Daniel Natale; Kathleen Natale v. Camden County Correctional Facility

PRECEDENTIAL
Filed February 7, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3449
DANIEL NATALE; KATHLEEN NATALE,
Appellants
v.
CAMDEN COUNTY CORRECTIONAL FACILITY;
COUNTY OF CAMDEN; CAMDEN COUNTY SHERIFF ’S
DEPARTMENT; PRISON HEALTH SERVICES, INC.
JOHN DOE, MD 1-5; RICHARD ROE, 1-5
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 99-cv-02579)
District Judge: Honorable Joel A. Pisano
Argued June 27, 2002
Before: AMBRO and STAPLETON, Circuit Judges
O’NEILL,* District Judge
(Opinion filed: February 7, 2003)
_________________________________________________________________
* Honorable Thomas N. O’Neill, Jr., United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Saul J. Steinberg, Esquire (Argued)
Sufrin, Zucker, Steinberg, Waller
& Wixted
519 Federal Street
Parkade Building, Suite 503
Camden, NJ 08103
Attorney for Appellant
Kevin W. Lynch, Esquire (Argued)
White & Williams LLP
222 Haddon Avenue, Suite 300
Westmont, NJ 08108
Attorney for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge:
We decide two issues: whether New Jersey law required
Daniel and Kathleen Natale (collectively, the "Natales"; in
the singular, the reference is to Daniel Natale) to file an
affidavit of merit in order to state a medical malpractice
claim, and whether the Natales provided sufficient evidence
of a governmental policy or custom for their claim under 42

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U.S.C. S 1983 to survive the motion of Prison Health
Services ("PHS") for summary judgment. The District Court
dismissed the Natales’ malpractice claim on the grounds
that New Jersey law required the filing of an affidavit of
merit that they did not submit. The District Court granted
summary judgment to PHS on the Natales’ S 1983 claim
because it concluded that they had not presented any
evidence of a policy or custom at PHS that deprived Daniel
Natale of his constitutional right to adequate medical care.
We reverse and remand both rulings. Because the
Natales’ malpractice claim falls within the "common
knowledge" exception to the affidavit requirement, they did
not need to submit the affidavit of a medical expert. In
addition, the Natales produced sufficient evidence of a
policy or custom at PHS that deprived Daniel Natale of his
right to adequate medical care to survive a motion for
summary judgment.
2
I. Background
On the evening of November 23, 1997, Gloucester
Township police arrested Daniel Natale, an insulin-
dependent diabetic. Before transporting him to the Camden
County Correctional Facility ("CCCF "), the police took him
to the emergency department of John F. Kennedy Memorial
Hospital for a medical clearance prior to incarceration. The
physician treating Natale at the hospital gave him a dose of
insulin, and wrote a note stating that Natale "must have
insulin" while incarcerated. The note did not, however,
indicate how often the insulin should be administered.
At 3:30 a.m. on November 24, 1997, Natale arrived at
CCCF, where, as part of his initial processing, employees of
PHS, a private company that provides health services to
CCCF inmates, performed a medical screening. Natale
informed PHS employees that he was an insulin-dependent
diabetic, and a PHS employee noted this fact on Natale’s
chart. There is no indication in the record that the PHS
employee screening Natale ever asked him how often he
needed insulin. Natale was then admitted to the general
prison population.
At 12:30 a.m. on November 25, 1997, twenty-one hours
after being admitted to CCCF, Natale received his first dose
of insulin at that facility. He was released later the same
day. Two days later, Natale suffered a stroke. Attributing
this stroke to the failure of PHS to administer insulin
during the first twenty-one hours of his incarceration,
Natale and his wife, Kathleen Natale, filed suit in New
Jersey state court on March 9, 1999, alleging medical
malpractice and violations of 42 U.S.C. SS 1981 and 1983.
Defendant Camden County removed the action to the
United States District Court for the District of New Jersey.
Discovery proceeded over the course of the next year.
On July 26, 2000, the District Court ordered sua sponte

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that the Natales show cause why their medical malpractice
claim should not be dismissed for failure to state a claim,
citing the Natales’ failure to comply with N.J. Stat. Ann.
S 2A:53A-27 (the "affidavit of merit statute"), which requires
the plaintiff in a malpractice case to file an expert affidavit
attesting to the merit of the plaintiff ’s claim. 1 The District
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1. The District Court also ordered that the Natales show cause why the
claims they had pleaded against fictional defendants should not be
3
Court also entered summary judgment in favor of CCCF,
the County of Camden, and the Camden County Sheriff ’s
Department (the "County Defendants") on the Natales’
S 1983 claim, and dismissed the Natales’ S 1981 claim as to
all defendants.2
On July 24, 2001, the District Court issued an order
dismissing the Natales’ medical malpractice claim for failure
to state a claim as a result of their failure to file an affidavit
of merit. On July 30, 2001, the District Court granted
PHS’s motion for summary judgment on the Natales’S 1983
claim. The District Court’s orders dismissing the Natales’
malpractice claim and granting summary judgment in favor
of PHS on their S 1983 claim were final orders, and the
Natales’ appeal of both was timely. We have jurisdiction
under 28 U.S.C. S 1291.
II. Discussion
A. Dismissal of the Natales’ Medical Malpractice Claim
We review de novo the dismissal of the Natales’ New
Jersey malpractice claim. Island Insteel Sys. Inc. v. Waters,
296 F.3d 200, 206 (3d Cir. 2002). The Natales argue that
because the issue of negligence in this case was one that
could be resolved from the jury’s common knowledge
without expert testimony, there was no need for an affidavit
of merit, citing to the Supreme Court of New Jersey’s recent
decision in Hubbard v. Reed, 774 A.2d 495, 499-500 (N.J.
2001) (holding that no affidavit of merit need be filed in
"common knowledge" malpractice cases).
A successful malpractice claim requires a plaintiff to
show, inter alia, that a duty of care existed and that the
defendant breached that duty.3Rosenberg v. Cahill, 492
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dismissed. On October 26, 2000, the Natales moved to amend their
complaint pursuant to Fed. R. Civ. P. 15 in order to substitute two
former PHS employees for the fictional defendants. The Magistrate Judge
denied this motion on December 21, 2000, and the Natales have not
sought review of that order.
2. The Natales also have not sought appellate review of this order.
3. Of course, as in any negligence claim, the plaintiff must also show
that the breach of duty caused his or her injuries, and that he or she
suffered damages as a result. See Rosenberg v. Cahill, 492 A.2d 371, 374

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(N.J. 1985) (noting that a medical malpractice case is "essentially no
different from an ordinary negligence case").
4
A.2d 371, 374 (N.J. 1985). In the typical malpractice case,
the duty of care, or "the standard of practice to which the
defendant-practitioner failed to adhere[,] must be
established by expert testimony." Id. (quoting Sanzari v.
Rosenfeld, 167 A.2d 625, 628 (N.J. 1961)). But where "the
jurors’ common knowledge as lay persons is sufficient to
enable them, using ordinary understanding and experience,
to determine a defendant’s negligence without the benefit of
the specialized knowledge of experts," Estate of Chin v.
Saint Barnabas Med. Ctr., 734 A.2d 778, 785 (N.J. 1999),
"the jury itself is allowed ‘to supply the applicable standard
of care and thus to obviate the necessity for expert
testimony relative thereto.’ " Rosenberg , 492 A.2d at 374
(quoting Sanzari, 167 A.2d at 632). The factual predicate
for a common knowledge case is one where " ‘the
carelessness of the defendant is readily apparent to anyone
of average intelligence and ordinary experience.’ " Estate of
Chin, 734 A.2d at 785-86 (quoting Rosenberg , 492 A.2d at
375).
The New Jersey legislature enacted the affidavit of merit
statute as part of a tort reform package "designed to strike
a fair balance between preserving a person’s right to sue
and controlling nuisance suits." Palanque v. Lambert-
Wooley, 774 A.2d 501, 505 (N.J. 2001) (internal quotation
marks omitted). The statute requires the plaintiff in a
malpractice action to file "an affidavit of an appropriate
licensed person [stating] that there exists a reasonable
probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the
subject of the complaint, fell outside acceptable
professional or occupational standards or treatment
practices." N.J. Stat. Ann. S 2A:53A-27. The penalty for not
following the statute is severe: absent a showing of
extraordinary circumstances, the failure to file the affidavit
within sixty days of the filing of the answer "shall be
deemed a failure to state a cause of action."S 2A:53A-29.
This requirement "curtail[s] frivolous litigation without
preventing access to the courts for meritorious claims."
Palanque, 774 A.2d at 505.
Where, however, common knowledge makes apparent a
claim’s merit, an expert’s affidavit is unnecessary. Hubbard,
5
774 A.2d at 499-500. In these cases, "the threshold of merit
should be readily apparent from a reading of the plaintiff ’s
complaint . . . [and] an expert is no more qualified to attest
to the merits of a plaintiff ’s claim than a non-expert." Id. at
500. The District Court concluded that in this case"the
crucial issue is whether defendant failed to timely
administer medication to Mr. Natale, an insulin-dependent

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diabetic," and that "[t]he acceptable professional standard
for treating an insulin-dependent diabetic is not within a
lay person’s common knowledge such that PHS’s negligence
can be determined without the benefit of the specialized
knowledge of experts."
We disagree. A reasonable jury could conclude that PHS
personnel were negligent absent expert testimony. PHS
personnel failed to call Natale’s treating physician to
determine how often he needed insulin to be administered.
They didn’t even ask Natale. When "defendant’s careless
acts are quite obvious," Palanque, 774 A.2d at 506, no
affidavit of merit is required. While laypersons are unlikely
to know how often insulin-dependent diabetics need
insulin, common sense--the judgment imparted by human
experience--would tell a layperson that medical personnel
charged with caring for an insulin-dependent diabetic
should determine how often the diabetic needs insulin. No
special expertise or expert testimony is needed to show, at
the outset of a case, that the claim is not frivolous. The
New Jersey Supreme Court’s decision in Hubbard supports
this view; thus no affidavit of merit need be filed. The
District Court’s decision to dismiss the Natales’ malpractice
claim for failure to file such an affidavit was therefore
erroneous, and we reverse.
B. Dismissal of the Natales’ 42 U.S.C. S 1983 Claim
The District Court granted summary judgment to PHS on
the Natales’ S 1983 claim on the ground that they failed to
provide any evidence "that a decisionmaker for PHS
established a policy or well-settled custom of ignoring the
medication needs of inmates at CCCF." We review the
decision de novo. Fogleman v. Mercy Hosp., Inc., 283 F.3d
561, 566 n.3 (3d Cir. 2002). We may affirm for any reason
supported by the record, even if not relied on by the
6
District Court. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.
2000).
Summary judgment is proper if, when viewed in the light
most favorable to the Natales, there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Bailey v. United
States, 279 F.3d 194, 198 (3d Cir. 2002). A factual dispute
is material if it bears on an essential element of the
plaintiff ’s claim, and is genuine if a reasonable jury could
find in favor of the nonmoving party. Fakete v. Aetna, Inc.,
308 F.3d 335, 337 (3d Cir. 2002) (quoting Cloverland-Green
Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201, 210
(3d Cir. 2002)). Because there is evidence from which a
reasonable jury could conclude that PHS had a policy
failing to address the immediate medication needs of CCCF
inmates with serious medical conditions, we conclude that
the District Court erred in granting summary judgment in
favor of PHS on the Natales’ S 1983 claim.

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To establish a claim under 42 U.S.C. S 1983, a plaintiff
must demonstrate a violation of a right protected by the
Constitution or the laws of the United States committed by
a person acting under the color of state law. Nicini, 212
F.3d at 806. It is undisputed that PHS was acting under
color of state law when it provided medical services to
Daniel Natale,4 and no federal laws are implicated by the
actions of PHS employees. Thus we focus on whether PHS
employees violated Natale’s constitutional rights.
When evaluating a claim brought under S 1983, we must
first "identify the exact contours of the underlying right said
to have been violated" in order to determine"whether
[Natale] has alleged a deprivation of a constitutional right at
all." Id. (quoting County of Sacramento v. Lewis, 523 U.S.
833, 841 n.5 (1998)). If so, the analysis then shifts to a
determination of whether the state actor, in this case PHS,
can be held liable for that violation. See Berg v. County of
Allegheny, 219 F.3d 261, 275 (3d Cir. 2000).
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4. The District Court noted in its written opinion that "PHS concede[d]
that it is a state actor." PHS did not appeal this conclusion.
7
1. Violation of Natale’s Constitutional Right
As a threshold matter, we note that the District Court
accepted the Natales’ S 1983 claim for inadequate medical
care as one arising under the Eighth Amendment right of a
convicted prisoner to receive adequate medical care,
articulated by the Supreme Court in Estelle v. Gamble, 429
U.S. 97, 103-04 (1976) (finding that a failure to provide
adequate medical care constitutes cruel and unusual
punishment). Daniel Natale was not, at any time relevant to
this case, a convicted prisoner. Rather, he was a pre-trial
detainee. While the Eighth Amendment prohibits the
infliction of cruel and unusual punishment upon prisoners,
it applies only "after [the State] has secured a formal
adjudication of guilt in accordance with due process of
law." City of Revere v. Massachusetts Gen. Hosp., 463 U.S.
239, 244 (1983) (quoting Ingraham v. Wright, 430 U.S. 651,
671-72 n.40 (1977)).
In this context, the Natales should have pleaded their
S 1983 claim as one based on the Due Process Clause of
the Fourteenth Amendment. Their failure to do so 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 protections available to a convicted prisoner,"
without deciding whether the Fourteenth Amendment
provides greater protections. Id. In previous cases, we have
found no reason to apply a different standard than that set
forth in Estelle (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

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Fourteenth Amendment. See, e.g., Boring v. Kozakiewicz,
833 F.2d 468, 472 (3d Cir. 1987).5
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5. As the issue was not raised before us, we do not decide whether the
Due Process Clause provides additional protections to pretrial detainees
beyond those provided by the Eighth Amendment to convicted prisoners.
See Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 n.9 (9th
Cir. 2002) (noting that "it is quite possible[ ] that the protections
provided pretrial detainees under the Fourteenth Amendment in some
instances exceed those provided convicted prisoners by the Eighth
8
We therefore evaluate the Natales’ Fourteenth
Amendment claim for inadequate medical care under the
standard used to evaluate similar claims brought under the
Eighth Amendment, the standard used by the District
Court to evaluate the Natales’ claim. In Estelle , the
Supreme Court held that the Eighth Amendment proscribes
deliberate indifference to prisoners’ serious medical needs.
429 U.S. at 103-04. In order to establish a violation of
Daniel Natale’s constitutional right to adequate medical
care, evidence must show (i) a serious medical need, and (ii)
acts or omissions by prison officials that indicate deliberate
indifference to that need. Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999).
Natale has established that he is an insulin-dependent
diabetic. PHS does not dispute that this is a serious illness,
and that Natale had a serious medical need. Because PHS
is a state actor, employees of PHS are considered prison
officials. The question, therefore, is whether PHS employees
were deliberately indifferent to Natale’s serious medical
needs.6
Deliberate indifference is a "subjective standard of
liability consistent with recklessness as that term is defined
in criminal law." Nicini, 212 F.3d at 811. In Farmer v.
Brennan, the Supreme Court held that finding a prison
official liable for violating a prisoner’s Eighth Amendment
rights requires proof that the official "knows of and
disregards an excessive risk to inmate health or safety."
511 U.S. 825, 837 (1994). He must be "both [ ] aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and . . . draw the
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Amendment"). We have noted previously that the Due Process Clause
provides "at a minimum, no less protection" than is provided by the
Eighth Amendment. Colburn v. Upper Darby Township, 838 F.2d 663,
668 (3d Cir. 1988); see also Simmons v. City of Philadelphia, 947 F.2d
1042, 1067 (3d Cir. 1991).
6. Producing evidence that PHS employees were deliberately indifferent to
Natale’s serious medical needs would, of course, only resolve the
question whether he has alleged a violation of a constitutional right, not
whether PHS itself can be held liable for its employees’ violation of that
right, discussed infra in Part B2.

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9
inference." Id. To survive a summary judgment motion on
this issue, the Natales "must point to some evidence
beyond [their] raw claim that [PHS employees] w[ere]
deliberately indifferent," or put another way, some evidence
"that [PHS employees] knew or w[ere] aware of [the risk to
Natale]." Singletary, 266 F.3d at 192 n.2.
In situations involving claims for inadequate medical
care, we have found deliberate indifference in situations
where there was "objective evidence that [a] plaintiff had
serious need for medical care," and prison officials ignored
that evidence. Nicini, 212 F.3d at 815 n.14. We have also
found deliberate indifference in situations where"necessary
medical treatment is delayed for non-medical reasons."
Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987) (citing Ancata v. Prison Health
Servs., 769 F.2d 700, 704 (11th Cir. 1985)).
Sufficient evidence exists in the record that PHS
employees were deliberately indifferent to Natale’s serious
medical needs to survive a summary judgment motion.
First, as in Nicini, prison officials ignored the evidence of
his need for insulin. Natale testified that he informed a PHS
employee that he was an insulin-dependent diabetic, a PHS
employee noted this fact on his chart, and he had a note
from a physician indicating that he "must have insulin." A
reasonable jury could conclude that PHS employees knew
that Natale was an insulin-dependent diabetic and that if
insulin was not administered as required, he would suffer
adverse health consequences. In addition, there is evidence
that, as in Monmouth County, PHS employees delayed
medical treatment for non-medical reasons--the PHS policy
that failed to address the immediate medication needs of
inmates with serious medical conditions. Nurse Lynda
Sanferraro, a PHS employee, testified that PHS’s"policy"
was that a doctor would see inmates within 72 hours, but
that there was no practice in place to accommodate
inmates with more immediate medication needs.7 A
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7. Nurse Sanferraro testified as follows:
Q: So that from what you’re saying, if somebody came in with this
form, the first page of Lynda-2, a doctor would still have to assess
10
reasonable jury could find that such a practice constituted
the delay of medical treatment for non-medical reasons.
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Mr. Natale to determine what medications, if any, should be
administered?
A: Yes.

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Q: Do you know how soon it would have been for there to have
been a determination of when Mr. Natale should have been
examined by a physician?
A: I know there was [a] policy of within 72 hours.
* * *
Q: Is there anybody to your knowledge in PHS back in November
of 1997 who would have been made or been responsible to
determine if an inmate needed to be medically examined by a doctor
earlier in the 72 hour period versus later in the 72 hour period?
A: There was no real determination on that.
* * *
Q: So that for the first 72 hours they may not be seen by the
doctor; is that a fair statement? I’m talking about November of 1997.
A: In 72 hours they were seen by the doctor.
Q: Up until that point they’re in Three South A?
A: Yes
Q: Unless they have obvious physical either a[sic] deformity or a
problem with ambulation or something of that nature?
A: Yes.
Q: Do you know whether or not the medical assistant was
supposed to report to anyone else if the medical assistant was made
aware of a chronic condition of an inmate such as diabetes?
A: Can you repeat that?
Q: Yes. When the medical assistant took the assessment interview
receiving screening and was told that an inmate is diabetic, what
was the medical assistant supposed to do with that knowledge?
A: Write it on this form.
Q: That’s it?
A: Yes.
11
The Natales have, therefore, provided sufficient evidence to
survive a motion for summary judgment on the question of
whether PHS employees violated Daniel Natale’s Fourteenth
Amendment right to adequate health care while detained.
2. Liability of PHS for Its Employees’ Violations of
Natale’s Constitutional Right
What remains to be determined is whether, for S 1983

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purposes, the actions of PHS employees can be attributed
to PHS itself.8 PHS cannot be held responsible for the acts
of its employees under a theory of respondeat superior or
vicarious liability.9 See Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 691 (1978). In order for PHS to be
liable, the Natales must provide evidence that there was a
relevant PHS policy or custom, and that the policy caused
the constitutional violation they allege. See Bd. of the
County Comm’rs of Bryan County, Oklahoma v. Brown , 520
U.S. 397, 404 (1997).
Not all state action rises to the level of a custom or
policy. A policy is made "when a decisionmaker possess[ing]
final authority to establish municipal policy with respect to
the action issues a final proclamation, policy or edict."
Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)
(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481
(1986) (plurality opinion)). A custom is an act"that has not
been formally approved by an appropriate decisionmaker,"
but that is "so widespread as to have the force of law."
Bryan County, 520 U.S. at 404.
There are three situations where acts of a government
employee may be deemed to be the result of a policy or
custom of the governmental entity for whom the employee
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8. While PHS employees may have violated Natale’s constitutional rights,
the Natales have not appealed the dismissal by the District Court of their
claims against any defendants except PHS. Whether their S 1983 claim
is viable, therefore, depends on whether the actions of PHS employees
can be attributed to PHS.
9. Respondeat superior and vicarious liability are the theories under
which courts "impose liability vicariously . . . solely on the basis of the
existence of an employer-employee relationship with a tortfeasor." Monell
v. New York City Dept. of Soc. Servs., 436 U.S. 658, 692 (1978).
12
works, thereby rendering the entity liable underS 1983.
The first is where "the appropriate officer or entity
promulgates a generally applicable statement of policy and
the subsequent act complained of is simply an
implementation of that policy." Bryan County , 520 U.S. at
417 (Souter, J., dissenting).10 The second occurs where "no
rule has been announced as policy but federal law has been
violated by an act of the policymaker itself." Id. Finally, a
policy or custom may also exist where "the policymaker has
failed to act affirmatively at all, [though] the need to take
some action to control the agents of the government‘is so
obvious, and the inadequacy of existing practice so likely to
result in the violation of constitutional rights, that the
policymaker can reasonably be said to have been
deliberately indifferent to the need.’ " Id. at 417-18 (quoting
City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989));
see also Berg, 219 F.3d at 276 (holding that plaintiff must
"demonstrat[e] that the municipal action was taken with
‘deliberate indifference’ to its known or obvious

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consequences").
In this case, there is no evidence that PHS had an
affirmative policy or custom that prevented its employees
from inquiring into the frequency with which Natale
required insulin. There is, however, evidence that PHS
turned a blind eye to an obviously inadequate practice that
was likely to result in the violation of constitutional rights.
The Natales allege that the failure to establish a policy to
address the medication needs of inmates during the first 72
hours of their incarceration constitutes deliberate
indifference to serious medical needs. We return to the
testimony of PHS employee Lynda Sanferraro, and what a
reasonable trier of fact could conclude from that testimony.
According to Sanferraro, the policy at PHS for screening
inmates was as follows: a medical assistant would inquire
about an incoming inmate’s medication needs, and write
those needs in the inmate’s medical records, but was not
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10. We cite Justice Souter’s dissenting opinion for its cogent and concise
summary of the three situations in which a policy or custom sufficient
to impose liability may arise, not its conclusion about the requisite
evidentiary showing in those situations.
13
otherwise required to pass on that information. No one
could provide an inmate with medication without having
first obtained an order from a doctor. There was no
requirement that a doctor see an inmate during the first 72
hours of incarceration and no one was charged with
determining whether an inmate should be seen by a doctor
earlier in the 72-hour period. As a result, there was no
policy ensuring that an inmate having need of medication
for a serious medical condition would be given that
medication during the first 72 hours of his incarceration.
A reasonable jury could conclude that the failure to
establish a policy to address the immediate medication
needs of inmates with serious medical conditions creates a
risk that is sufficiently obvious as to constitute deliberate
indifference to those inmates’ medical needs. The failure to
establish such a policy is a "particular[ly] glaring omission"
in a program of medical care. Bryan County, 520 U.S. at
410-11. PHS "disregarded a known or obvious"
consequence of its actions, i.e., the likelihood that the
medical conditions of some inmates may require that
medication be administered within the first 72 hours of
their incarceration. Id. at 412. A reasonable jury could infer
that "a system responsible for [assessing the medical needs
of all incoming prisoners] would be the product of a
decision maker’s action or acquiescence." See Berg, 219
F.3d at 275 (holding that a reasonable jury could infer from
testimony of police officer about system for issuing
warrants that system was the product of a decisionmaker).
It could also infer that the failure to establish a more
responsive policy caused the specific constitutional

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violation of which the Natales complain, i.e., the failure to
administer insulin to Daniel Natale in a timely fashion. See
Bryan County, 520 U.S. at 404 (holding that plaintiff must
demonstrate "a direct causal link between the municipal
action and the deprivation of federal rights"); see also
Kneipp, 95 F.3d at 1213 (holding that plaintiff must
"establish that the government policy or custom was the
proximate cause of the injuries suffered").
The Natales have provided the testimony of a witness who
testified from personal knowledge about the policy for
assessing the medical needs of inmates, and the gap in the
14
procedure for patients with immediate and serious
medication needs. Her testimony provides sufficient
evidence from which a reasonable jury could infer that PHS
was deliberately indifferent to the risk to inmates like
Daniel Natale. Thus, the Natales’ S 1983 claim against PHS
survives summary judgment.
III. Conclusion
For the reasons stated above, we reverse the District
Court’s order dismissing the Natales’ malpractice claim and
its order granting summary judgment in favor of PHS on
the Natales’ 42 U.S.C. S 1983 claim, and remand to the
District Court for further proceedings consistent with this
opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
15

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