TALBERT v. KAPLAN

Filing 22

MEMORANDUM, FILED. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 8/20/13. 8/20/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHARLES TALBERT,
Plaintiff
v.
MARK KAPLAN,
Defendant

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CIVIL ACTION

NO. 12-6533

MEMORANDUM
STENGEL, J.

August 20, 2013

Charles Talbert brings this action pursuant to 42 U.S.C. § 1983 alleging that Mark
Kaplan, MD, a private trauma surgeon, violated his rights under the Eighth Amendment1
to the United States Constitution. Dr. Kaplan filed a motion to dismiss arguing, inter
alia, that Mr. Talbert’s claim against him must be dismissed because Dr. Kaplan cannot
be considered a state actor. For the following reasons, I will grant the motion in its
entirety.
I. BACKGROUND2
The complaint alleges that on February 4, 2011, Mr. Talbert was shot multiple
times in the upper half of his body. He was taken by ambulance to Albert Einstein
Medical Center’s Emergency Room, “where Defendant Dr. Mark Kaplan performed
The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S.
Const. amend. VIII.
1

2

The facts are gleaned from the complaint and the extrinsic documents upon which it is based.
See GSC Partners, CDO Fund v. Washington, 368 F.3d 228, 236 (3d Cir. 2004). For the
purposes of this motion, they are presented in the light most favorable to the plaintiff, as the nonmoving party, and are accepted as true with all reasonable inferences drawn in his favor.

immaculate surgery and saved [Mr. Talbert’s] life.”3 See Compl. ¶ 8. Mr. Talbert
remained in the hospital as a private patient and was followed by Dr. Kaplan. During the
course of healing from the gun shots and surgery, Mr. Talbert required a colostomy4 and
other painful treatments to prevent infection. Dr. Kaplan allegedly promised Mr. Talbert
that the colostomy was reversible, and that he would not have to worry about wearing it
for the rest of his life. Id. at ¶ 10.
One day while Mr. Talbert was still hospitalized, Dr. Kaplan was examining him
and ordered the nurse to change the sponge that was inside of Mr. Talbert connected to
his wound. Mr. Talbert “kindly declined” because a nurse had already changed the
sponge about a half hour before the doctor’s visit. Id. at ¶ 13. The procedure was very
painful to Mr. Talbert, and he did not wish to go through it twice within such a short span
of time. The complaint alleges that, after Mr. Talbert declined the procedure, Dr. Kaplan
“got nasty at the mouth, unprofessionally, calling [Mr. Talbert] a ‘liar,’ in which
grabbed” the attention of the nurse, Mr. Talbert, and his girlfriend. Id. at ¶ 14. After the
physician “disrespected [Mr. Talbert] verbally, [Mr. Talbert] made it out of [his] bed, and
into [Dr. Kaplan’s] face, telling him not to ever verbally, or in no shape, or form
disrespect [Mr. Talbert], by calling [Mr. Talbert] out of [his] name again or it would be a

3

I note that at the time of the shooting, surgery, and subsequent admission to Albert Einstein,
Mr. Talbert was neither a prisoner nor charged with a crime. See Compl. ¶ 20.
4

A colostomy is defined as an artificial exit from the colon created to divert waste through a
hole in the colon and through the wall of the abdomen. It is commonly performed by severing the
colon and then attaching the end leading to the stomach to the skin, through the wall of the
abdomen. At the exterior opening (stoma), a bag can be attached for waste removal. Usually a
colostomy is performed because of infection, blockage, cancer, or in rare instances, severe
trauma of the colon. http://www.medterms.com/script/main/art.asp?articlekey=2796.

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problem.” Id. at ¶ 15. Afterwards, Dr. Kaplan’s “demeanor suddenly seemed vengeful
when he replied back that [Mr. Talbert] was not grateful of nothing [sic] [Dr. Kaplan] did
to help [Mr. Talbert] when [he] got shot.” Id. at ¶ 17. Mr. Talbert, his father, and his
girlfriend then agreed that Mr. Talbert should find another trauma surgeon, because they
felt that “Dr. Kaplan had the potential of holding a grudge.” Id. at ¶ 18. During every
other routine check-up during the month of February 2011, “Dr. Kaplan seemed very
distant, as if venom was [sic] lying underneath his ulterior motive.” Id. at ¶ 19.
In July 2011, Mr. Talbert was arrested and incarcerated at the Curran Fromhold
Correctional Facility, where Corizon Medical provides health care to the inmates. Id. at
¶¶ 20-21. For approximately a year, Mr. Talbert was brought periodically to Albert
Einstein to be examined by Dr. Kaplan to determine when surgery could be performed to
reverse Mr. Talbert’s colostomy. Id. at ¶¶ 22-23. On February 10, 2012, the scheduled
day of the colostomy reversal, Dr. Kaplan allegedly reassured Mr. Talbert that after a
short procedure, he would be “back to normal.” Id. at ¶ 25. Upon awaking from the
anesthesia, Mr. Talbert was informed that he “had a hole put into [his] bladder during
surgery, and [he] also had an ileostomy5 instead of a colostomy.” Id. at ¶ 26.
When Mr. Talbert informed Dr. Kaplan that the surgery resulted in his “urinating
out of [his] anus,” Dr. Kaplan again called Mr. Talbert a “liar.” Id. at ¶ 27. Because a
nurse verified Mr. Talbert’s allegations, Dr. Kaplan ordered further testing to evaluate
Mr. Talbert’s condition. Id. at ¶¶ 28-29.
5

An ileostomy is defined as an opening into the ileum, part of the small intestine, from the
outside of the body. It provides a new path for waste material to leave the body after part of the
intestine has been removed. See www.medterms.com/script/main/art.asp?articlekey=22428.

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The complaint alleges that although Mr. Talbert was brought to the hospital for the
reversal of his colostomy, he instead received “an injured bladder, bladder spasms, pain
in [his] pelvic bone, urinary tracking infection, an ileostomy, a fistula, severe loss of
weight, loss of appetite, nausea, psychological pain, embarrassment, humiliation, and
emotional distress.”6 Id. at ¶ 32.
The complaint further alleges that considering that Dr. Kaplan had promised Mr.
Talbert that everything would be fine after reversal surgery, the injuries Mr. Talbert
sustained from the surgery must have been due to negligence, at the very least, or were
“premeditated and intentional, at the highest level of scrutiny.” Id. at ¶ 35. Mr. Talbert
suspects, however, that Dr. Kaplan’s performance in surgery was “done out of cruelty,
punishing [Mr. Talbert] maliciously for how [Mr. Talbert] got into [Dr. Kaplan’s] face
and threatened [Dr. Kaplan] for calling [Mr. Talbert] a ‘liar,’ in which [Dr. Kaplan] felt
embarrassed and humiliated in front of another nurse and [Mr. Talbert’s] girlfriend.” Id.
at ¶ 36.
II. STANDARD FOR A MOTION TO DISMISS
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The factual allegations must be sufficient to make the claim for relief more than
just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In

This embarrassment and humiliation included the correctional officers making “wicked
mockery” of Mr. Talbert’s urinary deficiency, exclaiming that he was “urinating sitting down
like a woman.” The officers further told everyone at the prison about Mr. Talbert’s condition
which “ruined [his] suave reputation.” See Compl. ¶ 33.
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determining whether to grant a motion to dismiss, a federal court must construe the
complaint liberally, accept all factual allegations in the complaint as true, and draw all
plausible inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County
Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
It remains true that the Federal Rules of Civil Procedure do not require a plaintiff
to plead in detail all of the facts upon which he bases his claim. Rather, the Rules require
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). In recent rulings, however, the Supreme Court has rejected
language in Conley stating that “a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561. Rather, a
“complaint must allege facts suggestive of [the proscribed] conduct,” Twombly, 550
U.S. at 564, and it must contain enough factual matters to suggest the required elements
of the claim or to “raise a reasonable expectation that discovery will reveal evidence of”
those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556). Neither “bald assertions” nor “vague and
conclusory allegations” are accepted as true. See Morse v. Lower Merion School Dist.,
132 F.3d 902, 906 (3d Cir. 1997).
In assessing the merits of a motion to dismiss, courts must be careful to recognize
that, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to
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dismiss.” Id. at 679 (emphasis added). In recognition of these principles, courts must
first identify those allegations in a complaint that are mere conclusions and are therefore
not entitled to the assumption of truth, and next, consider whether the complaint’s factual
allegations, which are entitled to a presumption of truth, plausibly suggest an entitlement
to relief. Id. at 680 (emphasis added).
Finally, I note that I must construe this complaint liberally. As the Supreme Court
unanimously held in Haines v. Kerner, 404 U.S. 519 (1972), a pro se complaint,
“however inartfully pleaded,” must be held to “less stringent standards than formal
pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it
appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Id. at 520-521 (quoting Conley v. Gibson, 355 U.S. at
45-46).
III. DISCUSSION
In bringing this action under § 1983, Mr. Talbert alleges that Dr. Kaplan, who
“acted under color of state law,” violated Mr. Talbert’s rights under the Eighth
Amendment to the United States Constitution.” See Compl. ¶¶ 5 and 13. Mr. Talbert
insists that Dr. Kaplan intentionally injured Mr. Talbert’s bladder, and intentionally
caused all of his other medical deficiencies. Id. ¶ 13.
Title 42 of the United States Code § 1983 provides remedies for deprivations of
rights established in the Constitution or federal laws. It does not, by its own terms, create
substantive rights. Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979); see also Oklahoma
City v. Tuttle, 471 U.S. 808, 816 (1985). Section 1983 provides, in part:
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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
Thus, in evaluating § 1983 claims, the Supreme Court has set forth two threshold
inquiries: “(1) whether the conduct complained of was committed by a person acting
under color of state law; and (2) whether this conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or laws of the United States.”
Parratt v. Taylor, 451 U.S. 527, 535 (1981); see also West v. Atkins, 487 U.S. 42, 48
(1988); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Mark v. Borough
of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Nicini v. Morra, 212 F.3d 798, 806 (3d
Cir. 2000). Action under color of state law requires that the one liable under § 1983 have
exercised power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law. Harvey v. Plains Twp. Police Dep’t,
635 F.3d 606, 609 (3d Cir. 2011) (quoting Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir.
1998)).
Dr. Kaplan is not a state actor. There is no allegation in the complaint that Dr.
Kaplan was employed by or under contract with either the Philadelphia Department of
Corrections or Corizon Medical, the corporate prison health care provider. He is a
private surgeon who was the trauma surgeon on call at Albert Einstein Medical Center on
the night Mr. Talbert was shot, and who continued to treat Mr. Talbert during his
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recovery and beyond. Dr. Kaplan is the physician who Mr. Talbert admits saved Mr.
Talbert’s life. Mr. Talbert became a private patient at Albert Einstein on the night his
ordeal began. He was incarcerated approximately six months later. Prison officials
returned Mr. Talbert to Dr. Kaplan’s care so that Dr. Kaplan could finish the course of
treatment necessary to restore Mr. Talbert to his pre-shooting health. Mr. Talbert’s return
to Dr. Kaplan while incarcerated had nothing to do with his status as a prisoner, but with
good medical judgment to continue with the same surgeon for subsequent remedial
surgery. Under these circumstances, Dr. Kaplan cannot be said to have exercised power
possessed by virtue of state law and made possible only because he was clothed with the
authority of state law. Thus, Dr. Kaplan did not violate Mr. Talbert’s constitutional
rights, and Mr. Talbert’s claim of an Eight Amendment violation must fail. Accordingly,
I will grant Dr. Kaplan’s motion to dismiss this action against him in its entirety.
In the alternative, even if it were possible to consider Dr. Kaplan a state actor, Mr.
Talbert’s claim would still fail. The Eighth Amendment “requires prison officials to
provide basic medical treatment to those . . . incarcerated.” Rouse v. Plantier, 182 F.3d
192, 197 (3d Cir. 1999) (discussing Estelle v. Gamble, 429 U.S. 97 (1976)). To establish
an Eighth Amendment violation based on improper medical care, a prisoner must show
acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs. Estelle v. Gamble, 429 U.S. at 106. The Third Circuit Court of Appeals
has interpreted this to mean that there are two prongs to the inquiry: (1) deliberate
indifference on the part of prison officials; and (2) the prisoner’s medical needs are
serious. Monmouth County Corr. Inst. Inmates v. Lanzaro, et al., 834 F.2d 326, 346 (3d
8

Cir. 1987); Rouse, 182 F.3d at 197. Under the first element, a prisoner can establish
“deliberate indifference when the record would allow the fact finder to conclude that a
prison official is subjectively aware of the risk of substantial harm to an inmate, but failed
to respond.” Meyers v. Majkic, 189 Fed. Appx. 142, 143 (3d Cir. 2006) (citing Farmer v.
Brennan, 511 U.S. 825, 828 (1970)). Negligent conduct by a prison official, “without
some more culpable state of mind,” is not enough to constitute deliberate indifference.
See Rouse, 182 F.3d at 197. As for the second element, a prisoner’s medical needs are
serious when they have been “‘diagnosed by a physician as requiring treatment’ or [are]
so obvious that a layperson would recognize the need for professional medical care.”
Meyers, 189 Fed. Appx. at 143 (quoting Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at
346).
Certainly, Mr. Talbert’s medical needs were serious. He underwent extensive
surgery on the night he was shot. That surgery resulted in a reversible colostomy which
required continued care to avoid infection. Dr. Kaplan, however, cannot be characterized
as deliberately indifferent under the facts of this case. The complaint alleges that, once
incarcerated, Mr. Talbert was repeatedly brought to Dr. Kaplan’s office by prison
officials, so that Dr. Kaplan could evaluate Mr. Talbert’s condition and determine when
Mr. Talbert would be best prepared for the reversal surgery. See Compl. ¶¶ 22-23. His
surgery was performed on February 10, 2012. In a prison medical context, deliberate
indifference is generally not found when some significant level of medical care has been
offered to the inmate. See Inmates of Allegheny County Jail v. Pierce, et al., 612 F.2d
754, 762 (3d Cir. 1979); see also Clark v. Doe, et al., 2000 U.S. Dist. LEXIS 14999, at *8
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(E.D. Pa. Oct.13, 2000) (“courts have consistently rejected Eighth Amendment claims
where an inmate has received some level of medical care.”) “While the distinction
between deliberate indifference and malpractice can be subtle, it is well-established that
as long as a physician exercises professional judgment his behavior will not violate a
prisoner’s constitutional rights.” Brown v. Borough of Chambersburg, et al., 903 F.2d
274, 278 (3d Cir. 1990). In fact, courts have frequently rejected Eighth Amendment
claims that are based upon the level of professional care that an inmate received,
particularly where it can be shown that significant medical services were provided to the
inmate but the prisoner was dissatisfied with the outcome of these services. See Ham v.
Greer, et al., 269 Fed. Appx. 149 (3d Cir. 2008); James v. Dep’t of Corrections, et al.,
230 Fed. Appx, 195 (3d Cir. 2007); Gillespie v. Hogan, et al., 182 Fed. Appx. 103 (3d
Cir. 2006). Further, the Supreme Court of the United States in Estelle v. Gamble held:
“a complaint
diagnosing or
a valid claim
Amendment.
constitutional
prisoner.”

that a physician has been negligent in
treating a medical condition does not state
of medical mistreatment under the Eighth
Medical malpractice does not become a
violation merely because the victim is a

Estelle, 429 U.S. at 106. Any attempt to second-guess the propriety or adequacy of a
particular course of treatment is disavowed by courts because such determinations remain
a question of sound professional judgment. Inmates of Allegheny County Jail, 612 F.2d
at 762 (noting that courts generally will not gainsay the professional judgment of medical
practitioners). During the time Mr. Talbert was incarcerated, he was brought to Dr.
Kaplan for follow-up care and reversal surgery. The surgery resulted in further
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complications with Mr. Talbert’s bladder. Given the facts alleged by Mr. Talbert, it
appears undisputed that Dr. Kaplan promptly and repeatedly addressed Mr. Talbert’s
medical concerns. An assertion that Dr. Kaplan’s performance in the second surgery was
clouded by vengeance for a year-old incident is frivolous. Thus, Mr. Talbert has not
alleged deliberate indifference to a serious medical need, the touchstone for any Eighth
Amendment claim in a prison medical context. Dissatisfaction with the outcome of the
medical care received is insufficient to establish deliberate indifference. While these
circumstances might fit a cause of negligence or medical malpractice, they do not rise to
the level of deliberate indifference required for claims brought under § 1983 based on
Eighth Amendment violations. Accordingly, even if Dr. Kaplan could be considered a
state actor, this claim would still fail. I will grant Dr. Kaplan’s motion to dismiss in its
entirety. 7
An appropriate Order follows.

7

A district court should ordinarily allow a pro se plaintiff to amend his complaint, unless
amendment would be inequitable or futile. Grayson v. Mayview State Hospital, 293 F.3d 103,
113-114 (3d Cir. 2002). Here, amendment would be futile because it is apparent that his case
concerns matters of state law, i.e., medical malpractice, and that there is no basis for diversity
jurisdiction.

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