Mitchell v. Hendricks

• Decision Date: 18 April 1977
• Docket Number: Civ. A. No. 72-2184.
• Citation: 431 F. Supp. 1295
• Parties: Jimmie Lee MITCHELL, Plaintiff, v. Edward J. HENDRICKS et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

431 F. Supp. 1295

Jimmie Lee MITCHELL, Plaintiff, v. Edward J. HENDRICKS et al.

Civ. A. No. 72-2184.

United States District Court, E. D. Pennsylvania.

April 18, 1977.

COPYRIGHT MATERIAL OMITTED

Thomas L. Holzman, Inmate Legal Assistance Program University of Pennsylvania Law School, for plaintiff.

Mark N. Cohen, Francis R. Coyne, John L. Jenkins, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

JOHN MORGAN DAVIS, Senior District Judge.

In this civil rights action, this Court is presently considering alternative motions to dismiss or for summary judgment on behalf of the named defendants in regard to both federal and pendent state claims.

Invoking 42 U.S.C. §§ 1983 and 1985, and their jurisdictional counterpart, 28 U.S.C. § 1343(3) plaintiff filed suit pro se with the Clerk of Court on November 3, 1972. Plaintiff was granted leave to proceed in forma pauperis, and the formal complaint was filed on January 24, 1973. Plaintiff's cause of action is based on the alleged failure of certain prison doctors and officials to render medically prescribed neuromuscular therapy during the term of his imprisonment, which allegedly resulted in the permanent loss of use of his arm. Plaintiff's injury occurred while playing basketball on November 3, 1969 at Holmesburg Prison. He was treated for a brachial plaxus injury on an inpatient basis at Philadelphia General Hospital (PGH) for approximately five months until April 13, 1970. Plaintiff thereafter was returned to Holmesburg until he was transferred on June 8, 1970 to the State Correctional Institution at Graterford (SCIG). On November 10, 1970, he was transferred to the State Correctional Institution at Pittsburgh (SCIP) and remained there until he was paroled on January 9, 1971. During this period of time, plaintiff allegedly received none of the treatment prescribed by PGH doctors to rehabilitate his arm.

Defendants raise a number of issues, which will be discussed below.

I. THE STATUTE OF LIMITATIONS.

The defendants assert that plaintiff's cause of action is barred by the statute of limitations.¹ In civil rights cases, the statute of limitations is "that which the state would enforce had the action seeking similar relief been brought in State Court." Henig v. Odorioso, 385 F.2d 491, 493 (3d Cir. 1967), cert. denied 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968). In Pennsylvania, the statute of limitations for personal injury actions is two years. 12 P.S. § 34. However, there is a distinction to be drawn between the time in which a civil rights action may be brought and the time of accrual of a civil rights action, i. e. the date at which time the limitations period begins to run. The latter is governed solely by federal law. Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); and Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974) vacated and remanded on other grounds. O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). "Federal law holds that the time of accrual is when plaintiff knows or has reason to know of the injury which is the basis of the action." Cox v. Stanton, supra at 50 citing Young v. Clinchfield R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961).

In determining what is the basis of plaintiff's action, it should be emphasized that an "essential element of an actionable civil rights complaint is the establishment of a constitutional deprivation." Gittlemacker v. Prasse, 428 F.2d 1, 5 (3d Cir. 1970) (emphasis original). Gittlemacker concerned, inter alia, the degree of gravity necessary for allegations of medical malpractice to attain constitutional proportions. It was held that more than mere tortious conduct must be alleged.

It is only where an inmate's complaint of improper or inadequate medical treatment depicts conduct so cruel or unusual as to approach a violation of the Eighth Amendment's prohibition of such punishment that a colorable constitutional claim is presented. Gittlemacker at 6

This standard was described with more particularity in the recent Supreme Court case of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976):

In the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute a "wanton infliction of unnecessary pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment (emphasis supplied).

See also Fear v. Commonwealth, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969) and Commonwealth ex rel. Gatewood v. Hendrick, 368 F.2d 179 (3d Cir. 1966), cert. denied, 386 U.S. 925, 87 S.Ct. 899, 17 L.Ed.2d 797 (1967). The case of Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974), cert. denied sub nom. Thomas v. Cannon, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974), also spoke in terms of the degree of the alleged harm and, in deciding whether or nor medical care was essential, found the test to be:

... whether it had been proved that a physician exercising ordinary skill and care at the time of the request for medical care would have concluded that the symptoms of the prisoner evidenced a serious disease or injury; that the potential for harm by reason of delay or denial of medical care was substantial; and that such harm did result. (Emphasis supplied). Thomas at 158.

I am persuaded that in the context of this case, it is the allegation of the permanency of the injury which is important. As I stated in the case of U. S. ex rel Ingram v. Montgomery County Prison Board, 369 F.Supp. 873, 874 (E.D.Pa.1974), in a civil rights action the plaintiff must allege an injury from denial of medical care which results in "undue suffering or permanent residual injury." (Emphasis supplied). Other courts have used similar standards, see, e.g. Cox v. Stanton, supra at 59 (permanent deprivation of ability to bear children); Thomas v. Pate, supra at 158 (substantial harm); Stiltner v. Rhay, 371 F.2d 420, 421 (9th Cir. 1967) (tangible residual injury). It follows from these cases that the applicable time of accrual in the instant case is when plaintiff knew or should have known that his arm was or would become permanently non-regenerative. Young v. Clinchfield, supra.

I have decided that plaintiff, on the record as it presently stands, cannot be charged as a matter of law with knowledge of the permanent nature of his injury before January 9, 1971, the date he was informed by PGH doctors that any further treatment of his arm would be futile. In support of this conclusion, I regard the case of Cox v. Stanton, supra, to be controlling. There, plaintiff, under duress, consented to what was ostensibly a temporary sterilization, but the surgeon instead performed an irreversible sterilization. The plaintiff believed the sterilization to be reversible until she was informed otherwise by a gynecologist five years later. Suit was filed three years thereafter. The Court concluded that the plaintiff's suit was not barred by the three year statute of limitations because her cause of action did not accrue until she discovered the permanent effects of the operation.²

The factual setting of Cox is indistinguishable from that of the instant case. Therefore, if in fact the plaintiff thought that his condition was temporary and curable and did not or should not have known of the permanency of his condition until so informed by physicians, plaintiff's cause of action could not accrue until the date he was given that information on or about January 9, 1971. If this be the case, plaintiff's pro se complaint, filed with the Clerk of Court less than two years after this date, was timely.³

Conversely, however, I cannot on the basis of the present record conclude that, as a matter of law, plaintiff was ignorant of the consequences of the alleged lack of treatment before the date of his parole. For instance, the trier of fact may at a later stage of this litigation properly conclude that plaintiff's admissions in his deposition, wherein he stated that he knew that without treatment his arm would worsen, indicated that plaintiff knew or should have known after his first stay at PGH that, absent therapy, irreversible damage would ensue. Alternatively, a date in the interim between his release as an in-patient and the date of his parole may be found to be controlling. Depending, then, on when the trier of fact fixes the date of constructive or actual knowledge of the basis of plaintiff's cause of action, the plaintiff's action may be barred.

As a result, I must at this time deny the defendants' motion on the issue of the statute of limitations because I am "... unable, at this stage of the litigation, to express any opinion on the question of whether plaintiff should reasonably have discovered ..." his prognosis before January 9, 1971. Gattis v. Chavez, 413 F.Supp. 33, 40 (D.S.C.1976). I am cognizant of the potential difficulty that these defendants may have in preparing a defense to a claim as remote in time as this, but I believe that on balance the course I now take is preferable to completely barring this plaintiff's cause of action when the delay in discovering the consequences of alleged lack of essential medical treatment may have been excusable. Rather, I prefer to adopt the approach taken by the court in Gattis, supra, that is: If the defendants can prove at any time during the trial that plaintiff actually or reasonably possessed the requisite...