KASHKASHIAN v. MARKY et al

Filing 42

MEMORANDUM/OPINION THAT THE AMENDED COMPLAINT IN ITS CURRENT FORM FAILS TO STATE A CLAIM AGAINST DEFENDANTS MARKEY, CASSIDY, AND SNYDER UPON WHICH RELIEF MAY BE GRANTED. PLAINTIFF WILL BE GIVEN ONE FINAL OPPORTUNITY TO CORRECT THE DEFICIENCIES IN HI S PLEADINGS AS TO DEFENDANTS MARKEY, CASSIDY, AND SNYDER. I WILL DISMISS THE COMPLAINT WITH PREJUDICE AS TO DEFENDANTS BUCHANAN, CREGAR, KING AND JACKMAN, AND I WILL DISMISS PLAINTIFF'S FOURTEENTH AMENDMEND CLAIMS. HOWEVER I WILL DISMISS THE AMENDED COMPLAINT WITHOUT PREJUDICE AS TO DEFENDANTS MARKEY, CASSIDY AND SNYDER, AND PLAINTIFF MAY FILE AN AMENDED COMPLAINT AS TO THESE THREE DEFENDANTS ONLY IF HE CAN DO SO IN COMPLIANCE WITH THE FEDERAL RULES OF CIVIL PROCEDURE. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 11/17/17. 11/17/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ERIC KASHKASHIAN,
CIVIL ACTION
NO. 16-3755

Plaintiff,
v.
DR. JOHN MARKEY, JOSH BUCHANAN,
CHRISTINA C. CREGAR, CHRISTINA A.
KING, DR. ABBEY CASSIDY, PATRICIA
SNYDER and BLAKE JACKMAN,
Defendants.
MEMORANDUM OPINION
Schmehl, J. /s/ JLS
I.

November 17, 2017

INTRODUCTION
Plaintiff filed a Complaint in this matter on July 29, 2016, and subsequently filed
an Amended Complaint on March 1, 2017, against Defendants Markey, Buchanan,
Cregar, King, Jackman, Cassidy and Snyder. Plaintiff was then permitted to file a
Supplemental Amended Complaint on April 28, 2017. Plaintiff brings a cause of action
pursuant to 42 U.S.C. § 1983 for violations of his Fourteenth Amendment right to due
process. All Defendants have moved to dismiss Plaintiff’s Amended Complaint. For the
reasons that follow, I will grant Defendants’ Motions to Dismiss.

II.

FACTS
Plaintiff brings a cause of action against several mental health providers and several

employees of the public defender’s office for their alleged role in his transfer to
Norristown State Hospital. While Plaintiff was incarcerated, Dr. Markey performed a
psychological evaluation on August 17, 2015, at the request of Defendant Jackman, his

public defender, for the purpose of determining whether Plaintiff was competent to stand
trial. (Complaint, ¶ 25.) Plaintiff alleges that Dr. Markey contacted Plaintiff’s brother to
obtain “collateral information” to use in the psychological evaluation prior to Plaintiff
signing an authorization for disclosure of his medical information, and that Dr. Markey
failed to disclose to Plaintiff that he had contacted his brother. (Id., ¶¶ 24, 25.) Plaintiff
alleges that Dr. Markey found Plaintiff incompetent to stand trial, and according to the
docket in Plaintiff’s criminal case, he was ordered to be committed and transferred to
Norristown State Hospital by the Honorable Wallace Bateman, Jr., on October 6 and 7,
2015. (Docket No. 22, Ex. A.) Plaintiff was transferred there on October 16, 2015, and
remained there until January 29, 2016. (Compl., ¶ 29.)
Plaintiff also claims that around August 16, 2016, pursuant to an August 8, 2016
order of court, he underwent a fourth psychological evaluation with Defendant Patricia
Snyder. (Id., ¶ 40.) Plaintiff claims Defendant Snyder failed to disclose to him that she
was an intern and not a doctor. (Id.) Plaintiff claims that after that evaluation, he had a
competency hearing on around October 17, 2016, at which time Defendant Dr. Cassidy,
who co-signed Defendant Snyder’s psychological evaluation, testified that he was
paranoid and delusional. (Id., ¶ 48.)
As to Defendant King, Bucks County Public Defender, Defendants Buchanan and
Cregar, attorneys employed in the Public Defender’s Office and court-appointed counsel
Defendant Jackman, Plaintiff alleges multiple constitutional violations against them for
the legal process by which he was transferred to Norristown State Hospital.

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III.

LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim satisfies the plausibility standard when the facts alleged “allow[]
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing
Iqbal, 556 U.S. at 678). While the plausibility standard is not “akin to a ‘probability
requirement,’” there nevertheless must be more than a “sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability,
it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The Court of Appeals requires a three-step analysis under a 12(b)(6) motion: (1)
“it must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’” (2) “it
should identify allegations that, ‘because they are no more than conclusions, are not
entitled to the assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual
allegations, [the] court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Connelly v. Lane Construction Corp.,
809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679); see also Burtch,
662 F.3d at 221; Malleus v. George, 641 F.3d 560, 563 (3d. Cir. 2011); Santiago v.
Warminster Township, 629 F.3d 121, 130 (3d. Cir. 2010).

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Plaintiff presents a Fourteenth Amendment due process claim, which requires him
to prove that he was deprived of a protected liberty or property interest without the
process and procedures required by the Constitution. See Shoats v. Horn, 213 F.3d 140
(3d Cir. 2000). Plaintiff’s allegations involve psychological evaluations that were
conducted to determine if he was competent to stand trial, the information that was
gathered in the course of those evaluations, and his transfer to Norristown State Hospital.
In Vitek v. Jones, the Supreme Court held that a prisoner has a cognizable Fourteenth
Amendment claim against state officials when the prisoner is involuntarily transferred to
a mental hospital. 445 U.S. 480 (1980). A proper transfer to a mental hospital must
include the following procedure: 1) written notice; 2) a hearing; 3) an opportunity to
present testimony and to confront and cross-examine witnesses; 4) an independent fact
finder; 5) a written statement by the fact finder; 6) availability of counsel; and 7)
effective and timely notice. Vitek, 445 U.S. at 494.
IV.

DISCUSSION
A.

Defendants Markey and Cassidy
Plaintiff alleges Dr. Markey violated his Fourteenth Amendment due process rights

by advocating for his transfer to Norristown State Hospital, for gathering and releasing
“collateral information” from Plaintiff’s brother without Plaintiff’s authorization in
violation of HIPAA and by including information supplied by Plaintiff’s brother in the
mental health evaluation. In response, Dr. Markey argues that Plaintiff does not allege
that Dr. Markey actually transferred him to Norristown State Hospital; rather, Plaintiff
alleges that Dr. Markey conducted the evaluation that determined Plaintiff was
incompetent to stand trial. I agree with Dr. Markey, and find that the mere act of

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performing a medical examination and finding Plaintiff incompetent does not equate to a
transfer to a mental hospital. Vitek contemplates potential Fourteenth Amendment
liability for a transfer to a mental hospital, not for the process of determining
competency for trial. As Dr. Markey was not the individual who actually made the
determination that Plaintiff should be transferred, he cannot be found to have violated
Plaintiff’s due process rights. Plaintiff’s actual commitment and transfer was ordered by
Judge Bateman, not Dr. Markey.
Plaintiff also alleges that Dr. Markey gathered information from his brother to be
used in the psychological evaluation without Plaintiff’s authorization; however, this does
not constitute a valid claim for a Fourteenth Amendment violation. HIPAA, which deals
with access to protected health information, does not provide a private cause of action
and therefore is not a cognizable Fourteenth Amendment claim. See Dade v. Gaudenzia
DRC, Inc., 2013 WL 3380592, at *2 (E.D. Pa. July 8, 2013) (finding that Plaintiff could
not bring a private action to enforce HIPAA obligations, whether through the statute itself
or through §1983.) Accordingly, Plaintiff’s Fourteenth Amendment claim based on
alleged HIPAA violations will be dismissed with prejudice.
As to Dr. Cassidy, Plaintiff alleges that she violated his constitutional rights by
advocating for his transfer to Norristown without following the procedures set forth in
Vitek. Specifically, he alleges that Dr. Cassidy testified at his competency hearing and
co-signed the psychological evaluation that was conducted by an intern rather than a
medical doctor. However, according to the complaint, at the time of the evaluation cosigned by Dr. Cassidy and her testimony at Plaintiff’s hearing, Plaintiff had already been
returned to jail from Norristown State Hospital. Plaintiff was transferred to Norristown

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State Hospital in October of 2015 and returned to Bucks County Correctional Facility in
January of 2016. Dr. Cassidy’s conduct occurred in August of 2016. Plaintiff alleges that
Dr. Cassidy’s testimony and/or evaluation will eventually lead to his transfer back to
Norristown State Hospital. However, Plaintiff fails to allege that he has been transferred
because of Dr. Cassidy’s evaluation or testimony. Therefore, Plaintiff fails to allege a
Fourteenth Amendment violation, as he does not allege that Dr. Cassidy was responsible
for his actual transfer.
Plaintiff also requested a preliminary and permanent injunction ordering Drs.
Markey and Cassidy to withdraw “wrongfully gathered information” and to withdraw the
evaluation done on August 16, 2016. A prisoner has the right to have erroneous
information removed from their prison record if they can show that the erroneous
information was relied upon to deprive them of a constitutional right. See McCrery v.
Mark, 823 F.Supp. 288, 292 (E.D.Pa. 1993). In order to be entitled to removal of
erroneous information, Plaintiff must show: 1) the information is in his file; 2) the
information is false; and 3) the information is relied on to a constitutionally significant
degree. Id. The presence of erroneous material becomes actionable under section 1983
only when the prisoner can show that a defendant refused under the color of state law to
remove the erroneous information. Id. at 295-96.
In the instant matter, Plaintiff has failed to plead that the information in question is
erroneous. To the contrary, he merely claims the information was “wrongfully gathered.”
Therefore, he has no right to removal of the information from his record. Further,
Plaintiff has failed to plead that he requested removal or withdrawal of the false

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information and that request was denied. Accordingly, Plaintiff has pled insufficient facts
to support his request for injunctive relief.
B.

Defendant Snyder
As to Defendant Patricia Snyder, Plaintiff claims that in August of 2016, she

completed a psychological evaluation on Plaintiff and failed to disclose that she was an
intern rather than a doctor. (Compl., ¶ 40.) Plaintiff further alleges that Snyder copied and
pasted information obtained by Dr. Markey in violation of Plaintiff’s HIPAA rights into
her August 16, 2016 evaluation. (Compl., ¶ 64.) Plaintiff claims that this evaluation was
used for the determination of Plaintiff’s competency at a hearing before Judge McMaster
in October of 2016. (Compl., ¶ 48.)
As discussed above, the deprivation of liberty contemplated in Vitek is the
transfer to a mental hospital, not the psychological evaluation undertaken to determine if
a prisoner is competent to stand trial. Plaintiff does not allege Snyder transferred him to
Norristown State Hospital; he merely alleges that Snyder, as an intern, conducted a
psychological evaluation on him. Accordingly, Plaintiff’s allegations as to Snyder are
insufficient to constitute a cognizable claim for Fourteenth Amendment due process
violations.
Further, when Snyder performed her evaluation on Plaintiff, he had already been
returned to prison from Norristown State Hospital. Plaintiff does not allege that he has
been transferred back to Norristown State Hospital as a result of Snyder’s August of 2016
evaluation and report. Therefore, Plaintiff has not suffered any deprivation of his liberty
or been deprived of any due process and any constitutional violation as to Defendant
Snyder must fail.

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C. Defendants Buchanan, Cregar, King and Jackman
As to Defendants Buchanan, Cregar, King and Jackman, all attorneys in the Bucks
County Public Defender’s office, Plaintiff brings section 1983 claims against them for
their involvement in his transfer to Norristown State Hospital. To state a claim under
Section 1983, a plaintiff must show that defendants, acting under color of state law,
deprived him of a right secured by the Constitution or the laws of the United States.
Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327 (1986). However, a public defender does not act under color of
state law when performing a lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding. Polk County v. Dodson, 454 U.S. 312 (1981). As Defendants
Buchanan, Cregar, King and Jackman were not acting “under color of state law,” Plaintiff
cannot maintain a section 1983 claim against them. Accordingly, they are dismissed from
this action with prejudice.
V.

CONCLUSION
The Amended Complaint in its current form fails to state a claim against

Defendants Markey, Cassidy and Snyder upon which relief may be granted. However,
Plaintiff will be given one last final opportunity to file an amended complaint as to
Defendants Markey, Cassidy and Snyder only. I permit this amendment as to these
defendants mindful of the fact that in civil rights cases pro se plaintiffs often should be
afforded an opportunity to amend a complaint before the complaint is dismissed in its
entirety, see Fletcher–Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d
Cir.2007), unless granting further leave to amend is not necessary where amendment
would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d

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Cir.2004). Accordingly, Plaintiff will be given one final opportunity to correct the
deficiencies in his pleading as to Defendants Markey, Cassidy and Snyder. I will dismiss
the complaint with prejudice as to Defendants Buchanan, Cregar, King and Jackman, and
I will dismiss Plaintiff’s Fourteenth Amendment claims based on alleged HIPAA
violations with prejudice. However, I will dismiss the amended complaint without
prejudice as to Defendants Markey, Cassidy and Snyder, and Plaintiff may file an
amended complaint as to these three defendants only if he can do so in compliance with
the Federal Rules of Civil Procedure.

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