PORTER v. CROZER CHESTER MEDICAL CENTER, INC. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 6/1/17. 6/2/17 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GWENDOLYN PORTER, Administratrix
of the Estate of Jamere Porter, deceased
CROZER CHESTER MEDICAL
CENTER, INC.; MOHAMMED H. BUDEIR;
TIMOTHY J. HARRISON; MARCIN A.
JANKOWSKI; UNKNOWN PHYSICIANS OF
CROZER CHESTER MEDICAL CENTER, INC.;
COUNTY OF DELAWARE, PENNSYLVANIA;
CENTER, INC.; JAMES E. HYMAN; FRANK
GREEN; STEVE C. TOMLIN; MELISSA
WEGLARZ; RONALD B. PHILLIPS;
MARGARET GRIFFITH; DOROTHY MURRY;
SUSAN KENDRA; CATHERINE HALSTEAD;
LYNN MILANO; SARAH SPERBER; and
UNKNOWN CORRECTIONAL OFFICERS EMPLOYEES OF COMMUNITY
EDUCATIONAL CENTER, INC. AND
DELAWARE COUNTY, PA
June 1, 2017
Plaintiff Gwendolyn Porter—Decedent Jamere Porter’s mother and the administratrix of
his estate—has sued:
the County of Delaware, Pennsylvania (“Delaware County”);
the Communication Education Center, Inc. (“CEC”);
James E. Hyman (“Hyman”), Frank Green (“Green”), Steve C. Tomlin (“Tomlin),
and Melissa Weglarz (“Weglarz”) (collectively, the “CEC officials”);
Ronald B. Phillips (“Phillips”), Margaret Griffith (“Griffith”), Chuck Stork (“Stork”),
Dorothy Murry (“Murry”), Susan Kendra (“Kendra”), Catherine Halstead
(“Halstead”), Lynn Milano (“Milano”), and Sarah Sperber (“Sperber”) (collectively,
the “CEC medical personnel”); and
unknown correctional officers and employees of CEC and Delaware County;
in relation to the death of her son, Jamere Porter (“Porter”), on May 11, 2014. 1 Plaintiff brings
claims under 42 U.S.C. § 1983 alleging denial of medical care in violation of the Fourteenth
Amendment, as well as state law claims of negligence and carelessness.
Presently before the Court are three separate motions to dismiss.
1) Defendants Delaware County, CEC, the CEC officials, Griffith, Murry, Kendra, and Milano
moved to dismiss:
Counts IV and VI against Hyman, Green, Tomlin, and Weglarz for failure to state a
Count VII against Griffith, Murry, Kendra, and Milano for failure to state a claim;
Count III against Delaware County for failure to state a claim; and
Count XI against Delaware County and CEC for failure to state a claim.
(Dkt No. 32, Defs. Delaware County, CEC Inc., Hyman, Tomlin, Weglarz, Griffith, Murry,
Kendra, Milano, and Green Mot. to Dismiss [hereinafter Delaware County MTD] at 5).
2) Defendant Phillips moved to dismiss:
Count VII against Phillips as being barred by the applicable two-year statute of
limitations or, in the alternative, for failure to state a claim; and
Plaintiff has also sued Crozer-Chester Medical Center, Inc., Mohammed E. Budeir, Timothy J. Harrison, Marcin
A. Jankowski, and other unknown physicians (the “Crozer defendants”). These defendants have answered the
Count VIII against Phillips as being barred by the applicable two-year statute of
(Dkt No. 33, Def. Phillips Mot. to Dismiss [hereinafter Phillips MTD] at 6).
3) Defendants Halstead and Sperber moved to dismiss:
o Count VII against Sperber and Halstead for failure to state a claim; and
o Count VIII against Sperber for failure to state a claim.
(Dkt No. 40, Defs. Halstead and Sperber’s Mot. to Dismiss [hereinafter H & S MTD] at 5.)
Plaintiff concedes that the claims in Counts VII and VIII against Sperber should be
dismissed. Plaintiff contests the other motions to dismiss. Viewing the Complaint in the light
most favorable to the Plaintiff, the Court holds that (1) the Delaware County MTD (Dkt. No. 32)
is GRANTED IN PART; (2) the Phillips MTD (Dkt. No. 33) is GRANTED IN PART; and (3)
the H & S MTD (Dkt No. 40) is GRANTED.
Factual and Procedural Background 2
On April 24, 2014, Porter was shot seven times while driving in Chester, Pennsylvania.
Compl. ¶ 27. He was transported to Crozer-Chester Medical Center and treated for his severe,
life-threatening injuries. Id. at ¶¶ 27-28. While hospitalized, Porter was placed in police
custody, charged with criminal conduct, and arraigned bedside. Id. at ¶ 29. He also had many
surgeries and was given anticoagulants to help prevent his blood clots. Id. at ¶¶ 30-32. On May
6, Porter’s doctors decided he could be discharged to the George W. Hill Correctional Facility
(the “Correctional Facility”). Id. at ¶¶ 7, 33. CEC operates the Correctional Facility pursuant to
a contract with Delaware County. Id. at ¶¶ 7-8. Porter was discharged from the hospital with
pain medication but without anticoagulant medication. Id. at ¶ 34.
Porter arrived at the Correctional Facility around 5:00 p.m. on May 7, 2014. Id. at ¶ 35.
The facts are taken from the Amended Complaint (Dkt. No. 30).
Porter had difficulty breathing when he arrived and over the next four days. Id. at ¶ 50. Griffith,
a nurse practitioner and one of CEC’s employees, evaluated Porter when he arrived and knew of
Porter’s medical history and risks from his injuries, but she did not mention or observe that he
was having difficulty breathing. Id. at ¶¶ 15, 35. Porter was then seen at 6:28 p.m. by Kendra, a
nurse and CEC employee, and again at 9:15 p.m. by Halstead, another nurse and CEC employee.
Id. at ¶¶ 16-17, 36. Kendra and Halstead both concluded his condition was normal and neither
mentioned Porter’s breathing difficulties. Id. at ¶ 35. On May 8 at 11:30 a.m., Phillips, a doctor
and CEC employee, evaluated Porter by examining his wounds, removing sutures, and ordering
wound care. Id. at ¶¶ 13, 37. Phillips did not perform a physical examination or take Porter’s
vital signs, and he did not observe Porter’s difficulty breathing. Id. at ¶ 37. Porter’s family
visited him in jail that same day and noticed that he was complaining of having trouble breathing
and observed his breathing difficulties. Id. at ¶ 39. Porter was seen for wound care by unknown
medical providers at 6:01 p.m. on May 8 and 6:17 p.m. on May 9. Id. at ¶ 38. These unknown
medical providers did not take Porter’s vital signs or conduct a physical examination, and there
was no mention of Porter’s breathing difficulties. Id. Murray, a nurse and CEC employee,
evaluated Porter’s mental health status on May 8 at 4:40 p.m. and later on May 9 at 6:18 p.m.,
but she did not note Porter’s breathing difficulties. Id. at ¶¶ 20, 40-41. Stork, a nurse and CEC
employee, conducted a mental health assessment of Porter on May 10 at 4:56 p.m. but did not
conduct a physical examination or note Porter’s difficulty breathing either day. Id. at ¶¶ 19, 43.
That same day, Porter complained to an unknown correctional officer or medical provider that he
was having pain in his mid-back area. Id. at ¶ 44. The individual told him it was “likely just a
bullet trying to work its way out.” Id. Porter was not provided with a physical examination after
that conversation. Id.
On May 11, Stock conducted another mental health assessment. Id. at ¶ 46. At 10:30
p.m., Milano, a nurse and CEC employee, responded to a call from an unknown correctional
officer and went to Porter’s cell because of his difficulty breathing. Id. at ¶ 47. Milano started
emergency resuscitation and called for paramedics. Id. Sperber, a nurse practitioner and CEC
employee, went to Porter’s cell at 10:32 p.m. to help Milano try to resuscitate Porter. Id. at ¶¶
21, 48. When emergency medical services personnel arrived, they removed Porter from his cell
and took him to Riddle Hospital, where Porter was pronounced dead. Id. at ¶ 49.
Porter had difficulty breathing starting from his arrival at the Correctional Facility until
his eventual collapse, but CEC medical personnel did not evaluate or report his ongoing
difficulty breathing. Id. at ¶ 51. The unknown correctional officers at the facility also ignored
Porter’s breathing difficulties. Id. During Porter’s time at the Correctional Facility, the CEC
officials, 3 CEC, and Delaware County were responsible for creating policies and procedures for
accepting individuals transferred from a hospital to the Correctional Facility’s medical unit. Id.
at ¶¶ 9-12, 57. Delaware County, CEC, and the CEC officials were also responsible for training,
educating, supervising, and disciplining correctional officers and medical personnel at the
Correctional Facility with respect to recognizing and treating life-threatening conditions. Id. at ¶
47. Phillips was responsible for creating policies and procedures regarding the medical care and
treatment of inmates. Id. at ¶¶ 14, 53-55.
Porter died on May 11, 2014 as a result of pulmonary embolisms--sudden blockages of
major blood vessels in the lungs, usually caused by blood clots--that caused his breathing
difficulties and eventual collapse. Id. at ¶ 139. The Amended Complaint alleges that the CEC
Hyman is the Chief Executive Officer of CEC, Green is the Warden of the Correctional
Facility, Tomlin is the Senior Vice-President of Re-Entry Operations for CEC, and Weglarz is
the Director of In-Prison Treatment for CEC. Am. Compl. ¶¶ 9-12.
medical personnel were deliberately indifferent to Porter’s medical needs because they failed to:
Recognize that the Correctional Facility was incapable of providing the level of
medical care Porter required upon his May 7, 2014 transfer;
Refuse to accept Porter as an inmate because of his medical needs and condition;
Conduct a full and complete medical evaluation of Porter, including a review of
his hospital records at the time of his transfer;
Recognize Porter’s increased risk of blood clots;
Prescribe and dispense anticoagulation medications;
Provide multiple daily observations and evaluations of Porter;
Observe Porter’s difficulty breathing and appropriately treat his condition;
Provide security personnel with information about Porter’s condition and need for
Examine Porter for signs of clot formation; and,
Timely and appropriately provide Porter with emergency medical treatment.
Id. at ¶ 98.
Plaintiff filed her original Complaint on May 10, 2016. On June 9, 2016, Defendants
Delaware County, CEC, the CEC officials, Griffith, Murry, Kendra, and Milano moved to
dismiss parts of the Complaint for failure to state a claim. Defendant Phillips also moved to
dismiss the claims against him as time-barred, or in the alternative, one of the claims for failing
to state a claim.
Judge Stewart Dalzell, to whom this case was originally assigned, granted these motions
to dismiss in part and gave Plaintiff leave to file an Amended Complaint. 4 On August 22, 2016,
Judge Dalzell dismissed all Plaintiff’s § 1983 claims without prejudice. Dkt. No. 28, ¶ 4.
Plaintiff filed an Amended Complaint (Dkt. No. 30). On September 2, 2016, Defendants
Delaware County, CEC, the CEC officials, Griffith, Murry, Kendra, and Milano renewed their
motion to dismiss Plaintiff’s § 1983 claims for failure to state a claim (Delaware County MTD).
Defendant Phillips also renewed his motion to dismiss (Phillips MTD). On October 20, 2016,
Defendants Halstead and Sperber filed their motion to dismiss (H & S MTD). 5
Plaintiff filed her response to the Delaware County MTD on September 29, 2016 (Dkt.
No. 37) [hereinafter “Delaware County Response”], to the Phillips MTD on September 30, 2016
(Dkt. No. 38) [hereinafter “Phillips Response”], and to the H&S MTD on November 22, 2016
(Dkt. No. 47) [hereinafter “H&S Response”]. On January 4, 2017, this case was assigned to this
Court (Jones, II, J.) for all further proceedings.
Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the compliant, the plaintiff may be entitled
to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
marks and citation omitted). After the Supreme Court’s decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases,
“asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678; accord
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“[A]ll civil complaints must
Sperber was served on September 30, 2016; Halstead was served on October 1, 2016. Dkt. No. 39.
contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”) (internal
quotation marks omitted).
The Third Circuit in Santiago v. Warminster Township set forth a three-part analysis that
a district court must conduct in evaluating whether allegations in a complaint survive a 12(b)(6)
motion to dismiss:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Second, the court should identify allegations that, “because they are no
more than conclusions, are not entitled to the assumption of truth.” Finally,
“where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). “This means that our
inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2)
reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded
components of the complaint and evaluating whether all of the elements identified in part one of
the inquiry are sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Whether Counts VII and VIII are Time-Barred
Defendant Phillips moved to dismiss Counts VII and VIII against him, arguing that they
are barred by the applicable two-year statute of limitations. In Phillips’s motion to dismiss
Plaintiff’s original Complaint, he argued that because his only alleged encounter with Porter took
place on May 8, 2014, and the complaint was filed on May 10, 2016, plaintiff’s claims against
him were barred by the two-year statute of limitations. Dkt. No. 10. Judge Dalzell denied
Phillips’ motion to dismiss these counts as time-barred, finding that the cause of action did not
accrue until the time of the last event necessary to complete the tort--Porter’s death on May 11,
2014. Dkt. No. 27 at 7. After Plaintiff filed her Amended Complaint, Phillips renewed his
motion to dismiss the claims against him as time-barred.
The Third Circuit permits limitations defenses to be raised by motion under Fed. R. Civ.
P. 12(b)(6), but only if it is facially apparent that the claim has been brought outside the statute
of limitations. Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (citing Hanna v. United
States Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). If the bar is not facially
apparent, then it may not afford the basis for a dismissal under Rule 12(b)(6). Id. (citing Bethel
v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)).
The applicable statute of limitations for this action is two years. See 42 Pa. Cons. Stat.
Ann. § 5524; Wallace v. Kato, 549 U.S. 384, 387 (2007); Kach v. Hose, 589 F.3d 626, 634 (3d
Cir. 2009); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993). The limitations period begins to
run from the time when the plaintiff knew, or had reason to know, of the injury that constitutes
the basis of the § 1983 claim. Genty v. Resolution Tr. Corp., 937 F.2d 899, 919 (3d Cir. 1991).
Determining when a claim accrues is an objective inquiry, as a court must ask whether a
reasonable person would have known of the injury, not what the plaintiff actually knew. Kach,
589 F.3d at 634; Barren by Barren v. United States, 839 F.2d 987, 990 (3d Cir. 1988). “[A]
cause of action accrues at the time of the last event necessary to complete the tort, usually [when]
the plaintiff suffers an injury.” Kach, 589 F.3d at 634 (citing United States v. Kubrick, 444 U.S.
111, 120 (1979)).
Phillips argues that because Plaintiff’s Amended Complaint alleges that Porter “suffered
needlessly” due to Phillips’ actions on May 8, 2014, the statute of limitations began to run from
that date, as that is the date where the injury occurred. He argues that this amendment to the
complaint constitutes a “facially apparent” basis to dismiss the action. However, Phillips ignores
the plain law, which is that a cause of action accrues at the time of the last event necessary to
complete the tort. The Court agrees with Judge Dalzell that the last event necessary to complete
the tort was Porter’s death on May 11, 2014. Because the original Complaint was filed on May
10, 2016, no bar is facially apparent.
Whether Counts VII States a Claim for Deliberate Indifference
Defendants Griffith, Murry, Kendra, Milano, Halstead, and Phillips all move to dismiss
Count VII for failure to state a claim for inadequate medical care in violation of the Fourteenth
Amendment. Judge Dalzell dismissed this count against the CEC medical personnel in the
original Complaint, finding that while Plaintiff had stated a facially plausible claim that Porter
had a serious medical condition, Plaintiff had not sufficiently pled that these defendants were
deliberately indifferent to Porter’s medical condition. 6 While Plaintiff’s Amended Complaint
contains some additional assertions, she still has not asserted a plausible claim of deliberate
indifference against these defendants.
In a civil rights case brought pursuant to 42 U.S.C. § 1983, Plaintiff must show that the
Defendant, acting under the color of state law, deprived him of “rights, privileges, or immunities
secured by the Constitution or the laws of the United States.” Parratt v. Taylor, 451 U.S. 527,
535 (1981). An individual state actor is liable under § 1983 only where he or she played an
“affirmative part” in the alleged misconduct. Mason v. City of Philadelphia, 2014 WL 4722640,
at *5 (E.D. Pa. 2014) (citing Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (internal
Failure to provide adequate medical treatment to a pretrial detainee is a violation of the
Due Process Clause of the Fourteenth Amendment when it results from deliberate indifference to
While Stork, Halstead, and Sperber did not move to dismiss the original Complaint as they were not served until
after Judge Dalzell ruled on the first motion to dismiss, Judge Dalzell dismissed them sua sponte. Dkt. No. 27 at 14.
a prisoner’s serious illness or injury. Natale v. Camden County Correctional Facility, 318 F.3d
575, 581-82 (3d Cir. 2003) (citing City of Revere v. Massachusetts General Hosp., 463 U.S. 239,
244 (1983)). Estelle v. Gamble, 429 U.S. 97, 105 (1976). For a denial of medical care to
constitute a violation of the Fourteenth Amendment, the plaintiff must show (i) a serious medical
need, and (ii) acts or omissions by law enforcement officers that indicate deliberate indifference
to that need. Mattern v. City of Sea Isle, 657 F. App’x 134, 138 (3d Cir. 2016) (citing Natale,
318 F.3d at 582) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
A medical need is “serious” if it is “one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326,
347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff’d, 649 F.2d
860 (3d Cir. 1981)).
A prison official does not act with deliberate indifference unless the official “knows of
and disregards an excessive risk to inmate health and safety”. Farmer v. Brennan, 511 U.S. 825,
837 (1994). “[T]he official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. A
prisoner can demonstrate deliberate indifference by showing that a doctor intentionally inflicted
pain; prison authorities denied reasonable requests for medical treatment, thereby exposing the
inmate to undue suffering or the threat of tangible, residual injury; or prison authorities knew of
the inmate’s need for medical care but refused to provide it. Spruill v. Gillis, 372 F.3d 218, 235
(3d Cir. 2004). There must be proof that the conduct alleged was deliberate and intentional.
Little v. Lycoming Cty., 912 F.Supp. 809, 815 (1996), aff’d, 101 F.3d 691 (3d Cir. 1996).
“Allegations of medical malpractice are not sufficient to establish a Constitutional violation.”
Spruill, 372 F.3d at 235. “Mere disagreement as to the proper medical treatment is also
insufficient.” Id. (citing Monmouth, 832 F.2d at 346). If an inmate’s medical care is inadequate
or inappropriate because of an error in medical judgment, then that medical malpractice is nonactionable under the Fourteenth Amendment, but if such inadequacy results from deliberate
indifference or motivation by non-medical factors, then it is actionable. Durmer v. O’Carroll,
991 F.2d 64, 68-69 (3d Cir. 1993).
Plaintiff Failed to Sufficiently Allege a Claim for Deliberate
Indifference Against Griffith, Murry, Kendra, and Milano
Defendants Griffith, Murry, Kendra, and Milano argue that Plaintiff has failed to state a
constitutional claim for inadequate medical care because the Amended Complaint fails to plead
facts that Defendants were deliberately indifferent. In response, Plaintiff argues that “notice
pleading” is sufficient to state a claim, relying on the Supreme Court’s decisions in Conley v.
Gibson, 355 U.S. 41 (1957) and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). In doing so,
Plaintiff seems to be deliberately ignoring the Supreme Court’s decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), which “retired the Conley . . . test”. Ashcroft v. Iqbal, 556 U.S.
662, 670 (2009). The Court elaborated in Iqbal that a plaintiff must plead factual content that
“allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).
In deciding whether a Complaint has stated a claim which would entitle a plaintiff to
relief, a district court must (1) identify the elements of the claim, (2) review the complaint to
strike conclusory allegations, and then (3) look at the well-pleaded components of the complaint
and evaluate whether all of the elements identified in part one of the inquiry are sufficiently
alleged. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Plaintiff argues that she has pled affirmative acts of deliberate indifference in paragraphs
97-99 of the Amended Complaint. The Court notes, however, that these paragraphs are the same
as paragraphs 79-81 of the original Complaint. Even considering Plaintiff’s amendments, the
Court does not find factual allegations which support a claim of deliberate indifference, only
conclusory allegations which must be stricken from consideration. 7 See Malleus, 641 F.3d at
563 (in deciding whether a Complaint has stated a claim which would entitle a plaintiff to relief,
a district court must strike conclusory allegations). While Plaintiff has sufficiently pled that
Porter suffered from a serious medical need, she has not pled any facts which support a
reasonable inference that Griffith, Murry, Kendra, or Milano knew of and disregarded Porter’s
breathing problems. It is not sufficient to plead that these defendants should have known that
Porter was struggling to breathe. While Plaintiff may have stated a claim for medical
malpractice, she has not stated a claim for deliberate indifference rising to a Constitutional
Plaintiff Failed to Sufficiently Allege a Claim for Deliberate
Indifference Against Halstead
Defendant Halstead also moves to dismiss Count VII because the Amended Complaint
fails to claim that she was deliberately indifferent. Plaintiff argues that she has sufficiently
alleged that Halstead knew or should have known of the excessive risk to Porter’s health.
Plaintiff points to specific places in the Amended Complaint where she alleges that Porter did
not receive any treatment for his breathing problems. The Court accepts these allegations as
true, and yet still does not find that Plaintiff has pled any facts which support a reasonable
inference that Halstead actually knew of and disregarded Porter’s breathing problems. In the
Amended Complaint, Plaintiff alleges that Halstead observed Porter and concluded that his
condition was normal, despite signs to the contrary. While this may be sufficient to allege a
See, e.g., Amended Complaint ¶ 95.
claim for negligence, it does not state a claim for deliberate indifference.
Plaintiff Failed to Sufficiently Allege a Claim for Deliberate
Indifference Against Phillips
Defendant Phillips argues that Plaintiff has not pled facts demonstrating a culpable state
of mind. Specifically, Phillips argues that there is no basis from the Amended Complaint to
conclude that Phillips was aware of Porter’s medical need, especially as the Complaint states that
Phillips did not document any breathing difficulty. In response, Plaintiff argues that a plaintiff at
the pleading stage is not required to proffer all available evidence, but only needs to plead
allegations of fact to alert the Defendant to the nature of the claims against him. As explained
above, notice pleading is not sufficient; rather, the Plaintiff must allege facts to support a
reasonable inference that the defendant is liable for the misconduct alleged. Because Plaintiff’s
Amended Complaint still does not allege facts to support a reasonable inference that Phillips
knew of and disregarded Porter’s breathing problems, it fails to state a claim for deliberate
Whether Count IV States a Claim for Deliberate Indifference
Defendants Hyman, Green, Tomlin, and Weglarz move to dismiss Count IV for failure to
state a claim. The CEC officials contend that Plaintiff makes no allegations of any direct
involvement of the defendants but instead brings a Monell claim against them for failing to
institute policies and procedures as employees of CEC. Defendants argue that Monell only
extends §1983 liability to municipalities and does not provide a cause of action against
individual actors. They also claim that because Porter was being treated by a prison doctor, the
CEC officials, who are not medical personnel, cannot be found deliberately indifferent as a
matter of law. Plaintiff responds that she is bringing a supervisory liability claim under §1983. 8
Plaintiff plagiarizes five pages of its brief from the Third Circuit’s opinion in Barkes v. 1st Correctional Medical,
Plaintiff asserts that the CEC officials created policies and procedures which resulted in the
alleged constitutional violation.
Individual defendants who are policymakers may be liable under § 1983 if it is shown
that, with deliberate indifference to the consequences, the defendants established and maintained
a policy, practice, or custom which directly caused the constitutional harm. A.M. ex rel. J.M.K.
v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (citing Stoneking v. Bradford Area Sch.
Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Supervisory liability presumes that there is first a constitutional harm suffered by the
plaintiff. Here, because the Court has dismissed plaintiff’s Fourteenth Amendment claims
against the CEC medical personnel, the Court also finds that the supervisors cannot be held liable
as there is no constitutional violation.
Additionally, Plaintiff argues that she has pled the affirmative acts of deliberate
indifference committed by the CEC officials specifically in paragraphs 57 and 58 of the
Amended Complaint. However, there are no facts alleged in these two paragraphs that support a
reasonable inference of deliberate indifference of the part of the CEC officials to any
consequences that may have arisen from the policies they established.
Whether Counts III and XI State a Claim under Monell
Defendants Delaware County and CEC move to dismiss the Monell claims in Count III
and XI for failure to state a claim. Because there is no underlying constitutional violation, the
Court finds that there is no municipal liability and shall dismiss these two counts.
766 F.3d 307 (3d Cir. 2014) to explain supervisory liability. Plaintiff then goes on to say that Defendants could be
liable for a Monell claim. The Court will address Count IV as a supervisory liability claim under § 1983. To the
extent that Plaintiff brought a Monell claim against the CEC Officials, such a claim must be dismissed because it is
clearly established law that Monell claims can only be brought against municipalities, not individuals. See City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (Monell liability occurs when “the municipality itself causes the
constitutional violation at issue.”) (emphasis in original) (explaining Monell, 436 U.S. 658 (1978)).
Municipal liability arises under § 1983 only when a constitutional deprivation results
from an official policy or custom. Monell, 436 U.S. at 691-94. To prevail on a claim under §
1983, a plaintiff must establish that he was deprived of a constitutional right. See Harvey v.
Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011). Under Monell, a plaintiff can show
that a policy existed “when a ‘decisionmaker possess[ing] final authority to establish municipal
policy with respect to the action’ issues an official proclamation, policy, or edict.” Andrews v.
City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475
U.S. 469, 481 (1986)).
Beyond proving that an unlawful policy existed, a plaintiff must also demonstrate that
“such a policy or custom was the proximate cause of the injuries suffered.” Patterson v. City of
Phila., 2009 WL 1259968, at *10 (E.D. Pa. 2009) (citing Bielevicz v. Dubinon, 915 F.2d 845,
850 (3d Cir. 1990)). “‘A sufficiently close causal link between . . . a known but uncorrected
custom or usage and a specific violation is established if occurrence of the specific violation was
made reasonably probable by permitted continuation of the custom.’” Bielevicz, 915 F.2d at 851
(quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987)).
Because Plaintiff has failed to state a Fourteenth Amendment claim as to the CEC
officials and CEC medical personnel, the municipal defendants employing them also cannot be
held liable for a constitutional violation. See Grazier ex rel. White v. City of Phila., 328 F.3d
120, 124 (3d Cir. 2003) (“municipal liability will only lie where municipal action actually caused
an injury”) (citing City of Canton, 489 U.S. at 390); see also City of Los Angeles v. Heller, 475
U.S. 796, 799 (1986) (when there is no constitutional injury at the hands of the individual police
officer, there is no Monell liability).
Whether Count VI States a Claim for Negligence
The CEC officials move to dismiss the negligence claim against them in Count VI for
failure to state a claim. Defendants argue that they owed no duty to Porter because they did not
personally participate in his medical care. Defendants also contend that because they are not
medical personnel, they had no duty to render or supervise Porter’s medical care when medical
staff have been retained for that purpose. Additionally, Defendants assert that while a
corporation can be liable for the acts of employees, executives and directors of a company cannot
be personally liable absent exceptional circumstances. 9
To state a claim for negligence, a plaintiff must “allege facts which establish the breach
of a legally recognized duty or obligation of the defendant that is causally connected to the actual
damages suffered by the plaintiff.” Garlick v. Trans. Tech. Logistics, Inc., 636 Fed.Appx. 108,
114 (3d Cir. 2015) (quoting Scampone v. Highland Park Care Ctr., LLC, 618 Pa. 363, 57 A.3d
582, 596 (2012)). Plaintiff argues that, under Pennsylvania law, hospital supervisors owe a duty
to their patients to, among other things, oversee those practicing medicine and formulate and
enforce adequate rules and policies to ensure quality care for its patients. However, the cases
Plaintiff cites hold that hospitals, not their employees, owe a duty to their patients. Scampone v.
Grane Healthcare Co., 11 A.3d 967; Thompson v. Nason Hospital, 527 Pa. 330, 339 (1991) (a
hospital has four general duties).
In deciding whether to impose a duty, courts must consider five factors: (1) the
relationship between the parties; (2) the utility of the defendant's conduct; (3) the nature and
foreseeability of the risk in question; (4) the consequences of imposing the duty; and (5) the
overall public interest in imposing the duty. Pyeritz v. Com., 613 Pa. 80, 89 (2011) (citing R.W.
Defendants do not offer any case law to support this assertion.
v. Manzek, 585 Pa. 335, 347 (2005). Even when the parties are strangers to each other, there is a
general duty imposed on all persons not to place others at risk of harm through their actions.
J.E.J. v. Tri-County Big Brothers/Big Sisters Inc., 692 A.2d 582 (Pa. Super. 1997) (citing
Hoffman v. Sun Pipe Line Co., 394 Pa.Super. 109, 115 (1990). The scope of this duty is limited
to those risks which are reasonably foreseeable by the actor. Id.
Plaintiff has pled that Defendants failed to have specific policies and procedures such as:
Evaluating an inmate’s medication needs and providing medication;
Monitoring inmates with known medical conditions producing breathing
Observing inmates being transferred from a hospital with severe medical
It is reasonably foreseeable that failing to have these policies in place could result in serious
harm to inmates with severe medical conditions. Therefore, Plaintiff has successfully pled the
existence of a duty and breach of that duty, and has stated a claim for negligence.
In light of the foregoing, the Court will dismiss Count IV against Hyman, Green, Tomlin,
and Weglarz, Counts III, VII, and XI, and all claims against Sarah Sperber. These claims are
dismissed with prejudice, as Plaintiff was put on notice already as to the aforementioned
deficiencies by Defendants’ original Motions to Dismiss and Judge Dalzell’s decision, yet failed
to correct the errors with her Amended Complaint. An appropriate Order follows.
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