2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-11-2008

Harold Lee v. Marva Cerullo

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2227

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Harold Lee v. Marva Cerullo" (2008). 2008 Decisions. Paper 846.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/846
DLD-231

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-2227

___________

HAROLD LEE, 

 Appellant

v.

MARVA CERULLO, Medical Dept. Admin.-SCI Mahanoy

DR. EDELMAN, Head of PHS of PA;

BETTY SUE PUGLA

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 03-cv-01026)

District Judge: Honorable John E. Jones, III

____________________________________

Submitted for Possible Dismissal Due to Untimeliness

or Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit

LAR 27.4 and I.O.P. 10.6

June 19, 2008

Before: BARRY, CHAGARES and NYGAARD, Circuit Judges

(Opinion filed: July 11, 2008)

_________

OPINION

_________

PER CURIAM

Harold Lee, an inmate at SCI-Mahanoy (formerly imprisoned at SCI-Coal
 The District Court dismissed Lee’s original complaint (which named ten defendants) 1

pursuant to 28 U.S.C. § 1915(e)(2)(b)(i),(ii), but granted him leave to amend his

complaint within a certain period of time. Lee failed to timely file an amended complaint

and the District Court dismissed his case. Lee filed a motion for reconsideration, which

was granted. Lee then filed his amended complaint. 

2

Township), appeals pro se from an order of the United States District Court for the

Middle District of Pennsylvania, granting the motions for summary judgment filed by

Defendants/Appellees Betty Sue Pugla, Dr. Edelman, and Marva Cerullo. Because no

substantial question is presented, L.A.R. 27.4, we will summarily affirm the District

Court’s order.

As the parties are familiar with the facts, we will discuss them only to the extent

necessary to explain our decision. On April 28, 2004, Lee filed an amended complaint

naming six defendants, including Wilma Sewell, Judy Rodichok, Dr. Kort, Marva

Cerullo, Dr. Edelman, and Nurse Betty Sue Pugla. The complaint alleged that he had 1

been denied him medical care in violation of the Eighth Amendment because defendants

had delayed and/or withheld treatment of his tuberculosis (TB), Hepatitis C, and sleep

apnea. Three of the defendants (Dr. Kort, Dr. Edelman, and Judith Rodichok, who was

medical director at SCI-Coal Township) filed a motion to dismiss. The District Court

found that the allegations against Dr. Kort and Rodichok were time-barred, as Lee filed

his original complaint on June 20, 2003, and all allegations against those two defendants

concerned events which occurred, at the latest, sometime in 2000. The District Court also
3

found that any claim relating to Lee’s treatment for TB was barred, because he was

diagnosed with TB in 1997. The District Court dismissed the complaint as to Dr.

Edelman and Nurse Pugla, finding that Lee did not state a valid claim for medical

mistreatment under the Eighth Amendment, but rather had alleged only a disagreement

concerning what the appropriate treatment was for his condition. 

The District Court dismissed the complaint as to Wilma Sewell, Administrator of

the medical department at SCI-Coal Township, and as to Marva Cerullo, Administrator of

the medical department at SCI-Mahanoy, because Lee was attempting to impose liability

based on respondeat superior. The District Court also found that Lee’s conspiracy claim

was without merit.

This Court affirmed the dismissal of Defendants Kort, Rodichok and Sewell, and

reversed the dismissal of Defendants Edelman, Cerullo, and Pugla. See C.A. No. 05-

1603. We disagreed with the District Court that Lee’s amended complaint failed to state

an Eighth Amendment claim as to Edelman and Pugla, reasoning that “It may be that

Edelman’s decision to postpone treatment for a year was based on a medical judgment,

but taking the allegations of the complaint to be true, it may also be that it was based on

deliberate indifference. Similarly, Nurse Pugla told him that he needed to wait four

months for a new protocol. It is not clear from the record that her actions were based on

medical judgment.” We further concluded that Lee’s allegations regarding Cerullo’s

actions or inaction with respect to his grievances were not based on respondeat superior. 
 On remand, the District Court appears to have implicitly determined that Lee’s 2

claims against the remaining defendants concerning his TB and sleep apnea conditions

were not barred by the statute of limitations. We conclude that these claims are timely to

the extent that Lee complains of an alleged continuing failure to treat these conditions at

SCI-Mahanoy. 

4

In addition, we directed the District Court to reexamine whether Lee’s claims about a lack

of treatment of his TB and sleep apnea were time-barred because his complaint could be

construed as alleging that this non-treatment was a continuing problem.

Upon remand, the remaining defendants (Cerrullo, Nurse Pugla, and Dr. Edelman)

filed motions for summary judgment. The District Court granted the motions. With

respect to Lee’s claim regarding treatment of his Hepatitis C condition, the District Court

held that it is “patently clear from the record that Lee’s requests for medical treatment

were not ignored by the prison medical staff or unreasonably delayed. Indeed, the record

indicates substantial and meaningful efforts by defendants to provide Lee with necessary

and requested medical care.” The District Court further concluded that defendants

provided appropriate care with respect to Lee’s inactive TB because defendants began a

course of preventive TB therapy at the conclusion of his Hepatitis C treatment. The

District Court also held that Lee’s Eighth Amendment claim regarding his sleep apnea

failed because the only evidence in the record concerning a sleep problem was a medical

progress note that Lee participated in a sleep study while at SCI-Coal Township. Lee

offered no other evidence of a sleep apnea problem, the effect of this problem on his

health, or requests for treatment. With respect to Lee’s claim against Cerullo, the 2
 The District Court’s order granting summary judgment was entered on March 18, 3

2008. Lee, therefore, had until April 17, 2008, to file a timely notice of appeal. Although

Lee’s notice of appeal was not received by the District Court until April 22, 2008, he has

submitted a declaration in compliance with 28 U.S.C. § 1746 demonstrating that he

delivered the notice of appeal in question to prison authorities on April 17, 2008. Thus,

we do not dismiss the appeal as untimely. See Fed. R. App. P. 4(c)(1). 

5

District Court granted summary judgment in her favor because, to the extent Lee had

made out any claim against her, the record evidence contradicted Lee’s allegation that she

ignored his complaints. The District Court further concluded that Cerullo was entitled to

rely on the medical staff’s professional judgment regarding Lee’s treatment and could not

be held liable based on a theory of respondeat superior. 

We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise 3

plenary review over a district court’s order of summary judgment. See Kaucher v.

County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006).

In order to establish a §1983 civil rights claim, a claimant must show: “(1) that the

conduct complained of was committed by a person acting under color of state law; and (2)

that the conduct deprived a person of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Robb v. City of Philadelphia, 733 F.2d 286,

290-91 (3d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). See also

Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992) (municipalities are

considered “persons” under section 1983 and may be held liable for a constitutional tort

where the municipal entity was responsible for the violation). To succeed on an Eighth
 For purposes of this appeal, we will assume without deciding that Lee’s Hepatitis C 4

condition, sleep apnea, and TB all constitute serious medical needs.

6

Amendment claim, Lee must demonstrate two things: “(1) that the defendants were

deliberately indifferent to [his] medical needs and (2) that those needs were serious.” 

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A complaint that a physician has 4

been “negligent in diagnosing or treating a medical condition does not state a valid claim

of medical mistreatment under the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97,

106 (1976). An inmate’s disagreement with a prison physician’s medical judgment is

insufficient to establish deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64,

69 (3d Cir. 1993). 

For essentially the reasons explained by the District Court, summary judgment was

properly entered in favor of Dr. Edelman and Nurse Pugla because Lee failed to establish

that they were deliberately indifferent to a serious medical need. Specifically, Lee failed

to demonstrate that there was a genuine issue of material fact regarding whether

defendants delayed necessary medical treatment of his Hepatitis C condition for nonmedical reasons. See Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 346-47 (3d Cir. 1987). Moreover, Lee’s complaint failed to specifically

implicate any of the remaining defendants with respect to the treatment, or lack thereof,

of his TB or sleep apnea. In any event, Lee failed to present evidence from which a

reasonable jury could conclude that the course of treatment, or lack thereof, that he
7

received for these two conditions amounted to deliberate indifference. We further agree

that summary judgment was properly entered in favor of Cerullo because, even assuming

that Lee’s allegations stated a cognizable claim against her, the record evidence

contradicts Lee’s allegation that she ignored his complaints. Further, Cerullo is not a

physician and under the circumstances presented here cannot be considered deliberately

indifferent because she allegedly “failed to respond directly to the medical complaints of

a prisoner who was already being treated by the prison doctor.” Durmer, 991 F.2d at 69.

For the foregoing reasons, no substantial question is presented and we will affirm

the order of the District Court.