Opinion
Civ. No. 02-2807 (DRD).
September 16, 2004
Agustin Garcia, #428336/SBI822642B, New Jersey State Prison, Trenton, NJ, Plaintiff Pro Se.
Esther Suarez, Esq., County Counsel, by Ian C. Doris, Esq. Assistant County Counsel, Hackensack, NJ, Attorney for Defendants County of Bergen; Bergen County Jail, Dr. Kenneth Conte; Warden John Duffy; and Sheriff's Officer Jerome Onembo.
Stephen E. Siegrist, Esq., MURPHY O'CONNOR, Cherry Hill, NJ, Attorney for Defendant Dr. Richard Grady.
Michael J. Palma, Esq., NOWELL AMOROSO KLEIN BIERMAN, P.A., Hackensack, NJ, Attorney for Defendant Sheriff Joseph Ciccone.
OPINION
Plaintiff Augustin Garcia, currently serving a sentence for murder in the New Jersey prison system, has asserted civil rights claims under 42 U.S.C. § 1983 against several Defendants arising from the time he spent awaiting trial and sentencing in the Bergen County Jail ("BCJ"). All the Defendants, by way of three motions, have now moved for summary judgment on Plaintiff's claims. The three motions have been made by (1) Defendants County of Bergen, Bergen County Jail, Dr. Kenneth Conte, Warden John Duffy, and Sheriff's Officer Jerome Onembo (collectively the "County Defendants"); (2) Defendant Sheriff Joseph Ciccone; and (3) Defendant Dr. Richard Grady. Because the record does not contain sufficient facts to support any of Plaintiff's federal civil rights causes of action, the motions for summary judgment will be granted. Although Plaintiff does not appear to have asserted any claims under state law, Defendants' motions include some arguments directed at state law claims. To the extent that such claims are asserted, they will be dismissed for lack of subject matter jurisdiction in the exercise of the Court's discretion under 28 U.S.C. § 1367.
BACKGROUND
A combined reading of Plaintiff's Complaint (dated May 17, 2002 and filed August 21, 2002) and his Amended Complaint (dated December 17, 2002 and filed December 20, 2002) reveals the following federal civil rights claims: (1) a claim that Defendants failed to protect him from an attack by a cellmate, Donald Mayfield, on or about August 7, 2000; (2) a claim that he received constitutionally inadequate medical care in that Defendants failed to diagnose and/or treat several conditions; (3) a claim that conditions of confinement at BCJ were below constitutional standards in that (I) the conditions violate health codes and (ii) inmates and detainees were subjected to a prolonged "lockdown" that placed unconstitutional restrictions on activities outside their cells. Plaintiff and Defendants appear to have operated (at least for the most part) on the assumption that the claims are governed by Eighth Amendment's ban on cruel and unusual punishment, applicable to prisoners who have been sentenced, rather than by the Due Process Clause, which governs constitutional claims by detainees who have not yet been sentenced. In fact almost the entire period in which Plaintiff's claims allegedly arose was prior to his sentencing. (Plaintiff was held in BCJ from September 27, 1999 through February 7, 2002. He was convicted October 22, 2001 and sentenced February 1, 2002.) Accordingly, the Due Process Clause provides the proper basis for his claims. See Bell v. Wolfish, 441 U.S. 520 (1979); Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir. 2000); Boring v. Kozakiewicz, 833 F.2d 468, 471-74 (3d Cir. 1987).
Plaintiff's medical care claims are of course focused on the physician Defendants, and his other claims are directed at the other Defendants, although it is not always clear which Defendants are accused of what conduct. Except where distinction would be helpful, the following opinion discusses claims against and arguments for "Defendants" generally: because Plaintiff has not pointed to facts that would show any constitutional violation by any Defendant, there is no need to address in detail the personal involvement of any Defendant in the alleged conduct.
In some instances language in the parties submissions could be read as a tacit recognition of the significance of the Due Process Clause. But they clearly emphasize the Eighth Amendment.
I. Claim of Failure to Protect
Plaintiff spent almost all of the first several months of his confinement at BCJ in a medical or mental health unit. He was housed in the medical unit from approximately the time of his arrival in September 1999 until he was cleared for return to the general population on or about June 28, 2000. His placement in the medical unit was at least initially based on a determination that he presented a suicide risk. Plaintiff contends that even if he was initially placed in the medical unit because of such a risk, ultimately his continued residence there was a form of protective custody; and he asserts that his return to the general population was actually retaliation for complaints he had expressed about Defendant Onembo's withholding his mail. Defendants dispute this contention, asserting that Plaintiff was in fact subject to varying levels of suicide watch throughout his time in the medical unit, and noting that he was returned to the general population pursuant to a psychiatric evaluation which concluded that he no longer presented a risk.
After his return to the general population, it appears that Plaintiff was housed in the maximum security "S4" unit of BCJ. About a month after his return to the general population, on or about August 7, 2000, Plaintiff was compelled to share his cell with another prisoner, Donald Mayfield. Plaintiff contends that Mayfield was moved into the cell in order to extract information from Plaintiff relating to his criminal case. According to Defendants, Mayfield was moved to make room for an incoming prisoner who had to be housed alone. A very short time after arriving in Plaintiff's cell, Mayfield allegedly attacked Plaintiff, inflicting injuries that included blows to the head and bites. (Almost all indications in the record are that the attack took place on August 7, 2000; but the affidavit of Lieutenant Patricia Bakay (submitted in support of the County Defendants' motion) places it on August 8. There is also testimony in Plaintiff's deposition to the effect that the assault took place "maybe three days at most" after Mayfield arrived in Plaintiff's cell.)
In support of that assertion Plaintiff states that another prisoner, Antonio Manez, heard an acquaintance of Mayfield say that Mayfield was placed in Plaintiff's cell for that purpose. In Plaintiff's deposition he refers to a written statement by Manez to this effect. Deposition of Agustin Garcia, January 16, 2004 ("Garcia Dep.") 140-46. His Complaint also appears to refer to the same statement, a statement from an inmate "who claimed that he [heard] Mayfield['s] friends saying that he was placed in [Plaintiff's] cell to extract information for the Bergen County Prosecutor."
Plaintiff asserts that Mayfield had a history of mental illness and violence that should have prevented him from being double celled. Plaintiff has however pointed to nothing in Mayfield's background that would have indicated that he was a particularly dangerous or unstable inmate. For example, Plaintiff has pointed to no incidents prior to August 7, 2000 in which Mayfield attacked or threatened another inmate, and he has not identified any records showing a history of violent mental illness.
Plaintiff has pointed to other facts which he contends should have alerted Defendants to his need for special protection. He asserts that prior to his arrest and detention he had been a prominent citizen recognized for his cooperation with law enforcement. He points for example to the fact that he was honored by the New York City Police Department. He also notes that the events that gave rise to his criminal case — his shooting of his ex-girlfriend as she posed for pictures on her wedding day — were widely reported; and he suggests that the high profile nature of his case made him a potential target. The record contains some indications that Plaintiff expressed concern about his safety in BCJ. A memorandum authored by a Sergeant Edward Pawson, dated December 7, 1999, recounts conversations with Plaintiff in which he described a confrontation with another inmate, Donald Wilson, who had asked Plaintiff questions about his criminal case, and who allegedly told Plaintiff he had no sympathy for him. As the report recounts, Plaintiff indicated he believed Wilson may have been getting other inmates to act against him. Plaintiff also apparently informed Pawson that he had heard of two hand made weapons in "Pod A" — presumably the area in which Plaintiff was then housed. According to the report, Plaintiff was offered protective custody at the time and refused it. (A psychiatric report dated the next day (December 8, 1999) discusses the same facts and relates that Plaintiff no longer felt he was in danger.) In his deposition, Plaintiff asserted that he did not sign himself into protective custody because he considered conditions in protective custody too harsh and because he considered the medical unit (where he was housed at the time) to be a form of protective custody. He also acknowledges however that later, when he had been returned to the general population and when he was about to be double celled with Mayfield, he did not make any request to be placed in protective custody. At no point prior to the assault by Mayfield did he identify any known enemies in the population whose presence required him to be in protective custody.
II. Claims of Deficient Medical Care
A. Infectious Diseases
Plaintiff contends that Defendants failed to provide appropriate testing for infectious diseases while he was in BCJ. Specifically he contends that he should have been tested for hepatitis A, B, and C and for tuberculosis after the August 7, 2000 attack. He asserts that since his transfer to state prison he has tested positive for tuberculosis and for hepatitis C, that these conditions should have been detected by doctors at BCJ, and that he has been injured by the failure to detect them.
The record indicates that Plaintiff was in fact tested for hepatitis A and B (and for HIV) after the assault — the tests conducted on or about August 29, 2000. These tests showed that Plaintiff did not have hepatitis A or B, although they did show that he had been exposed to them in the past. Plaintiff was not tested for hepatitis C because in Dr. Grady's judgment such testing was not warranted. In the certification submitted in support of his motion, Grady states that there were no clinical indications requiring testing for hepatitis C, noting that Plaintiff denied any past history of transfusions, substance abuse, or sexual promiscuity; Grady states that after the assault Plaintiff was not tested because of the superficial nature of his bite wounds and because no symptoms developed while he was at BCJ. Grady did not believe there was a sufficient likelihood of transmission given the nature of the wounds.
The record also indicates that Plaintiff was given chest x-rays intended to uncover any tuberculosis. The chest x-rays were taken on or about September 27, 1999 (when he first arrived at BCJ) and again, in connection with a physical exam, on or about October 5, 2000. Both were negative. Plaintiff appears to contend that doctors at BCJ should have administered a skin test for tuberculosis exposure. In his certification Grady provides two reasons for relying only on chest x-rays in Plaintiff's case: first, that Plaintiff had in the past received a vaccine that can confuse the interpretation of skin test results and, second, that it was standard procedure in 2001 not to provide drug treatment for latent tuberculosis (which would presumably have been detected by a skin test but not by a chest x-ray) to patients over 35 (such as Plaintiff) because the risk of drug induced hepatitis outweighed the benefit of protecting against the possible development of clinical tuberculosis.
It appears a chest x-ray was also ordered, in connection with a physical exam, on or about September 12, 2001.
B. Head Injuries
Plaintiff contends that he suffered head injuries from blows to the head on two occasions: first on September 26, 1999, immediately before his arrest and detention (apparently in the course of a fight connected to the shooting for which he was convicted) and then later in the August 7, 2000 assault by Mayfield. Plaintiff asserts that Defendants, in order to diagnose and treat these injuries, should have ordered MRI and/or CT scans of his brain. He contends that by failing to do so Defendants showed deliberate indifference to a serious health problem, and that as a result of deficient care he has suffered hearing loss.
An intake form completed when Plaintiff first arrived at BCJ indicates that he did not complain of a head injury at that time. The form specifically asks whether the prisoner has recently sustained a head injury, and the appropriate box is checked "no." Intermittently thereafter Plaintiff complained of headaches. In response to such a complaint, he was examined by Defendant Dr. Conte on November 19, 1999, and Conte determined that there was no need for treatment. On or about May 16, 2000 Plaintiff mentioned to Conte that he had suffered a head injury approximately a year earlier and tended to forget names. Conte examined Plaintiff and concluded that there was no objective evidence to substantiate his complaints, and that there was no reason to order further testing. Conte asserts that his examinations of Plaintiff did not reveal any indications that he had suffered significant head trauma or head injury.
He recounts checking Plaintiff's pupils and finding them reactive. Conte's account is contained in his affidavit in support of the County Defendants' motion.
Plaintiff apparently also raised his supposed head injury with a psychiatrist, Dr. Erica Schiffman on or about January 11, 2000. She reports (in the her affidavit submitted in connection with this motion) that he complained to her of right side headaches occurring since the events surrounding his arrest. She performed what she describes as a full neurological exam, including PERRLA (Pupils Equal Round Reactive to Light and Accommodation), EOM (Extraocular Movement), Romberg Test (standing with feet together and eyes closed) and visual field tests. All the tests were negative, indicating no central nervous system deficit. She concluded that, if anything, Plaintiff might be subject to post-concussive syndrome, but that he did not require any structural imaging.
He apparently advised her that he had been struck on the head and lost consciousness.
Immediately after the August 7, 2000 assault Grady's examination of Plaintiff also included tests for head injury. He concluded that Plaintiff's cranial nerves were intact, noted that his optic fundi were normal, indicating normal intracranial pressure, that Plaintiff walked well, and that his motor power was normal. Grady also noted that after the attack Plaintiff was oriented and alert and described the attack. Grady determined that the proper course was to observe Plaintiff's neurological state.
The principal long-term injury that Plaintiff traces to the supposed neglect of his head injuries is hearing loss. The record indicates that on or about October 16, 2000, he complained to Grady that he had suffered hearing loss in his right ear for several months. A physical exam of both ears was negative, and Grady ordered a further hearing exam, which was performed by an outside consultant on or about October 19, 2000. That exam showed a mild bilateral hearing loss, and Grady recommended a follow up exam in a year. (Grady also obtained records of Plaintiff's treatment before his arrest, which indicated he had suffered from some progressive hearing loss in his right ear before arriving at BCJ. Plaintiff's deposition testimony appears to suggest that this hearing loss was not permanent.)
Apparently on or about January 5, 2001, Plaintiff experienced what he described as a seizure. He was examined by Grady. According to Grady's certification, Plaintiff claimed to have fainted from pain. Grady examined Plaintiff and determined that he had not had a seizure. Noting that Plaintiff said at the time that he was doing 250 "crunches" per day, Grady concluded that any pain he was experiencing was exercise related.
C. Triglyceride Condition
Plaintiff contends that he received inadequate treatment for his high triglyceride condition while at BCJ. A medical questionnaire completed on or about September 27, 1999, approximately the time of Plaintiff's arrival at BCJ, indicates that he had a problem with a high level of triglycerides and was taking the drug Lopid. Plaintiff claims that Conte ignored his condition. Plaintiff was tested for triglycerides on or about October 12, 1999, and the test showed an abnormally high level of triglycerides (433). Plaintiff claims that this test was performed without Conte's authorization and that he ignored the results. According to Plaintiff, when Conte was advised of Plaintiff's concerns and of the treatment Plaintiff had received, Conte answered him with a reminder that he was now in jail and his circumstances were different. The record indicates that Conte put Plaintiff on a low sodium diet some time in January of 2000. About a year later, on or about November 28, 2000, a test revealed that Plaintiff's triglyceride levels were higher, 558; and Grady recommended that Plaintiff begin taking the drug Lipitor. The record indicates however that Plaintiff did not actually comply with the recommendation. He apparently refused the Lipitor and embarked on efforts to control his cholesterol and triglyceride levels with a combination of diet and exercise. In fact his progress (which was apparently checked in tests on September 13, November 29, and December 6, 2001) was good, and he brought his level down to 292 by December 6 of 2001. Plaintiff has made no showing of any injury he suffered as a result of any failure to treat his high glyceride condition.
The relevant document is on its face dated January 28, 1999. But that date preceded Garcia's arrival. The correct date is presumably January 28, 2000. Conte states that he put Plaintiff on a low sodium diet. The record does not clearly show whether Plaintiff was continued on Lopid after his arrival at BCJ. He appears to suggest he was not; Conte's statements indicate that he was.
Grady stated in his certification in support of his motion that the previously recorded level, 433, though above normal, did not require drug treatment.
III. Conditions of Confinement
In Plaintiff's principal conditions of confinement claim he asserts that his rights were violated when he, along with other residents of the S4 unit, was placed in what he describes as "lockdown" from approximately May 2000 through February 2002. The exact terms of this lockdown are not firmly established by the record, indeed there are inconsistencies even within the descriptions provided by Plaintiff, and within the descriptions that appear in Defendants' papers. Plaintiff's statements indicate that during the lockdown his time outside his cell for personal activities was limited to no more than one hour per day. In his answers to interrogatories he indicates that he was allowed one hour per day; his deposition refers to 45 minutes. Garcia Dep. 155-57. Defendant Ciccone, in his certification in support of his motion, seems to accept the 45 minutes per day figure. But in what appears to be the most thorough discussion of the rules that governed BCJ, Lt. Bakay indicates that time out of the cell for personal reasons was limited to one hour. There may also be disagreement as to the scope of the restrictions during the lockdown. Plaintiff's Statement of Claims (attached to his Amended Complaint) and his deposition, Garcia Dep. 155-57, could be read to suggest that the hour limit (or 45 minutes) applied to all activities (including for example time in the law library). Bakay's statements and the accompanying documentation suggest that some categories of time (including law library time) were not counted against the hour or 45 minutes per day that the prisoners were allowed out of their cells. Ciccone's certification suggests that the out of cell period covered virtually all activities. But his answers to interrogatories suggest that some categories of out-of-cell activity may not have had to take place during the allotted one hour per day.
The lockdown was apparently first imposed in direct response to a fight in which prisoners assaulted guards at BCJ. According to Plaintiff's account, the lockdown was initially imposed for a four week period and then extended indefinitely. According to Plaintiff, in extending the restrictions Ciccone made statement to the effect that they would remain in place until the inmates learned to behave. Defendants note that Plaintiff was appropriately placed in a maximum security unit because of the severity of the crime with which he was charged, and that the restrictions of which he complains were reasonable measures to maintain control of a unit populated by the potentially most dangerous prisoners.
In addition to his claims arising from the alleged lockdown of unit S4, Plaintiff contends that conditions at BCJ were constitutionally deficient because of health code violations. He cites no regulations; but points to the fact that prisoners were allegedly tasked with doing their own laundry and did so in a haphazard manner, and to the fact that prisoners (some with infections) served food.
DISCUSSION
I. Summary Judgment Standard
Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The evidence need not be in a form that would be admissible at trial. Celotex, 477 U.S. at 324. But Rule 56(e) provides that affidavits opposing summary judgment motions must "be made on personal knowledge"; and hearsay within such affidavits or testimony may be considered, but only where the hearsay declarant can be produced at trial to offer his or her statements in admissible form. See Rossi v. Standard Roofing, Inc., 156 F.3d 452, 470 (3d Cir. 1998); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1234-35 (3d Cir. 1993); Philbin v. Trans Union Corp., 101 F.3d 957, 960-61 (3d Cir. 1996).
The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not simply "replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial.Anderson, 477 U.S. at 249. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
II. Failure to Protect
Although, as noted above, the source of Plaintiff's claims as a pre-sentencing detainee is the Due Process Clause rather than the Eighth Amendment, the standards applicable to his failure to protect claim are substantially identical to those that would apply in an Eighth Amendment analysis. In the Eighth Amendment context, to survive summary judgment on a failure to protect claim, a plaintiff must produce sufficient evidence of "(1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; (3) causation." Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997). In the context of failure to protect claims, deliberate indifference represents a reckless disregard of a known risk of harm. See Farmer v. Brennan, 511 U.S. 825, 834-38 (1994). Detainees' cases are commonly assessed according to the same "deliberate indifference" standard applied under the Eighth Amendment — so that detainees must show the same level of culpability on the part of officials as must convicted prisoners. See Nicini v. Morra, 212 F.3d 798, 810-812 (3d Cir. 2000) (analyzing claims of abuse in foster care, citing cases and noting in dicta that "after Farmer the courts of appeals have shown a tendency to apply a purely subjective deliberate indifference standard outside the Eighth Amendment context"); Ervin v. Mangum, 127 F.3d 1099, No. 93-7129, 1997 WL 664606, **5 (4th Cir. October 27, 1997) (unpublished decision) (collecting cases and noting that "[d]espite the Supreme Court's suggestion that pretrial detainees may be afforded greater protection than convicted prisoners, the circuit courts have generally analyzed both situations under the same "deliberate indifference" standard); cf. Fuentes v. Wagner, 206 F.3d 335, 343-346 (3d Cir. 2000) (applying deliberate indifference standard to claims asserted by detainee); Faulcon v. City of Philadelphia, 18 F. Supp. 2d 537, 540 (E.D. Pa. 1998) (same), aff'd, 185 F.3d 861 (3d Cir. 1999); Schreiber v. City of Philadelphia, 320 F.3d 409 (3d Cir. 2003) (discussing the application of the deliberate indifference standard in various analyses under the Due Process Clause). The logic of applyingFarmer's culpability standard to detainees' Due Process Clause claims is evident: a crucial factor in the Farmer court's rejection of a more plaintiff-friendly objective standard was the consideration that actions taken with less culpable states of mind could not be regarded as punishment for Eighth Amendment purposes: the Court observed, "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Farmer, 511 U.S. at 838.
To establish deliberate indifference, an inmate must show that a prison official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 837. "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious."Id. at 842. In this case Plaintiff has failed to point to sufficient indications in the record that he was at risk either from placement in the general population or from double celling with Mayfield. Plaintiff contends that he was an obvious target because of the publicity surrounding his case and because of his history as a solid citizen and supporter of the police; and he points to one instance of an altercation with inmate Wilson, from which Plaintiff emerged with a generalized fear that Wilson might persuade other prisoners to act against him. None of these facts would have provided Defendants with notice of a substantial risk to Plaintiff's safety. Plaintiff has pointed to no indications of a specific or imminent threat from any quarter relating to the high profile nature of his case or his previous support for law enforcement. Nor has he provided any basis for an inference that Mayfield's attack was in any way motivated by such factors. When Plaintiff was given the opportunity to sign himself into protective custody, he declined.
As for Plaintiff's contentions that Mayfield was known to be too dangerous to share a cell with him, Plaintiff has pointed to nothing in the record that would have put Defendants on notice that Mayfield was unusually dangerous — no records of Mayfield's supposed mental illness, no history of violence while incarcerated prior to the attack of August 7, 2000.
Plaintiff's suggestions that Mayfield was placed in his cell to extract information are speculative and find no substantial support in the record. Plaintiff relies on hearsay statements by "friends" of Mayfield to the effect that he was placed in Plaintiff's cell to obtain information for the prosecutor. It is by no means evident that any such friends could be produced to testify to these impressions; and even if they could, there is no indication that they had any real personal knowledge of the circumstances in which Mayfield and Plaintiff were double celled. In addition, the facts of the August 7, 2000 attack, to the extent they are apparent from the record, are manifestly inconsistent with any plan for Mayfield to extract information from Plaintiff. Plaintiff does not say he was threatened before the attack; and Mayfield's almost immediate assault on Plaintiff predictably resulted in a quick end to the double celling arrangement, which obviously would have derailed any plan for Mayfield to obtain information from Plaintiff.
Plaintiff also suggests that his return to the general population was retaliation for his complaint about Defendant Onembo's handling of his mail. This assertion adds nothing to Plaintiff's failure to protect claim. Because Defendants had no substantial reason to believe that Plaintiff would be at substantial risk in the general population, their reasons for returning him there have no bearing on a claim that they failed to protect him. Moreover, Plaintiff has not pointed to facts sufficient to support an inference that his placement in the general population was intended to be retaliatory. Records clearly indicate that both his initial placement in the medical unit and his later return to the general population were pursuant to psychiatric evaluations, and there is no substantial support in the record for his suggestions that the medical unit was actually a form of protective custody or that the evaluations that determined his placement were not genuine.
III. Medical Care
Plaintiff's claims of constitutionally deficient medical care are governed the same "deliberate indifference" standards applicable to analogous Eighth Amendment claims asserted by sentenced inmates. Boring, 833 F.2d at 471-74. The failure to provide convicted prisoners with adequate medical care violates the Eighth Amendment and gives rise to a cause of action under § 1983. Monmouth Cty. Corr. Instit. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (citing Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The test for an Eighth Amendment violation is two-pronged: "it requires deliberate indifference on the part of the prison officials and it requires the prisoner's medical needs to be serious." Lanzaro, 834 F.2d at 346 (internal quotation marks omitted).
The Court of Appeals has set forth examples of circumstances supporting an inference of deliberate indifference. Deliberate indifference is present where the "knowledge of the need for medical care is accompanied by the intentional refusal to provide that care or where short of absolute denial necessary medical treatment is delayed for non-medical reasons, or where prison authorities prevent an inmate from receiving recommended treatment." Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d at 346) (internal quotation marks omitted). Deliberate indifference is also indicated where "prison authorities deny reasonable requests for medical treatment and such denial exposes the inmate to undue suffering or the threat of tangible residual injury and where prison officials erect arbitrary and burdensome procedures that result in interminable delays and outright denials of medical care to suffering inmates." Durmer, 991 F.2d at 68 n. 11 (quoting Lanzaro 834 F.2d at 346-47) (internal quotation marks omitted). A serious injury is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention."Lanzaro, 834 F.2d at 347.
[The] test affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients. Courts will disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment which remains a question of sound professional judgment.Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal quotation omitted).
In this case Plaintiff has failed to identify any conduct on any Defendant's part that could support a finding of deliberate indifference to his medical needs. Although the care he received may in some respects have been less than ideal, it was not inconsistent with the genuine exercise of professional judgment on the part of the medical professionals who treated him.
Plaintiff complains that he did not receive adequate testing for infectious diseases after the August 8, 2000 incident, in which he suffered bite wounds inflicted by Mayfield. The record shows that he was in fact tested in a timely manner for hepatitis A and B and for HIV; and Plaintiff has provided no basis on which one could find that the decision not to test for hepatitis C was anything but a legitimate judgment. Grady states that given the nature of Plaintiff's injuries and the absence of any clinical indications of hepatitis C, no hepatitis C test appeared warranted. Though Plaintiff may have grounds to dispute the wisdom of that judgment, he cannot show that the failure to test him for hepatitis C resulted from deliberate indifference to his condition.
Similarly, Plaintiff cannot show on the basis of this record that the failure to give him skin tests for tuberculosis evinces deliberate indifference. Plaintiff in fact was screened for clinical tuberculosis on at least two occasions by chest x-ray; and Grady's statements in support of his motion show that there were perfectly defensible reasons for refraining from giving skin tests in Plaintiff's case: his vaccination history suggested the results might be difficult to interpret; and even if a skin test had shown exposure, treatment would not have been warranted absent signs of clinical disease. Here again Plaintiff's quarrel with the wisdom of medical decisions does not rise to the level of a constitutional claim of deliberate indifference.
Plaintiff fares no better with claims arising from his alleged head injuries. He did not mention any head injury at the time of his arrival at BCJ. Later, when he did complain of headaches or head injury (both before and after the August 7, 2000 assault), he was given neurological exams; and the professionals treating him determined that he did not have injuries requiring further treatment or more elaborate testing. When he complained of hearing loss, Grady ordered hearing tests. Decisions not to order MRI or CT scans or other additional testing do not support an inference that those treating Plaintiff were deliberately indifferent to his complaints. Plaintiff has provided no evidence that more extensive testing was so clearly indicated by his complaints that the failure to order it amounted to deliberate indifference.
Finally, Plaintiff's claim that the diagnosis and treatment of his triglyceride condition was constitutionally inadequate is also unsupported by the record. Plaintiff was given a test that included an assessment of his triglyceride level quite soon after his arrival, October 12, 1999. That test showed an abnormally high level of triglycerides; and it is not entirely clear that Defendant Conte prescribed any treatment for it at the time apart from putting Plaintiff on a low sodium diet. (Although there are some contrary indications in the record, it must be assumed for the purposes of the pending motions that Plaintiff's drug therapy was not continued.) Plaintiff suggests that this lack of medical intervention shows a deliberate indifference to his condition. But what is missing from Plaintiff's argument is any showing that a choice not to treat his condition more aggressively at the time was inconsistent with good faith medical judgment. In his submissions Grady offers the opinion that although Plaintiff's October 1999 triglyceride level was high, it did not require drug treatment; and in fact Plaintiff's overall history plainly illustrates the fact that drug therapy is not the only proper course of treatment even for triglyceride levels that exceed his October 1999 result. When a November 28, 2000 test showed a level of 558, Grady recommended drug therapy; and Plaintiff refused it, proceeding instead with efforts to control his condition by diet and exercise. The record indicates that those efforts were quite successful. In light of the overall improvement in his condition during his time at BCJ, it should also be noted that Plaintiff has pointed to no evidence that he was in any way injured by any deficiencies in the treatment of his triglyceride level. It is by no means evident that the failure to treat his condition with drugs for a period of time represented any substantial risk to his health.
Parenthetically, it should also be noted that the general level of medical care (including mental health care) that Plaintiff received at BCJ appears to have been quite high. He received frequent medical attention and apparently was given approximately annual physicals. Indications are that the medical staff was in general very attentive, and in fact at one point Plaintiff even complimented Defendant Grady on the care he provided.
IV. Conditions of Confinement
In Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000), the Court of Appeals, quoting extensively from Bell v. Wolfish, 441 U.S. 520 (1979), provided the following thorough summary of the treatment of conditions of confinement claims by pre-sentencing detainees:
In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, . . . the proper inquiry is whether those conditions amount to punishment of the detainee. A detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. However, once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Thus, restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting. Obviously, ensuring security and order at the institution is a permissible nonpunitive objective, whether the facility houses pretrial detainees, convicted inmates, or both. Consequently, whether restrictions and practices constitute punishment in the constitutional sense depends on whether they are rationally related to a legitimate nonpunitive government purpose and whether they appear excessive in relation to that purpose. Thus, there is a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may.
We must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.Fuentes, 206 F.3d at 341 (3d Cir. 2000).
Because Plaintiff has not pointed to sufficient evidence for a finding that any of the conditions of his confinement constituted impermissible punishment under the Due Process Clause, summary judgment in Defendants' favor is warranted as to his conditions of confinement claim.
Plaintiff's principal complaint with respect to the conditions at BCJ is that, along with other residents of the S4 unit, he was subject to what he describes as a prolonged "lockdown" from approximately May 2000 through February 2002. Viewing the record in the light most favorable to Plaintiff, and resolving all factual disputes in his favor, it must be assumed that he was confined to his cell for all but 45 minutes per day during that time. Certainly such a routine would have been highly restrictive. But it is apparent that the prisoners in the S4 unit were, like Plaintiff, accused or convicted of the most serious crimes; or their records contained other risk factors that could reasonably be viewed as requiring a very high level of security. It also appears that the decision to heighten security in the unit was made in response to a violent incident that highlighted the dangers associated with the unit. On this record there is no sufficient basis for an affirmative finding that the "lockdown" Plaintiff describes was not "rationally related to a legitimate nonpunitive government purpose" or that it was "excessive in relation to that purpose." Id. The Supreme Court has made it clear that substantial deference is to be afforded the judgment of correctional officials in determining the reasonableness of the restrictions they impose.
It is by no means clear that this was the case. At one point Plaintiff himself describes a 23 hour per day lockdown; and Bakay' statements, which appear highly authoritative, indicate that prisoners were allowed one hour per day out of their cells, and that some out of cell activities were permitted in addition to the hour per day generally provided. Although Plaintiff's submissions could be read to suggest that 45 minutes (or one hour) per day included all out-of-cell activities, they are not squarely inconsistent with Bakay's assertion that additional time was allowed for some activities, such as visits to the law library.
Though he claims that the alleged lockdown restricted, among other things, his access to courts, Plaintiff does not appear to assert a separate claim of denial of access to courts. Even if he did, his claim would fail because he has not identified any actual injury resulting from a denial of access. To bring a successful claim concerning access to the courts, a prisoner must allege that he has sustained, or will imminently sustain, some type of "actual injury" due to defendant' interference with court access. See Lewis v. Casey, 518 U.S. 343, 349 (1996); Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997). The United States Supreme Court defined "actual injury" as an impediment to a prisoner's efforts to present or pursue a non-frivolous legal claim. See Casey, 518 U.S. at 351-53 and n. 3. Thus, to have standing to pursue an access to courts violation, an inmate would need to demonstrate, for example:
that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.Casey, 518 U.S. at 351.
In determining whether restrictions or conditions are reasonably related to the Government's interest in maintaining security and order and operating the institution in a manageable fashion, courts must heed our warning that such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.Bell, 441 U.S. at 540. In this case, without considerably more facts in the record, it would be impossible to conclude that the risks and dangers in the S4 unit could have been minimized with means less restrictive than those Defendants employed. Plaintiff points out that those involved in the incident that gave rise to the lockdown were removed from the unit, and he notes that he had no involvement in the incident. These facts are immaterial. The fact that Defendants may have made a general assessment of the problems in the S4 unit and addressed them with generally applicable measures does not by any means indicate that those measures were unreasonable. Plaintiff also notes that, in extending the restrictions, Ciccone made statement to the effect that they would remain in place until the inmates learned to behave. Plaintiff appears to suggest that this statement shows the restrictions were intended as punishment. But this is not the apparent meaning of Ciccone's pronouncement. Although his tone was obviously harsh, the essence of his statement was that the restrictions would remain in force until the S4 residents could be relied upon not to cause trouble in a less restrictive environment. This plan is consistent with the requirement that security measures be related to the need to maintain order in the facility.
In addition to his claims arising from the alleged lockdown of unit S4, Plaintiff contends that conditions at BCJ were constitutionally deficient because of health code violations. He bases his claim on the fact that prisoners were allegedly tasked with doing their own laundry and did so in a haphazard manner, and on the fact that prisoners (some with infections) served food. Plaintiff has identified no statutes, rules, or regulations that were breached by such practices; and even if he had, his allegations would fall far short of stating a claim of unconstitutional conditions of confinement.
CONCLUSION
For the reasons stated above, Defendants' motions for summary judgment will be granted with respect to all claims under federal law. To the extent that Plaintiff asserts state law claims, those claims will be dismissed for lack of subject matter jurisdiction in the exercise of the Court's discretion under 28 U.S.C. § 1367. An appropriate order will be entered.