Merrion v. Corizon Health, Inc. et al

Filing 49

MEMORANDUM (Order to follow as separate docket entry) re. Pltf's MOTION to Strike 40 and the REPORT AND RECOMMENDATIONS 45 of MJ Blewitt.Signed by Honorable William W. Caldwell on 12/23/13. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

JAMES MERRION,
Plaintiff
v.
CORIZON HEALTH, INC., et al.,
Defendants.

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: CIVIL NO. 1:13-CV-1757
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MEMORANDUM
I.

Introduction
We are considering Plaintiff’s objections to the Report and

Recommendation of Magistrate Judge Blewitt (Doc. 45), which recommends that we
grant Plaintiff’s motion to strike Defendants’ Exhibit A (Doc. 37-1), and grant Defendants’
motion to dismiss in part, and deny it in part. Since objections were filed, we must “make
a de novo determination of those portions of the report or specified proposed finding or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
II.

Background
The magistrate judge’s report outlines the facts of this case, so we will not

reiterate them here.
III.

Discussion
A. Statute of Limitations
Plaintiff first objects to the magistrate’s finding that his Section 1983 claims

against Defendants Maxa, O’Rourke, Sherbine, and Parlavecchio (“SCI-Forest

Defendants”), should be dismissed as untimely. (Doc. 47 at 6-13). These claims arise
from Plaintiff’s confinement at SCI-Forest from April 2008 through May 2011. Plaintiff
agrees that the statute of limitations for Section 1983 actions is two years, but argues
that this limitations period was tolled by Pennsylvania’s discovery rule. The discovery
rule “tolls the statute of limitations when an injury or its cause was not known or
reasonably knowable ‘despite the exercise of due diligence.’” Lokuta v. Sallemi, No. 130288, 2013 WL 5570227, at *15 (M.D. Pa. Oct. 9, 2013) (Caputo, J.) (quoting Mest v.
Cabot Corp., 449 F.3d 502, 510, 516 (3d Cir. 2006)). While state law governs tolling
principles, federal law determines when a Section 1983 cause of action accrues. Id. at
*15-16. “Under federal law, a cause of action accrues, and the statute of limitations
begins to run, when the plaintiff knew or should have known of the injury upon which his
action is based.” Id. at *16.
Plaintiff argues that his claims against the SCI-Forest Defendants are
timely because he was not able to discover his injury until 2012, when the Columbia
County Correctional Facility’s medical staff ordered an MRI that revealed a large
cancerous spinal tumor. Conversely, Defendants contend that Plaintiff discovered his
injury in 2008, when he first complained of untreated severe back pain. (Doc. 37, at 6-7).
Ordinarily, under the discovery rule, “a plaintiff need not understand the
precise medical cause of his or her injury before the statute begins to run.” Harris v.
Arias, No. 10-848, 2013 WL 5777027, at *10 (E.D. Pa. Oct. 25, 2013). In order to take
advantage of the rule, a “[p]laintiff must have exercised reasonable diligence to uncover

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his injury and its cause, which may ‘require one to seek further medical examination as
well as competent legal representation.’” Id. at *10. The Eastern District of Pennsylvania
recently found that this burden of “reasonable diligence” is reduced where the plaintiff is
a prisoner. See Harris, 2013 WL 5777027 at *10-*12. In Harris v. Arias, the plaintiff, a
prisoner, suffered a traumatic eye injury in May 2005 that continued to worsen rather
than heal. Id. at *1. From the date of the injury until February 2008, the plaintiff
complained of serious eye pain and worsening blurred vision, but prison doctors
incorrectly attributed his symptoms to the old injury. Id. Eventually, in February 2008,
the plaintiff was taken to a hospital where he was diagnosed with steroid-induced
glaucoma, which had already caused permanent vision loss. Harris, 2013 WL 5777027
at *1. Plaintiff filed suit in January 2010, and defendants argued that the suit was timebarred because plaintiff’s claims were based on an injury that occurred more than two
years earlier. Finding that the lawsuit was timely filed, the court reasoned that, while
“‘unrebutted suspicion’ that one has suffered an injury caused by another will often be
sufficient by itself to start the limitations clock . . . ,” that suspicion can be overcome by
“repeated assurances that the treatment and monitoring [one] was receiving was
appropriate.” Id. at *11 (citing Debiec v. Cabot Corp., 352 F.3d 117, 132 (3d Cir. 2003);
Bohus v. Beloff, 950 F.2d 919, 922-23, 926 (3d Cir. 1991)). “To hold . . . that Plaintiff
should have nonetheless been aware enough of his injury and its cause to trigger the
statute of limitations would run afoul of the general rules that ‘lay persons should not be

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charged with greater knowledge of their physical condition than that possessed by the
physicians on whose advice they must rely . . . .” Id. The court concluded that,
Plaintiff’s status as an inmate meant that he could not simply
receive a second opinion from an outside doctor. He was
limited to seeing the doctors that the prison allowed him to see.
Even if we were to view the record in the light most favorable to
the Defendants, Plaintiff’s repeated requests for more
information from prison doctors, including his filing of multiple
grievances and demands for appropriate follow-ups, satisfied his
duty of reasonable diligence as a matter of law.
Harris, 2013 WL 5777027 at *12. The Harris case is remarkably similar to
the one before us. Plaintiff discussed his symptoms with the SCI-Forest Defendants on
at least ten occasions between April 2008 and February 2011. (Doc. 35, ¶ 31).
Defendants diagnosed him with spasms and prescribed Motrin and Flexeril. (Doc. 35, ¶
33). In May 2011, Plaintiff was transferred to SCI-Mahanoy, where he continued seeking
treatment for the pain, and was told to rest. (Doc. 35, ¶ 34). Plaintiff was released from
state custody and transferred to a county jail in 2012. (Doc 35, ¶ 43). He discussed his
symptoms with the medical staff there, and in August 2012, they ordered an MRI that
revealed the true cause of Plaintiff’s pain. (Doc. 35, ¶ 46). It appears that Plaintiff
exhausted the medical providers available to him in prison. He sought treatment at every
correctional facility where he was housed. Presented with this scenario, we are
persuaded by the reasoning of Harris, and find that Plaintiff’s repeated complaints to
Defendants about his persistent back pain satisfied his duty of reasonable diligence
under the discovery rule. Accordingly, we conclude that the statute of limitations did not

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begin to run until Plaintiff learned the results of the August 2012 MRI. Plaintiff’s claims
against the SCI-Forest Defendants are therefore timely.1
Since the magistrate judge did not reach the merits of Defendants’ motion
to dismiss the claims against the SCI-Forest Defendants, we must address whether
Plaintiff has properly stated a claim under Section 1983 for deliberate indifference to his
serious medical needs.
Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim
upon which relief can be granted.” Under Rule 12(b)(6), we must “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.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). “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.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988) (internal citations omitted). To state a claim for deliberate indifference, Plaintiff
must show that he had a serious medical need, and that prison officials were deliberately
indifferent to that need. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d

1. Plaintiff also objects to the portion of the magistrate judge’s report that finds the
continuing violation doctrine inapplicable to Plaintiff. (Doc. 47 at 7-13). Because our
resolution of the discovery rule objection is dispositive on the issue of timeliness, we
need not address Plaintiff’s objection regarding the continuing violation doctrine.
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Cir. 2003). “A prison official acts with deliberate indifference . . . when ‘he knows of and
disregards an excessive risk to inmate health and safety . . . .” Id. (citing Farmer v.
Brennan, 511 U.S. 825 (1994)).
Examining the allegations in Count I, we find that Plaintiff’s claims against
the SCI-Forest Defendants survive the motion to dismiss. Plaintiff alleges that he
complained of severe pain that presented a serious risk to his health, and that
Defendants “disregarded that risk by failing to take reasonable measures to abate it.”
(Doc. 35, ¶ 53). Plaintiff has alleged the personal involvement of each of the SCI-Forest
Defendants. (Doc. 35, ¶ 31). Therefore, we will reject the portion of the magistrate
judge’s report recommending dismissal of the claims against these Defendants.
B. Claims Against Prison Health Services, Inc., and PHS Correctional
Healthcare
Next, Plaintiff objects to the portion of the magistrate’s report that
recommends we dismiss the claims against Prison Health Services, Inc. (“Prison Health
Services”), and PHS Correctional Healthcare (“PHS”). Plaintiff avers that from 2008
through 2011, the state of Pennsylvania contracted with Prison Health Services and PHS
to provide health care for prison inmates. Because the magistrate found that Plaintiff’s
claims from 2008 through 2011 were time-barred, the magistrate recommended that the
claims against these institutional defendants be dismissed. Since we find Plaintiff’s
claims are timely, we will reject the portion of the report recommending dismissal of
Prison Health Services and PHS.

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C. Vicarious Liability
Last, Plaintiff objects to the magistrate’s finding that Corizon Health cannot
be held vicariously liable for the conduct of its employees. (Doc. 45, at 28). “While
plaintiff agrees that this [is true in regard to] plaintiff’s § 1983 claim, plaintiff also raises a
claim of professional negligence under Pennsylvania state law. In this context, Corizon
(and PHS) are vicariously liable for the negligent acts of their employees.” (Doc. 47, at
20). Reviewing the report, we find that the magistrate was referring only to Plaintiff’s
Section 1983 action when discussing the issue of vicarious liability. While we
acknowledge Plaintiff’s objection, it is mooted by the fact that the magistrate did not
conclude that Corizon could escape vicarious liability on the state law negligence action.
IV.

Conclusion
For the reasons stated above, we will adopt the magistrate judge’s report in

part, and reject it in part. We will issue an appropriate order.

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