Folk v. Prime Care Medical et al

Filing 115

MEMORANDUM (Order to follow as separate docket entry)Since it has been concluded that a viable civil rights claims has not been asserted against Remaining Defendant Doctor Legel, sua sponte dismissal will be entered in his favor. See 28 U.S.C. § 1915 (e)(2)(B)(ii). An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 1/26/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

OMAR FOLK,
Plaintiff
v.
PRIME CARE MEDICAL, ET AL.,
Defendants

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CIVIL NO. 3:CV-13-474
(Judge Conaboy)

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MEMORANDUM
Background
This pro se civil rights complaint was filed by Omar Folk,
an inmate presently confined at the Allenwood United States
Penitentiary, White Deer, Pennsylvania (USP-Allenwood).

A

Memorandum and Order issued August 18, 2016, granted dismissal in
favor of Defendants Perry County, Pennsylvania Prison; Warden David
Yeingst, Deputy Warden Thomas Long; Lieutenant Twigg; Sergeant
Keller; the Perry County Prison Board and Chairman Charles Chenot.
See Doc. 64.
By Memorandum and Order dated

August 24, 2016, the Attorney

General of Pennsylvania’s motion to dismiss was granted.
67.

See Doc.

A September 1, 2016 Memorandum and Order granted Defendants

City of Harrisburg, Dauphin County Prison, and Warden DeRose’s
motion to dismiss.

See Doc. 69.

By Memorandum and Order dated

January 27, 2017, a motion to dismiss by Defendant Heidi R. Freese,
an Assistant Federal Public Defender was granted.

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By Memorandum and Order dated February 13, 2017 a motion to
dismiss by Defendants include PrimeCare Medical, Inc.;1 Physician’s
Assistant (PA) Tanya Shisler; Nurse Tom Toolan; and Doctor William
Young was granted.

See Doc. 85.

As a result of those prior

decisions the only remaining Defendant is Doctor Matthew Legel.
Presently pending is Defendant Prime Care’s motion to strike
service of the Remaining Defendant.

See Doc. 90.

According to the

motion, service for Doctor Legel was improperly accepted by
PrimeCare Medical’s designated agent, its Director of Risk
Management Sandra Ulerick.

Thereafter Ulerick determined that Dr.

Legel was not and never had been an employee of PrimeCare Medical.
An exhibit accompanying the motion indicates that during the
relevant time period Doctor Legel was a first year orthopedic
resident employed by Pinnacle Health System.

See Doc. 90-4.

In a response to the motion, Folk asserts that he did not
know and was never made aware of the fact that Doctor Legel was
actually employed by Pinnacle health.

See Doc. 105, p. 1.

The

Plaintiff has also prepared and filed a new notice of summons for
Doctor Legel.

See Doc. 107.
Discussion

In an initial notice of summons prepared by the Plaintiff,
he identified Doctor Legel as being an employee of Prime Care
medical.

See Doc. 17, p. 3.

As noted above, PrimeCare Medical’s

designated agent thereafter accepted service of the complaint on
behalf of Dr. Legal.
1. PrimeCare is a private corporation which has been contracted o
provide health care for inmates.
2

There is no dispute that Dr. Legel was never a PrimeCare
Medical employee and that Ulerick was not authorized to accept
service on Legel’s behalf.

Since the alleged failure to properly

serve Doctor Legel was in part due to the Plaintiff’s improper
identification of said Defendant as being an employee of PrimeCare
the motion to strike will be granted.
The only portion of the Complaint relating to Doctor Legel
vaguely states “Doctor Matthew Legel stated I’m surprised you can
still move your leg and also stated from it taking so long I will
need reconstructed knee surgery and cask [sic] on my leg.” Doc. 1,
¶ IV.
As previously discussed by this Court’s February 13, 2017
Memorandum and Order, in order to establish an Eighth Amendment
medical claim, an inmate must allege acts or omissions by prison
officials sufficiently harmful to evidence deliberate indifference
to a serious medical need.

See Spruill v. Gillis, 372 F.3d 218,

235-36 (3d Cir. 2004); Natale v. Camden Cty. Correctional Facility,
318 F.3d 575, 582 (3d Cir. 2003). Under the subjective deliberate
indifference component of Estelle, the proper analysis for
deliberate indifference is whether a prison official “acted or
failed to act despite his knowledge of a substantial risk of
serious harm.”

Farmer v. Brennan, 511 U.S. 825, 841 (1994).

A complaint that a physician “has been negligent in
diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment [as]
medical malpractice does not become a constitutional violation

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merely because the victim is a prisoner.”

Estelle v. Gamble, 429

U.S. 97, 106 (1976)).
Based upon an application of the above standards and other
decisions cited in the February 13, 2017 Memorandum to Plaintiff’s
sole, Folk’s sparse assertion that Doctor Legel expressed an
opinion that the inmate required knee surgery, a viable deliberate
indifference claim has not been stated against the Remaining
Defendant.
Since it has been concluded that a viable civil rights
claims has not been asserted against Remaining Defendant Doctor
Legel, sua sponte dismissal will be entered in his favor.
U.S.C. § 1915 (e)(2)(B)(ii).

See

An appropriate Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED; JANUARY 26, 2018

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