BROWER v. PHILADELPHIA PRISON SYSTEM et al

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 5/4/16. 5/4/16 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILLIP BROWER,
Plaintiff,

CIVIL ACTION
NO. 15-5039

v.
CORIZON HEALTH SERVICES, INC., et al.,
Defendants.
PAPPERT, J.

May 4, 2016
MEMORANDUM

Plaintiff Phillip Brower (“Brower”), a pro se inmate, sued Corizon Health Services, Inc.
(“Corizon”), the City of Philadelphia (“the City”), former Prison Commissioner Louis Giorla
(“Giorla”) and Nurse Practitioner Jean Pantal (“Pantal”) (collectively “Defendants”).1 Brower
asserts claims under 42 U.S.C. Section 1983 for purported violations of his Eighth Amendment
rights, more specifically Defendants’ alleged neglect and provision of inadequate medical care.
Defendants filed motions to dismiss which are granted as explained below.
I.
Brower, a paraplegic, contends that he was denied adequate medical supplies over the
course of five-and-a-half months while incarcerated at the Curran-Fromhold Correctional
Facility in Philadelphia. (Compl., ECF No. 5 at *9.) He first filed a grievance on February 22,
2015 stating that he was denied the supplies he needed to have a proper bowel movement. (Pl.’s
Feb. Grievance, ECF No. 5 at *12.) Brower stated that he was supposed to receive gloves that he

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Brower also named as defendants the Philadelphia Prison System and Healthcare Administrator “Ms.
Amina.” (Compl., ECF No. 5 at *9.) The Court dismissed the claims against the Prison System as legally frivolous
pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i) because it is not a legal entity subject to suit separate from the City
of Philadelphia. (ECF No. 4.) “Ms. Amina” has not been served. The Court’s opinion addresses Brower’s claims
against Corizon, the City, Giorla and Pantal.

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could “use[] to disimpact or stimulate [his] rectum to have a bowel movement.” (Id.) Brower’s
grievance alleged that he “for whatever reason . . . [was] no longer receiving” the gloves. (Id.)
Brower’s states that he told “Nurse Petway” (“Petway”) “and Sean the supplies nurse”
about how he was neglected for over five months. (Compl., ECF No. 5 at *9.) Sean told Brower
that “the Healthcare Administrator Ms. Amina did not approve [Brower’s] medical supplies” and
that he should file a grievance. (Id.) Brower filed a second grievance on April 17, 2015. (Pl.’s
April Grievance, ECF No. 5 at *11.) Brower stated that he had the same urinary extension
tubing for four-and-one-half months. (Id.) Because of his condition, Brower needed his tubing
changed regularly to prevent kidney or bladder infections. (Id.) Brower alleged that he
contracted urinary tract infections as a result of using the same tubing for several months. (Id.)
He asked Petway for supplies every month but never received them. (Id.) Brower contends that
he never received any responses to his grievances. (Compl., ECF No. 5 at *9.)
As a result of the Defendants’ failure to provide adequate supplies, Brower developed an
infection which caused a fever and swelling of his testicles. (Id.) On May 24, 2015, “Nurse
Meggettigan said [Brower] had a temperature [of] 102.3.” (Id.) Meggettigan told Pantal about
Brower’s swelling and temperature and Pantal instructed Meggettigan to give Brower Tylenol
and send him back to his cell. (Id.) Rather than send him back to his cell, Meggettigan kept
Brower “at medical . . . until [Dr.] Clemons showed up.” (Id.) After examining Brower, Dr.
Clemons called an ambulance to take him to the hospital. (Id.) Brower alleges that he received
blood tests and ultrasounds, and met with an “infectious disease specialist and surgeons.” (Id.)
The surgeons allegedly discussed with Brower the possibility that they would have to remove his
testicles should the antibiotics fail to reduce the swelling. (Id.)

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Brower filed his complaint on October 15, 2015.2 (ECF No. 5 at *9.) Corizon filed its
motion to dismiss on February 16, 2016. (ECF No. 14.) The City and Giorla filed their motion
to dismiss on February 24, 2016. (ECF No. 15.) That same day, Brower filed a letter with the
Court addressing some of the arguments made in Corizon’s motion. (ECF No. 16.) Pantal filed
his motion to dismiss on March 29, 2016. (ECF No. 20.) Aside from the February 24, 2016
letter, Brower did not respond to any of the motions.3
II.
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead factual
allegations sufficient “to raise a right to relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Brower filed his complaint pro se so the Court “must
liberally construe his pleadings.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d. Cir. 2003)
(citation omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se
complaints to “less stringent standards than formal pleadings drafted by lawyers”). “‘Liberal
construction’ of pro se pleadings is merely an embellishment of the notice-pleading standard set
forth in the Federal Rules of Civil Procedure.” Castro v. United States, 540 U.S. 375, 386
(2003) (Scalia, J., concurring). “Courts are to construe complaints so ‘as to do substantial
justice,’ keeping in mind that pro se complaints in particular should be construed liberally.”
Bush v. City of Phila., 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005) (citing Alston v. Parker, 363
F.3d 229, 234 (3d Cir. 2004) (citations omitted)).
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The Court granted Brower’s request for appointment of counsel (ECF No. 8) and referred his case to the
Court’s prisoner civil rights panel. (ECF No. 9.) Brower has yet to be appointed counsel.
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Local Rule of Civil Procedure 7.1(c) states that a party shall file an opposition to a motion within fourteen
days after service of the motion and supporting brief. “In the absence of timely response, the motion may be granted
as uncontested except as provided under FED. R. CIV. P. 56.” Id. The Court may accordingly grant Defendants’
motions as unopposed. Considering the motions on their merits, however, confirms that Brower’s complaint fails to
state a claim.

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A court should “consider only the allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank
of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). Whether a complaint states a plausible claim for
relief is a context-specific task that “requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citation omitted).
III.
Brower asserts Section 1983 claims against the Defendants for inadequate medical
treatment under the Eighth Amendment. Section 1983 provides, in part:
Every person, who, under color of any statute, ordinance, regulation, custom, or
usage, of a State or Territory . . . subjects, or causes to be subjected, any citizen of
the United States . . . 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 . . . .
42 U.S.C. § 1983. To establish a Section 1983 claim, Brower must show that a person acting
under color of state law caused the deprivation of a right secured by the Constitution or the laws
of the United States. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)
(citation omitted).
“The Eighth Amendment’s prohibition against cruel and unusual punishment protects
prisoners against the ‘unnecessary and wanton infliction of pain.’”4 Hamilton v. Leavy, 117 F.3d
742, 746 (3d Cir. 1997) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Accordingly, “the
treatment a prisoner receives in prison and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). The prohibition against cruel and
unusual punishment “requires prison officials to provide basic medical treatment to those whom
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The protections afforded by the Eighth Amendment are applicable to the States via the Fourteenth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 101–02 (1976) (citing Robinson v. California, 370 U.S. 660
(1962)).

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it has incarcerated.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)). To establish an inadequate medical treatment claim under the
Eighth Amendment, Brower must show: (1) that the Defendants were deliberately indifferent to
his medical needs; and (2) that those needs were serious. See id. (citing Estelle, 429 U.S. at 106).
A.
The Court analyzes Brower’s claims against the City under the standard for municipal
liability set forth in Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
Brower’s claims against Corizon are analyzed under the same framework. See Natale v. Camden
Cty. Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003) (analyzing a Section 1983 claim against a
private corporation providing medical care in prisons under Monell).
Generally, a municipality will not be held liable under the doctrine of respondeat superior
for the misconduct of its employees. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480
(3d Cir. 1990). Rather, a municipality can only be liable under Section 1983 when a
constitutional injury results from the implementation or execution of an officially adopted policy
or informally adopted custom. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)
(citing Monell, 436 U.S. 658).
In Andrews, the Third Circuit Court of Appeals distinguished between policies and
customs:
Policy is made when a “decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action” issues an official proclamation,
policy, or edict. A course of conduct is considered to be a “custom” when, though
not authorized by law, “such practices of state officials [are] so permanent and
well settled” as to virtually constitute law.
Andrews, 895 F.2d at 1480 (citations omitted). “In either instance, a plaintiff must show that an
official who has the power to make policy is responsible for either the affirmative proclamation

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of a policy or acquiescence in a well-settled custom.” Bielevicz v. Dubinon, 915 F.2d 845, 850
(3d Cir. 1990) (citing Andrews, 895 F.2d at 1480).
Brower has failed to allege the existence of any policy or custom which caused his injury.
While his complaint alleges that both Corizon and the City failed to give him adequate medical
care, nowhere does he allege that such failure resulted from the implementation of a policy or
custom. Brower additionally fails to allege who the policymaker is for both Corizon and the
City. In the absence of allegations supporting the existence of a policy or custom and identifying
a policymaker, Brower’s claims against Corizon and the City fail. See, e.g., Hope v. Fair Acres
Geriatric Ctr., No. 15-06749, 2016 WL 1223063, at *6 (E.D. Pa. Mar. 29, 2016) (dismissing
Monell claim where plaintiff failed to identify a policymaker); Buoniconti v. City of
Philadelphia, No. 15-3787, 2015 WL 8007438, at *16 (E.D. Pa. Dec. 7, 2015) (dismissing
Monell claim where plaintiff failed to identify a policy or custom).
B.
To establish a claim for inadequate medical treatment against Pantal, Brower must show:
(1) that Pantal was deliberately indifferent to his medical needs; and (2) that those needs were
serious. Rouse, 182 F.3d at 197 (citing Estelle, 429 U.S. at 106). Pantal does not dispute that
Brower’s medical needs were serious. (See generally Pantal Mot. to Dismiss, ECF No. 20.) The
only issue, therefore, is whether Pantal was “deliberately indifferent” to those needs.
“It is well-settled that claims of negligence or medical malpractice, without some more
culpable state of mind, do not constitute ‘deliberate indifference.’” Rouse, 182 F.3d at 197. “[I]n
the medical context, an inadvertent failure to provide adequate medical care cannot be said to
constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of
mankind.’” Estelle, 429 U.S. at 105–06. Accordingly, deliberate indifference “requires

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obduracy and wantonness . . . which has been likened to conduct that includes recklessness or a
conscious disregard of a serious risk.” Rouse, 182 F.3d at 197 (citations and formatting omitted).
Additionally, “[w]here a prisoner has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims which sound in state tort law.” Ascenzi v. Diaz, 247 F.
App’x 390, 391 (3d Cir. 2007) (quoting United States ex rel. Walker v. Fayette County, 599 F.2d
573, 575 n.2 (3d Cir. 1979)). The Third Circuit has “found ‘deliberate indifference’ in a variety
of circumstances, including where the prison official (1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on
a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Rouse, 182 F.3d at 197 (citations omitted).
Brower fails to establish that Pantal acted with deliberate indifference to his medical
needs. To the extent Brower seeks to establish that Pantal is responsible for the five-and-onehalf months of alleged neglect, he fails to allege that Pantal knew of, or was in any way involved
with Brower’s prior grievances. To the extent Brower takes issue with Pantal’s conduct on May
24, 2015, Brower fails to establish anything more than a “dispute . . . over the adequacy of the
treatment.” Ascenzi, 247 F. App’x at 391 (quoting United States ex rel. Walker, 599 F.2d at 575
n.2). Brower only alleges that Pantal told Meggettigan to give Brower Tylenol and send him
back to his cell. These allegations do not demonstrate “recklessness or . . . [a] conscious
disregard of a serious risk.” Rouse, 182 F.3d at 197 (citation omitted).
C.
Brower’s complaint also names Giorla as a Defendant. Brower fails, however, to allege
any facts establishing Giorla’s involvement in the alleged neglect. Absent any allegations

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implicating Giorla’s involvement, Brower cannot establish that Giorla was deliberately
indifferent to his medical needs.
D.
A pro se prisoner alleging claims under Section 1983 must generally be granted leave to
amend absent evidence that amendment would be futile or inequitable. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). Given the absence of such evidence at this
juncture, Brower is granted leave to amend his complaint. An appropriate order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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