BEARD v. PHILADELPHIA, PA COUNTY PRISON SYSTEM et al

Filing 16

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 6/25/15. 6/26/15 ENTERED AND COPIES MAILED TO PLAINTIFF; EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, ) Modified on 6/26/2015 (jaa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MONNIE LOUIS BEARD, SR.

:
:
v.
:
:
PHILADELPHIA, PA COUNTY PRISON :
SYSTEM, et al.
:

CIVIL ACTION
NO. 14-4129

O’NEILL, J.

June 25, 2015
MEMORANDUM

Plaintiff Monnie Louis Beard, Sr., acting pro se, brings this 42 U.S.C. § 1983 civil rights
action against defendants the City of Philadelphia 1, Corizon Health, Inc., Dr. Eke Kalu and Ms.
Frias, alleging that defendants violated his Eighth Amendment right to necessary medical
treatment during incarceration. Presently before me are Dr. Kalu and the City of Philadelphia’s
motions to dismiss Beard’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim (Dkt. Nos. 10, 12) and Beard’s response (Dkt. No. 14). For the following
reasons I will grant defendants’ motions.
BACKGROUND
Plaintiff, while an inmate at the Curran-Fromhold Correctional Facility (CFCF),
underwent surgery for an enlarged prostate on March 12, 2013. Dkt. No. 3 at ECF 3. Plaintiff
alleges that after the surgery he filed a grievance claiming that he had not received the
medication his surgeon prescribed, though the hospital had provided him with different
1

Plaintiff refers to this defendant as “The Philadelphia, PA County Prison System”
in his complaint (Dkt. No. 3), while defendant maintains it is more correctly identified as “the
City of Philadelphia” in its motion to dismiss (Dkt. No. 12). Pursuant to Russell v. City of Phila,
428 F. App’x. 174, 177 (3d Cir. 2011), the Philadelphia Prison System cannot be properly named
as a defendant in a § 1983 action. For this reason, because plaintiff is acting pro se and because
the presently responding defendant is the City of Philadelphia, I will construe his identification
of the “Philadelphia, PA County Prison System” to refer to the “City of Philadelphia” as the
proper party in this case and will refer to it as such throughout this memorandum.

medication. Id. Plaintiff claims that he was then transferred from the CFCF to the House of
Correction, where he received a letter from his surgeon about follow-up treatment. Plaintiff
alleges that he then approached a hospital administrator, Ms. Frias, regarding his need for
additional treatment. Plaintiff avers that after Ms. Frias failed to secure follow-up treatment for
him, plaintiff filed a second grievance. Id. Plaintiff claims to suffer from continued problems
with his prostate, lower back and urinary tract as a result of failing to receive prescribed
medication and treatment following his surgery. Id.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Typically, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations,” though plaintiff’s obligation to state the grounds of entitlement to relief
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level . . . on the
assumption that all of the allegations in the complaint are true (even if doubtful in fact).” Id.
(citations omitted). This “simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of” the necessary element. Id. at 556. The Court of Appeals has
made clear that after Ashcroft v. Iqbal, 556 U.S. 662 (2009), “conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss: ‘threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.’ To prevent dismissal,
all civil complaints must now set out ‘sufficient factual matter’ to show that the claim is facially
plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 556

2

U.S. at 678. The Court also set forth a two part-analysis for reviewing motions to dismiss in
light of Twombly and Iqbal:
First, the factual and legal elements of a claim should be separated.
The District Court must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions. Second, a
District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a “plausible
claim for relief.”
Id. at 210-11, quoting Iqbal, 556 U.S. at 679. The Court explained, “a complaint must do more
than allege the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an entitlement
with its facts.” Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679, quoting Fed. R. Civ. P. 8(a)(2).
Because plaintiff is proceeding pro se, I “must liberally construe his pleadings, and . . .
apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.”
Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). “[H]owever inartfully pleaded,” pro se
pleadings must be held to “less stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). See also United States ex rel. Montgomery v.
Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (noting that a petition prepared by a prisoner may be
inartfully drawn and should be read “with a measure of tolerance”). Prisoners in particular are
often at an informational disadvantage that may prevent them from pleading the full factual
predicate for their claims. Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004). Unless
amendment would be inequitable or futile the Court should not dismiss the complaint without

3

allowing plaintiff leave to amend. Id. at 235, citing Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir. 2002).
DISCUSSION
I.

Section 1983 Claim Against Dr. Eke Kalu
Dr. Eke Kalu moves to dismiss plaintiff’s § 1983 claim alleging a violation of his Eighth

Amendment right to necessary medical treatment during incarceration. To state a claim under
§ 1983, a plaintiff must demonstrate that a person acting under the color of law deprived him of a
federal right. See Berg v. Cnty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000). It is well
established that a defendant must have personal involvement in the alleged wrongs to be held
liable under § 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence” and such allegations “must be made with appropriate particularity.” Id. In order
to prove personal involvement through acquiescence a plaintiff must demonstrate that the
defendant had contemporaneous knowledge of the alleged wrongdoing, as well as actual
supervisory authority over the alleged violator. See Robinson v. Pittsburgh, 120 F.3d 1286,
1293-94 (3d Cir. 1997).
The Eighth Amendment prohibition against cruel and unusual punishment is violated by
“deliberate indifference to a [prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
104 (1976). Claims of negligence or even medical malpractice are not actionable under § 1983
as an Eighth Amendment claim. Id. at 106. The Supreme Court clarified its holding in Estelle
by explaining that a defendant is “deliberately indifferent” to a serious medical need where he or
she knows of, yet disregards, an excessive risk to the plaintiff’s health or safety. See Farmer v.
Brennan, 511 U.S. 825 (1994). Without the requisite mental state, conduct alone does not

4

constitute deliberate indifference. See id. at 837-38. Furthermore, in order to sufficiently allege
an individual defendant’s deliberate indifference to serious medical needs under § 1983, a
plaintiff must show personal involvement on the part of the defendant by alleging personal
direction, actual knowledge, or acquiescence. See Brooks v. Beard, 167 F. App’x. 923, 925 (3d
Cir. 2006) (“review of the complaint reveals no facts alleging personal involvement . . . As a
result, this claim lacks an arguable basis in law”); see also Rode, 845 F.2d at 1207.
Dr. Kalu argues that plaintiff failed to allege he had any personal involvement in
plaintiff’s allegedly inadequate medical treatment. Dkt. No. 10 at ECF 4, 5. Dr. Kalu also
argues that plaintiff did not sufficiently allege that Dr. Kalu acted with deliberate indifference
toward plaintiff’s serious medical needs. Id. Plaintiff argues that he named Dr. Kalu as a
defendant in his complaint because of Dr. Kalu’s status as regional medical director at Corizon
Health, Inc., “the company that the Philadelphia County Prison System pays to oversee the
inmates’ wellbeing.” Dkt. No. 15 at ECF 1. However, plaintiff failed even to mention Dr. Kalu
in the body of his complaint. Plaintiff has failed to allege that Dr. Kalu provided personal
direction or had actual contemporaneous knowledge and acquiescence of the alleged violation.
Therefore, plaintiff has not sufficiently alleged personal involvement on the part of Dr. Kalu in
his complaint. Plaintiff also has not sufficiently alleged that Dr. Kalu acted with deliberate
indifference to a serious medical need under the Eighth Amendment. I will grant plaintiff leave
to amend his complaint provided that he is able to allege sufficient facts to support the claim that
Dr. Kalu was personally involved in plaintiff’s alleged inadequate treatment or deliberately
indifferent to his serious medical needs.

5

II.

Monell Claim Against the City of Philadelphia
The City of Philadelphia moves to dismiss plaintiff’s § 1983 claim alleging a violation of

his Eighth Amendment right to necessary medical treatment during incarceration. Municipal
entities such as the City of Philadelphia are not immune from suit under § 1983, but neither can
they be held liable for the torts of their employees under respondeat superior. See Monell v.
Dep’t of Social Services, 436 U.S. 658, 693 (1978). A municipality can only be held liable for
constitutional violations by its employees when the acts performed are (1) part of a policy
officially adopted and promulgated by the body’s officers or where the actions are pursuant to
governmental custom, (2) performed by an official who has the power to generate policy and is
responsible for the affirmative proclamation of a policy, though no rule has been announced as
policy, or (3) performed by a policymaking official who acquiesces to a well-established custom
that violates a constitutional right, such that the policymaker can be said to have been
deliberately indifferent to a serious medical need. See Natale v. Camden Cnty. Corr. Facility,
318 F.3d 575, 584 (3d Cir. 2003), citing Bd. of Cnty. Comm’rs of Bryan Cnty., Oklahoma v.
Brown, 520 U.S. 397 (1997).
To state a Monell claim against the City of Philadelphia for deliberate indifference to his
serious medical needs plaintiff must allege (1) what the relevant policies are, (2) the basis
plaintiff has for thinking those policies affected his medical treatment, and (3) the specific
treatment plaintiff was denied as a result of these policies. Winslow v. Prison Health Servs., 406
F. App’x 671, 674 (3d Cir. 2011). Alternatively, to allege municipal liability on the basis of the
conduct of a policymaking official, a plaintiff must allege facts showing that an official who has
the power to generate policy is responsible for the violation itself or acquiesces to a wellestablished custom that violates a constitutional right. See Bielevicz v. Dubiob, 915 F.2d 845,

6

850 (3rd Cir. 1990). For instance, a lack of adequate training may serve as a basis by which to
extend liability to the municipality when a failure to train constitutes acquiescence and deliberate
indifference to the rights of a person. See City of Canton, Ohio v. Harris, 489 U.S. 378, 931
(1989).
Here, the City of Philadelphia argues that plaintiff has failed to plead elements necessary
to establish municipal liability under § 1983 because plaintiff failed to allege that the harm was a
result of inadequate policy or training that amounted to deliberate indifference or that an official
with policymaking power was responsible for the constitutional harm. Dkt. No. 12 at ECF 3, 4.
Plaintiff contends in his response that he is entitled to relief because the City of Philadelphia
should have afforded him additional medical care. Dkt. No. 15 at ECF 1. The complaint fails to
state any facts supporting the claim that either a policy or an official with policymaking power
was responsible, through an affirmative act or acquiescence, for plaintiff’s alleged constitutional
harm. Plaintiff has therefore failed to state a claim against the City of Philadelphia under § 1983.
See Winslow, 406 F. App’x at 674 (holding that a pro se prisoner’s allegations of an Eighth
Amendment violation due to his dissatisfaction with the treatment of a hernia were insufficient to
state a claim under § 1983 because his claims were conclusory in nature). I will grant plaintiff
leave to amend his complaint provided that he is able to allege sufficient facts to support the
claim that the City of Philadelphia has an unconstitutional policy or custom of denial of medical
treatment, or that an officer with policymaking power was responsible for the alleged violation.
CONCLUSION
For the reasons set forth above, I will grant defendants’ motions to dismiss plaintiff’s
claims against Dr. Eke Kalu and the City of Philadelphia under § 1983 with leave to amend
provided that plaintiff can sufficiently plead a constitutional violation against Dr. Kalu arising

7

from his claim for failure to receive medication and treatment while incarcerated or a Monell
claim against the City of Philadelphia.
An appropriate Order follows.

8