Hickey v. Merritt-Scully

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHLEEN HICKEY, : CIVIL NO.: 4:18-cv-01793

As the Administratrix of Estate of :

Michael A. Serrano, Deceased, : (Magistrate Judge Schwab)

and in her Own Right, :

:

Plaintiff, :

:

v. :

:

KAREN MERRITT-SCULLY, :

MICHAEL MOCLOCK, :

RENEE KERR. :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction.

Plaintiff Kathleen Hickey (“Hickey”) brings this action individually and as

Administratrix of the estate of her deceased son, Michael A. Serrano (“Serrano”),

who passed away on May 29, 2016, while incarcerated at State Correctional

Institute Coal Township (“SCI Coal Twp”). Hickey asserts civil rights and

professional negligence claims against defendants Michael Moclock, M.D. (“Dr.

Moclock”), Health Care Administrator, Karen Merritt-Scully (“Merritt-Scully”)

and Renee Kerr, LPN (“Nurse Kerr”), and requests damages pursuant to

Pennsylvania’s Wrongful Death Act, 42 Pa. C.S.A. § 8301, and Pennsylvania’s

Survival Act, 42 Pa. C.S.A. § 8302.1 Presently before us are two motions for

summary judgment, one filed by Dr. Moclock, and the other jointly filed by

Merritt-Scully and Nurse Kerr. Because complex factual and medical issues

permeate this case, we will grant in part and deny in part both motions for

summary judgment.

II. Background and Procedural History.

Hickey began this action by filing a praecipe for writ of summons in the

Northumberland County Court of Common Pleas on May 25, 2018. Doc. 1-1.

Hickey initially named as the defendants Thomas McGinley (“McGinley”),

Merritt-Scully, Dr. Moclock, Kevin Meitzler, RN (“Meitzler”), Denice Austeel,

RN (“Austeel”), Brian Davis, PA-C (“Davis”), and Nurse Kerr. Id. at 3-4. On

September 12, 2018, Dr. Moclock and Davis filed a notice of removal, and this

action was removed to the United States District Court for the Middle District of

Pennsylvania. Doc. 1. Dr. Moclock filed a motion to dismiss Hickey’s complaint,

and all defendants filed an answer to the complaint on November 19, 2018. Docs.

1 Under Pennsylvania law, “wrongful death and survival actions are not

substantive causes of action; rather, they provide a vehicle through which plaintiffs

can recover for unlawful conduct that results in death.” Johnson v. City of

Philadelphia, 105 F.Supp.3d 474, 483 (E.D. Pa. 2015) (citing Sullivan v.

Warminster Twp., 765 F.Supp.2d 687, 707 (E.D. Pa. 2011)); see also 42 Pa. Cons.

Stat. §§ 8301, 8302.

4, 13. Judge Brann granted Dr. Moclock’s motion to dismiss, and Hickey filed the

operative amended complaint on December 21, 2018, which names as the

defendants Dr. Moclock, Merritt-Scully, and Nurse Kerr. Docs. 15, 16. Hickey

alleges that the defendants violated Serrano’s constitutional rights through their

deliberate indifference to his medical conditions, in violation of the Eighth

Amendment to the United States Constitution. Hickey also alleges that the

defendants are liable for professional negligence which resulted in Serrano’s death.

Doc. 16 at 26-30, 38-56.

By way of background, Hickey alleges in her amended complaint that

Serrano was shot in the face and head in 2008, which caused a traumatic brain

injury and multiple health issues including seizures. Id. at 21. She alleges that

Serrano was sentenced to prison on November 7, 2011, was transferred along with

his medical records through multiple different prisons, and was ultimately

incarcerated at SCI Coal Twp. on November 23, 2015. Id. at 22-28.

Counts One, Two and Three of the amended compliant assert state law

professional negligence/medical malpractice (“professional negligence”) claims

against Dr. Moclock, Merritt-Scully, and Nurse Kerr respectively. Counts Four

and Five assert claims against Dr. Moclock and Merritt-Scully respectively under

§ 1983 for Eighth Amendment deliberate indifference and failure to train,

supervise and discipline claims. Count six asserts an Eighth Amendment

deliberate indifference claim against Nurse Kerr.

The defendants filed their answers to the amended complaint. Docs. 19-20.

Hickey filed a notice of voluntary dismissal for, and the court ordered the dismissal

of, defendants McGinley, Meitzler, Austeel, and Davis. Docs. 21-22. The

remaining parties consented to magistrate judge jurisdiction pursuant to 28 U.S.C.

§ 636 (c), and the case was referred to the undersigned. Docs. 26, 28.

On May 21, 2020, the parties filed three motions for summary judgment.

Docs. 43 (Dr. Moclock), 45 (Nurse Kerr and Merritt-Scully), 46 (Hickey). The

three defendants filed a joint statement of material facts along with exhibits in

support of their motions for summary judgment. Doc. 44. Hickey filed a brief in

support of her motion for summary judgment containing her statement of material

facts, along with exhibits.2 Doc. 49. Hickey later filed a supplemental appendix of

exhibits. Doc. 62. Dr. Moclock filed a brief in support of his motion for summary

judgment, as did Merritt-Scully and Nurse Kerr. Docs. 51, 53. Dr. Moclock also

2 Hickey did not file a separate statement of material facts in support of her

motion for summary judgment, and instead opted to include a discussion of the

facts in her brief in support of her motion for summary judgment. See doc. 49 at 6-

27.

filed a brief in opposition to Hickey’s motion for summary judgment, as did

Merritt-Scully and Nurse Kerr. Docs. 58, 59. The three defendants filed a joint

response to the statement of material facts contained in Hickey’s brief in support of

her motion for summary judgment. Doc. 60. Hickey filed briefs in opposition3 to

Merritt-Scully and Nurse Kerr’s motion for summary judgment and to Dr.

Moclock’s motion for summary judgment. Docs. 63-64. Dr. Moclock filed a reply

brief in support of his motion for summary judgment, and Merritt-Scully and Nurse

Kerr filed a reply brief in support of their motion for summary judgment. Docs. 65-

66. Hickey did not file any reply briefs, and the time to do so has since passed.

On March 12, 2021, we entered an order denying Hickey’s motion for

summary judgment on the basis that she failed to comply with Local Rule 56.1,

and we further ordered her to file an appropriate response to the defendants’ joint

statement of material facts in accordance with Local Rule 56.1. Doc. 67. Hickey

filed her response to the defendants’ joint statement of material facts. Doc. 68.

Thus, the defendants’ two motions for summary judgment are ripe for decision.

We separately analyze each motion for summary judgment below.

3 Hickey also failed to file a separate response to the defendants’ joint

statement of material facts. Instead, each of Hickey’s briefs in opposition to the

defendants’ motions for summary judgment referenced a section of Hickey’s brief

in support of her motion for summary judgment. See doc. 64-1 at 6; doc. 63-1 at 7.

III. Summary Judgment Standards.

The defendants move for summary judgment under Rule 56(a) of the Federal

Rules of Civil Procedure, which provides that “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “Through summary adjudication the court may dispose of those claims that

do not present a ‘genuine dispute as to any material fact’ and for which a jury trial

would be an empty and unnecessary formality.” Goudy-Bachman v. U.S. Dep’t of

Health & Human Servs., 811 F. Supp. 2d 1086, 1091 (M.D. Pa. 2011) (quoting

Fed. R. Civ. P. 56(a)).

The moving party bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the record that

demonstrate the absence of a genuine dispute 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 party

must show a genuine dispute by “citing to particular parts of materials in the

record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials” or “showing

that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.

R. Civ. P. 56(c). If the nonmoving party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which

that party will bear the burden at trial,” summary judgment is appropriate. Celotex,

477 U.S. at 322.

Summary judgment is also appropriate if the nonmoving party provides

merely colorable, conclusory, or speculative evidence. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). There must be more than a scintilla of evidence

supporting the nonmoving party and more than some metaphysical doubt as to the

material facts. Id. at 252. “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. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986).

The substantive law identifies which facts are material, and “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. A

dispute about a material fact is genuine only if there is enough evidence to allow a

reasonable factfinder to return a verdict for the non-moving party. Id. at 248-49.

When “faced with a summary judgment motion, the court must view the facts ‘in

the light most favorable to the nonmoving party.’” N.A.A.C.P. v. N. Hudson Reg’l

Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v. Harris, 550 U.S.

372, 380 (2007)).

At the summary judgment stage, the judge’s function is not to weigh the

evidence or to determine the truth of the matter; rather it is to determine whether

there is a genuine issue for trial. Anderson, 477 U.S. at 249. The proper inquiry of

the court “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.

Summary judgment is warranted, after adequate time for discovery, against a

party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will bear the burden

of proof at trial. Celotex, 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. Consol. Rail Corp., 297 F.3d 242, 247 (3d

Cir. 2002) (quoting Celotex, 477 U.S. at 323). “[S]ummary judgment is essentially

‘put up or shut up’ time for the non-moving party: the non-moving party must

rebut the motion with facts in the record and cannot rest solely on assertions made

in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp., Ltd. v.

Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

IV. Material Facts.

The following facts are the material facts for purposes of the pending

summary judgment motions.4 On September 21, 2008, Serrano was critically

injured when he was shot in the head, after which he began having seizures.5 Doc.

4 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise

statement of the material facts, in numbered paragraphs, as to which the moving

party contends there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. A party

opposing a motion for summary judgment must file a separate statement of

material facts, responding to the numbered paragraphs set forth in the moving

party’s statement and identifying genuine issues to be tried. Id. Here, Hickey’s

Response to Defendants’ Joint Statement of Material Facts (doc. 68) is on the

whole improper. Although she does admit some facts, rather than properly

disputing a fact in the defendants’ joint statement, Hickey explains why such facts

are immaterial, or she presents argument regarding the facts in the context of the

substantive claims raised in the case, or both. Accordingly, the Court is

constrained to cite to defendants’ joint statement of material facts and address

Hickey’s issues to the extent they are raised in her brief. Finally, as part of our

review, we have scrutinized the parties’ Rule 56 documentation and independently

considered the entire record.

5 All parties cite to the long factual history regarding Serrano’s medical and

seizure issues. While creating a backdrop for the claims in this case, much of this

history is not relevant to the claims at issue in the motion for summary judgment

44 at ¶¶ 3-4. Serrano suffered seizures on May 8, June 17, early November, and

December 12, 2009; late September and October 4, 2010; early March and June 9,

2011. Id. at ¶¶ 6-7, 10-11, 14-15, 17. At his October 4, 2010 hospitalization

following a seizure, Serrano reported that a few weeks earlier Serrano’s

neurologist increased his dosage of Trileptal, an anticonvulsant used to treat

seizures, but that he continued to experience seizures. Id. at ¶ 15.

Serrano arrived at State Correctional Institute Graterford on November 7,

2011, and he completed a “symptoms review” in which he mentioned his seizures

and drug use, as well as his 2008 gunshot wound to the head. Id. at ¶ 18. He also

reported that he took 1050 mg of Trileptal twice a day and that he was born with a

heart murmur. Id. On November 21, 2011, Serrano was transferred to State

Correctional Institute Camp Hill. Id. at ¶ 22. On February 13, 2012, Serrano was

seen by Dr. Gandy who determined that the examination was normal, cancelled

Serrano’s “Keep on Person”6 medication status, and ordered that Serrano was to

before us. Also, defendants include many facts regarding Serrano’s grievance

history and his many requests for snack bags. We note these facts and understand

the substantive reasons for their inclusion in the statement of material facts. We,

however, will confine our discussion to the relevant material facts bearing on the

claims raised and our resolution thereof.

6 Per Dr. Moclock, “Keep on Person” means the inmate is permitted to keep

the medication in his cell. See doc. 51 at 3.

continue taking Trileptal. Id. at ¶ 24. On March 10, 2012, Serrano had a seizure in

his cell and was given Trileptal. Id. at ¶ 26. The doctor noted that Serrano “was

not taking his Trileptal,” and he ordered a daily neurological check for two days.

Id. at ¶ 27.

On April 17, 2021, the doctor assessed Serrano and increased his Trileptal

dose, and he ordered Serrano’s serum Trileptal levels to be tested in order to

determine whether he was taking his medicine. Id. at ¶ 41. On April 17, 2012,

Serrano was caught surreptitiously concealing his medication in his mouth and

bringing it back to his cell—i.e., “cheeking” his pills—and pills were found in his

cell. Id. at ¶ 42. Accordingly, on April 20, 2012, a physician assistant wrote that

Serrano cheeked his Trileptal and ordered that his medication should be crushed to

avoid abuse. Id. at ¶ 43. The doctor followed up with Serrano on April 30, 2012,

noted no further seizures, and noted Trileptal levels at the low end of the test range.

Id. at ¶ 44. The doctor concluded that Serrano’s seizures were adequately

controlled and that his current Trileptal dosage was adequate. Id.

On June 1, 2012, Serrano was transferred to State Correctional Institute

Houtzdale and joined general housing with a bottom tier, bottom bunk assignment.

Id. at ¶ 45. Serrano went to sick call six times in June to request a snack bag, but

his requests were denied because his weight was normal, and his seizure disorder

with compliance issues was noted. Id. at ¶ 46. On September 11, 2012, Dr.

Mohammad Naji (“Dr. Naji”) at the Seizure Chronic Care Clinic examined

Serrano. Id. at ¶ 47. Dr. Naji noted that the examination was unremarkable, found

Serrano’s seizure disorder to be stable, and did not alter his medications. Id. On

February 18, 2013, Serrano was again caught keeping medications in his cell. Id. at

¶ 49. Dr. Naji discontinued Serrano’s Trileptal because he was “hiding it and

doesn’t take it,” and Serrano did not receive any Trileptal afterwards. Id. at ¶ 50.

On March 13, 2013, Serrano complained that he felt like he was going to

have a seizure, after which Patrick Nagle, PA-C (“Nagle”) noted that Dr. Naji

discontinued Serrano’s medication. Id. at ¶ 52. Nagle discussed Serrano’s

medication with Dr. Naji, and Dr. Naji “was adamant that [Serrano] was not to be

restarted on seizure medications.” Id. Serrano reported that he thought he would

“catch” a seizure on March 26, 2013, but Maria Leahy, PA-C “found no evidence

of recent seizure activity and suspected that [Serrano] was being manipulative.” Id.

at ¶ 53. On April 9, 2013, Dr. Naji wrote an order removing Serrano from the

seizure clinic and wrote that it was because Serrano was not taking seizure

medication since he was hoarding it. Id. at ¶ 54. On October 1, 2014, Serrano

reported as part of an initial reception mental health questionnaire that he hadn’t

“had seizures in years—history of grand mal seizures.” Id. at ¶ 69.7

7 Hickey notes that this is an “undated, unsigned, handwritten note,” but

does not dispute its factual contents. Doc. 68 at 42; see also doc. 44-11 at 27.

On February 4, 2015, Serrano was transferred to State Correctional Institute

Fayette. Id. at ¶ 75. The next day, after reviewing his chart, A. Maskin, CRNP,

noted that Serrano had a history of seizures, but was not currently on seizure

medication, and deemed Serrano to be medically stable. Id. Serrano went to the

Seizure Chronic Care Clinic on February 23, 2015, and he reported that his

seizures began after he was shot in the head, but that he did not have a seizure in

the past two years. Id. at ¶ 77. The notes from the February 23 visit also reflect

that Serrano had not taken Trileptal since February of 2013 because he hoarded the

pills, and Dawn Chowden PA-C then ordered Serrano discontinued from the

Seizure Chronic Care Clinic. Id.

Serrano was transferred to SCI Coal Twp. on November 23, 2015, and was

assessed by psychology without any complaints noted. Id. at ¶ 86. On November

24, 2015, Nicholle Boguslaw, PA-C completed an IST/MAC form8, used to

identify medically necessary devices or accommodations for an inmate, and noted

“No seizures ≥ 2 years. No RX since 2013. Had seizure in 2008 2° [secondary] to

GSW [gunshot wound] plate in his head.” Id. at ¶ 87. Whether Dr. Moclock

8 Per the defendants’ “[a]n IST/MAC is a form completed by the medical

department to identify any medically approved devices or medically necessary

accommodations for an inmate, such as work limitations, exercise limitations, and

housing accommodations.” Doc. 44 at ¶ 87, n. 5.

countersigned these notes is disputed. Id.9 On November 30, 2015, Serrano was

seen by psychology and reported no medical concerns. Id. at ¶ 88. On December

10, 2015, Brian Davis PA-C (“Davis”) wrote, as part of a Seizure Chronic Care

Clinic form that Serrano was “[s]cheduled for seizure clinic but has not been on

any med for > 2 years. Also no [seizure] activity for > 2 years. D/c [discontinued]

from chronic clinic. No active seizure [disorder].” Id. at ¶ 91. Serrano also saw

psychiatry the same day but had no complaints about seizures. Id. at ¶ 92. On

December 15, 2015, psychiatry and psychology saw Serrano again where he

complained about sleeplessness, anxiety, and depression. Id. at ¶ 95-96. Serrano

did not complain when psychology assessed him again on December 17, 2015. Id.

at ¶ 98. Serrano saw Davis at sick call on December 22, 2015, for a right foot

injury, was prescribed antibiotic ointment, and did not mention any seizure

concerns. Id. at ¶ 99.

Both psychology and psychiatry saw Serrano on January 5, 2016, where

Serrano reported anxiety but no other medical concerns. Id. at ¶ 101. Later that

day, Serrano was found “verbally unresponsive” on his cell floor by corrections

officers, and Kevin Meitzler, RN (“Meitzler”) arrived to assess Serrano. Id. at

9 Hickey disputes that Dr. Moclock’s signature is legible. Doc. 68 at ¶ 87.

¶ 102. Serrano’s evaluation was normal, except for some bruising under his right

eye and his spine, which Serrano stated were “really old.” Id. Serrano further

denied any pain or injury and told Meitzler that he fell. Id. Meitzler reported his

findings to Dr. Moclock, and Dr. Moclock ordered that Serrano be put under 23-

hour observation in the infirmary with neurological checks and vitals monitoring.

Id. at ¶ 103. Dr. Moclock acknowledged at his deposition that Serrano could have

fallen, ingested, or overdosed on medication, or suffered a seizure. Id. at ¶ 104. In

the infirmary, Serrano did not raise any medical complaints or make any requests,

and his examinations were normal. Id. at ¶ 105. Similarly, on January 6, 2016,

Serrano made no complaints and showed neither neurological defects nor seizure

activity. Id. at ¶ 106. Dr. Moclock also saw Serrano on January 6, 2016, and noted

no neurological deficits. Id. at ¶ 107. Dr. Moclock found no neurological source

for Serrano’s episode, found Serrano to be normal on examination, and did not

administer Trileptal “because there was no evidence that [Serrano] suffered a

seizure that week.” Id. Serrano was discharged from the infirmary on January 7,

2016, having made no medical complaints and appearing normal on evaluation. Id.

at ¶ 108.

Serrano underwent several examinations and evaluations throughout January

and February of 2016, during which he made neither complaints about his health

nor mention of seizures. Id. at ¶¶ 109-23. Serrano did not mention concerns about

seizures when he spoke with the psychologist on March 11, March 21, or March

23, 2016. Id. at ¶¶ 130-31. On March 31, 2016 Serrano saw Davis to complain

about dizziness, and Davis ordered labs, which were normal, to rule out a

metabolic cause for Serrano’s alleged weight loss. Id. at ¶ 133. Serrano reported to

psychology on April 18, 2016, that he was doing okay and offered no complaints.

Id. at ¶ 135.

On April 20, 2016, Nurse Kerr “responded to a call from security to come to

the RHU in response to an alleged seizure.” Id. at ¶ 136. Nurse Kerr’s progress

note (doc. 44-2 at 28-29) noted that she did not remove Serrano from his cell, but

she took his vitals by having him reach outside the wicket. Id. She further noted

that Serrano was responsive, appeared normal, had equal and reactive pupils, was

uninjured, and was not incontinent. Id. Nurse Kerr noted Serrano’s multiple

diagnoses, which she “received” from the computer. Id. The diagnoses in the

computer included laceration, gastritis, adjustment disorder, impulse control and

conduct disorder, antisocial personality disorder, insomnia disorder, and eczema.

Id. The diagnoses in the computer but did not list seizure disorder. Id. She

testified that she reviewed Serrano’s Electronic Medical Record (“EMR”) and his

chart before writing her note, and testified that “the fact that she did not list

seizures in his history indicated to her that this was not contained within the EMR

or the chart.” Id. at ¶ 139. Nurse Kerr further testified that she arrived to assess

Serrano at 7:10 a.m. for an alleged seizure at 7:00 a.m., and that she concluded

after examining and speaking with Serrano that he did not have a seizure that

morning. Id.

On April 21, 2016, Dr. Moclock and Merritt-Scully reviewed and signed

Nurse Kerr’s note. Id. at ¶ 136. Merritt-Scully was the Corrections Healthcare

Administrator (“CHCA”) at SCI Coal Twp. during Serrano’s incarceration and was

“responsible for managerial and administrative functions of the Medical

Department.” Id. at ¶ 137. While Merritt-Scully oversaw the administrative

functions of Nurse Kerr, Nurse Kerr reported to the SCI Coal Twp. nursing

supervisor. Id. Merritt-Scully’s purpose in reviewing Nurse Kerr’s note “was to

make sure that the safety of the patient is assured,” and she testified that she saw

nothing in the note indicating that Serrano was in harm’s way. Id. Dr. Moclock’s

purpose in reviewing Nurse Kerr’s note was “simply to review the collection of

information from the incident, not to check its accuracy.” Id. at ¶ 138. Regardless,

Dr. Moclock reviewed the note but “did not see any medical findings consistent

with a recent seizure . . . [and] he was certain that if a seizure had been witnessed,

it would have been documented.” Id. Serrano made no mention of seizures during

his April 26, 2016, psychiatry appointment. Id. at ¶ 140.

On April 29, 2016, Serrano was again caught by security hoarding pills in

his cell, and Sharon Graff, CRNP of psychiatry discontinued Serrano’s Buspar,

Melatonin, and Zoloft prescriptions. Id. at ¶ 141. On May 3, 2016, Serrano again

sought a snack bag, and Davis denied the request as Serrano was not malnourished.

Id. at ¶ 143. Serrano did not mention anything regarding seizures to Davis. Id. On

May 13, 2015, Hickey visited Serrano, and Serrano allegedly told Hickey that he

“suffered from three seizures in the past two weeks” and was not given seizure

medication—he had not told her that his seizure medication was discontinued years

ago. Id. at ¶¶ 145-46. According to Hickey, she called the prison and twice spoke

with Merritt-Scully, who assured her that Serrano would receive his medication.

Id. at ¶ 147. Merritt-Scully does not recall speaking with Dr. Moclock about

Serrano or otherwise relaying Hickey’s message. Id. at ¶ 148.

On May 29, 2016, at 6:20 a.m., a corrections officer counted the inmates and

saw Serrano standing at his cell door. Id. at ¶ 149. At 6:45 a.m., Serrano “was

found unresponsive in his cell.” Id. at ¶ 150. Medical staff attempted to resuscitate

Serrano to no avail, and Serrano was pronounced dead. Id. at ¶ 152.

V. Discussion.

A. Professional Negligence Claims.

Here, Hickey sues all the defendants for professional negligence asserting

that each breached the applicable standard of care in treating and managing

Serrano’s medical care and, thus, caused his death. In Pennsylvania, medical

negligence, or medical malpractice, is defined as “the unwarranted departure from

generally accepted standards of medical practice resulting in injury to a patient,

including all liability-producing conduct arising from the rendition of professional

medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145

(Pa. 2003) (citing Hodgson v. Bigelow, 7 A.2d 338 (Pa. 1939)). Under

Pennsylvania law in order to establish a cause of action for professional

negligence, the plaintiff must prove the following:

(1) a duty owed by the physician to the patient (2) a breach of

duty from the physician to the patient (3) that the breach of duty

was the proximate cause of, or a substantial factor in, bringing

about the harm suffered by the patient, and (4) damages

suffered by the patient that were a direct result of that harm.

Mitzelfelt v. Kamrin, 584 A.2d 888, 891 (Pa. 1990). To satisfy the burden of

providing a medical malpractice claim the plaintiff “is also required to present an

expert witness who will testify, to a reasonable degree of medical certainty, that the

acts of the physician deviated from good and acceptable medical standards, and

that such deviation was the proximate cause of the harm suffered.” Id. at 892

(citing Brannan v. Lakenau Hosp., 417 A.2d 196 (Pa. 1980)); see also Toogood,

824 A.2d at 1145 (“[A] plaintiff must present medical expert testimony to establish

that the care and treatment of the plaintiff by the defendant fell short of the

required standard of care and that the breach proximately caused the plaintiff’s

injury.”).

As to causation “‘[w]hat the expert [report] must demonstrate is that the

negligence of the defendant either proximately caused the plaintiff’s harm, or

increased the risk of its occurrence.’” Grossman v. Barke, 868 A.2d 561, 572 (Pa.

Super. Ct. 2005) (quoting Watkins v. Hosp. of the Univ. of Pa., 737 A.2d 263, 267

(Pa. Super. Ct. 1999)); see also Vicari v. Spiegel, 936 A.2d 503, 510 (Pa. Super.

Ct. 2007) (“Additionally, a ‘medical opinion need only demonstrate, with a

reasonable degree of medical certainty, that a defendant’s conduct increased the

risk of the harm actually sustained, and the jury then must decide whether that

conduct was a substantial factor in bringing about the harm.’”) (quoting Smith v.

Grab, 705 A.2d 894, 899 (Pa. Super. Ct. 1997)).

The parties vigorously debate defendants’ liability on this claim in their

briefs. The record also contains several expert reports opining, inter alia, on

whether the defendants violated professional standards of care in their treatment of

Serrano. Such reports are summarized as follows:

Plaintiff’s Expert Reports.

Expert Report of Adriana Olar, M.D., M.Sc. – reviewing the

autopsy report and opining that Serrano’s death was related to a

seizure disorder. Doc. 49-12.

Expert Report of Danielle A. Becker, M.D., M.S. – opining that

Dr. Moclock, Merritt-Scully and Nurse Kerr deviated from the

acceptable standards of care. Doc. 49-11.

Expert Report of Andrea C. Reischerl PMHCNS-BC, CCHP,

CPAI, LNC – opining that Nurse Kerr functioned outside the

scope of her practice as an LPN. Doc. 68-9, 58-2.

Defendants’ Expert Reports.

Expert Report of Arthur H. McTighe, M.D. – opining that

based on his review there is no evidence to suggest that

Serrano’s death was the result of an epileptic seizure. Doc. 51-

2.

Expert Report of John Khoury, M.D. – opining that Dr.

Moclock acted within the standard of care in not prescribing

anti-epileptic medication to Serrano. Doc. 65 at 14-23.

Autopsy Report.

Autopsy Report of Michael W. Johnson, M.D., Ph.D – opining

that Serrano’s death was possibly due to complications of a

remote gunshot wound to the head. Doc. 49-15.

Having carefully reviewed the record, including the expert reports, we

conclude that the numerous factual disputes preclude summary judgment in favor

of all of the defendants on Hickey’s professional negligence claims. These

disputes regarding the respective standards of care and whether such were

breached involve factual determinations as to the credibility of these competing

experts’ views, determinations that are properly left for the jury to decide, not this

court. We will therefore deny summary judgment to defendants on these claims.

B. Eighth Amendment Claims.

Hickey’s federal claims are brought pursuant to § 1983. To state a viable

§ 1983 claim, a plaintiff must plead two essential elements: 1) that the conduct

complained of was committed by a person acting under color of state law, and 2)

that said conduct deprived the plaintiff of a right, privilege, or immunity secured

by the Constitution or laws of the United States. Natale v. Camden Cty. Corr.

Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). Moreover, for a § 1983 claim to

survive a motion to dismiss, the plaintiff must sufficiently allege that the defendant

was personally involved in the act or acts that the plaintiff claims violated his

rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015). Individual

liability can be imposed under 42 U.S.C. § 1983 only if the state actor played an

“affirmative part” in the alleged misconduct and “cannot be predicated solely on

the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d

Cir. 2005) (quoting Rode, 845 F.2d at 1207); Sutton v. Rasheed, 323 F.3d 236,

249-50 (3d Cir. 2003). The personal involvement of a defendant in a §1983 action

may be shown “through allegations of personal direction or of actual knowledge

and acquiescence.” Argueta v. U.S. Immigration & Customs Enf’t, 643 F.3d 60, 71

(3d Cir. 2011) (quoting Rode, 845 F.2d at 1207). Such allegations, however, must

be made with appropriate particularity in that a complaint must allege the

particulars of “conduct, time, place, and persons responsible.” Evancho, 423 F.3d

at 354; Rode, 845 F.2d at 1207-08. Alleging a mere hypothesis that an individual

defendant had personal knowledge or involvement in depriving the plaintiff of his

rights is insufficient to establish personal involvement. Rode, 845 F.2d at 1208.

Moreover, a defendant “cannot be held responsible for a constitutional violation

which he or she neither participated in nor approved.” C.H. ex rel. Z.H. v. Olivia,

226 F.3d 198, 201-02 (3d Cir. 2000). Allegations that a supervisor “had

constructive knowledge of a subordinate’s unconstitutional conduct simply

because of his role as a supervisor” do not suffice. Broadwater v. Fow, 945

F.Supp.2d 574, 588 (M.D. Pa. 2013) (citing C.H. ex rel. Z.H., 226 F.3d at 202).

“The Eighth Amendment, made applicable to the States through the

Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual

punishments.’” Glossip v. Gross, 576 U.S. 863, 876 (2015). “An inmate must rely

on prison authorities to treat his medical needs; if the authorities fail to do so, those

needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). In order for a

plaintiff to allege a viable Eighth Amendment medical claim, he must allege facts

from which it can reasonably be inferred that the defendant acted with deliberate

indifference to his serious medical needs. Id. at 104; see also Groman v. Township

of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (“Failure to provide medical care

to a person in custody can rise to the level of a constitutional violation under

§ 1983 only if that failure rises to the level of deliberate indifference to that

person’s serious medical needs.”).

In order to prove that his Eighth Amendment rights have been violated, a

plaintiff must make both an objective and a subjective showing in order to impose

liability on a defendant. Objectively, a plaintiff must show that his deprivation was

sufficiently serious to rise to the level of an Eighth Amendment violation. Pearson

v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999)); Chavarriaga v. New Jersey Dep’t of

Corrections, 806 F.3d 210 (3d Cir. 2015). A medical need is serious if it “has been

diagnosed by a physician as requiring treatment” or if it “is so obvious that a lay

person would easily recognize the necessity for a doctor’s attention.” Monmouth

Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)

(quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff’d, 649 F.2d 860

(3d Cir. 1981) (table)). Additionally, “if ‘unnecessary and wanton infliction of

pain’ results as a consequence of denial or delay in the provision of adequate

medical care, the medical need is of the serious nature contemplated by the eighth

amendment.” Id. (quoting Estelle, 429 U.S. at 103). Further, “where denial or

delay causes an inmate to suffer a life-long handicap or permanent loss, the

medical need is considered serious.” Id.

Subjectively, a plaintiff must show that the defendant was deliberately

indifferent to his medical needs. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

But to demonstrate a defendant’s deliberate indifference an

inmate need not show that the defendant intentionally sought to

cause the inmate harm or acted with knowledge that harm to the

inmate probably would result from the defendant’s act or failure

to act. Though purposeful conduct would show at least

deliberate indifference, an inmate satisfies her burden to make

that showing if she demonstrates that the defendant acted or

failed to act despite having knowledge that her actions or

inaction…would subject the inmate to a substantial risk of

serious harm.

Chavarriaga, 806 F.3d at 227 (citing Farmer, 511 U.S. at 834 – 842) (internal

citations omitted).

“To act with deliberate indifference to serious medical needs is to recklessly

disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330

(3d Cir. 2009). To act with deliberate indifference, the prison official must have

known of the substantial risk of serious harm and must have disregarded that risk

by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837. “[T]he

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.” Id.

Deliberate indifference, “like any other form of scienter,” can “be proven through

circumstantial evidence and witness testimony.” Pearson, 850 F.3d at 535.

The mere misdiagnosis of a condition or medical need, or negligent

treatment provided for a condition, however, is not actionable as a constitutional

claim because medical malpractice is not a constitutional violation. See Farmer,

511 U.S. at 835 (holding that “deliberate indifference describes a state of mind

more blameworthy than negligence”); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.

2004) (“Allegations of medical malpractice are not sufficient to establish a

Constitutional violation.”); Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 192 n. 2

(3d Cir. 2002) (claims of medical malpractice, absent evidence of a culpable state

of mind, do not constitute deliberate indifference under the Eighth Amendment).

Instead, deliberate indifference represents a much higher standard, one that

requires “obduracy and wantonness, which has been likened to conduct that

includes recklessness or a conscious disregard of a serious risk.” Rouse, 182 F.3d

at 197 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

“Indeed, prison authorities are accorded considerable latitude in the

diagnosis and treatment of prisoners.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d

Cir. 1993) (citations omitted). And 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.” Palakovic v. Wetzel, 854 F.3d

209, 228 (3d Cir. 2017) (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.” Caldwell v. Luzerne

Cnty. Corr. Facility Mgmt. Employees, 732 F.Supp.2d 458, 472 (M.D. Pa. 2010).

Thus, “[w]here a prisoner has received some amount of medical treatment, it is

difficult to establish deliberate indifference, because prison officials are afforded

considerable latitude in the diagnosis and treatment of prisoners.” Palakovic, 854

F.3d at 227. “Nonetheless, there are circumstances in which some care is provided

yet it is insufficient to satisfy constitutional requirements.” Id.

The Third Circuit has found deliberate indifference where a prison official:

“(1) knows of a prisoner’s need for medical treatment but intentionally refuses to

provide it; (2) delays necessary medical treatment based on a non-medical reason;

or (3) prevents a prisoner from receiving needed or recommended medical

treatment.” Rouse, 182 F.3d at 197. The Third Circuit has also held that

“[n]eedless suffering resulting from the denial of simple medical care, which does

not serve any penological purpose, . . . violates the Eighth Amendment.” Atkinson

v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003). “For instance, prison officials may

not, with deliberate indifference to the serious medical needs of the inmate, opt for

‘an easier and less efficacious treatment’ of the inmate’s condition.” Palakovic,

854 F.3d at 228 (quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978)). “Nor

may ‘prison authorities deny reasonable requests for medical treatment . . . [when]

such denial exposes the inmate to undue suffering or the threat of tangible residual

injury.’” Id. (quoting Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834

F.2d 326, 346 (3d Cir. 1987)). Thus, “[a] ‘failure to provide adequate care . . .

[that] was deliberate, and motivated by non-medical factors’ is actionable under

the Eighth Amendment, but ‘inadequate care [that] was a result of an error in

medical judgment’ is not.” Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016)

(quoting Durmer, 991 F.2d at 69).

Moreover, “there is a critical distinction ‘between cases where the complaint

alleges a complete denial of medical care and those alleging inadequate medical

treatment.’” Pearson, 850 F.3d at 535 (quoting United States ex. rel. Walker v.

Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). “Because ‘mere disagreement

as to the proper medical treatment’ does not ‘support a claim of an eighth

amendment violation,’ when medical care is provided, we presume that the

treatment of a prisoner is proper absent evidence that it violates professional

standards of care.” Id. (quoting Monmouth Cty. Corr. Inst., 834 F.2d at 346). And

“there are two very distinct subcomponents to the deliberate indifference prong of

an adequacy of care claim.” Id. at 536. “The first is the adequacy of the medical

care—an objective inquiry where expert testimony could be helpful to the jury.”

Id. “The second is the individual defendant’s state of mind—a subjective inquiry

that can be proven circumstantially without expert testimony.” Id. But a claim that

medical care was delayed or denied completely “must be approached differently

than an adequacy of care claim.” Id. at 537. “Unlike the deliberate indifference

prong of an adequacy of care claim (which involves both an objective and

subjective inquiry), the deliberate indifference prong of a delay or denial of

medical treatment claim involves only one subjective inquiry—since there is no

presumption that the defendant acted properly, it lacks the objective, propriety of

medical treatment, prong of an adequacy of care claim.” Id. “All that is needed is

for the surrounding circumstances to be sufficient to permit a reasonable jury to

find that the delay or denial was motivated by non-medical factors.” Id.

Further, in the context of § 1983 medical care claims, “correctional health

care administrators and nurse supervisors are generally considered non-medical

personnel. As a general rule, non-medical prison officials are not deliberately

indifferent under the Eighth Amendment simply because they failed to respond

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

the prison doctor or because they deferred to the judgment of the medical staff

treating the inmate.” Dunyan v. Pennsylvania Department of Corrections, No.

1:16-cv-02103, 2017 WL 3509243, at *7 (M.D. Pa., 2017) (citing Durmer v.

O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993)). “Absent a reason to believe (or actual

knowledge) that prison doctors or their assistants are mistreating (or not treating) a

prisoner, a non-medical prison official . . . will not be chargeable with the Eighth

Amendment scienter requirement of deliberate indifference.” Spruill, 372 F.3d at

236. “[T]he same division of labor concerns that underlie that rule apply when a

nurse knows that a prisoner is under a physician’s care and has no reason to believe

that the doctor is mistreating the prisoner.” Pearson, 850 F.3d at 540 n.4. “Given

that it is the physician with the ultimate authority to diagnose and prescribe

treatment for the prisoner, a nurse who knows that the prisoner is under a

physician’s care is certainly ‘justified in believing that the prisoner is in capable

hands,’ … so long as the nurse has no discernable basis to question the physician’s

medical judgment.” Id. (internal citations omitted) (quoting Spruill, 372 F.3d at

236). “[I]f, however, non-medical prison personnel had ‘a reason to believe (or

actual knowledge) that prison doctors or their assistants are mistreating (or not

treating) a prisoner,’ liability may be imposed.” Estein v. Showalter, Civ. No.

1:13-cv-02474, 2017 WL 4310188, at * 21 (M.D. Pa. 2017) (quoting Spruill, 372

F.3d at 236).

1. Dr. Moclock.

We do not construe Dr. Moclock as moving for summary judgment on the

basis that Serrano’s medical needs were not objectively serious. Rather, Dr,

Moclock argues that the evidence fails to show that he was deliberately indifferent

to Serrano’s serious medical needs. Dr. Moclock asserts that he is entitled to

summary judgment because he “did not observe any seizure activity” in Serrano,

and Serrano “never utilized one of the many avenues available to him to complain

of recurrent seizure activity.” Doc. 51 at 26. Dr. Moclock further argues that he

reasonably “used his medical judgment to determine that [Serrano’s] seizure

disorder was stable and he did not require medication.” Id. Also, per Dr. Moclock,

Hickey cannot prevail on her § 1983 claim because she has not proven “but for”

causation. Id. at 35.

Hickey contends that Dr. Moclock’s motion for summary judgment should

be denied because he chose “not to actively medically manage [Serrano’s] seizure

disorder” and the record “demonstrates an accumulation of infractions committed

by” Dr. Moclock “all of which increased the risk of [Serrano’s] death.” Id. at 11-

14. Hickey further asserts that summary judgment is inappropriate because there

exist genuine issues of material fact regarding whether Dr. Moclock “endorsed the

practice of automatically approving the Nursing Evaluation Tool without assessing

its merit.” Id. at 16.

Eighth Amendment deliberate indifference claims, like professional

malpractice claims, entail fact-specific inquiries, which involve credibility

determinations, weighing of evidence and the drawing of inferences from the facts.

And, when presented with several competing expert reports, as we have here, on

summary judgment the court may not invade the functions of the jury in these

matters. Here, in addition to numerous disputes of material facts, the parties

present argument about the perceived deficiencies of each others’ expert opinions

and the relative strengths of their own experts' opinions. The Court, however,

simply may not determine whether plaintiff's or defendants' experts are more

credible or persuasive. Such determinations as to the credibility of the competing

experts’ opinions on whether Dr. Moclock deviated from the standard of care such

that he was deliberately indifferent to Serrano’s care are within the province of the

fact-finder at trial. “Where multiple experts have opined in good faith based upon

their considerable experience and knowledge, and within the confines of their

expertise, and their opinions are simply conflicting, there is little for a court to do

but conclude that a material dispute of fact exists.” See, e.g., Phillips v. Cohen, 400

F.3d 388, 399 (6th Cir. 2005) (“This approach of weighing the credibility of

the competing expert reports amounts to improper fact-finding.”). These profound

factual disputes, therefore, are fatal to Dr. Moclock’s motion for summary

judgment, which we will deny.

2. Merritt-Scully.

Merritt-Scully also does not argue that Serrano’s medical needs were not

objectively serious. Rather, she contends that summary judgment is appropriate as

to Hickey’s Eighth Amendment claim because she cannot be found to have been

deliberately indifferent. Per Merritt-Scully, she is not a medical provider, she was

justified in deferring to Dr. Moclock’s treatment, she lacked personal involvement

in Serrano’s care, and she could not have been subjectively deliberately indifferent.

Doc. 53 at 5-8, 10-12. In response, Hickey argues that Merritt-Scully was

personally involved and subjectively deliberately indifferent because Hickey called

her on at least two occasions to relay her concerns about Serrano’s medication and

seizure complaints. Doc. 63-1 at 8-11; see also doc. 49-16 at 19-21 (“I told her

what [Serrano] told me, about the food trays, about the fact that he told me he was

having seizures and was only taken to the infirmary once and was still not being

given his medication . . . She told me that—she assured me that he would be given

his medication.”).

Hickey also argues that Merritt-Scully’s endorsement and automatic

approval of the erroneous treatment records, specifically the Nursing Evaluation

Tool, further establishes her personal involvement and deliberate indifference. Id.

at 14-16. Finally, Hickey argues that her expert testimony sufficiently establishes

causation at the summary judgment stage. Doc. 63-1 at 21-23.

Here material issues of fact surround Hickey’s calls to Merritt-Scully

regarding her son’s medical care. Merritt-Scully’s argument that her role was

limited to administrative duties, and did not involve her making medical

judgments, does not automatically exclude her from constitutional liability. This is

especially true, whereas here, she may have had some reason to believe, based on

Hickey’s phone calls, that Serrano was being mistreated with regard to his medical

treatment. See Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 329 (3d

Cir. 2014), rev’d on other grounds sub nom. Taylor v. Barkes, 575 U.S. 822 (2015)

(per curiam) (“Spruill gives ‘fair warning’ . . . that nonmedical prison officials may

‘be chargeable with the Eighth Amendment scienter requirement of deliberate

indifference’ when they possess actual knowledge or have reason to believe that

prison medical staff are mistreating or failing to treat inmates’ serious medical

conditions.”) (quoting Spruill, 372 F.3d at 236); Flanyak v. Hopta, 410 F.Supp.2d

394, 404 (M.D. Pa. 2006) (citing Spruill for the proposition that a nonmedical

supervisor may be liable under § 1983 if he had knowledge or reason to know of

medical mistreatment). Hickey’s assertions, if found credible, that she called the

prison twice and spoke with Merritt-Scully about Serrano’s medication and

seizures could persuade a reasonable jury that Merritt-Scully had “reason to

believe (or actual knowledge) that prison doctors or their assistants” mistreated or

did not treat Serrano, or a “discernable basis to question the physician’s medical

judgment” sufficient to satisfy the subjective component of deliberate indifference.

Pearson, 850 F.3d at 540 n.4 (quoting Spruill, 372 F.3d at 236). We therefore

deny Merritt-Scully’s motion for summary judgment on Hickey’s Eighth

Amendment claim.

3. Nurse Kerr’s Motion for Summary Judgment.

In support of her motion for summary judgment Nurse Kerr argues that the

record does not support that she had the requisite state of mind necessary to find

that she was deliberately indifferent to Serrano’s serious medical needs. Doc. 53 at

10-12. Hickey retorts that Nurse Kerr incorrectly documented Serrano’s purported

seizure on April 20, 2016, which amounts to deliberate indifference (doc. 63-1 at

11-14), but she does nothing to explain how Nurse Kerr was “aware of facts from

which the inference could be drawn that a substantial risk of serious harm

exist[ed], and . . . also dr[e]w the inference.” Farmer, 511 U.S. at 837; see also

Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (instructing that deliberate

indifference is a subjective state of mind).

Nothing in this record establishes that Nurse Kerr actually knew about

Serrano’s history of seizures or head trauma or a substantial risk of harm related to

them, nor does the record establish that Nurse Kerr drew an inference that a

substantial risk of harm to Serrano existed. See Farmer, 511 U.S. at 837. Nurse

Kerr testified at her deposition that she did not have access to older inmate medical

records, which were stored in an archive, and the records to which she did have

access “do not leave Medical” when she responded to a call. Doc. 44-26 at 9.

Although the record is wholly undeveloped on this issue, it appears that less recent

medical information was not readily accessible to Nurse Kerr since she “didn’t

know where those [were].” Id. She did, however, have access to more recent

medical records “off of the computer,” and she consulted Serrano’s computer

records prior to filling out her report on April 20, 2016. Id. at 15-16; see also doc.

44-25 at 39-40. Whatever inconsistencies may have existed on the April 20, 2016

Nursing Evaluation Tool filed out by Nurse Kerr, she testified that her only

knowledge of Serrano’s medical history came from the electronic medical record

which only has “their most recent history.” Doc. 44-26 at 16 (“Q: So you came to

the conclusion that he did not have epilepsy because of your review of the EMAR

[electronic medical record]? A: Of his history, yes.”). She also testified that she

wrote “no seizure medication” because Serrano “wasn’t taking any” according to

the computer. Id. at 17. In short, and again based on this record, it is not possible

that Nurse Kerr consciously disregarded something which she never knew in the

first instance. Thus, given that Nurse Kerr did not know about Serrano’s

underlying seizure disorder, it was not possible for her to be deliberately

indifferent to serious medical needs based upon it. We therefore grant summary

judgment to Nurse Kerr as to Hickey’s Eighth Amendment claim against her.

C. Supervisory Liability, Failure to Train, Supervise, and Discipline.

Hickey also claims that Dr. Moclock and Merritt-Scully are liable under §

1983 for failure to train, supervise, and discipline in connection their approval of

the Nursing Evaluation Tool completed by Nurse Kerr on April 20, 2016 when she

responded Serrano’s cell. Supervisory liability and failure to train claims are

judged against exacting legal standards. In considering claims brought against

supervisory officials arising out of alleged constitutional violations, the courts

recognize that prison supervisors may be exposed to liability for the

unconstitutional acts of their subordinates only in certain, narrowly defined,

circumstances. At the outset, it is clear that liability in § 1983 cases cannot be

predicated on a respondeat superior basis. The Third Circuit has “recognized that

‘there are two theories of supervisory liability, one under which supervisors can be

liable if they established and maintained a policy, practice or custom which

directly caused the constitutional harm, and another under which they can be liable

if they participated in violating plaintiff's rights, directed others to violate them, or,

as the persons in charge, had knowledge of and acquiesced in their subordinates'

violations.’” Parkell, 833 F.3d at 330 (quoting Santiago v. Warminster Twp., 629

F.3d 121, 129 n.5 (3d Cir. 2010)). “‘Failure to’ claims—failure to train, failure

to discipline, or, as is the case here, failure to supervise—are generally considered

a subcategory of policy or practice liability.” Barkes, 766 F.3d at 316.

To succeed on a claim for supervisory liability under the policy and practice

strand of supervisory liability, a plaintiff must establish the following:

The plaintiff must identify a supervisory policy or practice that

the supervisor failed to employ, and then prove that: (1) the

policy or procedures in effect at the time of the alleged injury

created an unreasonable risk of a constitutional violation; (2)

the defendant-official was aware that the policy created an

unreasonable risk; (3) the defendant was indifferent to that risk;

and (4) the constitutional injury was caused by the failure to

implement the supervisory practice or procedure.

Id. at 317 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)); see also

Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001).

The parties’ briefs give short shrift to their arguments regarding these

“failure to” claims, and the record is undeveloped as to the facts supporting this

claim. Regardless, we will grant summary judgment on these claims. Sectional

1983 supervisory liability is predicated on the commission of an underlying

constitutional violation by the untrained/unsupervised employee. Here, we have

dismissed Hickey’s Eighth Amendment claim against Nurse Kerr. Thus, even

assuming that Dr. Moclock and Merritt-Scully failed to train and/or supervise

Nurse Kerr, these transgressions would not support a claim for deliberate

indifference because there has been no underlying constitutional tort on the part of

Nurse Kerr proven here. See Snatchko v. Peters Twp., No. 2:12-cv-1179, 2013 WL

1748342, at *4 (W.D. Pa. Apr. 23, 2013) (finding in the context of a Monell failure

to supervise claim that “[a]xiomatically, Plaintiff cannot establish any Monell

liability against Defendant Peters Township absent an underlying constitutional

violation.”); Verbanik v. Harlow, CIV.A. 09-448, 2012 WL 4378198, at *9 (W.D.

Pa. Sept. 25, 2012), aff'd, 512 F.App’x. 120 (3d Cir. 2013) (“Of importance,

however, is the absence of an underlying constitutional violation precludes

any supervisory liability on a ‘knowledge or acquiescence’ or ‘failure to train’

theory.”) (citations omitted).

D. Merritt-Scully is not entitled to sovereign immunity.

Merritt-Scully argues that summary judgment should be granted on Hickey’s

professional negligence claim because she enjoys sovereign immunity as a

Commonwealth employee.10 Doc. 53 at 8-9, 12-14. Hickey responds by arguing

that Merritt-Scully falls within the medical-professional liability exception to

sovereign immunity under 42 Pa. C.S. § 8522(b)(2). Doc. 63-1 at 17-18. As

several of my colleagues have observed, “[t]he Pennsylvania courts have not

uniformly decided whether prison health care administrators qualify as ‘health care

personnel,’ so as to be exempted from sovereign immunity.” Abu-Jamal v.

Kerestes, No. 3:15-cv-967, 2016 WL 4204544, at *11 (M.D. Pa. Aug. 5, 2016)

(citing Milliner v. Diguglielmo, No. 08-cv-4905, 2014 WL 413873, at *7 n.67

(E.D. Pa. Jan. 31, 2014) (collecting cases)).

10 We assume the reference in her brief to “11th Amendment Immunity” is

an oversight.

But courts within the Third Circuit have held that a health care administrator

qualifies as health care personnel when their duties are sufficiently similar. See Lee

v. Corizon Health, Inc., No. 1:16-cv-2154, 2020 WL 4005638, at *8 (M.D. Pa. Jan.

14, 2020) report and recommendation adopted, 2020 WL 4003603 (M.D. Pa. July

15, 2020) (“Steinhart, as an official who manages the health care services program,

ensures contractual compliance, and answers healthcare-related inmate grievances,

also qualifies as health care personnel.”); see also Milliner, 2014 WL 413873 at *7

(holding that a prison health care administrator qualified as health care personnel

when his duties included ensuring that the healthcare contractor fulfilled its

contractual obligation, overseeing records departments, responding to grievances,

and reviewing medical records in response to grievances).

Here, we find that, based on the record before us, Merritt-Scully’s duties

were similar enough to that of health care personnel such that she does not enjoy

sovereign immunity as to Hickey’s professional negligence claim. In her

deposition, Merrit-Scully testified that her position at SCI Coal Twp. is a

“Corrections Health Care Administrator.” Doc. 49-7 at 4. Regarding her duties,

she says she is responsible for the “managerial and administrative functions of the

Medical Department … [s]ome of the things I do are report writing, statistical

reports, overtime, budget planning, compliance with ACA standards, and policy

review.” Id. Additionally, Merrit-Scully states that part of her duties and

responsibilities is to oversee the performance of the nursing staff. Id. at 5. Based

on Merrit-Scully’s deposition, her duties are not solely administrative and extend

to ensuring that the medical staff at SCI Coal Twp. provides appropriate care to

prisoners, which is sufficient to consider her health care personnel. See Milliner,

2014 WL 413873 at *7 (“[T]he Court concludes that his duties were not purely

administrative, but instead extended to ensuring that PHS's employees provided

appropriate care to prisoners.”).

Moreover, Pennsylvania courts have frequently determined that corrections

health care administrators fall within the medical-professional exception to

sovereign immunity under 42 Pa. C.S. § 8522(b)(2). Williams v. Syed, 782 A.2d

1090, 1096 (Pa. Commw. Ct. 2001) (“[A] prison health care administrator is

properly classified as a health care employee within the meaning of the medical

professional liability exception to sovereign immunity.”) (citing Wareham v.

Jeffes, 564 A.2d 1314 (Pa. Commw. Ct. 1989)); see also Watson v. Caleb, No. 385

MDA 2019, 2019 WL 3763967, at *1 n.2 (Pa. Super. Ct. Aug. 9, 2019) (finding

the chief health care administrator of a state prison fits the same sovereign

immunity exception). Thus, Merritt-Scully does not enjoy sovereign immunity as

to Hickey’s professional negligence claim.

VI. Conclusion.

Based on the foregoing, we will grant in part and deny in part Dr. Moclock’s

motion for summary judgment (doc. 43), and grant in part and deny in part Merritt-

Scully and Nurse Kerr’s motion for summary judgment (doc. 45). An appropriate

order will issue.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge