Ronald J. Gallo v. Washington County

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1533
RONALD J. GALLO,
Appellant
v.
WASHINGTON COUNTY;
JOSEPH S. PELZER, warden, in his official capacity;
CHERYL MCGAVITT, facility nurse, individually and in her official capacity;
JEFFREY MINTEER, M.D.; RICHARD APREA, M.D.;
DAVID DRUSKIN, P.A.
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-08-cv-00504
District Judge: The Honorable Arthur J. Schwab
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 14, 2010
Before: SCIRICA, Chief Judge, BARRY, and SMITH, Circuit Judges
(Filed: January 28, 2010)
OPINION

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SMITH, Circuit Judge.
On June 30, 2006, Ronald Gallo began serving a three to twelve month term
of imprisonment at the Washington County Correctional Facility in Washington
County, Pennsylvania. The health care screening form noted that the day before
his incarceration Gallo had been prescribed an antibiotic for an infected finger on
his left hand, which had been incised and drained. The following day, an order
was issued to continue the course of antibiotic therapy. A progress note dated July
3, 2006, indicated that the finger was “doing better” and that Gallo was to keep the
wound clean and open.
In late August, Gallo complained of a “bite on his left elbow” and sought
medical treatment. Warm compresses were prescribed. The following morning,
Gallo was examined by a licensed practical nurse and a dressing was applied to the
affected area, which was notable for the presence of a tan-colored drainage. A
physician’s assistant assessed the area the following day, obtained a culture and
sensitivity, incised and drained the wound, and prescribed an antibiotic. The
culture revealed that Gallo had an infection caused by methicillin resistant
staphylococcus aureus (MRSA). As a result, Gallo’s antibiotic was changed to
one that was effective against MRSA.
On September 19, Gallo requested a sick call because of pain in his left
thigh and knee, which he attributed to playing basketball the previous week.

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Although this request was denied, a second request was granted on September 22.
Physical examination revealed that Gallo had difficulty ambulating. He was
transferred to the medical unit for observation, treated with over-the-counter
analgesics, and directed to elevate his leg and to apply ice. Further evaluation on
September 25 revealed no redness or swelling of the leg, or the presence of a
fever. On September 27, a request was made for an evaluation by a physician,
and Dr. Richard Aprea examined Gallo. He ordered an x-ray of the leg, crutches,
ice to the affected area, and Ibuprofen, an anti-inflammatory agent. The x-ray
showed no fracture or dislocation. On September 29, Gallo developed a fever.
The medical staff contacted Dr. Aprea, who referred Gallo to the Washington
Hospital Emergency Room for evaluation. Gallo was subsequently diagnosed
with a MRSA infection in his left thigh affecting his muscles and his femur. Gallo
required multiple surgeries and an extensive course of medical treatment.
On April 10, 2008, Gallo initiated a civil action, under 42 U.S.C. § 1983,
against Washington County, Warden Joseph Pelzer, and Nurse Cheryl McGavitt,
alleging that they were deliberately indifferent to his medical needs in violation of
the Eighth Amendment to the United States Constitution. In addition, Gallo
brought state law claims for medical malpractice against his treating physicians
and a physician’s assistant. All defendants moved for summary judgment and the
District Court granted their motions as to the federal claims. The Court held that

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The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we 1
have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a
district court’s grant of summary judgment and apply the same standard that the
district court should have applied. Nunez v. Pachman, 578 F.3d 228, 230 (3d Cir.
2009).
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while the evidence may have been sufficient to establish negligence, it was
insufficient to establish the culpability required for a § 1983 action claiming
deliberate indifference. The Court declined to exercise supplemental jurisdiction
over the state law claims, and dismissed them.
This timely appeal followed. Gallo contends that the District Court erred in1
granting the motions for summary judgment against the prison defendants. We
will affirm.
After a de novo review of the record, we conclude that the District Court
properly granted summary judgment as to Gallo’s claim against Nurse McGavitt.
Gallo contends that there were genuine issues of material fact as to whether Nurse
McGavitt violated his constitutional rights by providing “inadequate medical care”
following the positive MRSA culture and his persistent complaints of leg pain in
September. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court
instructed that “an inadvertent failure to provide adequate medical care” does not
constitute deliberate indifference. Id. at 105. Thus, negligence in “treating a
medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment.” Id. at 106. Rather, in order to survive summary judgment,

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Gallo must demonstrate that Nurse McGavitt acted with a “conscious disregard” of
his serious medical needs. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(citing Farmer v. Brennan, 511 U.S. 825, 842 (1994); and Whitley v. Albers, 475
U.S. 312, 319 (1986)). Yet the facts adduced by Gallo demonstrate that the prison
medical staff, including Nurse McGavitt, was actively engaged in efforts to
alleviate his pain, and to diagnose and to treat his condition. Accordingly, we will
affirm the District Court’s grant of summary judgment on Gallo’s deliberate
indifference claim against Nurse McGavitt.
Gallo contends that the District Court also erred in granting summary
judgment in favor of Washington County and Warden Pelzer on his claim of
municipal liability for deliberate indifference. He asserts that the evidence of
record established actual knowledge of the threat of MRSA in the facility, and a
failure by the facility to implement policies to address that threat. He also points
to the existence of a policy that required inmates to sanitize their own cells,
provided that the facility was not in lockdown, and claims that this policy placed
the inmates directly at risk of infection.
Municipal liability, as Monell v. Department of Social Services teaches,
hinges on whether a “government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy,” causes the violation of a constitutional right. 436 U.S. 658, 694 (1978).

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In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court instructed
that municipal liability
attaches where—and only where—a deliberate choice to follow a
course of action is made from among various alternatives by
[municipal] policymakers. Only where a failure to [act] reflects a
“deliberate” or “conscious” choice by a municipality—a “policy”’ as
defined by our prior cases—can a [municipality] be liable for such a
failure under § 1983.
Id. at 389 (citation omitted).
Thus, in the context of this case, the question is whether the evidence
demonstrates that the correctional facility made a deliberate choice not to take
reasonable steps to address a substantial risk of serious harm to an inmate. Id. at
390; see Helling v. McKinney, 509 U.S. 25, 35 (1993) (affirming that an inmate
“states a cause of action under the Eighth Amendment by alleging that [prison
officials] have, with deliberate indifference, exposed him to levels of
[environmental tobacco smoke] that pose an unreasonable risk of serious damage
to his future health”); Farmer, 511 U.S. at 837 (considering the showing needed
for a deliberate indifference claim based on a failure to prevent harm to an
inmate). Relevant to this inquiry is the extent to which the risk of harm was
obvious and whether the failure to implement a policy or policies to address that
harm was likely to result in the violation of Gallo’s constitutional right. Harris,
489 U.S. at 390, and 396-97 (O’Connor, J., concurring) (observing that whether

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policymakers had notice that a particular omission was substantially certain to
result in a constitutional violation will inform the deliberate indifference analysis).
Furthermore, because Gallo’s claim asserts a violation of the Eighth Amendment,
he must establish both that the prison officials were “aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and
[that they] . . . dr[ew] the inference.” Farmer, 511 U.S. at 837 and 841
(instructing that the objective standard set forth in Harris “is not an appropriate
test for determining the liability of prison officials under the Eighth Amendment”).
In other words, Gallo’s Eighth Amendment claim requires a “showing that the
official was subjectively aware of the risk.” Id. at 829.
Here, Gallo has not satisfied his burden of establishing facts sufficient to
support his municipal liability claim. The evidence adduced is sufficient to
establish actual knowledge by Warden Pelzer of the existence of MRSA and that a
few inmates in the facility may have been infected with the pathogen, and
constructive knowledge by Warden Pelzer that additional policies could have been
implemented in an effort to decrease the risk of contracting MRSA in a
correctional facility. But the evidence of record does not show that the officials of
the Washington County Correctional Facility were subjectively aware that the
policies in effect were so inadequate that they resulted in the inmates being
exposed to a substantial risk of contracting infection by MRSA. Accordingly, we

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will affirm the District Court’s order granting summary judgment on Gallo’s
municipal liability claim against Washington County and Warden Pelzer.

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