Roach v. Kligman

• Decision Date: 30 April 1976
• Docket Number: Civ. A. No. 73-2428.
• Citation: 412 F. Supp. 521
• Parties: Jerome ROACH v. Dr. Albert M. KLIGMAN, individually and as President of Ivy Research Laboratories, Inc., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

412 F. Supp. 521

Jerome ROACH v. Dr. Albert M. KLIGMAN, individually and as President of Ivy Research Laboratories, Inc., et al.

Civ. A. No. 73-2428.

United States District Court, E. D. Pennsylvania.

April 30, 1976.

COPYRIGHT MATERIAL OMITTED

David Rudovsky, Philadelphia, Pa., for plaintiff.

Thaddeus J. Bartkowski, Asst. City Sol., Philadelphia, Pa., for defendants Aytch, Galeone, Sprague, Ray, Jr., Ritter, Needleman, Stack, Jr., Wnukowski, Holt, III, and City of Philadelphia.

OPINION

LUONGO, District Judge.

This is a civil rights action brought under 42 U.S.C. §§ 1983, 1985 and 1988, and the Fourth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. The civil rights claim is joined with a claim in trespass based on Pennsylvania law. Jurisdiction is grounded on 28 U.S.C. §§ 1343(3), (4), § 1331 and pendent jurisdiction. The plaintiff, Jerome Roach, was a detentioner at Holmesburg Prison in Philadelphia when the events alleged to constitute his cause of action occurred. Plaintiff's claims against defendants Dr. Albert M. Kligman, Solomon McBride, Luther M. Mitchell and Ivy Research Laboratories, Inc. (hereinafter Ivy Research defendants) have been resolved by settlement. The remaining defendants, Louis S. Aytch, Superintendent of Philadelphia County Prisons, the individual members of the Board of Trustees of Philadelphia County Prisons (hereinafter sometimes referred to as Prison defendants), and the City of Philadelphia have moved for summary judgment. I will grant the motion for summary judgment as to the civil rights claim, and I will decline to exercise pendent jurisdiction over the plaintiff's state law tort claim against these defendants.

I.

The complaint alleges:

In March 1973, while being detained in Holmesburg Prison awaiting trial on charges as to which he was later acquitted, Roach participated in a medical experiment conducted by Ivy Research. He was induced to participate because he needed money "to pay for minimal needs and comforts" while he was incarcerated. He was advised by one of the Ivy Research defendants that the experiment required him to take a "temperature pill" and that he would suffer no adverse effects. After four days of participation, however, Roach developed various symptoms of physical illness including sore throat, sore joints, fever, nausea, and sores and rashes. The complaint alleges further that Roach was improperly treated for these symptoms by the prison doctor who prescribed penicillin without knowing or inquiring if Roach was participating in an experiment. By March 29, 1973, Roach's condition grew serious enough for the defendants to arrange his transfer to Philadelphia General Hospital where he remained for several weeks. At the hospital, Roach was informed that his illness resulted from the experiment, that he had been given pills different from those described to him when he consented to the experiment, and that he had permanent liver damage.

After the hospital stay, Roach spent a few days in the prison infirmary and was then returned to his cell where, "because of inadequate and unconstitutional conditions, including water in his cell which leaked through his roof and grossly inadequate medical treatment," his condition grew worse. The complaint charges that the inadequate medical treatment lasted for a period of two weeks in June of 1973 when he was denied medical treatment and medication.

The Prison defendants and the City are said to have deprived Roach of his civil rights by authorizing Ivy Research to use the facilities at Holmesburg without adequate safeguards to insure that Roach gave informed consent to the experiment, and by failing to provide adequate facilities to screen, monitor and treat the plaintiff to avoid serious illness from the experiment. Moreover, Prison defendants are charged with having coerced Roach into participating in the experiment by failing to furnish him and other inmates the "basic, minimal needs and necessities for institutional life," or to afford alternative opportunities to earn money to provide these necessities for themselves. Finally, Roach complains that Prison defendants failed to provide adequate treatment and quarters after he became ill from the experiment.

In short, Roach claims that his civil rights were violated by Prison defendants in the following way:

1. Prison defendants failed to supply the "minimal needs and necessities for institutional life" or alternative sources of income to provide these needs for himself. This coerced him into participating in the experiment.

2. The experiment was so negligently monitored by Prison defendants that when he became ill during the experiment, the prison doctor did not know he was participating in the experiment and treated him improperly, causing aggravation.

3. When he returned from PGH, he was subjected to "inadequate and unconstitutional cell conditions," which caused further aggravation.

4. On at least a few occasions he was denied medical treatment after returning from PGH.

5. Finally, there are allegations of conspiracy and malice.

Roach's pendent claim sets forth the same facts, which he contends render Prison defendants liable in trespass.

II.

In this circuit, plaintiffs in civil rights cases must plead facts with specificity, especially where the pleadings, as here, are drafted by competent and experienced counsel.¹ Rotolo v. Borough of Charleroi, 3 Cir., 532 F.2d 920 (1976). The plaintiff cannot rest on vague, conclusory allegations. He must plead the facts upon which the claim is based; he must spell out the unlawful conduct complained of.

When a motion for summary judgment is made and supported by affidavits, plaintiff may not rest upon "the mere allegations or denials of his pleading," he must by affidavits or otherwise, set forth specific facts showing there is a genuine issue for trial. Federal Rule of Civil Procedure 56(e).

The record in this case consists of the complaint; the defendants' answers; material provided by the defendants and the plaintiff in response to interrogatories and requests for production of documents; depositions of plaintiff Roach, defendants Kligman, McBride, and Mitchell, witnesses Dr. Herbert W. Copeland and Wayne Brown; and an affidavit of defendant Aytch with a consent form attached as an exhibit. A review of this record convinces me that the plaintiff has failed to present any facts which can amount to a deprivation of his constitutional rights, and that as to the civil rights claim there is no genuine issue for trial.

At the outset, it should be noted that it is difficult to perceive at what point the constitutional deprivation is alleged to have occurred. There are three separate points in time covered by the complaint.

The first is the time before Roach entered the experiment. At this point he is alleged to have experienced "coercion" because the prison failed to supply him with "minimal needs and necessities for institutional life," or with alternative means of earning money to purchase these needs. At oral argument on the motion for summary judgment, plaintiff's counsel identified these minimal needs as soap, toothpaste, stamps and writing materials.

The second time frame is during the experiment. In this period, the Prison defendants and the City are said to be guilty of gross negligence in the supervision of Ivy Research. The basis for this charge is the administration of penicillin by the prison doctor who did not know that Roach was involved in the experiment.

The last point in time is when Roach was returned to the prison after his stay at Philadelphia General Hospital. He was then allegedly subjected to a cold and leaky cell, and was denied medication or treatment on at least several occasions.

It is not clear whether plaintiff contends that each of these events separately represents a constitutional deprivation, or whether he is complaining that the combination of them violates his constitutional rights.

Prison officials have wide discretionary authority to make reasonable rules and regulations for the operation of prisons. Wilson v. Prasse, 325 F.Supp. 9, 12 (W.D.Pa. 1971), aff'd, 463 F.2d 109 (3d Cir. 1973). When a claim against prison officials is based on improper medical treatment, it must depict conduct that is so cruel and unusual as to present a colorable Eighth Amendment claim. Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970). Federal courts follow stringent standards, and simple malpractice is not actionable as an Eighth Amendment deprivation. Kontos v. Prasse, 444 F.2d 166 (3d Cir. 1971); Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335 (1971). The act or omission by the official must either be intentionally injurious, reckless, callous, grossly negligent, shocking to the conscience, unconscionable, intolerable to fundamental fairness, or barbarous. Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183, 190 (1952); Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937, 940 (3d Cir. 1969); Gittlemacker, supra; Martinez, supra. The record must show, at least arguably, an intent to harm the inmate, or failure to treat injuries and illnesses so severe and obvious as to require immediate medical attention. Hoitt v. Vitek, 497 F.2d 598, 601 (1st Cir. 1974); United States v. Fitzgerald, 151 U.S.App.D.C. 206, 466 F.2d 377, 380 (1972); Martinez, supra. Where the plaintiff has received some care, inadequacy or impropriety of the care that was given will not support an Eighth Amendment claim. Walnorch v. McMonagle, 412 F.Supp. 270 (E.D.Pa.1976); Brown v. Cliff, 341 F.Supp. 177 (E.D.Pa.1972). See generally Annot., 51 A.L.R.3d 111 (1973).

Cases holding there was a sufficient allegation of cruel and unusual punishment based on improper medical care highlight the lack of sufficiency of the facts in this record. In Martinez, supra, after an operation on his right leg in a...