DAVIS v. CITY OF PHILADELPHIA
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 1/5/18. 1/9/18 ENTERED AND COPIES MAILED TO UNREP, EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA, et al.
January 5, 2018
Like all people who have not been found guilty of a crime, pre-trial detainees have a
constitutional right to be free from punishment. This case concerns one facet of that right:
detainees’ right to adequate medical care, as guaranteed by the Fourteenth Amendment’s
substantive due process clause. Following an auto accident in which Plaintiff Aimee Davis broke
her wrist, Philadelphia police arrested her and transported her to the hospital. Plaintiff was
discharged with instructions from Emergency Room personnel that she needed urgent attention
from an orthopedic specialist. Plaintiff remained in custody for six weeks before she received the
recommended care, and by the time surgery was ultimately performed, a malunion of the bones
allegedly prevented a successful outcome. She contends that she is permanently disfigured as a
result, and brings claims under 42 U.S.C. § 1983 against the City of Philadelphia, Riverside
Correctional Facility’s medical provider and medical staff, and several police officers. She also
brings medical malpractice claims against Riverside’s individual medical staffers.
Motions to Dismiss by Defendants City of Philadelphia and Dr. Jonathan Cohen are
pending. Because Plaintiff has pled facts sufficient to support an inference that the inadequate
medical care she received amounted to punishment under the Fourteenth Amendment, and because
such deprivation could potentially be attributed to the City under Monell, I deny the City’s
Motion, except as to claims based on vicarious liability. See Monell v. Dep’t of Soc. Servs. of New
York, 436 U.S. 658, 691–95 (1978). I likewise deny Dr. Cohen’s Motion because Plaintiff has
stated claims against him for direct § 1983 liability and medical malpractice. 1
Plaintiff’s relevant factual allegations, separated from her legal conclusions and taken as
true, are as follows. Plaintiff broke her wrist (a left distal radius fracture) in a car accident on
October 16, 2015. In connection with the accident, Philadelphia police arrested Plaintiff and took
her to the hospital for emergency treatment. Hospital staff determined that her wrist bones were
displaced and needed to be realigned, but their two attempts to align the bones were unsuccessful.
The hospital informed Plaintiff and the arresting officers (in whose custody she remained) that the
fracture was “unstable” 2 and in need of surgical repair, and that she needed to see an orthopedic
specialist within two days. FAC ¶¶ 25–27. The next day, October 17th, the hospital released
Plaintiff and gave her discharge documentation to the police officers.
From the hospital, police transported Plaintiff to Riverside Correctional Facility, where
medical staff, including Dr. Jonathan Cohen, conducted a medical intake screening as part of her
Plaintiff Aimee Davis originally filed this case against Defendant City of Philadelphia [“the City”] and
several other entities in the Middle District of Pennsylvania. From there, Judge Brann severed the case and
transferred Plaintiff’s claim against the City to this district. See generally ECF No. 1 (the original record
from the Middle District, including Plaintiff’s original Complaint (ECF No. 1-1), the City’s Motion to
Sever (ECF No. 1-15), and Judge Brann’s Memorandum (ECF No. 1-18)). Shortly after the transfer, I
dismissed Plaintiff’s Complaint against the City as “patently inadequate” without prejudice to refile. Order,
ECF No. 4. She did so, adding several individual defendants (including movant Dr. Cohen), new
professional negligence claims, and pages of factual allegations. See First Am. Compl., ECF No. 5
Plaintiff did not specify whether she left the hospital with anything to stabilize or protect her wrist, such
as a splint or sling.
initial processing. 3 Plaintiff alleges that the police officers did not relay her urgent need for
specialist care to Riverside staff or take any other action to ensure she received the specialist
treatment they knew she needed for her injured wrist. FAC ¶¶ 32–34. Riverside’s health intake
process required Plaintiff to complete an Intake Screening Questionnaire [hereinafter the “Intake
Form”] that asked whether she had any “life threatening medical problems” but did not ask if she
had a serious (but not life-threatening) medical need or if she had been prescribed any medical
treatment, or request a description of her current conditions. FAC ¶ 36.
From the time of her arrival at Riverside on October 17th to her transfer to another
correctional facility (SCI Muncy) on October 22nd, Plaintiff complained to Dr. Cohen and other
Riverside medical staff of her “significant and unbearable pain and swelling” and repeatedly asked
to see a specialist for her fracture, as the hospital had instructed. FAC ¶¶ 67–68. Plaintiff received
over-the-counter pain medication (“Motrin, only”), but was not allowed to see a specialist. FAC ¶
68. On October 21st—Plaintiff’s fifth day at Riverside and one day before her transfer to SCI
Muncy—Dr. Cohen noted in a progress report that Plaintiff had been told to consult an orthopedic
surgeon and, in the “treatment” section of the report, he wrote “refer to temple orthopedics.” The
next day, sometime after the decision to transfer Plaintiff to SCI Muncy but before her actual
transfer, Dr. Cohen “ordered an x-ray” of her wrist. FAC ¶¶ 44–45. But neither the x-ray nor the
Temple Orthopedics referral happened, and Plaintiff was transferred to SCI Muncy later that day.
Dr. Cohen completed a summary “in connection with” Plaintiff’s transfer to SCI Muncy
[hereinafter the “Transfer Summary”]. FAC ¶ 47. Like the Intake Form, the Transfer Summary
Dr. Cohen worked for Riverside’s “ABC Corp.,” a fictional name Plaintiff used to describe the
“governmental entity and/or private contractor retained by the City” that “provides healthcare to inmates in
the Philadelphia Prison System.” FAC ¶ 13. Defendants have since disclosed to Plaintiff and the Court that
the health provider is Corizon Health (formerly known as Prison Health Services). Plaintiff’s counsel
assured the Court that she would promptly substitute the parties and seek leave to amend Plaintiff’s
Complaint to reflect the health provider’s identity.
did not include questions about whether Plaintiff had serious medical needs or had been prescribed
medical treatment that she had not yet received. Id. The Transfer Summary asked whether
Plaintiff had any recent hospitalizations and if there were any consults pending, but in response to
both questions, Dr. Cohen (or another Riverside medical staffer) incorrectly answered “no.” FAC
¶¶ 49–50. Riverside medical staff wrote “lower bunk & tier left arm fx” in the comments section,
presumably identifying Plaintiff’s fracture and that she should be assigned a bottom bunk at her
destination facility. FAC ¶ 51. Nowhere did Dr. Cohen indicate that Plaintiff’s fracture was
unstable, awaiting surgery, or that Plaintiff was “already days overdue” to be seen by a specialist
and have surgery. Id. Dr. Cohen and the medical staffers did not send Plaintiff’s medical
records—either from Riverside or the hospital—on to SCI Muncy. 4
After Plaintiff’s transfer to SCI Muncy with nothing in her transfer records to indicate her
urgent need for specialist care, she continued to complain of severe pain and swelling and to
request the surgery she needed. It was not until November 24th that Plaintiff was finally allowed
to see a surgeon—nearly six weeks after her discharge from the hospital. The specialist
recommended surgery, which Plaintiff underwent six days later. By then, her wrist had begun to
heal in an in improper position, which “complicat[ed] the surgery and worsen[ed] her recovery.”
FAC ¶ 73. Plaintiff then underwent a second surgery and received continuing orthopedic
supervision and physical therapy. Plaintiff is now left with “serious and permanent damage to her
Plaintiff does not specify when and how Riverside medical staff gained control of her hospital records.
See FAC ¶ 60. In fact, her allegation that Riverside’s medical staff “failed to send copies of the medical
records in their possession to the receiving institution, including . . . the [hospital] records,” FAC ¶ 60,
seems at odds with her allegation that the police officers who transported her from the hospital to Riverside
“failed to provide [Riverside] staff . . . with the necessary paperwork from [the hospital] [to] explain the
severity of Plaintiff’s conditions and needs,” FAC ¶ 33. But in accordance with my duty to “construe [the]
allegations in the light most favorable to the plaintiff,” I consider these allegations alternative theories on
the fate of Plaintiff’s hospital records. See Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.
2002); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 584 (2007) (explaining that the Federal Rules of
Civil Procedure require a “favorable reading” of the plaintiff’s complaint). I thus read Plaintiff’s
Complaint to allege that either the police failed to deliver her hospital records to Riverside or, if they did,
Riverside failed to forward those hospital records to SCI Muncy upon Plaintiff’s transfer.
left wrist,” including pain, swelling, and loss of strength and motion as a result of being denied
treatment while at Riverside.
Plaintiff’s Claims and Defendants’ Motions to Dismiss
Based on these factual allegations, Plaintiff now brings 42 U.S.C. § 1983 claims against
the City of Philadelphia under Monell, direct § 1983 claims against Dr. Cohen and all other
individual defendants, and state law medical malpractice claims against Dr. Cohen and the other
medical professional defendants.
Although Plaintiff’s new Complaint includes detailed factual allegations sufficient to put
Defendants on notice as to her claims, the organization of her Counts is confounding. Plaintiff’s
Count I is titled “Deliberate Indifference to Plaintiffs’ [sic] Fourteenth Amendment Rights” and
purports to apply to all defendants. Count II is titled “Monell Claim” and names the City and
Riverside’s medical provider. However, Plaintiff attributes conduct to the City in the form of a
Monell claim (through “policy, practice, or custom” allegations) throughout Counts I and II. I
therefore construe all of Plaintiff’s “policy, practice, or custom” allegations against the City as the
collective basis for her Monell claim, regardless of their location in her Complaint (whether under
Count I or II). To the extent that Plaintiff’s Count I attempts (again) to hold the City vicariously
liable for the actions of the individual police officers or Riverside’s medical staff, it is dismissed
as to the City with prejudice. 5
Beyond that, Plaintiff’s Complaint alleges that the City violated her Fourteenth
Amendment rights in the following ways:
In my May 17, 2017 Order (ECF No. 4) dismissing Plaintiff’s original Complaint (ECF No. 1-1) without
prejudice, I explained that “Plaintiff’s Complaint [was] patently inadequate to set forth a viable claim for
liability under 42 U.S.C. § 1983. It name[d] only the City of Philadelphia, and no individual actors who
were involved in making decisions concerning Plaintiff’s medical care, despite the fact that there is no
vicarious liability under §1983.” Count I of Plaintiff’s new Complaint continues to assert claims against
the City that are not Monell claims, which I deem to be impermissible vicarious liability claims. See
Monell, 436 U.S. at 692.
The City has a “practice, policy, or custom” under which police officers who transport
people with serious medical problems to detention facilities are not required or trained to
relay pertinent medical information to medical staff at the receiving facility. FAC ¶¶ 31,
The City has a “policy, practice, and custom” of allowing its prison medical provider to
use a medical Intake Screening Questionnaire that is “insufficient on its face” in that it fails
to ask if the person has a serious (non-life-threatening) medical need, whether she has been
prescribed any medical treatment she has not yet received, and for a description of her
medical conditions. FAC ¶¶ 35–36, 104.
The City has likewise “deliberately chosen” to use a Transfer Summary in its prisons that
fails to ask “whether the prisoner has a serious medical need” or “whether the prison has
been prescribed medical treatment that she has not yet received.” 6 FAC ¶ 48. This choice,
Plaintiff argues, “minimizes [reporting of] serious medical conditions to receiving
institutions at the time of transfers by omitting relevant information,” FAC ¶ 105, and
amounts to a “practice, policy, or custom” of providing “such little medical information”
about an inmate who is being transferred that the receiving facility must “rely solely on its
own intake assessment.” FAC ¶¶ 58, 61. 7
The City made each of these decisions, Plaintiff alleges, “to avoid the burden and necessary
expenses” of providing health care to detainees with serious medical problems. That is, Plaintiff
claims the City has decided not to ask about or document detainees’ reports of serious, non-lifethreatening medical problems in order to avoid the inevitable expense of treatment “if those
questions are answered affirmatively”—as they would have been here. FAC ¶¶ 48, 62.
As to Dr. Cohen, Plaintiff alleges that he violated her Fourteenth Amendment rights 8 when
I note that the latter—Plaintiff’s assertion that the Transfer Summary failed to ask about treatment that
had been prescribed but not yet received—must be narrowed by Plaintiff’s factual allegation that the
Transfer Summary included a question as to “whether there were any consults pending.” See FAC ¶ 50.
Presumably, the Transfer Summary’s question about pending consults would capture some, but not all, of
the “prescribed medical treatment . . . not yet received.” See FAC ¶¶ 47–48.
I assume that Plaintiff’s paragraph 112, which alleges a failure to train police officers on the proper use of
force and deadly force, was included in error as there are no allegations supporting it. See FAC ¶ 112.
Plaintiff claims that each of these actions demonstrated deliberate indifference—the relevant standard for
claims brought by prisoners alleging inadequate medical care under the Eighth Amendment. The
conceptual relationship between protections under the Eighth and Fourteenth Amendments is discussed
Failed to have her seen by a specialist while she was at Riverside, FAC ¶ 53;
Failed to order an x-ray until after she was set to be transferred to SCI Muncy, FAC ¶ 54;
Ignored her “continuous complaints” of pain, swelling, and need for specialist treatment
and surgery, FAC ¶¶ 87–88, 91, and, to the extent that Dr. Cohen took any action to
address her serious medical needs, he delayed in so doing,” FAC ¶ 91, thereby causing her
needless suffering and “a significantly worse recovery,” FAC ¶¶ 89–90;
Provided false, misleading, or incomplete medical information to SCI Muncy, FAC ¶ 53,
including by failing to notify SCI Muncy that Plaintiff had recently been hospitalized, FAC
¶ 55, or that “a consult with an orthopedic surgeon was pending,” FAC ¶ 56.
Plaintiff alleges that Dr. Cohen, like the City, did so in order to avoid the costs and burdens
of sending Plaintiff from Riverside to a specialist and getting her surgical treatment while she was
at Riverside. FAC ¶ 70.
Defendants City of Philadelphia and Dr. Cohen now move separately under Rule 12(b)(6)
to dismiss Plaintiff’s claims against them. The City, moving only on its own behalf (not for its
individual employees) argues that Plaintiff’s Monell claim must fail because Plaintiff pleads “no
facts” supporting municipal liability under § 1983, including how or when the policies or customs
were implemented or which municipal policymaker(s) were responsible for them. Def. City’s Mot.
Dismiss 6–8, ECF No. 18 [hereinafter “City’s MTD”]. The City also argues that Plaintiff’s
failure-to-train theory must fail because she does not describe “a single instance of prior
misconduct” by police or correctional officers and does not “specifically plead how the [City’s]
training programs . . . are inadequate.” City’s MTD 9.
In Dr. Cohen’s Motion, he mistakenly treats Plaintiff’s Fourteenth Amendment
constitutional claim against him as an Eighth Amendment claim, and argues that she has pled no
facts showing that he was deliberately indifferent to her medical needs. Def. Cohen’s Mot.
Dismiss 3, ECF No. 7 [hereinafter “Cohen’s MTD”]. He asserts that he “exercised his
professional judgment” and “treated Plaintiff by ordering an x-ray and referring her for an
orthopedic evaluation.” Id. at 4. Without directly addressing Plaintiff’s claim that he unduly
delayed her treatment, Dr. Cohen notes that “there is no allegation that [he] had the ability to do
any more than make the referral and order the x-ray” when Plaintiff was at Riverside. See id.at 4
n.2. In his opposition to Plaintiff’s medical malpractice claim against him, Dr. Cohen argues that
Plaintiff has not alleged that he breached the standard of care. Id. at 7. He claims that Plaintiff’s
allegations—that he failed to treat her or order surgery “in a timely manner” and failed to properly
respond to her complaints of pain and for appropriate care—are “directly contradicted” by
Plaintiff’s allegations that Dr. Cohen “told her to see an orthopedic surgeon 9 and referred her to
Temple Orthopedics.” Id. at 7 (referencing FAC ¶ 44).
III. Standard of Review
These motions are governed by the well-established standards governing the application of
Rule 12(b)(6), as amplified by Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
To state a § 1983 claim, Davis must allege facts showing that Defendants “acted under the
color of state law and denied [her] a federally protected constitutional or statutory right.” See
Angelico v. Lehigh Valley Hosp., 184 F.3d 268, 277 (3d Cir. 1999). For purposes of the pending
motions, neither Defendant disputes that Plaintiff adequately alleged they were acting under color
On this point, it is clear to me that Dr. Cohen misreads Plaintiff’s complaint. Plaintiff writes: “[Dr.]
Cohen’s progress reports reflect that Plaintiff reported that she was told to go to an orthopedic surgeon, and
under ‘treatment’ Defendant Cohen wrote ‘refer to temple orthopedics.’” Reading this plain language in
the context of Plaintiff’s full complaint, it is clear me that Plaintiff is alleging that she told Dr. Cohen that
she had been told by hospital staff that she must see an orthopedic surgeon. Dr. Cohen apparently reads
this same sentence to mean that he himself told Plaintiff she needed to see an orthopedic surgeon—and that
she then reported that (back) to him, and he then noted her “report” in his progress notes. I find Dr.
Cohen’s reading nonsensical in that it ignores the phrase’s plain meaning and its context in the Complaint
(which is replete with allegations that Plaintiff told Riverside staff that the hospital instructed her to see a
specialist immediately). Perhaps most importantly, it ignores the reality of prison, where a doctor’s
recommendation to a detainee that she see a specialist has no effect, since detainees are unable to
coordinate their own care and are, as a matter of law, completely reliant on their prison doctors to arrange
for it. See Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“An inmate must rely on prison authorities to treat
his medical needs; if the authorities fail to do so, those needs will not be met.”).
of state law. I therefore analyze only whether Plaintiff identified a constitutional right, and
plausibly alleged that Defendants denied her that right.
A. The Constitutional Right and its Level of Protection
The first step in evaluating a § 1983 claim is to “identify the exact contours of the
underlying right” in order to determine whether the plaintiff has alleged a deprivation of any
constitutional right. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003)
(quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)). Plaintiff’s Complaint
certainly identifies a constitutional right: her Fourteenth Amendment substantive due process
right to be free from punishment, as someone not adjudicated guilty. Despite the parties’ early
confusion on this point, they are now in agreement. 10 I will nevertheless discuss the nature of the
right at issue in order to resolve whatever ambiguity may remain in the Defendants’ briefs, and to
define the legal standard controlling this case.
When Plaintiff was at Riverside, she was a pre-trial detainee—a person confined to a
correctional facility “prior to a determination of [her] guilt or innocence.” See Bell v. Wolfish, 441
U.S. 520, 523 (1979). Under the substantive due process clause of the Fourteenth Amendment,
subjecting pre-trial detainees “to any form of punishment at all is an unconstitutional deprivation
of their liberty.” Id. at 579–80. The Third Circuit has recognized that inadequate conditions of
confinement, including deprivation of necessary medical care, are one form of punishment
Plaintiff’s original Complaint identified an Eighth Amendment right to be free from cruel and unusual
punishment. ECF No. 1-1. After I dismissed that Complaint without prejudice for various inadequacies,
she filed an Amended Complaint identifying her substantive due process rights under the Fourteenth
Amendment. See FAC ¶¶ 20 (beginning Plaintiff’s Count I), 109. The City’s pending motion does not
characterize the right at all, but Dr. Cohen’s Motion and the parties’ joint Rule 26(f) report, ECF No. 20,
repeatedly refer to prisoners’ Eighth Amendment right to be free from cruel and unusual punishment. All
counsel agreed at the preliminary pretrial conference that, because Plaintiff was a pre-trial detainee at all
relevant times, the right at issue here derives from the Fourteenth, rather than the Eighth, Amendment.
impermissible under the Fourteenth Amendment. Natale, 318 F.3d at 583 (recognizing a pre-trial
detainee’s right to adequate medical care under the Fourteenth Amendment). 11
Nearly four decades ago, the Supreme Court held in Wolfish that “[i]n evaluating the
conditions or restrictions of pretrial detention . . . the proper inquiry is whether those conditions
amount to punishment of the detainee.” 441 U.S. at 535. Although there is some disagreement
among the Circuits 12 over the scope of detainees’ right to be free from punishment—specifically,
how the Eighth Amendment deliberate indifference standard from Estelle 13 interacts with Wolfish
in claims by detainees for inadequate medical treatment—the law in this circuit is well-settled. 14
The Third Circuit has drawn a clear distinction between the controlling standards under the Eighth
and Fourteenth Amendments, holding that “pretrial detainees are entitled to greater constitutional
protection than that provided by the Eighth Amendment.” Hubbard v. Taylor, 399 F.3d 150, 167
n.23 (3d Cir. 2005) (“[O]ur analysis is consistent with [Wolfish’s] distinction between pretrial
detainees’ protection from ‘punishment’ under the Fourteenth Amendment, on the one hand, and
convicted inmates’ protection from punishment that is ‘cruel and unusual’ under the Eighth
Amendment, on the other.”). The Hubbard Court made clear that the Eighth Amendment’s
deliberate indifference standard is relevant to claims by pretrial detainees “only because it
establishe[s] a floor.” Id. at 165–67. Natale had already recognized that the Fourteenth
See also Montgomery v. Ray, 145 F. App’x 738, 739 (3d Cir. 2005) (holding that a federal pre-trial
detainee’s claim for inadequate treatment is properly analyzed under the Fifth Amendment’s Due Process
to determine if it amounts to punishment).
For a thorough summary of the circuit split, see David C. Gorlin, Evaluating Punishment in Purgatory:
The Need to Separate Pretrial Detainees’ Conditions-of-Confinement Claims from Inadequate Eighth
Amendment Analysis, 108 Mich. L. Rev. 417, 421 (2009).
In Estelle, the Supreme Court held that “deliberate indifference to serious medical needs of prisoners”
constitutes cruel and unusual punishment under the Eighth Amendment. 429 U.S. at 104.
Despite this clarity, Plaintiff has failed at every step to accurately describe the contours of the right,
conflating it entirely with prisoners’ Eighth Amendment rights.
Amendment guaranteed detainees adequate medical care, and a panel of the Third Circuit, albeit in
a non-precedential opinion, had no hesitation in applying Hubbard’s precepts to claims such as
While the due process rights of a pre-trial detainee are at least as great as the Eighth
Amendment protections available to a convicted prisoner, the proper standard for
examining such claims is the standard set forth in Bell v. Wolfish; i.e., whether the
conditions of confinement (or here, inadequate medical treatment) amounted to
punishment prior to an adjudication of guilt.
See Ray, 145 F. App’x at 740 (citations and brackets omitted) (emphasis in original).
Of course, in cases like this, “there will rarely be an expressed intent to punish.” See
Mestre v. Wagner, No. 11-cv-2191, 2012 WL 299652, at *3–4 (E.D. Pa. Feb. 1, 2012) (Savage,
J.). So to determine when inadequate medical treatment amounts to punishment, courts in the
Third Circuit engage in a two-step test “distilled [from] Wolfish’s teachings.” Hubbard, 399 F.3d
at 159. First, the court must ask whether the complained of conditions serve “any legitimate
purpose.” Id. If so, the court must next determine whether the conditions are “rationally related”
to that purpose. Id. The second step considers whether the conditions cause the detainee to endure
such “genuine hardship” that the conditions are “excessive in relation to the purposes assigned to
them.” Id. at 159–60 (citing Union Cty. Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir. 1983)).
B. Section 1983 Theories Supported by Plaintiff’s Factual Allegations
Although not artfully pled, Plaintiff’s Complaint alleges facts sufficient to support an
inference that she was denied her Fourteenth Amendment right to be free from punishment, 15 and
that the denial is attributable to the City and Dr. Cohen.
Although there is also precedent supporting Plaintiff’s allegation that Defendants’ conduct amounted to
deliberate indifference, my conclusion that she has adequately set out a claim under the more protective
Fourteenth Amendment standard obviates the need to analyze her claims under the less protective Eighth
1. Plaintiff’s Monell Claim Against the City
The City urges that it should be dismissed from this case because Plaintiff Davis “simply
parrots the legal standard for municipal liability under § 1983 without pleading any supporting
facts.” City’s MTD 6. I disagree. A fair reading of Plaintiff’s Complaint shows that her factual
allegations, if true, describe an unconstitutionally punitive reality at Riverside that could only
result from choices by the City’s policymakers. See City of Canton v. Harris, 489 U.S. 378, 389
First, Plaintiff makes detailed factual allegations supporting her claim that she was
deprived of her Fourteenth Amendment right. She alleges that, despite explicit hospital
instructions and her own, repeated requests to Riverside staff, she went without urgently needed
surgery, endured severe pain, and now has a permanently injured wrist as a result. She attributes
this to inadequate intake procedures at Riverside that fail to ensure time-sensitive medical
information is relayed by transport police to frontline medical staff, and from frontline staff to an
appropriate medical staffer with power to act on it. These alleged practices are not rationally
related to the City’s otherwise legitimate goal of cost savings, because deprivation of required
medical care would be unconstitutionally “excessive in relation” to that goal. See Hubbard, 399
F.3d at 159–60; Kenney v. Montgomery Cty., No. 13-cv-2590, 2013 WL 5356862, at *7 (E.D. Pa.
Sept. 25, 2013) (DuBois, J.) (denying a motion to dismiss by the county and its prison health
contractor because the plaintiff’s allegations, although “sparse,” adequately set out a claim of “a
problematic practice or policy . . . of denying medical care for cost savings reasons.”).
Having determined that Plaintiff adequately alleges a deprivation of her Fourteenth
Amendment right to be free from punishment, I must next determine if the alleged conduct is
fairly attributable to the City under Monell. 16 I conclude that the deprivation Plaintiff describes is
plausibly attributable to the City as a policy under several, related Monell theories, including as (1)
an affirmative policy (embodied in the City’s extraordinarily narrow Intake Form), see FAC ¶¶ 36,
104; (2) the failure to establish and implement a policy to timely address the serious medical needs
of people detained at Riverside, see FAC ¶¶ 36, 58, 104; and (3) a failure to train police officers to
convey pertinent medical information to the receiving facility, see FAC ¶ 110. Upcoming
discovery will test Plaintiff’s allegations against evidence and reveal whether the reality at
Riverside is as Plaintiff describes. See Phillips, 515 F.3d at 234.
First, Plaintiff can show that the City is “actually responsible” for violating her Fourteenth
Amendment right if she identifies an affirmative municipal policy and alleges facts showing that
the “act complained of is simply an implementation of that policy.” See Bd. of Cty. Comm’rs of
Bryan Cty. v. Brown, 520 U.S. 397, 417 (1997); see also City of Canton v. Harris, 489 U.S. 378,
389 (1989) (explaining that, for § 1983 purposes, a municipal “policy” must reflect a “deliberate”
or “conscious” choice by a municipality). Plaintiff has adequately alleged that the City’s Intake
Form amounts to an affirmative policy, pursuant to which Riverside staff conducted an inadequate
initial health screening of Plaintiff when she first arrived. See, e.g., Rodriguez v. City of
Philadelphia, No. 14-cv-7362, 2015 WL 4461785, at *4 (E.D. Pa. July 21, 2015) (denying a
motion to dismiss where plaintiff detainee alleged that his broken wrist healed incorrectly in a
I do not read the City’s Motion to challenge causation. To the extent that it does, I conclude that
Plaintiff’s Complaint adequately alleges that the City’s delay in allowing her to access required treatment
plausibly resulted in the pain, improper healing, and continuing functional limitations of Plaintiff’s wrist.
See, e.g., Natale, 318 F.3d at 585 (holding at the summary judgment stage that “[t]he failure to establish . .
. a policy [to address the immediate medication needs of inmates with serious medical conditions] is a
particularly glaring omission in a program of medical care. [A reasonable jury] could . . . infer that the
failure to establish a more responsive policy caused the specific constitutional violation of which the
[Plaintiff detainee] complain[s], i.e., the failure to administer insulin . . . in a timely fashion.”).
splint, despite hospital instructions and his repeated requests to Corizon for treatment and pain
medication, because the Philadelphia Prison System had a policy against allowing hard casts).
The City is correct that, under McTernan v. City of York, Plaintiff must allege conduct by a
municipal policymaker to support her claim for municipal liability. See 564 F.3d 636, 659 (3d Cir.
2009). In McTernan, the Third Circuit affirmed the lower court’s dismissal of an abortionprotestor plaintiff’s claim where the plaintiff “simply paraphrased § 1983,” stating that “[a]ll of
the acts of the Defendants . . . were conducted under color of law.” Id. Unlike the legal
conclusions rejected by the McTernan Court, Plaintiff’s factual allegations here specify the
content of Riverside’s printed Intake Form, its routine use by Riverside medical staff in the intake
process, and its effect on Plaintiff’s access to treatment while at Riverside. The City’s suggestion
that a printed intake form is not the result of a deliberate choice by a municipal policymaker is not
supportable or persuasive. See City’s MTD 7–8. 17
Second, Plaintiff has alleged facts that support another, related theory of liability: that the
City failed to develop and implement policies and procedures necessary to ensure adequate intake
assessments and timely medical assistance to detainees. See, e.g., Natale, 318 F.3d at 584. In
Natale, a diabetic pre-trial detainee brought a § 1983 claim against the county and Prison Health
Services for failing to administer insulin during his first 72 hours of detention. 318 F.3d at 584.
Natale pled Monell liability based on the county’s “failure to establish a policy to address the
Moreover, several courts in this circuit, recognizing Monell plaintiffs’ lack of access to municipal policy
information at this early stage, have held that plaintiffs are not required “to plead with special particularity
the exact policies and practices that were in place, prior to taking any discovery into the alleged policies,
[or] explain exactly how these precisely alleged policies caused or contributed to [their] injuries.” Kenney,
2013 WL 5356862, at *7 (listing cases); Hasty v. Cty. of Montgomery, No. 12-cv-4335, 2014 WL 830282,
at *4 (E.D. Pa. Mar. 4, 2014) (Surrick, J.) (holding the same where a pretrial detainee alleged that his
requests for urgent medical care were “ignored, delayed, or denied”—one of four cases in this district that
have cited Kenney for the foregoing pleading proposition).
medication needs of inmates during the first 72 hours of incarceration.” The Court denied
summary judgment, reasoning that:
[T]here is no evidence that [Prison Health Services] had an affirmative policy or
custom that prevented its employees from inquiring into the frequency with which
Natale required insulin. There is, however, evidence that PHS turned a blind eye to
an obviously inadequate practice that was likely to result in the violation of
constitutional rights. . . there was no policy ensuring that an inmate [in] need of
medication for a serious medical condition would be given that medication during
the first 72 hours of incarceration.
Here, as in Natale, there is no allegation that the City or its health provider had a rule
prohibiting its intake staff (or its physicians) from asking about arriving detainees’ serious medical
needs or recent hospitalizations, or against responding to detainees’ urgent requests for care.
Rather, Plaintiff alleges that the City chose not to ask these basic medical questions. In a major
city with large numbers of people entering detention centers every day, this choice gives rise to an
inference that the City could have “turned a blind eye to an obviously inadequate practice.” See
id.; Hasty, 2014 WL 830282, at *4 (holding that a pre-trial detainee’s factual allegations “clearly
support a plausible claim for relief under the theory that [the county] failed to adopt and
implement policies and procedures necessary to ensure timely medical assistance”); Kenney, 2013
WL 5356862, at *7 (denying motion to dismiss where plaintiff alleged that the county and its
prison health provider “failed to develop and implement policies, practices, and procedures . . .
that would ensure inmates received appropriate care and necessary referrals”); see also Inmates of
Occoquan v. Barry, 717 F. Supp. 854, 867 (D.D.C. 1989) (“Defendants have failed to develop a
reliable screening system for inmates entering [the detention center] as shown by the lack of
testing for [infectious diseases]. There is no follow-up system for treating chronic diseases and
inmates wait months for appointments to specialty clinics.”); Wichterman v. City of Philadelphia,
No. 16-cv-5796, 2017 WL 1374528, at *4 (E.D. Pa. Apr. 17, 2017) (where plaintiff detainee died
of an overdose just hours after admitting at intake to heroin use, denying motion to dismiss
because“[t]he City’s alleged failure to implement appropriate policies and practices . . .
constitute[d] a practice or custom . . . ascribable to municipal decision makers”).
Third, Plaintiff has adequately pled a failure-to-train theory against the City, alleging that it
failed to train its police to relay detainees’ medical information to detention center staff. The
Supreme Court has held that a city has an unconstitutional policy when it fails to train its
employees despite an obvious need for training, and when that failure is likely to result in an
employee making a wrong decision. Harris, 489 U.S. at 389. The Harris Court acknowledged
that it “may seem contrary to common sense to assert that a municipality will actually have a
policy of not taking reasonable steps to train its employees,” but explained that “in light of the
duties assigned to specific officers or employees the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the
policymakers . . . can reasonably be said to have been deliberately indifferent to the need.” Id. at
390. For example, the Court said that because city policymakers “know to a moral certainty” that
their police officers will need to arrest fleeing felons, the need to train officers on the use of deadly
force is “so obvious” that the failure to do so could constitute deliberate indifference to
constitutional rights. Id. at 390 n.10. Similarly, in a major city like Philadelphia, there can be no
doubt that police officers will, as part of their duties, regularly transport detainees (and prisoners)
with serious medical needs to and among the City’s detention facilities. Those detainees may be
coming from a hospital to a detention facility, or moving from one facility to another—this case
involves both scenarios. It is plausible then, that the need to train police to relay urgent medical
information could be “so obvious” that a failure to do so would amount to deliberate indifference.
The City insists that Plaintiff’s failure-to-train claim must fail because she “alleges no facts
regarding prior instances of police misconduct caused by allegedly inadequate training.” City’s
MTD 8. Although it is true that “a pattern of similar constitutional violations by untrained
employees is ordinarily necessary” to make out a failure-to-train claim under Monell, the need for
training in a given situation may be “so obvious” that failure to do so amounts to an
unconstitutional policy “even without a pattern of constitutional violations.” Thomas v.
Cumberland Cty., 749 F.3d 217, 223 (3d Cir. 2014) (citing Harris, 489 U.S. at 389 n.10). As long
as Plaintiff relies on a “single incident” theory, the City’s failure-to-train liability will “depend
on the likelihood that the situation will recur and the predictability that an officer lacking specific
tools to handle that situation will violate citizens’ rights.” See id. at 223–24. For now, Plaintiff’s
failure-to-train claim survives this Motion to Dismiss. Continued survival of that claim will turn
on Plaintiff’s ability to show not only that police frequently fail to relay important medical
information to the City’s detention facilities, but also that officers without training on the issue are
likely to violate detainees’ rights by not relaying that information.
2. Plaintiff’s Section 1983 Claim Against Dr. Cohen
Having found that Plaintiff adequately sets out a Monell claim against the City, I next
examine whether she has adequately alleged that Dr. Cohen deprived her of the same right—her
Fourteenth Amendment right to be free from punishment as a pre-trial detainee at Riverside.
Returning to the two-step test from Hubbard, I must determine whether Dr. Cohen’s conduct, as
alleged by Plaintiff, served a “legitimate purpose” and, if so, whether his conduct was “rationally
related” to that purpose, or whether the conduct was “excessive” in relation to it. See 399 F.3d at
159. As noted above, Plaintiff alleges that Dr. Cohen limited her access to medical care for the
“non-medical reason” of cost avoidance. Although cost saving is a legitimate purpose, I conclude
that Dr. Cohen’s alleged actions toward Plaintiff would not be rationally related to that purpose
because they caused Plaintiff to endure “genuine hardship.” See id.
As discussed above, Plaintiff alleges that Dr. Cohen failed to adequately treat her pain and
swelling during her six days at Riverside, and—despite her repeated requests to see a specialist for
surgery, as the hospital had ordered—delayed Plaintiff’s access to urgently needed surgery by
failing to order an orthopedic consult or x-ray until Plaintiff’s fifth and sixth day in custody,
respectively. Plaintiff further alleges that, upon her transfer to SCI Muncy, Dr. Cohen further
delayed her care when he omitted crucial information from her Transfer Summary that would have
indicated to the receiving facility her urgent need for treatment. Plaintiff claims that Dr. Cohen
not only failed to include important information in the Transfer Summary, but also answered
questions incorrectly that would have signaled Plaintiff’s need for urgent care, i.e. about recent
hospitalizations and pending consults. These allegations, if true, would certainly be excessive in
relation to a legitimate goal of saving money. See Kenney, 2013 WL 5356862, at *5 (holding that
plaintiff had adequately pled a deliberate indifference claim—a more demanding standard than
Plaintiff Davis faces here—where plaintiff alleged that the prison doctor made decisions about
plaintiff’s care because the doctor was “financially motivated not to order diagnostic testing and/or
refer patients for outside treatment”); see also Hasty, 2014 WL 830282, at *8 (denying defendant
doctor’s motion to dismiss where plaintiff detainee alleged that the doctor “ignored and denied
Plaintiff’s repeated requests for medical assistance” and failed to establish a medical referral
system “capable of providing immediate care to an inmate with an emergency medical
I am not persuaded by Dr. Cohen’s response: that he “exercised his medical judgment and
treated Plaintiff by ordering an x-ray and referring her for an orthopedic evaluation.” Cohen’s
MTD 4. This fails to address Plaintiff’s claim of delay. At their core, her allegations pertain to
timeliness—that when Dr. Cohen finally responded to her request for surgery by ordering a
consult, it was too late. Regarding the allegedly inaccurate and incomplete Transfer Summary, Dr.
Cohen simply counters that he “completed the required summary paperwork.” Id. To the extent
that this raises a factual dispute, I must take Plaintiff’s version of the facts as true.
The remainder of Dr. Cohen’s opposition focuses on the deliberate indifference standard,
which, under Hubbard, is merely the floor of my inquiry here. See Cohen’s MTD 3. Dr. Cohen
cites three scenarios where courts have found deliberate indifference: where 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; or (3) prevents a prisoner from
receiving needed or recommended treatment.” Id. at 3 (citing Rouse v. Plantier, 182 F.3d 192, 197
(3d Cir. 1999)). Having already found that Plaintiff’s allegations against Dr. Cohen make out a
plausible claim under the Fourteenth Amendment, I need not analyze them under the Eighth
Amendment’s deliberate indifference standard. I note, however, that several cases suggest that her
allegations would satisfy the deliberate indifference standard, as well. See, e.g., White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (prison doctor’s defiance of “explicit medical
instructions,” including from a hospital, is deliberate indifference when it results in “serious and
obvious injuries”); Brown v. Farrell, No. 16-cv-3097, 2017 WL 1243155, at *3 (E.D. Pa. Mar. 30,
2017) (denying doctor’s motion to dismiss where plaintiff prisoner alleged that his complaints of
pain were “blatantly ignored” and listing cases likewise finding that ignoring pain complaints
amounts to deliberate indifference); Scantling v. Vaughn, No. 03-cv-0067, 2004 WL 306126, at
*7-8 (E.D. Pa. Feb. 12, 2004) (denying motion to dismiss prisoner’s deliberate indifference claims
against prison doctors who were alleged to have known about his pain and denied the treatment he
C. Plaintiff’s Medical Malpractice Claim Against Dr. Cohen
Although medical malpractice alone does not necessarily give rise to a constitutional
claim, Estelle, 429 U.S. at 106, my finding above that Plaintiff has adequately pled a constitutional
claim against Dr. Cohen for inadequate treatment motivated by cost-savings surely extends to her
claim medical malpractice against him.
To plead a medical malpractice claim in Pennsylvania, plaintiffs must allege all of the
traditional elements of negligence: that the doctor owed a duty to the patient, that he breached that
duty, that the breach was the proximate cause of plaintiff’s harm, and that damages resulted from
the harm. Quinby v. Plumsteadville Family Practice, 589 Pa. 183, 199, 907 A.2d 1061, 1070
(2006). Plaintiff’s allegations address all of these elements. On duty, Plaintiff alleges that Dr.
Cohen was responsible for her medical care, including decisions about her access to care, while
she was detained at Riverside. FAC ¶¶ 12, 18, 117. On breach, she alleges that he ignored her
complaints of severe pain and swelling, denied or delayed her access to an orthopedic specialist,
and failed to adequately document her treatment history and needs in Riverside records. FAC ¶
120. Regarding causation and damages, she alleges that his inadequate care caused her
unnecessary pain, an improperly healed wrist, and continuing pain and limited mobility. See FAC
¶ 120(i). Based on these allegations, I easily conclude that Plaintiff has stated a claim for medical
malpractice against Dr. Cohen and is entitled to discovery.
/s/ Gerald Austin McHugh
United States District Judge
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