1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL ALAN LATONA )

)

Plaintiff, )

v. ) C.A. No. 07-1 Erie

) District Judge McLaughlin

OFFICER MATTHEW POLLACK, et al.) Magistrate Judge Baxter

)

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the motion for summary judgment filed by

Defendants Prison Health Services, Inc., Renee Wnek, and Susan George [Document # 66] be

granted. The Clerk of Courts should be directed to close this case.

It is further recommended that Plaintiff’s motion for leave to file a “Fourth Amended

Complaint” [Document # 71] be denied as futile.

By separate text order filed this day, the Answer [entered on the docket as a “Remark” at

Document # 74] to the proposed Fourth Amended Complaint and the motion for summary

judgment filed by PHS, Inc., Wnek, George, and Jeffrey Barninger [document # 75] against the

proposed Fourth Amended Complaint will be stricken.

II. REPORT

A. Relevant Procedural History

The procedural history of this case is long and convoluted, but is necessarily related

herein as it impacts the resolution of the pending motion for leave to file a “Fourth Amended

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 1 of 20
 The claims remaining were a First Amendment religious exercise claim and the Eighth 1

Amendment medical claim.

2

Complaint.” 

On January 3, 2007, Plaintiff, acting pro se, filed the instant civil rights action. In his 

original complaint, Plaintiff alleged that at the time he entered Erie County Prison on October 4,

2006, he was suffering from bipolar disorder, acid reflux, four fractured ribs, a shattered jaw and

an injured knee, and that despite his repeated requests for medication and medical treatment, he

was denied both until October 16, 2006. Document # 3, ¶¶ 13, 15, and 17. Plaintiff also raised 

an excessive force claim and a First Amendment claim. Id.

The original Defendants filed a motion to dismiss (document # 6) and in opposition to

that motion, Plaintiff was allowed to file a proposed amended complaint on October 25, 2007. 

Document # 16. The undersigned filed a Report and Recommendation recommending the

granting in part and denying in part of Defendants’ motion to dismiss. In pertinent part, the

Report and Recommendation recommended that Erie County Prison and Warden Veshecco be

dismissed and that Plaintiff’s Fifth and Eighth Amendment claims related to the excessive use of

force be dismissed. Document # 18. By Memorandum Order filed on November 29, 2007, 1

District Judge Sean J. McLaughlin adopted the Report and Recommendation as the Opinion of

the Court. Document # 20.

Thereafter, the undersigned issued an Order directing Plaintiff to file yet another

amended complaint “regarding the Eighth Amendment medical claim in order to more

specifically describe who is responsible for the denial and/or delay in medical treatment.” 

Document # 19. The Order directed that the amended complaint be filed before December 10,

2007, and warned that Plaintiff’s failure to comply could result in the dismissal of this action for

failure to prosecute. Id.

By Order dated December 17, 2007, this Court directed Plaintiff to show cause before

January 3, 2008, for his failure to file the ordered amended complaint. Document # 21. On

January 2, 2008, Plaintiff requested an extension of time in which to file the amended

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complaint, which was granted until February 1, 2008. Document # 22. By motions filed on

February 4, 2008, Plaintiff requested the appointment of counsel, as well as a further extension

of time in which to file the amended complaint. Documents ## 23, 24. Plaintiff’s motion for

the appointment of counsel was denied, but his motion for a further extension of time was

granted. Documents ## 25, 26. The order granting the extension of time mandated that the

amended complaint be filed by February 25, 2008, and specifically warned: 

“this case cannot proceed until an amended complaint is filed. Failure to comply

with this Order will result in the dismissal of this action for failure to prosecute. 

As Plaintiff has already had several extensions of time in this regard, no further

extension will be permitted.” 

Document # 26. 

On February 29, 2008, Plaintiff filed a document entitled “Plaintiff’s Procedure” which

has been construed as an amended complaint. Document # 28. On that same date, Plaintiff filed

a Motion for Reconsideration with respect to Judge McLaughlin’s ruling on the Defendants’

motion to dismiss. Document # 29.

By Order dated July 10, 2008, Judge McLaughlin granted the Plaintiff’s Motion for

Reconsideration and allowed Plaintiff to proceed with the Eighth Amendment excessive use of

force claim. As a result of this ruling, Plaintiff was directed to file another amended complaint

no later than August 1, 2008, fully setting forth the Eighth Amendment medical claim, the

Eighth Amendment excessive force claim, and the First Amendment religious exercise claim. 

Document # 30.

By Order dated September 2, 2008, this Court directed Plaintiff to show cause before

September 12, 2008, for his failure to file the amended complaint as ordered by Judge

McLaughlin. Document # 32.

An amended complaint was filed on September 16, 2008. Document # 35. During a

hearing held on September 26, 2008, this Court struck that amended complaint, ordered that

limited discovery as to identities of parties be allowed and that based upon information gleaned

during that limited discovery, an amended complaint be filed by December 5, 2008. Document

# 36. This Court also allowed Plaintiff to withdraw his claims against Kinnane, Pollack, Kaiser,

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 3 of 20
 An amended complaint generally supercedes (or takes the place of) the previously 2

filed complaint.

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Gorring, and Houghton. Id. 

On December 2, 2008, Plaintiff filed a self-titled “motion for summary judgment”

seeking default against PHS. Document # 39. On December 8, 2008, Plaintiff filed a motion

for extension of time to file the amended complaint. Document # 40.

By Order dated December 19, 2008, this Court directed that the pending motion for

summary judgment be dismissed because Plaintiff had not named Prison Health Services as a

Defendant to this action, and therefore summary judgment (or more properly, a default) may not

be entered against it; and granted Plaintiff’s motion for extension of time to file the amended

complaint. The Order directed that Plaintiff must file his Amended Pleadings by January 15,

2009, and that failure to file an amended complaint would result in the dismissal of this action

for failure to prosecute. The Order also warned that no further extensions of time would be

granted without the showing of good cause. Document # 42.

 The self-styled “Third Amended Complaint” was filed on January 21, 2009, and names

2

Correctional Officer Baird, Renee Wnek, Susan George, Prison Health Services, Inc., and John

Does #1,# 2, and #3 as Defendants. Document # 44. Defendants Baird and John Does #1, #2,

and #3 have since been dismissed, leaving only Wnek, George, and PHS, Inc. as Defendants to

this action. See Documents ## 45, 57.

Presently pending before this Court is a motion for summary judgment filed by

Defendants Wnek, George, and PHS, Inc. Document # 66. Plaintiff has filed a brief in

opposition to the pending motion (document # 72), as well as a motion for leave to file a “Fourth

Amended Complaint” (document # 71), which remains pending. 

By Text Order dated November 3, 2009, this Court directed that Defendants “may file a

response to the motion to amend and the proposed amended complaint,” before December 15,

2009. Instead of filing a response to the motion to amend, counsel for Defendants, Alan Gold,

Esq., filed an Answer to the Fourth Amended Complaint answering on behalf of PHS, Inc.,

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 4 of 20
 The Third Amended Complaint also alleges that Defendant Baird denied Plaintiff the 3

opportunity to attend religious services and that unknown prison staff used excessive force

against him. The Religious Exercise claim against Defendant Baird has been voluntarily

withdrawn by Plaintiff. Document # 45. Because Plaintiff has not named anyone on the

excessive use of force claim, all John Doe Defendants have been terminated from this action. 

Document # 57.

5

Renee Wnek, Susan George. Document # 74. The Answer was also filed on behalf of Jeffery

Barninger, despite the fact that Barninger had not been formally served by Plaintiff. 

Additionally, a subsequent motion for summary judgment has been filed on behalf of all four.

Document # 75.

B. Allegations of the Third Amended Complaint3

In his Third Amended Complaint, Plaintiff explains that when he arrived at Erie County

Prison on October 4, 2006, he had been under a doctor’s care and had been prescribed

medications for acid-reflux, back pain, and bi-polar disorder, as well as injuries from a recent

fall. Plaintiff alleges that upon his intake interview with Defendant Renee Wnek, he provided

her with a list of his current medications and he complained of a fever associated with the recent

onset of a cold. Document # 44. Thereafter, Plaintiff claims that he repeatedly sought medical

attention, but he was not examined by a doctor until October 19 and did not receive any th

medications. Id. at ¶ 17.

Plaintiff further alleges that Defendant George was assigned to Plaintiff as his mental

health counselor and met with him on 10/5. Id. at ¶ 19. At that time, Plaintiff alerted her to his

mental health condition and explained that he had been without medications for a week. Id. 

Plaintiff did not receive any medications for his bi-polar condition until October 19th. Id. at ¶

23.

As to Defendant Wnek, Plaintiff specifically avers:

“Renee Wnek failed to thoroughly examine the Plaintiff during intake, review his

Booking and Observation Reports and give immediate attention to the Plaintiff’s

medical records. The Plaintiff believes that Prison Health Services failed to

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adequately train and supervise Renee Wnek in recognizing a serious medical need

which eventually lead [sic] to unnecessary pain and suffering by the Plaintiff and

thus a violation of his Eighth Amendment right.”

Id. at pages 4-5.

As to Defendant George, Plaintiff specifically avers:

“that Susan George failed to respond to the Plaintiff’s mental condition by

allowing him to go without medication for his bi-polar condition for 15 days. The

Plaintiff believes that given his past suicide attempts as well as the medical and

medications records that the Plaintiff presented during his intake Ms. George

should have paid closer attention to the Plaintiff’s needs and followed through in a

more timely fashion verifying the Plaintiff’s records. The Plaintiff also accuses

this Defendant of performing an improper mental health screening on the Plaintiff. 

The Plaintiff suffered through emotional episodes by depriving the Plaintiff of the

medication he needed to control and manage his mental condition. This also lead

[sic] to unnecessary suffering that could have been avoided with adequate medical

care and thus becomes a violation of the Plaintiff’s Eighth Amendment right.”

Id. at page 5.

As to Defendant Prison Health Services, Inc., Plaintiff specifically alleges:

“PHS failed to adequately train and supervise their staff and lacked guidelines or

policies directing their staff to acknowledge and act when they examine or treat an

inmate with a serious illness. It was not until October 19 that the Plaintiff was th

asked to sign a “Release of Medical Information” form that was faxed that day to

the Plaintiff’s doctor’s office in New York. The Plaintiff cannot understand why

it took the staff so long to respond to his request. This Court must keep in mind

that there is sufficient evidence pertaining to the Plaintiff’s attempts to gain the

attention of the medical staff. In other works, it ultimately took fifteen days to

respond to the Plaintiff’s illnesses. Had someone acted in a reasonable time to

verify the Plaintiff’s records he would not have had to suffer as he did. Because

of the actions of their staff, the Plaintiff did suffer unnecessary pain and anguish

whereby violating this Eighth Amendment right.”

Id. at page 7.

C. Standards of Review

1) Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521(1972). If

the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,

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it should do so despite failure to cite proper legal authority, confusion of legal theories, poor

syntax and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.

MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,

555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read

“with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992);

Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal

pleading rules, during the initial stages of litigation, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.

1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6)

standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). 

Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it

is appropriate. 

2) Motion to dismiss

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95 (2007). A complaint

must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41

(1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009)

(specifically applying Twombly analysis beyond the context of the Sherman Act). 

The Court need not accept inferences drawn by plaintiff if they are unsupported by the

facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,

394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906

(3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. 

Twombly, 550 U.S. at 556, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also

McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. Aug. 245, 2009) quoting

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Iqbal, ___ U.S. at ___, 129 S.Ct. At 1949 (“The tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”). A plaintiff’s factual

allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 556. Although the United States Supreme Court does “not require heightened fact

pleading of specifics, [the Court does require] enough facts to state a claim to relief that is

plausible on its face.” Id. at 570. 

In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’

rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,

at *1 (D.Del. February 22, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d

Cir. 2008). “This does not impose a probability requirement at the pleading stage, but instead

simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence

of the necessary element.” Phillips, 515 F.3d at 232, quoting Twombly, 550 U.S. at 556 n.3. 

Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:

To prevent dismissal, all civil complaints must now set out sufficient factual

matter to show that the claim is facially plausible. This then allows the court to

draw the reasonable inference that the defendant is liable for the alleged

misconduct. 

* * *

After Iqbal, when presented with a motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. First, the factual and legal

elements of a claim should be separated. The district court must accept all of

the complaint’s well-pleaded facts as true, but may disregard any legal

conclusions. Second, a district court must then determine whether the facts

alleged in the complaint are sufficient to show that the plaintiff has a

plausible claim for relief. In other words, a complaint must do more than

allege the plaintiff’s entitlement to relief. A complaint has to show such an

entitlement with its facts. As the Supreme Court instructed in Iqbal, where the

well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged - but it has not shown - that the pleader

is entitled to relief. This plausibility requirement will be a context-specific task

that requires the reviewing court to draw on its judicial experience and common

sense. 

Fowler v. UPMC Shadyside, 578 F.3d. 203, 210-11(3d Cir. 2009).

3) Motion for summary judgment 

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be

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granted 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.” Rule 56(e) further provides that when a motion for summary judgment is

made and supported, “an opposing party may not rely merely on allegations or denials in its own

pleading; rather, its response must – by affidavits or as otherwise provided in this rule – set out

specific facts showing a genuine issue for trial. If the opposing party does not so respond,

summary judgment should, if appropriate, be entered against that party.”

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Company, 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the

initial burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574

(1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the

non-movant must present affirmative evidence - more than a scintilla but less than a

preponderance - which supports each element of his claim to defeat a properly presented motion

for summary judgment). The non-moving party must go beyond the pleadings and show specific

facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

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must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Company of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the dispute

about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury could return

a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

D. Deliberate indifference under the Eighth Amendment 

 In the medical context, a constitutional violation under the Eighth Amendment occurs

only when state officials are deliberately indifferent to serious medical needs. Estelle v. Gamble,

429 U.S. 97 (1976). The standard is two-pronged: “[i]t requires deliberate indifference on the

part of prison officials and it requires that the prisoner's medical needs be serious.” West v.

Keve, 571 F.2d 158, 161 (3d Cir. 1978). A plaintiff must show that prison officials had a

“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Specifically,

deliberate indifference requires the demonstration that prison officials knew of an excessive risk

to an inmate’s health or safety and affirmatively disregarded that risk. Id. at 837-38. See also

Doe v. New Jersey Dept. of Corrections, 337 Fed. Appx. 220, 226 (3d Cir. July 8, 2009) (“it is

well settled that claims of negligence or medical malpractice, without some more culpable state

of mind, do not constitute deliberate indifference for purposes of an Eighth Amendment claim

entitled to remedy under § 1983.”). 

A serious medical need is "one that has been diagnosed by a physician as requiring

treatment or one that is so obvious that a lay person would easily recognize the necessity for a

doctor's attention." Monmouth County Correction Institute Inmates v. Lanzaro, 834 F.2d 326,

347 (3d Cir. 1987). A serious medical need may also be found to exist where the denial or delay

of treatment results in “unnecessary and wanton infliction of pain.” Id.

 Deliberate indifference may be manifested by an intentional refusal to provide care,

delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a

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denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v.

O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and

risk of permanent injury” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). See also Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999); Monmouth County, 834 F.2d at 346 (“deliberate

indifference is demonstrated ‘[w]hen ... prison authorities prevent an inmate from receiving

recommended treatment for serious medical needs or deny access to a physician capable of

evaluating the need for such treatment”).

However, mere misdiagnosis or negligent treatment is not actionable under §1983 as an

Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle,

429 U.S. at 106. Furthermore, deliberate indifference is generally not found when some level of

medical care has been offered to the inmate. Clark v. Doe, 2000 WL 1522855, at *2 (E.D.Pa. 

2000) (“courts have consistently rejected Eighth Amendment claims where an inmate has

received some level of medical care”). There is necessarily a distinction between a case in which

the prisoner claims a complete denial of medical treatment and one where the prisoner has

received some medical attention and the dispute is over the adequacy of the treatment. United

States ex rel. Walker v. Fayette County, 599 F.2d 533, 575 n.2 (3d Cir. 1979). Any attempt to

second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts

since such determinations remain a question of sound professional judgment. Inmates of

Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979), quoting Bowring v. Goodwin,

551 F.2d 44, 48 (4th Cir.1977). 

The Fever

Plaintiff’s claim regarding the failure to treat his fever fails to state a claim under the

Eighth Amendment as such an allegation even if true does not rise to the level of a constitutional

violation. A fever, taken alone, does not constitute a serious medical need. Brown v. Beard,

2007 WL 914083, at * 3 (M.D. Pa. 2007) (“Plaintiff did not suffer serious medical injuries (arm

and leg cramps, cold and fever) ... Plaintiff’s physical injuries do not implicate constitutional

protection. Courts have held that cramps, colds and a sore throat are insufficient to rise to a level

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 11 of 20
 See also Hall v. Holsmith, 2009 WL 2171242 (4 Cir. July 21, 2009) (symptoms 4 th

including fever, body aches, and sore throat, did not amount to serious medical need such that

temporary deprivation of a dose of over-the-counter medication rose to the level of deliberate

indifference); Chavera v. Allison, 2009 WL 1011157, at *3 (S.D.Miss. April 15, 2009)

(“Plaintiff's complaints of a low fever and back pain were minor illnesses, and therefore did not

pose a substantial risk of serious harm to Plaintiff. Accordingly, Defendant's alleged inaction

does not rise to the level of deliberate indifference.”); Hall v. Miss. Band of Choctaw Indians,

2008 WL 5111071, at *2 (N.D.Miss.2008) (a prisoner's claim that a “head cold” implicated the

Eighth Amendment dismissed as frivolous); Jackson v. Walton, 2003 WL 22846399 at *2

(N.D.Tex.2003) (fever and sore throat not a serious medical need because of common

recognition that doctors can do little to treat a cold virus).

12

of constitutional protection.”). Accordingly, this claim should be dismissed for failure to state a 4

claim.

The Delay 

Plaintiff alleges that he was denied his previously prescribed medications for a period of

fourteen days (from his intake on October 4 through October 19 ). The evidence demonstrates th th

that Defendants were not deliberately indifferent to Plaintiff’s health issues in this regard. 

Upon his entrance into the Erie County Prison, Plaintiff’s vital signs, which were stable

and normal, were taken by Defendant Nurse Wnek. Document # 67-3, Affidavit of Renee Wnek,

page 3; Document # 69-3, Sealed Medical Records, page 4. A Nurse’s Note, signed by Wnek and

dated October 5, 2006, indicates: 

“also on psychiatric meds. Brought copies of records with him from PCP in

Jamestown. Will review with Dr. in AM. Psychiatric referral done.” 

Document # 69, page 3. Although Plaintiff presented copies of his medical records to prison

officials upon his intake, these records were dated December 20, 2005 and were not “accepted as

reflecting current treatment because they were nine months old.” Document # 67-4, Affidavit of

Susan George, page 4. PHS policy mandated that records be retrieved directly from an inmate’s

provider. Id.

Plaintiff was assigned to a mental health counselor, Defendant Susan George, for

assessment based upon his history of mental health issues and a previous suicide attempt. 

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 12 of 20
 The Mental Health Treatment Team is listed as consisting of Deputy Warden Kinnane, 5

Medical Administrator Jeffrey Barninger, Psychiatric Nurse Patty Whiteley, and Counselor

Susan George. Document # 69, page 11.

13

Document # 67-4, page 3; Document # 69, page 3. A Mental Health Counselor Note dated

October 5, 2006, signed by Defendant George, indicates “follow-up with treatment team for

psychotropic meds.” Document # 69, page 9. Based upon his medical and psychiatric history,

Plaintiff was placed on regular watch status, which included observation with a thirty minute

monitoring cycle. Document # 67-4, page 3; Document # 69, page 10; Document # 69-2, pages

38-41. Defendant George agreed with the decision to place Plaintiff on regular watch status and

she directed that Plaintiff be seen for “medication stabilization” by Dr. Kohn. Id. While Plaintiff

was under regular watch, Defendant George did not observe any signs of mental deterioration. 

Document # 67-4, page 3.

The record reflects that Plaintiff sought medical attention throughout this time period:

once on October 9 , twice on October 10 , and once on October 13 . Document # 69, pages 13- th th th

16.

A Memo from PHS dated October 6, 2006 indicates that the Mental Health Treatment

Team rejected Plaintiff’s request for psychiatric services as there was “no reason for psychiatric 5

intervention at this time because: we have not yet received medical records verifying your

reported diagnosis and treatment history.” Document # 69, page 11. 

On October 10, 2006, Defendant George’s Contact Note indicates: “follow-up with

Medical Records. Inmate signed ROI [release of information] to expedite his services. Wants

back on his pysch meds badly.” Document # 69, page 12. In an email from Bernice Smith to

Susan George dated the same day, Smith complained:

“Mr. Latona got here on 10-5-06 and was seen by MHC on 10-5-06 per Dep.

Warden Kinnane due to the fact that he was acting peculiar and had a prior

attempted suicide by hanging in 2000. We suspected based upon his actions to err

on the side of safety (if it was bizarre behavior due to drug usage) and I placed

him on a withdrawal watch which would give the Medical Dept time to obtain his

records (Even though he brought his records with him and they are in his property

bin) and he would [sic] able to safely come off of any street drugs that he may

have in his system. I then saw Mr. Latona on 10-10-06 and he was getting angry

due to the fact that no one has given him his medications. I re-explained to him

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14

that I must put him in front of Treatment Team and have him Okayed by

Treatment Team to see the Psychiatrist once I obtain the medical records. Well,

10/5/06 was a Thursday, I faxed his records to New York and I didn’t get the

records back until Monday and this Friday is when he will be presented to

Treatment Team. There is nothing I can do about this and Mr. Latona is

threatening all kinds of silly things in his requests slips because he thinks that I am

ignoring him. I know that he wants his medication, he just needs to be patient. I

am sure that Treatment Team will approve him but I can’t usurp the Treatment

Team and place him on Dr. Kohn’s list.

Document # 69-3, page 35.

A Nurse’s Noted signed by C.Perry and dated October 11, 2006, indicates:

“Patient vomited large amount of liquid into toilet (and some solid chunks of

something). Patient complains of nausea; says he hasn’t gotten his Nexium or

pshch [sic] meds since he came here. Has [illegible] GERD. Says he saw Susan

George earlier today. Appears to be a chronically mentally ill individual in opioid

remission. Will try to get him seen medically later today.”

Document # 69, page 3; Document # 67-4, page 4. 

On October 13th, Plaintiff presented additional withdrawal-like symptoms when he

appeared paranoid, argumentative and agitated. Document # 69, page 19. According to

Defendant George, Plaintiff “reported vomiting after every meal, but this was not observed or

documented.” Document # 67-4, at ¶ 7. George noted that Plaintiff “wants to see the psychiatrist

ASAP - [illegible word] for safety through the weekend.” Document # 69, page 19. A Memo

dated October 13 indicates that Plaintiff was approved for psychiatric services by the Mental th

Health Treatment Team. Document # 69, page 21.

On October 19, 2006, Plaintiff was examined by Dr. Kohn who felt that Plaintiff’s

outburst was not due to “lack of medication but rather was an initial, purposeful act.” Document

# 69, page 23. Dr. Kohn prescribed psychiatric medications and discontinued the watch

restrictions. Id. at pages 37, 48, 69-71. Plaintiff was also prescribed medications for acid reflux

and pain on that day. Document # 69, page 25.

 Although Plaintiff was denied his prescribed medications for 14 days, the record reflects

that the denial was not malicious, sadistic, or even the result of apathy, but instead was due to the

need to verify the treatment plan with the outside medical providers. Defendants’ actions in this

regard do not rise to the level of deliberate indifference here. Ward v. Lamanna, 334 Fed. Appx.

487, 491 (3d Cir. June 15, 2009) (“Farmer requires a state of mind more blameworthy than

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 14 of 20
 Monell involved a municipality, but its holding has routinely been extended to private 6

corporations, like PHS, Inc. See Harvey v. Harvey, 949 F2d 1127 (11 Cir. 1992); Lux v. th

Hansen, 886 F.2d 1064, 1067 (8th Cir.1989); Iskander v. Village of Forest Park, 690 F.2d 126,

128 (7th Cir.1982); Powell v. Shopco Laurel Comp., 678 F.2d 504, 506 (4th Cir.1982).

15

negligence. To violate the Cruel and Unusual Punishments Clause of the Eighth Amendment, a

prison official must have a sufficiently culpable state of mind, which is similar to criminal law

‘recklessness.’”); McCray v. Prison Health Services, Inc., 2007 WL 4181728, at *5-6

(M.D.Ala.,2007) (“Assuming, arguendo, that McCray may have experienced delays in the receipt

of his medication [...], he has not come forward with evidence showing that the named

defendants deliberately withheld [...] or knew of an escalating or emergency medical condition in

regard to his prescriptions and failed to take steps to correct it.”).

Prison medical staff simply “do not violate the Eighth Amendment when, in the exercise 

of their professional judgment, they refuse to implement a prisoner's requested course of

treatment.” Long v. Nix, 86 F.3d 761, 765 (8th Cir.1996). Such is the case here. Accordingly,

the motion for summary judgment should be granted as to the claims against Defendants Wnek

and George.

E. Failure to Train and Supervise

In his Third Amended Complaint, Plaintiff alleges that PHS failed to adequately train and

supervise its employees. 

Generally, section 1983 liability cannot be predicated solely on respondeat superior. 

Monell v. Department of Social Services, 436 U.S. 658 (1978); Robinson v. City of Pittsburgh,

120 F.3d 1286, 1293-1295 (3d Cir. 1997). However, municipal liability can be based upon an

6

entities failure to adequately train its employees. City of Canton v. Harris, 489 U.S. 378 (1989). 

In order to establish liability on a failure to train claim under § 1983, a plaintiff “must identify a

failure to provide specific training that has a causal nexus with their injuries and must

demonstrate that the absence of that specific training can reasonably be said to reflect a deliberate

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 15 of 20
 In discussing the standard for failure to train in the context of a prison suicide, the 7

Third Circuit explained:

“the plaintiff must (1) identify specific training not provided that could

reasonably be expected to prevent the suicide that occurred, and (2) must

demonstrate that the risk reduction associated with the proposed training is so

great and so obvious that the failure of those responsible for the content of the

training program to provide it can reasonably be attributed to a deliberate

indifference to whether the detainees succeed in taking their lives.”

Woloszyn v. County of Lawrence, 396 F.3d 314, 325 (3d Cir. 2005) quoting Colburn v. Upper

Darby Township (“Colburn II”), 946 F.2d 1017, 1029-30 (3d Cir. 1991).

16

indifference to whether the alleged constitutional deprivations occurred.” Conn v. Bull, 307 Fed.

Appx. 631, at *3 (3d Cir. Jan.21, 2009) quoting Giles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir.

2005).7

Here, despite being allowed to amend his complaint numerous times, Plaintiff has not

alleged any causal connection between PHS’s alleged failure to provide any specific training to

its employees, Wnek and George, and/or how the lack of training “reflects deliberate indifference

to whether the alleged constitutional deprivations occurred.” See Conn. Accordingly, this claim

should be dismissed for failure to state a claim.

F. Plaintiff’s Motion to Amend

1) The Proposed “Fourth Amended Complaint”

Plaintiff has filed a motion for leave to file a “Fourth Amended Complaint.” Document #

71. In support of his motion to amend, Plaintiff explains:

“it is the Plaintiff’s position that the allegations in the Third Amended Complaint,

combined with the documents and admissions submitted by the Defendants [...] in

support of its summary judgment motion and/or referenced in Plaintiff’s Third

Amended Complaint, are sufficient to allege a claim against others pursuant to 42

U.S.C. section 1983. The proposed Fourth Amended Complaint, which cumulates

[sic] and clarifies the information already presented to this Court, alleges a policy

or custom of Prison Health Services by which Plaintiff’s rights were violated.” 

Document # 71. 

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 16 of 20
17

In the proposed Fourth Amended Complaint, Plaintiff asserts that Defendant Wnek failed

to “recognize and investigate the Plaintiff’s serious medical condition which lead to unnecessary

pain and suffering” and Defendant George failed to recognize and expedite any therapy or

medication for his illness. See Document # 73, pages 4, 8. 

In his claim against PHS, Plaintiff explains:

the Plaintiff now accuses Defendant, Prison Health Services of also failing to

properly supervise, train and manage their staff. The Plaintiff believes that

Defendant Prison Health Services was understaffed during his incarceration. The

Plaintiff also believes that if the staff was properly train [sic] and supervised, then

he may not have gone so long without medication and/or treatment. Various

members of the staff had been alerted to the Plaintiff’s excessive vomiting and

mental deterioration. Instead of coordinating treatment and follow-up on the

Plaintiff’s concerns, there appeared to be a lack of communication that could have

resulted in more serious damage to the Plaintiff. Had the staff provided even a

minimal amount of attention and carried through on the Plaintiff’s request, I

believe that the Plaintiff would not have suffered as he did. Because of the ‘lack

of attention’ the plaintiff received, his mental state progressed into unusual

behavior which eventually led to numerous ‘lock downs.’ Because of these ‘lock

downs,’ the Plaintiff was unable to be released from the prison after serving his

eighteen day sentence. Instead of being released on October 22 , the plaintiff nd

remained incarcerated until November 4, 2006. Various members of the staff

were also aware of the constant vomiting after meals that the Plaintiff suffered but

choose to do nothing/or recognize the need for medication to control this function. 

Because of the lack of attention, communication and failure to respond, the

Plaintiff needlessly suffered thus causing this Defendant to violate his Eighth

Amendment right.”

Document #73, pages 7-8. 

Plaintiff also names a new Defendant, Jeffrey Barninger and avers:

“Defendant Barninger is the Health Services Manager at the Erie County Prison. 

In the Defendant’s own affidavit he outlines the topics of ‘continuity of care’ and

‘receiving/screening.’ In this affidavit he cites polices [sic] that require

continuation of care from outside providers and that the health staff is responsible

for verifying an inmates [sic] medication. He also states that, ‘when an inmate

informs one of the medical staff of past medical treatment, the inmate is requested

to complete a request for information, immediately.’ (Usually within twenty four

hours) He also states that the medical staff has access to booking information and

any prior medical history from previous incarcerations. These records or files

establish a chronological record fo the health care provided during the period of

an inmates incarceration. As part of the Mental Health Treatment Team as well as

the Medical Administrator, Defendant Barninger should have been aware of the

delays in treatment for the Plaintiff’s condition. The Plaintiff accuses Defendant

Barninger of failing to properly train and supervise the medical staff. The

Plaintiff believes that if Mr. Barninger’s was/is part of the treatment team, it

would seem that he would have been informed of the status of the Plaintiff’s

treatment plan. The Plaintiff believes that this derelict [sic] of duty resulted in

additional pain, suffering and metal [sic] anguish thus, a violation of the

Plaintiff’s Eighth Amendment right.” 

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 17 of 20
18

Document # 73, pages 6-7. 

2) Federal Rule of Civil Procedure 15

Federal Rule of Civil Procedure 15(a) states that “leave [to amend] shall be freely given

when justice so requires.” Fed.R.Civ.P. 15(a). “In the absence of any apparent or declared

reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought

should, as the rules require, be freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962)

(interpreting Federal Rules of Civil Procedure). An amendment would be futile when the

complaint, as amended, would fail to state a claim upon which relief could be granted. In re

NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1332 (3d Cir. 2002). 

Proposed New Claims against Old Defendants 

Although the proposed Fourth Amended Complaint attempts to add flesh to the bones of

Plaintiff’s claims against Wnek and George, Plaintiff has made no new allegations which rise to

the level of deliberate indifference on the part of these Defendants. 

As to the claim against Defendant PHS, the proposed Fourth Amended Complaint does

not raise any new claim (see page 6, herein) but only adds argument to the earlier allegations

contained within the Third Amended Complaint. In the proposed Fourth Amended Complaint,

Plaintiff deduces that PHS’s alleged failure to adequately treat his mental health issues caused his

behavior to become uncontrolled ultimately resulting in the extension of his incarceration due to

his misconducts. Plaintiff’s “new” statement does not cure the previously discussed pleading

deficiencies of the Third Amended Complaint, and so, are futile. Additionally, this Court has

allowed Plaintiff countless opportunities to amend the complaint over the last three years and

Plaintiff has still failed to adequately allege a failure to train claim against PHS. Due to the

advanced age of this litigation and the countless opportunities to amend over the past three years,

Plaintiff should not be granted any further time or opportunity to re-plead his claim once again. 

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 18 of 20
 Additionally, this Court notes that there is a statute of limitations issue with regard to 8

Jeffrey Barninger as the claim against him arose over two years before the filing of the proposed

“Fourth Amended Complaint” on November 16, 2009. See Garvin v. City of Philadelpia, 354

F.3d 215 (3d Cir. (Pa.) 2003) (in Pennsylvania, the statute of limitations for a civil rights

violation is two years from the date of the alleged violation.). A claim accrues when the litigant

knew or had reason to know of the injury. Montgomery v. DeSimone, 159 F.3d 120, 126 (3d

Cir.1998). Thus, the date when the plaintiff becomes aware, or should have become aware, of

both the fact of injury and its causal connection to the defendant, triggers the limitations period.

See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (it is the wrongful act that

triggers the start of the limitations period). Plaintiff’s claim against this new Defendant is most

likely time-barred, unless the amendment relates back to the date of the filing of the original

complaint pursuant to Fed.R.Civ.P. Rule 15(c). See Singletary v. Pennsylvania Dept. of

Corrections, 266 F.3d 186, 195 (3d Cir. 2001) (if a complaint is amended to include an

additional defendant after the statute of limitations has run, the amended complaint is not timebarred if it "relates back" to a timely filed complaint). 

19

Proposed New Defendant Barninger

Plaintiff’s claim against Jeffrey Barninger should be denied as futile. Non-medical prison

officials, such as Health Services Administrator Jeffrey Barninger, are not

considered deliberately indifferent simply because they failed to respond directly

to the medical complaints of a prisoner who was already being treated by the

prison doctor. [...] If a prisoner is under the care of medical experts, a non-medical

prison official will generally be justified in believing that the prisoner is in

capable hands. Absent a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner, a nonmedical prison official [...] will not be chargeable with [...] deliberate indifference

[under the Eighth Amendment].

Spruill, 372 F.3d at 236, quoting Durmer, 991 F.2d at 69. See also Foreman v. Bureau of Prisons,

2007 WL 108457, at *5 (3d Cir.).8

Accordingly, the motion to amend [Document # 71] should be denied as futile. Because

leave to file the Fourth Amended Complaint was never granted, the Answer to the Fourth

Amended Complaint and the Motion for summary judgment filed against the Fourth Amended

Complaint will be stricken.

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 19 of 20
20

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the motion for summary

judgment filed by Defendants Prison Health Services, Inc., Renee Wnek, and Susan George

[Document # 66] be granted.

It is further recommended that Plaintiff’s motion for leave to file a “Fourth Amended

Complaint” [Document # 71] be denied as futile.

By separate text order filed this day, the Answer [entered on the docket as a “Remark” at

Document # 74] to the proposed Fourth Amended Complaint and the motion for summary

judgment filed by PHS, Inc., Wnek, George, and Jeffrey Barninger [document # 75] against the

proposed Fourth Amended Complaint will be stricken.

In accordance with Fed.R.Civ.P. 72, the parties are allowed fourteen (14) days from the

date of service to file written objections to this Report and Recommendation. Any party

opposing the objections shall have fourteen (14) days from the date of service of objections to

respond thereto. No extensions of time will be granted. Failure to file timely objections may

constitute a waiver of appellate rights. See Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

UNITED STATES MAGISTRATE JUDGE

Dated: January 8, 2010

Case 1:07-cv-00001-SJM-SPB Document 78 Filed 01/08/10 Page 20 of 20