THOMPSON v. UNITED STATES OF AMERICA
MEMORANDUM AND ORDER THAT DEFENDANT'S PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 7/12/17. 7/12/17 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
July 12, 2017
While incarcerated at a Philadelphia detention center, Plaintiff underwent surgery to
repair a ruptured Achilles tendon. Thereafter, Plaintiff alleges that the prison staff provided him
with such substandard care that Plaintiff developed recurrent, severe infections, which rendered
Plaintiff disabled. Plaintiff brings the present action against the United States under the Federal
Tort Claims Act, alleging Pennsylvania state law claims of negligence, negligent infliction of
emotional distress, and intentional infliction of emotional distress. Presently before the court is
Defendant’s Motion to Dismiss Plaintiff’s claims for negligent and intentional infliction of
emotional distress pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon consideration of
Defendant’s Motion, all responses and replies thereto, and for the reasons that follow,
Defendant’s Motion is granted in part and denied in part. Plaintiff is granted leave to amend
within fourteen (14) days.
The following facts are recited in the light most favorable to Plaintiff. At all times
material, Plaintiff Trezjuan Thompson was incarcerated in the Federal Detention Center in
Philadelphia (“FDC”), a facility operated by the Federal Bureau of Prisons (“BOP”). (Compl., ¶
9). Plaintiff ruptured his right Achilles tendon while playing basketball on FDC grounds and was
advised that the injury required surgery. (Compl., ¶ 11). About a month thereafter, Plaintiff
underwent the recommended surgery at Hahnemann Hospital and Plaintiff’s right leg was put in
a cast to heal. (Compl., ¶ 12). Against medical advice, FDC corrections officers transported
Plaintiff back to the FDC immediately following his surgery. (Compl., ¶ 15). Upon discharge,
Plaintiff’s surgeon instructed the corrections officers to bring Plaintiff back to the hospital for a
follow-up evaluation in the next five to seven days. (Compl., ¶ 16). The doctor’s orders
concerning the follow-up visit were put in writing and sent to BOP staff, who forwarded the
written instructions on to medical personnel in the FDC. (Compl., ¶ 17). The instructions further
stated that if Plaintiff’s cast got wet or began to leak, the cast would need to be removed and
replaced. (Compl., ¶ 18).
FDC medical staff scheduled Plaintiff’s follow up appointment for two weeks later.
(Compl., ¶ 21).
One week following the surgery, Plaintiff informed FDC medical personnel that he “felt
blood running out of his cast.” (Compl., ¶ 19). Despite Plaintiff’s complaints, no one at the FDC
evaluated or treated Plaintiff’s leg for the two weeks between Plaintiff’s discharge from the
hospital and Plaintiff’s scheduled follow-up at Hahnemann Hospital. (Compl., ¶ 22). On the day
of Plaintiff’s follow-up appointment, a reported fire near the appointment site prevented Plaintiff
from meeting with his surgeon. (Compl., ¶ 23-24). Plaintiff was returned to FDC without being
evaluated. (Compl., ¶ 25). No one at the FDC made any immediate efforts to reschedule
Plaintiff’s follow-up appointment. (Compl., ¶ 26).
In the ten days following Plaintiff’s missed appointment, Plaintiff repeatedly complained
to FDC correctional and medical staff that he feared his wound was not healing, he was
experiencing substantial pain, and there was still blood leaking from his cast. (Compl., ¶ 27).
Plaintiff’s complaints were ignored. (Compl., ¶ 28).
Plaintiff’s follow-up appointment was re-scheduled for early October, a full three and one
half weeks following Plaintiff’s surgery. (Compl., ¶ 29). After removing Plaintiff’s cast, the
surgeon concluded that Plaintiff’s surgical site was seriously infected. (Compl., ¶ 30). Plaintiff
was readmitted to Hahnemann, where he underwent at least three debridement procedures
intended to treat his infection. (Compl., ¶ 31-32). Hospital physicians determined that the first
surgical repair of Plaintiff’s Achilles tendon had failed as a result of the infection. (Compl., ¶
33). Plaintiff had to undergo a second surgery to repair the tendon. (Compl., ¶ 34). Plaintiff
remained in the hospital for several weeks, after which he was returned to the FDC. (Compl., ¶
In the following weeks, Plaintiff was readmitted to Hahnemann on at least two other
occasions, where he was treated for persistent infection. (Compl., ¶ 39, 40-42).
Based on the foregoing, Plaintiff initiated suit under the Federal Tort Claims Act against
Defendant United States for negligence, negligent infliction of emotional distress (“NIED”), and
intentional infliction of emotional distress (“IIED”). Defendant timely filed the present Motion to
Dismiss, seeking dismissal of Plaintiff’s claims for negligent infliction of emotional distress and
intentional infliction of emotional distress. Presently before the court is Defendant’s Motion,
Plaintiff’s Response in Opposition, and Defendant’s Reply.
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 complaint, the plaintiff may be entitled
to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
marks omitted). After the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007), it was established that “[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). But rather, “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 contain more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”) (internal quotation marks omitted).
The instant action arises under 28 U.S.C. §§ 1346(b), the Federal Tort Claims Act
(“FTCA”). The FTCA provides a mechanism by which plaintiffs can bring claims against the
United States based on the actions of Government employees wherever private citizens engaging
in analogous behavior would be liable under state law. CAN v. United States, 535 F.3d 132, 138
(3d Cir. 2008). Under the FTCA federal district courts determine liability “in accordance with
the law of the place where the act or omission occurred.” Sosa v. Alvarez-Machain, 542 U.S.
692, 700 (2004). Accordingly, in the case at bar, Pennsylvania law will apply to determine the
sufficiency of the pleadings to state claims for intentional and negligent infliction of emotional
Negligent Infliction of Emotional Distress
In Count II of the Complaint, Plaintiff alleges that the BOP and FDC’s failure to provide
Plaintiff with necessary medical care is actionable as negligent infliction of emotional distress
(“NIED”) under Pennsylvania law. (Compl. ¶ 53-55). To recover for NIED in Pennsylvania, a
plaintiff must first establish the traditional elements of a negligence claim and must also establish
at least one of the following elements: “(1) that defendant had a contractual or fiduciary duty
toward him, (2) that plaintiff suffered a physical impact, (3) that plaintiff was in a ‘zone of
danger’ and at a risk of an immediate physical injury, or (4) that plaintiff had a contemporaneous
perception of tortuous injury to a close relative.” Doe v. Philadelphia Cmty. Health Alternatives
AIDS Task Force, 745 A.2d 25, 27 (Pa. Super. Ct. 2000).
At the outset, Plaintiff’s NIED claim is dismissed as a matter of law because Plaintiff
fails to allege physical manifestations of any emotional distress he experienced. “The general
rule of law in Pennsylvania has been that…a claimant may not recover damages for negligently
inflicted emotional distress in the absence of a physical manifestation of the emotional distress
allegedly suffered. Houston v. Texaco, Inc., 538 A.2d 502, 504 (Pa. Super. Ct. 1988). Plaintiff’s
claim that he experienced “extreme emotional distress which manifests itself in physical
symptoms, including extreme pain and discomfort” is insufficient, as it is unclear from the
pleadings whether the “extreme pain and discomfort” are attendant results of the emotional
trauma or the physical injury. See McCarthy v. County of Bucks, 2010 U.S. Dist. LEXIS 115586
*1, *27-*28 (E.D. Pa. October 28, 2010) (applying Pa law)(“[Plaintiff] cannot state a negligent
infliction of emotional distress claim because the physical injury did not result from the
emotional distress…If [Plaintiff] sustained any physical injury caused by any defendant, it would
have been from negligence in his medical treatment….”). Plaintiff fails to specifically identify
even one physical manifestation of the emotional distress he alleges. Compare Armstrong v.
Paoli Mem’l Hosp., 633 A.2d 605, 609 (Pa. Super. Ct. 1993) (alleging incontinence, depression,
nightmares, and insomnia as physical manifestations of the emotional distress experienced);
Crivellaro v. Pa. Power & Light Co., 491 A.2d 207, 210 (finding Plaintiff’s allegations of
intense headaches, uncontrollable shaking, involuntary hyperventilation and shortness of breath,
frequent nightmares, upset stomach, and incontinence sufficient to establish physical
manifestation of emotional distress). Absent a showing that Plaintiff’s emotional distress
manifested physically, Plaintiff cannot establish liability for NIED. As it relates to Count II of
the Complaint, Defendant’s Motion to Dismiss is granted.
Intentional Infliction of Emotional Distress
To prevail on a claim of intentional infliction of emotional distress (“IIED”), “the
plaintiff must prove that the defendant, by extreme and outrageous conduct, intentionally or
recklessly caused the plaintiff severe emotional distress.” Motheral v. Burkhart, 583 A.2d 1180,
1188 (Pa. Super. Ct. 1990). Defendant moves to dismiss Plaintiff’s claim for IIED on two
grounds. First, Defendant argues that an IIED claim cannot be based on a party’s alleged
negligence or failure to act. (Mot., 5). This argument is one of which the court can easily dispose,
as numerous courts within this jurisdiction have found a defendant’s alleged inaction to be
sufficient to support a claim for IIED. See e.g., Pierce v. Penman, 515 A.2d 948 (Pa. Super. Ct.
1986) (finding IIED liability where the defendant physician refused for years to release a
patient’s files); Woolfolk v. Duncan, 872 F. Supp. 1381 (E.D. Pa. 1995) (applying Pa. law and
finding the pleadings sufficient to establish IIED liability where the defendant physician failed to
make any bona fide medical judgments about patient’s condition because of the patient’s HIV
diagnosis); Hoffman v. Mem’l Osteopathic Hosp., 492 A.2d at 1382 (Pa. Super. Ct. 1985)
(finding a sufficient factual basis for IIED liability where the defendant physician refused to
assist a patient who had fallen to the floor and could not move for two hours). Second, Defendant
argues that even if an IIED claim was cognizable on the basis of a defendant’s omission, the
facts as alleged here are not sufficiently extreme or outrageous to serve as the basis of IIED
liability. (Mot. 5).
Conduct sufficient to support a claim of IIED is that which is “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society.” Reedy v. Evanson, 615 F.3d 197, 231232 (3d Cir. 2010)(citing Field v. Phila. Elec. Co., 565 A.3d 1170, 1184 (Pa. Super. Ct. 1989)).
Assuming them true, the pleaded facts establish that the FDC and BOP personnel: (1)
disregarded doctors’ orders as it related to the care of Plaintiff’s surgical site; (2) ignored, for
several weeks, Plaintiff’s complaints of pain and reports of symptoms indicating a need for
medical attention; and (3) were lax in their efforts to get Plaintiff evaluated by physicians outside
of the detention center. Prison staff removed Plaintiff from the hospital against medical advice.
(Compl., ¶ 13-14). Prison staff ignored the directives of Plaintiff’s discharge instructions.
(Compl., ¶ 16, 18). And when Plaintiff reported extreme pain and the exact kind of symptoms of
which the prison medical staff was warned, the prison failed to act. (Compl., ¶ 22, 26, 28). The
prison’s apparent disregard for Plaintiff’s condition culminated in a significant infection for
which Plaintiff required several additional surgical procedures to treat. (Compl., ¶ 30-44). These
facts are sufficient to state a claim for IIED.
Defendant attempts to buoy its argument in favor of dismissal by comparing the instant
case to several others that arguably involve more egregious conduct than what is alleged in the
case at bar. (Reply, 3-6). But these comparisons only underscore the absence of a standardized
mechanism for qualifying conduct as sufficiently extreme or outrageous. Ultimately, it is for this
Court to assess the facts as pleaded here, and decide “in the first instance, whether [Defendant’s]
conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”
Motheral, 583 A.2d at 1188. This case may not involve allegations of discrimination, verbal
abuse, or years of alleged misconduct, but this Court is satisfied that the facts as alleged could
reasonably support a finding of IIED liability for three reasons. First, there existed a special
relationship, as Plaintiff’s detention rendered Plaintiff uniquely dependent on BOP and FDC
personnel to act in Plaintiff’s best interests. See e.g., Miller v. Hoffman, 1999 U.S. Dist. LEXIS
9275 *1, *21 (E.D. Pa. June 21, 1999) (“The extreme and outrageous character of conduct may
arise from an abuse by a person in a position of actual or apparent authority over another, or by
one with the power to affect the other’s interests.”). Second, the directives of Plaintiff’s surgeon
could be reasonably regarded as alerting BOP and FDC prison staff to the risk their conduct
posed to Plaintiff’s wellbeing. See e.g., id. at *23 (citing the defendant’s failure to implement the
alternative medical care recommended by other physicians as a factor in the court’s decision that
the evidence was sufficient to prove IIED). And third, the prison’s staff repeated indifference to
Plaintiff’s reported pain and exhibited symptoms could reasonably be interpreted as rising to a
level of callousness intolerable in civilized society. See e.g., Hoffman, 492 A.2d at 1386
(affirming jury finding of IIED liability where the defendant doctor left a fallen patient on the
floor unassisted for two hours despite pleas for aid). According Plaintiff all reasonable factual
inferences and considered in context, this Court is unwilling to conclude that Plaintiff could not,
as a matter of law, demonstrate that the BOP and FDC’s conduct was sufficiently outrageous and
extreme so as to support a finding of liability for IIED.
In its Reply, Defendant appears to also challenge the sufficiency of the pleadings to
establish that Plaintiff experienced severe emotional distress as a result of Defendant’s allegedly
extreme and outrageous conduct. (Reply, 7). As a preliminary matter, this Court is not required
to consider this argument, as Defendant failed to raise it in his opening brief. United States v.
Hoffecker, 530 F.3d 137, 163 (3d Cir. 2008) (noting that a party’s failure to raise argument in
opening brief constitutes waiver thereof). But even if the argument were not waived, it would
fail. Plaintiff pleads that he suffered “severe emotional distress which manifests itself in physical
symptoms,” “emotional trauma,” and “loss of the enjoyment of life.” This Court is satisfied that
at this early stage, such pleadings are sufficient to survive the instant Motion. See, Rodriguez v.
Smith, 2005 U.S. Dist. LEXIS 12237 *1,*35 (E.D. Pa. June 21, 2005)(“Furthermore, Plaintiff’s
allegations that he has suffered ‘extreme anxiety and distress’ as a result of the Medical
Defendants’ conduct sufficiently raises an inference of emotional distress.”).
Plaintiff sufficiently pleads a cause of action for intentional infliction of emotional
distress. As it relates to Count III of the Complaint, Defendant’s Motion is denied.
For all of the foregoing reasons, the pleadings are sufficient to state a claim for
Intentional Infliction of Emotional Distress but insufficient to state a claim for Negligent
Infliction of Emotional Distress. Defendant’s Motion to Dismiss is accordingly GRANTED as it
relates to Count II of the Complaint, and DENIED as it relates to Count III of the Complaint.
Plaintiff is granted leave to amend the Complaint within fourteen (14) days of the filing of this
A corresponding Order follows.
BY THE COURT:
/s/ C. Darnell Jones, II
C. Darnell Jones, II
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