Rossman v. PrimeCare Medical, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID B. ROSSMAN, No. 4:21-CV-00703

Plaintiff, (Chief Judge Brann)

v.

PRIMECARE MEDICAL INC, et al.,

Defendants.

MEMORANDUM OPINION

JANUARY 10, 2024

Five days removed from a car accident in which he sustained injuries requiring

emergency spinal surgery, David Rossman was committed to the custody of the

Centre County Correctional Facility pursuant to an outstanding bench warrant. Five

days after that, Rossman left CCCF in an ambulance after the hardware holding his

fractured vertebrae came loose, rendering the 22-year-old a tetraplegic.

Rossman believes that he would still be walking today if the staff of CCCF

took appropriate steps to ensure that his discharge instructions were followed. He

initiated this litigation, claiming that Centre County, the medical care provider at

CCCF, PrimeCare Medical, Inc., and several individuals employed by the County

and PrimeCare violated his constitutional right to medical care. Following discovery,

the Defendants filed motions for summary judgment arguing that Rossman, at most,

has a claim for medical malpractice and that this case does not belong in Federal

Court. Though the Court will grant Defendants’ motions in part, it finds that a

reasonable jury could conclude the medical care provided to Rossman during his

stay at CCCF does not pass constitutional muster.

I. PROCEDURAL BACKROUND

Plaintiff David B. Rossman initiated this suit on April 15, 2021 against

PrimeCare Medical, Inc., Dr. Rita Camacho, Elizabeth Corl, Katie Reese, Kim

Hrabic, Kelsey Schmidt, Brandi Hugar, Stephanie Struble, Gabriel Pelaez, Jade

Lose, and Alesha Weaver (collectively the “PrimeCare Defendants”) and Centre

County and Correctional Officers David Zettle and Mark Waite (collectively the

“County Defendants”).1 In his Complaint, Rossman brings the following sixteen

claims for relief:2 Denial of Adequate Medical Care against Corl (Count I), Reese

(Count II), Schmidt, Hugar, Lose, and Weaver (Count III), Struble (Count IV),

Pelaez (Count V), Hrabic (Count VI), Camacho (Count VII), Waite (Count VIII),

and Zettle (Count IX);3 Failure to Intervene against all Individual Defendants (Count

X); Failure to Supervise against Camacho, Pelaez, and Hrabic (Count IX); Monell

1 Compl., Doc. 1. The Complaint also names John/Jane Doe Medical Providers, Guards, and

Supervisors. Rossman agrees that dismissal of the unidentified Defendants is appropriate.

Centre County Mot. Summ. J. Opp. (“County BIO”), Doc. 108 at 12.

2 Counts I-XIII are brought under 42 U.S.C. § 1983. Counts XIV-XVI are styled as state law

medical malpractice tort claims.

3 Count IX is brought against “Individual CO Defendants.” As the unidentified individual

defendants will be dismissed and Count VIII is brought against Waite, the Court will treat

Count IX as being brought against Zettle, the sole remaining identified CO Defendant.

liability against Centre County (Count XII) and PrimeCare (Count XIII); and

Medical Negligence against the PrimeCare Defendants (Counts XIV-XVI).

On April 5, 2022, the Court denied a motion to dismiss filed by Centre County

Defendants.4 Following extensive discovery, both PrimeCare Defendants and Centre

County Defendants have filed Motions for Summary Judgment.5 Those Motions are

fully briefed and ripe for disposition.6

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to a judgment as a matter of law.” As

expressed by the Supreme Court of the United States in Celotex Corp. v. Catrett,

summary judgment is required where a party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case” on an issue that

the “party will bear the burden of proof at trial.”7 Material facts are those “that could

alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence exists

4 Apr. 5, 2022 Ord., Doc. 53.

5 PrimeCare MSJ, Doc. 78; County MSJ, Doc. 80.

6 PrimeCare MSJ Br. in Supp. (“PrimeCare BIS”), Doc. 93; PrimeCare MSJ Statement of

Material Facts (“PrimeCare SMF”), Doc. 79; PrimeCare MSJ Opp. (“PrimeCare BIO”), Doc.

102; PrimeCare MSJ Response to SMF (“PrimeCare RSMF”), Doc. 100; PrimeCare Reply,

Doc. 106; County MSJ Br. in Supp. (“County BIS”), Doc. 96; County SMF, Doc. 81; County

BIO; County RSMF, Doc. 107; County Reply, Doc. 112.

7 477 U.S. 317, 322 (1986).

from which a rational person could conclude that the position of the person with the

burden of proof on the disputed issue is correct.”8

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.9 When the movant properly supports its

motion, the nonmoving party must then show the need for a trial by setting forth

“genuine factual issues that properly can be resolved by only a finder of fact because

they may reasonably be resolved in favor of either party.”10 The United States Court

of Appeals for the Third Circuit explains that the nonmoving party will not withstand

summary judgment if all it has are “assertions, conclusory allegations, or mere

suspicions.”11 Instead, it must “identify those facts of record which would contradict

the facts identified by the movant.”12

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”13 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”14 Moreover, “[i]f a party fails to properly support an assertion of

8 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

9 Celotex, 477 U.S. at 323.

10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

11 Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

12 Port Auth. Of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (quoting

Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988)).

13 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

422, 448 (1871)).

14 Razak v. Uber Technologies, Inc., 951 F.3d 137, 144 (3d Cir. 2020).

fact or fails to properly address another party’s assertion of fact as required by Rule

56(c),” the Court may “consider the fact undisputed for purposes of the motion.”15

Finally, although “the court need consider only the cited materials, . . . it may

consider other materials in the record.”16

Local Rule 56.1 requires all motions for summary judgment to be

“accompanied 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.” The party opposing summary judgment must then include with its

papers an answer to the movant’s statement of facts in which it identifies, in

corresponding numbered paragraphs, those material facts which the nonmovant

contends there is a genuine issue to be tried.17 “Statements of material facts in

support of, or in opposition to, a motion shall include references to the parts of the

record that support the statements.”18 Material facts in the movant’s statement “will

be deemed to be admitted unless controverted by the statement required to be served

by the opposing party.”19

15 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

16 Fed. R. Civ. P. 56(c)(3).

17 LR 56.1.

18 Id.

19 Id.

III. RELEVANT FACTUAL BACKGROUND20

A. Admission to Centre County Correctional Facility

Rossman was involved in a motor vehicle accident on October 10, 2020

resulting in spinal injuries.21 The next day, October 11, 2020, Rossman underwent

spinal surgery—a posterior cervical fusion and reduction of fracture—at the

University of Pittsburgh Medical Center in Altoona.22 James Burke, MD, provided

post-surgical care to Rossman beginning October 12, 2020.23 Dr. Burke formulated

a plan in which Rossman was to wear a cervicothoracic orthotic (“CTO”) brace when

he was out of bed (except to shower) and a cervical collar at all times (also except

to shower).24 Rossman was told that failure to wear the brace as instructed could

result in a failure of the hardware inserted in his spine during the surgery.25 Rossman

received the CTO brace on October 14, 2020 and an occupational therapist showed

Rossman and his mother how to put the brace on.26 Rossman required “max assist”—

20 The factual background is largely derived from the parties’ statements of fact. Where the

parties agree on a fact, the Court will cite the SMF and RSMF together. E.g., SMF and RSMF

¶ 1. If a fact is disputed, the Court will look to the cited portions of the record, make its own

determination, and resolve any disputes in favor of the non-moving party, Rossman.

Where the Court cites deposition testimony, it will rely on the deposition transcripts filed by

Centre County unless otherwise noted as the County filed the entirety of the transcripts rather

than excerpts, obviating the need to cite to several different versions of the same document.

21 PrimeCare SMF and RSMF ¶¶ 27-28; County SMF and RSMF ¶ 1.

22 PrimeCare SMF and RSMF ¶¶ 29-30; County SMF and RSMF ¶ 16.

23 PrimeCare SMF and RSMF ¶¶ 20-23, 31.

24 Id. ¶¶ 32-33; County SMF and RSMF ¶ 18.

25 PrimeCare SMF and RSMF ¶ 31; County SMF and RSMF ¶ 19.

26 County SMF and RSMF ¶ 20.

the assistance of at least one other person—to put the CTO brace on, which was

applied using a “roll” technique while Rossman was in bed.27

On October 15, 2020, with the approval of Dr. Robert Behm, Rossman was

discharged from UPMC Altoona into the custody of the Pennsylvania State Troopers

pursuant to an outstanding arrest warrant.28 Trooper Wills transported Rossman to

arraignment where Magisterial District Judge Kelley Gillette-Walker set Rossman’s

bail at $75,000.29 Rossman could not post bail and Wills transported him to CCCF.30

Wills remained with Rossman at CCCF for approximately ten minutes and then

left.31

Rossman was wearing his CTO brace when he arrived at CCCF and

Correctional Officer George Murphy requested assistance from the medical

department to complete an unclothed search of Rossman.32 After the search was

completed, Murphy helped Rossman put his CTO brace back on.33

As part of a medical screening prior to Rossman’s commitment to CCCF,

Nurse Elizabeth Corl received the Discharge Summary from UPMC Altoona.34

Among the records faxed to CCCF were treatment records dated October 14, 2020

27 County RSMF ¶ 20; County SMF ¶ 145.

28 County SMF and RSMF ¶¶ 2, 79-83.

29 Id. ¶¶ 3-5, 8.

30 Id. ¶ 10.

31 County RSMF ¶ 15.

32 County SMF and RSMF ¶¶ 229-230.

33 County RSMF ¶ 203(f) (citing Doc. 100-2, PrimeCare RSMF Ex. 1).

34 PrimeCare SMF and RSMF ¶ 55; County SMF and RSMF ¶¶ 21-22.

which recommended that Rossman be discharged to his home with family assistance,

but acknowledged that, due to the outstanding arrest warrant, the likely disposition

was to jail.35 Dr. Burke testified that, while some patients may require additional

assistance with the CTO brace, they do not need “babysitting.”36 Dr. Behm testified

that it is acceptable to discharge a patient who cannot effectively don and doff a CTO

brace as long as there will be someone available to help them.37

Corl was aware of the instructions that Rossman was to wear his cervical

collar in bed and the CTO brace out of bed except to shower.38 She sent a mass email

to correctional and medical personnel regarding Rossman’s restrictions which

stated:

He is to be bottom bunk, bottom tier, padded single cell, shower shoe

restrictions, he has two C-collars (the single neck one is to be used at

night/while sleeping) the full torso one is to be utilized while up and

moving (do not shower with on), he also has a small wedge that is

permitted to use under his head while sleeping.39

The purpose of the email was to ensure that correctional officers were aware

of the specific instructions; an inmate is not granted permanent bottom bunk or

bottom tier “status” or permitted to use shower shoes unless there is an order from

the medical staff.40 PrimeCare records indicate that Corl also contacted Dr. Rita

35 County SMF and RSMF ¶¶ 22-23, 140, 155.

36 PrimeCare SMF and RSMF ¶¶ 41-42.

37 County RSMF ¶ 97.

38 PrimeCare SMF and RSMF ¶ 74.

39 Id. ¶¶ 56-58.

40 Id. ¶¶ 59-60.

Camacho at the time of Rossman’s receiving screening.41 Corl read Rossman’s

discharge instructions to Camacho over the phone and Camacho issued an order

directing that he be provided medications consistent with his prescriptions.42

Corl also contacted Kristina Varner, RN, employed by PrimeCare as the

Health Services Administrator at CCCF, regarding Rossman’s admission to the

prison.43 Generally, an intake nurse, if there are no concerns about a patient, is able

to make the decision regarding whether an individual can be admitted to the prison

or if the individual needs medical clearance.44 As to Rossman, Corl called Varner to

determine whether medical clearance was required, and Varner approved the

Rossman’s admission without medical clearance.45

Corl also discussed the CTO brace with Rossman and, though Rossman said

that he understood how the brace worked and how to use it, Corl did not ascertain

whether Rossman could put the brace on himself.46 Further, Corl did not tell

41 Id. ¶ 62.

42 Id. ¶¶ 63-64.

43 Id. ¶¶ 66-67.

44 Id. ¶ 69.

45 Id. ¶¶ 66, 70, 72. As stated in PrimeCare’s SMF, it is not clear whether Corl called Varner to

receive medical clearance or whether Corl called Varner to inquire as to whether clearance was

necessary. In her deposition, Varner testified that “often times [an individual] would have to

go back to the hospital for medical clearance to make sure that they were cleared to be there,

safe to be there.” Varner Dep., County SMF Ex. O, Doc. 81-15 at 25:2-9. As Rossman was not

sent back to the hospital, the Court concludes that it was determined he could be admitted

without clearance.

46 The portion of Corl’s deposition cited by PrimeCare on this point is part of a tangentially

related question from Rossman’s counsel and an objection to that question by PrimeCare’s

counsel. PrimeCare SMF ¶ 73 (citing Corl. Dep., PrimeCare Ex. C, Doc. 79-4 55:24-56:2).

The preceding page of the deposition transcript is merely a back and forth between counsel

which includes PrimeCare’s counsel’s characterization of Corl’s earlier testimony, which is

Rossman how to request assistance putting the CTO brace on or taking it off.47

Rossman once put the CTO brace on himself in an effort to find a comfortable

sleeping position but was not confident that he was able to fit it correctly.48

Rossman understood the importance of properly using the CTO brace and

cervical collar and the risks of walking without the CTO brace.49 To avoid walking

without the CTO brace, Rossman stayed in bed, wearing his cervical collar, as much

as possible, only getting up to take his medications or to use the toilet.50

B. Stay at CCCF

Following his commitment to CCCF, Rossman requested, and was refused

help from COs with his CTO brace on four consecutive days:

 On October 15, 2020, Rossman asked an unidentified CO for assistance

with his CTO brace.51 The CO refused to help Rossman “because of

concerns with liability and because [Rossman] was on a COVID

quarantine.”52

not included in the exhibit filed by PrimeCare. Corl Dep., County SMF Ex. N, Doc. 81-14

55:1-17. See also PrimeCare RSMF ¶ 73.

47 County SMF and RSMF ¶ 205.

48 PrimeCare SMF ¶ 86; Rossman Dep., County Ex. A, Doc. 81-1 at 266:1-13.

49 PrimeCare SMF and RSMF ¶¶ 94-95.

50 Id. ¶¶ 95-98.

51 County SMF and RSMF ¶ 308.

52 Id.

 On October 16, 2020, Rossman asked another unidentified CO for

assistance with his CTO brace and that CO also did not assist Rossman

due to liability concerns.53

 On October 17, 2020, CO David Zettle refused to help Rossman with

his CTO brace.54

 On October 18, 2020, calls out for help and receives no response.55

Medical staff conducted “medicine passes” two or three times a day in which

a nurse would pass medication through a slot in the door.56 Though Rossman admits

he did not inform any of the nurses conducting med passes that he was having

difficulties with his CTO brace, he asserts that this limited interaction—conducted

through his cell door—did not provide him with the opportunity to do so.57

On October 17, 2020, Rossman took a shower without incident, but then was

in pain upon returning to his cell.58 At 6:18 p.m., Rossman called out for help and a

53 Id. ¶ 316.

54 See infra Section IV.A.7. Centre County argues that this allegation against Zettle is

unsupported by admissible evidence. The Court discusses, and rejects, the County’s argument

below.

55 PrimeCare RSMF ¶¶1(r), (s) (citing Rossman Video, PrimeCare RSMF Ex. 1, Doc. 100-2).

Rossman suggests in his Opposition to Centre County’s Motion that he is seen speaking with

someone outside of the door on this occasion and that, based on the shift logs, that person

would have been CO Folk. County BIO 13. It is unclear from the video whether Rossman is

talking to someone outside of his cell as the top half Rossman’s body and the door of his cell

are not visible.

56 County SMF and RSMF ¶ 305.

57 E.g., County RSMF ¶ 305.

58 PrimeCare SMF and RSMF ¶¶ 99-100.

corrections officer contacted the medical department.59 At 6:34 p.m., Nurse

Stephanie Struble responded to Rossman’s cell and conducted an assessment

consisting of giving Rossman pain medication and touching his fingers where

Rossman indicated he was feeling numbness and tingling.60 Struble, concerned that

Rossman’s report of pain was too “emergent” to wait until the next day, then

contacted the on-call provider, Physician’s Assistant Gabriel Pelaez.61

About three hours later, Pelaez returned Struble’s call and said that pain was

to be expected due to Rossman’s recent surgery, prescribed additional pain

medication of 600mg of ibuprofen to be taken twice a day, and that there was no

need to call back if the pain did not improve.62 Pelaez’s orders did not address

Rossman’s tingling sensation and Pelaez had no further involvement with

Rossman’s care.63

On the morning of October 18, 2020, Nurse Jade Lose saw Rossman in his

cell to record his vitals, administer medication, and perform a detox check and

COVID screening.64 During this check-up, Rossman had his cervical collar on and

59 Id. ¶ 101. Rossman’s Response adds additional details. PrimeCare RSMF ¶ 101 (citing

Rossman Video, PrimeCare RSMF Ex. 1, Doc. 100-2 at k).

60 PrimeCare SMF and RSMF ¶¶ 102-104. Rossman’s response adds additional details.

PrimeCare RSMF ¶ 102 (citing Rossman Video at l.)

61 PrimeCare SMF and RSMF ¶ 105; Struble Dep., County SMF Ex. U, Doc. 81-21 at 35:7-38:3.

62 PrimeCare SMF and RSMF ¶ 107; PrimeCare RSMF ¶ 107; Struble Dep. 39:5-40:16.

63 PrimeCare SMF and RSMF ¶ 108.

64 Id. ¶¶ 125-128.

remained in his bunk.65 Rossman was unable to stand up at the time due to being in

too much pain.66

C. Hardware in Rossman’s Spine is Displaced

On October 20, 2020, Rossman walked to an appointment with Physician’s

Assistant Kim Hrabic carrying his CTO brace.67 Arriving at the appointment, which

was part of the detox protocol and follow-up care from Rossman’s hospitalization,

Rossman asked Hrabic for and she provided assistance donning the CTO brace.68

After returning to his cell, Rossman eventually removed the CTO brace and, while

lying in his bunk wearing the cervical collar as instructed by Dr. Burke, felt a pop in

his neck followed by “excruciating pain.”69

Rossman alerted Correctional Officer Mark Waite who contacted the medical

department.70 Nurse Katie Reese received the call and alerted Hrabic who ordered

an immediate x-ray.71 Two hours later, Nurses Elizabeth Corl and Kelsey Schmidt,

accompanied by Waite, went to Rossman’s cell to take him to the medical

65 Id. ¶ 126.

66 Id. ¶ 128.

67 Id. ¶¶ 111-12.

68 Id. ¶¶ 111, 113.

69 Id. ¶¶ 115-116; PrimeCare RSMF ¶ 119.

70 PrimeCare SMF and RSMF ¶ 117; County SMF and RSMF ¶¶ 256-57.

71 PrimeCare SMF and RSMF ¶¶ 118-19. Specifically, PrimeCare says that “Hrabic ordered an

additional x-ray and made the order stat.” PrimeCare SMF ¶ 119. In the medical context, a

“stat” order is “to be given or done immediately.” Stat, Oxford English Dictionary Online Ed.

(revised Dec. 2012), available at https://www.oed.com/dictionary/stat_adv?tab=meaning_

and_use#20893228; Hrabic Dep., County SMF Ex. M, Doc. 81-13 at 47:1.

department for his x-ray.72 They initially wheeled the wheelchair into Rossman’s

cell, but then stopped and pulled the wheelchair back out.73 Rossman was therefore

required to walk to the wheelchair from his bed unassisted.74 Once at the wheelchair,

Rossman was then told to go back into his cell to retrieve his shoes.75 While

attempting to put his shoes on, Rossman lost his balance, causing additional pain and

numbness.76 Rossman informed Waite, Corl, and Schmidt of the additional pain and

numbness.77 At no point did Corl—who testified that she assumed medical staff who

interacted with Rossman would encourage him, educate him, and assist him with

any needs he would have with the brace78—or Schmidt put the CTO brace on

Rossman or take any other measures to stabilize Rossman’s spine and the brace was

left in Rossman’s cell.79

The technician who performed the x-ray found that the hardware in

Rossman’s spine was displaced and it was ordered that Rossman be sent to the

hospital immediately.80 Following the x-ray, the technician and Schmidt assisted

72 PrimeCare SMF and RSMF ¶ 120; PrimeCare RSMF ¶ 120 (citing Rossman Video at x);

County SMF and RSMF ¶ 258.

73 PrimeCare RSMF ¶ 120 (citing Rossman Video at x).

74 Id.

75 Id.

76 Id.

77 Id.

78 PrimeCare SMF ¶ 75.

79 PrimeCare RSMF ¶ 120; Rossman Dep. at 237:1-7.

80 PrimeCare SMF and RSMF ¶¶ 121-22. Specifically, Rossman testified that the gist of the x-ray

technician’s statement was that Rossman was “not in any suit to be here right now. Get him

out of here.” Rossman Dep. 238:5-15.

Rossman back to the wheelchair.81 While sitting in the wheelchair outside of the

medical center waiting for emergency services to arrive, Schmidt and Corl switched

Rossman’s wheelchair.82 Rossman required assistance to switch wheelchairs

because he was unable to move his legs at this point.83

D. CCCF and PrimeCare Policies

At the relevant time, Centre County and PrimeCare had entered into a

Comprehensive Health Services Agreement.84 Under the Agreement, PrimeCare was

responsible for medically clearing individuals prior to commitment at CCCF.85 The

Agreement provides that “decisions and actions regarding health care services

provided to inmates/patients are the sole responsibility of qualified health care

personnel.”86 CCCF policy provided that: (1) PrimeCare had “sole province on

81 PrimeCare RSMF ¶ 122; Rossman Dep. 239:7-10.

82 PrimeCare RSMF ¶ 122; Rossman Dep. 239:15-21.

83 PrimeCare RSMF ¶ 122.

84 County SMF and RSMF ¶ 200.

85 Id. ¶ 201. Rossman objects to this, and several other statements in Centre County’s SMF on

the basis that the “existence of a Health Services Agreement between PrimeCare and CCCF

does not alleviate CCCF’s duty to determine whether to commit an individual to the facility

and/or determining whether the facility is capable [of] provid[ing] adequate medical care.”

County RSMF ¶ 201. This objection puts the liability cart before the factual background horse.

The Court will address Rossman’s legal argument regarding the import, or lack thereof, of the

Agreement between CCCF and PrimeCare below. But the Court must first establish what the

Agreement and attendant policies are. To that end, the Court’s recitation of the related facts

should not be understood as accepting their validity.

86 Health Svcs Agreement, County SMF Ex. W, Doc. 81-23 ¶ 12. The Court notes that the

effective date of the Health Services Agreement filed as an exhibit by Centre County, January

1, 2021, postdates the events of this litigation. Id. ¶ 2. The Court assumes this is a clerical error

and that the basic terms of the Agreement in place in October 2020 are substantially similar, if

not identical, and could be introduced in the form of admissible evidence—i.e., the correct

Agreement—at trial. See Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F. 3d 231,

238 (3d Cir. 2016) (evidence may be considered at summary judgment if it may be produced

in an admissible form at trial).

matters involving medical judgment;”87 (2) “Medical services are available twenty-

four hours a day;”88 (2) detainees may submit “medical request forms” or “sick call

slips” which are picked up nightly;89 and (3) medical staff completes intake

screenings on all new commitments, informing the intake officer of any issues that

need to be addressed such as “suicide precaution, protective custody, keep separates,

or Medical attention (sent to Mount Nittany Medical Center).”90

CCCF also maintained a Policy and Procedure related to the commitment of

new inmates and detainees.91 This policy required all commitments to be made under

the proper legal authority.92 Intake Officers are to ensure that a commitments

documentation is correct and complete.93 If an Intake Officer is unsure of the medical

condition of a commitment, they are to notify the shift commander and the medical

department.94

Medical staff is responsible for completing initial assessments for all

commitments.95 Medical staff is also responsible for evaluating inmates who submit

87 CCCF Policy, County SMF Ex. Y, Doc. 81-25 ¶ IV.A.2.

88 Id. ¶ IV.B.1.

89 Id. ¶ IV.B.9.

90 Id. ¶ IV.C.

91 County SMF and RSMF ¶ 218.

92 Id. ¶ 219.

93 Id. ¶ 221.

94 Id. ¶ 220.

95 Id. ¶ 222.

sick calls and communicating medical clearances and status changes to “appropriate

staff members.”96

Glenn Irwin was the Deputy Warden for Administration in October 2020.97

He testified that a person must be cleared by the medical staff for commitment.98 He

relies on the determination of the PrimeCare medical staff to determine whether an

individual can be admitted without further treatment.99 He also testified that

corrections officers do not treat inmates other than to provide “immediate first aid

like CPR.”100

Rossman did not read the CCCF Inmate Handbook and was unaware of the

procedure for submitting a sick call slip while at CCCF.101

IV. ANALYSIS

A. Denial of Adequate Medical Care102

Prison officials violate a pre-trial detainee’s Constitutional rights “when they

act deliberately indifferent to a [detainee’s] serious medical needs ‘by intentionally

96 Id. ¶¶ 223-24; Medical Staff Post Order, County SMF Ex. BB, Doc. 81-28 at 496.

97 County SMF and RSMF ¶ 272.

98 Id. ¶ 274.

99 County SMF ¶¶ 275-79. Rossman denies these paragraphs of Centre County’s SMF, arguing

that this determination is non-delegable. County RSMF ¶¶ 275-79. The extent to which the

County is permitted to delegate this determination, if at all, is a legal issue distinct from the

inquiry of whether the determination was, in fact, delegated.

100 County SMF ¶¶ 289-90.

101 County SMF and RSMF ¶ 302.

102 Rossman concedes that Brandi Hugar and Alesha Weaver had no direct involvement in his

medical care while he was a detainee at CCCF. PrimeCare BIO 19, 22; accord RSMF ¶ 123.

Accordingly, the Court will grant PrimeCare Defendants’ Motion on Count II as to those

Defendants.

denying or delaying access to medical care or interfering with the treatment once

prescribed.’”103 In order to establish a violation of [David Rossman’s] constitutional

right to adequate medical care, evidence must show (i) a serious medical need, and

(ii) acts or omissions by prison officials that indicate deliberate indifference to that

need.”104 The Defendants concede that Rossman had a serious medical need.105

Therefore, the inquiry for each Defendant turns on whether they were deliberately

indifferent to that need.

“[P]rison authorities are accorded considerable latitude in the diagnosis and

treatment of prisoners.”106 “Allegations of medical malpractice” nor “mere

disagreement as to the proper medical treatment” are sufficient to establish a

constitutional violation.107 “To act with deliberate indifference to serious medical

needs is to recklessly disregard a substantial risk of serious harm.”108 The Third

Circuit has “found deliberate indifference in a variety of contexts including where

(1) prison authorities deny reasonable requests for medical treatment, (2) knowledge

103 Pearson v. Prison Health Service, 850 F.3d 526, 534 (3d Cir. 2017) (quoting Estelle v. Gamble,

429 U.S. 97, 104-05 (1976)). The plaintiff in Pearson was a prisoner, rather than a pre-trial

detainee, and thus subject to the Eighth Amendment. The analysis is the same for claims

brought by pre-trial detainees under the Fourteenth Amendment. Natale v. Camden Cnty. Corr.

Facility, 318 F.3d 575, 581-82 (3d Cir. 2003); accord Thomas v. City of Harrisburg, 88 F.4th

275, 281 n.23 (3d Cir. 2023).

104 Natale, 318 F.3d at 582 (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999)).

105 PrimeCare BIS 17; County BIS 13.

106 Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Durmer v. O'Carroll, 991 F.2d

64, 67 (3d Cir. 1993))

107 Id. (citing Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)).

108 Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (quoting Giles v. Kearney, 571 F.3d

318, 330 (3d Cir. 2009)).

of the need for medical care is accompanied by the intentional refusal to provide it,

(3) necessary medical treatment is delayed for non-medical reasons, and (4) prison

authorities prevent an inmate from receiving recommended treatment for serious

medical needs.109

1. PrimeCare Defendants

Before turning to the arguments regarding the Individual PrimeCare

Defendants, the Court will address a few global issues raised by PrimeCare as to

Rossman’s denial of medical care claims.110 First, PrimeCare characterizes

Rossman’s theory as a failure by the PrimeCare Defendants to force him to wear his

CTO brace. As discussed in greater detail below, though this is an issue, it is not the

only issue. Second, the fact that there was no additional physical or occupational

therapy ordered for an individual who was to be either lying in bed or wearing a

CTO brace at all times is immaterial. Rossman’s movements were severely

restricted—it is reasonable to assume that any physical therapy regimen may have

been ordered after subsequent follow up evaluations. Third, there is no evidence that

Rossman disregarded any medical instructions. Fourth, the Court is similarly

unmoved by PrimeCare’s suggestion that Rossman did not submit any sick call slips

109 Pearson, 850 F.3d at 538 (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834

F.2d 326, 347 (3d Cir. 1987)).

110 PrimeCare BIS 19.

or grievances. This does not change the analysis for the complaints or requests for

assistance that the PrimeCare Defendants were aware of.

2. Dr. Rita Camacho, MD

Rossman argues that Camacho exhibited deliberate indifference when she

allowed him to be admitted to CCCF “without specific instructions or a plan to

ensure compliance with the discharge instructions.”111 As an initial matter, Kristina

Varner, not Camacho, approved Rossman’s commitment to CCCF.112 Further,

Rossman has not identified any discharge instruction that Camacho’s orders failed

to account for. Rossman was scheduled for, and eventually received, follow up

care.113 Rossman has not identified any necessary follow up care that Camacho was

aware of and unnecessarily delayed. The orders clearly state that Rossman is to wear

his CTO brace when out of bed except to shower.114 The Court is not persuaded by

Rossman’s suggestion that a more specific directive in Rossman’s chart would have

made any difference. The Court is similarly unmoved by Rossman’s complaint that

he was placed in a single cell with only a bed. Viewing the record in the light most

favorable to Rossman, the Court accepts that he was unable to put the CTO brace on

by himself. While lying in bed all day may be a dull existence, Rossman was in jail.

111 PrimeCare BIO 15.

112 PrimeCare RSMF ¶ 66.

113 See PrimeCare SMF Ex. A., Doc. 79-2 at PCM 00342 (noting that follow up is scheduled);

supra (discussing visit with Hrabic).

114 PrimeCare SMF Ex. A at PCM 00342.

He has not offered any evidence or authority which supports his apparent position

that being restricted to his bed amounted to a constitutional violation. Finally,

Rossman acknowledges that short movements within his cell were consistent with

his discharge instructions and has not explained why the short walk from his bed to

his cell door is outside the scope of that permissible movement.

Therefore, the Court will grant PrimeCare’s Motion as to Count VII.

3. Stephanie Struble, LPN and Gabriel Palaez, PA-C

Responding to Rossman’s “crying out in excruciating pain” after feeling a

crack in his back on October 17, 2020, Struble briefly examined him and then

contacted the on-call provider, Pelaez. Struble testified during her deposition that,

when Pelaez returned her call three hours later, she told him exactly what she had

written in Rossman’s chart:

Patient came in at 10/15 right from UPMC Altoona with a C5-7 fracture

and a closed T4-5 fracture from a MVA. He is in a C-collar with a brace

that goes down to his abdomen. This evening he took a shower and was

fine. A little bit after the shower he couldn’t even stand without

excruciating pain that goes down his L arm and makes his fingers tingle.

He rates the pain as a ten—says it was worse than the pain when he

originally was injured. Orders?115

Pelaez subsequently prescribed ibuprofen and ordered a follow-up

examination with Rossman’s provider.116 He also counseled that pain was to be

115 PrimeCare BIO 20.

116 Id.

expected following his surgery and that there was no need to call back if the pain did

not improve.117

PrimeCare argues that Pelaez issuing an order for additional pain medication

following Rossman’s complaint of pain is insufficient to show Pelaez was

deliberately indifferent.118 In response, Rossman points out that Pelaez did not

address—and PrimeCare does not address in its motion—the “[n]ew onset numbness

in his left arm that radiated to his fingers and made them tingle.”119

As described in Struble’s notes, it was the pain that made Rossman’s fingers

tingle—not numbness. There is no evidence in the record that Pelaez understood that

they were separate symptoms or that he did not believe ibuprofen was insufficient

to treat both symptoms. Negligent diagnosis or treatment of a medical condition is

insufficient to state a claim for an unconstitutional denial of medical care.120

As to Struble, she elevated Rossman’s condition and was justified in

following Pelaez’s orders.121 Rossman suggests that Struble erred when she

“allow[ed] him to lie in bed crying in pain for hours” before Pelaez returned her call.

117 Id.; accord PrimeCare BIS 24.

118 PrimeCare BIS 24.

119 PrimeCare BIO 21.

120 Pearson, 850 F.3d at 538.

121 Id. at 539-40, 540 n.4; Smith v. O’Boyle, 251 F. App’x 87, 89 (3d Cir. 2007).

However, Courts have routinely found that the delay of treatment for even

excruciating pain for a few hours does not give rise to a constitutional violation.122

The Court is also not persuaded by Rossman’s arguments that Struble

exhibited deliberate indifference to his condition when she (1) performed only a

cursory examination; (2) failed to convey the severity of Rossman’s condition to

Pelaez; and (3) required him to get out of bed to retrieve his nighttime medication.123

First, the “cursory examination” Struble performed was sufficient for her to

make the determination that Rossman’s symptoms were severe enough to warrant

escalating to the on-call provider. Relatedly, to the extent that Struble failed to

communicate the severity of Rossman’s condition, this was either a result of a

miscommunication between Struble and Rossman or Pelaez, or a misdiagnosis on

Struble’s part. Neither is sufficient to establish deliberate indifference, and there is

nothing in the record from which a reasonable jury could find that Struble—who,

again, thought that Rossman’s symptoms were severe enough that she took the

affirmative step to escalate the matter—consciously misled Pelaez.124 Finally, as

Rossman concedes, limited movements within his cell without the CTO brace would

122 Knepp v. Paraway, No. 1:19-CV-00153, 2020 WL 7865401, at *9 (W.D. Pa. Nov. 18,

2020), report and recommendation adopted, No. CV 19-153, 2020 WL 7864199 (W.D. Pa.

Dec. 31, 2020) (collecting cases).

123 PrimeCare BIO 20.

124 See Sinclair v. City of Seattle, 61 F.4th 674, 681 (9th Cir. 2023) (miscommunications

insufficient to show deliberate indifference); Pearson, 850 F.3d at 538-39 (errors in judgment

are insufficient to establish constitutional violation).

be within the guidelines of Dr. Burke’s instructions.125 Rossman nevertheless argues

that retrieving his own medications were beyond the allowed for “short

movements.”126 Assuming that there is a meaningful distinction to be made here,

there is no evidence that Struble was aware of and consciously disregarded it.

Therefore, the Court will grant PrimeCare’s Motion as to Counts IV and V.

4. Jade Lose, LPN

PrimeCare notes that “Nurse Jade Lose’s only involvement with [Rossman’s]

care was on October 18, 2020” when she “performed a COVID check, a detox check,

and provided medications” to Rossman.127 Rossman does not dispute this; rather his

claim against Lose rests upon what she did not do: she did not “contact the medical

provider on-call to report” Rossman’s numbness and tingling in his left arm or

review his chart to gain a better understanding of his condition.128

Lose testified that she would have read Corl’s email regarding Rossman’s

admission to CCCF and his condition upon arriving for her shift.129 She knew that

Rossman’s inability to stand up was “significant.”130 And yet, as PrimeCare

concedes, the record is devoid of any evidence that Lose did anything other than

make a note of Rossman’s pain. Lose suggests that she would have informed the

125 PrimeCare BIO 13.

126 Id.

127 PrimeCare BIS 25.

128 PrimeCare BIO 21.

129 Lose Dep., County SMF Ex. Q, Doc. 81-17 at 28:1-4.

130 Id. 38:3-12.

next shift of Rossman’s symptoms, but there is no indication that she did so.131

Unlike Struble, Lose cannot rely on the fact that Pelaez had issued orders regarding

similar symptoms the prior evening because it is not clear that she was aware he had

done so.132 A reasonable jury could conclude that Lose was aware of, but ignored or

disregarded evidence of a serious need for medical care.

Therefore, the Court will deny PrimeCare’s Motion as to Lose on Count III.

5. Katie Reese, LPN and Kim Hrabic, PA

Reese received the call from Corrections Officer Mark Waite when Rossman

felt a pop in his neck and cried out in pain. She informed Hrabic, the provider on site

at the time, who ordered an x-ray. Rossman suggests that Reese should have

independently checked on Rossman herself after receiving the call, rather than

“allow[ing him] to lie in his cell in excruciating pain for two hours while he waited

to be taken to x-ray.”133 As with Struble, Reese is entitled to rely on the direction, or

lack thereof, of Hrabic.

Rossman also argues that Reese, who participated in Rossman’s intake

process, “made no attempt to ensure Rossman received the assistance he needed”

despite the obviousness of “the consequences of not following the discharge

131 See id. 42:5-14 (testifying that she would have informed the next nurse), 49:16-50:8 (testifying

that she does not recall sharing any concerns she had about Rossman).

132 Pearson, 850 F.3d at 540.

133 PrimeCare BIO 18.

instructions.”134 This conclusory argument, without any citations to the record

regarding what Reese did or did not do or know, is insufficient to support a claim of

unconstitutional denial of medical care.

As to Hrabic, once she received the report that Rossman felt a pop in his neck,

she ordered an immediate x-ray. Rossman suggests that Hrabic should have also

gone to his cell and examined him, ordered immediate intervention to immobilize

him, or otherwise taken additional steps to respond to the “obvious sign of spinal

trauma or injury.”135 He further faults Hrabic for leaving the facility after she ordered

the x-ray, but before it was taken.136 Though there are perhaps other things that

Hrabic could have done, “[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.”137

The Court “must ‘disavow any attempt to second-guess the propriety or adequacy of

[the] particular course of treatment’ so long as it ‘remains a question of sound

professional judgment.’”138 Hrabic’s exercise of her judgment may have been

flawed, but that is insufficient to support a claim for an unconstitutional denial of

medical care.

134 PrimeCare BIO 18.

135 PrimeCare BIO 19 (cleaned up).

136 Id.

137 Palakovic, 854 F.3d at 227 (citing Durmer, 991 F.2d at 67).

138 Pearson, 850 F.3d at 538 (quoting Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754,

762 (3d Cir. 1979)).

Therefore, the Court will grant PrimeCare’s Motion as to Counts II and IV.

6. Elizabeth Corl, RN and Kelsey Schmidt, LPN

A reasonable jury could find that Corl and Schmidt acted with deliberate

indifference when they, two hours after an immediate x-ray was ordered, required

Rossman, a week removed from spinal surgery and in excruciating pain following

hearing a pop in his neck, to walk to his wheelchair, walk back into his cell to put

his shoes on unassisted, and then walk back to the wheelchair. Neither nurse assisted

Rossman, put his CTO brace on, or made any other efforts to stabilize his spine.139

The PrimeCare Defendants repeatedly suggest that it was reasonable to believe that

Rossman would not have been discharged if he could not apply and utilize his CTO

brace.140 Even if the Court accepts this argument, at the time that Corl and Schmidt

arrived at his cell to take him to an x-ray, a reasonable jury could find that the

situation had clearly changed. Corl’s and Schmidt’s obdurate response to Rossman’s

clearly emergent condition is precisely what the Constitution forbids.141

Further, after x-rays revealed that the hardware in Rossman’s spine was

displaced, there was still no effort made to stabilize his spine. Instead, Schmidt again

139 See Ivers v. Brentwood Borough Sch. Dist., No. 2:20-CV-1244, 2021 WL 768166 at *4 (W.D.

Pa. Feb. 26, 2021) (observing that the “inherent risk” in the failure to stabilize an individual’s

spine following a potential spine injury is “a matter of common sense”).

140 E.g., PrimeCare Reply 4.

141 The failure of Corl to assist Rossman in putting his CTO brace on at this point is particularly

egregious as she apparently “assumed that medical staff who interacted with [Rossman] would

encourage him, educate him, and assist him with any needs he would have with the brace.”

PrimeCare SMF ¶ 75.

put Rossman back in the wheelchair and then Schmidt and Corl required Rossman

to switch wheelchairs, for which Rossman required their assistance because he could

not move his legs.

In Pearson v. Prison Health Service, the Third Circuit reversed a grant of

summary judgment against a nurse who forced an inmate who was in excruciating

pain and unable to walk to crawl to a wheelchair to receive treatment.142 Though

Rossman was not forced to crawl to the wheelchair, the circumstances here are

sufficiently analogous. Rather than suffering from appendicitis like the plaintiff in

Pearson, Rossman was a week removed from spinal surgery and had symptoms that

bore directly on the reasonableness of forcing him to walk, sit in a wheelchair, switch

wheelchairs, all while making no efforts to stabilize his spine. A reasonable jury

could conclude that the conduct of Schmidt and Corl similarly “violates a

professional standard of care or . . . entails the obduracy and wantonness that is

proscribed by the [Constitution].”143

Therefore, the Court will deny PrimeCare’s Motion on Count I and on Count

III as to Schmidt.

142 850 F.3d at 541.

143 Id.

7. Correctional Officer David Zettle

In his Complaint, Rossman alleges that correctional officers refused his

request for assistance with his CTO brace on at least two occasions.144 Though

Rossman does not remember that Zettle in particular refused his request, video from

Rossman’s cell shows him going to the door of his cell with his CTO brace on

October 17 and 18 during times that Zettle and Correctional Officer Folk were on

duty, then dropping the brace and returning to bed.145

Zettle argues that the purported statements of the previously unidentified COs

who refused to assist Rossman are hearsay and cannot be considered by the Court.146

As a party opponent, statements made by Zettle are not hearsay.147 Zettle’s argument

therefore relies on the premise that Rossman cannot identify Zettle as the individual

on the other side of the door on October 17. The shift logs showing that Zettle was

the CO on duty at that time are sufficient to establish by a preponderance of the

evidence that Rossman was speaking to Zettle at the time. It is of little significance

that Zettle testified during his deposition that he did not remember Rossman ever

asking him for assistance with his CTO brace.148 The viability of Rossman’s claim

144 County BIO 12; see also, e.g., Am. Compl. ¶ 110.

145 PrimeCare RSMF ¶ 1 (citing Video, Doc. 100-2); Oct. 27, 2020 Shift Log, County RSMF Ex.

16, Doc. 107-16.

146 County Reply Section II.1.

147 Fed. R. Evid. 801(d)(2)(A).

148 Zettle Dep., County SMF Ex. J, Doc. 81-10 at 100:25-101-3.

does not depend on the ability of Zettle to remember the underlying interaction years

later.149

Further, Zettle testified that he was told that Rossman was required to always

wear his CTO brace other than when he was in bed.150 This supports the inference

that Zettle was aware of the importance of Rossman wearing the brace and that, by

denying Rossman’s request for assistance with it, Zettle impermissibly denied a

reasonable request for medical care.

Zettle is nevertheless entitled to summary judgment on qualified immunity

grounds unless he violated a right which “was clearly established at the time of [his]

actions.”151 Zettle concedes that the right to medical care for a serious medical need

while incarcerated was clearly established at the time of his incarceration.152 The

inquiry then is, as Zettle notes, whether his conduct was objectively reasonable.

Zettle suggests that “[i]t was objectively reasonable that a corrections officer in [his]

situation not to have understood that [Rossman] needed assistance with his CTO

brace.”153 In support Zettle notes that various witnesses have testified that they

believed Rossman could put the brace on without assistance.154 However, Zettle was

149 Of course, it may be that there is nothing to remember. But, as the non-moving party, Rossman

is entitled to have this inference drawn in his favor.

150 Zettle Dep. 95:18-25.

151 L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 247 (3d Cir. 2016).

152 County BIS 26 (citing Farmer, 511 U.S. 825; Estelle, 429 U.S. at 97).

153 Id. at 27.

154 Id. at 27-28 and record citations therein.

present when Rossman required CO George Murphy’s assistance—and even offered

some assistance himself on that occasion—to put the CTO brace on. Further, at the

core of Rossman’s claim against Zettle is that Rossman personally asked Zettle for

assistance because he could not put the brace on himself.

Zettle also suggests that only medical staff, rather than COs, should have

assisted Rossman with his brace.155 However, this does not relieve Zettle of his

obligation to alert medical staff that Rossman needed assistance.156

Therefore, the Court will deny Centre County’s Motion as to Count IX.

8. Correctional Officer Mark Waite

Rossman argues that CO Mark Waite exhibited deliberate indifference on

October 20, 2020 when he failed to provide medical care after Rossman felt a pop

in his neck and cried out for help.157 Waite called the medical staff whom he

eventually escorted to Rossman’s cell when they responded with a wheelchair two

hours later. As with Rossman’s claim against Nurse Struble, Waite cannot be held

liable for not responding in the intervening two hours because 1) he is entitled to

rely on the judgment of the medical staff158 and 2) courts have routinely held that

155 County BIS at 28.

156 Cf. id.

157 County BIO 15-17.

158 Pearson, 850 F.3d at 539-40.

delaying treatment of even excruciating pain for a few hours is not a constitutional

violation.159

Rossman also claims that Waite exhibited deliberate indifference when he

failed to provide medical care when he arrived at Rossman’s cell with Nurses Corl

and Schmidt.160 Again, Waite is entitled to rely on the judgment of the medical staff,

and there are no allegations or evidence to suggest that Waite delayed the arrival of

the medical staff in any way. Rossman does allege that, when the Nurses did arrive

with the wheelchair, after Rossman walked to the wheelchair Waite ordered him

back into his cell to put his shoes on.161

The Court is persuaded that it is unreasonable to require Rossman to walk to

the wheelchair, then back from his wheelchair to put his shoes on. Doing so did deny

Rossman medical care, if only for a few seconds, but only after care had been

delayed for two hours. Further, Waite only told Rossman to put his shoes on after

the Nurses allowed him to walk to the wheelchair in the first instance. There is

insufficient evidence in the record from which a jury could conclude that Waite knew

his request was unreasonable in light of the circumstances.

Therefore, the Court will grant Centre County’s Motion as to Count VIII.

159 Knepp, 2020 WL 7865401, at *9.

160 County BIO 15-17.

161 Rossman Dep. 233:5-20. For his part, Waite testified that he could not remember telling

Rossman to put his shoes on. Waite Dep., County SMF Ex. I, Doc. 81-9 at 44:16-46:13.

Nevertheless, there is sufficient evidence—the video and Rossman’s testimony—from which

a reasonable jury could conclude that Waite did give the directive.

B. Failure to Intervene

In their briefing on this issue, the PrimeCare Defendants and Rossman discuss

extensively the opinion of my friend and colleague, the Honorable Yvette Kane, in

Thomas v. City of Harrisburg.162 That case involved allegations that a detainee was

denied emergency medical care after he ingested cocaine and was transported to

prison, rather than the hospital. Judge Kane denied a motion to dismiss plaintiff’s

failure to intervene claim, finding that the alleged failure of any defendant officer to

take him to the hospital was sufficient to survive dismissal.

On December 6, 2023, after the parties in this case completed their briefing,

the Third Circuit issued its own opinion in Thomas v. City of Harrisburg, disagreeing

with Judge Kane.163 The Third Circuit held that the defendant officers were entitled

to qualified immunity on the failure to intervene claim as it had not previously

“recognized a constitutional duty to intervene to prevent the violation of the right to

medical care.”164 The court also observed that the right to have a government actor

intervene is limited to cases of excessive force or sexual assault of a person in

custody or detention.165

162 No. 1:20-CV-01178, 2021 WL 4819312 (M.D. Pa. Oct. 15, 2021), aff'd in part, rev'd in part

and remanded sub nom. Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023).

163 88 F.4th 275.

164 Id. at 285 n.55.

165 Id. at 285

Further, as in Thomas, “a claim for failure to intervene would be almost

identical to the underlying claim of failure to render medical care” as it would have

been virtually impossible for any of the Individual Defendants here “to have had

knowledge of an ongoing violation of a right to medical care without themselves

participating in that violation.”166

Therefore, the Court will grant PrimeCare’s and Centre County’s Motions as

to Count X.

C. Failure to Supervise

“‘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.”167 The Third Circuit has established a four part test for

determining whether an official may be held liable on a claim for failure to supervise:

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.168

166 Id. at 285 n.55.

167 Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other

grounds sub nom. Taylor v. Barkes, 575 U.S. 822 (2015) (citation removed).

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

Twp., 269 F.3d 205 (3d Cir.2001)).

PrimeCare argues that Rossman’s failure to supervise claims, brought against

Dr. Camacho, Pelaez, and Hrabic, are duplicative of the Monell claim against

PrimeCare.169 To the extent that Rossman’s claims do not rely on the direct

participation in the alleged constitutional violation by Camacho, Pelaez, and Hrabic,

the Court agrees.170 Further, to the extent that Rossman claims the trio personally

participated in violating his rights, those claims are duplicative of his claims against

them as individuals, discussed above.171 Even if the Court assumes that Camacho,

Pelaez, and Hrabic had a legal obligation to supervise the nursing staff,172 Rossman’s

arguments are insufficient to support a claim that they violated that duty separate

from their own involvement in Rossman’s care.173

Therefore, the Court will grant PrimeCare’s Motion as to Count XI.

D. Monell Liability

The Supreme Court held in Monell v. Department of Social Services of City

of New York that a governmental entity may be held liable under Section 1983 “when

execution of a government’s policy or custom” results in a constitutional injury

169 PrimeCare BIS 28.

170 See infra Section IV.D (discussing Monell claim against PrimeCare); Kentucky v. Graham,

473 U.S. 159, 165-66 (1985) (“Official-capacity suits . . . generally represent only another way

of pleading an action against an entity of which an officer is an agent.”).

171 Cf. PrimeCare BIO 25 (asserting that Rossman has “provided ample evidence to show that

Camacho, Pelaez, and Hrabic participated in violating” his rights and noting that the nature of

the violation is set out in his discussion of his denial of adequate medical care claims).

172 There is some support for this argument. E.g., Billops v. Sandoval, 401 F. Supp. 2d 766, 774

(S.D. Tex. 2005).

173 See generally PrimeCare BIO 15-21.

inflicted by its employees or agents.174 The Third Circuit has “reiterated [that] a §

1983 claim against a municipality may proceed in two ways: (1) A plaintiff may put

forth an unconstitutional policy or custom of the municipality that led to his or her

injuries; or (2) that [the injuries] were caused by a failure or inadequacy by the

municipality that reflects a deliberate or conscious choice.”175 A plaintiff

complaining of an unconstitutional policy or custom must point to an official policy

established by a decisionmaker with the authority to do so or a course of conduct so

well-settled and permanent as to virtually constitute law.176 Alternatively, a plaintiff

proceeding under the latter theory “has the separate, but equally demanding

requirement of demonstrating a failure or inadequacy amounting

to deliberate indifference on the part of the municipality.”177

Ordinarily, to establish deliberate indifference on the part of a governmental

entity a plaintiff must show that the entity had been put on notice of its failure by a

pattern of prior constitutional violations.178 Without notice that a course of training

is deficient in a particular respect, decisionmakers can hardly be said to have

174 436 U.S. 658, 694 (1978).

175 Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citing Estate of Roman v. City of Newark,

914 F.3d 789, 798–99 (3d Cir. 2019); Monell, 436 U.S. at 694; Brown v. Muhlenberg Twp.,

269 F.3d 205, 215 (3d Cir. 2001)) (internal citations and quotations removed, punctuation

modified, and numbering added).

176 Id. at 105-106 (citing Roman, 914 F.3d at 798; Reitz v. County of Bucks, 125 F.3d 139, 145 (3d

Cir. 1997)).

177 Id. at 106 (citing Roman, 914 F.3d at 798).

178 Thomas v. Cumberland County, 749 F.3d 217, 223 (3d Cir. 2014) (citing Connick v.

Thompson, 563 U.S. 51, 62 (2011)).

deliberately chosen a course of action that will cause violations of constitutional

rights.”179 In “single-incident” cases—cases without evidence of prior constitutional

violations—a plaintiff faces a high burden to show that the suffered violation was a

highly predictable consequence of a situation that policy makers “know to a moral

certainty” that is likely to occur.180 “Liability in single-incident cases depends on

‘the likelihood that the situation will recur and the predictability that an officer

lacking specific tools to handle that situation will violate citizens' rights.’”181

A Monell defendant may be held liable even where its officers are not unless

such a finding would create an inconsistent ruling.182 Situations where the Monell

defendant may cause constitutional harm without any individual defendant violating

the plaintiff’s rights include those “where the combined actions of multiple officials

or employees may give rise to a constitutional violation, supporting

municipal liability, but where no one individual's actions are sufficient to establish

personal liability for the violation.”183

A private entity acting under color of state law is subject to Monell liability.

Further, the obligation of the government to provide medical care to those in the

179 Id. (quoting Connick, 563 U.S. at 62).

180 Id. (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10); accord Natale, 318 F.3d

at 584-85.

181 Id. at 223-224 (quoting Bryan Cnty, 520 U.S. at 409).

182 Mervilus v. Union County, 73 F.4th 185, 196 (3d Cir. 2023) (citing Thomas v. Cook Cnty.

Sheriff's Dep't, 604 F.3d 293, 305 (7th Cir. 2010)).

183 Id. (quoting Speer v. City of Wynne, 276 F.3d 980, 985–86 (8th Cir. 2002)).

custody of its jails is non-delegable.184 There is no “difference of constitutional

import” between a government’s obligation to supervise government employed staff

and the obligation to supervise private, third-party providers contracted to provide

medical care.185 Therefore, “the policy of the private entity becomes the policy of

the government.”186

Rossman brings separate Monell claims against PrimeCare and Centre

County. To the extent that Rossman brings distinct claims against each Defendant,

the Court will address them separately. Where the claims overlap, or Rossman seeks

to hold Centre County liable for PrimeCare’s allegedly deficient policies, the Court

will analyze them together.

1. Underlying Constitutional Violations

Both PrimeCare and Centre County argue that Rossman’s Monell claim fails

because there is no underlying constitutional violation.187 As the Court has found

that a reasonable jury could conclude that Lose, Corl, Schmidt, and Zettle were

184 Johnson v. Stempler, 373 F. App’x 151, 154 (3d Cir. 2010) (citing Ancata v. Prison Health

Services, Inc., 769 F.2d 700, 705–06 (11th Cir.1985)).

185 Barkes, 766 F.3d at 326-27.

186 Black v. Allegheny Cnty., No. 2:13-CV-0179, 2014 WL 5493811 at *10 (W.D. Pa. Oct. 30,

2014). See also Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006) (observing that

an individual’s conduct implements official policy when that individual has been delegated the

authority to act for the government); accord Kelly v. Borough of Carlisle, 622 F.3d 248, 264

(3d Cir. 2010). The Health Services Agreement makes clear that the County is delegating to

PrimeCare the “responsibility [to] provid[e] comprehensive health care services for all persons

committed to the care, custody, and control of the Centre County Correctional Facility.”

County SMF Ex. W at 1.

187 PrimeCare BIS 31.

deliberately indifferent to Rossman’s need for medical care, Defendants are not

entitled to summary judgment for want of a constitutional violation.

Further, a reasonable jury could also find that the medical care Rossman

received from the PrimeCare staff was far less than the sum of its parts and amounted

to deliberate indifference. The only medical professionals involved in Rossman’s

care on more than one occasion in his five-day stay at CCCF are Corl and, to the

extent that requesting the x-ray then leaving the facility constitutes involvement,

Hrabic. PrimeCare cannot divide and conquer its constitutional obligation simply by

spreading it across a dozen individuals, then plead ignorance regarding the condition

of the individuals in its care. By the time Hrabic evaluated Rossman on October 20,

2020 and told him to alert staff of any worsening symptoms, Rossman had already

done so on at least two separate occasions.188 A reasonable jury could find that Corl

knew that Rossman could not put his brace on. Notes by PrimeCare staff, let alone

Rossman’s discharge instructions, were ignored or unavailable to other medical

staff. Even if most of the individuals on the medical staff may have been ignorant of

Rossman’s symptoms and struggles with his CTO brace, collectively PrimeCare had

all the information it needed to recognize Rossman’s deteriorating condition in the

days leading up to his becoming paralyzed.

188 PrimeCare Records, PrimeCare SMF Ex. A at PCM 00255, 00343. See also discussion of Lose,

Struble, and Pelaez supra Sections IV.A.3-4.

A reasonable jury could also find that the unidentified COs who refused to

help Rossman with his CTO brace on October 15 and 16 similarly exhibited

deliberate indifference. It is undisputed that those COs refused to assist Rossman

due to liability concerns and that it was necessary that Rossman wear his brace when

out of bed.189 Liability concerns are not a valid reason to deny medical care.190

2. Defendants’ Policies and Customs

In his oppositions to Defendants’ Motions, Rossman alleges that PrimeCare’s

and Centre County’s policies are nonexistent or deficient in several respects which

broadly fall into four categories: (1) nonexistent or inadequate policies and

procedures to determine whether the facility has the means to provide the necessary

care; (2) nonexistent or inadequate policies and procedures to ensure that hospital

discharge instructions are implemented; (3) nonexistent or inadequate policies for

informing medical and non-medical staff of serious medical conditions and needs;

and (4) nonexistent or inadequate training for medical and non-medical staff

regarding spinal trauma.191 The Court addresses each in turn.

i. Medical Intake and Commitment

Rossman alleges that PrimeCare does not have a policy requiring a review of

a patient’s medical records prior to committing an individual arriving directly form

189 County SMF and RSMF ¶¶ 308, 316.

190 Such a denial of care could fall into any of the four circumstances in which the Third Circuit

has previously found deliberate indifference. Pearson, 850 F.3d at 538.

191 PrimeCare BIO 27-28; County BIO 20-24.

a hospital.192 He further alleges that Centre County failed to establish policies which

(1) require a thorough review of a potential commitment that presents with a serious

medical condition, namely spinal trauma; (2) allow for a determination whether the

facility has the means to care for an individual arriving in such a condition; and (3)

prevent the admission of an individual if such care cannot be provided.193

For its part, Centre County argues that it does have such a policy—it relies on

the PrimeCare medical staff to make this determination.194 This is not a policy. It is

a delegation of the obligation to institute such a policy to PrimeCare.

Describing the intake procedure, PrimeCare cites Kristina Varner’s

deposition:

[T]he nurses for the intake process, as long as there was nothing

concerning about the patient, then they were able to make the decision

whether the payment stayed or if the patient would need to have

medical clearance or something like that. Now they would also have to

contact the doctor just to run through medications, make sure that

everything would be accommodated that they were already taking, stuff

like that. Any patient in question, they would need to call me just to

confirm.195

Varner also testified that CCCF was capable of handling “almost every person

that would ever come in” and that she “never fully rejected an inmate,” though she

192 PrimeCare BIO 27.

193 County BIO 20-21.

194 County Reply 17-18.

195 Varner Dep., County SMF Ex. O, Doc. 81-15 at 21:4-13; see also PrimeCare SMF ¶¶ 69-70

(citing Varner’s deposition).

would send inmates “to the hospital for medical clearance” if necessary.196 However,

there is no evidence in the record regarding how, or according to which standards, if

any, these decisions are made.

The Court is also unpersuaded by Defendants’ arguments that UPMC Altoona

discharging Rossman with the knowledge that there was a warrant for his arrest

necessarily cleared him for commitment at CCCF. It is CCCF who accepts

responsibility for the care of those committed to the facility, not UPMC. It is

PrimeCare who is familiar with capacity of the specific facility and its staff to

provide that care, not UPMC.197

Defendants also make too much of Rossman’s discharge documents

acknowledging that his likely disposition was jail. The Defendants’ argument

assumes that those responsible for Rossman’s discharge at UPMC Altoona were

aware to which jail Rossman was being discharged and the capabilities of that jail to

accommodate Rossman’s needs. There is no evidence in the record that this is the

case.198 Further, the Defendants’ argument that, even if Rossman had been sent to

the hospital for clearance, he would have simply been sent back again is both

speculative and assumes the staff at the hospital would have been completely

196 Varner Dep. 25:2-9.

197 See PrimeCare RSMF ¶ 38 (discussing Dr. Burke’s testimony regarding patients who are

discharged to jail, including the nature of the care that is available and provided by the jail).

198 Nor is there any evidence that Varner, or anybody else, relied on UPMC’s note that Rossman

was likely to end up in jail in making its determination. The Court therefore only considers it

to the extent that it is offered as evidence that it was reasonable for CCCF itself to commit him.

incurious as to why Rossman was there. Defendants’ argument conjures an image of

individuals with serious medical conditions being carted around between prison and

hospital with no communication regarding what the prison’s or hospital’s concerns

are. The Court also notes that, if an individual is sent to a hospital for clearance,

CCCF policy provides that they are sent to Mount Nittany Medical Center, not

UPMC Altoona. Perhaps, as Centre County suggests, Mount Nittany would have

simply rubberstamped Rossman’s commitment at CCCF just as Defendants say

UPMC did.199 However, it is not a foregone conclusion as Mount Nittany is

presumably more familiar with CCCF’s facilities and capabilities.

Defendants also argue that they are under no obligation to “conduct research

into [Rossman’s] medical history” and that, even if CCCF’s policies were not “the

best,” they do not rise to the level of deliberate indifference.200 The cases Defendants

rely on in support are inapposite. Rossman’s claims do not rest on a failure by CCCF

to “gather[] and review[] all of [his] past medical records”201 or review his legal

records for upcoming “high risk” court hearings which may increase the chance he

would commit suicide.202 There was no need to conduct additional research into

199 County Reply 17.

200 Id. at 18-19; PrimeCare Reply 8-9.

201 Cf. Cohen v. Kids Peace Nat. Ctrs., Inc., 256 F. App’x 490, 492 (3d Cir. 2007) (emphasis

added) (cited by County Reply at 19; McDonald-Witherspoon v. City of Philadelphia, 481 F.

Supp. 3d 424, 445-446 (E.D. Pa. 2020)).

202 PrimeCare Reply 8-9 (discussing Alexander v. Monroe Cnty., No. 3:13-CV-01758, 2016 WL

6953477 (M.D. Pa. Sept. 7, 2016)).

Rossman’s medical or legal history; his discharge instructions had already been

provided to CCCF and Defendants cannot simply ignore information they already

have in their possession.

Nevertheless, Rossman’s claim here fails for a more basic reason—causation.

It is not enough to identify a deficient policy; it must also have “caused the

constitutional violation . . . allege[d].”203 Rossman claims that it was the failure to

adhere to his discharge instructions, namely that he always wear the CTO brace

when not in bed, that caused the failure of the surgically inserted hardware and

resulting paralysis.204 Rossman argues that PrimeCare and CCCF staff should have

helped him with his brace and made other adjustments so that he could have abided

by his discharge instructions. He does not, however, argue that CCCF staff was

incapable of doing these things. On the contrary, he faults various COs for not

helping him with his CTO brace and elicited testimony that staff could have done so

or, at a minimum, sought assistance from the medical staff.205 Dr. Behm also agreed

that it was acceptable for Rossman to be discharged to jail provided there was

someone who could help him with the CTO brace.

Ultimately, the accommodations that Rossman required were quite basic and

there is nothing in the record that suggests CCCF could not provide them.

203 Natale, 318 F.3d at 584 (citing Bryan County, 520 U.S. 397, 404 (1997)).

204 E.g., Report of Dr. Taha, PrimeCare RSMF Ex. 3, Doc. 100-4 at 2.

205 County SMF and RSMF ¶ 127.

ii. Policies Regarding Implementation of Discharge

Instructions

Rossman argues that Defendants do not have policies requiring the review and

implementation of discharge instructions of a detainee arriving directly from a

hospital or the communication of those instructions to all medical and non-medical

personnel.206 In particular, he alleges that the County’s policies and training “were

not adequate to treat an individual with spinal trauma who was discharged from the

hospital with specific discharge instructions.”207

PrimeCare has relatively little to say in defense of its policies and procedures:

The policies and procedures for the provision of medical care all

conform to national accreditation standards. Plaintiff had access to

medical professionals multiple occasions per day. He was evaluated by

a physician's assistant, had x-rays ordered and was scheduled for his

neurosurgical follow up appointment. At no time did anyone refuse to

provide assistance to Plaintiff. Plaintiff was discharged from the

hospital to prison.208

Notably absent from the above paragraph, which represents the entirety of

PrimeCare’s argument in its opening brief that its policies and procedures are not

deficient, are any citations to the record. There is no description of the policies and

procedures in place, let alone any proof that they conform to any accreditation

standards. The nature of Rossman’s access to medical care is a hotly contested issue.

Indeed, Rossman was only evaluated by a physician’s assistant who told him to alert

206 PrimeCare BIO 27; County BIO 21.

207 County BIO 22.

208 PrimeCare BIS 31-32.

staff of worsening symptoms after he had already done so on multiple occasions. As

discussed above, the circumstances surrounding Rossman’s x-ray are hardly

evidence of suitable policies. Rossman asked for and was refused assistance with his

CTO brace on multiple occasions. That Rossman was discharged from the hospital

to prison is irrelevant.

In its reply brief, PrimeCare does little to fill these gaps and misconstrues

Rossman’s position, suggesting that he claims only “that he should not have been

accepted to the prison.”209 Whether CCCF had the ability to care for Rossman, and

was therefore justified in admitting him, is an issue distinct from whether there were

sufficient procedures in place to ensure that care would in fact be provided. As to

the latter issue, at best it appears that PrimeCare simply operated on the assumption

that someone would provide the required care.210

Centre County stresses CCCF policies required medical services were

available to Rossman twenty-four hours a day and suggests that it is Rossman

himself who is to blame for not availing himself of those services.211 The County

209 PrimeCare Reply 7. PrimeCare does also say that Rossman “also claims that the policies and

procedures were deficient and needs improvements.” Id. This says nothing about what policies

and procedures Rossman claims are deficient and, read in the context of PrimeCare’s argument,

appear to refer only to the policies and procedures related to his admission.

210 E.g., PrimeCare SMF ¶ 54 (noting that it was “assumed” that Rossman could apply and

removed the CTO brace since he was being discharged from the hospital); ¶ 75 (“Nurse Corl

assumed that medical staff who interacted with Plaintiff would encourage him, educate him,

and assist him with any needs he would have with the brace.”); ¶ 82 (Corl assumed Rossman

could use the brace).

211 County Reply 19-20.

further argues that “it was the responsibility of the medical staff to ensure that

[Rossman’s] discharge instructions were adhered to.”212 In support of this purported

delegation of responsibility, the County notes that “the October 15, 2020 email sent

by Nurse Corl to the medical and corrections staff did not provide specific

instructions to the corrections staff on how to follow through with Plaintiff’s

discharge instructions.”213

It is hardly clear from the record before the Court that there was an appropriate

mechanism for which Rossman could have requested and received the required

assistance with his CTO brace. Though Rossman did not submit any sick call slips,

a reasonable jury could find that process, in which the submitted slips were not

reviewed until the evening and action might not be taken for days, is not an

appropriate mechanism for requesting assistance for a more immediate need such as

donning the CTO brace. Further, while Rossman may not have asked every person

he encountered at CCCF for assistance, the record shows that on the occasions he

did make such a request he waited hours for help if it came at all.214

212 Id. 19.

213 Id.

214 Defendants certainly may ask Rossman at trial why he did not make additional requests for

help and a jury may consider his and other witnesses’ credibility as well as weigh the evidence

presented by the parties and ultimately conclude that his failure to do so limits or precludes

Defendants’ liability. But the Court must view the record in the light most favorable to

Rossman, and a reasonable jury could conclude that Rossman is not required to repeatedly

make requests after they have been denied on several occasions.

Accompanied only by correctional officers, who do not administer health care

beyond emergency first aid, Rossman was forced to walk to the shower and to his

appointments with the medical staff without wearing the CTO brace as required by

his discharge instructions. Defendants have not identified any procedure through

which either correctional officers would be instructed how to provide the required

assistance or medical staff would be made available to assist Rossman as needed in

the ordinary course of the day.215 A reasonable jury could conclude that Defendants

failure to establish a policy to address immediate, non-emergency medical needs of

inmates with serious medical conditions is a “‘particularly glaring omission’ in a

program of medical care” and “creates a risk that is sufficiently obvious as to

constitute the deliberate indifference to those inmates’ medical needs.”216 Viewing

the record in the light most favorable to Rossman, Defendants disregarded an

obvious risk, that the failure to provide certain inmates—i.e., those who have

recently undergone surgery—timely medical care could result in serious

complications.

215 That Rossman was required to walk to his appointment with Hrabic before he could get

assistance with his CTO brace appears to be a particularly glaring example of a gap in CCCF

policies and procedures.

216 See Natale, 318 F.3d at 585 (quoting Bryan County, 520 U.S. at 410-11) (finding that the

failure to establish a policy to address the immediate medication needs of inmates with serious

medical conditions creates a risk that is sufficiently obvious).

iii. Policies for Informing Staff of Medical Needs

Rossman’s arguments regarding Defendants’ policies regarding the sharing of

medical information relate to how the information is shared among the medical staff

and how it is shared with non-medical staff. As to the sharing of information among

the medical staff, Rossman asserts that there is no policy for (1) providing on-call

providers access to medical records; (2) requiring on-call providers to review critical

medical information; and (3) requiring critical information regarding a patient’s

medical condition be relayed to and between medical personnel.217

PrimeCare has not advanced any argument regarding its policies, or lack

thereof, for the sharing of information either among the medical staff or with

corrections officers. Centre County again notes that Rossman “admits the October

15, 2020 email sent by Nurse Corl to the medical and corrections staff did not

provide specific instructions to the correction staff on how to follow through with

[Rossman’s] discharge instructions.”218 Further, even if the email did provide

specific instructions, Centre County has also taken the position that the COs who

received the email did not in fact receive any information regarding Rossman’s

medical condition.219

217 PrimeCare BIO 27-28.

218 County Reply 19.

219 E.g., County SMF and RSMF ¶ 232 (asserting that CO Murphy, who received the email, “did

not receive any medical documents” related to Rossman), ¶ 252 (asserting that CO Waite “was

not aware [Rossman] had medical orders stating that he must always have is CTO brace on

Nevertheless, the Court finds that that the procedural inadequacies identified

by Rossman are insufficient to support a “single incident” Monell claim of deliberate

indifference. There is insufficient evidence from which a reasonable jury could

conclude that the procedures for sharing information among the medical staff—

putting notes in Rossman’s files or sharing information over the phone with the on-

call providers—meaningfully deviate from generally accepted practices in the health

care industry, let alone that they created an obvious risk of constitutional injuries.

As to the sharing of information with correctional staff, the Court is skeptical

that reliance on emails which nobody seems to read and that only contain less than

specific details is an effective means to communicate important information

regarding the medical status of detainees. Even so, such a deficiency is insufficient

to support a single incident deliberate indifference claim. This situation does not

present the sort of “difficult choice” that Centre County would have necessarily

known its correctional officers would face.220 The obligation to provide medical care

is well established and should be sufficiently obvious to any correctional officer,

even in the absence of specific directives to do so for individuals such as Rossman.

Therefore, in the absence of a pattern of correctional officers refusing to provide

other than [when in] bed”), ¶¶ 282-86 (asserting that the email simply informed staff that

Rossman had a c-collar and CTO brace, but provided no further information).

220 Carter v. City of Philadelphia, 181 F.3d 339, 356 (3d Cir. 1999).

such care (either themselves or by summoning the medical staff), Centre County

cannot be said to have been on notice of an inadequate policy.

iv. Lack of Training

Rossman argues that PrimeCare failed to train its medical staff to “perform

medical evaluations, diagnosis, care, and treatment for individuals with spinal

trauma.”221 He further argues that Defendants collectively failed to train staff to

recognize possible spinal trauma or how to properly “handle a potential spinal

trauma to prevent further spinal damage.”222

Again, PrimeCare does not argue that it has in fact sufficiently trained its staff

nor does Rossman offer any evidence of prior incidents which would have put

Defendants on notice that the staff were not sufficiently trained. Centre County also

fails to address Rossman’s argument on this issue beyond its stance that such issues

fall within the purview of the medical staff only.

There is sufficient record evidence from which a reasonable jury could

conclude that medical staff was insufficiently trained to evaluate and treat back

trauma. Hrabic’s (self-serving) suggestion that a patient who has suffered a spinal

trauma is properly immobilized if they are transported in a wheelchair223 defies

221 PrimeCare BIO 28.

222 Id.; County BIO 24.

223 Hrabic Dep. 50:12-54:10.

common sense.224 As does Corl’s and Schmidt’s decision to do just that. Dr.

Camacho also testified that she had no professional familiarity with CTO braces.225

The need for medical staff at a jail to be trained to evaluate and treat spinal

trauma is sufficiently obvious to support a single incident deliberate indifference

claim. There are countless Eighth Amendment cases which include allegations

224 Ivers, 2021 768166, at *4.

225 See Camacho Dep. 45:12-46:12 (testifying that her only experience with a CTO brace came

from helping her mother-in-law following back surgery).

related to the denial of care for serious back issues.226 PrimeCare itself has been a

party to several such cases.227

226 A reasonably targeted Westlaw search turns up hundreds of such cases within the Third Circuit.

E.g., Trainor v. Wellpath, No. 1:20-CV-00225-RAL, 2023 WL 2603196 (W.D. Pa. Mar. 22,

2023) (plaintiff claims improper treatment of back pain led to permanent nerve damage);

Garrett v. Naji, No. 3:14-CV-00031, 2022 WL 16733618 (W.D. Pa. Aug. 24, 2022), report

and recommendation adopted, No. 3:14-CV-31, 2022 WL 5119838 (W.D. Pa. Oct. 5, 2022)

(denying summary judgment where plaintiff suffering from back pain claimed that prison

doctor denied access to a walker); Millhouse v. United States, No. 1:19-CV-00665, 2021 WL

2412930 (M.D. Pa. June 14, 2021) (plaintiff brought claims that he was denied medical care

following a back surgery); Perez v. Chester CI, No. 20-CV-4562, 2021 WL 1962928 (E.D. Pa.

May 17, 2021) (denying motion to dismiss where plaintiff alleged that prison officials

needlessly “multiplied” back pain during transportation to and from hospital); Green v.

Ferdarko, No. CV 15-45, 2017 WL 9285187 (W.D. Pa. Dec. 6, 2017), report and

recommendation adopted, No. CV 15-45, 2018 WL 2009087 (W.D. Pa. Apr. 30, 2018)

(plaintiff claimed he suffered from permanent neurologic symptoms resulting from delayed

treatment of back injury); Jamison v. Dwyer, No. CV 16-9512 (JMV), 2017 WL 2290827

(D.N.J. May 25, 2017) (plaintiff claims failure to treat back pain resulted in permanent

disability); West v. Roberson, No. 1:12-CV-1564, 2013 WL 2126338 (M.D. Pa. Apr. 19,

2013), report and recommendation adopted sub nom. West v. Cnty. of York, No. 1:12-CV-

1564, 2013 WL 2126027 (M.D. Pa. May 15, 2013) (plaintiff brought claims of denial of care

for back injury suffered after falling down stairs at jail); Gayle v. Lamont, No. CIV.A. 09-1290,

2013 WL 102660 (E.D. Pa. Jan. 9, 2013) (plaintiff’s claims that he was denied treatment for

back pain which prevented him from standing and bathing); Mueller v. Ctr. Cnty., No. CIV.A.

3:CV-09-1880, 2009 WL 4912305 (M.D. Pa. Nov. 23, 2009) (plaintiff brought claims for

denial of care for fractured vertebrae suffered while incarcerated); Spruill v. Gillis, 372 F.3d

218 (3d Cir. 2004) (reversing dismissal of plaintiff’s claims that lack of proper medical care

for back injury subjected him to risks of permanent disability or a fatal or serious injury).

227 E.g., Caiby v. Haidle, No. 3:18-CV-1120, 2022 WL 17741689 (M.D. Pa. Dec. 16, 2022)

(granting PrimeCare motion to dismiss for failure to state Monell claim); Weston v. Lensbower,

No. 1:19-CV-1212, 2020 WL 3830922 (M.D. Pa. July 8, 2020) (granting PrimeCare motion to

dismiss where plaintiff failed to allege deliberate indifference to back pain after his back “gave

out”); Whitenight v. Elbel, No. 2:16-CV-00646, 2019 WL 6828653 (W.D. Pa. Dec. 13, 2019)

(granting summary judgment in favor of PrimeCare on basis that plaintiff had received care

for back injury); Cowher v. Pike Cnty. Corr. Facility, No. 3:16-CV-02259, 2019 WL 3302415

(M.D. Pa. July 23, 2019) (granting PrimeCare motion for summary judgment where plaintiff

received treatment for back pain); Johnson v. PrimeCare Med., No. 18-CV-4651, 2019 WL

3063505 (E.D. Pa. July 11, 2019) (granting PrimeCare motion to dismiss where plaintiff failed

to allege deliberate indifference to back pain); Jubilee v. Berdanier, No. 1:18-CV-52, 2019

WL 314719 (M.D. Pa. Jan. 24, 2019) (granting PrimeCare motion to dismiss where complaint

provided that plaintiff had received medical care for back injuries on multiple occasions);

Guerrisi v. Berks Cnty. Jail Sys., No. CV 18-1530, 2018 WL 1831410 (E.D. Pa. Apr. 16, 2018)

(granting PrimeCare motion to dismiss claims of denial of treatment for back pain where

PrimeCare’s strongest argument, if it had made one, might have been that the

need for medical staff to recognize and treat spinal injuries is too obvious, and that

PrimeCare could reasonably anticipate that its medical staff—who receive extensive

medical training and are subject to certain licensing requirements—possessed this

knowledge without additional formal training. In Connick v. Thompson, the Supreme

Court held that “Canton’s hypothesized single-incident liability does not, as a legal

matter, encompass failure to train prosecutors in their Brady obligation.”228 The

Court reasoned that, even in the absence of formal training, prosecutors are

“ethically bound to know what Brady entails and to perform legal research when

they are uncertain” and that attorneys are “equipped with the tools to find, interpret,

and apply legal principles.”229

plaintiff failed to plead Monell claim and did not name any individual defendants); Collins v.

Derose, No. 3:CV-14-2425, 2016 WL 525475 (M.D. Pa. Feb. 8, 2016) (granting PrimeCare

motion to dismiss where plaintiff failed to allege deliberate indifference); Boynes v. Cnty. of

Lawrence, No. CV 15-139, 2015 WL 8992556 (W.D. Pa. Dec. 16, 2015) (denying PrimeCare

motion to dismiss for failure to treat back pain); Torres v. Derose, No. 4:CV-15-1656, 2015

WL 6735906 (M.D. Pa. Nov. 4, 2015) (granting PrimeCare motion to dismiss claim for failure

to treat back pain that was no more than attempt to impose respondeat superior liability); Bond

v. PrimeCare Med., No. CIV.A. 11-1046, 2011 WL 3204763 (E.D. Pa. July 27, 2011) (granting

PrimeCare motion to dismiss claim for failure to treat back pain where plaintiff did not plead

deliberate indifference); Zimmerman v. Berdanier, No. 4:07-CV-0818, 2008 WL 11503563

(M.D. Pa. Oct. 22, 2008) (granting PrimeCare motion to dismiss for failure to plead Monell

claim, but denying motion as to individual defendants).

The Court is mindful that the existence of these cases and their underlying allegations is not

proof of an epidemic of mistreated back injuries in correctional facilities within the Third

Circuit. The Court merely notes that such injuries are commonplace and that the need to train

medical staff accordingly is sufficiently obvious.

228 563 U.S. at 68.

229 Id. at 67, 70.

This Court is not aware of any precedent which applies the Supreme Court’s

holding in Connick to medical professionals. One obvious distinction is that medical

professionals will not always have the time to perform research or “find” the correct

procedure for certain maladies. On the other hand, doctors are subject to similar

ethical obligations and more extensive educational requirements. However, even if

this Court were to hold that PrimeCare could reasonably rely on the credentials of

certain of its medical professionals, this would not necessarily apply to the nurses

that make up much of its staff.230

As to the non-medical staff, the Court notes that even those who are tasked

with performing emergency first aid should be aware of the basics regarding

stabilizing an individual suffering from a spinal injury until medical professionals

arrive. However, here the only non-medical staff to observe Rossman in such a

situation was Waite who, as the Court discussed above, was entitled to rely on the

judgment of the medical professionals who were present. To the extent that Rossman

argues that non-medical staff should have received more extensive training

regarding back injuries, i.e., the ability to recognize worsening symptoms, the Court

230 See Pearson, 850 F.3d at 540 n.4 (holding that nurses are entitled to rely on the medical

judgment of doctors). Applying this reasoning here, PrimeCare is less justified in relying on

the credentials of its nursing staff. Extending the Connick analogy, nurses would be akin to

paralegals in the prosecutor’s office, who, to the extent that they can violate Brady obligations,

would require relevant training. At a minimum, prosecutors would be responsible for

supervising those paralegals and a failure to do so could support a Monell claim. Rossman has

brought such claims against the medical providers here, and the Court held they were

duplicative of his Monell claims.

is unpersuaded that such a claim could survive without, at a minimum, evidence of

prior related violations.

E. State Law Claims

PrimeCare has not requested summary judgment on Rossman’s state law

claims. Instead, PrimeCare simply requests that the Court decline to exercise

jurisdiction over those claims if it dismisses Rossman’s constitutional claims. As the

Court has not dismissed “all claims over which it has original jurisdiction,” it will

retain jurisdiction over Rossman’s state law claims.231 For the avoidance of doubt,

the Court clarifies that this includes the state law claims against the Defendants for

whom the Court has dismissed Rossman’s constitutional claims. It would make little

sense to require Rossman and two groups of Defendants represented by common

counsel to litigate those questions in two separate forums.

The Court also notes that Rossman opted not to defend his constitutional

claims against Defendants Hugar and Weaver from summary judgment.232 In light

of that choice, it seems likely that he similarly does not intend to pursue his state law

claims against those Defendants. The Court will not sua sponte issue a judgment in

favor of Hugar and Weaver on those claims as it is theoretically possible that the

state law claims remain viable but respectfully encourages Rossman to dismiss those

claims if he does not intend to prosecute them further.

231 28 U.S.C. § 1367(c)(3).

232 Supra n.102

V. CONCLUSION

For the foregoing reasons, PrimeCare’s and Centre County’s Motions for

Summary Judgment are each granted in part and denied in part. PrimeCare’s Motion

is granted as to Count II, Count III as to Hugar and Weaver, Counts IV-VII, and

Counts X-XI. It is denied as to Count I, Count III as to Schmidt and Lose, and Count

XIII.233 PrimeCare’s request that the Court dismiss Counts XIV-XVI for lack of

jurisdiction is denied as moot. Centre County’s Motion is granted as to Counts VIII

and X. It is denied as to Counts IX and XII. All claims against unidentified

individuals are also dismissed.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

233 Accordingly, Defendants’ motion to dismiss Rossman’s claim for punitive damages is also

denied. See Redclift v. Schuylkill Cnty., No. 4:21-CV-1866, 2022 WL 3951356 (M.D. Pa. Aug.

31, 2022) (holding that where a plaintiff has alleged a deliberate indifference claim, he has also

plead a claim for punitive damages); accord Thomas v. Luzerne Cnty. Corr. Facility, 310 F.

Supp. 2d 718 (M.D. Pa. 2004).