DAVIS v. WETZEL et al

Filing 84

MEMORANDUM (Order to follow as separate docket entry) re 56 MOTION Transfer Venue filed by Joseph silver, Nedra Grego, Paul Noel, John Wetzel, N. Ranker, 50 MOTION to Dismiss filed by Correct Care Solutions. Signed by Magistrate Judge Karoline Mehalchick on 10/22/2018. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN DAVIS,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-CV-00804
(MEHALCHICK, M.J.)

JOHN WETZEL, et al.,
Defendants.
MEMORANDUM OPINION
Presently before this Court are two separate motions to dismiss, filed respectively by
Defendant Correct Care Solutions, LLC (“CCS”) on January 22, 2018, and the Pennsylvania
Department of Corrections (“DOC”) Defendants on January 16, 2018. (Doc. 50; Doc. 56). The
Parties have filed all relevant briefs, and the matter is ripe for review. (Doc. 51; Doc. 52;
Doc.53; Doc. 57; Doc. 58; Doc. 59; Doc. 60). For the reasons stated herein, the Court will
GRANT both motions.
I.

BACKGROUND
Plaintiff, Kevin Davis (hereinafter referred to as “Davis”), is a Hepatitis-C positive

prisoner currently incarcerated at the State Correction Institution in Fayette, Pennsylvania
(“SCI-Fayette”). 1 (Doc. 5, at 1). On October 30, 2017, Davis filed a pro se complaint in the
United States District Court for the Western District of Pennsylvania against the following

1

At the time Davis filed the complaint, he was incarcerated at SCI-Fayette. (Doc. 5, at
1). On March 16, 2018, however, Davis informed the Court that he had been transferred to the
State Correction Institution in Graterford, Pennsylvania (“SCI-Graterford”) for a court
appearance. (Doc. 40). The Court notes that, after having conducted its own search using the
inmate locator tool on the DOC’s website, Davis has since been transferred back to SCIFayette, where he presently remains incarcerated. See http://inmatelocator.cor.pa.gov.

Defendants: John E. Wetzel, Secretary of the DOC; Dr. Paul Noel, Chief of Clinical Services of
the DOC’s Bureau of Healthcare Services, along with three other members of the Hepatitis C
Treatment Committee that are identified as “John Does”; Joseph Silva, Director of the DOC’s
Bureau of Health Care Services; Nedra Grego, Corrections Healthcare Administrator at SCIFayette; N. Ranker, an infectious control nurse at SCI-Fayette; “John Doe, Chief Counsel”;
and Correct Care Solutions, the company that contracts with the DOC to provide medical
services. (Doc. 5, at 1-2). 2 (Doc. 5). Davis also filed a motion to proceed in forma pauperis
(“IFP”) on October 27, 2017, which was granted by the Western District Court on October 30,
2017. (Doc. 2; Doc 4). After a lengthy procedural history, the Western District Court
transferred Davis’s cause of action to the Middle District of Pennsylvania on April 9, 2018.3
(Doc. 46; Doc. 47).
The events giving rise to the complaint stem from certain medical decisions and policies
involving Davis’ Hepatitis C treatment. Specifically, on January 31, 2017, Davis claims that he
made a request to be treated with a curative direct-acting antiviral (“DAA”) drug called
Harvoni. (Doc. 5, at 3-4). Davis had previously been treated for Hepatitis C while incarcerated
within the DOC, however asserts that the medication provided to him then “did not work,”
resulted in his repeated loss of consciousness, and caused him to develop a damaging skin

2

Defendants Wetzel, Noel, Silva, Grego, and Ranker are collectively referred to as the
“DOC Defendants.”
3

In addition to the two (2) motions to dismiss presently before the Court, the Western
District Court additionally transferred a Motion for Preliminary Injunction filed by Davis on
December 1, 2017, which remains pending. (Doc. 9; Doc. 48).
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condition. 4 (Doc. 5, at 3). In response to his request, Defendant Ranker, an Infectious Control
Nurse at SCI-Fayette, informed Davis that the DOC’s Hepatitis C Committee made decisions
regarding his treatment, and that he did not meet the criteria for receiving Harvoni under the
DOC’s Hepatitis C Policy. (Doc. 5, at 3-4). Davis subsequently filed a related prison grievance,5
and received a reply from Defendant Grego, SCI-Fayette’s Corrections Health Care
Administrator (“CHCA”), that allegedly adopted Defendant Ranker’s response without
considering his past qualification for Hepatitis C treatment. (Doc. 5, at 6).
On May 31, 2017, in spite of federal case law that found the DOC’s interim Hepatitis C
protocol raised Eighth Amendment concerns, 6 the Hepatitis C Committee denied Davis’s
request for care. (Doc. 5, at 4). Davis states that the Committee based its decision on a policy
that limited DAA treatment to prisoners that suffered from advanced symptoms, such as “vast
fibrosis or cirrhosis.” (Doc. 5, at 4). As a result of the Hepatitis C Committee’s decision to
monitor his condition instead of provide him with DAA medications, Davis, who allegedly
already suffers from fibrosis of the liver, asserts he will continue to develop liver scarring and
other complications related to the progression of his chronic Hepatitis C. (Doc. 5, at 4-5). Davis

4

Davis further alludes that he contracted Hepatitis C while under “the care, custody,
and control of the [DOC].” (Doc. 5, at 4). However, the complaint does not identify the date or
year he was diagnosed with Hepatitis C, when his previous treatment occurred, or what his past
treatment entailed. (Doc. 5).
5

Davis identifies his grievance as #664288. (Doc. 5, at 6).

6

Although not expressly alleged in the complaint, Davis presumably references the
decision in Abu-Jamal v. Wetzel, No. 3:16-CV-2000, 2017 WL 34700, at *1 (M.D. Pa. Jan. 3,
2017), appeal dismissed sub nom. Abu-Jamal v. Sec'y PA Dept of Corr, No. 17-1125, 2017 WL
3123434 (3d Cir. Apr. 13, 2017), and appeal dismissed sub nom. Abu-Jamal v. Sec'y PA Dept of Corr,
No. 17-1156, 2017 WL 3160959 (3d Cir. Apr. 14, 2017).
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further argues that the Defendants maintain “policies, customs, and practices” that consciously
disregard the medical risks associated with untreated Hepatitis C. (Doc. 5, at 5).
In his complaint, Davis advances a claim under 42 U.S.C. § 1983 against the named
Defendants. (Doc. 5, at 1). When liberally construed, Davis asserts that the Defendants
deprived him of his right to adequate medical care under the Eighth Amendment, as they
consciously disregarded the serious risk to his health by denying him curative DAA medication.
(Doc. 5, at 3). As for relief, Davis seeks to enjoin the use of the DOC’s Hepatitis C Policy, have
the requested curative medication be provided to him, and obtain immediate treatment for his
Hepatitis-C related skin complication. (Doc. 5, at 6-7). Davis also seeks damages for the harm
caused to his liver by refusing to administer Harvoni, and for aiding in implementing the
allegedly unconstitutional Hepatitis C policy. (Doc. 5, at 7).
On January16, 2018, in conjunction with a motion to transfer venue from the Western
District of Pennsylvania to the Middle District of Pennsylvania, the DOC Defendants filed a
motion to dismiss Davis’s claims against Defendants Wetzel, Ranker, and Grego for lack of
personal involvement as required for actions brought under 42 U.S.C. § 1983. (Doc. 21; Doc.
56). Correct Care Solutions subsequently moved to dismiss Davis’s complaint on January 22,
2018 for failure to state a claim under Rule 12(b)(6) of the FEDERAL RULES

OF

CIVIL

PROCEDURE. (Doc. 25; Doc. 50). Both of these motions have been fully briefed and are now
ripe for disposition. (Doc. 51; Doc. 52; Doc. 53; Doc. 54; Doc. 56; Doc. 57; Doc. 58).
II.

STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to

dismiss for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
“Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded

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allegations in the complaint as true and viewing them in the light most favorable to the plaintiff,
a court finds the plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643
F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
Although the Court must accept the allegations in the complaint as true, it is not compelled to
accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as
a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). In deciding a Rule 12(b)(6) motion, the Court
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).
III.

DISCUSSION
A. CLAIMS ASSERTED AGAINST THE DOC DEFENDANTS
In their motion to dismiss, the DOC Defendants argue that Davis’s claims against

Defendant Wetzel, Ranker, and Grego are subject to dismissal under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (Doc. 56; Doc. 57). Specifically, the DOC Defendants move
to dismiss on the grounds that Davis has failed to allege Defendants Wetzel, Ranker, and Grego
were personally involved in the alleged constitutional deprivations, as required for civil rights
actions brought under 42 U.S.C. § 1983. (Doc. 57, at 8-10). Section 1983 provides a private
cause of action with respect to violations of federal constitutional rights. The statute provides in
pertinent part:
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,

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shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
42 U.S.C. § 1983.
Section 1983 does not create substantive rights, but instead provides remedies for rights
established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To state a § 1983
claim, a plaintiff must demonstrate that the defendants, acting under color of state law,
deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of
Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
1. Claims against Defendant Wetzel
The DOC Defendants first argue the claims against Defendant Wetzel must fail under
Section 1983 for lack of personal involvement, as Davis merely attempts to impose respondeat
superior liability. (Doc. 57, at 8). The Third Circuit has “consistently held that ‘[a] defendant in a
civil rights action must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.’” Batts v. Giorla, 550 F. App’x 110, 112
(3d Cir. 2013) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)); see also Padilla
v. Beard, No. CIV. 1:CV–06–0478, 2006 WL 1410079, at *3 (M.D. Pa. May 18, 2006) (“[A]n
allegation seeking to impose liability on a defendant based on supervisory status, without more,
will not subject the official to section 1983 liability.”). Here, the complaint broadly alleges that
Defendant Wetzel is responsible for “everything that occurs” within the DOC, and that he
oversees the Hepatitis C Committee’s conduct. (Doc. 5, at 4). Such allegations, however, do not
set forth a viable claim against Defendant Wetzel, as they premise liability based on the DOC
position in which he is employed. See Rode, 845 F.2d at 1207.
The Court recognizes, however, that Davis’s brief in opposition alleges for the first time
that Defendant Wetzel is a member of the Hepatitis C Treatment Committee. (Doc. 58, at 1-2).

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Davis further avers that Defendant Wetzel must “review, approve and sign each and every
policy,” which presumably included the Hepatitis C treatment protocol “that was used to deny
[Davis’s] treatment.” 7 (Doc. 58, at 2; Doc. 58-1, at 9). Although it is “axiomatic that the
complaint may not be amended by the briefs in opposition to a motion to dismiss,” it appears
that Davis attempts to state a supervisory liability claim8 against Defendant Wetzel based on his
alleged role in developing, approving or implementing the challenged Hepatitis C policy.
Commonwealth of Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173 (3d Cir. 1988)
(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Accordingly,
all claims against Defendant Wetzel shall be DIMISSED without prejudice to Davis filing an
amended complaint that clearly sets forth the basis of his Section 1983 claims against Defendant
Wetzel.

7

The Court notes that, as alleged, the specific Hepatitis C policy to which Davis refers is
unclear. Indeed, given the vague allegations in the complaint, the Court cannot ascertain
whether Davis challenges the same interim protocol as discussed in Abu-Jamal, or an updated
version of the DOC’s Hepatitis C policy.
8

Under § 1983, a prison supervisor may be deemed personally liable under two, narrow
theories of supervisory liability: “one under which supervisors can be liable if they ‘established
and maintained a policy, practice or custom which directly caused [the] constitutional harm,’
and another under which they can be liable if they ‘participated in violating plaintiff's rights,
directed others to violate them, or, as the person[s] in charge, had knowledge of and acquiesced
in [their] subordinates' violations.’” Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir.
2010) (quoting A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(alterations in original)). “[V]ague and speculative allegation[s] of custom, policy or practice are
insufficient [to state a claim] under Twombly and Iqbal.” Lewis v. Wetzel, 153 F.Supp.3d 678, 696
(M.D. Pa. 2015). Here, the brief in opposition seemingly aims to premise Defendant Wetzel’s
liability on the policy, practice, or custom theory. (Doc. 58; Doc. 58-1).
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2. Claims against Defendants Ranker and Grego
The DOC Defendants next argue that all claims against Defendants Ranker and Grego
are subject to dismissal, as Davis fails to plausibly allege they were personally involved in the
purported Eighth Amendment violations. (Doc. 57, at 8). According to the DOC Defendants,
Davis merely asserts that Defendant Ranker passed along the Hepatitis C Committee’s policies
and treatment determinations to him. (Doc. 57, at 9; Doc. 59, at 3). Similarly, the DOC
Defendants argue that Davis’s claims against Defendant Grego are solely predicated upon her
unfavorable response to his grievance, wherein she informed him that the Hepatitis C
Committee had determined he was ineligible for DAA treatment under the Hepatitis C policy.
(Doc. 57, at 9; Doc. 59, at 3). The DOC Defendants thus emphasize that the complaint does
not allege Defendants Ranker or Grego were responsible for the Hepatitis C Committee’s
treatment decisions. (Doc. 57, at 9). They further assert that Defendants Ranker and Grego, as
non-medical professionals, were entitled to rely on the expertise of other medical staff members
unless they had reason to believe such personnel were mistreating Davis. (Doc. 57, at 9).
The Third Circuit has held that if a prisoner is under the care of medical personnel, nonmedical officials and healthcare administrators cannot be considered deliberately indifferent for
failing to intervene in the medical treatment or respond directly to the prisoner's medical
complaints. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (finding that prison
administrators cannot be deliberately indifferent “simply because they failed to respond directly
to the medical complaints of a prisoner who was already being treated by the prison
doctor”); Gould v. Wetzel, 547 F. App’x 129, 132 (3d Cir. 2013) (same). Hence, “[p]rison
officials who are not physicians are entitled to defer to the medical judgment of staff
physicians, ... and an administrator does not become responsible for the inmate's medical

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treatment simply by virtue of reviewing an inmate grievance.” Smith v. O'Boyle, 251 F.App’x
87, 89 (3d Cir. 2007). However, a viable Eighth Amendment deliberate indifference claim may
arise if they have “reason to believe (or actual knowledge) that prison doctors or their assistants
are mistreating (or not treating) a prisoner . . . .” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004).
Even when taken as true, the claims alleged in the complaint essentially attempt to
impose liability on Defendants Ranker and Grego for informing Davis of the DOC’s Hepatitis
C Policy and the Hepatitis C Committee’s related treatment determination. (Doc. 5, 4-5).
Davis’s brief in opposition, however, asserts that Defendants Ranker and Grego aided the
Hepatitis C Committee by referring to and enforcing the allegedly unconstitutional Hepatitis C
policy, and thus acquiesced in the denial of his medical treatment. (Doc. 58, at 2; Doc. 58-1, at
5; Doc. 60 at 2). The brief in opposition also claims, for the first time, that Defendants Ranker
and Grego are both members of the Hepatitis C Committee that allegedly performed medical
duties at the behest of the Committee. (Doc. 58, at 2; Doc. 58-1, at 5). Nonetheless, Davis does
not plausibly allege that these Defendants had any authority to exercise medical judgment over
his specific course of Hepatitis C related treatment, or that their response on behalf of the
Hepatitis C Committee rose to the level of deliberate indifference. See Smith, 251 F.App’x at 89.
Further, with respect to Defendant Grego, civil rights liability does not arise from the fact that
she reviewed and responded unfavorably to Davis’s grievance by reiterating the Hepatitis C’
Committee’s assessment. See Durmer, 991 F.2d at 69. Thus, Davis’s allegations that Defendants
Ranker and Grego, as non-physicians, failed to accommodate his medical request for Harvoni
by communicating the DOC’s Hepatitis C policy, without taking further action to influence the

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Hepatitis C Committee’s decision, do not state a viable Eighth Amendment claim for deliberate
indifference under Section 1983. 9
Accordingly, Davis’s claims against Defendants Ranker and Grego shall be
DISMISSED without prejudice.
B. CLAIMS ASSERTED AGAINST DEFENDANT CORRECT CARE SOLUTIONS
In support of its motion to dismiss, Correct Care Solutions argues that Davis fails to
state a cognizable claim against it under 42 U.S.C. § 1983. (Doc. 51, at 3-5). Specifically,
Correct Care Solutions maintains that Davis does not assert any factual allegations against it in
the complaint, and merely mentions Correct Care Solutions with respect to his demand for
relief. (Doc. 5, at 7; Doc. 51, at 2). Correct Care Solutions additionally claims that the
complaint does not allege it established a policy, custom or practice that caused Davis
constitutional harm, as required for Monell liability under § 1983. (Doc. 51, at 5). Rather,
Correct Care Solutions notes that the complaint simply focuses on the purported denial of
Harvoni under the DOC’s Hepatitis C treatment protocol, which Davis does not allege Correct
Care Solutions had any responsibility in developing. (Doc. 53, at 1-2).
It is well established that “[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs to be liable, and cannot be held responsible for a

9

The Court notes that the brief in opposition also argues Defendant Ranker aided the
Hepatitis C Committee by either suppressing, or declining to disclose, Davis’s past medical
records involving his former Hepatitis C treatment. (Doc. 58-1, at 4, 8-9). Davis thus supposes
that his past qualification for treatment would necessarily make him eligible for DAA
medication under the same DOC policy he seemingly argues is unconstitutional. Davis
additionally references a skin condition he developed that allegedly went untreated by
Defendants Ranker and Grego. (Doc. 60, at 2). However, even when taken as true, such sparse
allegations fail to establish a claim for deliberate indifference to a serious medical need.
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constitutional violation which he or she neither participated in nor approved.” Baraka v.
McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations and quotations omitted). In Monell v.
Dep't. of Soc. Serv’s. of City of New York, the Supreme Court determined that, while municipal
bodies may not be sued solely for violations perpetrated by its employees or agents, “it is when
execution of a government's policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.” 436 U.S. 658, 694 (1978). A private
corporation, though not a municipal body, is subject to the same considerations when
contracted by a government to provide healthcare services to incarcerated individuals.
See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003); see also Chimenti v.
Pennsylvania Dep't of Corr., No. CV 15-3333, 2017 WL 3394605, at *11 (E.D. Pa. Aug. 8, 2017)
(noting that Monell liability may be extended to private corporations operating under a contract
with the state, such as Correct Care Solutions). Accordingly, in order to state a viable § 1983
claim against Correct Care Solutions, the complaint must set forth “facts to state a claim that
[it] had a policy, custom, or practice, and that the policy, custom, or practice caused the
constitutional violation at issue.” See Sims v. Wexford Health Sources, 635 F. App’x 16, 20 (3d Cir.
2015) (quoting Natale, 318 F.3d at 583); Chimenti, 2017 WL 3394605 at *11 (same); see also Park
v. Veasie, 720 F. Supp. 2d 658, 667 (M.D. Pa. 2010) (“To establish liability under Monell, a
plaintiff must identify the challenged policy, attribute it to the [policymaker] itself, and show a
causal link between the execution of the policy and the injury suffered.”) (citing Losch v. Borough
of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)).
Here, Davis’s complaint fails to provide any factual allegations that set forth a plausible
Eighth Amendment claim against Correct Care Solutions under § 1983. Indeed, the complaint’s

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only allegations against Correct Care Solutions appear to be set forth in the demand for relief,
where Davis generally claims that, due to its refusal to provide treatment, Correct Care
Solutions caused his liver damage. (Doc. 5, at 2, 7). Davis’s brief in opposition also does little to
support a claim for Monell liability, as it fails to demonstrate how Correct Care Solutions played
a role in the creation or implementation of the challenged Hepatitis C policy, let alone any
other corporate policy that caused him Eighth Amendment injury. (Doc. 52; Doc. 54).
Accordingly, Davis does not sufficiently state a § 1983 claim against Correct Care Solutions, as
he fails to attribute the DOC’s challenged Hepatitis C policy to it, or otherwise identify one of
its policies that would give rise to Monell liability. See Tremper v. Correct Care Sols., No. CIV.A.
13-3626 FLW, 2014 WL 320338, at *2 (D.N.J. Jan. 29, 2014) (“Because the Complaint fails to
specify a custom or policy of Correct Care Solutions that caused the violation of Plaintiff's
constitutional rights, it fails to state a claim under § 1983 against the entity.”).
The Court also notes that Davis’s brief in opposition attempts to clarify the allegations in
the complaint by stating that Correct Care Solutions is a member of the Hepatitis C
Committee. 10 (Doc. 52, at 2). Davis further avers that Correct Care Solutions employed certain

10

Davis’s brief in opposition also cites to various factual findings set forth in Abu-Jamal,
seemingly for the proposition that they are necessarily true in the instant case. (Doc. 52).
However, “[t]he Third Circuit has cautioned that [a court] may not take judicial notice of a
prior court opinion in order to establish the truth of the adjudicative facts on which the opinion
is based.” Montgomery v. Beneficial Consumer Disc. Co., No. Civ.A. 04–2114, 2005 WL 497776, at
*4 n. 5 (E.D.Pa. Mar. 2, 2005) (citing S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp.,
Ltd., 181 F.3d 410, 426 (3d Cir.1999) (“Specifically, on a motion to dismiss, we
may take judicial notice of another court's opinion-not for the truth of the facts recited therein,
but for the existence of the opinion, which is not subject to reasonable dispute over its
authenticity.”)). Accordingly, insofar as Davis attempts to rely on Abu-Jamal for the truth of its
factual findings by the District Court, the undersigned declines to take judicial notice of such
conclusions regarding Defendants’ personal involvement under § 1983. Rather, at this early
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unidentified consultants on the Hepatitis C Committee, that these consultants met with other
members of the Hepatitis C Committee to review inmate medical charts, and that they
ultimately determined whether or not inmates received treatment. (Doc. 52, at 4-5). In addition,
Davis submits that Correct Care Solutions assessed his specific request for curative medication,
and thus was personally involved in the Hepatitis C’ Committee’s decision to deny him
Harvoni. (Doc. 52, at 5). Correct Core Solutions argues, however, that such allegations rely on
the theory of respondeat superior to impose liability. (Doc. 53, at 2). As discussed supra, such
claims are insufficient to state a claim under § 1983. See Sims, 635 F. App’x at 20 (affirming
private entities that provide medical services to inmates “cannot be held responsible for the acts
of its employees under a theory of respondeat superior or vicarious liability.”). Accordingly, even
when taken as true in the light most favorable to Davis, the new allegations in the brief in
opposition still fail to articulate a viable claim against Correct Care Solutions that meet the
pleading standard under Monell.
As the requirements for personal involvement under 42 U.S.C. § 1983 are not met, the
Eighth Amendment claim against Correct Care Solutions predicated on vicarious liability shall
be DISMISSED without prejudice.
IV.

LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment
would be inequitable or futile. Grayson v. Mayview State Hosp, 293 F.3d 103, 108 (3d Cir. 2002).

stage in the proceedings, the Court will liberally construe the references to Abu-Jamal as Davis’s
own individual allegations, and take them as true for the purposes of the pending motions to
dismiss.
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Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave to
amend.’” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 F. App'x 672, 673 (3d Cir.
2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). In this case,
it is not apparent that amendment would be futile with respect to Davis’s Eighth Amendment
deliberate indifference claims against Defendants Wetzel, Ranker, Grego and Correct Care
Solutions. Accordingly, Davis will be given the opportunity to submit an amended complaint
that is complete in all respects. The amended complaint must be a pleading that stands by itself
without reference to earlier pleadings. Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa.
1992). The amended complaint must also specify, in a coherent fashion, how each individual
Defendant contributed to the allegations giving rise to the complaint. Moreover, it must be
“simple, concise, and direct” as required by Rule 8(d)(1) of the FEDERAL RULES

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PROCEDURE. Finally, the amended complaint may not go beyond the scope of the Eighth
Amendment claim already raised in Davis’s original complaint.
V.

CONCLUSION
Based on the foregoing, the DOC Defendants’ Motion to Dismiss (Doc. 56) and Correct

Care Solutions’ Motion to Dismiss (Doc. 50) are both GRANTED.
An appropriate Order follows.

BY THE COURT:

s/ Karoline Mehalchick

Dated: October 22, 2018

KAROLINE MEHALCHICK
United States Magistrate Judge

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