2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-21-2011

Walter Tormasi v. George Hayman

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2493

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2493

___________

WALTER A. TORMASI,

Appellant

v.

GEORGE W. HAYMAN, Department of Corrections (DOC) Commissioner; JAMES 

BARBO, DOC Director of Division of Operations; MICHELLE RICCI, New Jersey 

State Prison (NJSP) Administrator; JEFFREY BELL, NJSP Associate Administrator; 

JAMES DRUMM, NJSP Associate Administrator; DONALD MEES, JR., NJSP 

Associate Administrator; CHARLES WARREN, NJSP Associate Administrator; 

CORRECTIONAL MEDICAL SERVICES INC (CMS); MALAKA UMRANI, CMS 

Hospital Administrator; ROBERT A. BUCCHINO, CMS Optometrist; JAMES 

BREWIN, CMS Nurse; DARLENE SEXTON, CMS Nurse; KATHLEEN SKINNER, 

CMS Nurse; LUCILE ROACH, CMS Nurse; JAWANA BETHEA, CMS Ombudsman; 

KATHY O'DONNELL, CMS Ombudsman; PAULA AZARA, CMS Hospital 

Administrator; JASON PUGH, CMS Hospital Administrator

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 08-4950)

District Judge: Honorable Anne E. Thompson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 18, 2011

Before: AMBRO, FISHER and NYGAARD, Circuit Judges

(Opinion filed November 21, 2011)

___________

OPINION

___________
2

PER CURIAM

Appellant Walter A. Tormasi, a prisoner incarcerated at the New Jersey State 

Prison in Trenton, claims that the District Court erred in granting summary judgment to 

Lucile Roach and Jawana Bethea on his Eighth Amendment claims that they were 

deliberately indifferent to his serious medical needs.1 Tormasi also appeals the District 

Court‟s order denying his motion for reconsideration. For the following reasons, we will 

affirm the District Court‟s judgment with respect to Bethea, vacate with respect to Roach,

and remand for further proceedings.

I.

Tormasi‟s Eighth Amendment claim is predicated on his assertion that Roach and 

Bethea – both employees of Correctional Medical Services, Inc. (“CMS”), the contractor 

that provided medical care at the prison – were deliberately indifferent to his optometry 

needs when they failed to ensure that he received prescription eye glasses in a reasonably 

timely fashion. On December 25, 2006, Tormasi submitted a medical request asking to 

see the eye doctor for “new glasses.” He was scheduled for a mid-January appointment 

but did not learn of the appointment because he was temporarily housed in the closecustody unit. When he missed the appointment, Roach, the Supervisor of Special 

Clinics/LABS who worked in the optometry clinic, documented him as a no-show.

Eight months later, Tormasi filed a grievance regarding the fact that he had not yet 

seen the eye doctor. Bethea, a CMS Ombudsman responsible for handling and resolving 

 

1

Tormasi sued numerous defendants other than Roach and Bethea, and raised additional 

constitutional claims. As he only challenges the dismissal of his Eighth Amendment 
3

inmate grievances, recommended that he submit another medical request, which Tormasi 

did on August 22, 2007. Although he was referred for an appointment, no appointment 

was scheduled. Tormasi submitted another grievance, to which Bethea responded that 

there had been a “mix up” and that he would be placed on the schedule. 

On November 15, 2007, Tormasi submitted a letter to another CMS Ombudsman 

asking to see an eye doctor as soon as possible. That letter was apparently forwarded to 

Bethea, who responded that “Ms. Roach [was] notified to schedule [the] long overdue 

exam!” In December, Bethea prepared a memorandum in response to Tormasi‟s appeal 

of a grievance, in which she indicated that “[t]he scheduler was notified again concerning 

this issue. Inmate Tormasi will be seen for an eye exam, as soon as scheduling permits 

for lockup clinic.” Tormasi wrote a letter to Bethea and Roach dated January 14, 2008,

again requesting an appointment with the eye doctor. This time, Tormasi indicated that

the matter was “urgent” because he was experiencing dizziness and disorientation, and 

frequently fell or bumped into objects as a result of his “severely blurred” vision; he 

followed up with a similar letter in March. Bethea responded by again contacting the 

“scheduler” while Roach forwarded the letters to her supervisors. 

Tormasi was finally seen by an optometrist in April. The doctor ordered new 

glasses for Tormasi but, for some unexplained reason, Tormasi never received them. 

Over the course of the subsequent five months, Tormasi submitted additional grievances, 

a medical request, and several letters to Bethea and others regarding the issue. Bethea

contacted the appropriate “scheduler” and had several conversations with Tormasi in 

 

claims against those two defendants on appeal, we will limit our discussion accordingly.
4

which she reported that she notified Roach about the problem. Tormasi was eventually 

rescheduled for an appointment and was treated by the eye doctor on September 5, 2008. 

In the meantime, as a result of his blurred vision, Tormasi lost his balance on two 

occasions and fell, injuring his back and dislocating his jaw. He finally received new 

glasses on September 26, 2008.2Shortly thereafter, Tormasi filed the present lawsuit.

Roach and Bethea eventually moved for summary judgment. Tormasi moved for 

an extension of time to respond and later filed a “status update” indicating that he would 

file his opposition shortly. Before he could do so, the District Court granted the motion 

due to insufficient evidence of deliberate indifference. Thereafter, Tormasi filed his

opposition and a timely motion for reconsideration based on that opposition. The District 

Court defended the timing of its ruling, but nevertheless “reviewed [the] opposition 

papers in their entirety, and even after considering the arguments raised [therein,]” found 

reconsideration unwarranted. Tormasi timely appealed.

II.

The District Court possessed jurisdiction over this action pursuant to 28 U.S.C. §§ 

1331 & 1343. Our jurisdiction arises under 28 U.S.C. § 1291. Since Tormasi‟s appeal 

from the denial of his motion for reconsideration “brings up the underlying judgment for 

review,” we will review the District Court‟s order granting summary judgment as well as 

its denial of the motion for reconsideration. N. River Ins. Co. v. CIGNA Reinsurance 

 

2 According to Tormasi, those glasses did not have the correct prescription. His efforts to 

get his prescription corrected are not at issue in this lawsuit.
5

Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Our review of an order granting summary 

judgment is plenary.3 Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).

To succeed on an Eighth Amendment claim based on delayed medical care, a 

plaintiff must establish that prison officials were deliberately indifferent to his serious 

medical needs. See Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-

47 (3d Cir. 1987). A medical needs is serious for Eighth Amendment purposes if (1) it 

“has been diagnosed by a physician as requiring treatment”; (2) it “is so obvious that a 

lay person would easily recognize the necessity for a doctor‟s attention”; or (3) “where 

the denial of treatment would result in the unnecessary and wanton infliction of pain or a 

life-long handicap or permanent loss.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 

2003) (quotations and citations omitted). A prison official acts with deliberate 

indifference if he “knows of and disregards an excessive risk to inmate health or safety; 

the official must both be aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. 

Brennan, 511 U.S. 825, 837 (1994).

Initially, the parties dispute whether Tormasi‟s optometry needs are “serious” for 

Eighth Amendment purposes. Although a “very slight visual impairment” does not 

 

3

In considering whether summary judgment was appropriate, we reviewed the entire 

record, including Tormasi‟s opposition. As the opposition fails to undermine the District 

Court‟s grant of summary judgment to Bethea, any error committed by the District Court 

in ruling when it did was harmless. Furthermore, we do not believe that the record 

supports the grant of summary judgment to Roach regardless of the opposition. 

Accordingly, the procedural issues Tormasi raises on appeal do not affect our outcome, 

and we need not address them.
6

constitute a serious medical need, see Borrelli v. Askey, 582 F. Supp. 512, 513 (E.D. Pa. 

1984), aff‟d without opinion, 751 F.2d 375 (3d Cir. 1984) (unpublished table decision), 

Tormasi‟s vision was significantly blurred, resulting in dizziness and imbalance that 

caused him to fall and walk into objects. On one occasion, he fell due to his inability to 

see and dislocated his jaw. Under such circumstances, a jury could find that Tormasi‟s 

optometry needs were serious. See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) 

(inmate established serious medical need when he experienced double vision and loss of 

depth perception without prescription glasses such that he would fall or walk into 

objects). Furthermore, we reject appellees‟ suggestion that Tormasi cannot establish the 

seriousness of his needs due to his failure to provide expert testimony. Many of 

Tormasi‟s injuries – dizziness, light-headedness, falling and sustaining physical injury –

can easily be understood by a layperson without the need for an expert.

4

See Boring v. 

Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987).

Turning to the issue of deliberate indifference, Bethea first learned of Tormasi‟s 

need to see the optometrist in August 2007. From then until Tormasi‟s April 2008

appointment, Bethea responded to his letters, investigated his complaints, and, according 

to her interrogatory responses, repeatedly contacted the “scheduler” to resolve the issue. 

When Bethea learned that Tormasi still had not received his eyeglasses, she again 

 

4 We note that expert testimony would likely be necessary to establish whether and to 

what extent the delay in care caused Tormasi‟s vision to further deteriorate. Tormasi 

does not have expert testimony on that issue, apparently because he relied on the District 

Court‟s conclusion, made in connection with the denial of his motion to appoint an 

expert, that his injuries were not “beyond the understanding of laypersons.” The District 

Court may need to revisit this issue on remand. 
7

contacted the “scheduler,” repeatedly notified Roach of the problem, and visited Tormasi 

in his cell to discuss the situation. Tormasi contends that Bethea was deliberately 

indifferent because she took the same, essentially ineffective, course of action in response 

to his complaints. While it would have been nice if Bethea had been more proactive on 

Tormasi‟s behalf, her response was not so unreasonable that it could be viewed as 

deliberate indifference. See Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009) 

(“„[P]rison officials who actually knew of a substantial risk to inmate health or safety 

may be found free from liability if they responded reasonably to the risk.‟”) (quoting 

Farmer, 511 U.S. at 844); see also Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 502-

03 (1st Cir. 2011) (rejecting Eighth Amendment claim based on inmate‟s assertion that 

certain employees should have been more proactive in following up with his care). 

Roach, however, presents a closer case. We believe, viewing all inferences in 

favor of Tormasi, that a reasonable jury would be able to infer deliberate indifference on 

her part. We agree with the District Court that the delay between Tormasi‟s December 

2006 medical request and his August 2007 request, which resulted from a missed 

appointment, does not reflect deliberate indifference, even if Roach could have (or should 

have) tracked down Tormasi when he did not show up. Nevertheless, it is apparent that 

Roach was notified of the “long overdue” appointment in November 2007 and that, in 

early 2008, she was twice put on notice that Tormasi was experiencing serious 

consequences as a result of his blurry vision. When Tormasi failed to receive his glasses 

after the April 2008 appointment, Bethea repeatedly notified Roach of the problem.

Although the record reflects that Roach forwarded Tormasi‟s January and March 2008
8

letters to her supervisors, there is no indication that she did anything in response to 

Bethea‟s repeated communications that Tormasi needed an appointment.5 

As a supervisor in the optometry clinic, Roach‟s responsibilities included calling 

inmates into the unit to be seen by the optometrist based on the schedule. Regardless of 

whether Roach was responsible for actually scheduling optometry appointments – a fact 

that the parties dispute – the record reflects that she could recommend that an inmate be 

placed on the scheduling roster when special circumstances existed.6 Yet there is no 

indication that Roach made any such recommendation, or did anything at all, in response 

to Bethea‟s notifications, which occurred after she was already aware that Tormasi was at 

risk of serious harm because he was falling and walking into objects as a result of his 

blurred vision. Additionally, the record provides no explanation whatsoever as to the 

causes of the “mix ups” and delays that prevented the scheduling of a simple eye 

examination. A reasonable jury could therefore infer that Roach ignored the situation to 

the point of deliberate indifference. See Jones v. Simek, 193 F.3d 485, 490-91 (7th Cir. 

1999) (vacating summary judgment when doctor knew that inmate needed to see 

specialist for nerve damage but did not schedule appointment for six months and failed to 

provide pain medication in the interim); see also Farmer, 511 U.S. at 842 (“[I]t is enough 

that the official . . . failed to act despite his knowledge of a substantial risk of serious 

harm.”). Furthermore, a jury could infer that, as the supervisor tasked with tracking

 

5

In her interrogatory responses, Roach indicated that she did not recall any 

communications with Bethea on the subject.

6

The record is surprisingly silent on the identity of the “scheduler” repeatedly referenced 

in Roach and Bethea‟s interrogatory responses and the particulars of how an optometry 
9

inmates reporting for optometry appointments, Roach was aware as the months passed 

that Tormasi had not received the care that she knew he needed. While a finder of fact 

might conclude that Roach was guilty of negligence at most, we cannot say on the record 

before us that a reasonable fact-finder could not find deliberate indifference.7See Farrow 

v. West, 320 F.3d 1235, 1247 (11th Cir. 2003) (claim based on 15-month delay survived 

summary judgment “given [inmate‟s] recognized need for denture treatment, the nature 

of his continuing problems, the sheer length of the delay involved, and the lack of any 

reasonable explanation for the inordinate delay in this case”).

We will therefore affirm the District Court‟s judgment as to Bethea but vacate as 

to Roach. Given our disposition, we will also vacate the denial of Tormasi‟s motions for 

partial summary judgment as moot. Despite Tormasi‟s request that we resolve those 

motions in his favor, we will leave them for the District Court to address in the first 

instance. We also decline to require the appointment of counsel on remand because 

Tormasi must first make his request to the District Court. In ruling on any such motion,

the District Court will want to consider the impact that Tormasi‟s jaw dysfunction will 

have on his ability to present his case at trial. See Parham v. Johnson, 126 F.3d 454, 457-

61 (3d Cir. 1997). Appellees‟ motion to file a supplemental appendix is granted. 

 

appointment is scheduled at the prison.

7

In their brief, Roach and Bethea focus on the fact that Tormasi has received more eyerelated care in prison than he did before he was incarcerated. As Tormasi has been 

incarcerated for over a decade, we fail to see how that fact is relevant.