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Kaucher v. County of Bucks

August 2, 2006

JOHN KAUCHER; DAWN KAUCHER, H/W, APPELLANTS
v.
COUNTY OF BUCKS; MICHAEL FITZPATRICK, CHARLES MARTIN, SANDRA MILLER, INDIVIDUALLY AND AS BUCKS COUNTY COMMISSIONERS; GORDIAN EHRLACHER, INDIVIDUALLY AND AS DIRECTOR, BUCKS COUNTY DEPT. OF HEALTH; HARRIS GUBERNICK, INDIVIDUALLY AND AS DIRECTOR, BUCKS CO. DEPT. OF CORRECTIONS; WILLIS MORTON, INDIVIDUALLY AND AS WARDEN, BUCKS COUNTY CORRECTIONAL FACILITY; LEWIS POLK, M.D., INDIVIDUALLY AND AS MEDICAL DIRECTOR, HEALTH DEPT.; JOAN CROWE, INDIVIDUALLY AND AS NURSE, HEALTH DEPT.



On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil Action No. 03-cv-1212. (Honorable Robert F. Kelly).

The opinion of the court was delivered by: Scirica, Chief Judge

PRECEDENTIAL

Argued February 14, 2006

Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.

OPINION OF THE COURT

John Kaucher, a corrections officer at the Bucks County Correctional Facility, and his wife, Dawn Kaucher, filed suit under 42 U.S.C. § 1983 against the County of Bucks and several County employees responsible for the operation of the Correctional Facility, alleging a violation of their substantive due process rights. The Kauchers contend they contracted Methicilin Resistant Staphylococcus aureus infections as a result of defendants' conscience-shocking behavior in creating unsanitary and dangerous conditions at the jail. The District Court concluded the Kauchers failed to establish a substantive due process violation and granted defendants' motion for summary judgment. For the reasons set forth, we will affirm.

I.

Because this appeal comes to us from an order granting summary judgment in favor of defendants, we present and consider the facts in the light most favorable to plaintiffs. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). John Kaucher was hired by the County of Bucks in 1999 as a corrections officer at the Bucks County Correctional Facility, a medium to maximum security jail in Doyleston, Pennsylvania. The jail employs approximately 170 corrections officers, who are responsible for supervising inmates at work locations and in housing units and for transporting inmates between institutions and to and from outside appointments. The job description notes that corrections officers will have daily contact with incarcerated individuals and warns that "[w]ork involves regular exposure to unpredictable conditions and occasionally requires the expenditure of physical effort in restraining and subduing prisoners." (Suppl. App. 141.)

The Pennsylvania Department of Corrections conducts annual inspections of the jail to ensure compliance with statutory standards. After the June 2002 inspection, the Department of Corrections reported the jail was in compliance with the state's standards relating to personal hygiene, sanitation, safety, clothing, and personnel. It issued recommendations for improvement with respect to findings of mold, peeling paint, rusted vents, and leaking roofs, but noted jail officials were making a "good faith effort" to address these issues. In 2003, an expert in prison conditions inspected the jail and reported, among other things, problems with overcrowding, unsanitary conditions, food spoilage, and inadequate methods for handling contaminated clothing.

There had always been cases of inmates with skin infections at the jail, but in July 2002, the County Health Department noted an increase. The Health Department determined the infections were caused by Methicilin Resistant Staphylococcus aureus (MRSA), a drug-resistant strain of staph bacteria. MRSA is only susceptible to a limited number of antibiotics, but most MRSA skin infections can be treated without antibiotics by draining the sores.

MRSA can be spread through direct contact with infected individuals or through contact with materials that have been exposed to the bacteria. Conditions frequently associated with corrections facilities-including overcrowding, shared facilities, and close contact between inmates-can increase the risk of spreading. Unsanitary conditions can exacerbate the problem. The Kauchers contend the increase in skin infections among inmates during the summer of 2002 was the result of defendants' role in creating unsanitary and dangerous conditions at the jail.

Jail medical officials responded to the spread of infection by isolating infected inmates in single-occupancy cells. When single-occupancy cells were not available, infected inmates were isolated in a restricted housing unit, generally reserved for inmates with disciplinary problems. The Kauchers contend these efforts were counterproductive because fear of isolation led many inmates to hide their infections.

One of the County's doctors recommended to two nurses at the jail that inmates be treated with a particular antibiotic proven effective in treating MRSA infections-vancomycin. The doctor was informed that the drug was too costly and that his recommendation should not appear in the jail's medical records. He later testified he believed a "cover-up" was in effect.

Kaucher contends the first infectious disease training he received was in late 2003. But he does not dispute receiving a copy of the jail's standard operating procedures when he was first employed in 1999. These procedures include policies for supervising hospitalized inmates and handling inmates with communicable diseases. They warn that "[e]very inmate should be considered potentially infectious for communicable diseases," (Suppl. App. 174), and advise corrections officers to wash their hands frequently and to wear gloves when coming into direct contact with inmates and their possessions.

Kaucher describes two incidents of transporting infected inmates to a hospital for treatment, one during the summer of 2001 and the other during the fall of 2002. These incidents involved handcuffing and shackling the infected inmates and assisting them in using the hospital's telephones and bathrooms. Kaucher contends that in both cases, he was not advised of the inmates' infections or of the risk posed to his own health.

On August 21, 2002, Harris Gubernick, the Bucks County Director of Corrections, issued a memorandum to "quell any concerns about MRSA," and to reassure inmates and jail employees that "the medical staff is aware of the situation and is working diligently to treat those who have been diagnosed." (App. Vol. II 160.) The memorandum stated, "there are NO known cases in the facility," but advised that "proper hygiene is always recommended" to prevent the spread of infection. (Id.) It also reproduced a fact sheet about MRSA from the Department of Health and Human Services' Centers for Disease Control and Prevention, describing colonization, infection, and methods of prevention.

On August 27, 2002, as part of an inmate class action suit contesting conditions of confinement at the jail, a Magistrate Judge ordered that all inmates and staff be screened for MRSA. The order only required testing for MRSA infection, but the jail tested for colonization as well. Colonization occurs when the bacteria are present in the body without causing illness or infection. According to the Centers for Disease Control and Prevention, staph bacteria, including MRSA, are "commonly carried on the skin or in the nose of healthy people," and at any given time, approximately 25% to 30% of people in the United States have staph bacteria colonized in their noses. (App. Vol. I 40.) Of the approximately 1,126 individuals who were tested for colonization, 32 inmates and two corrections officers tested positive. Though colonization does not require treatment, all of the inmates and corrections officers who tested positive were immediately informed and treated to eradicate the colonized bacteria. At that time, Kaucher had no symptoms of an active MRSA infection. But he was given medicated ointment and advised to consult his personal physician.

In 2003, several inmates filed an action for damages against County and jail officials relating to MRSA infections they contracted at the jail. In January 2004, a jury returned a verdict for the plaintiffs. In sustaining the verdict, the District Judge determined the jury had a sufficient basis for concluding the defendants "through deliberate indifference allowed conditions in the facility that were likely to cause disease, injury, or suffering." Keller v. County of Bucks, No. 03-4017, 2005 U.S. Dist. LEXIS 4537, at *4 (E.D. Pa. Mar. 22, 2005). The district judge also determined the jury had a sufficient basis for concluding the defendants "knew of the MRSA infection spreading throughout the prison and failed to take necessary steps to minimize the number of inmates affected." Id. at *5.

In April 2003, Kaucher developed MRSA lesions on his chin and chest. He was treated surgically and received a 30-day course of antibiotics. Dawn Kaucher developed an infection earlier, in February 2002. She was hospitalized and received surgical treatment in March 2002 and again in September 2002. She was not employed at the jail, but an expert stated she most likely contracted MRSA from her husband.

On February 27, 2003, the Kauchers filed suit in the District Court for the Eastern District of Pennsylvania, alleging substantive due process violations under 42 U.S.C. § 1983, state law fraudulent misrepresentation, Pennsylvania constitutional violations, and violations of the Family and Medical Leave Act of 1993. Defendants filed a motion for summary judgment, which was granted on all claims on February 7, 2005. The Kauchers appeal, on the sole basis of their § 1983 claim.

II.

The District Court exercised jurisdiction under 28 U.S.C. § 1331 and § 1343(a)(3). We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court's order of summary judgment. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001).

Summary judgment is proper "if 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). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the non-moving party bears the burden of persuasion at trial, "the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d ...


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