has not presented any expert testimony that any

actions or inaction on his part caused the plaintiff any

injury. Finally, the defendant contends that the plaintiff’s

demand for punitive damages should be dismissed because the

plaintiff has not established that he acted with a bad motive

or intent or that he exhibited extreme or outrageous conduct. 

The defendant has presented evidence that the plaintiff

received extensive medical care and treatment including

examinations, medications, lab tests, chest x-rays and an

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electrocardiogram. The plaintiff has not presented any

evidence that the defendant was deliberately indifferent to

his medical needs or any evidence that the defendant’s actions

or inactions caused him harm. Accordingly, the defendant is

entitled to summary judgment.

IV. Recommendations.

Based on the foregoing, it is recommended that the

defendant’s motion (doc. 64) for summary judgment be granted,

that summary judgment be entered in favor of the defendant and

that the case file be closed.

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: March 22, 2010.

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