Kennedy v. Primecare Medical, Inc. et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint filed by Shane Kennedy Signed by District Judge Joseph F Saporito, Jr on 10/23/24. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SHANE KENNEDY,
Plaintiff,

CIVIL ACTION NO. 1:24-cv-00841

v.

(SAPORITO, J.)

PRIMECARE, INC., et al.,
Defendants.
MEMORANDUM
Plaintiff Shane Kennedy, presently incarcerated at the State
Correctional Institute at Chester (“SCI-Chester”), filed this pro se civil
rights action pursuant to 42 U.S.C. § 1983. He seeks leave to proceed in

forma pauperis. Kennedy alleges that while incarcerated at the York
County Prison, he was denied adequate medical care and did not receive
appropriate accommodation for preexisting injuries. As pled, the
complaint properly states a claim against one defendant, identified only
as Jane Doe. Accordingly, the Court will direct service of the complaint
on the Warden of the York County Prison, for the limited purpose of
ascertaining the defendant’s identity.

I.

BACKGROUND
Kennedy’s complaint (Docs. 12, 12-1) 1 alleges as follows: On

December 10, 2022, before he was incarcerated, he suffered a work
accident that left him with a broken foot, concussion, lacerations to his
head and ribs, and a sprained and bruised back. On January 17, 2023, he
was arrested and taken to the York County Prison. During the intake
process, he told Jane Doe, a nurse from PrimeCare Medical, Inc.
(“PrimeCare”), the prison medical provider, that he had a broken foot and
injuries to his back and ribs. However, PrimeCare “released [Kennedy] to
General Population with no restrictions, [despite Kennedy] complaining
about his severely injured foot that was in serious pain.” Kennedy alleges
that “no support was given [for these injuries] for the entire duration of
his stay” at the York County Prison.
For intermittent periods between January and March 2023,
Kennedy was assigned to sleep on a top bunk. There was no ladder on the
bed, so Kennedy repeatedly had to jump off the bunk to the concrete floor,
which caused him pain and “further injur[ed]” his broken foot. During

The Court ordered Kennedy to refile his original complaint (Doc.
1) because he had not signed it. See (Doc. 11).
1

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this time, Kennedy informed “the Medical Department,” and several
correctional officers 2, about his broken foot. On February 8, 2023, he told
Lt. Jensing and Jane Doe that he had a broken foot and “can’t be housed
on the top bunk,” removing his shoe and sock to show that his foot was
“clearly noticeably broken.” However, they took no action. On February
9, 2023, he made a similar complaint to C.O. Mink, who said there was
nothing he could do because he was “not in charge of the moves.” On
February 24, 2023, he complained to unspecified correctional officers,
who told him that “Medical” and “Classification” determine whether a
person should be placed on the top bunk. Multiple officers told Kennedy
that they informed “Medical” about his broken foot. A different, unnamed
officer told him that “if he didn’t take [the top] bunk he would go to the
BAU to get re-classified and that could take up to five (5) days.” Kennedy
does not say whether he pursued this option.
On March 12, 2023, Kennedy “had an incident where his back gave

The Court denies Kennedy’s request for an order directing that
body camera footage of his discussions with correctional officers be
preserved. In general, a party’s obligation to preserve evidence arises
when the party knew of or reasonably should have anticipated litigation
concerning the grieved incidents. See, e.g., Ansley v. Wetzel, No. 1:21-CV528, 2023 WL 114052 (M.D. Pa. Jan. 5, 2023). Given this obligation, the
Court finds no basis to issue a further order at this stage.
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out on him,” which he attributes to a reaggravation of back spasms
caused by jumping from the top bunk. That evening, he suffered back
spasms “to the point where [his] body was shaking uncontrollably,” and
had no feeling in his legs. A medical emergency was called, and Kennedy
was “yanked out of his bed” by two unnamed C.O.s and placed in a
wheelchair. He was taken to medical segregation until March 16, 2023,
and then returned to the general population. When he returned, Kennedy
“asked and was denied a walking instrument,” although he was still
having back spasms and numbness in his legs.
On March 27, 2023, Kennedy was again assigned to a top bunk. He
complained to Lt. Koch, who ignored him. Another officer, C.O. Sassani,
approached Kennedy’s bunk to ask Kennedy to “sign papers.” Kennedy
had to descend from the top bunk, which caused him to “fall into the
wall.” Sassani “started threatening [Kennedy] calling him a liar” about
his medical complaints. Kennedy and Sassani began arguing, and
Sassani “told [Kennedy] to sign the papers or [Sassani] was coming in the
cell to assault [Kennedy] and we were fighting.” Sassani “was
reprimanded” for this incident and later apologized to Kennedy.
On March 30, 2023, Kennedy was finally moved to a bottom bunk

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on a lower tier of the prison. However, he complains of an apparently
unrelated incident on April 14, 2023. Between 6:15 and 6:45 p.m., he told
C.O. Smith that he was passing blood for the second time in 24 hours.
Smith “said that he called Medical twice and was waiting for them to call
back.” A nurse arrived between 9:45 and 10:15 p.m. The nurse asked the
sergeant on duty at that time, Sgt. Sell, if he had called Medical. Sell
responded that he had called Medical around 7:15 p.m. Based on
Kennedy’s complaint to Smith, Kennedy infers that Sell was aware of his
complaints at 6:40 p.m. and deliberately delayed seeking medical help for
35 minutes.
Kennedy alleges that because of the inadequate medical care, his
foot “heal[e]d wrong and is now deformed,” and he suffers continuous
numbness. An X-ray was performed on or around May 26, 2023. On that
date, an unidentified PrimeCare nurse said: “I[’]m so sorry that we are
just getting to this. I apologize for my co-workers that we just getting to
this. This should have been done.”
Kennedy identifies 12 defendants: PrimeCare, the York County
Prison, Jensing, Koch, Mink, Sassani, C.O. Easton, Sgt. Figbore,

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“Warden,” “Deputy Warden,” and “John Doe Nurse3.” He also names an
unspecified number of “John Doe C.O.s” and “York County Prison
Officials.” The precise scope of Kennedy’s claims is unclear, but he
appears to assert: (1) a claim against C.O. Sassani for inflicting cruel and
unusual punishment; (2) claims against all defendants premised on their
deliberate indifference to his serious medical needs; and (3) a claim for
medical malpractice against “PrimeCare and its agents”.
II.

LEGAL STANDARDS
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil

complaint in which a prisoner seeks redress from a governmental entity
or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a);

James v. Pa. Dep’t of Corr., 230 Fed. App’x 195, 197 (3d Cir. 2007). The
Court must dismiss the complaint if it is “frivolous” or “fails to state a
claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). The
Court has a similar obligation with respect to actions brought in forma

Kennedy’s list of named defendants includes only a “John Doe”
nurse, but the body of his complaint refers to the nurse as “Jane Doe.”
Since only one nurse is listed as a defendant, the Court infers that “John
Doe” is the nurse referred to elsewhere in the complaint as “Jane Doe.”
For clarity, the Court will direct that “John Doe Nurse” be changed to
“Jane Doe Nurse” on the docket.
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pauperis and actions concerning prison conditions. See 28 U.S.C. §
1915(e)(2)(B)(i); id. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1); see

generally Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 587–89 (W.D.
Pa. 2008) (summarizing prisoner litigation screening procedures and
standards).
The legal standard for dismissing a complaint for failure to state a
claim under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c) is the same as
that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App’x 705, 706
(3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471
(M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588. “Under Rule 12(b)(6), a
motion to dismiss may be granted only if, accepting all well-pleaded
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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56
(2007)). In deciding the 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

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notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). Although the Court must accept the fact 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)).
Kennedy brings this action for damages under 42 U.S.C. § 1983.
Section 1983 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, 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. To establish a Section 1983 claim, a plaintiff must
establish 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). To avoid
dismissal for failure to state a claim, a civil rights complaint must state
the conduct, time, place, and persons responsible for the alleged

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violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Further,
“[c]ivil rights claims cannot be premised on a theory of respondeat

superior. Rather, each named defendant must be shown . . . to have been
personally involved in the events or occurrences which underlie a claim.”

Millbrook v. United States, 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014)
(citation omitted). As explained by the Third Circuit Court of Appeals:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs . . . . [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made
with appropriate particularity.

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
III.

DISCUSSION
A. Excessive Force
Kennedy asserts that C.O. Sassani violated his constitutional

rights by “inflicting cruel and unusual punishment when he came into
[Kennedy’s] cell and assaulted him.” Because the complaint indicates
that Kennedy was a pretrial detainee at the time, the standard of “cruel
and unusual punishment” does not apply, but Kennedy’s right to be free
from excessive force was guaranteed by the Fourteenth Amendment. See

Jacobs v. Cumberland Cnty., 8 F.4th 187, 194 (3d Cir. 2021). To state a
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claim for excessive force, “[a] pretrial detainee must show [] that the force
purposely or knowingly used against him was objectively unreasonable.”

Id. (citing Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015)).
The claim appears to be based on a presumption that Sassani
physically assaulted Kennedy after asking Kennedy to sign paperwork.
Although his description of this incident is unclear, Kennedy alleges:
“Sassani then told plaintiff to sign the papers or he was coming in the cell
to assault me and we were fighting.” A liberal reading of this allegation,
and of Kennedy’s complaint in full, does not support an inference that
Sassani followed through on this threat and physically fought Kennedy.

See Morrow, 719 F.3d at 165 (court need not accept unwarranted
inferences). These allegations of “verbal harassment and threats,”
although unpleasant, do not amount to a Fourteenth Amendment
violation. See, e.g., Bressi v. Brennen, No. 4:17-CV-01742, 2018 WL
3596861, at *9 (M.D. Pa. July 6, 2018), report and recommendation
adopted, 2018 WL 3584687 (M.D. Pa. July 26, 2018).
B. Deliberate Indifference
Kennedy asserts claims against all defendants based on their
deliberate indifference to his serious medical needs. A pretrial detainee

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can state a claim under the Fourteenth Amendment by alleging (1) “a
serious medical need” and (2) “acts or omissions by [individuals] that
indicate a deliberate indifference to that need.” Thomas v. City of

Harrisburg, 88 F.4th 275, 281 (3d Cir. 2023) (citations omitted).
Deliberate indifference “requires both that an individual be aware of
facts from which the inference could be drawn of a substantial risk and
that the individual actually draws that inference.” Id.
Several of the defendants are not properly named. Kennedy seeks
to sue the York County Prison and PrimeCare, but neither is a “person”
amenable to suit under Section 1983. See, e.g., Tyrrell v. Dauphin Cnty.

Prison, No. 3:14-CV-2306, 2015 WL 5553753, at *4-5 (M.D. Pa. Sept. 18,
2015). Moreover, Kennedy does not allege an unconstitutional policy4 or
custom by PrimeCare such that a Section 1983 suit could be maintained
against York County by suing PrimeCare. See, e.g., Natale v. Camden

Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). Kennedy also

Kennedy alleges generally that PrimeCare “ignored policies,” but
it is unclear what policies he is referring to. Although he complains of
inadequate medical care, the complaint is “devoid of facts demonstrating
that any perceived deficiency in his medical treatment was the result of
PrimeCare’s policies, customs, or practices,” as opposed to the failings of
individual employees. See Tyrell, 2015 WL 5553753 at *5.
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names the Warden 5 and Deputy Warden of the York County Prison,
alleging that they were made aware of his injuries through his prison
grievances. However, awareness of a plaintiff ’s grievances does not
establish the requisite personal involvement for a Section 1983 lawsuit,
nor does the fact that the Warden and Deputy Warden held supervisory
roles. See Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020).
The remaining defendants are non-medical officers and Jane Doe,
the unidentified nurse. With respect to the non-medical officers, the
complaint does not support an inference of deliberate indifference.
Kennedy complained to officers that he should not be on the top bunk
because of his broken foot. The officers referred him to the medical staff,
contacted the medical staff on his behalf, or on at least one occasion,
ignored him. But Kennedy never alleges that he told any officer he was
being denied medical care or that the medical staff was refusing to
evaluate him. As they are described in the complaint, the officers’
responses suggest that they believed Kennedy had not yet made an
appropriate request for medical care or that he simply disagreed with the

As noted, the Warden will be retained as a defendant for the
limited purpose of identifying Nurse Jane Doe.
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medical staff ’s prior decisions. It was not deliberate indifference for the
officers to assume that Kennedy would receive appropriate care from the
medical staff. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (“If a
prisoner is under the care of medical experts . . . a non-medical prison
official will generally be justified in believing that the prisoner is in
capable hands. This follows naturally from the division of labor within a
prison.”) Even if a non-medical officer did suspect that Kennedy was not
receiving appropriate care, the Third Circuit has declined to recognize a
pre-trial detainee’s constitutional right for officers to intervene in the
denial of adequate medical care. See Thomas, 88 F.4th at 285.6

Kennedy describes two other incidents involving non-medical
officers, but neither supports an inference of deliberate indifference.
First, he complains that two officers “yanked” him from his bed into a
wheelchair when he had back spasms. Kennedy alleges he should have
been removed on a stretcher, but it is unclear from this conclusory
allegation how the alleged need for a stretcher would have been apparent
to the officers. Nothing in the complaint suggests that the officers’
decision to move him to medical segregation via wheelchair, rather than
stretcher, represented deliberate indifference.
Second, Kennedy infers that Sgt. Sell was deliberately indifferent
because he called Medical 35 minutes after Kennedy requested medical
help from a different officer. Kennedy does not explain why Sell would
have known of a request Kennedy made to a different officer. Regardless,
a “brief delay” in medical care for an injury that was not apparently lifethreatening does not itself demonstrate deliberate indifference. See, e.g.,
Joh v. Suhey, 709 F. App’x 729, 730-31 (3d Cir. 2017).
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As for the medical staff, Kennedy alleges he “received no support”
for his injuries. Beyond this general allegation, the complaint is vague as
to what medical care Kennedy requested from medical staff, who he
requested it from, how often he was seen, and whether any reason was
given for the denial of further care or for a change of bed placement.
Kennedy’s disagreement with the judgment of the medical staff, even if
it rose to the level of medical malpractice, would not itself state a
constitutional violation. Spruill, 372 F.3d at 235. Construed broadly, the
complaint describes one instance 7 in which Kennedy arguably requested
medical care directly from medical staff and was denied: the February 8,
2023 incident in which he removed his shoe and sock in the presence of
Nurse Jane Doe to show his broken foot, and Doe “ignored this.”
Accordingly, Kennedy will be permitted to proceed on a claim against
Jane Doe for deliberate indifference to a serious medical need.

Kennedy quotes another nurse as apologizing on behalf of
unnamed colleagues for not arranging an x-ray for Kennedy more
quickly. However, this bare allegation does not support an inference of
deliberate indifference. The complaint does not indicate that any
individual intentionally denied an x-ray to Kennedy while under the
belief that he needed one.
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C. Medical Malpractice
Kennedy seeks to bring a medical malpractice claim, but he has not
filed the required certificate of merit stating that his claim is supported
by expert opinion. To present a prima facie case of medical malpractice
under Pennsylvania law, “as a general rule, a plaintiff has the burden of
presenting expert opinions that the alleged act or omission . . . fell below
the appropriate standard of care in the community, and that the
negligent conduct caused the injuries for which recovery is sought.”

Lundy v. Monroe Cnty. Corr. Facility, No. 3:17-CV-2306, 2017 WL
9362913, at *4 (M.D. Pa. Dec. 18, 2017), report and recommendation
adopted, No. CV 3:17-2306, 2018 WL 2218824 (M.D. Pa. May 15, 2018)
(quoting Simpson v. Bureau of Prisons, No. 02-2213, 2005 WL 2387631,
at *5 (M.D. Pa. Sept. 28, 2005)).
Specifically, Pennsylvania Rule of Civil Procedure 1042.3 provides:
Rule 1042.3. Certificate of Merit
(a) In any action based upon an allegation that a
licensed professionals deviated from an acceptable
professional standard, the attorney for the plaintiff, or
the plaintiff if not represented, shall file with the
complaint or within sixty days after the filing of the
complaint, a certificate of merit signed by the attorney
or party that either
(1) an appropriate licensed professional has supplied a
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written statement that there exists a reasonable
probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the
subject of the complaint, fell outside acceptable
professional standards and that such conduct was a
cause in bringing about the harm, or
(2) the claim that the defendant deviated from an
acceptable professional standard is based solely on
allegations that other licensed professionals for whom
this defendant is responsible deviated from an
acceptable professional standard, or
(3) expert testimony of an appropriate licensed
professional is unnecessary for prosecution of the claim.
Pa. R. Civ. P. 1042.3. The requirements of Rule 1042.3 are deemed
substantive in nature and, therefore, federal courts in Pennsylvania
apply these prerequisites to a medical malpractice claim. See Liggon-

Reading v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011). More than
sixty days have passed since Kennedy filed his complaint, and he has not
filed a certificate of merit. Accordingly, his medical malpractice claim will
be dismissed without prejudice. See Lundy, 2017 WL 9362913, at *6.
D. Negligence
At various points within the complaint, Kennedy refers to his
malpractice claim as “negligence medical malpractice” or “negligence
malpractice.” Accordingly, the Court considers whether Kennedy has
stated a claim in ordinary negligence. In limited circumstances, courts
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within the Third Circuit have recognized a claim for ordinary negligence
when a medical provider breaches a duty that does not involve an issue
of medical judgment. See Holton v. United States, No. 4:22-CV-487, 2024
WL 2094014, at *2 (M.D. Pa. May 9, 2024) (listing cases); see also Jones
v. United States, 91 F.3d 623, 625 (3d Cir. 1996) (failure to dispense
prescribed medication sounded in negligence).
To state an ordinary negligence claim in the medical context, a
plaintiff must establish a breach of the duty of care, causing harm to the
patient, and damages suffered from that harm. See Ortiz v. United States,
No. 1:23-cv-00203, 2024 WL 1620790, at *19 (M.D. Pa. Apr. 15, 2024)
(citing Mitchell v. Shikora, 209 A.3d 307, 314 (Pa. 2019)). Kennedy’s
complaint indicates that on January 17, 2023, during the intake process,
Jane Doe had a duty to consider Kennedy’s injuries for the purpose of
assessing where he would be placed, and declined to do so, which caused
him to be placed on a top bunk, aggravating his foot injury. Construing
all reasonable inferences in Kennedy’s favor, this was not an exercise of
medical judgment, but a failure of the defendant to fulfill an
administrative obligation in screening the inmates. See Medley v. United
States, No. 1:15-CV-1261, 2016 WL 3913575, at *7 (M.D. Pa. Apr. 6, 2016)

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(claim premised on “administrative negligence” in inmate placement
sounded in ordinary negligence), report and recommendation adopted,
2016 WL 3908400 (M.D. Pa. July 19, 2016). Accordingly, Kennedy may
proceed on a state law claim of negligence against Jane Doe.
IV.

CONCLUSION
The single viable defendant is identified only as Jane Doe. 8 “Use of

John Doe defendants is permissible in certain situations until reasonable
discovery permits the true defendants to be identified.” Blakeslee v.
Clinton Cnty., 336 F. App’x 248, 250 (3d Cir. 2009). However, it does not
appear that the complaint contains sufficient information to serve the
unnamed defendant. Under these circumstances, it is appropriate to
direct service of the complaint on the Warden of the York County Prison,
for the limited purpose of identifying the defendant through discovery.
See, e.g., Murray v. Ohio Dep’t of Corr., No. 1:14-CV-168, 2014 WL
1382401, at *4 (S.D. Ohio Apr. 8, 2014); Mosby v. Doe, No. 08-CV-677SLC, 2009 WL 192502, at *1 (W.D. Wis. Jan. 27, 2009). An appropriate

Because only one nurse is listed as a defendant, the only plausible
inference is that Kennedy attributes the January 17 and February 8
incidents to the same nurse. If Kennedy discovers otherwise, he may
name the second nurse in an amended complaint.
8

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order follows.

s/Joseph F. Saporito, Jr.

Dated: October 23, 2024

JOSEPH F. SAPORITO, JR.
United States District Judge

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