Wisniewski v. Frommer et al
ORDER: 1. The Court ADOPTS the R and R 56 , of M.J. Carlson;2. The CCS Dfts Mtn to Dismiss 40 , is GRANTED in part and DENIED in part;3. The DOC Dfts Mtn to Dismiss 44 , is GRANTED in part and DENIED in part;4. The federal claims asserted in Pltfs Second Amended Complaint (Count II),are DISMISSED WITH PREJUDICE;5. The remaining state law claims in the Second Amended Complaint (Counts I, III, and IV), are REMANDED back to the Huntington County Court of CommonPleas; and6. The Clerk of Court is directed to CLOSE the case.Signed by Honorable Yvette Kane on 8/31/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES F. FROMMER, JR., D.O., et al.,
(Magistrate Judge Carlson)
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Presently before the Court in the above-captioned action is the July 28, 2017 Report and
Recommendation of Magistrate Judge Carlson (Doc. No. 56), recommending that the Court grant
the motions to dismiss the federal claims in Plaintiff Thomas Wisniewski’s Second Amended
Complaint (“SAC”), filed by Defendants Frommer, Dancha, Cutshall, and Correct Care
Solutions, Inc. (the “CCS Defendants”) (Doc. No. 40), and Defendants Dreibilbis, Noel,
Ginchereau, Montag, White, Norris, Silva, Oppman, and the Department of Corrections (the
“DOC Defendants”) (Doc. No. 44), and decline to exercise supplemental jurisdiction over the
remaining state law claims in Plaintiff’s SAC. This lawsuit stems from a challenge by Plaintiff,
an inmate at the State Correctional Institution at Smithfield, Pennsylvania (“SCI-Smithfield”), to
the Defendants’ treatment of his chronic back pain. On August 10, 2017, Plaintiff filed
Objections to the Report and Recommendation. (Doc. No. 57.) On August 11, 2017, the CCS
Defendants filed a Response to Plaintiff’s Objections. (Doc. No. 58.) On August 21, 2017, the
DOC Defendants filed a brief in support of the Report and Recommendation (Doc. No. 59), to
which Plaintiff responded on August 21, 2017 (Doc. No. 60).
While Plaintiff asserts three objections to the Report and Recommendation, the Court
need only address Plaintiff’s first objection, as it is the only one relevant to the Court’s
disposition of the pending Report and Recommendation.1 Plaintiff takes issue with Magistrate
Judge Carlson’s conclusion that Plaintiff’s SAC fails to state a claim for deliberate indifference
to serious medical needs under the Eighth Amendment, arguing that Magistrate Judge Carlson
mistakenly characterizes Plaintiff’s Eighth Amendment claim as one based on Plaintiff’s dispute
with the medical treatment provided by the Defendants. (Doc. No. 57 at 2-5.) Instead, Plaintiff
argues that the SAC sets forth a claim of complete failure to treat Plaintiff’s serious medical
needs, as opposed to his disagreement with the medical treatment provided by the Defendants,
which he maintains suffices to state a claim under the Eighth Amendment and 42 U.S.C. § 1983.
Under prevailing Third Circuit standards, to determine the sufficiency of a complaint
when ruling on a motion to dismiss for failure to state a claim, the Court must: (1) identify the
elements a plaintiff must plead to state a claim; (2) identify any conclusory allegations contained
in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “wellpleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to
relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and
quotation marks omitted).
A claim for a violation of the Eighth Amendment arises when prison officials are
Plaintiff’s second and third objections principally take issue with Magistrate Judge
Carlson’s summary of the procedural posture of this case, and his recommendation that, in the
context of the Court declining to exercise supplemental jurisdiction over Plaintiff’s state law
claims, the Court should dismiss those state law claims without prejudice to Plaintiff’s ability to
refile them in state court. (Doc. No. 57 at 5-10.)
deliberately indifferent to a prisoner’s serious medical needs by “intentionally denying or
delaying access to medical care or interfering with the treatment once prescribed.” Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). To sustain this constitutional claim, “a plaintiff must make
(1) a subjective showing that ‘the defendants were deliberately indifferent to [his or her] medical
needs’ and (2) an objective showing that ‘those needs were serious.’” Pearson v. Prison Health
Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999)). Further, as stated by the Third Circuit, “there is a critical distinction ‘between cases
where the complaint alleges a complete denial of medical care and those alleging inadequate
medical treatment.’” Pearson, 850 F.3d at 535 (quoting United States ex. rel. Walker v. Fayette
Cty., 599 F.2d 573, 575 n. 2 (3d Cir. 1979)). This is so because “‘mere disagreement as to the
proper medical treatment’ does not ‘support a claim of an eighth amendment violation.’” Id.
(quoting Monmouth Cty. Corr. Inst. v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)).
Here the relevant dispute is whether the factual allegations of Plaintiff’s SAC suffice to
state a claim of complete denial of medical care or whether they state a claim of inadequate
medical treatment. Despite Plaintiff’s argument that medical treatment for his chronic back pain
was discontinued abruptly on August 4, 2015 and not resumed until June 28, 2016 (Doc. No. 57
at 3), the well-pled facts of the SAC belie this broad conclusory statement contained in
Plaintiff’s objections and similar ones contained in the SAC. Rather, the facts of Plaintiff’s SAC
reveal that Plaintiff’s treatment protocol for his chronic back pain was altered in early August
2015 after Defendant Frommer, in his capacity as an employee of Defendant CCS, a private
company contracted to provide medical services for inmates at SCI-Smithfield, became the new
medical director at that institution. (Doc. No. 28, SAC ¶¶ 5, 112, 132.) The SAC alleges that
Defendant Frommer, after a clinical encounter with Plaintiff, informed him that he would not
renew the narcotic pain medication (Ultram) Plaintiff had previously been prescribed for his
chronic back pain; instead, Defendant Frommer recommended that Plaintiff use Motrin for pain
relief. (Id. at ¶¶ 132-33.) In light of these well-pled factual allegations, and taking into
consideration the fact that conclusory allegations contained in a complaint are “not entitled” to
the assumption of truth, see Santiago, 629 F.3d at 130, the Court finds no error in Magistrate
Judge Carlson’s conclusion that Plaintiff’s SAC fails to state a claim under the Eighth
Amendment for deliberate indifference to serious medical needs.
Accordingly, upon review of the pending Report and Recommendation, Plaintiff’s
Objections, the CCS Defendants’ Response, the DOC Defendants’ brief in support of the Report
and Recommendation, Plaintiff’s Response thereto, and the SAC, as well as the applicable law,
the Court will adopt Magistrate Judge Carlson’s Report and Recommendation insofar as it
contemplates granting the CCS Defendants’ and the DOC Defendants’ motions to dismiss the
Eighth Amendment claims asserted against them, and declining to exercise supplemental
jurisdiction over the remaining state law claims in Plaintiff’s SAC.
AND SO, on this 31st day of August 2017, upon independent review of the record and
the applicable law, IT IS ORDERED THAT:
The Court ADOPTS the Report and Recommendation (Doc. No. 56), of
Magistrate Judge Carlson;
The CCS Defendants’ Motion to Dismiss (Doc. No. 40), is GRANTED in part
and DENIED in part;
The DOC Defendants’ Motion to Dismiss (Doc. No. 44), is GRANTED in part
and DENIED in part;
The federal claims asserted in Plaintiff’s Second Amended Complaint (Count II),
are DISMISSED WITH PREJUDICE;
The remaining state law claims in the Second Amended Complaint (Counts I, III,
and IV), are REMANDED back to the Huntington County Court of Common
The Clerk of Court is directed to CLOSE the case.
s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania
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