Opinion
Civil No. 03-2472 (JBS).
Filed: December 2, 2004
Mr. Michael R. D'Alessandro, South Woods State Prison, Bridgeton, New Jersey, Plaintiff pro se.
Stephen E. Siegrist, Esq., MURPHY AND O'CONNOR, L.L.P., Cherry Hill, New Jersey, Attorney for Defendants.
OPINION
This matter comes before the Court on Defendants' motion for summary judgment and Plaintiff's cross-motion for partial summary judgment. Plaintiff, Michael R. D'Alessandro, has filed suit in this Court alleging violations of his civil rights under 42 U.S.C. § 1983 and of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff alleges that Defendant, Lisa Renee Kuntz, a nurse practitioner, altered his prescribed medication with deliberate indifference to his serious medical needs, causing him physical pain and mental anguish. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343. For the reasons discussed herein, Defendants' motion for summary judgment will be granted, and Plaintiff's cross motion for partial summary judgment will be denied.
BACKGROUND
I. The Parties
On July 28, 2003, Plaintiff pro se, Michael R. D'Alessandro, an inmate at South Woods State Prison ("SWSP"), commenced this action with the filing of his Complaint.
Named as defendants in the action are Lisa Renee Kuntz ("Kuntz") and her employer, Correctional Medical Services ("CMS"). Kuntz is employed as a nurse practitioner at SWSP. Kuntz has been a registered nurse for approximately fifteen years, earned a Master of Science degree from the University of Pennsylvania in 1993, and has been a licensed certified nurse practitioner for over nine years. (Defs.' Br. Ex. I.) A nurse practitioner is permitted by law to prescribe and order medications, with the supervision of a collaborating physician. In New Jersey, nurse practitioners are licensed and regulated by the New Jersey Board of Nursing of the Division of Consumer Affairs within the New Jersey Department of Law and Public Safety.
A nurse practitioner is a registered nurse with at least a Master's level education. Nurse practitioners are primary care providers whose practice involves diagnosing and managing both acute/episodic and chronic illnesses. They order and interpret diagnostic tests and prescribe drugs, devices and other treatment modalities, as indicated. Essential to the care they offer is an emphasis on health promotion and disease prevention. See http://www.njsna.org/practice/APN_FACT_SHEET.htm.
N.J. Stat. § 45:11-49(c) (2004).
See http://www.state.nj.us/lps/ca/medical/nursing.htm.
II. Procedural History
The plaintiff initially submitted his pro se complaint on May 21, 2003, with notice of his intent to file application to proceed in forma pauperis. After the completed application was received, this Court entered an Order granting Plaintiff's application to proceed in forma pauperis on July 28, 2003. Plaintiff's complaint was subsequently filed with the Clerk of Court on the same day. In his Complaint, Plaintiff alleges Defendants altered Plaintiff's prescribed medication with deliberate indifference to his serious medical needs resulting in physical pain and mental anguish in violation of § 1983.
After denial of Plaintiff's Application for Appointment of Pro Bono Counsel, Defendants Kuntz and CMS filed an answer to the Complaint on October 2, 2003 denying Plaintiff's claims. Plaintiff filed an Amended Complaint on February 20, 2004, adding claims for compensatory and punitive damages. While disputing the service of the Amended Complaint by the Plaintiff on the Defendants, the Defendants filed an Answer to the Amended Complaint on May 11, 2004.
Defendants filed a motion for summary judgment on May 14, 2004. After a number of motions for extension of time to file response/reply, the Plaintiff subsequently filed both a letter brief in opposition to the Defendants' motion for summary judgment and a cross motion for partial summary judgment on August 9, 2004. The Defendants filed a brief in opposition to Plaintiff's cross motion for summary judgment on August 12, 2004. Plaintiff then filed a Certification in response to Defendants' letter brief in opposition.
III. Underlying Facts
On August 8, 1999, Plaintiff, while an inmate at East Jersey State Prison ("EJSP"), was taken to Rahway Hospital where he remained for three days. (Id. at 2.) On August 11, 1999, Plaintiff was moved to Saint Francis Medical Center ("SFMC") for angioplasty of the left anterior descending coronary artery. (Pl.'s Br. Ex. P-3.) After two days of treatment, Plaintiff was discharged from SFMC and returned to EJSP, where he remained in the infirmary for an additional seven to ten days. (Am. Compl. at 2.)
The Plaintiff's SFMC "Discharge Summary," signed by Peter M. Destefano, M.D., F.A.C.C., indicated that Plaintiff had a 50-60% lesion on his left anterior descending coronary artery, but that medication rather than surgical intervention was appropriate. (Pl.'s Br. Ex. P-4.) The summary also stated that Plaintiff's chest pain might also be the result of gastroesophageal reflux disease. (Id. at P-3 to P-6.) Dr. Destefano recommended that Plaintiff be returned to EJSP where his usual physicians could monitor "any change in the usual pattern of his pain." (Id. at P-4.) Finally, the Discharge Summary states that Plaintiff should have a follow-up visit with Dr. Destefano in six weeks for a Cardiolite stress test. (Id. at P-5.)
Plaintiff Brief Exhibits P-10 to P-12 contain the specific results of plaintiff's coronary angiogram. Dr. Destefano's recommendation and note on P-11 indicate that treatment through medication is appropriate and recommends a stress cardiolite be performed in the near future. (Pl.'s Br. Ex. P-11.)
The Discharge Summary included both "Discharge Instructions" and "Medications." (Id. at P-5.) The instructions included a diet containing no red meat, dairy products or eggs. (Id.) Seven medications with dosages were listed on the Discharge Summary. (See Pl.'s Br. Ex. P-5.) The medications at issue in this case, ordered by Dr. Destefano upon discharge, were Lopressor at 50 mg. three times a day, Cardizim at 30 mg. three times a day, and coated aspirin at 325 mg. per day. (Id. at P-5.)
On December 11, 2000, Plaintiff was transferred to SWSP. (Am. Compl. at 2.) Prior to his transfer, the Plaintiff had received the medication prescribed in Dr. Destefano's Discharge Summary. The medications and dosages prescribed by Dr. Destefano, as well as others, were altered a number of times between April 19, 2000 and Plaintiff's transfer to SWSP. (See, e.g., Defs.' Br. Ex. M at B-00012, B-00016, B-00022.)
Information about the plaintiff's medical history has been obtained from Defendants Brief Exhibit M. The Defendants have submitted the plaintiff's medical charts under seal dating from April 19, 2000 through October 28, 2003. Any information relating to the plaintiff's medical care prior to April 19, 2000 has been obtained from the briefs of both parties and are cited to directly in the text of the opinion.
Plaintiff was unwilling to keep his recommended follow-up appointment with Dr. Destefano in September, 2000 alleging that a medical trip would require departing SWSP at 3 a.m., remaining handcuffed all day, and not returning until midnight. (Am. Compl. at 2.) Plaintiff again refused a trip for a cardiology consultation on May 9, 2003, even after being told of the risks of refusal. (Def. Br. Ex. M. at B-414.) Dr. Hoey, a CMS physician, noted that the Plaintiff had refused cardiac reevaluation to determine if surgical intervention was necessary. (Defs.' Br. Ex. H ¶ 8.)
Prior to initiating the present action, Plaintiff made several complaints during October and November, 2002, to the New Jersey Department of Corrections, to Defendant CMS, and to the New Jersey Deputy Attorney General. (Pl.'s Br. at 7-8.) Plaintiff alleges that none of these complaints were ever acknowledged or dealt with by the addressed parties. (Id.) Plaintiff also filed a complaint with the New Jersey Division of Consumer Affairs, New Jersey Board of Nursing in November, 2002. (Id.) The nursing board conducted an inquiry in which Defendant Kuntz and Dr. Hoey, Ms. Kuntz' CMS supervisor, submitted certifications. (See Defs.' Br. Exs. F, I.) Defendant Kuntz stated in her certification that she made changes to Plaintiff's medications based on medical necessity. (Defs.' Br. Ex. I ¶ 13.) Defendant Kuntz detailed a number of interactions with Plaintiff during October and November, 2002, concerning his lack of compliance with the prescribed medication. (Defs.' Br. Ex. I ¶¶ 13-21.) Dr. Hoey certified that the alterations to the Plaintiff's medications by Defendant Kuntz were made in collaboration with him, were routine, and "within reasonable medical standards of care." (Defs.' Br. Ex. F ¶¶ 4-6.) After the inquiry, the Nursing Board complaint was dismissed on September 10, 2003 by George J. Herbert, MA, RN, Acting Executive Director of the New Jersey Board of Nursing. (Defs.' Br. at 1.)
Additionally, Plaintiff filed a Motion to Reconsider Sentence on April 1, 2004 with the New Jersey Superior Court Criminal Division, requesting a reconsideration of his sentence due to the detrimental effects of his incarceration on his health. (Id. at 1-2.) At the court's request, Dr. Hoey provided an analysis of the inmate's present medical condition. (Defs.' Br. Ex. H ¶ 4.) After reviewing Defendant Kuntz' notes and the inmate's charts and examining the Plaintiff himself, Dr. Hoey was unable to determine whether the Plaintiff's condition had deteriorated because the Plaintiff refused cardiac care follow-up appointments. (Defs.' Br. Ex. H. ¶ 18.) Plaintiff's motion was denied by Order of the Honorable Patricia Medina Talbert, J.S.C. by order dated April 1, 2004. (Defs.' Br. at 2.)
DISCUSSION
I. Summary Judgment Standard of Review
Summary judgment is appropriate when the materials of record "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). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the nonmoving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quotingLiberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately has the burden of persuasion at trial.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991) (reviewing district court's grant of summary judgment in a trademark action); Lucent Info. Manage. v. Lucent Tech., 986 F. Supp. 253, 257 (D.N.J. 1997) (granting summary judgment in favor of telecommunications provider in trademark action), aff'd, 186 F.3d 311 (3d Cir. 1999); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiff does in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985),cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.
The standard by which the court decides a summary judgment motion does not change when the parties file cross-motions.Weissman v. United State Postal Serv., 19 F. Supp. 2d 254 (D.N.J. 1998). When ruling on cross-motions for summary judgment, the court must consider the motions independently, Williams v. Philadelphia House Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993),aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each motion in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. Defendant's Motion for Summary Judgment
Defendants claim summary judgment should be granted because there are no genuine issues of material fact and the evidence in the record is insufficient for any reasonable jury to find that the medical treatment provided to the Plaintiff constituted deliberate indifference to his serious medical needs. Defendant CMS also argues that it cannot be held liable under § 1983 as it is entitled to municipal immunity as announced by the Supreme Court in Monell v. Department of Social Servs., 436 U.S. 658 (1978). Each of these issues will be discussed in turn.
A. Plaintiff's Section 1983 Claim Based Upon Violation of his Eighth Amendment Rights
Plaintiff has alleged that Defendants Kuntz and CMS acted under color of state law to deprive him of his Eighth Amendment right to be free of cruel and unusual punishment, and thus violated 42 U.S.C. § 1983. Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983 (2004). Section 1983 does not create new substantive rights, but provides a means of redress for federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). It is "a powerful legislative `sword' providing injunctive relief and damages for the benefit of citizens whose Federal Constitutional rights have been violated by persons acting on behalf of a state or local government." Andrews v. Camden County, 95 F. Supp. 2d 217, 226 (D.N.J. 2000).
To properly assert a claim for alleged violations of his constitutional rights pursuant to § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The parties do not dispute that Defendant CMS and its employee, Defendant Kuntz, acted under color of state law. The parties dispute, however, whether Defendants' actions constituted an Eighth Amendment violation.
The Supreme Court has ruled that the 8th Amendment requires prison officials to provide adequate medical care to inmates in custody. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In the present case, the Defendants are "state actors" under Section 1983. See West v. Atkins, 487 U.S. 42, 54 (1988) (holding a physician is considered a state actor when the physician is under contract to provide medical services to prisoners); Ford v. Prison Health Servs., Inc., C.A. No. 90-7253, 1991 WL 137022 at *1 (E.D. Pa. Jul. 17, 1991) (holding that a physician is considered a state actor when the physician worked for Prison Health Services, a company under contract with the state to provide medical services to prisoners).
The Eighth Amendment does more than prohibit physically barbarous punishments; it sets a standard of decency and humanity against which we must evaluate penal measures. Estelle v. Gamble, 429 U.S. 97, 102 (1976). The Amendment imposes a duty on prison officials to "provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care. . . ." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). In order to establish a violation of his constitutional right to adequate medical care, a convicted prisoner must demonstrate (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need. Estelle, 429 U.S. at 104; see also Natale v. Camden County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003) (applying Eighth Amendment standard of Estelle to claims of pre-trial detainee) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
In the case at bar, the parties do not dispute the serious nature of Plaintiff's diagnosed medical condition. The condition was grave enough to warrant hospitalization and angioplasty of Plaintiff's left anterior descending coronary artery, as well as continued treatment through medication upon his discharge from SFMC. (Am. Compl. at 2.) The voluminous medical records submitted in this case as Defendants' Exhibits M through Z demonstrate the need for ongoing monitoring of Plaintiff's condition. It is in the continuing treatment of the Plaintiff's medical condition that he alleges Defendants were deliberately indifferent.
Deliberate indifference has been found in situations where there was objective evidence that plaintiff had serious need for medical care, and prison officials ignored that evidence, see Natale, 318 F.3d at 582 (citing Nicini v. Morra, 212 F.3d 798, 815 n. 14 (3d Cir. 2000) (en banc)), and where necessary medical treatment was delayed for non-medical reasons. See Natale, 318 F.3d at 582 (citing Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988)). However, a mere disagreement with the form of treatment does not give rise to a constitutional violation. See Estelle, 429 U.S at 107. Prison officials are given the freedom in diagnosing and choosing appropriate treatment options for inmates. See Christy v. Robinson, 216 F. Supp. 398, 413 (D.N.J. 2002) (citing Inmates of Allegheny County Jails v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (stating that courts will generally not "second guess" a chosen course of treatment if it is based on medical judgment)). Moreover, medical malpractice, even if it did occur, does not become a constitutional violation merely because the patient is a prisoner. Estelle, 429 U.S. at 106. Therefore, deliberate indifference is a difficult threshold to meet.
Plaintiff alleges that Defendant Kuntz was deliberately indifferent to his serious medical need when she changed his medications, without consulting either a physician or the Plaintiff. In order to survive a defendant's motion for summary judgment, a plaintiff must present some evidence beyond his bare claim that the defendant was deliberately indifferent or evidence that the defendant knew or was aware of the risk to plaintiff.Natale, 318 F.3d at 582 (citing Singletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2001)). Such evidence might include, for example, that a defendant changed an inmate's medication will full knowledge that such a change would cause the inmate's condition to deteriorate.
In the case at bar, Plaintiff demonstrates a serious medical need, but fails to present any evidence that indicates deliberate indifference to that need on the part of any prison officials. Plaintiff states that Defendant Kuntz did not confer with a physician when altering Plaintiff's medication. (Pl. Br. Opp'n. at 5, 6, 8, 10, 11, 13.) According to New Jersey law, a nurse practitioner is permitted to prescribe with "prior consultation with the collaborating physician." (N.J. Stat. § 45:11-49(c)(1)(a).) Defendant Kuntz does not specifically note in the Plaintiff's chart that she consulted a supervising physician each time she altered Plaintiff's medication. However, in response to Plaintiff's October, 2002 complaints to a number of New Jersey officials, Dr. Hoey certified that "[m]edication changes by Nurse Practitioner Kuntz were undertaken with physician collaboration." (Defs.' Br. Ex. F. ¶ 5.) Additionally, Dr. Hoey filed an Affidavit on March 26, 2004 regarding Plaintiff's motion to the New Jersey Superior Court for reconsideration of his sentence. In the Affidavit, Dr. Hoey states that he "supervised the inmate's medical care, through the Nurse Practitioner, Lisa Renee Kuntz, N.P., who is responsible for the medical care in Prison Facility Three." (Defs.' Br. Ex. H ¶ 5.)
Accepting Plaintiffs' allegations as true and drawing all rational inferences therefrom in his favor, the Plaintiff has not adduced evidence to support his claim of an Eighth Amendment violation. Defendant Kuntz' alleged failure to consult the collaborating physician prior to changing the Plaintiff's medication does not rise to the level of deliberate indifference. Even if, for argument's sake, Kuntz's actions could arguably be considered medical malpractice, an issue which is not before this Court, the Supreme Court in Estelle made it clear that medical malpractice does not rise to the level of deliberate indifference required to support an Eighth Amendment claim for cruel and unusual punishment. See Estelle, 429 U.S at 106. In other words, the Eighth Amendment has not constitutionalized a right to be free from medical malpractice.
On the contrary, the evidence in this case demonstrates that the medical staff at SWSP was attentive in providing proper medical care to Plaintiff, as demonstrated by his extensive and continuous medical records submitted by the Defendants. Additionally, the Defendants' expert, Dr. Cleri, concluded that "[b]ased upon [his] medical training and years of practice" and "within a reasonable degree of medical certainty," all the actions taken by Defendant Kuntz "[met] or exceeded the standard of care." (Defs.' Br. Ex. J at 2.) There is no indication that the Defendants have been inattentive to the Plaintiff's needs.
The only attempt the Plaintiff makes at offering evidence to cast doubt on the Defendants' motives for changing his medications are hearsay statements of other unnamed inmates and allegations that Defendant Kuntz was somehow to blame for the deaths of three inmates. (Pl. Br. at 6 n. 1.) These statements would be inadmissible hearsay if the case made it to trial and, even if considered, do not prove that the Defendants were deliberately indifferent to the Plaintiff's medical needs.
The Federal Rules of Evidence define hearsay as a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. (Fed.R.Evid. 801.) Hearsay is not admissible unless if falls into one of the recognized exceptions. (Fed.R.Evid. 802.) Gossip about the medical treatment of other inmates does not fall into a hearsay exception. Such inadmissible evidence cannot be considered as a basis for opposing summary judgment under Rule 56, Fed.R.Civ.P.
Based on the above, and viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could not conclude that Defendants' actions constituted deliberate indifference to Plaintiff's constitutional right to medical treatment. Accordingly, defendants' motion for summary judgment will be granted.
B. CMS's Immunity From Damages Under Monell v. Department of Social Services
In the present case, Plaintiff claims that Defendant CMS, through Defendant Kuntz, was deliberately indifferent to his medical condition when Kuntz altered his prescribed medication. Defendant CMS argues that it is entitled to summary judgment because a private corporation performing a municipal function may not be held vicariously liable under 42 U.S.C. § 1983. (Defs.' Br. at 3.) Defendant CMS bases this assertion on the holding inTaylor v. Plousis, 101 F. Supp. 2d 255, 263-265, and n. 4 (D.N.J. 2000). Underlying Taylor's holding and the Defendant's assertion is the holding in Monell v. Department of Social Servs., 436 U.S. 658 (1978), that "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell, 436 U.S. at 694. In order to be held liable, the plaintiff must demonstrate that the government defendant's policy or custom caused the complained-of injury.Id. See also Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003).
In Taylor, the court acknowledged that neither the Supreme Court nor the Third Circuit had decided whether a private corporation performing a municipal function is subject to the holding of Monell. Id. at 263. The court in Taylor goes on to say that the vast majority of courts to address this issue have held that "a private corporation, like a municipality, may not be held vicariously liable under § 1983." Taylor, 101 F. Supp. 2d at 264 (citations omitted). In the present case, whether or not Defendant CMS is acting under the color of state law is not in issue. Defendant CMS cannot be held liable unless Plaintiff can offer evidence of a policy or custom implemented by Defendant CMS to arbitrarily change medications without deliberate indifference the health of the affected inmate. Plaintiff has failed to trace Defendant Kuntz's alteration of his medication to any policy or custom of Defendant CMS. Therefore, Defendant CMS is entitled to summary judgment under the Monell theory of governmental liability.
The court in Taylor does convey its doubt as to whether the public policy justifications for the Supreme Court's decision in Monell are applicable to private corporations performing a municipal function under contract with the government. See Taylor, 101 F. Supp. 2d at 264 n. 4. In any event, in the present case, even if the law permits CMS to be held vicariously liable for the conduct of its employees, there is no evidence that a CMS agent, officer, or employee engaged in actionable conduct that would give rise to CMS' liability.
CONCLUSION
In conclusion, with respect to Defendant's Motion for Summary Judgment, it is apparent that Nurse Practitioner Kuntz's alterations of the Plaintiff's medication were medically appropriate based on Mr. D'Alessndro's needs and compliance in taking his prescribed medications. Kuntz's orders were supported by both Dr. Hoey, D.O., the treating physician at SWSP, and Dr. Cleri, the Defendants' expert witness. Plaintiff has raised no issue of material fact which would preclude summary judgment. Nor did Plaintiff present any evidence that Defendant CMS had a policy or custom that caused the plaintiff's injury. Therefore, CMS is entitled to summary judgment.
In addition, with respect to Plaintiff's Cross Motion for Summary Judgment, no reasonable finder of fact could conclude from this set of facts that Defendants acted with deliberate indifference in their treatment of Plaintiff. Accordingly, Defendants' Motion for Summary Judgment will be granted and, correspondingly, there are no grounds for granting Plaintiff's cross motion, and his motion will be denied.
The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court upon Defendants Lisa Renee Kuntz and Correctional Medical Services' motion for summary judgment; and upon Plaintiff Michael D'Alessandro's cross motion for partial summary judgment; and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date; and for good cause shown;IT IS on this 2nd day of December, 2004, hereby
ORDERED that Defendants' motion for summary judgment [Docket Item No. 35-1] be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that Plaintiff's cross motion for partial summary judgment [Docket Item No. 42-1] be, and hereby is DENIED.