2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-15-2011

Bruce Wishnefsky v. Jawad Salameh

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1680

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Recommended Citation

"Bruce Wishnefsky v. Jawad Salameh" (2011). 2011 Decisions. Paper 528.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/528
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1680

___________

BRUCE L. WISHNEFSKY,

Appellant

v.

 JAWAD SALAMEH, M.D.

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-08-cv-00128)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 1, 2011

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed : September 15, 2011)

_________

OPINION

_________

PER CURIAM.

Bruce Wishnefsky, a prisoner of the Commonwealth of Pennsylvania 

proceeding pro se and in forma pauperis, timely appeals from orders denying class 

certification, dismissing claims, granting summary judgment in favor of the defendants, 

and denying a Rule 59(e) motion. We will affirm.
2

I.

Wishnefsky accused the medical director of SCI Laurel Highlands, Dr. 

Salameh, of violating the Eighth Amendment by exhibiting deliberate indifference, in 

both supervisory and personal roles, to Wishnefsky’s serious medical needs. In May 

2007, Wishnefsky—who suffers from multiple medical ailments, including Parkinson’s 

and benign prostatic hyperplasia1—was admitted to the long-term-care unit in the 

prison’s medical ward. Over the next few days, he presented with several health 

problems, which he alleges were inadequately treated by Dr. Salameh and other medical 

staff members. These errors, exacerbated by several ―policies‖ that included insufficient 

levels of lab staffing, allegedly led to extended catheterization, a urinary-tract infection, 

and possible internal injury, along with an extended period of humiliating incontinence. 

Wishnefsky filed suit in June 2008, charging the above constitutional harm 

(along with a state-law claim of medical battery) and requesting that the District Court 

certify a class of inmates who had ―been subject to deliberate indifference, to the extent 

they have been denied access to an acute[-]care medical facility capable of providing 

appropriate treatment when they have an acute [serious medical need], or to the extent 

they have been made to use unneeded Foley2catheters.‖ See Am. Compl. ¶ 35, ECF No. 

 

1 A ―progressive enlargement of the prostate due to [an increase in size] of both glandular 

and stromal components . . . sometimes causing obstructive or irritative symptoms.‖ 

Stedman’s Medical Dictionary 925 (28th ed. 2006). 

2 A urethral catheter. Stedman’s Medical Dictionary 326–27 (28th ed. 2006).
3

11. He filed a separate Motion for Class Certification, emphasizing that, as the 

representative party, he would ―fairly and adequately assert and protect the interests of 

the class since his claims are typical of the class, in that he almost bled to death when Dr. 

Salameh did not promptly transfer him to an acute care facility and when Dr. Salameh 

continued [his] Foley catheter after it was no longer needed.‖ Pl’s Mot. for Class Cert. 

¶ 4, ECF No. 12. In support of his suitability, Wishnefsky pointed to his significant legal 

experience: completing one year of law school and working for fifteen years as a 

paralegal, in which capacity he dealt with ―complex civil litigation, including class 

actions.‖ Id. ¶ 5. 

The complaint and certification motion were referred to a Magistrate Judge, 

who denied the motion to certify a class, entering a text-only order that found 

Wishnefsky to be an unsuitable class representative because ―he is without sufficient 

legal education.‖ Nothing in the order indicated that Wishnefsky was informed of his 

ability to appeal or object to the adverse ruling.

Having suffered the loss of his class-related claims, Wishnefsky prepared a 

second amended complaint, levying several allegations against Dr. Salameh, including: 

that the care he gave his inmates patients was ―substantially inferior‖ to the care given to 

private patients, Second Am. Compl. ¶ 6.3, ECF No. 22; that he ―routinely fail[ed]‖ to 

document procedures, in order to avoid lawsuits, ¶ 6.4; and that his staff catheterized 

patients for pure ―convenience,‖ ¶ 11. Wishnefsky coalesced his remaining claims into 
4

three ―counts‖: 1) the delay in transferring him from the long-term care unit to Somerset 

Hospital, after complications were evident, was a product of ―deliberate and callous 

indifference‖ to his medical needs; 2) Dr. Salameh refused to see him from May 26, 

2007, until June 25, 2007, refused to prescribe medication that would allow his catheter 

to be removed, and ―lied‖ to another physician, telling him that Wishnefsky could not 

void without a catheter ―even though Dr. Salameh knew that was not true,‖ ¶¶ 52–53; and 

3) the aforementioned state-law battery claim, related to his extended catheterization.

Salameh moved to dismiss, arguing that Wishnefsky had failed to state a 

claim upon which relief could be granted. In opposition, Wishnefsky described the ―gist‖ 

of his complaint as his disagreement ―with the potentially fatal delay in transferring him 

to Somerset Hospital when he had lost five units of blood, from which blood loss he 

definitely suffered encephalopathy and possibly stroke, and the failure to restart Hytrin,3

which resulted in his being unable [to] urinate, and that defendant’s failing to remove the

Foley Catheter resulted in depression, urinary tract infection, fever and severe shaking . . 

. and the embarrassing need to wear diapers.‖ Br. in Opp. to Def’s Mot. to Dismiss 12, 

ECF No. 31. He also argued that ―the consultations defendant ordered at the hospital, to 

locate the source of plaintiff’s severe blood loss, should have been made at least 8 days 

earlier,‖ id. at 12 (emphasis added), and that it was reasonable to infer that these delays 

derived from non-medical, cost-cutting motives, id. at 13–14. Lastly, Wishnefsky 

 

3 A medicine used to treat the symptoms of an enlarged prostate. See Terazosin, PubMed 

Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000933/ (last visited August 1, 

2011). 
5

accused Salameh of ―ignoring the universally accepted teaching against prolonged use of 

Foley Catheters.‖ Id. at 15.

The Magistrate Judge recommended partial dismissal. With regard to 

delayed medical treatment, although Wishnefsky ―did receive at least some treatment 

during the time period in question,‖ his ―factual allegations regarding the delay of his 

blood test and subsequent admission to Somerset Hospital between May 17, 2007, and 

May 22, 2007, if proven true, could support the conclusion that Defendant’s alleged 

policies constituted deliberate indifference.‖ Wishnefsky v. Salameh, No. 08-128J, 2009 

U.S. Dist. LEXIS 124600, at *15, 19 (W.D. Pa. Dec. 21, 2009). By contrast, complaints 

of extended catheterization were more akin to a dispute over proper treatment than to 

neglect or a failure to administer treatment, and hence failed to state a constitutional 

claim. Id. at *23. As she was recommending dismissal of the catheter-related 

constitutional claim, the Magistrate Judge further ―recommend[ed] that supplemental 

jurisdiction not be exercised over Plaintiff’s State law claim.‖ Id. at *25. After de novo 

review, the District Court agreed See Order, ECF No. 34.

Thereafter, discovery commenced, and both parties moved for summary 

judgment. The Magistrate Judge recommended that the District Court grant summary 

judgment in favor of the defendant, citing Wishnefsky’s failure to properly exhaust the 

remaining claims,4 which were now procedurally defaulted; the District Court approved 

 

4

See 42 U.S.C. § 1997e(a).
6

this recommendation over Wishnefsky’s objections. Wishnefsky v. Salameh, No. 08-

128J, 2011 U.S. Dist. LEXIS 9409, at *1–2 (W.D. Pa. Feb. 1, 2011). After his timely 

motion under Rule 59(e) was denied, Wishnefsky appealed.

III.

We have jurisdiction under 28 U.S.C. § 1291, exercising plenary review 

over both motions to dismiss and motions for summary judgment. Gallo v. City of Phila., 

161 F.3d 217, 221 (3d Cir. 1998).

5

 In reviewing the motion to dismiss, we accept all 

well-pleaded allegations in the complaint as true and draw all reasonable inferences in 

Wishnefsky’s favor, Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009)

(per curiam); in reviewing the order granting summary judgment, we apply the same 

standard the District Court applied, Spence v. ESAB Group, Inc., 623 F.3d 212, 216 (3d 

Cir. 2010); see also Fed. R. Civ. P. 56(a) (summary judgment is appropriate if ―there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law‖).

6

 We apply an abuse-of-discretion analysis to the District Court’s denial 

of a motion for reconsideration, see Cureton v. NCAA, 252 F.3d 267, 272 (3d Cir. 2001), 

and to its order declining to exercise supplemental jurisdiction, see Anderson v. 

 

5 Although Wishnefsky failed to object to the first Report and Recommendation, the 

District Court’s de novo review rendered this failure irrelevant. Henderson v. Carlson, 

812 F.2d 874, 878 n.4 (3d Cir. 1987).

6 We cite to the new revision of Rule 56 that was in effect at the time of the District 

Court’s decision. While the Magistrate Judge relied on the older revision, the differences 

are mostly cosmetic and do not affect the substantive standard for granting summary 

judgment. See Fed. R. Civ. P. 56 advisory committee’s 2010 note. 
7

Wachovia Mortg. Corp., 621 F.3d 261, 283 (3d Cir. 2010) (considering ―whether the 

dismissal of the pendent claims best serves the principles of judicial economy, 

convenience, fairness, and comity‖). We may affirm for any reason supported by the 

record. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000)

IV.

a) Class Action Request

We assume without deciding that a Magistrate Judge has authority to rule on a 

class action request because we dispose of this appeal on other grounds. 

b) Dismissed Claims

The District Court did not err when it dismissed Wishnefsky’s 

catheterization claims. Wishnefsky failed to show the ―culpable state of mind‖ required 

to demonstrate an Eighth Amendment violation. See Hudson v. McMillian, 503 U.S. 1, 

20 (1992). While he vehemently disputes the appropriateness of the care he received, 

finding it to have been uncomfortable and possibly indicative of negligence, ―[w]here a 

prisoner has received some medical attention and the dispute is over the adequacy of the 

treatment, federal courts are generally reluctant to second guess medical judgments and 

to constitutionalize claims which sound in state tort law.‖ United States ex rel. Walker v. 

Fayette Cnty., 599 F. 2d 573, 575 n.2 (3d Cir. 1979); see also Rouse v. Plantier, 182 F.3d 

192, 197 (3d Cir. 1999). 

c) Summary Judgment
8

The District Court determined that Wishnefsky had failed to properly 

exhaust his final claim against Salameh because he failed to mention Salameh in the 

grievance he filed, in contravention of prison policy in place at the time and in 

accordance with our holding in Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004). We 

conclude, in any event, that no genuine issue of material fact existed to defeat a grant of 

summary judgment for Salameh on the merits. 

Specifically, we detect no sign that Salameh possessed the mental state 

required for liability under the Eighth Amendment; instead, evidence suggests that his 

actions may, at worst, have amounted to negligence. This is quickly evident from 

Wishnefsky’s evidentiary submissions, which are replete with second-guessing, appeals 

to ―ideal‖ medical procedures, attacks on the margins of prison policies, and testimony on 

what Salameh ―should‖ have done at any given stage of the process.7This, without more, 

 

7 Wishnefsky provided numerous affidavits, in which ostensible medical professionals of 

uncertain backgrounds and origins opined, from a review of Wishnefsky’s medical 

records, that Salameh ―created a substantial risk of serious harm‖ through his activities.

See, e.g., Aff. Of Charles A. Sullivan, App’x 1, Ex. T ¶ 19 (―It is my opinion, to a high 

degree of certainty, that Dr. Salameh created a substantial risk of serious harm to the 

patients at SCI Laurel Highlands for whom he is the Medical Director, when he fail[ed] 

to have written policies and/or procedures in place requiring that when an undiagnosed 

patient presents with dizziness, orthostatic hypotension and positive occult blood, that the 

patient be taken to the ER at Somerset Hospital for evaluation.‖), ECF No. 61. In 

perhaps the most curious example, Wishnefsky included an affidavit entitled ―Opinion on 

Causation‖ from one Charlotte Basenfelder, R.N, who appeared elsewhere in his 

submissions as both a ―Medical Billing Advocate‖ and as a member of an organization 

named ―Women Against Urinary Catheter Abuse,‖ a not-for-profit located in Lansdowne, 

Pennsylvania. Both Wishnefsky’s motion for summary judgment and his statement of 

facts contained extended passages of medical jargon and various assertions that Salameh 

―should have‖ done something else, often based on the aforementioned affidavits.
9

cannot suffice to show a violation of the Eighth Amendment. See Farmer v. Brennan, 

511 U.S. 825, 834 (1994). And while Wishnefsky argues in the alternative that Salameh 

and his physicians opted for ―an easier and less efficacious treatment of his condition,‖ 

which could have been constitutionally impermissible, see Monmouth Cnty. Corr. Inst. 

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), those claims are factually 

unsupported. See Fed. R. Civ. P. 56(c)(1), (e). 

d) Motion for Reconsideration

For the abovementioned reasons, the District Court did not abuse its 

discretion in denying Wishnefsly’s 59(e) motion. See Cureton v. NCAA, 252 F.3d 267, 

272 (3d Cir. 2001).

e) Supplemental Jurisdiction

The District Court did not err in declining to exercise supplemental 

jurisdiction over the relevant state-law claims. Regardless, Wishnefsky has not raised 

this issue in his brief; accordingly, it is waived. Steven I. v. Cent. Bucks Sch. Dist., 618 

F.3d 411, 415 n.8 (3d Cir. 2010).

V.

For the foregoing reasons, we will affirm the judgment of the District Court 

on all grounds.