Nealman v. Laughlin et al

Filing 59

ORDER GRANTING Mifflin Co defts' MTD 53 to extent it seeks dismissal of Count 3 against Nurse Walters & Counselor Conner but otherwise DENYING same, & DISMISSING Count 3 of 2nd amended complaint against Nurse Walters & Counselor Conner. (See order for complete details.)Signed by Chief Judge Christopher C. Conner on 7/24/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TAWNA Z. NEALMAN, as the
Personal Representative of the Estate
of Benjamin Shelley Nealman,
Plaintiff
v.
RYAN P. LAUGHLIN, et al.,
Defendants

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CIVIL ACTION NO. 1:15-CV-1579
(Chief Judge Conner)

ORDER
AND NOW, this 24th day of July, 2017, upon consideration of the motion
(Doc. 53) of Nurse Tiffanie Wert (“Nurse Wert”), Nurse Carla Walters (“Nurse
Walters”), and Counselor Marlin Conner (“Counselor Conner”) (collectively, the
“Mifflin County defendants”) to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), filed October 28, 2016, in which the Mifflin County defendants
assert that plaintiff Tawna Z. Nealman (“Nealman”) fails to state a medical
negligence claim against Nurses Wert and Walters and Counselor Conner, (see Doc.
54 at 2-6), and wherein the Mifflin County defendants contend that the
Pennsylvania Political Subdivision Tort Claims Act (“the Act”), see 42 PA. STAT. AND
CONS. STAT. ANN. §§ 8541 et seq., bars Nealman’s medical negligence claim in toto,
and the court observing that the Act immunizes employees of political subdivisions
from negligence liability if they act within the scope of their employment and are
not subject to a specific exemption, see id. at §§ 8542, 8545, 8546, 8550; (see also Doc.
54 at 2-6), but that the Act specifically exempts from its protections public

employees who cause injury through conduct which “constitute[s] a crime, actual
fraud, actual malice or willful misconduct,” 42 PA. STAT. AND CONS. STAT. ANN.
§ 8550,1 and the court having previously concluded that Nealman “fail[ed] to state
any wrongdoing on the part of” Nurse Walters and Counselor Conner, Nealman v.
Laughlin, No. 1:15-CV-1579, 2016 WL 4539203, at *13 (M.D. Pa. Aug. 31, 2016), but
that Nealman’s first amended complaint (Doc. 32) set forth sufficient allegations to
establish a plausible claim of willful misconduct against Nurse Wert, Nealman, 2016
WL 4539203, at *13 & n.7, which finding precluded Nurse Wert from invoking the
Act’s protections anent Nealman’s medical negligence claim, id., and it appearing
that the factual basis undergirding Nealman’s claims has not changed with the
filing of Nealman’s second amended complaint, (Doc. 52), and that there is no basis
for the court to depart from its prior holding that the allegations of willful
misconduct allow both state law tort claims against Nurse Wert, individually, to
proceed, see Nealman, 2016 WL 4539203, at *13 n.7, it is hereby ORDERED that:

1

The Mifflin County defendants base their immunity argument in § 8542(b) of
the Act. (Doc. 57 at 2-4). Section 8542(b) enumerates eight categories of acts for
which the state has waived local agency immunity. 42 PA. STAT. AND CONS. STAT.
ANN. § 8542(b). The Mifflin County defendants contend that medical negligence is
not an enumerated exception. (Id.) As the court previously held, Nealman’s claims
invoke the willful misconduct exemption for individual liability rather than an
enumerated exception to agency liability. See Nealman, 2016 WL 4539203, at *13
n.7. Whether the probata ultimately substantiate Nealman’s allegata as pertains
willful misconduct by Nurse Wert will be determined following discovery.
2

1.

The Mifflin County defendants’ motion (Doc. 53) to dismiss is
GRANTED to the extent it seeks dismissal of Count 3 against Nurse
Walters and Counselor Conner but is otherwise DENIED.

2.

Count 3 of Nealman’s second amended complaint (Doc. 52) is
DISMISSED against Nurse Walters and Counselor Conner.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania