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


1-14-2005

Sylvester v. Newark
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4872




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                                                          NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                             No. 03-4872


     LOURDES SYLVESTER, Administratrix Ad Prosequendum for the
      Estate of David Vargas; LOURDES SYLVESTER, Individually;
        WILFREDO VARGAS, JUANA VARGAS, Individually*,
                                        Appellants

                                   v.

   CITY OF NEWARK; THOMAS C. O'REILLY, Newark Chief of Police;
       JOSEPH J. SANTIAGO, Newark Director of Police; JOANNE Y.
    WATSON, Newark Business Administrator; SHARPE JAMES, Mayor
    of Newark; COUNTY OF ESSEX; JAMES W. TREFFINGER, County
      Executive; MARTIN R. HELLWIG, Warden of Essex County Jail;
MARK ESSEX COUNTY JAIL WARDEN, CAPTAIN, INTERNAL AFFAIRS
UNIT; ESSEX COUNTY JAIL; CORRECTIONAL HEALTH SERVICES, INC.

               (*Amended per Clerk's Order dated 2/4/04)


       APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW JERSEY
                       D.C. Civil No. 00-cv-02693
          District Judge: The Honorable Dennis M. Cavanaugh


               Submitted Under Third Circuit LAR 34.1(a)
                          November 2, 2004


         Before: ALITO, BARRY, and FUENTES, Circuit Judges


                 (Opinion Filed:   January 14, 2005   )
                                        OPINION


BARRY, Circuit Judge

       After the death of an inmate in a New Jersey prison, his family sued those

responsible for his detention and care. The District Court granted summary judgment on

all counts in favor of defendants. Summary judgment is, of course, proper when “there is

no genuine issue as to any material fact and the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). We have jurisdiction under 28 U.S.C. § 1291, and

exercise plenary review of the District Court’s order. See Sempier v. Johnson & Higgins,

45 F.3d 724, 727 (3d Cir. 1995). Based on that review, we will affirm.

                                             I.

       On the night of October 2, 1999, Newark police arrested the decedent, David

Vargas (“Vargas”). He was taken to the Newark City Jail where a medical intake sheet

was filled out; Vargas did not indicate that he had any medical problems or drug

dependencies. After his arraignment two days later on a charge of cocaine possession,

Vargas was transferred to the Essex County Jail, also in Newark.

       At 5:15 p.m. on October 5th, Corrections Officer (“C/O”) Littorio submitted an

“Urgent/Emergent Medical Contact Log Sheet” to advise the medical department that




                                             2
Vargas was complaining of “withdrawal.” A-CHS25. 1 Vargas, who was vomiting, was

seen almost immediately by Nurse Elgindy, a nurse employed by Correctional Health

Services (“CHS”), one of the appellees in this case. He told her that he had used seven

bags of heroin and two bottles of cocaine two days prior to his arrest and had not eaten for

four days. He was, she believed, in acute drug withdrawal.

       Nurse Elgindy contacted the on-call doctor, one Dr. Anicette, for instructions

regarding the proper course of treatment. Dr. Anicette prescribed Pepto Bismol,

Clonidine, Benadryl, and Tigan, an antinausea medication, which was to be administered

by injection in doses of 200 milligrams every six hours. At 5:30 p.m., Nurse Elgindy

gave Vargas the initial dose, and told him that if his vomiting did not stop, he could

request follow-up injections of Tigan. Vargas was returned to his cell shortly thereafter.

Later that day, Vargas was visited by his sister, appellant Sylvester. During their visit,

Vargas did not complain about his health; indeed, he told Sylvester that he was doing fine

without methadone because the medical staff had given him other medication to treat his

withdrawal.

       On October 7, Vargas was transferred to a facility in Caldwell, New Jersey, known

as the Jail Annex, after another CHS nurse, Nurse Boxer, reviewed his chart and cleared




   1
   Each party submitted an appendix in this case. Those references denoted by “A-
CHS” are from the appendix that Correctional Health Services provided; those denoting
“SA” are from the appendix provided by the County of Essex; and those beginning with
“A” are from the appendix provided by appellants.

                                              3
him for the transfer. The following day, at 11:20 a.m., he was given a routine physical

examination at the Jail Annex by Dr. Desembrana, a staff physician for CHS. Because

Vargas’s records from the Essex County Jail had not yet arrived, Dr. Desembrana took his

medical history. Vargas denied any medical problems but admitted that he had used

intravenous drugs for the past five years, and described stomach cramping consistent with

withdrawal, for which he was given Maalox and Tagamet. There were no outward signs

of distress and he was not vomiting.

       Vargas was returned to his cell between noon and 1:00 p.m. An inmate in a nearby

cell, Richard Bailey, noticed that Vargas looked sick and later told investigators that twice

he heard a guard ask Vargas if he wanted to go back to the infirmary, and both times

Vargas refused. Around 4:00 p.m., Nurse Francis, another nurse for CHS, arrived at the

Jail Annex. Dr. Desembrana told her to be sure to medicate Vargas during her shift

because he was going through withdrawal.

       Also at 4:00 p.m., as C/O Tafuri began his shift, he was called out to by Hakim

Coleman, Vargas’s cell-mate, because Vargas had fallen and was vomiting. C/O Tafuri

called for assistance, and C/O Brooks responded at 4:05 p.m. C/O Brooks immediately

called for medical support, including EMT staff. At 4:10 p.m., Nurse Francis arrived at

the cell and, within minutes, Vargas was being helped down the stairs to the infirmary,

where Nurse Francis took his vital signs and treated the cheek wound he sustained in his

fall. He was kept in the infirmary for observation.



                                             4
       Not long thereafter, another CHS staff member, Nurse Epie, was taking care of

diabetic inmates in a room next to the infirmary when C/O Purdie called to her that

Vargas did not appear to be breathing. Nurse Epie told Purdie to call 911 and

administered oxygen to Vargas, but he did not respond. An EMT crew performed CPR;

again, Vargas did not respond. Paramedics arrived at approximately 4:45 p.m. and

pronounced Vargas dead at 5:25 p.m. According to the Medical Examiner’s office, the

cause of death was acute peritonitis, gastric perforation, and acute and chronic gastritis.

Death was ruled to be “natural.”

       Dr. Ralph Woodward, the County’s Medical Director, reviewed Vargas’s records

and stated during his deposition that the cause of the gastric perforation was “speculative”

and could be due to a variety of factors, including prolonged vomiting or a genetic

weakness. Dr. Shansky, the Medical Monitor in prior class-action litigation involving the

Essex County jails, concluded that “it was not likely that [Vargas’s stomach problem]

could have been diagnosed early enough to save his life.” A-CHS106.

       On July 27, 2001, an amended complaint was filed, setting forth nine causes of

action.2 During argument on defendants’ summary judgment motion, plaintiffs withdrew

several of those claims, and the District Court subsequently granted summary judgment



   2
    The causes of action were (1) a claim under 42 U.S.C. § 1983; (2) a claim under 42
U.S.C. § 1981; (3) a claim under the New Jersey Law Against Discrimination; (4) a claim
under the New Jersey Constitution; (5) a claim of false imprisonment; (6) a claim of
assault and battery; (7) a claim of intentional infliction of emotional distress; (8) a claim
of wrongful death; (9) and a claim of loss of services and advice.

                                              5
on the claims that remained. This appeal followed.

                                             II.

       We have set forth at some length the specifics of the medical care given Vargas

because all but one-half page of appellants’ fifty-three page opening brief complains of

the care he received and bemoans the care he should have received. According to them,

that care was “inadequate” and “outside the bounds of sound professional judgment.”

Thus, appellees were “deliberately indifferent” and their conduct “shocked the

conscience” and, failing that, appellees were negligent. Given this, virtually the entirety

of the argument before us is addressed to Count One of the Amended Complaint, i.e. a

claim under 42 U.S.C. § 1983.3

       But the facts we have set forth and the other facts of record, even when viewed in

the light most favorable to appellants and stripped of the rhetoric and exaggeration with

which appellants have clothed them (Vargas was not, for example, left to “vomit for

days,” App. Br. at 18), underscore the conclusion of the District Court, and the conclusion

we reach: Vargas’s medical care was not “inadequate” at all, much less did it constitute,

as appellants contend, a violation of the Eighth Amendment.

       To begin with, appellants’ argument presumes the Eighth Amendment applies

here, which it does not. In this connection, Vargas was a pre-trial detainee to whom the




   3
   No common law negligence claim was pled, and appellants cannot raise a claim of
negligence now. See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).

                                             6
Due Process Clause of the Fourteenth Amendment afforded protection. Ingraham v.

Wright, 430 U.S. 651, 671-72 n.40 (1977); see also Bell v. Wolfish, 441 U.S. 520, 535

n.16 (1979). The Eighth Amendment applies only after the state “has secured a formal

adjudication of guilt” because prior to that time it has not acquired “the power to punish

with which the Eighth Amendment is concerned.” Ingraham, 430 U.S. at 671-72 n.40.

None of the parties has made this distinction and the District Court did not do so.

       As we indicated in a recent case in which the same error was made, although the

section 1983 claim should have been pleaded as one based on the Due Process Clause of

the Fourteenth Amendment, this failure

       does no lasting damage, however, as the Supreme Court has concluded that
       the Fourteenth Amendment affords pretrial detainees protections ‘at least as
       great as the Eighth Amendment protection available to a convicted
       prisoner,’ without deciding whether the Fourteenth Amendment provides
       greater protections. In previous cases, we have found no reason to apply a
       different standard than that set forth in Estelle [v. Gamble, 429 U.S. 97
       (1976)] (pertaining to prisoners’ claims of inadequate medical care under
       the Eighth Amendment) when evaluating whether a claim for inadequate
       medical care by a pre-trial detainee is sufficient under the Fourteenth
       Amendment.

Natale v. Camden County Correctional Facility, 318 F.3d 575, 581 (3d Cir. 2003)

(citation omitted). We, therefore, went on in Natale to evaluate the Fourteenth

Amendment claim for inadequate medical care under the now-familiar Eighth

Amendment standard, set forth in Estelle, used to evaluate similar claims, i.e. was there

evidence of a serious medical need and acts or omissions by prison officials indicating

deliberate indifference to those needs. Id. at 582.

                                             7
       There is no real dispute that Vargas was suffering from acute withdrawal with

excessive vomiting, a serious medical need. The question becomes, then, whether

appellees were deliberately indifferent to that need. The requisite deliberate indifference

can be manifested in various ways, such as “know[ing] of and disregard[ing] an excessive

risk to inmate health or safety,” Farmer v. Brennan, 511 U.S. 825, 837 (1994); “necessary

medical treatment [being] delayed for non-medical reasons,” Monmouth County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); and erecting “arbitrary and

burdensome procedures that ‘result in interminable delays and outright denials of medical

care to suffering inmates,’” id. (internal citations omitted).

       The record is bereft of any evidence of deliberate indifference, however that

standard is manifested. Vargas was immediately seen and treated when, at the Essex

County Jail, he went into withdrawal and was vomiting, and when, after transfer to the

Jail Annex, he described stomach problems consistent with withdrawal and later began to

vomit in his cell. There is no evidence that at any time Vargas’s condition or complaints

were ignored, or that care for that condition and those complaints was at any time delayed

for a non-medical reason or any other reason. And to the extent that appellants argue that

the medical professionals should have done more, or done it differently, or done it better,

that is not deliberate indifference. See, e.g., Inmates of Allegheny County Jail v. Pierce,




                                               8
612 F.2d 754, 760 (3d Cir. 1979). 4 Summary judgment was properly granted on Count

One.

                                            III.

       As mentioned at the outset, appellants’ claim of inadequate medical care occupies

all but a few lines of their opening brief on appeal. Those remaining few lines simply

conclude that the assault and battery claim must go to a jury, but do not cite any evidence

to support that claim or even suggest who committed the assault and battery, or why or

even when it was committed, if it was committed, which is anything but clear. Because

appellants were required to come forward with specific facts showing there was an issue

for trial and did not do so, the District Court correctly granted summary judgment on

Count Six of the Amended Complaint.

                                            IV.

       The November 25, 2003 order of the District Court will be affirmed.




________




   4
    It is worthy of some note, first, that no individual medical professional was named as
a defendant in the Amended Complaint and, second, that appellants concede there is no
vicarious liability against appellee CHS vis-a-vis the section 1983 claim. (A484).

                                             9
