Wesley v. McCarthy et al
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL CLARENCE WESLEY,
KATHRYN K. MCCARTHY, MARK:
BAKER, and ALAN J. POPICK,
Hon. John E. Jones III
August 28, 2017
Plaintiff Daniel Clarence Wesley (“Wesley”), a Pennsylvania state inmate
incarcerated at the State Correctional Institution at Rockview, Bellefonte,
Pennsylvania, commenced this action on June 17, 2016, stating that “[t]his is a
certified complaint filed by Plaintiff, Daniel Clarence Wesley, a state prisoner for
damages and injunction 42 U.S.C. 1983, alleging that Defendants delayed
recommended surgeries of a colostomy reversal/hernia repair revision because of
cost in violation of my 8th Amendment right under the United States Constitution.”
(Doc. 1, p. 1).
Presently pending is a motion (Doc. 18) to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) filed on behalf of Defendants Dr. Mark Baker
(“Baker”) and Dr. John Popick (“Popick”), on the ground that the action is barred
by the doctrine of res judicata.1 For the reasons set forth below, the motion will be
On August 23, 2013, Wesley commenced a civil action pursuant to 42
U.S.C. § 1983, naming a number of defendants, including Defendants Baker and
Popick. (Wesley v. Wetzel, M.D. Pa. Civil No. 1:13-cv-2226, Doc. 1). In the
introduction section of the complaint, Wesley stated “[t]his is a civil action…for
damages and injunctive relief under 42 U.S.C. 1983, alleging defendants had actual
knowledge of the substantial risk of Danial Wesley[’s] colostomy condition and
delayed fixing the condition and deliberate indifference of his serious medical
needs in violation of the Eighth Amendment to the United States Constitution.”
(Id. at Doc. 1, p. 1). Wesley claimed that Baker and Popick were deliberately
indifferent in providing him medical treatment for his colostomy condition and in
not approving surgery to reverse the colostomy. (Id. at Doc. 1, ¶¶ 2-5, 7, 8, 10-16,
19, 24-27, 29, 30, 32-38, 40, 44, 47-53, 55-58). He also alleged that economic
considerations motivated the decision not to approve the surgery reversing the
colostomy. (Id. at Doc 1, ¶¶ 6, 9, 19, 28, 31, 39, 54, 62). The matter proceeded
through discovery and, on July 22, 2016, this Court issued a Memorandum and
Wesley also named Kathryn K. McCarthy as a defendant. An Order (Doc. 20) issued on
December 12, 2016, granting Defendant McCarthy’s motion to dismiss the complaint against
Order disposing of Defendants Baker and Popick’s motion for summary judgment.
(Docs. 164, 165). After thorough consideration of the record, this Court concluded
that Defendants Baker and Popick were not deliberately indifferent with respect to
the treatment of Wesley’s colostomy condition, including the decision not to
approve colostomy reversal surgery. Additionally, Wesley’s contention that the
decision not to approve the surgery was economically motivated was rejected as
wholly unsupported by the record. The Memorandum detailed the medical
treatment afforded Wesley over the course of approximately seven years and
addressed the rationale for the numerous treatment and surgical decisions made by
various medical providers during that time period. (Wesley v. Wetzel, M.D. Pa.
Civil No. 1:13-cv-2226, Doc. 164). An order issued granting Defendants Baker
and Popick’s motion for summary judgment and closing the case. (Id. at Doc.
165). Wesley did not appeal that decision.
He filed the instant complaint on June 17, 2016, reiterating the very claims
that were raised in his prior action, Wesley v. Wetzel, M.D. Pa. Civil No. 1:13-cv2226, Doc. 1).
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.
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).
In resolving a motion to dismiss, the court conducts a two-part analysis.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual
elements are separated from the legal elements and legal conclusions are
disregarded. Id. at 210–11. Second, the court determines whether the facts alleged
in the complaint are sufficient to show that the plaintiff has a “plausible claim for
relief.” Id. at 211.
“The doctrine of res judicata ‘protects litigants from the burden of
relitigating an identical issue with the same party or his privy and promotes judicial
economy by preventing needless litigation.’ ” Post v. Hartford Ins. Co., 501 F.3d
154, 169 (3d Cir. 2007), abrogated in part, on other grounds, by Doroshow v.
Hartford Life & Accident Ins. Co., 574 F.3d 230, 233–34 (3d Cir. 2009) (quoting
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)). Three elements are
required for the doctrine to take effect: (1) a final judgment on the merits must
have been rendered in a prior suit; (2) the same parties or their privies must have
been involved in both suits; and (3) the subsequent suit must have been based on
the same cause of action as the original. Lubrizol Corp. v. Exxon Corp., 929 F.2d
960, 963 (3d Cir. 1991). Each element is met in this case. First, an entry of
summary judgment is a final judgment on the merits for res judicata purposes. See
Hubicki v. ACF Inds., Inc., 484 F.2d 519, 524 (3d Cir. 1973) (finding that “the law
is clear that summary judgment is a final judgment on the merits sufficient to raise
the defense of res judicata in a subsequent action between the parties.”). Second,
Wesley is the plaintiff in both, and all of the defendants in the present action were
also defendants in Wesley v. Wetzel, M.D. Pa. Civil No. 1:13-cv-2226. Finally, the
same civil rights causes of action arising out of the treatment of Wesley’s
colostomy care and the decision not to perform colostomy reversal surgery are at
issue in both cases. And, to the extent that his present complaint can be construed
as raising issues not presented in Wesley v. Wetzel, M.D. Pa. Civil No. 1:13-cv2226, res judicata also gives dispositive effect to an issue that could have been
raised in the earlier proceeding, whether or not Plaintiff chose to do so. Corestates
Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 194 (3d Cir. 1999).
Accordingly, having found that there has been a prior judgment on the
merits in a suit involving Plaintiff and all Defendants seeking to assert res judicata,
and based on the same cause of action, the Court finds that Wesley’s action is
barred by res judicata.
Based on the foregoing, Defendants’ motion (Doc. 18) to dismiss will be
An appropriate Order will issue.
The Court recognizes that the sufficiency of this pro se pleading must be construed liberally in
favor of Wesley, 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). Clearly, affording Wesley an opportunity to amend under the
circumstances would be futile.
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