Green v. Fisher et al
Filing
65
MEMORANDUM re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 45 filed by Ronald Long, Corizon, Christina Doll and MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 48 filed by Jon Fisher, R. Sue Hannah, Tim Roher, James Fouse, Tim Felton, William Driebelbis. (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 01/08/14. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLYDE GREEN,
Plaintiff
v.
WARDEN JON FISHER, et al.,
Defendants
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CIVIL NO. 1:CV-12-00982
(Judge Rambo)
MEMORANDUM
Plaintiff Clyde Green, an inmate currently confined at the State Correctional
Institution at Smithfield (“SCI-Smithfield”) in Huntingdon, Pennsylvania, initiated
this civil rights action pursuant to 42 U.S.C. § 1983 by filing a pro se complaint on
May 24, 2012, followed by an amended complaint on May 1, 2013. (Doc. 44.) In
addition to his Section 1983 claims, Plaintiff has asserted pendant state law claims of
negligence. Named as Defendants are Corizon, Inc., and two medical providers at
SCI-Smithfield (“Medical Defendants”), and a number of Department of Corrections
(“DOC”) employees located at SCI-Smithfield (“DOC Defendants”).1 In the amended
complaint, Plaintiff alleges that he sustained injuries on two separate occasions at
SCI-Smithfield and has since been denied adequate medical care. As relief, he seeks
compensatory and punitive damages.
The Medical Defendants are as follows: Corizon, Inc., and two employees, Christina
Doll and Ronald Long. The DOC Defendants are as follows: Jon Fisher, Rebecca Sue Hannah,
William Driebelbis, James Fouse, William Felton, and Tim Rohrer.
1
Presently before the court are two motions to dismiss, filed by both sets of
Defendants. (Docs. 45 & 48.) For the reasons set forth below, the motions will be
granted in part and denied in part.
I.
Background
For purposes of disposition of the instant motions to dismiss, the factual
allegations asserted in the amended complaint will be accepted as true and viewed in
a light most favorable to Plaintiff.
A.
Facts
In the amended complaint, Plaintiff provides the following factual background
with respect to his claims. Plaintiff alleges that the dining hall tables, seating, and
flooring at SCI-Smithfield are old, deteriorating, and unsafe (Doc. 44 ¶¶ 13, 14),
alleging that “The tables in question are the original tables that have been in service
more than twenty (20) years and now accommodate during feeding thirteen (1300)
hundred inmates three (3) times a day” (Id. ¶ 14). On several occasions prior to
September 30, 2011, Plaintiff expressed concern about these conditions to DOC
Defendants Fisher, Fouse, Felton, and Rohrer. (Id. ¶ 13.) However, Plaintiff’s
“complaints and grievances regarding instances of unstable tables, seating breakage,
and flooring seeping foul smelling puddles of water underneath the tables foundation,
2
were ignored and/or denied” by DOC Defendants. (Id. ¶ 14.) On September 30,
2011, Plaintiff entered the dining hall to eat, picked up his food tray, and was directed
to sit “at what was obviously an unstable stable.” (Id. ¶ 15.) When Plaintiff sat down
at the table, it snapped from its floor foundation, and Plaintiff fell to the floor. (Id.)
In an attempt to break his fall, Plaintiff injured his wrist and left hand, and struck the
back of his head. (Id. ¶ 16.) He also felt immediate pain in his lower back and
buttocks. (Id.)
Plaintiff was transported to the medical department and examined by a
physician’s assistant. (Id.) He was told that he had no swelling or lumps to the back
of his head, although it was tender. (Id.) He was also told that he had suffered a
muscle strain to his lower back. (Id.) He was given valium and ibuprofen, his wrist
was wrapped, and he was sent to his housing unit. (Id.)
In the early morning hours of October 1, 2011, Plaintiff was removed from his
cell by a stretcher and eventually taken to Blair County Hospital for lower back pain
and left leg numbness and pain. (Id. ¶ 17.) X-rays revealed no broken bones, but the
doctor stated nerve and/or ligament damage could not be ruled out. (Id.)
Upon his return to SCI-Smithfield, Plaintiff was informed that Drs. Doll and
Long had been contacted, and he was then placed in an observation cell in the intake
housing unit which was being used as a temporary infirmary. (Id. ¶ 18.) Dr. Long
3
prescribed valium and vicodin. (Id.) The observation cell was not equipped to meet
Plaintiff’s needs, as it did not have a “help call” button or support rails. (Id.) On
October 3, 2011, Plaintiff lost consciousness and fell in this cell while attempting to
use the bathroom after he suffered “a paralyzing lower back and leg pain.” (Id.)
Plaintiff was discovered by an officer making his rounds and was taken again to Blair
County Hospital for x-rays and a CT scan. (Id.)
When Plaintiff returned to SCI-Smithfield, he was placed in a psychological
observation cell with 24-hour surveillance and prescribed Tylenol and ibuprofen. (Id.
¶ 19.) On October 5, 2011, Plaintiff was informed that the x-rays and CT scan
revealed no abnormalities. (Id.) Despite his continued complaints of pain in his
lower back and pain and numbness in his leg, which he alleges were ignored by
Defendants Doll and Long, Plaintiff was released from the infirmary . (Id.)
However, Plaintiff acknowledges that he was given a cane to assist him with walking.
(Id.)
In the following days, medical department staff visited Plaintiff’s cell, his
meals were delivered, but he was forced to walk 1,200 feet to retrieve his medication.
(Id. ¶ 20.) His complaints and grievances regarding his medical condition were
ignored by Defendant Driebelbis. (Id. ¶ 21.) His condition worsened, and by January
6, 2012, an MRI revealed a herniated disk. (Id.) Further, the medical department
4
accused him of “theatrics,” and began to charge him for “generated complaints of
continued pain.” (Id. ¶ 22.)
On April 11, 2012, Plaintiff was referred to a neurologist, who recommended
EGG and EMG testing, as well as cortisone shots for pain relief. (Id. ¶ 23.) The
medical department, including Defendants Driebelbis, Long, Doll, and Corizon,
denied the cortisone treatment. (Id.) Also, his complaints and grievances regarding
the denial of treatment were rejected by Defendant Fisher. (Id.)
Plaintiff alleges that due to his injuries from the fall from the table, he is
permanently disabled, no longer able to exercise, and must use a cane to walk, wear a
neck brace, and take medications daily for pain. (Id.)
B.
Procedural History
Plaintiff filed his original complaint and motion for leave to proceed in forma
pauperis on May 24, 2012. (Docs. 1 & 3.) By order dated June 7, 2012, the court
granted the motion to proceed in forma pauperis and directed service of the complaint
on the Defendants named therein. (Doc. 10.)
DOC Defendants filed a motion to dismiss the complaint and brief in support
on July 11, 2012. (Docs. 20 & 21.) Medical Defendants filed a motion to dismiss
and supporting brief on July 16, 2012. (Docs. 23 & 24.) Plaintiff filed briefs in
opposition to these motions on July 25, 2012, and August 1, 2012, respectively.
5
(Docs. 26 & 28.) Medical Defendants filed a reply brief on August 8, 2012. (Doc.
30.) Further, after being granted an extension of time, (see Doc. 27), Plaintiff filed a
certificate of merit on August 8, 2012, as to Defendants Doll and Long declaring that
expert testimony was unnecessary to support his medical negligence claim, (Doc. 29).
Thereafter, on February 22, 2013, the court granted the motions to dismiss with
prejudice in part and without prejudice in part. (Doc. 37.) In addition, Plaintiff was
permitted to amend his complaint as to those claims that were dismissed without
prejudice. (Id.)
Plaintiff filed his amended complaint on May 1, 2013. (Doc. 44.) On May 7,
2013, Medical Defendants filed a motion to dismiss. (Doc. 45.) On May 13, 2013,
DOC Defendants filed a motion to dismiss. (Doc. 48.) Plaintiff filed his opposition
on May 31, 2013. (Doc. 53 & 54.) Medical Defendants filed a reply on June 10,
2013. (Doc. 56.) Thus, the motions to dismiss are now ripe for disposition.
II.
Standard of Review
Among other requirements, a sound complaint must set forth “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). This statement must “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
6
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Fair notice” in Rule
8(a)(2) “depends on the type of case[, because] some complaints will require at least
some factual allegations to make out a showing that the pleader is entitled to relief.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quotation omitted).
“[A] situation may arise where, at some point, the factual detail in a complaint is so
undeveloped that it does not provide a defendant the type of notice of claim which is
contemplated by Rule 8.” Id. In such a case, a defendant may attack a complaint by a
motion under Rule 12(b)(6) for failure to state a claim upon which relief can be
granted.
In deciding a motion to dismiss under Rule 12(b)(6), the court is required to
accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551
U.S. 89, 93 (2007), and all reasonable inferences permitted by the factual allegations
contained therein, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), and
view them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170,
177 (3d Cir. 2007). If the facts alleged are sufficient to “raise a right to relief above
the speculative level” such that the plaintiff’s claim is “plausible on its face,” a
complaint will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 570) (explaining a claim has “facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
7
inference that the defendant is liable for the misconduct alleged”); see also Phillips,
515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007);
Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007). Further, when a complaint
contains well-pleaded factual allegations, “a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at
664. However, a court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements
do not suffice.” Id.
“To decide a motion to dismiss, courts generally consider only the allegations
contained in the complaint, exhibits attached to the complaint and matters of public
record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007). The court may consider “undisputedly authentic document[s] that
a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the [attached] document[s].” Pension Benefit, 998 F.2d at 1196.
Additionally, “documents whose contents are alleged in the complaint and whose
authenticity no party questions, but which are not physically attached to the pleading,
may be considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d
8
Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d
383, 388 (3d Cir. 2002) (“Although a district court may not consider matters
extraneous to the pleadings, a document integral to or explicitly relied upon in the
complaint may be considered without converting the motion to dismiss into one for
summary judgment” (internal quotation omitted)). However, the court may not rely
on other parts of the record in making its decision. Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
When presented with a pro se complaint, the court should construe the
complaint liberally and draw fair inferences from what is not alleged as well as from
what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Youse v.
Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994). Such a complaint “must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551
U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Finally, in the Third Circuit, a court must grant leave to amend before
dismissing a civil rights complaint that is merely deficient. See, e.g., Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston
v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113,
116 (3d Cir. 2000). “Dismissal without leave to amend is justified only on the
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grounds of bad faith, undue delay, prejudice, or futility.” Alston v. Parker, 363 F.3d
229, 236 (3d Cir. 2004).
III.
Discussion
In order to state a viable Section 1983 claim, a plaintiff must plead two
essential elements: 1) that the conduct complained of was committed by a person
acting under color of state law; and 2) that said conduct deprived the plaintiff of a
right, privilege, or immunity secured by the Constitution and laws of the United
States. West v. Atkins, 487 U.S. 42, 48 (1988). The defendant’s conduct must have a
close causal connection to the plaintiff’s injury in order for Section 1983 liability to
attach. Martinez v. California, 444 U.S. 277, 285 (1980).2 A prerequisite for a viable
civil rights claim is that the defendant directed, or knew of and acquiesced in, the
deprivation of the plaintiff’s constitutional rights. Rode v. Dellarciprete, 845 F.2d
1195, 1207-08 (3d Cir. 1988). On its face, Section 1983 creates no exceptions to the
liability it imposes, nor does it speak of immunity for any individual who might
deprive another of civil rights. See Buckley v. Fitzsimmons, 509 U.S. 259, 268
The Court in Martinez explained: “Although a § 1983 claim has been described as ‘a
species of tort liability,’ it is perfectly clear that not every injury in which a state official has played
some part is actionable under that statute.” Martinez, 444 U.S. at 285 (internal citations omitted).
2
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(1993). Nevertheless, it is well-settled that certain government officials possess
immunity from Section 1983 liability. Id.
As stated above, there are two motions to dismiss pending in the instant case.
In the DOC Defendants’ motion to dismiss, they argue that the amended complaint
should be dismissed on the following grounds: (1) Plaintiff has failed to state a
section 1983 conditions of confinement claim related to the table against DOC
Defendants Driebelbis, Fisher and Hannah; (2) the court previously dismissed with
prejudice Plaintiff’s medical care-related deliberate indifference claim against the
DOC Defendants; (3) Plaintiff has failed to state a claim of medical negligence
against all DOC Defendants; and (4) Plaintiff has failed to state a claim of negligence
related to the table against DOC Defendant Driebelbis. (Doc. 49.) In the Medical
Defendants’ motion to dismiss, they argue that the amended complaint should be
dismissed on the following grounds: (1) Plaintiff has failed to set forth a claim of
Eighth Amendment deliberate indifference to a serious medical need against
Defendants Long and Doll; (2) the medical malpractice claims should be dismissed
because Plaintiff cannot support them without expert testimony; and (3) Plaintiff’s
claim for punitive damages is a form of relief and should not stand as a separate cause
of action, and the complaint otherwise lacks factual support for an award of punitive
11
damages.3 (Doc. 46.) The court will address the motions to dismiss in the context of
the claims asserted by Plaintiff in his amended complaint.
A.
Eighth Amendment Conditions of Confinement Claims
In his amended complaint, Plaintiff alleges that the conditions of the inmate
dining hall and infirmary cell at SCI-Smithfield violated his right to be free from
cruel and unusual punishment. Addressing DOC Defendants’ motion to dismiss first,
DOC Defendants argue that Plaintiff has failed to state a claim related to the
condition of the dining table against Defendants Driebelbis, Fisher and Hannah, as
these Defendants had no personal involvement in the alleged wrongdoing.
Conditions of confinement may violate the Eighth Amendment if they satisfy
two criteria. Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the conditions
alleged must be sufficiently serious such that the official’s act or omission results in
the denial of “the minimal civilized measure of life’s necessities.” Id. (citation
omitted). Second, the officials responsible for these conditions must exhibit
In his brief in opposition to the Medical Defendants’ motion to dismiss, Plaintiff asks
this court to consider whether to award punitive damages for his section 1983 and negligence claims.
(Doc. 53 at 6.) Based on Plaintiff’s counter argument to Medical Defendants’ motion to dismiss
here, the court will not consider Plaintiff’s Count IV - Punitive Damages as a separate cause of
action; rather, the court will construe this section as a request for relief. Further, based on the court’s
disposition of both motions to dismiss, the court will defer ruling upon punitive damages at this time.
3
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“deliberate indifference” to the inmate’s health and safety. Id. They must act with a
state of mind “more blameworthy than mere negligence.” Id. at 835.
Further, it is well established that personal liability under § 1983 cannot be
imposed upon a state official based on a theory of respondeat superior. See, e.g.,
Rizzo v. Goode, 423 U.S. 362, 368 (1976); Hampton v. Holmesburg Prison Officials,
546 F.2d 1077, 1082 (3d Cir. 1976). It is also well settled in the Third Circuit that the
defendant’s personal involvement in alleged constitutional deprivations is a
requirement in a § 1983 case and that a complaint must allege such personal
involvement. Hampton, 546 F.2d at 1082. Each named defendant must be shown,
through the complaint’s allegations, to have been personally involved in the events or
occurrences upon which a plaintiff’s claims are based. Id. As the court stated in
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal involvement in
the alleged wrongs . . . . Personal involvement can be shown through
allegations of personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate particularity.
Rode, 845 F.2d at 1207 (citations omitted). Courts have also held that an allegation
seeking to impose liability on a defendant based on supervisory status, without more,
will not be subject the official to section 1983 liability. Id. at 1208.
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As to Defendant Driebelbis, DOC Defendants argue that, as the Corrections
Health Care Administrator (“CHCA”), Defendant Driebelbis had nothing to do with
the condition of the dining hall table. They also argue that Plaintiff does not allege
that he notified Defendant Driebelbis of his concerns with the condition of the table.
From a review of the amended complaint, the court agrees with DOC Defendants’
arguments in this respect. Indeed, in his brief in opposition to DOC Defendants’
motion to dismiss, Plaintiff alleges that he submitted written complaints regarding the
condition of the dining tables only to Defendants Fisher, Hannah, Fouse, Felton, and
Rohrer. (Doc. 54 at 2.) Because Plaintiff has failed to allege any personal
involvement on the part of Defendant Driebelbis with respect to the condition of the
dining table, DOC Defendants’ motion to dismiss will be granted as to Defendant
Driebelbis, and this claim against him will be dismissed.
Turning to DOC Defendants Fisher and Hannah, SCI-Smithfield’s Warden and
Deputy Warden, respectively, DOC Defendants argue that Plaintiff has failed allege
personal involvement of these Defendants regarding the condition of the dining table.
Rather, Plaintiff is simply attempting to impose liability on these Defendants based
on their supervisory status alone, which does not subject them to section 1983
liability. To reiterate, to state a cause of action against a supervising official in a civil
rights action, the plaintiff must show that the supervising official’s misconduct cannot
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have been simply a failure to act, but the official must have played an “affirmative
part” in the alleged misconduct. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.
1986). As the Third Circuit Court of Appeals observed in Brown v. Muhlenberg
Twp., 269 F.3d 205 (3d Cir. 2001):
[I]t is not enough for a plaintiff to argue that the constitutionally
cognizable injury would not have occurred if the superior had done more
than he or she did. Rather, the plaintiff must identify specific acts or
omissions of the supervisor that evidence deliberate indifference and
persuade the court that there is a “relationship between the ‘identified
deficiency’ and the ‘ultimate injury.’”
Id. at 216 (quoting Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)).
In this case, Plaintiff alleges that, prior to his fall on September 30, 2011, he
expressed his concern about the unsafe dining tables and other conditions in the
dining hall to, inter alia, Defendants Fisher and Hannah, but his complaints and
grievances were ignored and/or denied. (Doc. 44 ¶¶ 13, 14.) As a result, Plaintiff
asserts that these Defendants “knew or should have known the need for repairs and/or
replacements of the unsafe deteriorating conditions of the tables in the inmates’
dining hall that created an unsafe environment which resulted in Plaintiff’s injuries.”
(Id. ¶ 17.) In their motion to dismiss, Defendants Fisher and Hannah argue that
Plaintiff’s claim fails because he does not allege that they “actually viewed the tables
and chairs” or “were aware of prior instances where someone was actually injured by
15
the breakage of a table or chair;” rather he only alleged that they had prior notice of
the conditions. (Doc. 49 at 4.) At this stage in the litigation, Defendant’s argument
that SCI-Smithfield’s Warden and Deputy Warden, both of whom were expressly
tasked with the supervision of the facility, must be dismissed from this claim because
Plaintiff failed to allege that they “actually viewed” the inadequate conditions or were
aware of prior instances of injury, does not operate to bar liability. Instead, given the
nature of Plaintiff’s allegations of an obviously inadequate condition in the inmates’
dining hall, the liberal treatment afforded pro se complaints, and the plaintiff-friendly
standard applicable to motions to dismiss, Plaintiff has sufficiently alleged personal
involvement by Defendants Fisher and Hannah in the unconstitutional conduct. As
such, DOC Defendants’ motion to dismiss here will be denied, and the conditions of
confinement claim related to the table against DOC Defendants Fisher, Hannah,
Fouse, Felton, and Rohrer will be permitted proceed. Further, because DOC
Defendants make no argument in support of dismissal of the conditions of
confinement claim related to the infirmary cell, this claim shall proceed as well
against all DOC Defendants.
Turning to these Eighth Amendment claims as they apply to Medical
Defendants, the court initially notes that Plaintiff’s factual allegations in his amended
complaint with respect to the conditions of the dining hall table do not implicate
16
Medical Defendants. (See Doc. 50.) Plaintiff has not claimed that these Defendants
had any knowledge of the conditions of the dining hall, nor had any control over
decisions with respect to the dining hall conditions. Without any allegations of
personal involvement in the alleged unsafe conditions of the dining hall, the court
cannot impose liability under section 1983 upon these Defendants simply because
Plaintiff decided to name them as Defendants in the amended complaint.
Accordingly, the conditions of confinement claim related to the dining hall table
asserted in the amended complaint against Medical Defendants will be dismissed.
With respect to the conditions of the infirmary cell, Medical Defendants make
no argument in support of dismissal of this claim. There is nothing of record
indicating who maintains the condition of medical cells. Because Plaintiff’s
allegations regarding the conditions of the infirmary have been lodged against
Defendants’ Doll and Long with respect to Plaintiff’s placement in an allegedly
unsafe cell which led to further injury while in their care, the court will allow this
claim to proceed against Medical Defendants’ Doll and Long.4
In the court’s February 22, 2013 memorandum addressing the first set of motions to
dismiss, Corizon was dismissed as a party with respect to Plaintiff’s federal claims. (Doc. 37 at 1619.)
4
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B.
Eighth Amendment Medical-Care Deliberate Indifference Claim
In his amended complaint, Plaintiff also alleges that all Defendants, including
DOC Defendants, were deliberately indifferent to his serious medical needs with
respect to the injuries he sustained in the dining hall and in the infirmary. In the
court’s February 22, 2013 memorandum and order addressing the first set of motions
to dismiss, the court dismissed with prejudice this same deliberate indifference claim
as to DOC Defendants. (See Doc. 37 at 21-23.) Therefore, the court will not revisit
this claim against DOC Defendants Fisher, Hannah, Fouse, Felton, and Rohrer. DOC
Defendants’ motion to dismiss (Doc. 48) will be granted here as to these Defendants.
In his amended complaint, Plaintiff has now identified DOC Defendant
Driebelbis as the Corrections Health Care Administrator at SCI-Smithfield, who is
responsible for the operation of medical services at the facility.5 (Doc. 44 ¶ 5.) As a
result, the court will screen this medical-care deliberate indifference claim as to
Defendant Driebelbis under 28 U.S.C. § 1915(e)(2).6 In doing so, the court will
In his original complaint, Plaintiff identified Defendant Driebelbis as “an individual
adult . . . [who] worked at [SCI-Smithfield] and was the agent, servant and employee of the
defendants Department of Corrections.” (Doc. 1 ¶ 5.)
5
6
Pursuant to 28 U.S.C. § 1915(e)(2),
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that –
(A) the allegation of poverty is untrue; or
(B) the action or appeal –
18
include Defendant Driebelbis in its analysis of this claim as it applies to Medical
Defendants Doll and Long.7
In their motion to dismiss, Defendants Doll and Long argue that Plaintiff has
failed to state a claim of deliberate indifference to his serious medical needs. Upon
review, the court agrees and will grant Medical Defendants’ motion to dismiss in this
regard. As the court also concludes that Plaintiff has failed to state such a claim
against Defendant Driebelbis, this claim against him will be dismissed.
In order to establish an Eighth Amendment claim against a defendant for
inadequate medical care, a plaintiff must show “(I) a serious medical need, and (ii)
acts or omissions . . . that indicate deliberate indifference to that need.” Natale v.
Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse, 182
F.3d at 197. A serious medical need is one that has been diagnosed by a physician as
requiring treatment, or one that is so obvious that a layperson would recognize the
need for a doctor’s attention. Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987). In addition, “if ‘unnecessary and wanton infliction of
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.
The court need not address this claim as it may apply to Medical Defendant Corizon.
See supra note 4, at 17.
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pain’ results as a consequence of denial or delay in the provision of adequate medical
care, the medical need is of the serious nature contemplated by the eighth
amendment.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
The test for whether a prison official was deliberately indifferent is whether
that defendant “acted or failed to act despite his knowledge of a substantial risk of
serious harm.” Farmer, 511 U.S. at 841. “The official must both be aware of the
facts from which the inference can be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 837. Thus, a claim that a
physician “has been negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle,
429 U.S. at 106.
Further, when an inmate is provided with medical care and the dispute is over
the adequacy of that care, an Eighth Amendment claim does not exist. Nottingham v.
Peoria, 709 F. Supp. 542, 547 (M.D. Pa. 1988). Mere disagreement as to the proper
medical treatment does not support an Eighth Amendment claim. Monmouth Cnty.,
834 F.2d at 346. Only flagrantly egregious acts or omissions can violate the standard.
Medical negligence alone cannot result in an Eighth Amendment violation, nor can
any disagreements over the professional judgment of a health care provider. White v.
Napolean, 897 F.2d 103, 108-10 (3d Cir. 1990); see also Estelle, 429 U.S. at 105-06
20
(holding that medical malpractice is insufficient basis upon which to establish an
Eighth Amendment violation); Rouse, 182 F.3d at 197 (“It is well-settled that claims
of negligence and medical malpractice, without some more culpable state of mind, do
not constitute ‘deliberate indifference.’”); Lanzaro, 834 F.2d at 346 (concluding that
mere allegations of malpractice do not raise issues of constitutional import).
Here, in his amended complaint, Plaintiff alleges that after he fell at the dining
hall table, he was immediately transported to the medical department and examined
by a physician’s assistant. He was treated with medication and his injured wrist was
wrapped. When he experienced pain the following day in his cell, he was transported
to an outside hospital for treatment, including x-rays, on the same day. Upon his
return to SCI-Smithfield, Plaintiff was placed in a temporary infirmary cell for
observation and prescribed further medication. Unfortunately, while in that
temporary cell, Plaintiff lost consciousness and fell again. However, when
discovered by a corrections officer, he was immediately transported to an outside
hospital for treatment, including x-rays and a CT scan. When he returned to SCISmithfield, he was placed in a psychological observation cell and prescribed
medication. Within two days of his return, he was notified that the x-rays and CT
scan revealed no abnormalities. Although he was still in discomfort, he was released
from the infirmary and given a cane to assist him with walking. In the days that
21
followed, Plaintiff was visited by medical department staff, his meals were delivered,
and he was required to leave his cell only to retrieve medication. When his condition
worsened, Plaintiff was given an MRI that revealed a herniated disc and was referred
to a neurologist, who recommended treatment including EGG and EKG testing and
cortisone shots. The medical department, including Defendants Driebelbis, Long, and
Doll, did not follow the recommendation of cortisone shots.
Upon review, these allegations in the amended complaint demonstrate that the
three Defendants were not deliberately indifferent to Plaintiff’s medical needs after he
fell in the dining hall. Rather, Plaintiff was provided with medical attention and
prescriptions to ease his discomfort. Unfortunately, despite this medical attention,
Plaintiff continued to suffer pain and discomfort. This is clearly a case where
Plaintiff was given medical attention but was dissatisfied with the course of treatment
and subsequent results. As stated above, an inmate’s disagreement with medical
treatment is insufficient to establish deliberate indifference. Durmer, 991 F.2d at 69;
Spruill, 372 F.3d at 235.
Moreover, Plaintiff’s allegation that Defendants Driebelbis, Long, and Doll
refused to follow the neurologist’s recommendation of cortisone shots is not
sufficient to state a claim for deliberate indifference. Brownlow v. Chavez, 871 F.
Supp. 1061, 1064 (S.D. Ind. 1994) (“The Eighth Amendment does not guarantee a
22
prisoner’s choice of a physician, a mode of treatment or a place of treatment, nor does
or could it guarantee a particular outcome or level of comfort in the face of physical
maladies.” (internal citations omitted)); see also Estelle, 429 U.S. at 107 (holding that
the failure of medical defendants to order an x-ray for complaints of back pain does
not state a claim for deliberate indifference where other treatment was provided). At
most, Plaintiff’s allegations amount to a disagreement with medical treatment
provided. Again, where treatment is offered, the mere allegation of an opinion
difference between a patient and a doctor, or between two medical professionals, does
not amount to “deliberate indifference to a serious medical need.” See White, 897
F.2d at 110 (“[T]here may . . . be several acceptable ways to treat an illness.”); Young
v. Quinlan, 960 F.2d 351, 358 n.18 (3d Cir. 1992) (stating that an inmate’s
disagreement with prison personnel over the exercise of medical judgment does not
state a claim for relief under section 1983). Thus, Plaintiff’s complaint that he did not
receive the cortisone treatment while he was also receiving other treatment is not
sufficient to state a claim that Defendants Driebelbis, Long, and Doll were
deliberately indifferent to his serious medical needs. As Plaintiff has failed to
establish an Eighth Amendment violation with respect medical treatment for injuries
sustained as a result of the fall in the dining hall, Medical Defendants’ motion to
23
dismiss will be granted in this regard, and this claim will be dismissed as to
Defendants Driebelbis, Long, and Doll.
C.
Negligence Claims
Plaintiff has also alleged pendant state law claims of negligence in his amended
complaint related to the conditions of the dining hall and the infirmary, as well as
related to his medical care.8 The court will separately address these claims as they
apply to both sets of Defendants.9
1.
Negligence related to condition of dining hall
With respect to the negligence claim related to the condition of the dining hall
tables, DOC Defendants argue that Plaintiff has failed to state a claim against
Defendant Driebelbis. In support, they contend that as the CHCA, Defendant
Driebelbis had nothing to do with the condition of the dining hall tables. (Doc. 49 at
In the court’s February 22, 2013 memorandum addressing the first set of motions to
dismiss, the court retained supplemental jurisdiction over these claims. (See Doc. 37 at 28-30.)
8
In his original complaint, Plaintiff alleged a claim of “negligent supervision” against
Medical Defendants. (Doc. 1 ¶ 38.) In its memorandum addressing the first set of motions to
dismiss, the court found that Plaintiff had failed to allege each Defendants’ negligence and how it
was the proximate cause of his injury, and thus dismissed without prejudice this claim for negligent
supervision. (Doc. 37 at 28.) The court, however, afforded Plaintiff the opportunity to reassert his
claim of negligence against the individually-named Defendants in an amended complaint. (Id.) In
the amended complaint, Plaintiff has again alleged a claim of negligent supervision, but it is identical
to the claim that was dismissed in the court’s previous memorandum. (Doc. 50 ¶ 35.) Thus, the
court will again dismiss this claim of negligent supervision, but will now dismiss it with prejudice.
As Plaintiff has already been afforded the opportunity to reassert this claim against these Defendants
and has failed, the court finds it would be futile to permit him to again attempt to reassert this claim
as to Medical Defendants. See Alston, 363 F.3d at 236.
9
24
8.) They also stress that Plaintiff does not claim that he notified Defendant Driebelbis
of his concerns with the tables’ condition. (Id.) As a result, Defendant Driebelbis
cannot be linked to any of the elements of a cause of action for negligence here. In
his brief in opposition, Plaintiff does not contest these assertions, but instead focuses
his argument on the negligence claim related to his fall in the infirmary. (See Doc. 54
at 3.) From a review of the amended complaint, and upon consideration of Plaintiff’s
failure to oppose DOC Defendants’ assertions in this regard, the court concludes that
Plaintiff has failed to state a claim of negligence relating to the fall from the dining
table against Defendant Driebelbis. Thus, this claim will be dismissed as to this
Defendant. The claim will proceed, however, as to Defendants Fisher, Hannah,
Fouse, Felton, and Rohrer.
The same reasoning and conclusion also applies to Medical Defendants. From
a review of the amended complaint, Plaintiff has alleged no facts regarding this claim
that relate to Medical Defendants. As Plaintiff has failed to allege each Medical
Defendants’ negligence as it relates to the fall from the dining table and how it was
the proximate cause of his injury, the court will dismiss this claim against Medical
Defendants.
25
2.
Negligence related to conditions of infirmary
Plaintiff has also alleged that all Defendants were negligent with respect to the
conditions of the infirmary where he was housed after he fell in the dining hall. In
their motion to dismiss, DOC Defendants make no argument in support of dismissal
of this claim. Therefore, this claim shall proceed against all DOC Defendants.
For their part, Medical Defendants make no initial argument in favor of
dismissal of this claim, but do state, “it is unclear exactly what conduct of Dr. Long
and/or Dr. Doll fell below the standard of care.” (Doc. 46 at 13.) In his opposition,
Plaintiff contends “the [Medical] Defendants were negligent by placing Plaintiff in a
hazardous environment considering his condition without the benefit of safety
precaution, which was the result of his injury(s) in the SCI-Smithfield infirmary.”
(Doc. 53 at 5.) In their reply, Medical Defendants counter, “To the extent that the
prisoner complains that the facility was defective, he has failed to allege any facts that
support the contention that any of the Medical Defendants had a possessory or
controlling interest in the prison facilities.” (Doc. 56 at 1-2.) However, in his
amended complaint, Plaintiff does allege that Defendants Long and Doll directed
Plaintiff to be held in the infirmary for observation. (Doc. 50 ¶ 18.) He does not
make any such allegation with respect to Corizon. As such, this claim may proceed
against Defendants Long and Doll, but will be dismissed as to Defendant Corizon.
26
3.
Negligence related to Plaintiff’s Medical Care
Plaintiff also asserts a negligence claim related to his medical care subsequent
to his fall from the dining table against all Defendants. The court will discuss both
sets of Defendants separately.
First, DOC Defendants Fisher, Hannah, Fouse, Felton, and Rohrer argue that
they are statutorily immune from suit with regards to this claim. Under
Pennsylvania’s sovereign immunity statute, “the Commonwealth, and its officials and
employees acting within the scope of their duties, shall continue to enjoy sovereign
and official immunity and remain immune from suit except as the General Assembly
shall specifically waive the immunity.” 1 Pa. Cons. Stat. Ann. § 2310. Further, at 42
Pa. Cons. Stat. Ann. § 8522, the General Assembly specifically waived sovereign
immunity in nine areas, including cases involving medical professional liability.10
10
8522(b) are:
The nine exceptions to sovereign immunity pursuant to 42 Pa. Cons. Stat. Ann. §
(1) operation of any motor vehicle in the possession or control of a Commonwealth
party; (2) acts of health care employees of Commonwealth agency medical facilities
or institutions; (3) care, custody, or control of personal property in the possession or
control of Commonwealth parties; (4) dangerous condition of Commonwealth agency
real estate and sidewalks; (5) dangerous condition of highways under the jurisdiction
of Commonwealth agency created by potholes or sinkholes or other similar conditions
created by natural elements; (6) care, custody, or control of animals in the possession
or control of a Commonwealth party; (7) sale of liquor at Pennsylvania liquor stores;
(8) acts of a member of the Pennsylvania military forces; and (9) administration,
manufacture and use of toxoid or vaccine.
27
However, it is well-settled that immunity is waived only for claims asserted against
health care employees, and not to individuals who are not medical professionals.
McCool v. Dep’t of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009) (interpreting 42 Pa.
Cons. Stat. Ann. § 8522(b)(2)).
Here, Plaintiff’s medical negligence claim against DOC Defendants Fisher,
Hannah, Fouse, Felton, and Rohrer is barred by Pennsylvania’s sovereign immunity
statute. While the claim does fall within the category of waiver for acts of health care
employees of Commonwealth agency medical facilities or institutions, see 42 Pa.
Cons. Stat. Ann. § 8522(b)(2), these named Defendants from SCI-Smithfield are not
health care employees.11 Thus, the medical negligence claim set forth against DOC
Defendants Fisher, Hannah, Fouse, Felton, and Rohrer will be dismissed.
Second, DOC Defendants claim that Plaintiff has failed to comply with
Pennsylvania Rule of Civil Procedure 1042.3 (“Rule 1042.3”), by not filing a valid
certificate of merit with this medical malpractice claim against Defendant Driebelbis.
Rule 1042.3 provides, in pertinent part,
In any action based upon an allegation that a licensed professional
deviated from an acceptable professional standard, the attorney for the
As set forth in the amended complaint, Defendant Fisher is the Warden; Defendant
Hannah is the Deputy Warden; Defendant Fouse is the Safety Manager; Defendant Felton is the
Maintenance Manager; and Defendant Rohrer is the Food Service Manager. All Defendants were
employed at SCI-Smithfield during the events relevant to the amended complaint.
11
28
plaintiff, or the plaintiff if not represented, shall file with the complaint
or within sixty days after the filing of the complaint, a certificate of merit
signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement
that there exists a reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or work that is the
subject of the complaint, fell outside acceptable professional standards
and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional
standard is based solely on allegations that other licensed professionals
for whom this defendant is responsible deviated from an acceptable
professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
***
(d) The court, upon good cause shown, shall extend the time for filing a
certificate of merit for a period not to exceed sixty days. A motion to
extend the time for filing a certificate of merit must be filed by the
thirtieth day after the filing of a notice of intention to enter judgment of
non pros on a professional liability claim under Rule 1042.6(a) or on or
before the expiration of the extended time where a court has granted a
motion to extend the time to file a certificate of merit, whichever is
greater. The filing of a motion to extend tolls the time period within
which a certificate of merit must be filed until the court rules upon the
motion.
Pa. R. Civ. P. 1042.3(a), (d). The purpose of the required certificate of merit is to
“assure that malpractice claims for which there is no expert support will be terminated
29
at an early stage in the proceedings.” Chamberlain v. Giampapa, 210 F.3d 154, 160
(3d Cir. 2000).
Rule 1042.3(a) applies to both pro se and represented plaintiffs and constitutes
a rule of substantive state law with which plaintiffs in federal court must comply. See
Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007) (holding
that district courts must “appl[y] Rule 1042.3 as substantive state law”); Paige v.
Holtzapple, No. 1:08-cv-0978, 2009 WL 2588849, *3 (M.D. Pa. Aug. 19, 2009)
(citing Iwanejko, 249 F. App’x at 944); Fernandez v. Dep’t of Justice, No. 3:07-cv01080, slip op. at 10 (M.D. Pa. Sept. 2, 2008) (recognizing that the plaintiff’s pro se
status “is not a viable basis upon which to excuse compliance with Rule 1042.3 or the
requirement of com[i]ng forth with expert medical testimony”).
Failure to file a certificate of merit under Rule 1042.3(a) or a motion for an
extension under Rule 1042.3(d) is fatal unless the plaintiff demonstrates that his
failure to comply is justified by a “reasonable excuse.” Perez v. Griffin, 304 F. App’x
72, 74 (3d Cir. 2008); see also Walsh v. Consol. Design & Eng’g, Inc., No. Civ. A.
05-2001, 2007 WL 2844829, *5 (E.D. Pa. Sept. 28, 2007) (“Rule 1042.3 is subject to
equitable considerations and a party who fails to timely file a certificate of merit may
be relieved from the requirement where the defaulting party provides a reasonable
explanation or legitimate excuse.”).
30
In the instant case, Plaintiff has not provided the court with a certificate of
merit required by Rule 1042.3 as to Defendant Driebelbis. As a result, the medical
negligence claim against DOC Defendant Driebelbis will be dismissed.
In Medical Defendants’ motion to dismiss, they argue that Plaintiff cannot
sustain a claim of medical malpractice against them without the use of expert
testimony, as he has asserted in his certificate of merit.12 Under Pennsylvania law,
there are four elements to a prima facie case of medical malpractice: “(1) the
physician owed a duty to the patient; (2) the physician breached that duty; (3) the
breach of duty was the proximate cause of, or a substantial factor in, bringing about
the harm suffered by the patient; and (4) the damages suffered by the patient were a
direct result of that harm.” Hoffman v. Brandywine Hosp., 661 A.2d 397, 399 (Pa.
Super. Ct. 1995). Further, the plaintiff generally must present an expert who will
testify, to a reasonable degree of medical certainty, that the acts of the defendants
deviated from the acceptable medical standards, and that the deviation constituted a
substantial factor in causing the plaintiff’s injury. McCabe v. Prison Health Servs.,
117 F. Supp. 2d 443, 456 (E.D. Pa. 1997) (citing Mitzelfelt v. Kamrin, 584 A.2d 888,
After the court granted Plaintiff an extension of time, (see Doc. 26), Plaintiff filed a
certificate of merit as to Defendants Long, Doll, and Corizon on August 8, 2012, (Doc. 25). In the
certificate of merit, Plaintiff asserts that “expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim against referenced defendants.” (Id.)
12
31
892 (Pa. 1990)). This requirement of expert testimony stems from judicial concern
that, absent the guidance of an expert, jurors are unable to determine relationships
among scientific factual circumstances. McCabe, 117 F. Supp. 2d at 456 (citing
Brannan v. Lankenau Hosp., 417 A.2d 196, 199-200 (Pa. 1980)).
The only exception to the requirement of expert witness testimony in medical
malpractice claims is where the matter is “so simple, and 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.” Brannan, 417 A.2d at 201 (citations omitted); see
also Lambert v. Soltis, 221 A.2d 173, 176 (Pa. 1966) (stating that the exception
applies to cases where “the matter under investigation is [s]o simple, . . . [s]o obvious,
. . . for example, where a gauze pad is left in the body of a patient following an
operation” or “where a surgeon engaged in removing a tumor from a patient’s scalp
would let his knife slip and cut off a patient’s ear, or where he undertook to stitch a
wound on his patient’s cheek and by an awkward move would thrust his needle into
the patient’s eye”). Here, Plaintiff claims that Medical Defendants ignored his
complaints of lower back and leg pain and numbness, as well as denied him a
recommended cortisone treatment for pain. Plaintiff claims he is now permanently
disabled, no longer able to exercise, and must use a cane to walk, wear a neck brace,
and take medications daily for pain. Given Plaintiff’s claims of medical malpractice
32
related to this denial of care and resulting injuries, including a claim of permanent
disability, the court concludes that determining whether the decisions of Medical
Defendants to deny Plaintiff’s treatment were negligent and substantially caused
Plaintiff’s injuries, is not a matter within the competence of the ordinary layperson,
and, therefore, requires expert testimony. Plaintiff has no expert witness to testify on
his behalf. As a result, Medical Defendants’ motion to dismiss will be granted here
with prejudice and the medical malpractice claim against them will be dismissed.
IV.
Conclusion
For the reasons set forth above, the DOC Defendants’ motion to dismiss will be
granted in part and denied in part, with the following claims dismissed as follows: (1)
the Eighth Amendment conditions of confinement claim related to the dining hall
table will be dismissed as to Defendant Driebelbis; (2) the Eighth Amendment
medical-care deliberate indifference claim will be dismissed as to all DOC
Defendants; (3) the negligence claim related to the condition of the dining hall table
will be dismissed as to Defendant Driebelbis; and (4) the medical negligence claim
will be dismissed as to all DOC Defendants. As a result of the court’s disposition of
the DOC Defendants’ motion to dismiss, the following claims shall proceed
accordingly: (1) the Eighth Amendment conditions of confinement claim related to
33
the dining hall table shall proceed against DOC Defendants’ Fisher, Hannah, Fouse,
Felton, and Rohrer; (2) the Eighth Amendment conditions of confinement claim
related to the infirmary shall proceed against all DOC Defendants; (3) the negligence
claim related to the condition of the dining hall table shall proceed against DOC
Defendants’ Fisher, Hannah, Fouse, Felton, and Rohrer; and (4) the negligence claim
related to the conditions of the infirmary shall proceed against all DOC Defendants.
The Medical Defendants’ motion to dismiss will be granted in part and denied in part,
with the following claims dismissed as follows: (1) the Eighth Amendment conditions
of confinement claim related to the dining table will be dismissed as to all Medical
Defendants; (2) the Eighth Amendment medical-care deliberate indifference claim
will be dismissed as to all Medical Defendants; (3) Plaintiff’s claim of negligent
supervision will be dismissed as to all Medical Defendants; (4) the negligence claim
related to the condition of the dining hall table will be dismissed as to all Medical
Defendants; (5) the negligence claim related to the conditions of the infirmary will be
dismissed as to Defendant Corizon; and (6) the medical malpractice claim will be
dismissed as to all Medical Defendants. As a result of the court’s disposition of the
Medical Defendants’ motion to dismiss, the following claims shall proceed
accordingly: (1) the Eighth Amendment conditions of confinement claim related to
the infirmary shall proceed against Medical Defendants Doll and Long; and (2) the
34
negligence claim related to the conditions of the infirmary shall proceed against
Medical Defendants Doll and Long.
An appropriate order follows. In addition, a scheduling order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: January 8, 2014.
35
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