Ravert v. Monroe County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SHAWN RAVERT, ) CIVIL ACTION NO. 4:20-CV-889

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

MONROE COUNTY, et al., )

Defendants )

MEMORANDUM OPINION

Defendants’ Motion for Summary Judgment (Doc. 43)

I. INTRODUCTION

In 2016 Shawn Ravert (“Plaintiff”) was an inmate in the Monroe County

Correctional Facility (“MCCF”). He alleges that the medical staff at this facility

failed to make a timely diagnosis of what turned out to be a malignant melanoma.

Plaintiff sued the County, the private corporation contracted by the County to

provide medical care at the County facility, three members of the medical staff

(employed by the private corporation), and ten John Doe’s alleging Eighth &

Fourteenth Amendment deliberate indifference, a Monell claim, and assorted

medical negligence claims. All Defendants seek summary judgment on all claims

in a single motion (Doc. 43). The matter is before me on Consent. The Motion for

Summary Judgment is briefed and ready for decision. The sequence of events that

ultimately lead to Mr. Ravert’s cancer surgery are generally agreed upon. How to

interpret those events is however, disputed.

II. FACTUAL BACKGROUND

A. GENERALLY

Ravert alleges that in providing him medical care at the Monroe County

Correctional Facility, medical staff failed to recognize the onset of a malignant

melanoma on his right shin in December 2016. He claims deliberate indifference to

serious medical needs and medical negligence.

To show deliberate indifference he asserts, among other things, the medical

defendants failed to have proper stitching equipment to remove the lesion when he

first saw a doctor in December 2016, and then intentionally discarded the

suspicious lesion a few days later (a lesion he removed himself) rather than

preserve or send it for pathologic analysis. The Defendants concede the nurse

didn’t save or send the tissue because they did not have the proper supplies to

preserve the sample for the lab. Ravert alleges the deliberate indifference

continued when they failed to re-check or monitor what they recklessly determined

without any testing was a benign skin tag; and when they failed to refer Mr. Ravert

to the appropriate specialist.

As a result of their deliberate indifference to this serious medical need, Mr.

Ravert alleges his cancer was not diagnosed until eighteen months later in June

2018. In December 2016, Mr. Ravert had, he alleges, a totally curable pre-

cancerous or Stage I disease at worst. However, the 18-month delay in diagnosis

allowed it to progress to pathologic Stage IIIC, which, according to plaintiff,

carries a melanoma-specific prognosis of 5-year 69% survival, 10-year 60%

survival.

The Court is now called upon by way of summary judgment to decide if

there is sufficient evidence to allow any or all claims to go to trial. The defense

asserts all Constitutional claims against all defendants should be dismissed. Ravert

insists that all claims should go to trial. To decide these motions the Court will

review the allegations in the complaint, the statements of undisputed material facts

from each side and the legal arguments set forth in the competing briefs.

B. THE COMPLAINT

A general understanding of this case is detailed in the Complaint (Doc. 1)

which is summarized here. Beginning in October 2016, Plaintiff was incarcerated

at MCCF. (Doc. 1, ¶19). On December 14, 2016, a lesion or “skin tag” on

Plaintiff’s right shin started bleeding while Plaintiff was playing basketball. (Doc.

1 ¶ 20). Plaintiff sought medical care at MCCF’s medical department. Id. Medical

staff provided wound care and discharged Plaintiff without further examination. Id.

On December 26, 2016, Plaintiff attempted to remove the lesion by himself,

using a piece of string. (Doc. 1 ¶ 21). Following this attempt, Plaintiff again sought

medical care at MCCF’s medical department. Id.

On December 27, 2016, Defendant Kenneth Wloczewski examined the

lesion on Plaintiff’s leg. (Doc. 1, ¶ 22). During that examination, Defendant

Wloczewski noted that the lesion had been present for one year and that removal

was scheduled for the following week. Id.

On December 28, 2016, Plaintiff was examined at the MCCF Medical

Department for follow-up. (Doc. 1 ¶ 23). During the examination, the lesion was

“still intact” but appeared to be detaching from Plaintiff’s leg due to Plaintiff’s

attempt to remove it. Id. An unidentified nurse provided wound care. Id.

On December 29, 2016, Plaintiff was examined by another unidentified

nurse at the MCCF Medical Department. (Doc. 1, ¶ 24). During the examination,

the lesion was “still intact” but appeared to be detaching from Plaintiff’s leg due to

Plaintiff’s attempt to remove it. Id. A nurse provided wound care. Id.

Later the same evening, however, the lesion fell off. (Doc. 1 ¶ 25). When it

did, Plaintiff was examined by Defendant Grace Ramos, a nurse at the MCCF

Medical Department. Id. Defendant Ramos provided wound care to stop the

bleeding. Id. She also conferred with an unidentified “on-call provider” by

telephone to ask about preservation of the lesion that “fell off.” Id. There was no

preservative in the office. Id. Based on this information Defendant Ramos was

instructed to discard the lesion. Id.

On January 3, 2017, Defendant Wloczewski examined Plaintiff. (Doc. 1, ¶

26). Defendant Wloczewski noted that the “skin tag” had fallen off and was gone.

(Doc. 1, ¶ 26).

Eleven months later, on December 12, 2017, Plaintiff’s right leg began to

bleed in the same area while playing basketball. (Doc. 1, ¶ 27). He was examined

by unidentified staff members at the MCCF Medical Department. Id. During the

examination, medical staff observed the presence of a polypoid lesion, provided

wound care, and discharged Plaintiff without further examination, restriction, or

referral to the on-call provider or another specialist. (Doc. 1, ¶ 27).

Six months later, on June 7, 2018, Plaintiff was examined by Defendant

Paulina Foley (a physician’s assistant at MCCF) with complaints of redness and

irritation of the skin on his right leg. (Doc. 1, ¶ 28). Defendant Foley noted a rash

in the shape of a bullseye with a quarter-sized fleshly nodule in the center, and

performed a punch biopsy to remove a portion of the nodule for analysis. Id.

On June 15, 2018, eighteen months after the skin tag was brought to the

attention of the MCCF staff and seventeen months after the skin tag fell off,

Plaintiff was diagnosed with invasive malignant melanoma. (Doc. 1, ¶ 29).

On June 18, 2018, Dr. Akan Westheim confirmed the diagnosis of malignant

melanoma. (Doc. 1, ¶ 30).

On September 6, 2018, Oncologist Mathew Miceli examined Plaintiff. (Doc.

1, ¶ 31). Dr. Miceli referred Plaintiff to surgical oncology for a wide resection of

the melanoma, with a sentinel lymph node biopsy. Id.

On September 14, 2018, Dermatologist Quy Pham examined Plaintiff. (Doc.

1, ¶ 32). Dr. Pham noted that the melanoma had grown and occasionally bled. Id.

Plaintiff was referred to skin oncology for treatment and staging. Id.

On September 27, 2018, Oncologist Colette R. Pameijer took a second

biopsy of the lesion. (Doc. 1 ¶ 33). Dr. Pameijer recommended Plaintiff undergo a

wide local excision and sentinel node biopsy. Id. Dr. Pameijer anticipated that

Plaintiff would need to undergo a skin graft a few weeks after the excision and

estimated that there was a 30% chance the cancer had spread to Plaintiff’s sentinel

lymph node. Id.

On October 15, 2018, Plaintiff had a third biopsy at Hershey Medical

Center. (Doc. 1 ¶ 34). The biopsy showed T3b melanoma. Id. On November 21,

2018, a positron emission tomography (“PET”) scan showed intense

fluorodeoxyglucose (“FDG”) activity (indicative of possible cancer) in Plaintiff’s

right leg lesion, moderately intense FDG activity in retropharyngeal lymph nodes,

and low FDG avidity in his spleen. Id.

On December 5, 2018, Hematologist/Oncologist Vineela Kasireddy

examined Plaintiff and referred him to surgical oncologist Jeffrey Farma for wide

excision of the right leg melanoma. (Doc. 1, ¶ 35).

On January 25, 2019, six months after his first cancer diagnosis, Plaintiff

had the following surgical procedures: a radical resection of a right pretibial

melanoma; intraoperative lymphatic mapping; a sentinel lymph node biopsy of the

right groin; and a skin graft. (Doc. 1, ¶ 36). Dr. Farma did the resection, mapping,

and biopsy. Id. Dr. Neal Topham did the skin graft. Id. The surgical pathology

report from this procedure described the excised mass as a 13 mm tumor with a

pT4b Stage Classification. (Doc. 1, ¶ 37).

On February 25, 2019, Plaintiff was diagnosed with Stage IIIC melanoma.

(Doc. 1, ¶ 38). Plaintiff alleges that this diagnosis has a 69% survival rate at five

years and a 60% survival rate at ten years. Id.

C. THE STATEMENT OF MATERIAL FACTS

Defendants filed a joint Statement of Undisputed Material Facts (Doc. 44)

with fifty-nine (59) separate factual allegations and eight supporting exhibits

(Docs. 44-1 through 44-8). In summary the medical defendants contend that they

each exercised professional judgment regarding the benign “skin tag” on Ravert’s

leg and were not indifferent much less deliberately indifferent to Ravert’s medical

needs. Their factual allegations do not mention negligence and the one reference to

a “standard of care” relates only to PA-C Foley. Their factual assertions will be

detailed further in the discussion of each defendant.

Plaintiff filed a Responsive Statement of Facts (Doc. 49), responding to each

of Defendant’s factual allegations and attached eight different supporting exhibits

of their own (Docs. 49-1 through 49-8). In summary, Ravert points out policy

documents and testimony that he contends detail the legal responsibility of Monroe

County and PrimeCare. He also disputes any reference to a “skin tag” referring to

it instead as a “cancerous melanoma” that was misdiagnosed. Ravert’s factual

assertions will be detailed further in the discussion of each defendant.

With this understanding of the facts, we now turn to the procedural history

and description of the legal claims in this case.

III. PROCEDURAL HISTORY

On June 2, 2020, Plaintiff filed a Complaint, against the following

Defendants:

(1) Monroe County (where Plaintiff was incarcerated);

(2) PrimeCare Medical, Inc. (the company that staffed the Monroe

County Jail’s medical department);

(3) Kenneth Wloczewski, D. O. (a physician employed by PrimeCare,

Inc. who examined Plaintiff at the Jail);

(4) Paulina Foley, PA-C (a physician’s assistant employed by PrimeCare

Inc. who examined Plaintiff at the Jail); and

(5) Grace Ramos, LPN (an LPN employed by PrimeCare Inc., who

examined Plaintiff at the Jail).

(Doc. 1).1

Plaintiff alleges the following legal claims:

Count I: Eighth and Fourteenth Amendment denial of medical care

against Defendants Wloczewski, Foley and Ramos.

Count II: Monell / Supervisory Liability Claims against Defendants

Monroe County and PrimeCare.

Count III: Negligence / Medical Malpractice claim against Defendants

Wloczewski, Foley, Ramos, and PrimeCare.

As relief, Plaintiff requests compensatory damages, punitive damages

(against only the PrimeCare Defendants), reasonable attorneys’ fees and costs, and

such other equitable relief as the Court deems appropriate and just. (Doc. 1, ¶ 53).

On July 9, 2020, Defendant Monroe County filed a Motion to Dismiss.

(Doc. 18). On June 22, 2020, the PrimeCare Defendants filed a Motion to Dismiss.

(Doc. 11). On March 17, 2021, those motions were denied. (Docs. 38, 39, 40, 41).

On April 23, 2021, all named Defendants filed an Answer. (Doc. 42).

On September 3, 2021, all named Defendants filed a single Motion for

Summary Judgment. (Doc. 43). Along with their Motion, Defendants filed a

Statement of Facts (Doc. 44), supporting exhibits (Docs. 44-1 through 44-8), and a

Brief in Support (Doc. 45).

1 Plaintiff also names 10 John Doe Defendants.

On September 24, 2021, Plaintiff filed a Responsive Statement of Facts

(Doc. 49), supporting exhibits (Docs. 49-1 through 49-8), and Brief in Opposition

(Doc. 48).

On October 8, 2021, Defendants filed a Reply Brief. (Doc. 50).

Defendants’ Motion for Summary Judgment has been fully briefed and is

ready to decide.

IV. LEGAL STANDARDS

A. SUMMARY JUDGMENT

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.” “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).

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); Hickey v. Merritt-Scully, No. 4:18-CV-

01793, 2022 WL 883851, at *2–3 (M.D. Pa. Mar. 24, 2022)

B. EIGHTH AMENDMENT DELIBERATE INDIFFERENCE

The Eighth Amendment protects prisoners from the infliction of cruel and

unusual punishment. U.S. Const. amend. VIII. To prevail on any Eighth

Amendment claim, an inmate must show: (1) a deprivation that is objectively,

“sufficiently serious;” and (2) “a sufficiently culpable state of mind” of the

defendant official. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). “[T]he

Fourteenth Amendment affords pretrial detainees protections at least as great as the

Eighth Amendment protections available to a convicted prisoner.” Natale v.

Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (internal quotation

omitted). Whether pleaded under the Eighth or Fourteenth Amendment, the same

standard may be applied. Id.

The Supreme Court has opined that the term “deliberate indifference” lies

“somewhere between the poles of negligence at one end and purpose or knowledge

at the other.” Farmer, 511 U.S. at 837. It explained that:

a prison official cannot be found liable under the Eighth Amendment

for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or

safety; that is, the official must both be aware of the facts from which

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

exists, and he must also draw the inference.

Id.

The line of demarcation where negligence ends, and deliberate indifference

begins, is sometimes a subtle one. Not all failures to provide care demonstrate the

state of mind required for deliberate indifference. For example, there is no

constitutional violation when prison medical staff, through the exercise of

professional judgment, negligently misdiagnoses or treats a condition. Estelle v.

Gamble, 429 U.S. 97, 106 (1976). Similarly, mere disagreement between prison

medical staff and an inmate about the propriety, adequacy, or necessity of a

particular course of treatment over another often does not rise to the level of a

constitutional violation. Monmouth Cty. Corr. Institutional Inmates v. Lanzaro,

834 F.2d 326, 346 (3d Cir. 1987) (citing Bowering v. Godwin, 551 F.2d 44, 48 (4th

Cir. 1977); Massey v. Hutto, 545 F.2d 45, 26 (8th Cir. 1976)). The distinction

between negligence and deliberate indifference is that, for deliberate indifference, a

defendant acts with reckless disregard to a known harm. Crawford v. Corizon

Health, Inc., No. 1:17-CV-00113-BR, 2018 WL 9965506 at *3 (W.D. Pa. Jan. 2,

2018).

As noted in Shultz v. Allegheny Cty.:

Our Court of Appeals has identified several other scenarios that

satisfy Estelle, such as “[w]here prison authorities deny reasonable

requests for medical treatment . . . and such denial exposes the inmate

to undue suffering or the threat of tangible residual injury,”

Monmouth, 834 F.2d at 346 (internal quotation omitted), or “where

‘knowledge of the need for medical care [is accompanied by the] . . .

intentional refusal to provide that care,’” Thomas v. Dragovich, 142 F.

App’x 33, 36-37 (3d Cir. 2005) (quoting Monmouth, 834 F.2d at 346).

Similarly, if “deliberate indifference caused an easier and less

efficacious treatment” to be provided, a defendant will have violated

the plaintiff’s Eighth Amendment rights by failing to provide

adequate medical care. West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978)

(citing and quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir.

1974)); see also Estelle, 429 U.S. at 104.

835 F. Supp .2d 14, 22 (W.D. Pa. 2011).

Prison officials may not entirely insulate themselves from liability under §

1983 simply by providing some measure of treatment. Jones v. Muskegon County,

625 F.3d 935, 944-45 (6th Cir. 2010).

Deliberate indifference can be shown even when defendants have provided

extensive treatment to a prisoner. See, e.g., Keller v. County of Bucks, 209 F.

App’x 201, 204-05 (3d Cir. 2006); Kenney v. Montgomery County, No. 13-cv-

2590, 2013 WL 5356862, at *1, *5 (E.D. Pa. Sept. 25, 2013); D’Agostino v.

Montgomery County, No. 11-cv-7728, 2012 WL 425071, at *1, *3 (E.D. Pa. Feb.

9, 2012); Shultz v. Allegheny County, 835 F. Supp. 2d 14, 18-19, 22-24 (W.D. Pa.

2011).

C. MEDICAL NEGLIGENCE

Professional negligence consists of a negligent, careless, or unskilled

performance by a medical professional of the duties imposed on them by the

professional relationship with their patient. It is also negligence when a medical

professional shows a lack of proper care and skill in the performance of a

professional act. 14.00 [FNa1] (Civ) Medical Professional Negligence--

Introduction, Pa. SSJI (Civ), §14.00 (2020).

Defendants correctly argue that “mere negligence” alone is not proof of

deliberate indifference. However, Defendant’s do not seek summary judgment on

the medical negligence claims. They do urge that if all federal claims are dismissed

the “Court should decline to exercise supplemental jurisdiction over Plaintiff’s

remaining state law claims, and the negligence cause [of] action should be

dismissed without prejudice. (Doc. 45, p. 29).

D. PUNITIVE DAMAGES

Punitive damages may be awarded when “the defendant's conduct is shown

to be motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.” Tenon v. Dreibelbis, 190 F.

Supp. 3d 412, 418 (M.D. Pa. 2016) (quoting Smith v. Wade, 461 U.S. 30, 56

(1983)).

Because “the standard to show ‘deliberate indifference’ is substantially the

same as the standard to show ‘reckless or callous indifference,’” courts have

typically held that a claim for punitive damages should survive provided that a

plaintiff sets forth a cognizable deliberate indifference claim. See id. (collecting

cases). If there are sufficient facts from which a reasonable juror could find

deliberate indifference on the part of any defendant, it follows that the plaintiff's

claims for punitive damages against that defendant likewise survives summary

judgment.

With these legal standards in mind, we now turn to the specifics of this case.

V. DISCUSSION

In their Brief in Support of summary judgement, Defendants raise the

following four issues:

(A) Whether summary judgment should be granted in favor of PrimeCare

Defendants because the record is devoid of any evidence of deliberate

indifference to a serious medical condition?

(B) Whether PrimeCare medical, Inc. and Monroe County are entitled to

summary judgment where the record is devoid of any evidence of an

underlying constitutional violation or of a deficient policy, practice, or

custom?

(C) Whether Plaintiff’s request for punitive damages should be denied?

(D) Whether the Court should decline to exercise supplemental

jurisdiction over any remaining state law claims?

(Doc. 45, pp. 11-12).

A. WHETHER SUMMARY JUDGMENT SHOULD BE GRANTED IN FAVOR OF

PRIMECARE DEFENDANTS BECAUSE THE RECORD IS DEVOID OF ANY

EVIDENCE OF DELIBERATE INDIFFERENCE TO A SERIOUS MEDICAL

CONDITION

Using the standards discussed in Section III above, we now analyze the

claims against each of the PrimeCare Defendants. The Plaintiff’s Response to

Defendant’s Statement of Material Facts fails to admit or deny facts about the

course of treatment. Instead he simply repeats his argument that the “skin tag” was

misdiagnosed and was really a carcinoma. For the purposes of determining the

extent of care (but not the quality) I find that the Defendant’s chronology of

treatment is uncontested and accept those facts as true.

1. Defendant Grace Ramos, LPN

Nurse Ramos argues that she consulted her superior and followed their

advice:

Plaintiff presented to Nurse Ramos after he had removed the skin

lesion. This was the first time Nurse Ramos was confronted with such

a scenario. It is the provider (physician, physician's assistant, nurse

practitioner) who determines when a specimen is to be sent to

pathology, and it is the provider's ultimate decision as to how to

proceed in the scenario presented to Nurse Ramos.

Nurse Ramos did the only thing she could do under the circumstances

which was to contact a provider for guidance and potentially orders.

Seeking guidance is certainly not deliberate indifference. This is

especially the case where the presumptive diagnosis at the time Nurse

Ramos called the provider was that Mr. Ravert had a skin tag which

are benign.

Plaintiff is seeking this Court to second guess the treatment decisions

of Nurse Ramos after the outcome was determined. It is not the

function of this Court to second guess treatment decisions of the

medical providers with information learned after those treatment

decisions were made by the medical professionals. See Pearson and

Bednar, supra. Therefore, it is respectfully requested that summary

judgment be entered in favor of Nurse Ramos concerning the federal

cause of action.

(Doc. 45, pp. 17-18).

In response to the assertion that Nurse Ramos only followed the

advice of her superior Plaintiff argues:

it is clear that there are, at minimum, genuine issues of material fact as

to whether the Individual Defendants were deliberately indifferent to

Ravert’s serious medical needs. As an initial matter, Nurse Ramos’s

failure to maintain an adequate inventory of formaldehyde led to a

missed opportunity for early diagnosis of Ravert’s cancer and

demonstrates a substantial departure from the applicable standard of

care and Defendants’ own policies. See Exhibit 13 at ¶ 11. Given this,

a reasonable jury could certainly determine that Nurse Ramos’s

failure to fulfill this basic nursing duty constitutes deliberate

indifference.

Finally, the jury may reasonably find the Individual Defendants

deliberately indifferent to Ravert’s risk of cancer on account of their

misrepresentations that his lesion had been sent out for biopsy. As

detailed above, Nurse Ramos did not inform Ravert that she was

going to discard his lesion instead of sending it out to be biopsied

because she did not have the necessary formaldehyde. See Exhibit 4 at

39:17-20.

(Doc. 48, pp. 21-22).

On these facts I find that Nurse Ramos received the now removed skin

lesion from Mr. Ravert, consulted with the “on call” medical professional,

and acted on the advice given. That advice was to discard the sample

because Dr. Wloczewski diagnosed it as a “benign skin tag” two days

earlier. Although Plaintiff argues that the LPN should have had sample

preservative material on hand, there is no evidence that ordering or

providing supplies was her responsibility. Plaintiff relies on a reference to

“Exhibit 13 at ¶11” but that Exhibit does not exist in this summary judgment

record (Docs. 43, 44, 45, 48, 49, & 50). Plaintiff’s Exhibit 8 (Doc. 48-8)

(Monroe County Correctional Facility Policy & Procedure) at Section IV

Procedure says that “Health Care Personnel shall . . . ¶11 have examination

and/or counseling rooms available with sufficient medical equipment and

supplies . . . .” Clearly this policy applies to the “Facility Health Authority”

or the person in charge of the Authority, not an individual “Qualified Health

Care Personnel” like Nurse Ramos.

Plaintiff’s Expert, Dr. Hashmi (Doc. 49-4, pp. 7-8) does not include

Nurse Ramos in his opinions regarding negligence. He is critical of the

institutional failure to maintain supplies and policies, and the doctor’s failure

to properly screen the patient. These errors, however, do not fall on Nurse

Ramos. There is no evidence in this record that Nurse Ramos was

deliberately indifferent to Mr. Ravert’s medical needs or even that she was

negligent. Accordingly, summary judgment in favor of Nurse Ramos will be

granted on Counts I & III.

2. Defendant Kenneth Wloczewski, D.O.

Dr. Wloczewski argues that he acted properly and did not violate Ravert’s

Constitutional rights.

Plaintiff was examined by Dr. Wloczewski on December 27, 2016, for

the skin tag. Dr. Wloczewski did not do any sort of pathological

analysis or testing to confirm his assessment, because skin tags are

benign. This is based upon his history of removing hundreds of skin

tags in both the emergency department and in the prison system. Dr.

Wloczewski scheduled Plaintiff for removal of the skin tag the

following week. He did not have a suture so he did not remove the

skin tag on December 27, 2016.

On January 3, 2017, Dr. Wloczewski evaluated Plaintiff. There was

nothing left of the skin tag to biopsy. Dr. Wloczewski did not feel the

need for any sort of a referral to another provider because the lesion

on Plaintiff’s skin looked like a skin tag.

Plaintiff can be critical of Dr. Wloczewski's medical judgment,

however, Dr. Wloczewski utilized his training, education, and

experience in assessing Plaintiff as having a typical, benign skin tag

which does not need pathology. Further, when he saw Plaintiff after

the lesion was removed by Plaintiff, there was nothing left to biopsy.

Thus, Plaintiff is seeking this Court to second guess the treatment

decisions of Dr. Wloczewski after the outcome was determined. It is

not the function of this Court to second guess treatment decisions of

the medical providers with information learned after those treatment

decisions were made by the medical professionals. See Pearson and

Bednar, supra. Therefore, it is respectfully requested that summary

judgment be entered in favor of Dr. Wloczewski concerning the

federal cause of action.

(Doc. 45, pp. 18-19).

In response Plaintiff argues:

The “on-call provider” who directed Nurse Ramos to dispose of

Ravert’s lesion—due to a lack of specimen preservative—likewise

demonstrated a deliberate indifference to his serious medical needs.

See Exhibit 12 at p. 4-7. Though the record does not definitively

identify the “on-call provider,” PA-C Mroz testified that it could have

been any number of MCCF providers, including Dr. Wloczewski or

PA-C Foley. See Exhibit 5 at 33:15-37-5. Moreover, the on-call

provider—whether it was Dr. Wloczewski, PA-C Foley, or someone

else— could have preserved the specimen without formaldehyde by

simply putting it in cold sterile water or normal saline and placing into

the refrigerator. See Exhibit 12 at p. 5. Because the on-call provider

inexplicably directed it to be discarded instead, there is a reasonable

basis for the jury to find that Dr. Wloczewski or PAC Foley violated

Ravert’s constitutional rights.

Finally, the jury may reasonably find the Individual Defendants

deliberately indifferent to Ravert’s risk of cancer on account of their

misrepresentations that his lesion had been sent out for biopsy. As

detailed above, Nurse Ramos did not inform Ravert that she was

going to discard his lesion instead of sending it out to be biopsied

because she did not have the necessary formaldehyde. See Exhibit 4 at

39:17-20. Likewise, at his January 3, 2017 visit, Dr. Wloczewski

simply told Ravert to continue to wait for his biopsy results—which,

of course, would never come. Id. at 44:12-18.

Ravert does not purport to simply “second guess” the medical

judgment of the Nurse Ramos or Dr. Wloczewski, as Defendants

suggest. See Br. at 11-13. Rather, Ravert predicates his federal

constitutional claims on Defendants’ 18-month delay in diagnosing

his cancer because they failed to maintain the medical supplies

necessary to preserve and send out his lesion for biopsy and then lied

to him about the fact that they discarded the lesion in the first place.

(Doc. 45, pp. 19-20).

Plaintiff does not explain how the failure of the medical staff to tell

him that his lesion was not in fact sent out for a biopsy would change the

fact that the specimen was discarded on December 30, 2016 and was no

longer available for laboratory analysis. Whether Dr. Wloczewski lied to his

patient or was just wrong when he told him on January 3, 2017 to “wait for

the biopsy results” does not change his original diagnosis of a benign skin

tag. Whoever advised Nurse Ramos to discard the sample did so based on

this diagnosis. Plaintiff’s expert, Dr. Hasmi, is critical of this diagnosis and

much of Dr. Wloczewski’s care over the 18-month period from “skin tag” to

“confirmed carcinoma.” Unlike with Nurse Ramos, I find the record in this

case tasks the Doctor along with the “Medical Authority” (i.e. PrimeCare)

with the responsibility to obtain and stock supplies.2 There is a genuine issue

of negligence for the jury to decide regarding Dr. Wloczewski. Although a

closer case, the Plaintiff has provided enough evidence for a jury to find his

conduct amounted to “deliberate indifference.” The cascading list of errors

pointed out by Dr. Hashmi all point back to the initial diagnosis of a

common benign skin tag. Reliance on the original diagnosis may well be

negligent, and how he reached that diagnosis may also have been negligent.

2 This analysis is spelled out further in the section on PrimeCare’s liability.

Negligence alone is not deliberate indifference. But the analysis does

not end there. Plaintiff argues that the Doctors knowledge of the inadequate

procedures for ordering and keeping supplies renders his care “grossly

inadequate.” To support this contention Plaintiff argues:

In short, the Individual Defendants’ care was “grossly inadequate,”

Terrance, 286 F.3d at 843, and characterized by an approach that was

“easier and less efficacious” than what was manifestly necessary under

the circumstances. Monmouth County, 834 F.2d at 347. In addition to

the failure to order diagnostic testing clearly called for under the

circumstances, see McElligott, 182 F.3d at 1257-58 (concluding that

failure to order diagnostic testing supported finding of deliberate

indifference); Shultz, 835 F. Supp. 2d at 22-24 (same); D’Agostino,

2012 WL 425071, at *3 (same), Dr. Wloczewski’s disposal of the

specimen from Ravert’s leg prevented any chance at a timely diagnosis

of his cancer.

(Doc. 48, p. 23).

The record does not support the allegation that Dr. Wloczewski

disposed of the specimen from Ravert’s leg. Indeed, it is clear the Nurse

Ramos physically did that. However, the doctor’s failure to have necessary

suture supplies to remove the lesion, his failure to notice (or at least chart)

the fact that the lesion was tied off with a string, his failure to instruct the

nursing staff to look for cancer, and the other shortcomings in Dr. Hashmi’s

report, taken together, could convince a jury that the doctor simply took the

“easier and less efficacious” care route. Again, this is a close case. But a jury

could find that this level of care exhibits the kind of wanton reckless

disregard necessary for a Constitutional violation.

Summary judgment in favor of Dr. Wloczewski will be denied on

Counts I & III.

3. Defendant Paulina Foley, PA-C.

Regarding the Constitutional claims against PA-C Foley she argues

for summary judgment in her favor stating:

On June 7, 2018, Plaintiff was examined for the first time by Paulina

Foley, PA-C. After her assessment and obtaining a history, PA Foley

questioned whether Plaintiff could have Lyme disease or basil cell

carcinoma. At the visit on June 7, 2018, PA Foley performed a punch

biopsy of the nodule to send to pathology. On June 15, 2018, PA

Foley met with Plaintiff. PA Foley informed Plaintiff that the biopsy

revealed that he had invasive malignant melanoma. Thereafter, PA

Foley ordered Plaintiff to be referred to dermatology for follow-up

care.

Thus, the record as to PA Foley is that on the first day she examined

Plaintiff, she performed a biopsy and had it sent to pathology. After

the pathology results were received, she immediately referred Plaintiff

to a specialist for follow up treatment. Additionally, Plaintiff has

produced an expert report that PA Foley violated the standard of care.

Notwithstanding the lack of any factual or expert support for a cause

of action against Paulina Foley, Plaintiff has incredibly refused to

voluntarily dismiss Paulina Foley from this case. However, there is

literally no evidence that PA Foley violated the standard of care, much

less was deliberately indifferent. Therefore, it is respectfully requested

that summary judgment be entered in favor of PA Foley.

(Doc. 45, pp. 18-20).

In response to this argument that no deliberate indifference has been

shown Plaintiff responds:

PA-C Foley argues separately for summary judgment on the basis that

she was not involved in the treatment of Ravert’s lesion until June

2018. See Br. at 13- 14. But the record reflects that PA-C Foley may

very well have been the “on-call provider” that directed Nurse Ramos

to dispose of Ravert’s lesion in December 2016. PA-C Foley is

certainly free to dispute this testimony at trial; however, her

credibility is a question for the jury.

In short, the Individual Defendants’ care was “grossly inadequate,”

Terrance, 286 F.3d at 843, and characterized by an approach that was

“easier and less efficacious” than what was manifestly necessary

under the circumstances. Monmouth County, 834 F.2d at 347. In

addition to the failure to order diagnostic testing clearly called for

under the circumstances, see McElligott, 182 F.3d at 1257-58

(concluding that failure to order diagnostic testing supported finding

of deliberate indifference); Shultz, 835 F. Supp. 2d at 22-24 (same);

D’Agostino, 2012 WL 425071, at *3 (same), Dr. Wloczewski’s

disposal of the specimen from Ravert’s leg prevented any chance at a

timely diagnosis of his cancer.

By the time PA-Foley finally acted to send Ravert out for the

diagnostic evaluation and treatment that he had needed for the past

eighteen months, it was too late. See Shultz, 835 F. Supp. 2d at 23

(rejecting argument that defendants’ transfer of decedent to hospital

precluded finding of deliberate indifference as decedent “was taken to

a medical facility and testing for diagnosis of her condition was

conducted only after she had deteriorated to the point of having to be

admitted to the Intensive Care Unit” and “[a]t that juncture her

condition already had progressed to the point where it was fatal”).

(Doc. 48, pp. 22-24).

Plaintiff’s response regarding PA-C Foley imputes too much of the evidence

of the conduct of others against Foley. While it might all be attributed to the

collective “them” from Mr. Ravert’s point of view, Constitutional violations

require individual action. Based on the evidence presented in the documents

supporting the motion PA-C Foley did not act with deliberate indifference to Mr.

Ravert’s serious medical needs. She acknowledged and responded to them when

she personally treated him.

Dr. Hasmi opines that the negligence of PA-C Foley is limited to the

fact that she might have been the “on-call” person who suggested discarding

the tissue on December 30, 2016. However, as indicated earlier, that

decision was apparently made based on Dr. Wloczewski’s “skin tag”

diagnosis, whoever took Nurse Ramos’ phone call and instructed her to

simply discard the specimen. Summary judgment in favor of PA-C Foley

will be granted on Counts I & III.

B. WHETHER PRIMECARE MEDICAL, INC. AND MONROE COUNTY ARE

ENTITLED TO SUMMARY JUDGMENT WHERE THE RECORD IS DEVOID

OF ANY EVIDENCE OF AN UNDERLYING CONSTITUTIONAL VIOLATION

OR OF A DEFICIENT POLICY, PRACTICE, OR CUSTOM

Monell Claims: Monell v. Department of Social Services, 436 U.S. 658

(1978) held that municipalities and local governments can be sued under Section

1983 if the action was attributable to an official policy. They do not enjoy absolute

immunity. But the defendant municipal officials must have had "final

policymaking authority" to bind the municipality.

Regarding the Monell claims against them PrimeCare and the County argue:

First and foremost, as set forth in detail above, because there was no

underlying constitutional violation, Monell liability cannot lie.

Stephens v. City of Englewood, 689 Fed. Appx. 710, 714 (3d Cir.

2017) (affirming district court's dismissal of Monell claims against

police department and city where plaintiffs failed to establish an

underlying constitutional violation against the individual defendant-

detectives).

Additionally, there is insufficient evidence to support a Monell theory

as to PrimeCare. Simply stated, Plaintiff cannot demonstrate a

violation of his constitutional rights. Plaintiff was evaluated on

multiple occasions and received diagnostic testing. There are no facts

which indicate defective policies and procedures. To the contrary,

Plaintiff had access to care both inside the prison and to outside

providers. Plaintiff's cause of action is premised upon alleged

mistaken treatment decisions by individuals and not a systemic failure

of the provision of medical care.

The case as to Monroe County is even more tenuous. Monroe County

has a contract with PrimeCare to provide medical treatment to inmates

incarcerated in the Monroe County Correctional Facility. It is

abundantly clear that Plaintiff received medical attention every time

he registered a complaint about his leg. The medical care provided

included nursing evaluations, physician assessments, physician

assistant assessments, and ultimately hospital care. The real gravamen

of Plaintiff’s case is that a quicker diagnosis should have been made

by the PrimeCare Defendants. At most, Plaintiff is able to demonstrate

negligence in failing to more timely diagnose his condition. However,

a mere delay in treatment or even a misdiagnosis does not equate to

deliberate indifference. Moreover, Monroe County nor its employees

had any role in diagnosing Plaintiff's medical condition. Therefore, it

is respectfully requested that this Honorable Court grant the Motion

for Summary Judgment of PrimeCare and Monroe County.

(Doc. 45, pp. 22-23).

In response Plaintiff, regarding the Monell claims, argues:

Relevant here, MCCF maintains a Policy & Procedure pertaining to

Medical and Health Services. Exhibit 8 (MC00413-415). That Policy

states that MCCF “shall provide medical, dental and mental health

services to all inmates who in need of treatment and care . . . . The

medical and health care services shall be provided by qualified Health

Care Personnel and directed by the Facility Health Authority and in

compliance with informed consent standards.” Id. at MC00413.

The Policy further states that, particularly relevant to Ravert’s care,

“[a]ll medical instruments, equipment and supplies shall be

inventoried on each shift with the inventories being maintained by

medical and available for inspection by the Prison Administration.”

Id. at MC00415. Warden Haidle maintains responsibility for

inspection of medical supply inventories pursuant to this Policy.

Exhibit 7 at 35:21-36:10.

PrimeCare maintains a Policy titled “Access to Care.” Exhibit 9

(PCM00595-606). The purpose of that Policy is “[t]o ensure patients

access to care; that written policy and defined procedures, and actual

practice evidences patients have access to care to meet their serious

medical, dental, and mental health needs . . . . Notwithstanding,

regulations, policies and procedures established by MCCF for its

operation apply to all employees of PrimeCare Medical (PCM).” Id. at

PCM00595. The Policy further states that, specifically relevant to

Ravert’s care, “[u]nreasonable barriers to patients must be avoided . . .

. [and that] [e]xamples of unreasonable barriers include,” among other

things, “[h]aving understaffed, underfunded, or poorly organized

system with the result that it is not able to deliver appropriate and

timely care for patients’ serious health needs.” Id. With respect to

specimen preservative inventories, PrimeCare CEO Thomas Weber

testified that all of PrimeCare’s laboratory supplies are provided free

of charge from the laboratories with whom it works. See Exhibit 10

(Weber Dep.) at 80:6-82:18. The process for obtaining additional

preservative, Weber explained, “would have just been simply reaching

out to the lab and saying, ‘Hey, we need some more lab

formaldehyde.’” Id. at 80:17-20. Weber stated that supplies, including

formaldehyde, are included as part of the services that laboratories

provide to PrimeCare and that PrimeCare incurs no added cost for

such supplies. Id. at 80:22-81:2.

Despite PrimeCare’s Access to Care Policy, and its ability to easily

obtain free formaldehyde, PrimeCare routinely fails to keep basic

medical supplies, like specimen preservative, in the jails that where it

manages medical services (including MCCF). Testimony from Dr.

Wloczewski—the Medical Director at various PrimeCare jails

(including MCCF), see Exhibit 3 at 12:14-16, 24:21-24— confirms

just as much. At his deposition, Dr. Wloczewski stated that some of

the smaller prisons managed by PrimeCare (including MCCF) often

fail to maintain the medical supplies needed to perform biopsies,

including formaldehyde specimen containers. See id. at 37:13-38:2,

39:10-21. Dr. Wloczewski also testified that some of the smaller

prisons managed by PrimeCare (including MCCF) often fail to have

the sutures required to perform same. See id. at 41:19-42:3.

(Doc. 48, pp. 13-14)

1. PrimeCare Monell Liability

A jury could reasonably find that PrimeCare failed to enforce its “Access to

Care Policy” and had inadequate policies directly related to the harm Ravert

suffered. According to Plaintiff’s expert, Dr. Hashmi, several of the policy failures

in this case are attributed to PrimeCare. For example:

1. Mr. Ravert was provided substandard care at the Monroe County

Correctional Facility by its vendor, PrimeCare, and various individual

medical providers. Multiple deviations from accepted standards of

correctional healthcare directly resulted in a delayed diagnosis of

malignant melanoma which is associated with a poor outcome. The

deviations from standard of care are stated below.

. . . .

4. Dr. Wloczewski failed to maintain an adequate inventory of sutures,

which delayed removal of the malignant lesion and sending it out for biopsy

before it came off and was ultimately discarded. This led to a missed

opportunity for early diagnosis of Mr. Ravert’s cancer and shows Dr.

Wloczewski’s deliberate indifference to the obvious risk that Mr. Ravert had

for malignant melanoma.

5. Dr. Wloczewski failed to give his staff anticipatory guidance about

the risk of amputation associated with a strangulating trouniquet

around the abnormal skin growth and therefor preparation for

specimine collection and preservation were not made. Malignant

tissue was discarded and a critical opportunity for early diagnosis was

lost.

. . . .

9. The medical vendor, PrimeCare, did not provide a valid screening

tool for skin lesions. The current nursing tool does not guide nurses to

look for cancers and therefore is misleading the nurses.

10. PrimeCare regularly failed to maintain essential supplies at their

facility, as Dr. Wloczewski admitted in his deposition (pages 37-42)

and PA-C Foley acknowledged in her deposition (page 44). Suturing

material and transport containers with preservative were not available

causing a delay in diagnosis of Mr. Ravert’s malignant melanoma.

This custom runs contrary to PrimeCare Policy: Access to Care,

Section III, which states “Unreasonable barriers to patients must be

avoided . . . . Examples of unreasonable barriers include the

following: . . . . Having understaffed, underfunded, or poorly

organized system with the result that is not able to deliver appropriate

and timely care for patients’ serious health needs.”

Hashmi Report: (Doc. 49-4, pp 37, ¶ 9, - p. 38 ¶10).

In addition to these formal opinions, Dr. Hashmi points to a lack of training

by the nurses involved in the 2017 care. (Doc. 49-4, p. 7). Another of Plaintiff’s

experts, Nurse Denise M. Panosky, is highly critical of the quality of the nursing

care Mr. Ravert received and she points out several policy failures attributable to

PrimeCare. (Panosky Expert Report, Doc. 49-6, pp. 8-10). These opinions, if

accepted by the jury, create a direct conflict with the MCCF Access to Care

Policies. (Doc. 49-7, pp. 2-13). Failure of PrimeCare to follow the policies

imposed upon it by the County in their contract could be interpreted by the jury as

a deliberate indifference to the medical care Mr. Ravert received.

Plaintiff has established a factual dispute regarding the policies and

procedures of PrimeCare that prevent summary judgment.

2. County Liability for PrimeCare Policy

Plaintiff argues that Monroe County failed to police its medical services

contract with PrimeCare and that the County had a duty to inspect the medical

inventory. Both arguments fail. There is no evidence that the Warden or any

county official knew that the medical care Ravert received was substandard (if it

was). The duty to inspect noted in the various agreements relates to institutional

security issues not medical policy or quality issues.

Monroe County has a constitutional obligation to "provide food, clothing,

shelter and medical treatment for inmates." White v. Napoleon, 897 F.2d 103, 113

(3d Cir. 1990). At the time of Ravert’s medical care and incarceration, it is

undisputed that Monroe County had chosen to fulfill its medical treatment

obligation to the inmate population of MCCF by contracting with a third-party

medical provider. Yet, the County’s duty:

is not absolved by contracting with an entity such as [PrimeCare

Medical, Inc.]. Although [PrimeCare] has contracted to perform an

obligation owed by the county, the county itself remains liable for any

constitutional deprivations caused by the policies or customs of

[PrimeCare]. In that sense, the county's duty is non-delegable.

Ancata V. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985).

In this case, PrimeCare Medical, Inc. has potential liability with respect to

Ravert’s injuries. If believed by the jury, these policy failures will be imputed to

the County. See Ponzini v. Monroe Cnty., No. 3:11-CV-00413, 2015 WL 5123635

(M.D. Pa. Aug. 31, 2015)

C. WHETHER PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES SHOULD

BE DENIED

The standards for an award of punitive damages are set forth in Section

IV.D. above.

Regarding summary judgment on any punitive damages claim Defendants

argue:

In the present matter, the record is devoid of facts to support the

imposition of punitive damages. Nurse Ramos was confronted with a

situation which was unique to her experience. Thus, she contacted a

provider for guidance and potentially orders. Such conduct is not

reckless or outrageous.

Dr. Wloczewski diagnosed Plaintiff with a skin tag which is a benign

condition. Ultimately, it was determined that Plaintiff had melanoma

and not a skin tag. However, all of Dr. Wloczewski's treatment

decisions were premised upon his diagnosis of a skin tag. Those

treatment decisions are not reckless or outrageous.

As to PA Foley, Plaintiff's experts do not opine that her care deviated

from the standard of care. Nothing more needs stated as to the

ridiculous request for the imposition of punitive damages as to PA

Foley.

As to PrimeCare, it is abundantly clear that Plaintiff received medical

attention every time he registered a complaint about his leg. The

medical care provided included nursing evaluations, physician

assessments, physician assistant assessments, and ultimately hospital

care. The real gravamen of Plaintiff’s case is that a quicker diagnosis

should have been made by the PrimeCare Defendants. At most,

Plaintiff is able to demonstrate negligence in failing to more timely

diagnose his condition. However, a mere delay in treatment or even a

misdiagnosis does not equate to reckless or outrageous conduct.

Therefore, the PrimeCare Defendants respectfully request that

Plaintiff's request for imposition of punitive damages be dismissed.

(Doc. 45, pp. 26-27).

Plaintiff responds to the request for summary judgment on punitive damages

by saying:

Judge Mariani recently held “[t]he Third Circuit appears to treat the

terms ‘deliberate indifference’ and ‘reckless indifference’

interchangeably, and has declined several opportunities to elaborate on

the distinctions, if any, between the two terms.” Ponzini v. PrimeCare

Med., Inc., 269 F. Supp. 3d 444, 543 (M.D. Pa. 2017) (citations

omitted), vacated on other grounds, Ponzini v. Monroe Cty., 789 F.

App’x 313 (3d Cir. 2019) (reversing trial court’s set aside of plaintiff’s

$8,000,000 punitive damages verdict against PrimeCare because there

was reasonable basis for jury to make award). Given the similarities

between the “deliberate indifference” and the “reckless indifference”

standards, the Court should deny summary judgment as to Ravert’s

punitive damages claim on the same bases detailed above. See, supra,

Sections IV.C-D.

(Doc. 48, pp. 26-27).

Plaintiff has the better argument here. Because “the standard to show

‘deliberate indifference’ is substantially the same as the standard to show ‘reckless

or callous indifference,’” courts have typically held that a claim for punitive

damages should survive provided that a plaintiff sets forth a cognizable deliberate

indifference claim. If there are sufficient facts from which a reasonable juror could

find deliberate indifference on the part of any defendant, it follows that the

plaintiff's claims for punitive damages against that defendant likewise survives

summary judgment.

Plaintiff has survived summary judgment on deliberate indifference claims

against Dr. Wloczewski, PrimeCare, and Monroe County for the reasons explained

in this opinion. Therefore, the claim for punitive damages against them will also

survive.

D. WHETHER THE COURT SHOULD DECLINE TO EXERCISE

SUPPLEMENTAL JURISDICTION OVER ANY REMAINING STATE LAW

CLAIMS

Turning to the state law negligence claims, Defendants argue:

It is submitted that this Honorable Court should decline to exercise

supplemental jurisdiction over Plaintiff's remaining state law claims,

and the negligence cause of action should be dismissed without

prejudice.

(Doc. 45, p. 29).

In response Plaintiff argues that judicial economy supports retaining

the supplemental state law negligence claims even if all other claims are

dismissed. (Doc. 48, pp. 27-28).

Having concluded that at least three Constitutional deliberate indifference

claims survive (against the Medical Director, Dr. Wloczewski, and PrimeCare) the

supplemental state law negligence claims will also remain. These claims belong in

this court at this stage of the litigation even without the Constitutional claims based

on judicial economy, allowing a prompt and efficient disposition. 28 U.S.C. §

1367.

E. JOHN DOE DEFENDANTS: SUA SPONTE DISMISSAL

Although we have passed the close of discovery and reached the summary

judgment stage in this action, Plaintiff has failed to amend his Complaint to

identify the “John Doe” corrections officers and medical staff originally named in

the Complaint as Defendants, or to effectuate proper service of original process

upon them. Plaintiff commenced this action on June 2, 2020, by filing the

Complaint in this matter. (Doc. 1.) In addition to five specifically named

defendants, the complaint purported to sue ten “John Doe(s)” as party-defendants.

Now, more than a year after the close of fact discovery in this case, and

more than eighteen months after the deadline for amendment of pleadings or

joinder of parties expired (see Scheduling Order, Doc. 25), Plaintiff has still failed

to amend his complaint to identify any of the unnamed “John Doe” Defendants and

join them to this action.

The use of John Doe Defendants is permissible “until reasonable discovery

permits the true defendants to be identified.” Blakeslee v. Clinton Cty., 336 Fed.

App'x 248, 250 (3d Cir. 2009) (emphasis added) (affirming dismissal of John Doe

defendants where plaintiff failed to amend her complaint to identify true

defendants after ten months of discovery). “[I]n the adversarial system of litigation

the plaintiff is responsible for determining who is liable for her injury....” Arthur v.

Maersk, Inc., 434 F.3d 196, 212 (3d Cir. 2006).

Thus, if a plaintiff fails to amend a complaint to identify unnamed John Doe

defendants, a court may sua sponte dismiss those defendants prior to ruling on a

summary judgment motion. King v. Mansfield Univ. of Pa., No. 1:11-CV-1112,

2014 WL 4546524, at *10 (M.D. Pa. Sept. 12, 2014); Guyton v. Bacher, No. 3:12-

27, 2014 WL 3942813, at *5 (W.D. Pa. Aug. 12, 2014); see also Fed. R. Civ. P. 21

(“on motion or on its own, the court may at any time, on just terms, add or drop a

party.”). Whitehurst v. Lackawanna Cnty., No. 3:17-CV-00903, 2020 WL

6106616, at *4 (M.D. Pa. Mar. 5, 2020), report and recommendation adopted, No.

CV 3:17-903, 2020 WL 6083409 (M.D. Pa. Oct. 15, 2020). Here the proper course

of action is to dismiss the John Doe claims.

VI. CONCLUSION

1. The ten John Doe Defendants named in the complaint are dismissed.

2. Summary judgment in favor of Nurse Ramos will be granted on Counts I

& III.

3. Summary judgment in favor of Dr. Wloczewski will be denied on Counts I

& III.

4. Summary judgment in favor of PA-C Foley will be granted on Counts I &

III.

5. Summary judgment in favor of PrimeCare will be denied on Count II.

6. Summary judgment in favor of Monroe County will be denied on Count II.

An appropriate order will follow.

Date: September 30, 2022 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge