Williams v. THE KINTOCK GROUP, INC. et al

Filing 62

MEMORANDUM AND OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 8/2/22. 8/2/22 ENTERED & E-MAILED.(fdc)

Case 2:20-cv-01915-HB Document 62 Filed 08/02/22 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES WILLIAMS
v.
THE KINTOCK GROUP, INC.

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CIVIL ACTION

NO. 20-1915

MEMORANDUM
Bartle, J.

August

2, 2022

Plaintiff James Williams brings this action against
defendant The Kintock Group, Inc. under 42 U.S.C. § 1983 for
violation of the Eighth and Fourteenth Amendments to the
Constitution.

Defendant owns and controls the Kintock House, a

halfway house where plaintiff was committed for a parole
violation.

Plaintiff also brings state law claims for medical

malpractice, intentional infliction of emotional distress, and
negligence.

Before the court is the motion of defendant for

summary judgment.
I
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).

A dispute is genuine if the evidence is such that a

Case 2:20-cv-01915-HB Document 62 Filed 08/02/22 Page 2 of 18

reasonable factfinder could return a verdict for the nonmoving
party.
(1986).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
We view the facts and draw all inferences in favor of

the nonmoving party.

See In re Flat Glass Antitrust Litig.,

385 F.3d 350, 357 (3d Cir. 2004).
Summary judgment is granted when there is insufficient
record evidence for a reasonable factfinder to find for the
nonmovant.

See Anderson, 477 U.S. at 252.

“The mere existence

of a scintilla of evidence in support of the [nonmoving party]’s
position will be insufficient; there must be evidence on which
the jury could reasonably find for [that party].”

Id.

In

addition, Rule 56(e)(2) provides “[i]f a party fails to properly
support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for the purposes of
the motion.”

Fed. R. Civ. P. 56(e)(2).
II

The facts are set forth in the light most favorable to
plaintiff, the nonmoving party.
Defendant contracts with the Pennsylvania Department
of Corrections and the Federal Bureau of Prisons to run a
halfway house called the Kintock House on Erie Avenue in
Philadelphia.

Defendant is accredited by the American

Correctional Association and the Prison Rape Elimination Act.
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The Kintock House is a single-floor building in an old warehouse
which includes dormitories, a gymnasium, cafeteria, kitchen, and
offices.

It has a capacity of 392 residents with two

dormitories that are large rooms like a school gymnasium.
Plaintiff was in the section where you can only leave to eat in
the cafeteria down the hall or to go to the counselor’s office
in between.

In the other dormitory there is more freedom to

move around.
Plaintiff was admitted to the Kintock House on or
about May 7, 2018 and released on or about July 12, 2018.

He

was a part of the Parole Violators Program of the Pennsylvania
Department of Corrections for a technical violation for failing
to report his address.

This program typically provides for

stays of sixty to ninety days.
According to Gretchen Wiseman, the Chief
Administrative Officer for defendant, defendant is supposed to
conduct a medical, dental, and mental health screening upon a
resident’s arrival to the facility unless the resident is coming
from prison, and a full medical examination within fourteen days
of arrival.

Nicola Cucinotta, who monitors compliance for

defendant, testified that unimpeded access to healthcare is
required, which includes screenings for new arrivals.

She did

not recall if plaintiff had a medical screening when he arrived.

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At the time that plaintiff was admitted in May 2018,
defendant was in the midst of taking over medical services from
Corizon Healthcare.
May 2, 2018.

The contract with Corizon ended on

Defendant employed licensed practical nurses

(“LPNs”) who worked on site and reported to site administrators.
On May 7, 2018, Mecca Taylor started working as an LPN for
defendant at the Erie Avenue location.

Another LPN, Requitta

Bellinger, began working part-time on June 4, 2018.

In

addition, defendant independently contracted with nurse
practitioners to come in a few hours a week.

Bellinger could

not recall if a nurse practitioner visited the site in June
2018.

No doctor was regularly on site.
Defendant had a contract with Dr. Eke Kalu to act as

its medical director to oversee the nursing staff in a limited
capacity.

He simply had responsibility for staffing nurses and

for reviewing policy procedures.

Dr. Kalu also is the medical

director responsible for overseeing the entirety of the
Philadelphia Prison Systems.

While he visited the Kintock House

when needed, neither he nor any other medical doctor, except as
noted below, provided any medical care or saw any patients.
Instead, the nurse practitioner contractors and LPN employees
were responsible for patient medical services.

Dr. Kalu simply

performed an administrative role and was not involved in the
day-to-day activities of the site.
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Defendant did employ a psychiatrist at the time, Dr.
Hani Zaki, who visited the Kintock House when needed.

The LPNs

on site would provide Dr. Zaki with a list of residents who
needed his assessment.

Dr. Zaki did not himself review any

records to evaluate who needed psychiatric services.
Neither a doctor nor a nurse practitioner reviewed a
resident’s incident reports or sick call requests.

Instead, the

non-medical case administrator and non-medical supervisor did
so.

If a resident needed to see a doctor, he had to go first to

his case manager who would coordinate the request with the
supervisor and the resident’s parole agent.
professional reviewed these requests.

No medical

Sick call requests were

kept in the resident’s medical chart.
If a resident was having a medical emergency, the case
manager would call the resident’s parole agent or the Department
of Corrections to obtain permission to take the resident to a
hospital.

The program director at the Kintock House, who at the

time of plaintiff’s commitment was Frank Guyon, determined
whether the situation warranted a call to the parole agent or to
the Department of Corrections.

When a resident was taken to the

hospital, the event was not necessarily documented in the
resident’s medical chart.

The event instead would be noted in

defendant’s operations logbooks and incident reports.

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Staff at the Kintock House administered medication to
residents with prescriptions.

Most of the residents had

medication already prescribed by an outside doctor.

The

contracted nurse practitioner was able to issue prescriptions.
It was defendant’s policy that the residents had the
responsibility to go to the nurses’ station to obtain their
medication when they needed it.

Cucinotta, who completed audit

checks of the medication to ensure that all pills were accounted
for, testified that the Kintock Group State Reentry Handbook
that all residents received upon arrival informed residents that
they can retrieve their medication several times a day.

The

staff at the Kintock House did not track the schedules for
medication for the residents or remind them when they were to
take it.
Plaintiff was at defendant’s facility on Erie Avenue
for two and a half months.

During that time he was not allowed

to leave the facility without permission.

Plaintiff had

previously been diagnosed with Graves disease, post-traumatic
stress disorder, paranoid schizophrenia, bipolar, and diabetes.
While at the Kintock House he had prescriptions for Prozac for
depression, Risperdal for suicidal thoughts, Lisinopril for mood
swings and depression, blood pressure medication, and Metformin
and insulin for diabetes.

These medications had been prescribed

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by physicians at Mary Howard Health Center and physicians
through Project Home.
When plaintiff entered defendant’s facility, defendant
received a list of plaintiff’s medications.

Plaintiff asserts,

however, that he did not receive any medication for the first
three to four weeks he was there, after which he received his
medication every day.

On May 15, 2018, plaintiff fainted while

going to the bathroom and was awakened by a staff member after
passing out.

He severely injured his knee in this fall.

The

knee continued to give him persistent and intense pain.
Alan Higgins, a fellow resident, testified to hearing plaintiff
moan in pain throughout the night.

He testified that

plaintiff’s “leg looked like a basketball.”
Plaintiff complained on numerous occasions throughout
May 2018 about needing to go to the hospital after his fall and
about not receiving his medication as prescribed.

On one

particular occasion, plaintiff submitted a grievance form
stating that he had not received any medication since he was
admitted and that his body has “been locking up on me.”

He also

specifically asked to see the psychiatrist.
He never saw a doctor about these concerns and never
was taken to the hospital about his knee after his fall.

A

nurse at the facility simply provided him with a walker and ice.

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Plaintiff also had appointments at the Mary Howard
Health Center and at Project Home that were scheduled before he
was committed to the Kintock House.

Plaintiff was not taken to

his appointments on May 18, 2018 at Mary Howard Health Center or
on June 6, 2018 at Project Home.

Plaintiff raised the issue of

these appointments on sick call request forms in May and June.
Once he was released from the Kintock House on or
about July 12, 2018, plaintiff went to Temple Hospital at two
locations, one of which informed him that his knee was broken.
He was put on crutches and finally saw an orthopedist.
III
To establish a claim under § 1983, plaintiff must
demonstrate that a person acting under the color of state law
violated his rights protected by the Constitution.

42 U.S.C.

§ 1983; see Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,
580-81 (3d Cir. 2003).

A private entity is considered a state

actor under § 1983 when its actions can be “fairly attributed to
the state itself.”
638 (3d Cir. 1995).

Groman v. Twp. of Manalapan, 47 F.3d 628,
The parties do not dispute that defendant,

which contracts with the Pennsylvania Department of Corrections
and the Federal Bureau of Prisons to run a halfway house, is a
state actor for purposes of this action.
at 581.

8

See Natale, 318 F.3d

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Plaintiff brings his claims in Counts I and II under
§ 1983 for violation of his rights under the Eighth Amendment to
the Constitution for cruel and unusual punishment and the
Fourteenth Amendment for violation of due process, respectively.
If his claims are prior to conviction, then they are evaluated
under the due process clause of the Fourteenth Amendment.
at 581.

Id.

Plaintiff, however, was already convicted and was

confined to defendant’s facility for a parole violation where he
was not at liberty to come and go freely and where he was
completely dependent on defendant for all of his basic needs.
See e.g., Giddings v. Joseph Coleman Ctr., 473 F. Supp. 2d 617,
623 (E.D. Pa. 2007).

His status therefore was akin to that of a

convicted person under incarceration.

Thus, he was protected

from cruel and unusual punishment by the Eighth Amendment while
at defendant’s facility.

Id.

He has no claim under the

Fourteenth Amendment.
In cases regarding inadequate medical care, the
Supreme Court has found that “deliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and
wanton infliction of pain’ . . . proscribed by the Eighth
Amendment.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

“Regardless of how evidenced, deliberate indifference to a
prisoner’s serious illness or injury states a cause of action
under [§] 1983.”

Id.

Negligence or medical malpractice alone
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are not constitutional violations simply because the victim is a
prisoner.

Id. at 106.

Rather the plaintiff “must allege acts

or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.”

Id.

Thus, to establish a violation of a plaintiff’s
constitutional rights, the “evidence must show (i) a serious
medical need, and (ii) acts or omissions by prison officials
that indicate deliberate indifference to that need.”
318 F.3d at 582.

Natale,

“Deliberate indifference is a ‘subjective

standard of liability consistent with recklessness as that term
is defined in criminal law.’”

Id.

Officials must know of and

disregard an excessive health or safety risk.

Id.

“To survive

a summary judgment motion on this issue, [a plaintiff] ‘must
point to some evidence beyond [his] raw claim that [defendants]
were deliberately indifferent,’” or that defendants knew of or
were aware of the risk to the plaintiff.

Id.

Deliberate

indifference includes situations where “there was ‘objective
evidence that [a] plaintiff had serious need for medical care,’
and prison officials ignored that evidence” or when “necessary
medical treatment is delayed for non-medical reasons.”

Id.

IV
Plaintiff has not sued any individual employees of
defendant under § 1983.

He has sued only The Kintock Group,

Inc., of which the Kintock House is a part.
10

Defendant seeks

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summary judgment on the ground that there is no respondeat
superior liability and that plaintiff has failed to identify any
policy or custom of it that caused a violation of plaintiff’s
constitutional rights.
Defendant is correct that there is no respondeat
superior liability under § 1983.

See Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 691 (1978).
Consequently, a municipality or other state actor such as
defendant here cannot be held responsible for “an injury
inflicted solely by its employees or agents.”

Id. at 694.

A municipality, or private entity in the role of a
state actor such as defendant, may nonetheless be held liable
under 42 U.S.C. § 1983 when “the action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.”

Id. at 690-91.

A custom

of such an entity is also a basis for a suit under § 1983 if
plaintiff proves “the existence of a widespread practice that,
although not authorized by written law or express . . . policy,
is ‘so permanent and well settled as to constitute a “custom or
usage” with the force of law.’”

City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 167-68 (1970)).

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In Natale v. Camden County Correctional Facility, our
Court of Appeals discussed when for § 1983 purposes the acts or
omissions of an entity’s employees can be attributed to the
entity itself.

318 F.3d at 584.

It explained that a policy or

custom exists when
the policymaker has failed to act affirmatively
at all, [though] the need to take some action to
control the agents of the government ‘is so
obvious, and the inadequacy of existing practice
so likely to result in the violation of
constitutional rights, that the policymaker can
reasonably be said to have been deliberately
indifferent to the need.’
Id.

In addition, the entity may be held liable where there is

evidence that it “turned a blind to an obviously inadequate
practice that was likely to result in the violation of
constitutional rights.”

Id.

It is clear from the record that there is evidence of
plaintiff’s serious medical needs.

He has been diagnosed with

post-traumatic stress disorder, schizophrenia, and diabetes,
among other diagnoses.

He needed a variety of critical

medication to aid with his mood swings and depression.
was on insulin at the time for his diabetes.

He also

Furthermore,

plaintiff repeatedly complained about injuries from a fall he
sustained when he passed out but was not taken to the hospital
even though his leg looked “like a basketball.”

Plaintiff

described his body as “locking up on” him because he was not
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receiving his medication.

In addition, defendant failed to take

plaintiff to his previously scheduled medical appointments.
Plaintiff points to several policies that evidence
acts or omissions that indicate deliberate indifference.

First,

there is evidence defendant did not provide plaintiff with the
necessary medical screening upon arrival.
Second, there is evidence that defendant did not have
procedures in place to deal with grievances about the lack of
medical care and failure to provide much needed medication.
Third, it was defendant’s policy not to provide the
services of a medical doctor to the residents at Kintock House
when needed.
Finally, it was defendant’s policy to have non-medical
personnel review any grievances, sick requests, or requests for
medical services in the first instance rather than the
contracted nurse practitioner or any medical doctor.
There is enough evidence for a reasonable jury to find
that defendant’s failure to establish sufficient policies for
medical care at its facility created a serious risk to residents
such as plaintiff that is “sufficiently obvious as to constitute
deliberate indifference to [residents’] medical needs.”
585.

Id. at

There is evidence that defendant “turned a blind eye to an

obviously inadequate practice,” that is, the procedure for
providing medical services and medication to residents, “that
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was likely to result in the violation of constitutional rights.”
Id. at 584.

A reasonable jury could also infer that the failure

to establish a more responsive policy to screen residents and
provide them with the necessary medication upon arrival caused
the specific violations of which plaintiff complains.

See id.

at 585.
The motion of defendant for summary judgment as to
plaintiff’s Eighth Amendment claim under § 1983 in Count I will
therefore be denied.

As plaintiff’s claim will proceed under

the Eighth Amendment, the court will grant summary judgment in
favor of defendant and against plaintiff as to plaintiff’s
Fourteenth Amendment claim in Count II.
V
Defendant also seeks summary judgment on plaintiff’s
claim for medical malpractice and negligence in Count III.
Defendant argues that summary judgment is proper because
plaintiff has failed to produce an expert to establish the
appropriate standard of care and how defendant deviated from
that standard.

On a medical malpractice claim, a plaintiff must

establish:
(1) a duty owed by the physician to the
patient (2) a breach of duty from the
physician to the patient (3) that the breach
of duty was the proximate cause of, or a
substantial factor in, bringing about the
harm suffered by the patient, and
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(4) damages suffered by the patient that
were a direct result of that harm.
Mitzelfelt v. Kamrin, 584 A.2d 888, 891 (Pa. 1990).

If “the

matter under investigation is so simple, and the lack of skill
or want of care so obvious, as to be within the range of
ordinary experience and comprehension of even non-professional
persons” then an expert is not required in a malpractice action.
Brannan v. Lankenau Hosp., 417 A.2d 196, 201 (Pa. 1980).
The court finds that this case is one in which the
exception to the expert requirement applies.

Plaintiff asserts

that he was not given his medication upon admittance to the
Kintock House for at least three weeks and that he was not
provided medical care despite his knee swelling up after his
fall.

These assertions are ones which a reasonable jury can

evaluate within the range of ordinary experience and
comprehension without expert testimony.
579-80.

See Natale, 318 F.3d at

The motion of defendant for summary judgment on

Count III will therefore be denied.
VI
Defendant also moves for summary judgment on
plaintiff’s claim in Count IV for intentional infliction of
emotional distress.

In Pennsylvania, this claim requires that

the conduct of defendant be extreme and outrageous and that the
conduct be intentional or reckless so that it causes severe
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emotional distress.

Bruffett v. Warner Commc’ns, Inc., 692 F.2d

910, 914 (3d Cir. 1982).

The Pennsylvania Supreme Court cited

to the Restatement (Second) of Torts to explain that
“[l]iability has been found only where the conduct has been 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 community.”
Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 991
(Pa. 1987) (quoting Restatement (Second) of Torts § 46).

The

Court has instructed that recovery for this tort is “highly
circumscribed.”

Id.

It requires “some objective proof of

severe emotional distress” so that a claim of emotional distress
is “supported by competent medical evidence.”

Id. at 995.

Plaintiff clearly has evidence of pain and suffering,
but that is not sufficient.

Plaintiff does not provide any

objective proof or competent medical evidence for his claim that
he suffered severe emotional distress as the result of
defendant’s conduct in failing to treat him for his leg injury.
See id. at 992.

While the court does not minimize his claims,

he has not come forward with that high quantum of proof that he
suffered severe emotional distress to the degree required under
Pennsylvania law.

Pennsylvania courts have been “chary to

declare conduct ‘outrageous’ so as to permit recovery.’”
v. Twp. of Falls, 890 F.2d 611, 623 (3d Cir. 1989).
16

Clark

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The Pennsylvania Supreme Court has declined to find a
basis for this tort in the absence of objective proof of severe
emotional distress, even in a case of grieving parents of infant
twins who allege that the cemetery where their twins were buried
threatened them to coerce further payments to maintain the
graves.

See Kazatsky, 527 A.2d at 197.

Courts have also

declined to find liability under Pennsylvania law for
intentional infliction of emotional distress in matters where
there is extensive evidence of a sexually hostile work
environment, see Hoy v. Angelone, 691 A.2d 476 (Pa. Super. Ct.
1997), or when a police chief and township supervisor took
actions that the court found to be “deplorable” in publicly
disparaging a dissenting officer and ensuring he was
investigated by the district attorney, see Clark, 890 F.2d at
624.

As the burden for this tort is “highly circumscribed” and

in the absence of objective medical proof of severe emotional
distress, the court will grant summary judgment in favor of
defendant and against plaintiff on Count IV for intentional
infliction of emotional distress.
VII
Finally, defendant seeks summary judgment on
plaintiff’s claim for negligence in Count V.

Defendant’s only

argument is that plaintiff cannot establish that there was any
act or failure to act on defendant’s part that was the cause of
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plaintiff’s injuries.

A negligence claim requires a duty or

obligation to conform to a certain standard of conduct, a breach
of that duty, a causal connection between the conduct and the
resulting injury, and actual loss or damage to the plaintiff.
R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005).
Defendant runs an accredited facility that is required
to provide a standard of care including an “unimpeded access to
healthcare.”

Plaintiff points to sufficient evidence that

defendant breached that duty when it failed to screen him for
his medical needs, provide his medication for weeks after his
arrival, and evaluate his knee injury.

Plaintiff claims he

injured his knee after passing out and falling down.

This is

consistent with his complaints of his body “locking up” from a
lack of medication.

There is sufficient evidence for a jury to

find that defendant acted negligently in not providing plaintiff
with his medication or medical care.

Accordingly, the court

will deny summary judgment on Count V of the complaint for
negligence.

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