KEIFER v. LANCASTER COUNTY et al

Filing 27

MEMORANDUM/OPINION THAT THE INSTANT MOTION TO DISMISS (DOC. NO. 21) IS GRANTED. IT IS FURTHER ORDERED THAT THE MEDICAL DEFENDANTS SHALL HAVE FOURTEEN DAYS FROM THE DATE OF THIS ORDER TO FILE AN ANSWER TO PLAINTIFF'S COMPLAINT. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 7/24/17. 7/25/17 ENTERED AND COPIES E-MAILED. (ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
:
KATHY KEIFER, Administratrix of the
:
CIVIL ACTION
ESTATE OF ZACHARY KEIFER,
:
Plaintiff,
:
NO. 16-6620
:
v.
:
PRIMECARE MEDICAL, INC.,
:
JOHN W. WICKIZER, DENISE SIPE,
:
MARK TURGEON, WILLIAM CATTELL, et al., :
Defendants. :
__________________________________________:
MEMORANDUM
Henry S. Perkin, M.J.

July 24, 2017

The instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) was filed by Primecare Medical, Inc., William Cattell, Mark Turgeon, John W. Wickizer
and Denise Sipe (“the Medical Defendants”) (Dkt. No. 21) on March 31, 2017. Plaintiff’s
Answer and Memorandum of Law in Opposition to the Motion (Dkt. No. 24) was filed on April
24, 2017. Having reviewed and considered the contentions of the parties, the Court is prepared
to rule on the matter.
I.

BACKGROUND.
Plaintiff’s son, Zachary Keifer (“Keifer”) was arrested and incarcerated in

Lancaster County Prison on December 22, 2014, and after an initial assessment, was placed on
fifteen minute suicide watch along with other cell restrictions. Compl., ¶¶ 28, 29. Keifer was a
known suicide risk from past incarcerations at Lancaster County Prison based upon the medical
records contained in the prison. Id., ¶ 30. In a previous incarceration in August, 2014, Keifer
attempted to harm himself by banging his head against a wall. Id., ¶ 31. The medical records in
the prison indicate that Keifer was a long-standing heroin addict with a history of anxiety

disorder. Id., ¶ 32. From December 22, 2014 until December 27, 2014, Keifer was, for various
periods of time, housed in the medical housing unit on a suicide watch and an opiod detox watch
and he consistently threatened to commit suicide due to severe emotional distress, narcotic
withdrawal symptoms and mental illness. Id., ¶¶ 33-34, 36. Keifer advised Defendant counselors
John Wickizer and Denise Sipe and various corrections officers of his intent to commit suicide
and that he had wanted the police to shoot him at the time of his arrest. Id., ¶ 37. Defendants
Turgeon and Cattell, the prison psychiatrist and physician respectively, never conducted a
physical or psychiatric examination of Keifer. Id., ¶¶ 38, 39.
On December 24, 2014, Keifer was removed from suicide watch by Defendant
Wickizer, although Keifer continued to threaten to commit suicide and asked other inmates to
assist him in committing suicide throughout his five-day incarceration. Id., ¶¶ 42, 43. Defendants
Wickizer, Sipe, Turgeon and Cattell were advised of Keifer’s continued threats of suicide on
December 26, 2014, but failed to conduct an appropriate evaluation and return Keifer to suicide
watch status. Id., ¶ 48.
On the morning of December 27, 2014, Defendant Wickizer met with Keifer,
discontinued Keifer from medical observation status, and released Keifer from all observation
status to the general prison population without approval from a psychiatrist, psychologist, or
physician. Id., ¶¶ 51, 52. That same day, Keifer requested a move to a private cell from the cell
that he shared with a cellmate. Id., ¶ 53. Despite Keifer’s repeated threats to commit suicide, he
was transferred to a separate cell where he was housed alone and was not provided with
psychiatric care, medication or appropriate monitoring. Id., ¶¶ 54-55. Later on December 27,
2014, Keifer hung himself with a sheet from the bunk of his cell and although initially
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resuscitated, he never regained consciousness. Id., ¶¶ 56-57. Keifer was hospitalized at Lancaster
General Hospital on December 27, 2014, and he died on January 7, 2015. Id., ¶ 58.
Plaintiff, Kathy Keifer, in her capacity as Administratrix of Zachary Keifer’s
Estate, initiated this action on December 23, 2016, by filing a seven count Complaint against
Lancaster County, PrimeCare Medical, Inc. and nine individual employees of those two entities.1
In Count I, Plaintiff alleges that the Medical Defendants were deliberately indifferent to Keifer’s
serious medical needs in violation of his Fourth, Eighth and Fourteenth Amendment rights and
the laws of the Commonwealth of Pennsylvania. In Count V, Plaintiff claims that Defendants
Lancaster County and PrimeCare Medical, Inc. violated the Americans with Disabilities Act of
1990 (“ADA”), 42 U.S.C. § 12101, et seq., by failing to provide Keifer with appropriate medical
and psychiatric care and necessary and appropriate housing, services, medications and
supervision. The Medical Defendants move to dismiss the Fourth Amendment claims and
monetary damages claim under the Pennsylvania Constitution against them and the ADA claims
against PrimeCare Medical, Inc.
II.

STANDARD OF REVIEW.
On a motion to dismiss for failure to state a claim, courts accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint the plaintiff may be entitled to
relief. Phillips v. County of Allegheny, 515 F .3d 224 (3d Cir. 2008). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a

1

Only those claims which are the subject of the instant Motion against the Medical Defendants are

discussed herein.

3

plaintiffs obligation to provide grounds for his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 554 (2007)(citing Papasan v. Allain, 478 U.S. 265, 268).
In order 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 (2009). A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. at 668. “Only a complaint that states a plausible claim for relief survives
a motion to dismiss.” Id. at 679.
When facing a motion to dismiss for failure to state a claim, district courts are
directed to conduct a three-part analysis. Connelly v. Lance Constr. Corp., 809 F.2d 780, 787 (3d
Cir. Jan. 11, 2016). First, it must “tak[e] note of the elements [the] plaintiff must plead to state a
claim.” Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they are no
more than conclusions, are not entitled to the assumption of truth.” Id. at 679. See also Burtch v.
Milberg Factors, Inc., 662 F .3d 212, 224 (3d Cir. 2011) (“Mere restatements of the elements of a
claim are not entitled to the assumption of truth.”)(citations and editorial marks omitted).
Finally, “[When] there are well-pleaded factual allegations, [the] court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal,
566 U.S. at 679.

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III.

DISCUSSION.
A.

Claims for Violations of the Fourth Amendment and Monetary Damages
Under the Pennsylvania Constitution Against the Medical Defendants.
Plaintiff concedes that her claims pursuant to the Fourth Amendment and her

monetary damages claim under the Pennsylvania Constitution should be dismissed. See
generally, Ans. & Mem. Law in Opp’n. These claims will be dismissed with prejudice.
B.

Claims for Violations of the Americans with Disabilities Act Against
PrimeCare Medical, Inc.
In Count V of the Complaint, Plaintiff claims that PrimeCare Medical, Inc.

violated the ADA. PrimeCare Medical, Inc. is a private corporation that contracts with the
government to provide health services to correctional facilities. In Matthews v. Pennsylvania
Department of Corrections, our Court of Appeals held in a non-precedential opinion that “a
private corporation is not a public entity merely because it contracts with a public entity to
provide some service.” Matthews v. Pa. Dep’t of Corr., 613 F.App’x 163, 170 (3d Cir.
2015)(citing Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010); Green v. City of New
York, 465 F.3d 65, 79 (2d Cir. 2006) (holding private hospital performing government services
by contract is not “instrumentality” of the government) and Cox v. Jackson, 579 F. Supp. 2d 831,
852 (E.D. Mich. 2008)(holding private medical provider with contract to serve prison was not
government entity)).
Plaintiff argues, however, that PrimeCare Medical, Inc., “although a private
corporation, is the creation of a government entity to perform and carry out exclusive government
functions and should rightly be defined as a public entity under the ADA according to the Third
Circuit’s interpretation of the term ‘instrumentality of the state’.” See Pl.’s Mem. Law, p. 9.
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Plaintiff claims that the Third Circuit’s non-precedential reliance in Matthews on the Eleventh
Circuit’s analysis in Edison is flawed because it “conflates government contracting with
government function.” Pl.’s Mem. Law, p. 6 (quoting Edison, 604 F.3d at 1311 (Barkett, J.)
(dissenting)(emphasis in original)). Plaintiff argues that PrimeCare Medical, Inc. only contracts
with the government and the fact that it provides no other functions outside of medical services
to correctional facilities makes it “an instrument of the state” because but for those contracts,
PrimeCare Medical, Inc. would have no function. Id., pp. 6-7.
A “public entity” is defined by the ADA as “any State or local government . . . any
department, agency, special purpose district, or other instrumentality of a State, or States or local
government . . . [or] the National Railroad Passenger Corporation, and any commuter authority
(as defined in section 103(8) of the Rail Passenger Service Act . . . .” See 42 U.S.C. § 12132.
Plaintiff does not cite any legal authority to support its contention that PrimeCare Medical, Inc. is
an instrument of the state other than opining that the decision in Matthews which was based on
Edison is flawed. Instead, Plaintiff asserts that the dissenting opinion in Edison was correct. As
my colleague, Judge Mark A. Kearney recently noted, “[c]ourts reviewing whether an entity is an
instrumentality of the state have concluded the term instrumentality “refers to governmental units
or units created by them.” MGJ v. Sch. Dist. of Philadelphia, Civ.A. No. 17-318, 2017 WL
2277276, at *10 n.109 (E.D. Pa. May 25, 2017)(citing Langston v. Milton S. Hershey Med. Ctr.,
No. 15-02027, 2016 WL 1404190, at *11, *31 (M.D. Pa. Apr. 11, 2016)(quoting Edison, 604
F.3d at 1310)).2 Pursuant to this case law, we find no basis for concluding that PrimeCare

2

In MGJ v. Sch. Dist. of Philadelphia, Civ.A. No. 17-318, 2017 WL 2277276, at *10 n.109 (E.D.
Pa. May 25, 2017), Judge Kearney held that there was no basis for concluding that a private agency contracting with
the School District of Philadelphia to provide therapeutic support staff services to students was a “public entity” or

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Medical, Inc., a private entity contracting to provide health care services to a number of prisons,
including Lancaster County Prison in the Commonwealth of Pennsylvania, is an instrumentality
of the state or otherwise a public entity. We therefore dismiss the ADA claim against PrimeCare
Medical, Inc. with prejudice.
IV.

CONCLUSION.
For the reasons set forth above, the Medical Defendants’ Motion to Dismiss will

be granted. Plaintiff’s claims pursuant to the Fourth Amendment and her monetary damages
claim under the Pennsylvania Constitution against the Medical Defendants will be dismissed
with prejudice. Plaintiff’s claims against PrimeCare Medical, Inc. in Count V of the Complaint
under the Americans with Disabilities Act will also be dismissed with prejudice.
Plaintiff’s remaining claims against the Medical Defendants include Deliberate
Indifference pursuant to 42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments Against
Defendants PrimeCare Medical, Inc., Wickizer, Sipe, Turgeon and Cattell (Count I), Negligence
Against Defendants PrimeCare Medical, Inc. and Wickizer (Count II), Wrongful Death Against
Defendants PrimeCare Medical, Inc., Wickizer, Sipe, Turgeon and Cattell (Count VI), and
Punitive Damages Against Defendants Wickizer, Sipe, Turgeon and Cattell (Count VII).3
An appropriate Order follows.

“instrumentality of the state” and he dismissed the Title II ADA claim against the agency. In Langston v. Milton S.
Hershey Med. Ctr., No. 15-02027, 2016 WL 1404190, at *11, *31 (M.D. Pa. Apr. 11, 2016), the Court dismissed a
Title II ADA claim against a hospital because it held the hospital was not a “public entity,” and the mere fact that the
hospital may have received federal Medicaid funds was insufficient to demonstrate it was an “instrumentality of a
State.”
3

Claims against other non-Medical Defendants include Deliberate Indifference (Count III), Monell
Claim (Count IV), ADA (Count V), Wrongful Death (Count VI), and Punitive Damages (Count VII).

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