Shawn Moore v. Brian Luffey

• Court: Court of Appeals for the Third Circuit
• Decided: April 19, 2019
• Docket: 18-1716
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No: 18-1716

SHAWN THOMAS MOORE,

Appellant v.

BRIAN LUFFEY, PrimeCare Administrator; SUSEN ROSSINO, M.D.; PRIMECARE MEDICAL, INC.

On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No. 2-14-cv-00870) District Judge: Honorable David S. Cercone

Submitted under Third Circuit LAR 34.1(a) on February 6, 2019

(Opinion filed April 19, 2019)

Before: HARDIMAN, SCIRICA and RENDELL, Circuit Judges. O P I N I O N

RENDELL, Circuit Judge:

Shawn Moore brought this suit under 42 U.S.C. § 1983, asserting that Dr. Susen

Rossino violated his constitutional rights through her deliberate indifference to his

serious medical needs during his time as a pretrial detainee. The District Court granted

summary judgment in favor of Dr. Rossino. It concluded that Moore failed to establish

that Dr. Rossino provided inadequate medical care falling so far below the standards of

professional care as to constitute deliberate indifference. For the reasons that follow, we

agree and will affirm the District Court’s order granting summary judgment.

I. Factual Background

Moore was incarcerated at the Lawrence County Jail in New Castle, Pennsylvania

as a pretrial detainee from June 4, 2012 until May 22, 2015. During this time, Dr.

Rossino contracted with PrimeCare Medical, Inc. (“PrimeCare”) to provide physician

services for the jail.

Moore was diagnosed with hepatitis C virus (“HCV”) in 1996. HCV is a virus

that infects cells of the liver and can cause inflammation and scarring of the liver. Moore

also suffers from Crohn’s disease, gastroesophageal reflux disease, and Attention Deficit

Disorder (“ADD”). During Moore’s incarceration, Dr. Rossino saw him at least every

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 three months for chronic care of his HCV. She ordered periodic blood tests to monitor

Moore’s enzyme levels. She monitored both his AST and ALT enzyme levels and was

concerned with both the stability of those levels and whether the levels had increased

significantly. Depending on the results of these tests, Dr. Rossino could, under

PrimeCare’s protocol, recommend consultation with a specialist.

While incarcerated, Moore requested additional visits with Dr. Rossino by

completing “Sick Call Slips” or “Medical Request Slips” to address his liver pain. In

response to these complaints of pain, Dr. Rossino repeatedly conducted physical exams,

ordered additional HCV blood work, and recommended that Moore eat a low-fat diet. On

one occasion, she concluded that the pain could be caused by an issue with Moore’s

gallbladder and prescribed Prilosec to relieve any symptoms related to stomach acid. On

this occasion, she also ordered an ultrasound of Moore’s gallbladder. On another

occasion, Moore complained of right abdominal pain, pointing to his lateral chest and

low ribs. In response, Dr. Rossino ordered an x-ray of his chest to examine his ribs, the

results of which were normal.

On December 8, 2014, Dr. Rossino performed an HCV RNA, revealing Moore’s

viral load to be high. Dr. Rossino then referred Moore to a specialist, Sean Connelly,

D.O., for an assessment of his HCV. At Moore’s next regularly scheduled chronic care

visit on December 18, 2014, Moore requested medication to treat his ADD. In January

2015, Dr. Rossino prescribed Adderall, which Moore believed reduced his liver pain.

Moore was assessed by Dr. Connelly’s physician assistant in February 2015. The

physician assistant diagnosed Moore with chronic HCV and ordered additional blood

3 work. Moore was then evaluated by Dr. Connelly in March 2015. Dr. Connelly

concluded that Moore should begin courses of two prescription medications for treatment

of his HCV.

On April 23, 2015, Dr. Rossino saw Moore, who again complained of pain in the

right upper quadrant of his abdomen. Dr. Rossino noted Moore’s visit with Dr. Connelly

and that he recommended that Moore be placed on HCV medication. Dr. Rossino’s

treatment of Moore ended when he was transferred out of the jail on May 22, 2015.

After Moore’s transfer, Joseph Harris, M.D. issued a consultative evaluation. In

his report, Dr. Harris did not criticize the decisions Dr. Rossino made in treating Moore’s

HCV. However, Dr. Harris did conclude that PrimeCare’s protocol for treating HCV was

outdated and inconsistent with the most recent guidelines recommended by the Center for

Disease Control.

II. Procedural History

Moore filed his initial pro se Complaint in the Court of Common Pleas of

Lawrence County, which was then removed to the District Court for the Western District

of Pennsylvania. Moore then filed his pro se Second Amended Complaint. Moore

asserted a § 1983 claim, alleging that Dr. Rossino was deliberately indifferent to his

serious medical needs in violation of the Fourteenth Amendment. Specifically, Moore

alleged that Dr. Rossino did nothing to treat his HCV or his pain related to his HCV. Dr.

Rossino moved to dismiss Moore’s Second Amended Complaint.

While Dr. Rossino’s motion to dismiss was pending, Moore moved to join

additional defendants. Construing the motion as a motion to amend his complaint, the

4 District Court granted the motion. The District Court also directed Moore to file a third

amended complaint setting forth all claims against all parties, indicating that no further

amendments would be allowed. However, Moore moved to set aside the District Court’s

order, stating that he did not and would not in the future want to file another amended

complaint. The District Court granted Moore’s motion. About three months later, Moore

moved to supplement his Second Amended Complaint. The District Court denied this

motion.

The Magistrate Judge issued a Report and Recommendation recommending that

Dr. Rossino’s Motion to Dismiss be denied. However, the Report and Recommendation

contained a footnote suggesting that Moore’s claim regarding the treatment of his HCV

should be dismissed. The District Court adopted the Report and Recommendation, but

did not adopt that footnote.

After discovery, Dr. Rossino filed a Motion for Summary Judgment. The

Magistrate Judge issued a Report and Recommendation recommending that the Motion

for Summary Judgment be granted. In a footnote, the Magistrate Judge concluded that

the District Court dismissed Moore’s claim with respect to the treatment of his HCV at

the pleadings stage. So, the Magistrate Judge considered only Moore’s claim regarding

the treatment of his pain in its Report and Recommendation.

The District Court adopted the Report and Recommendation and granted summary

judgment for Dr. Rossino. The District Court agreed that Moore’s HCV treatment claim

was dismissed at the pleadings stage, leaving only his claim regarding the treatment of

his HCV-related pain for consideration in assessing the motion for summary judgment.

5 However, the District Court concluded that, even if that claim had not been dismissed,

Dr. Rossino would be entitled to summary judgment on both claims. This appeal

followed.

III. Discussion

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Moore argues on appeal that

the District Court erred in granting summary judgment in favor of Dr. Rossino.1 We

review a grant of summary judgment de novo and apply the same standard used by the

District Court. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).

A court must grant summary judgment if “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). To determine whether the movant has satisfied this

burden, “we view the facts and draw all reasonable inferences in the light most favorable

to the nonmovant.” Pearson v. Prison Health Serv., 850 F.3d 526, 533 (3d Cir. 2017).

“Material facts are those that could affect the outcome of the proceeding, and a dispute

1 Moore also argues on appeal that the lower court erred in dismissing his failure to treat his HCV claim at the pleadings stage. Although the District Court concluded that this claim was dismissed at the pleadings stage, it went on to state, “But assuming for the sake of argument that [this] ruling was erroneous, [Dr. Rossino] nevertheless would be entitled to judgment ‘on all claims remaining in the case.’” A. V1029 (emphasis added). The District Court then analyzed both Moore’s claim regarding the treatment of his HCV and his claim regarding the treatment of his HCV-related pain in granting summary judgment in favor of Dr. Rossino. In light of the District Court’s treatment of Moore’s claims and the higher standard the movant must meet on summary judgment, this Court will review both of Moore’s claims against Dr. Rossino under the summary judgment standard. 6 about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to

return a verdict for the non-moving party.” Id. at 534 (internal quotations omitted).

Moore also argues on appeal that the District Court erred in denying his motion to

supplement his Second Amended Complaint. We review a denial of a motion to

supplement for abuse of discretion. Arrowpoint Capital Corp. v. Arrowpoint Asset

Mgmt., LLC, 793 F.3d 313, 327 n.16 (3d Cir. 2015).

For the following reasons, we find that Dr. Rossino is entitled to judgment as a

matter of law on both of Moore’s deliberate indifference claims, and that the District

Court did not err in denying Moore’s motion to supplement.

A. Moore’s Deliberate Indifference to Serious Medical Needs Claims

On appeal, Moore argues that Dr. Rossino violated his constitutional rights by

showing deliberate indifference to his serious medical needs by (1) failing to provide

treatment for his HCV and (2) failing to provide treatment for his HCV-related liver pain.

Section 1983 provides a right of action against anyone who, under color of state law,

deprives another of a constitutional right. 42 U.S.C. § 1983. In evaluating a § 1983

claim, courts must “identify the exact contours of the underlying right said to have been

violated” and “determine whether the plaintiff has alleged a deprivation of a

constitutional right at all.” Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d

Cir. 2015) (internal quotations omitted). Courts must next determine whether the

plaintiff has demonstrated the “defendant’s personal involvement in the alleged wrongs.”

Id. (internal quotation omitted).

7 Pretrial detainees may assert Section 1983 claims for inadequate medical care

under the Fourteenth Amendment’s substantive due process clause. See Natale v.

Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003); Colburn v. Upper Darby

Twp., 838 F.2d 663, 668 (3d Cir. 1988). “[T]he Fourteenth Amendment affords pretrial

detainees protections at least as great as the Eighth Amendment protections available to a

convicted prisoner.” Natale, 318 F.3d at 581. So, we will evaluate Moore’s § 1983

claims under the same standard used to evaluate similar claims brought under the Eighth

Amendment. 2 Id. at 581-82.

To establish a deliberate indifference to serious medical needs claim, the plaintiff

“must make (1) a subjective showing that the defendants were deliberately indifferent to

[his or her] medical needs and (2) an objective showing that those needs were serious.”

Pearson, 850 F.3d at 534 (internal quotations omitted) (alterations in original). A mere

complaint “that a physician has been negligent in diagnosing or treating a medical

2 In his opening brief, Moore argues that this Court “should apply the objective unreasonableness standard adopted by the Supreme Court in [Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)]” rather than the Eighth Amendment’s deliberate indifference standard. Appellant’s Br. at 9. However, Moore does not cite to any cases of this Court applying Kingsley to a claim of deliberate indifference to a detainee’s serious medical needs. Moore also fails to explain how applying an objective unreasonableness standard instead of the deliberate indifference standard would affect the outcome of his appeal. Both standards require the plaintiff to show that the defendant was more than negligent in addressing the plaintiff’s serious medical needs. See Kingsley, 135 S. Ct. at 2472 (“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”) (emphasis in original) (internal quotation omitted); Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (“[T]he test to be applied under Kingsley must require a pretrial detainee … to prove more than negligence[,] … something akin to reckless disregard.”). Because Moore’s claims fail under both standards, we decline to address whether we should apply the new standard here. 8 condition does not state a valid [constitutional] claim of medical mistreatment[.]” Estelle

v. Gamble, 429 U.S. 97, 106 (1994). Moreover, “mere disagreement as to the proper

medical treatment does not support a claim of” deliberate indifference. Pearson, 850

F.3d at 535 (internal quotations omitted). Rather, where there has been medical care, “we

presume that the treatment of a prisoner is proper absent evidence that it violates

professional standards of care.” Id. As long as a physician exercises professional

judgment, his or her behavior does not violate a detainee’s constitutional rights. See

Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990).

There is no dispute that Moore had serious medical needs as a pretrial detainee due

to his HCV. But, because the record does not support a finding that Dr. Rossino was

deliberately indifferent to these needs, Dr. Rossino is entitled to judgment as a matter of

law.

Moore’s deliberate indifference claim based on Dr. Rossino’s treatment of his

HCV is properly characterized as an adequacy of care claim. Although Moore asserts in

his opening brief that his case is “based on a complete denial of care,” there is no dispute

that Dr. Rossino treated his HCV. Appellant’s Br. at 13. Dr. Rossino saw Moore for

chronic care of his HCV at least every three months during Moore’s incarceration. She

ordered blood tests to monitor his enzyme levels. She monitored the stability of his AST

and ALT enzyme levels, as well as whether there were any significant increases in those

levels. In addition to the regularly scheduled visits, Dr. Rossino saw Moore in response

to his Medical Request Slips. She provided physical exams, encouraged him to eat a

9 low-fat diet, and ordered additional HCV blood tests to treat his HCV. Therefore, Dr.

Rossino’s actions cannot properly be said to have been a complete denial of care.

Moore has failed to satisfy the standard that applies to adequacy of care claims.

First, his expert, Dr. Harris, does not opine that Dr. Rossino’s courses of action in treating

Moore’s HCV fell below the professional standards of care. See Pearson, 850 F.3d at

536 (stating that medical expert testimony may be necessary to establish deliberate

indifference in an adequacy of care claim). Rather, Dr. Harris criticized PrimeCare’s

outdated protocol, which Dr. Rossino was obligated to follow.

Second, Moore has not pointed to any evidence in the record to support a finding

that Dr. Rossino’s actions in treating his HCV were anything more than inadvertence or

mistake in medical judgment. To demonstrate Dr. Rossino’s deliberate indifference,

Moore relies on evidence in the record that he argues shows that Dr. Rossino told him he

would not be treated for his HCV. He also asserts, without citing to the record, that he

was denied outside medical care under false pretenses. Moore’s argument is unavailing,

however, because Dr. Rossino did in fact treat his HCV, and Moore has not pointed to

any evidence in the record demonstrating that non-medical factors motivated her

treatment decisions. See Pearson, 850 F.3d at 537. Cf. Durmer v. O’Carroll, 991 F.2d

64, 67-68 (3d Cir. 1993) (reversing summary judgment for defendant physician where at

least some evidence suggested the defendant had a non-medical motive for deliberately

avoiding treatment that another physician recommended). So, Dr. Rossino is entitled to

summary judgment on this claim.

10 For the same reasons, Dr. Rossino is entitled to summary judgment on Moore’s

claim regarding his HCV-related liver pain. This claim is also properly characterized as

an adequacy of care claim because, rather than deny or delay treatment, Dr. Rossino

sought to treat Moore’s alleged liver pain by scheduling more blood work, ordering an

ultrasound and x-ray, recommending a low-fat diet, and prescribing Prilosec. Moore also

has not shown how the record supports the conclusion that Dr. Rossino acted with

deliberate indifference in treating his liver pain. Neither the treating specialist nor

Moore’s expert indicated that Dr. Rossino’s course of action fell so far below the

requirements of competent, professional medical care as to allow a jury to find that it was

motivated by non-medical factors. See Pearson, 850 F.3d at 537. This claim, like his

HCV treatment claim, is based only on Moore’s personal dissatisfaction with Dr.

Rossino’s treatment, which is not a basis for a deliberate indifference claim. See Estelle,

429 U.S. at 106.

B. Moore’s Motion to Supplement

Moore also argues on appeal that the District Court erred in denying his motion to

supplement his Second Amended Complaint. Moore makes this argument on the

presumption that his claim regarding his HCV treatment was dismissed at the pleadings

stage. That is, Moore argues that, if his failure to treat his HCV claim was dismissed, it

should not have been, and he should have had the opportunity to supplement his

complaint. Here, the District Court did not abuse its discretion in denying Moore’s

motion to supplement. Three months after the District Court granted Moore leave to file

a third amended complaint setting forth all claims against all parties, Moore asked the

11 District Court to set aside that order because he had no intention of filing another

amended complaint. The District Court did not, then, abuse its discretion in determining

that Moore chose to stand on his Second Amended Complaint and in denying him leave

to supplement.

IV. Conclusion

For the foregoing reasons, we will affirm the District Court’s order granting

summary judgment for Dr. Rossino.