LEFLAR v. WARDEN, MONTGOMERY CORRECTIONAL FACILITY et al

Filing 19

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/19/17. 4/19/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DANIEL S. LEFLAR

CIVIL ACTION

v.
WARDEN JULIO M. ALGARIN, et al.

NO. 16-6567

KEARNEY,J.

April 19, 2017
MEMORANDUM

An inmate claiming an unknown person's decision to discontinue his pain medication
following hospital discharge must plead facts plausibly demonstrating a named defendant's
personal involvement in a decision which constituted cruel and unusual punishment violative of
the Eighth Amendment. Even given the liberal review of a pro se inmate's pleading of collusion
between the prison wardens and third party medical company hired by the prison, we cannot
proceed without some basis in fact showing the personal involvement of individual defendants or
a policy or custom of institutions leading to a finding the denial of pain medication by an
unknown person constituted cruel and unusual punishment upon the inmate.

As the pro se

inmate has not presently come close to this pleading requirement, we grant the defendants'
motions to dismiss without prejudice to the inmate filing an amended complaint, if he can in
good faith, consistent with this Memorandum.
I.

Facts alleged in the pro se Complaint.

In late 2014, Daniel S. Leflar suffered multiple gunshot wounds requiring major and
intrusive surgery at Temple University Hospital in Philadelphia. 1 On December 17, 2014,

Temple University Hospital discharged Mr. Leflar to the custody of Bucks County Correctional
Facility.2
Officials at the Bucks County facility-who Mr. Leflar does not identify-medically
screened Mr. Leflar, learned about his recent surgery, and allowed him take pain medication. 3
After about ten days at the Bucks County facility, while Mr. Leflar's wounds were "still healing
and aggravated," individuals who Mr. Leflar does not identify discontinued Mr. Leflar's pain
medication even though "pain medication was necessary given that everyday activities, i.e.
standing and walking aggravated the injury." 4 Mr. Leflar argues Bucks and Montgomery County
Correctional Facility employees "and/or others acting on their behalf' failed to provide him with
adequate pain medication and adequate access to medical care. 5 Mr. Leflar alleges his pain
medications PrimeCare Medical Incorporated, its employee Dr. Margaret Corillo, its employee
L.P.N. Alexus, and the Bucks and Montgomery County Correctional Facility Wardens colluded
to deprive him of adequate healthcare because some unknown persons discontinued pain
medication. 6
II.

Analysis

Mr. Leflar sued Montgomery County Correctional Facility Warden Julio M. Algarin,
Bucks County Correctional Facility Warden Guy E. Waller, PrimeCare Medical, Inc., Dr.
!
Margaret Carrillo,7 and Alexis Koenig, RN, 8 for unspecified claims arising from an unknown
person's alleged failure to provide medical treatment for Mr. Leflar's pain. 9 We construe Mr.
Leflar's claims as claims under 42 U.S.C. § 1983 for Eighth Amendment violations and state law
claims for medical malpractice or professional negligence.
Defendants move to dismiss arguing Mr. Leflar fails to state a claim upon which relief
can be granted. 10 We grant Defendants' Motions and exercise our discretion under 28 U.S.C. §

2
A

1915(e)(2)(B)(ii) to dismiss claims on grounds not raised by Defendants.

Because we dismiss

Mr. Leflar's claims to which we have original jurisdiction, we decline to exercise supplemental
jurisdiction over Mr. Leflar's state law claims. As Mr. Leflar proceeds prose, we will allow him
one opportunity to amend, if he can in good faith, to plead a civil rights claim on or before May
31,2017.
A. Mr. Leflar fails to allege facts demonstrating personal involvement under §
1983. 11

The Eighth Amendment prohibits "cruel and unusual punishment." 12 Prison officials
violate the Eighth Amendment's prohibition on cruel and unusual punishment when they exhibit
"deliberate indifference to serious medical needs of prisoners." 13 "A prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." 14
Our Court of Appeals in Rouse v. Plantier explained deliberate indifference exists when a
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; [] (3) prevents
a prisoner from receiving needed or recommended medical treatment[;]" or (4) "persists in a
particular course of treatment in the face ofresultant pain and risk of permanent injury." 15
Deliberate indifference requires "obduracy and wantonness ... which has been likened to
conduct that includes recklessness or a conscious disregard of a serious risk." 16

To find

deliberate indifference, "the 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." 17
For example, in Tenon v. Dreibelbis, our Court of Appeals held the plaintiff stated an Eighth
Amendment claim against a doctor where he alleged telling the doctor he required "stronger pain
medication" for his "excruciating" and "severe jaw pain" resulting from a surgery the doctor
required. 18 The doctor's failure to respond to the plaintiffs request for stronger pain medication
3

for his "excruciating pain" demonstrated the doctor's deliberate indifference because the doctor
knew about the plaintiffs pain and recent surgery. 19
Mr. Leflar must plead specific facts demonstrating each individual defendant had
personal involvement in the alleged wrongs. 20 To the extent Mr. Leflar seeks to hold supervisory
officials liable, such officials cannot be held liable for the wrongs of others, as is the case under
the doctrine of respondeat superior. 21 In other words, a supervisory official's liability cannot be
based merely on an employer-employee relationship. 22 Rather, to hold a supervisor liable, Mr.
Leflar must allege facts showing the supervisor: (a) directly participated in violating his rights;
(b) directed others to violate his rights; or (c) knew of and acquiesced in his subordinates'
violations of his rights. 23
Mr. Leflar does not allege facts demonstrating Warden Algarin, Warden Waller, Dr.
Carrillo, or Ms. Koenig had personal involvement in his alleged inadequate medical treatment. 24
He alleges his pain medications "were discontinued . . . as a result of the collusion between"
these individuals. 25 His allegation is too conclusory to warrant the assumption of truth. 26

We

lack facts about what each of these individuals allegedly knew or did. We accordingly dismiss
these claims without prejudice for Mr. Leflar to file an amended Complaint pleading specific
facts demonstrating how these individuals violated Mr. Leflar's Eighth Amendment rights.
B. Mr. Leflar fails to state claims for municipal liability against Bucks and
Montgomery Counties.

Mr. Leflar does not identify whether he sues Warden Algarin and Warden Waller in their
individual capacities or official capacities. A claim against a state official in his or her official
capacity is a claim against the entity to which the officer is an agent. 27 To the extent Mr. Leflar
sues Warden Algarin and Warden Waller in their official capacities, these claims are claims
against the counties to which they are agents.
4

A county is not liable under 42 U.S.C. § 1983 under a theory of respondeat superior. 28
Instead, a county is only liable for its policies or customs. 29 To succeed on this claim, Mr. Leflar
must allege facts demonstrating: (1) he possessed a constitutional right of which he was
deprived; (2) the county had a policy or custom; (3) the policy or custom amounted to deliberate
indifference to his constitutional right; and (4) the policy was the moving force behind the
constitutional violation. 30
Mr. Leflar fails to allege facts demonstrating Montgomery or Berks Counties had a policy
or custom amounting to deliberate indifference to his serious medical needs. We accordingly
dismiss Mr. Leflar's claims against Warden Algarin and Warden Waller in their official
capacities without prejudice to file an amended complaint if warranted under Federal Rule of
Civil Procedure 11.
C. Mr. Leflar fails to state a claim against PrimeCare.
Mr. Leflar fails to plead an Eighth Amendment claim against PrimeCare. A private

company may not be held liable for the actions of its staff under § 1983 based solely on the
theory of respondeat superior or vicarious liability. 31 Instead, a private corporation providing
health services to inmates is liable only to the extent its policies or customs exhibit deliberate
indifference to a prisoner's serious medical needs. 32 For example, in Henry v. Buskirk, the
plaintiff alleged PrimeCare Medical, Inc.-which agreed with Northampton County Prison to
provide health services to inmates-"[was] deliberately indifferent to his handicap and other
medical needs."33 The court held "[a] private corporation contracted by a prison to provide
health care for inmates cannot be held liable on a respondeat superior theory; rather, it can only
be held liable for constitutional violations if it has a custom or policy exhibiting deliberate
indifference to a prisoner's serious medical needs."34

5

Mr. Leflar does not allege PrimeCare had a policy or custom amounting to deliberate
indifference to his serious medical needs.

Because Mr. Leflar fails to allege specific facts

allowing us to find the existence of an actual custom or policy leading to his injuries, we have no
basis to hold PrimeCare liable for its alleged deliberate indifference under § 1983. We dismiss
his federal claim against PrimeCare without prejudice to file an amended complaint if warranted
under Federal Rule of Civil Procedure 11.
D. We decline to exercise supplemental jurisdiction over Mr. Leflar's claims for
medical malpractice and professional negligence, which are deficient under state
law.

Construing Mr. Leflar' s complaint liberally to contain state law medical malpractice or
professional negligence claims, we dismiss these claims. Because Mr. Leflar fails to state a
claim to which we have original jurisdiction, we exercise our discretion under 28 U.S.C. §
1367(c)(3) to decline supplemental jurisdiction over his state law claims. 35
In the alternative, we dismiss Mr. Leflar' s medical malpractice and professional
negligence claims for failure to comply with Pennsylvania Rule of Civil Procedure 1042.3. In
Pennsylvania, to file a claim for malpractice and professional negligence, Pennsylvania Rule of
Civil Procedure 1042.3 requires Mr. Leflar to "file a certificate of merit within sixty days after
filing a professional negligence complaint." 36 The rule applies to incarcerated pro se plaintiffs
"and constitutes a rule of substantive state law with which plaintiffs in federal court must
comply."37

This rule also applies to claims of corporate negligence for the conduct of its

employees. 38 The failure to file a certificate of merit or timely move for an extension of time
under Rule 1042.3(d) requires dismissal of his negligence claims unless his failure to do so is
justified by a "reasonable excuse. " 39 Mr. Leflar neither filed a certificate of merit nor provided a
reasonable excuse for failing to do so. A "pro se litigant's ignorance of or mistaken assumptions

6

about the requirements of Rule 1042.3 cannot serve as a reasonable excuse." 40 We accordingly
dismiss these claims.
III.

Conclusion

We grant Defendants' Motions to dismiss as to Mr. Leflar's § 1983 claims. To the extent
Mr. Leflar attempts to plead state law medical malpractice or professional negligence claims, we
decline to exercise supplemental jurisdiction over these claims and in the alternative, dismiss
these claims for failure to comply with Pennsylvania Rule of Civil Procedure 1042.3.
Recognizing Mr. Leflar may be able to plead a basis for an Eighth Amendment civil rights claim,
we grant Mr. Leflar leave to file an amended complaint if warranted under Federal Rule of Civil
Procedure 11.
1

ECF Doc. No. 5, § II ~ D.

2

Id.

3

Id.

4 Id.

s Id.
6

Id.

7

In his Complaint, Mr. Leflar misspells Dr. Carrillo's last name as "Corillo." ECF Doc. No. 5,
at p. 1. We use the spelling identified by Defendants.
8

In his Complaint, Mr. Leflar identifies Ms. Koenig as "Licensed Practitioner Nurse Alexus."
ECF Doc. No. 5, at p. 1. We use the spelling identified by Defendants.
9

ECF Doc. No. 5, § II ~ D.

10

"We construe the pleadings of prose litigants liberally." Pearson v. Sec'y Dep't of Corr., 775
F.3d 598, 604 (3d Cir. 2015). "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

7

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 us to apply 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. Kane 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).
11

As a pretrial detainee when the alleged misconduct occurred, Mr. Leflar' s "constitutional claim
for inadequate medical care would typically be adjudicated under the Due Process Clause of the
Fourteenth Amendment[,]" as the Eighth Amendment "applies only after the State has secured a
formal adjudication of guilt." Crawford v. McMillan, 660 Fed. Appx. 113, 117 (3d Cir. 2016);
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003). Because the
Fourteenth Amendment affords pretrial detainees protections "at least as great as the Eighth
Amendment protections available to a convicted prisoner," we apply the "deliberate
indifference" standard established in Estelle v. Gamble, 429 U.S. 97, 103 (1976) to Mr. Leflar's
suit. Natale, 318 F.3d at 581.
12

U.S. Const. amend. VIII.

13

Estelle, 429 U.S at 104.

14

Id. at 106.

15

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (internal quotation and citations omitted).

16

Id. (internal quotation and citation omitted); see also Monmouth Cnty. Corr. Institutional
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (holding "[d]eliberate indifference
is ... evident where prison officials erect arbitrary and burdensome procedures that result in
interminable delays and outright denials of medical care to suffering inmates") (internal
quotation and citation omitted).
17

Crawford, 660 Fed. Appx. at 117 (citing Farmer, 511 U.S. at 825).

18

Tenon v. Dreibelbis, 606 F. App'x 681, 686 (3d Cir. 2015).
8

19

Id

20

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

21

Miller v. Hoffman, No. 97-7987, 1998 WL 404034, at *3 (E.D. Pa. July 7, 1998) (citing Rode,

845 F.2d at 1207).
22

Santiago, 629 F.3d at 128.

23

Id at 129.

24

Crawford, 660 Fed. Appx. at 118.

25

ECF Doc. No. 5, §II i! D.

26

Santiago, 629 F.3d at 130.

27

Banegas v. Hampton, No. 08-5348, 2009 WL 1098845, at *5 (E.D. Pa. Apr. 22, 2009)
(quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)).

28

Bd ofCty. Comm 'rs ofBryan Cty., Oki. v. Brown, 520 U.S. 397, 403 (1997).

29

Id

30

Vargas v. City of Philadelphia, 783 F.3d 962, 974 (3d Cir. 2015) (quoting City of Canton, 489
U.S. 378, 389-91 (1989)) (brackets omitted).

31

Miller, 1998 WL 404034 at 5.

32

Henry v. Buskirk, No. 08-1348, 2011 WL 767540, at *4 (E.D. Pa. Feb. 24, 2011) (citing
Natale, 318 F.3d at 583-84).
33

Id

34

Id (citing Natale, 318 F.3d at 583-84) (footnotes omitted).

35

Doe v. Mercy Catholic Med Ctr., 850 F.3d 545, 567 (3d Cir. 2017).

36

Crawford, 660 Fed. Appx. at 114 (citing Pa. R. Civ. P. 1042.3(a)).

37

Koukos v. Chester Cty., No. 16-4602, 2017 WL 549150, at *3-4 (E.D. Pa. Feb. 7, 2017)
(citing Iwanejko v. Cohen & Grigsby, P.C., 249 Fed. Appx. 938, 944 (3d Cir. 2007)).
38

Id at *4.

9

39

Perez v. Griffin, 304 Fed. Appx. 72, 74 (3d Cir. 2008).

40

Id. at 75 (citing Hoover v. Davila, 862 A.2d 591, 595-96 (Pa. Super. 2004)).

10