Flanyak v. Hopta

• Decision Date: 23 January 2006
• Docket Number: Civil Action No. 3:04-1634.
• Citation: 410 F.Supp.2d 394
• Parties: Perry E. FLANYAK, Plaintiff v. David E. HOPTA and Marva Cerullo, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

410 F.Supp.2d 394

Perry E. FLANYAK, Plaintiff v. David E. HOPTA and Marva Cerullo, Defendants.

Civil Action No. 3:04-1634.

United States District Court, M.D. Pennsylvania.

January 23, 2006.

COPYRIGHT MATERIAL OMITTED

Perry E. Flanyak, Frackville, PA, pro se.

Maryanne M. Lewis, Pennsylvania Office of Attorney General, Harrisburg, PA, for Defendants.

MEMORANDUM AND ORDER

MANNION, Magistrate Judge.

Presently pending before the court is the defendants' unopposed¹ motion for summary judgment. (Doc. No. 37).

I. PROCEDURAL HISTORY

On July 26, 2004, the plaintiff, an inmate at the State Correctional Institution at Mahanoy, ("SCI-Mahanoy"), Frackville, Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983, in which he alleges that defendant Hopta violated his Eighth Amendment rights by subjecting him to unsafe conditions in the prison's welding shop and that defendant Cerullo was deliberately indifferent to his resulting medical needs. (Doc. No. 1).

On the same day the plaintiff filed the appropriate application to proceed in forma pauperis, (Doc. No. 2), and authorization form, (Doc. No. 3). As a result, a financial administrative order was issued. (Doc. No. 4).

On September 27, 2004 the plaintiff requested appointment of counsel. (Doc. No. 12). The district court judge, then assigned to the case, denied that motion on November 8, 2004. (Doc. No. 16).

By order dated August 27, 2004, it was directed that the Clerk of Court forward the plaintiff's complaint to the United States Marshal for service. (Doc. No. 9). The defendants waived service of the plaintiff's complaint, and on November 1, 2004, the defendants filed their answer to the plaintiff's complaint. (Doc. No. 15).

By notice dated November 18, 2004, the parties consented to the exercise of jurisdiction by the undersigned and the case was reassigned. (Doc. Nos. 19, 21). On December 2, 2004 the undersigned, sua sponte, reconsidered the previous order denying appointment of counsel and conditionally granted the plaintiff's request for counsel pursuant to MDPA LR 83.34.4.2 requesting review by the district's pro bono panel. (Doc. No. 22). After multiple reviews, the court was advised that no counsel would agree to undertake representation of the plaintiff on this claim. (Doc. Nos. 25, 28, and 29). The court, subsequently revoked its conditional order of appointment. (Doc. No. 30).

A scheduling order was issued by the court on June 1, 2005. (Doc. No. 30). After having been granted an extension of time to do so, (Doc. No. 33), on November 30, 2005, the defendants filed the instant motion for summary judgment, (Doc. No. 37), along with a statement of material facts, (Doc. No. 38), and supporting brief, (Doc. No. 39).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c).

The Supreme Court has stated that:

"... [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. The moving party can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.

Issues of fact are genuine "only if a reasonably jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir.1988) (citations omitted). Material facts are those which will effect the outcome of the trial under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court may not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.1998). In determining whether an issue of material fact exists, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the nonmoving party. Id. at 393.

If the moving party meets his initial burden, the opposing party must do more than raise some metaphysical doubt as to material facts, but must show sufficient evidence to support a jury verdict in its favor. Id.

III. DISCUSSION

In his complaint, the plaintiff alleges that he worked as a production welder for Correctional Industries while confined at SCI-Mahanoy from November 2000 through July 2002. While there, the plaintiff alleges that he reported to the medical department with complaints of shortness of breath, dizziness and loss of balance, vision problems, and heart problems.² Subsequently, the plaintiff alleges that he underwent a chest x-ray which revealed that he had chronic obstructive pulmonary disease. According to the plaintiff, he informed his foreman of his condition and requested that he be placed in an inspector's position which would remove him from excessive exposure to welding smoke, dust, etc. The plaintiff alleges that his foreman indicated that he would discuss the situation with defendant Hopta, the Correctional Industries Supervisor.

A few days later, the plaintiff alleges that he again reported to the medical department with complaints of symptoms. The next day, the plaintiff indicates that he was told that he no longer had a job in Correctional Industries because there was no position available to him which would not expose him to smoke. (Doc. No. 1, p. 2 & Attachment B).

The plaintiff alleges that two (2) days later he was approved for a promotional transfer, but that he waited for months to be transferred. During this time, the plaintiff alleges that he received only idle pay and no medical treatment for his conditions other than hypertension. (Doc. No. 1, Attachment B).

In November 2002, the plaintiff alleges that he was transferred to SCI-Waynesburg, where he was treated for chronic obstructive pulmonary disease, vertigo, and heart palpitations. According to the plaintiff, the physician at SCI-Waynesburg informed him that he "should never of been on the medication that S.C.I. Mahanoy Medical had prescribed, the dosage was much too high and not the correct type." (Id.).

Subsequently, the plaintiff alleges that he was diagnosed with Diabetes Type II and had x-rays taken for what he believes to be sciatic or lumbar nerve pain attributed to his work in the Correctional Industries. (Doc. No. 1, Attachment B).

As a result of his conditions, the plaintiff alleges that he is now classified as "mobility impaired," and that he requires the use of a cane. The plaintiff alleges that he is also classified as "medically idle," and cannot work. (Doc. No. 1, Attachment B).

The plaintiff attributes his condition to his exposure to "toxic welding fumes, dust and smoke for extended periods of time," which was the result of inadequate and poorly maintained exhaust and ventilation systems at SCI-Mahanoy. In addition, the plaintiff alleges that the welders were not provided respirators, but only dust masks, which were inadequate. The plaintiff believes his vision problems are attributable to being constantly "flashed" while welding.

With respect to defendant Hopta, the plaintiff alleges that he was his supervisor while employed for Correctional Industries, and that he was informed of the plaintiff's need to be employed in a position away from welding smoke, dust, etc. due to his medical conditions. The plaintiff alleges that defendant Cerullo is liable under the Eighth Amendment as the Corrections Health Care Administrator, who was in charge of the medical department at SCI-Mahanoy. The plaintiff alleges that both defendants exhibited negligence and deliberate indifference toward his safety and health.

Based upon the above allegations, the plaintiff is seeking monetary damages for all lost wages from the time he was removed from his job at SCI-Mahanoy and for any future earnings potential while incarcerated and after release from prison, including retirement, pain and suffering, mental anguish and any other psychological problem that may arise. The plaintiff is further seeking damages for all medical expenses, medications, filing fees and court costs. (Doc. No. 1, § V, ¶¶ 1-3).

In an attempt to pierce the allegations of the plaintiff's complaint and attempt to show that no genuine issue of fact remains for trial, the defendants have submitted a statement of material facts, supported by exhibits, which establishes that the plaintiff is currently serving a six (6) to twelve (12) year sentence for involuntary deviate sexual intercourse and related charges. (Doc. No. 38, ¶ 3).

In August 1998, the plaintiff was transferred from SCI-Camp Hill to SCI-Mahanoy. Subsequent to his transfer, from November 13, 2000, to July 23, 2002, the plaintiff was employed as a welder in Correctional Industries. (Doc. No. 38, ¶ 4; Ex. 1).

In February 2002, the plaintiff was scheduled for a chest x-ray, the results of which indicated "Chest-Chest x-ray is...