Buttolph v. PrimeCare Medical Inc. et al
Filing
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MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEVEN C. BUTTOLPH,
Plaintiff,
v.
PRIME CARE MEDICAL INC.,
et al.,
Defendants.
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:
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1:16-cv-0325
Hon. John E. Jones III
MEMORANDUM
February 28, 2017
Steven C. Buttolph (“Buttolph” or “Plaintiff”), at all relevant times, an
inmate incarcerated at the Perry County Prison, New Bloomfield, Pennsylvania,
filed this civil rights action pursuant to 42 U.S.C. § 1983, on February 22, 2016,
naming as defendants PrimeCare Medical Inc. (“PrimeCare”), Carl A. Hoffman,
D.O. (“Hoffman”), and Tanya Schisler, PA (“Schisler”). (Doc. 1).
Pending is Defendants’ motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion will
be granted.
I.
STANDARD OF REVIEW
A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
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Twombly, 550 U.S. 544 (2007). In reviewing the legal sufficiency of a complaint,
the Court must accept the truth of the factual allegations. Morrison v. Madison
Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). Notably,
the assumption of truth is inapplicable to legal conclusions or to “[t]hreadbare
recitals of the elements of a cause of action supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678. The controlling question is whether the
complaint “alleges enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 555 (rejecting the “no set of facts” language from
Conley v. Gibson, 355 U.S. 41, 45-46 (1957) and requiring plaintiffs to allege facts
sufficient to “raise a right to relief above the speculative level”); see also Iqbal,
556 U.S. at 678 (explaining that Rule 8 requires more than “an unadorned, thedefendant unlawfully-harmed-me accusation”); see also FED. R. CIV. P. 8(a)
(stating that the complaint should include “a short and plain statement of the claim
showing that the pleader is entitled to relief”).
Although the court is generally limited in its review to the facts contained in
the complaint, it “may also consider matters of public record, orders, exhibits
attached to the complaint and items appearing in the record of the case.” Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see
also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
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II.
ALLEGATIONS OF THE COMPLAINT
Buttolph alleges that on January 11, 2009, at initial intake screening at the
Perry County Prison it is noted that he suffers from hemorrhoids and is prescribed
Proctosol Hemorrhoid cream. (Doc 1, p. 3, ¶ 2 (a); p. 11). On September 21,
2010, he complained of “extremely painful, swollen hemorrhoids.” (Id. at 2(b); p.
12). Defendant Schisler examined him on September 29, 2010 and infoms him she
can “lance them to relief pressure and pain.” (Id.at 2(c); pp. 13, 14). Buttolph
agrees to the procedure, but in hindsight questions the unhygienic nature of the
facility. (Id. at 2(c)). The medical notes indicate that the medical personnel
cleansed the area with betadine, lanced he hemorrhoid, and cleansed the area again,
and applied a dressing. (Id. at 14). Buttolph sought medical attention for his “back
to the painful condition” hemorrhoids on November 15, 2010, January 27, 2011
and April 7, 2011. (Id. at 2(d), (e); pp. 15-17). On April 20, 2011, Buttolph is
seen by Schlisler, who documents that he is suffering from “severe hemorrhoids.”
(Id. at 2(f); p. 18). On a June 8, 2011 visit, Schisler notes the recurrent nature of
Buttolph’s hemorrhoids. (Id. at 2(g); p. 21). Buttolph continued treatment
throughout 2011and 2012, and, on September 5, 2012, Schisler indicated “cont
concerns re: bleeding, enlarged hemorrhoids x years.” (Id. at 2(h)-(k); pp. 22-26).
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On February 20, 2013, Thomas Weber, purportedly a representative of the
Perry County Prison, sent an email to Buttolph’s attorney with the subject “Steve
Buttolph’s health,” stating “[y]our client is suffering from hemorrhoids which
apparently he would like surgically repaired. However, that is an elective
procedure that can wait until his discharge.” (Id. at 2(l); p. 27).
“Mid year 2013, Tanya Schisler, P.A.C. is replaced by Paul Navarro,
CRNP.” (Id. at 2(m)). On August 11, 2013, Buttolph writes to medical stating his
hemorrhoids are “completely swollen shut”, he’s suffering “severe pain” and he
thinks “elective is out the door.” (Id. at 2(n); p. 28). He continues treating for the
hemorrhoid condition, inter alia, and, on December 11, 2013, Navarro informs him
that he will notify a specialist about his hemorrhoid condition. (Id. at 2(o) – (q);
pp. 29-31). On December 23, 2013, he is informed that he will be seen for a
surgical consult. (Id. at 2(q); p. 31).
On January 6, 2014, Buttolph is seen by a surgeon who allegedly informs
him that “the only remedy for your situation is surgery.” (Id. at 2(r); p. 31). On
January 23, 2014, the surgeon confirms that Buttolph suffers from “rectal bleeding
and significant external hemorrhoidal disease” and surgically removes two of three
hemorrhoids. (Id. at 2(s); p. 33). The surgeon “did not take off the third
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hemorrhoidal pillar in risk of having significant stricture. This can be done at a
later date when Mr. Buttolph heals.” (Id.)
Buttolph alleges that the above timeline, as well as Schisler’s “admittance on
medical records” demonstrates that Schisler subjected him to cruel and unusual
punishment and “unnecessary and wanton infliction of pain for a time period
exceeding four years.” (Id. at p. 5). And, “by not sending plaintiff to a specialist,
PAC Schisler chose instead to inflict upon plaintiff a reckless disregard of a
substantial risk of harm.” (Id.).
Buttolph further alleges that Defendant Hoffman “was the direct supervisor
of Tanya Schisler, P.A.C. and knowingly allowed her to subject plaintiff to chronic
and substantial pain due to a serious medical need that he was aware of” and
“signed off on all actions taken by PAC Schisler.” (Id. at p. 5, ¶ 3 “Defendant #
3”). He contends that “As the supervisor of PAC Schisler Dr. Hoffman is held
accountable for all actions taken or not taken by her. He is directly responsible for
all of the medical personnel that are under his supervision at Perry County Prison
and he is responsible for all medical files that he personally signs off on. Dr.
Hoffman has made himself culpable to the deliberate indifference resulting in cruel
and unusual punishment to plaintiff.” (Id.)
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Buttolph also alleges that “[a]s employers of PAC Schisler and Dr. Hoffman,
Primecare Medical Inc is directly responsible and liable for any and all actions
taken or not taken by its medical personnel. It is Primecare Medical Inc.’s
responsibility to make sure its employees uphold all Constitutional Law’s [sic]
when caring for patients.” (Id. at pp. 2-3, ¶ 1 “Defendant #1”).
III.
DISCUSSION
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. §
1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a
plaintiff must allege “the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
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Defendants seek to dismiss the complaint as barred by the statute of
limitations. A court may dismiss a complaint for failure to state a claim, based on
a time-bar, where “the time alleged in the statement of a claim shows that the cause
of action has not been brought within the statute of limitations.” Bethel v. Jendoco
Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (citation omitted). A
claim brought pursuant to 42 U.S.C. § 1983 is subject to the same statute of
limitations that applies to personal injury tort claims in the state in which such a
claim arises. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Kach v. Hose, 589
F.3d 626, 639 (3d Cir. 2009). Buttolph’s claim arose in Pennsylvania; thus, the
applicable statute of limitations is Pennsylvania’s two year statute of limitations for
personal injury actions. 42 PA. CONS. STAT. ANN. § 5524(2). The statute of
limitations period accrues when the plaintiff knows or has reason to know of the
injury which is the basis of the section 1983 action. See Garvin v. City of Phila.,
354 F.3d 215 (3d Cir. 2003); Genty v. Resolution Trust Corp., 937 F.2d 899, 919
(3d Cir.1991).
Defendants argue that the claim accrued, at the latest, mid-year 2013, when
Defendant Schisler’s involvement ended. (Doc. 15, p. 13). In an effort to toll the
statute of limitations, Buttolph invokes the fraudulent concealment exception.
Specifically, he argues that subsequent to the Schisler’s lancing of the
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hemorrhoids, he endured excruciating pain and bleeding for many years and that he
“he continued to request medical assistance to his serious medical needs but
Primecare Medical led him to believe his condition was not serious and that it was
an elective procedure.” (Doc. 25, p. 7). It is his position that his claim accrued as
the date of his surgery, January 23, 2014.
The fraudulent concealment exception allows tolling of the statute of
limitations when the defendant, through an independent affirmative act of
concealment, causes the plaintiff to relax his vigilance or deviate from his right of
inquiry through fraud or concealment. Baselice v. Franciscan Friars Assumption
BVM Province, Inc., 879 A.2d 270, 278 (Pa.2005). It does not render the statute
of limitations inoperable. Rather, the statute of limitations begins to run as the
plaintiff, exercising reasonable diligence, knew or should have known of the injury
and its cause. Bohus v. Beloff, 950 F.2d 919, 926 (3d Cir. 1991); Urland By and
Through Urland v. Merrell–Dow Pharmaceuticals, Inc., 822 F.2d 1268, 1274 (3d
Cir.1987). Notably, reliance on the defendant’s conduct when the plaintiff has
reason to believe otherwise is not reasonable reliance and will not toll the statute of
limitations. DeMartino v. Albert Einstein Medical Center, Northern Div., 313
Pa.Super. 492, 460 A.2d 295, 301-02 (1983); see also, In re TMI, 89 F.3d 1106,
1117 (3d Cir. 1996) (denying tolling of the statute of limitations under the doctrine
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of fraudulent concealment where significant amounts of information about the
Three Mile Island incident were freely available to the public such that it was no
longer reasonable to rely solely on statements made by the defendants).
Buttolph’s knowledge of the seriousness of his medical condition is evident
in his August 11, 2013 requests slip wherein he seeks medical care because his
“hemorrhoids are swollen shut” and he remarks “I think elective [surgery] is out
the door.” (Doc. 1, p. 28). He seeks treatment on four subsequent dates in 2013,
and is informed on December 23, 2013, by CRNP Navarro that he is scheduled for
a surgical consult on January 6, 2014. (Id. at ¶¶ 2 (n)-(q); pp. 30-31). On January
6, 2014, “he sees the specialist and that “[w]hen specialist first look ‘before
touching’ he stated I can see the only remedy for your situation is surgery. He
them [sic] did a full exam with the same conclusion. He states severe
hemorrhoids.” (Doc. 1, ¶ 2(r); pp. 31-32). Based on the above allegations, even
fully accepting Buttolph’s argument that the seriousness of his condition was
fraudulent concealed, as evidenced by the February 20, 2013 email to Buttolph’s
attorney, there can be no doubt that, at this point, on this date, he knew or should
have known the full extent of his condition. As such, the Court concludes that his
claim accrued, at the very latest, on January 6, 2014.
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This action was commenced on February 16, 2016, the date on which the
complaint was signed and presumably delivered to prison authorities for mailing;
approximately forty days after the statute of limitations expired. Houston v. Lack,
487 U.S. 266 (1988) (holding that that date on which a prisoner delivers documents
to prison authorities for mailing is considered the filing date). (Doc. 1, p. 8).1 The
complaint is clearly untimely. Defendants’ motion to dismiss will be granted and
the complaint will be dismissed in its entirety.
IV.
LEAVE TO AMEND
The Court recognizes that the sufficiency of this pro se pleading must be
construed liberally in favor of Buttolph, even after Iqbal. See Erickson v. Pardus,
551 U.S. 89 (2007). The federal rules allow for liberal amendments in light of the
“principle that the purpose of pleading is to facilitate a proper decision on the
merits.” Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal
quotations omitted). Consequently, a complaint should not be dismissed with
prejudice for failure to state a claim without granting leave to amend, “unless such
an amendment would be inequitable or futile.” Phillips, 515 F.3d at 245 (citing
Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In the matter sub judice,
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Even if the Court liberally considered the January 10, 2016 filing date of Buttolph’s prior
medical malpractice and negligence action, Civil No. 1:16-cv-0072, to be the governing filing
date of this action, the complaint would still be untimely. See Houston, 487 U.S. 266.
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allowing Buttolph leave to amend would be futile as the matter is clearly barred by
the statute of limitations.
V.
STATE LAW CLAIMS
District courts may decline to exercise supplemental jurisdiction where:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c)(1–4). Since the claims that form the basis of this Court’s
jurisdiction under 42 U.S.C. § 1983 will be dismissed, the court declines to
exercise supplemental jurisdiction over Buttolph’s state law claims.
VI.
CONCLUSION
Based on the foregoing, Defendants’ motion (Doc. 14) to dismiss will be
granted.
An appropriate Order will issue.
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