Hayward v. Hershey Medical Center et al

Filing 37

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA HAYWARD,
Plaintiff,
v.
HERSHEY MEDICAL CENTER,
et al.,
Defendants.

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1:16-cv-2555
Hon. John E. Jones III

MEMORANDUM
January 17, 2018
Plaintiff Patricia Hayward (“Hayward”), a state inmate who, at all times
relevant, was incarcerated at the State Correctional Institution at Muncy,
Pennsylvania, commenced this action on December 28, 2016. (Doc. 1).
Pending before the Court are motions to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) filed by Defendant Hershey Medical Center (“Hershey
Medical”) (Doc. 21) and Defendant Dr. Landsberg (“Dr. Landsberg”) (Doc. 24).
Hershey Medical filed its supporting brief on April 4, 2017 (Doc. 22), and Dr.
Landsberg filed his brief in support on April 19, 2017 (Doc. 27). Hayward failed
to respond or oppose the motions in any manner. On June 12, 2017, the Court
directed Hayward to oppose the motions on or before June 30, 2017, and advised
her that the failure to do so would result in the motions being deemed unopposed.
(Doc. 30). Hayward neither opposed the motions nor sought an enlargement of

time in which to do so. For the reasons set forth below, the motions to dismiss will
be deemed unopposed and granted.
Additionally, for the reasons set forth below, the Court concludes that the
complaint against Dr. Davis is subject to dismissal pursuant to 28 U.S.C.
1915(e)(2)(B)(ii).
I.

STANDARDS OF REVIEW
A.

Rule 12

In rendering a decision on a motion to dismiss, a court should not inquire
“whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must accept as
true the factual allegations in the complaint and draw all reasonable inferences
from them in the light most favorable to the plaintiff. Innis v. Wilson, 334 F.
App’x 454, 456 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d
224, 229 (3d Cir. 2008)). A district court ruling on a motion to dismiss may
consider the facts alleged on the face of the complaint, as well as “documents
incorporated into the complaint by reference, and matters of which a court may
take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007).
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However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”). “First, the
factual and legal elements of a claim should be separated.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Second, the court must then
determine whether the complaint states a plausible claim for relief, which is “a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 211 (citing Iqbal, 556 U.S. at 679); see also
28 U.S.C. § 1915A(b) (directing the court to identify cognizable claims and to
dismiss any portion of the complaint that fails to state a claim). “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not ‘show[n]’ -- ‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679; Fed. R. Civ. P. 8(a)(2).
B.

Section 1915

Section 1915(e)(2)(B)(ii), which pertains to in forma pauperis proceedings
states, in pertinent part, “the court shall dismiss the case at any time if the court
determines that…the action or appeal…fails to state a claim on which relief may
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be granted.” 28 U.S.C. §1915(e)(2)(B)(ii). The applicable standard of review for
is the same as the standard for a motion pursuant to 12(b)(6) of the Federal Rules
of Civil Procedure, which provides for the dismissal of complaints that fail to state
a claim upon which relief can be granted.
II.

ALLEGATIONS OF THE COMPLAINT
Hayward alleges that on March 14, 2014, she indicated to Dr. Lansberg that

she was in pain and leaking urine into her stool. (Doc. 1, p. 2). She was sent to
“Geisinger who has said nothing was wrong then he referred me to Dr. Davis @
Hershey Medical Center.” (Id. at 1, 2). She was diagnosed with a prolapsed
bladder and prescribed eight weeks of therapy. (Id. at 2). Dr. Davis referred her to
a therapist at Geisinger Medical Center. (Id.) She completed the therapy. (Id.)
A year later, she complained that she “could not hold her bowel” and was in pain.
(Id. at 3). Dr. Landsberg purportedly informed her that the wrong therapy was
administered the prior year. (Id.) Dr. Landsberg ordered additional therapy, which
Hayward completed. (Id.)
On January 19, 2015, Hayward alleges that she was taken to the infirmary at
11:00 p.m. and given “two cups of sterilizer to get [her] body preped [sic]” and the
nurse allegedly stated “I don’t know if I’m suppose [sic] to prep her there’s no
chart for her.” (Id.)
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On January 20, 2016, she allegedly was “sent out for surgery.” (Id.) On
February 18, 2016, she was seen by Dr. Landsberg for a check-up. (Id.) She
alleges that despite the fact that she informed Dr. Landsberg that nothing was to be
inserted in her vagina for two months, he performed an internal examination which
caused her to scream. (Id.) She later went to sick call due to blood leaking from
her vagina and it was discovered that the stitches were broken. (Id.) She states
that Dr. Landsberg “told [her] not to come back for 1 year[.] [H]e said I heard your
surgery wasn’t successful[.] Get on the table for an internal[.] [She] said no &
grieved him.” (Id.)
She alleges that during her March 18, 2016 appointment with Dr. Davis, she
informed him of the “painful visit with Dr. Lansberg [sic] for an internal…” (Id. at
4). Dr. Davis indicated that he would speak to Dr. Landsberg. (Id.) He did not
examine her. (Id.)
In the “Relief” section of the pleading Hayward indicates that her problems
are ongoing and states “I believe they should pay for mental anguish, lack of
medical care, pain & suffering, embarrasment [sic], post[-]traumatic stress[.]” (Id.)
III.

DISCUSSION

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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).
Thus, § 1983 limits liability to persons who violate constitutional rights.
A.

Hershey Medical
1.

Constitutional Claim

Hershey Medical argues that “Plaintiff has not pled any facts that would
establish or otherwise suggest that the Moving Defendant acted under color of state
law.” (Doc. 22, p. 15). To state a claim under 42 U.S.C. § 1983, Hayward must
allege that Hershey Medical was a person acting under color of state law at the
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time of the alleged deprivation of Plaintiff’s constitutional rights. West v. Atkins,
487 U.S. 42, 48 (1988). “In cases under § 1983, ‘under color’ of law has
consistently been treated as the same thing as the ‘state action’ required under the
Fourteenth Amendment.” United States v. Price, 383 U.S. 787, 794 n.7 (1966); see
also Robison v. Canterbury Vill., Inc., 848 F.2d 424 (3d Cir. 1988). Thus, “[t]he
ultimate issue in determining whether a person is subject to suit under § 1983 is the
same question posed in cases arising under the Fourteenth Amendment: is the
alleged infringement of federal rights fairly attributable to the State?” Rendell–
Baker v. Kohn, 457 U.S. 830, 838 (1982). “What is fairly attributable is a matter of
normative judgment, and the criteria lack rigid simplicity . . . no one fact can
function as a necessary condition across the board for finding state action[.]”
Brentwood Acad. v. Tenn. Secondary Sch., 531 U.S. 288, 295 (2001). The Third
Circuit has articulated three tests that can be used to determine whether state action
exists: (1) whether the private entity has exercised powers that are traditionally the
exclusive prerogative of the state; (2) whether the private party has acted with the
help of or in concert with state officials; and (3) whether ‘the [s]tate has so far
insinuated itself into a position of interdependence with the acting party that it
must be recognized as a joint participant in the challenged activity.’ Under any test,

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the inquiry is fact-specific. Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)
(internal brackets, citations, and quotation marks omitted).
The complaint is completely devoid of allegations or facts that would
indicate that Hershey Medical falls within any of the tests that render a private
entity a state actor. Although it is clear from the complaint that Hayward was a
state inmate at the time she was treated at Hershey Medical, that fact does not
transform the hospital, or any of its agents, into persons who acted under color of
state law. See Nunez v. Horn, 72 F.Supp.2d 24, 27 (N.D.N.Y.1999) (holding
private physician who was not employed by prison or under contract with state to
perform medical services to inmates and who performed surgery on inmate in
private hospital was not a state actor for section 1983 purposes). See also Smith v.
Cpr. Louriero, No. 3:16-cv-0741, 2017 WL 2952819 at *6 (M.D.Pa. June 2017)
(report and recommendation adopted sub nom. Smith v. Louriero, No. 3:16-CV0741, 2017 WL 2926020 (M.D. Pa. July 7, 2017)); Rosario v. Washington Mem’l
Hosp., No. 12-1799, 2013 WL 2158584, at *3 (W.D. Pa. May 17, 2013); Dixon v.
Baptist South Medical Hosp., No. 2:07–CV–662, 2010 WL 431186, at *7 (M.D.
Ala., Feb. 1, 2010) (stating that “[t]he vast majority of federal courts agree that
treatment by a non-contract private physician, nurse or hospital upon referral or on
an emergency basis does not satisfy the requirements for state action.”).
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Consequently, the civil rights claim against Hershey Medical will be dismissed for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
2.

State Law Claims

Whether to exercise supplemental jurisdiction is within the discretion of the
court. Section 28 U.S.C. § 1367(c)(3) provides that district courts may decline to
exercise supplemental jurisdiction over a state law claim if the district court has
dismissed all claims over which it has original jurisdiction. When deciding whether
to exercise supplemental jurisdiction, “a federal court should consider and weigh in
each case, and at every stage of the litigation, the values of judicial economy,
convenience, fairness, and comity.” City of Chicago v. Int'l Coll. of Surgeons, 522
U.S. 156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350
(1988)). “[W]here the claim over which the district court has original jurisdiction
is dismissed before trial, the district court must decline to decide the pendent state
claims unless considerations of judicial economy, convenience, and fairness to the
parties provide an affirmative justification for doing so.” Hedges v. Musco, 204
F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Miflin v. Lancaster, 45
F.3d 780, 788 (3d Cir. 1995)).

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To the extent that any of Hayward’s allegations may be construed as setting
forth state law claims, following thorough considerations of judicial economy,
convenience, and fairness, the Court declines to exercise supplemental jurisdiction
over such claims.
3.

Leave to Amend

Before dismissing a complaint or claims for failure to state a claim upon
which relief may be granted, the court must grant plaintiff leave to amend unless
doing so would be inequitable or futile. See Grayson v. Mayview State Hosp., 293
F.3d 103, 108, 114 (3d Cir. 2002). In this case, allowing leave to amend as to
Hershey Medical would be futile as it is clear that it is a private facility to which
Hayward was referred for the sole purpose of a surgical consult and surgery.
B.

Drs. Landsberg and Davis
1.

Constitutional Claims

Hayward alleges that Drs. Landsberg and Davis failed to provide her with
adequate medical care. For the delay or denial of medical care to rise to a violation
of the Eighth Amendment’s prohibition against cruel and unusual punishment, a
prisoner must demonstrate “(1) that defendants were deliberately indifferent to
[his] medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999). Deliberate indifference requires proof that the
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official “knows of and disregards an excessive risk to inmate health or safety.”
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference has been
found where a prison official: “(1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2) delays necessary medical
treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving
needed or recommended treatment.” Rouse, 182 F.3d at 197. Deference is given
to prison medical authorities in the diagnosis and treatment of patients, and courts
“disavow any attempt to second-guess the propriety or adequacy of a particular
course of treatment . . . (which) remains a question of sound professional
judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.
1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). Allegations
of negligent treatment or medical malpractice do not trigger constitutional
protections. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976).
Hayward alleges that, Dr. Landsberg began treating her for a bladder
condition in March 2014. Dr. Landsberg allegedly sent her to Geisinger Medical
Center, “who said nothing was wrong. [T[hen he referred [her] to Dr. Davis @
Hershey Medical Center.” (Doc 1, p. 3). Dr. Davis diagnosed her with a prolapsed
bladder and prescribed therapy. Upon being notified that an initial course of
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bladder therapy was unsuccessful, Dr. Landsberg arranged for Hayward to have the
proper therapy administered. Ongoing problems necessitated surgery, which Dr.
Landsberg facilitated and Dr. Davis performed.
It appears clear that Hayward suffers from a serious medical condition. She
does not, however, allege that either doctor knew of a need for medical treatment
but intentionally refused to provide it, delayed necessary medical treatment based
on a nonmedical reason, or prevented Hayward from receiving needed or
recommended treatment. To the contrary, Hayward alleges that Dr. Landsberg
consistently rendered or arranged for treatment of her ongoing bladder condition.
And that Dr. Davis prescribed therapy and, when that proved unsuccessful,
performed surgery. Accepting as true these factual allegations, and drawing all
reasonable inferences from them in the light most favorable to Hayward, there
simply is no indication that Dr. Landsberg or Dr. Davis was deliberately indifferent
to Hayward’s serious medical needs.
The allegations surrounding the exam performed by Dr. Landsberg on
February 18, 2016 are also insufficient to state an Eighth Amendment claim.
Hayward alleges that despite the fact that she informed Dr. Landsberg that there
was to be nothing inserted in her vagina for two months, he performed a postsurgical follow-up internal examination which caused her pain. Hayward indicates
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that this examination was contrary to Dr. Davis’s instructions. “The medical care
of prison inmates is entrusted to prison doctors, to whose judgment and training
courts owe substantial deference.” White v. Napoleon, 897 F.2d 103, 113 (3d Cir.
1990). Allegations of medical malpractice are not sufficient to establish a
constitutional violation. White, 897 F.2d at 108 (citing Estelle, 429 U.S. at 106).
And the “mere disagreement as to the proper medical treatment” does not support a
claim of violation of the Eighth Amendment. Monmouth Cnty. Corr. Institutional
Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); see also Brown v. DeParlos,
492 F. App’x 211, 216 (3d Cir. 2012). Hayward appears to disagree with the
manner in which Dr. Landsberg conducted a post-surgery exam. While Hayward
may disagree, the administration of the examination does not demonstrate
deliberate indifference or unnecessary and wanton infliction of pain and does not
amount to a constitutional violation. At most, Dr. Landsberg’s conduct amounts to
negligence in the form of medical malpractice.
Likewise, the scant allegations against Dr. Davis, including the contention
that he failed to examine her during her follow-up appointment in March 18, 2016,
are insufficient to state an Eighth Amendment claim.

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2.

State Law Claims

Inasmuch as Hayward seeks to impose liability on Dr. Landsberg or Dr.
Davis on state law grounds, the Court declines to exercise supplemental
jurisdiction.
3.

Leave to Amend

“The obligation to liberally construe a pro se litigant’s pleadings is wellestablished.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Higgs v.
Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011) (citing Estelle, 429 U.S.
at106). Consequently, before dismissing a complaint or claims for failure to state a
claim upon which relief may be granted, the court must grant plaintiff leave to
amend the pleading unless amendment would be inequitable or futile. See Grayson
v. Mayview State Hosp., 293 F.3d 103, 108, 114 (3d Cir. 2002). Given Hayward’s
pro se status, and because it is conceivable that Hayward could amend her
complaint to state an Eighth Amendment claim against Drs. Landsberg and Davis,
out of an abundance of caution, she will be afforded leave to amend.
III.

CONCLUSION
Based on the foregoing, Defendants’ motions (Docs. 21, 24) to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6) will be granted and the

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complaint against Dr. Davis will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
An appropriate Order will issue.