                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2005

Vile v. Klem
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3914




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Recommended Citation
"Vile v. Klem" (2005). 2005 Decisions. Paper 1184.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1184


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DPS-198                                                  NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                 NO. 04-3914
                              ________________

                              THOMAS S. VILE,
                                         Appellant

                                       v.

                    ED KLEM, Superintendent, SCI Retreat;
                CHARLES ERICKSON, Deputy Superintendent
                     of Facility Management, SCI Retreat;
                  JOSEPH J. PIAZZA, Deputy Superintendent
                      of Centralized Services, SCI Retreat;
                     MIKE HOOVER, Intelligence/Security
                              Captain, SCI Retreat;
          JOSEPH L. LENGYEL, Grievance Coordinator/Superintendent's
                             Assistant, SCI Retreat;
                JOSEPH MATALONI, Correctional Health Care
                          Administrator, SCI Retreat;
               RENALDO DIAZ, Doctor (Correctional Physician's
                             Services), SCI Retreat;
              JAMES UPDYKE, Physician's Assistant, SCI Retreat;
          GEORDETTE KASPERYCHK, Nursing Supervisor, SCI Retreat;
          DALE HAZLAK, Unit Manager for A-Housing Unit, SCI Retreat;
               M. RUCKLE, Mail Room Supervisor, SCI Retreat;
               ROBERT JESSE, Correctional Officer, SCI Retreat;
                RUTKOWSKI, Correctional Officer, SCI Retreat;
                         Unknown Dr., Anesthesiologist,
                         Wilkes-Barre General Hospital;
            DELLA ROSSA, Physician, Wilkes-Barre General Hospital;
                        DOCTOR LUCCHINO, Surgeon
                          _______________________

                 On Appeal From the United States District Court
                     For the Middle District of Pennsylvania
                           (D.C. Civ. No. 02-cv-00285)
                    District Judge: Honorable Malcolm Muir
                     _______________________________________

         Submitted For Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                    April 14, 2005

                   Before: ROTH, BARRY and SMITH, Circuit Judges

                                  (Filed: May 16, 2005)
                                   __________________




                                       OPINION
                                 ____________________

PER CURIAM


       Appellant, Thomas Vile, appeals the District Court’s order dismissing his pro se

civil rights complaint. Upon consideration of the record, we conclude that the appeal

presents no arguable issues of fact or law. Thus, we will dismiss it pursuant to 28 U.S.C. §

1915(e)(2)(B).

       Vile filed a complaint pursuant to 42 U.S.C § 1983 in the United States District

Court for the Middle District of Pennsylvania alleging that various officials and

correctional officers at SCI-Retreat, as well as physicians and surgeons at Wilkes-Barre

General Hospital, violated his First, Eighth, Thirteenth and Fourteenth Amendment rights.

The District Court, through its adoption of particular portions of the Magistrate Judge’s

Report and Recommendation and its own supplemental analysis, determined that

defendants were entitled to have summary judgment granted in their favor.



                                             2
         With respect to the Eighth Amendment claims against defendants Diaz and Updyke

for the care appellant received after being discharged from the prison infirmary, the

District Court concluded that Vile failed to establish that the defendants were deliberately

indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97 (1976). Summary

judgment was likewise held to be warranted with respect to Vile’s Eighth Amendment

claims against the correctional defendants insofar as they were not deliberately indifferent

for allegedly failing to respond to Vile’s medical complaints when he was already being

treated by the prison doctor and other health care professionals. Durmer v. O’Carroll, 991

F.2d 64, 69 (3d Cir. 1993). Insofar as Vile failed to present evidence that defendant Jesse

used force on him maliciously and sadistically for the very purpose of causing harm,

summary judgment was entered against him on his Eighth Amendment excessive force

claim.

         Vile’s Eighth Amendment failure to protect claims against defendants Rutkowski,

Hazlak, Erickson and Piazza fared no better as appellant failed to present any evidence

that he faced a substantial risk of serious harm from other prisoners, or that defendants

knew he faced a substantial risk such that they could be considered deliberately indifferent

to that risk. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Additionally, a lack of

summary judgment evidence proved fatal to Vile’s claim that defendant Hazlak had

appellant confined to the Restricted Housing Unit in retaliation for his complaints about

another inmate. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).



                                              3
       Judgment was entered in favor of defendant Ruckle on Vile’s access to the courts

claim given his failure to present any evidence from which a reasonable factfinder could

conclude that he suffered an actual injury as required by the Supreme Court in Lewis v.

Casey, 518 U.S. 343, 350 (1996). To the extent that Vile’s claim against defendant Ruckle

could be construed as a First Amendment free speech claim, the District Court determined

that no reasonable factfinder could conclude that the three instances referenced by

appellant constituted “a pattern or practice” of tampering with Vile’s mail. See Bieregu v.

Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), overruled on other grounds, Lewis v. Casey, 518

U.S. 343 (1996). Likewise, no constitutional violation was established with respect to

problems appellant allegedly encountered in using the institution’s grievance procedure, or

with respect to his due process claim relating to his stolen property – the latter claim

having been rendered moot by the compensation defendants awarded Vile in an amount

agreed upon as the value of the stolen property.

       Finally, it was ultimately determined that, based on the undisputed material facts

supported by the record evidence, Vile’s Eighth Amendment claim against defendant

Lucchino failed as a matter of law. Having reviewed Dr. Lucchino’s motion for summary

judgment, statement of facts and supporting brief, as well as Vile’s opposing brief and

counter statement of facts, the District Court concluded that Vile failed to show that there

remained a genuine issue requiring submission of the matter to a jury on any of the three

specific allegations underlying Vile’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-



                                               4
23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In particular,

the medical records demonstrated that provisions had originally been made for a local

anesthetic to be administered and that the decision to administer general anesthesia

originated with the anesthesiologist, that no evidence existed to indicate that Vile’s health

was jeopardized by the withdrawal of blood, and that there was no evidence of deliberate

indifference on the part of Dr. Lucchino (or anyone else for that matter) with respect to

Vile’s fall off of the operating room table. Moreover, insofar as allegations of medical

malpractice and expressions of mere disagreement as to proper medical treatment are

insufficient to establish a constitutional violation, the District Court concluded that Dr.

Lucchino was entitled to judgment as a matter of law. See Spruill v. Gillis, 372 F.3d 218,

235 (3d Cir. 2004).

       Having carefully reviewed the record on appeal, we agree with the District Court’s

conclusion that defendants were entitled to have judgment entered in their favor. As there

is little, if anything, we can add to the well-reasoned analysis set forth in the adopted

portions of the Magistrate Judge’s Report and Recommendation and the District Court’s

Orders, we will dismiss appellant’s appeal without further discussion pursuant to 28

U.S.C. § 1915(e)(2)(B) as it is lacking in legal merit. Neitzke v. Williams, 490 U.S. 319

(1989).




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