Folk v. Prime Care Medical et al

Filing 85

MEMORANDUM (Order to follow as separate docket entry)Plaintiffs sparse claims against the individual Medical Defendants at best sound in negligence and as such are insufficient under Estelle. The motion to dismiss will be granted. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 2/13/17. (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) initiated. 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.

More recently, a Memorandum and

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

1

Remaining Defendants include Prime Care Medical, Inc.;1
Physician’s Assistant (PA) Tanya Shisler; Nurse Tom Toolan; and
Doctor William Young (collectively the Medical Defendants).
Presently pending is a motion to dismiss filed by the Medical
Defendants.

See Doc. 48.

The opposed motion is ripe for

consideration.
Plaintiff contends that while he was confined at the Dauphin
County prison, his “leg was swollen real hard” because of a knee
injury.

Doc. 1, ¶ IV.

given ice and crutches.

The x-ray results were negative. He was
Plaintiff admits that he also seen by

Doctor Young, who “felt leg was dislocated.”

Id.

The Complaint

also states that Doctor Young ordered x-rays, an MRI, and stronger
pain medication.
An exhibit attached to the Complaint, specifically an August
6, 2012 Memorandum from Dauphin County Warden DeRose, indicates
that Folk hurt his knee on July 27, 2012 in the Dauphin County
Prison gym.

See Doc. 1, p. 7.

The exhibit adds that Plaintiff was

prescribed x-rays, pain medication, medical restrictions, crutches,
and an ACE wrap that same day.

DeRose also noted that Plaintiff

would not allow complete examinations during two follow up visits
with the prison medical staff. Other exhibits show that Plaintiff
was confined at the Perry County Prison between September-December
2012 where he had an MRI and was scheduled for surgery on December
11, 2012.

See id. at p. 11.

1. PrimeCare is a private corporation which has been contracted to
provide health care for inmates.
2

Folk also generally contends that Defendants Shisler and
Toolan did not provide treatment “fast enough.”

Id. Folk futher

alleges that because his knee has not been properly treated for
seven months, he will require surgery.
Discussion
Medical Defendants claim entitlement to dismissal on the
grounds that: (1) a viable claim has not been sufficiently asserted
against Defendant PrimeCare; and (2) the complaint fails to set
forth any facts which could support a deliberate indifference
claim.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of complaints that fail to state a claim upon which
relief can be granted.

When ruling on a motion to dismiss under

Rule 12(b)(6), the court must “accept as true all factual
allegations in the complaint and all reasonable inferences that can
be drawn therefrom, and view them in the light most favorable to
the plaintiff.”

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.

2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
A plaintiff must present facts that, if true, demonstrate a
plausible right to relief.

See Fed. R. Civ. P. 8(a)(stating that

the complaint should include “a short and plain statement of the
claim showing that the pleader is entitled to relief”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This requirement “calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of” the
necessary elements of the plaintiff’s cause of action.
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Id. at 556.

A complaint must contain “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” 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.”
Id.

Legal conclusions must be supported by factual allegations and

the complaint must state a plausible claim for relief.
679.

See id. at

Legal conclusions must be supported by factual allegations

and the complaint must state a plausible claim for relief.

See id.

at 679.
“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, at 555.

The reviewing court must determine whether the

complaint “contain[s] either direct or inferential allegations
respecting all the material elements necessary to sustain recovery
under some viable legal theory.”

Id. at 562; see also Phillips v.

County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to
survive a motion to dismiss, a plaintiff must allege in his
complaint “enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s]” of a
particular cause of action).

Additionally, pro se pleadings are to

be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).
PrimeCare
The Medical Defendants’ initial argument contends that
asserts that “Plaintiff does not make any allegation regarding
policies or customs of PrimeCare.”

Doc. 49, pp. 7-8.

Consequently, the Medical Defendants argue that Plaintiff is
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improperly attempting to establish liability against PrimeCare
solely on a vicarious liability theory, i.e., that its employees
were deliberately indifferent to his medical needs.
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of law,
and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States.

Groman v. Township of Manalapan, 47 F.3d 628, 638

(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 114142 (3d Cir. 1990).
Claims brought under § 1983 cannot be premised on a theory
of respondeat superior.
(3d Cir. 1988).

Rode v. Dellarciprete, 845 F.2d 1195, 1207

Rather, each named defendant must be shown, via

the complaint's allegations, to have been personally involved in
the events or occurrences which underlie a claim.

See Rizzo v.

Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,
546 F.2d 1077 (3d Cir. 1976).

As explained in Rode:

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, 845 F.2d at 1207.
A review of the complaint establishes that there are no
allegations of constitutional misconduct directly asserted against
PrimeCare.

Rather, the complaint generally maintains that medical
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staff at the Dauphin and Perry County Prisons failed to provided
him with adequate medical care for his knee injury.
Based on the nature of Folk’s allegations, it is apparent
that he is attempting to establish liability against PrimeCare
solely on the basis that it employs medical staff members who were
involved in his care.

There are clearly no claims that the alleged

constitutional misconduct was caused by any PrimeCare policy,
practice or custom.

Thus, under the standards developed in Capone,

Plaintiff’s assertions are insufficient for purposes of
establishing liability against PrimeCare under § 1983.

Since there

are no allegations that PrimeCare had direct involvement or
acquiescence in any constitutional misconduct, it is entitled to an
entry of dismissal.
Deliberate Indifference
The remaining Medical Defendants

assert that the Complaint

fails to allege any facts which could support a claim that any of
them acted with deliberate indifference to Plaintiff’s medical
needs.

See Doc. 49, p. 4.
The Eighth Amendment “requires prison officials to provide

basic medical treatment to those whom it has incarcerated.”

Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)).

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).
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In the context of

medical care, the relevant inquiry is whether the defendant was:
(1) deliberately indifferent (the subjective component) to (2) the
plaintiff’s serious medical needs (the objective component).
Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).
A serious medical need is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor’s
attention.”

Mines v. Levi, 2009 WL 839011 *7 (E.D. Pa. March 26,

2009)(quoting Colburn, 946 F.2d at 1023); Monmouth Cty. Corr. Inst.
Inmates, 834 F.2d at 347.

“[I]f unnecessary and wanton infliction

of pain results as a consequence of denial or delay in the
provision of adequate medical care, the medical need is of the
serious nature contemplated by the Eighth Amendment.” Young v.
Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth
Cty. Corr. Inst. Inmates, 834 F.2d at 347).
With respect to the serious medical need requirement,
Plaintiff’s allegation that he has been diagnosed and treated for a
knee injury is sufficient at this juncture to satisfy the serious
medical need requirement.
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.”
825, 841 (1994).

Farmer v. Brennan, 511 U.S.

A complaint that a physician “has been negligent

in diagnosing or treating a medical condition does not state a

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valid claim of medical mistreatment under the Eighth Amendment [as]
medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.”

Estelle, 429 U.S. at

106.
When a prisoner has actually been provided with medical
treatment, one cannot always conclude that, if such treatment was
inadequate, it was no more than mere negligence.
O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

See Durmer v.

It is true, however,

that if inadequate treatment results simply from an error in
medical judgment, there is no constitutional violation.

See id.

However, where a failure or delay in providing prescribed treatment
is deliberate and motivated by non-medical factors, a
constitutional claim may be presented.

See id.; Ordonez v. Yost,

289 Fed. Appx. 553, 555 (3d Cir. 2008) (“deliberate indifference is
proven if necessary medical treatment is delayed for non-medical
reasons.”).
It is initially noted that due to the vagueness of the
Complaint it is unclear as to whether Defendants Shisler, Toolan,
and Young provided medical care to Plaintiff at the Dauphin County
Prison, the Perry County Prison, or both.

Based upon an

application of Estelle, the Complaint to the extent that it seeks
to establish liability against Shisler and Toolan based solely on
the vague contention that they did not provide care fast enough is
insufficient to satisfy the subjective deliberate indifference

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component.2

Given that exhibits accompanying the Complaint show

that Plaintiff was provided with care on July 27, 2012, the same
day he injured his knee and thereafter had treatment which included
x rays, MRI and ultimately surgery on December 11, 2012 there was
clearly timely and ongoing care provided to Plaintiff.

As such,

those claims at best would represent Folk’s disagreement with the
quality of the medical care provided to him, assertions which are
not actionable in a civil rights action.

See Davidson v. Cannon,

474 U.S. 344, 347-48 (1986)(medical negligence does not expose a
defendant to liability under § 1983).

Simply put, “[a]llegations

of negligent treatment are medical malpractice claims, and do not
trigger constitutional protections.”
1441.

Whooten v. Bussanich, No. 07-

Dismissal will be granted in favor of Defendants Shisler and

Toolan with respect to the vague assertion that they did not act in
a timely fashion.
With respect to the vague claim that Doctor Young was
deliberately indifferent; the Complaint contends only that at some
unknown point Doctor Young felt that Plaintiff had a dislocated
leg, ordered x-rays and prescribed stronger pain medication.

This

brief assertion simply does not support a claim of deliberate
indifference.

Since it would appear that the ordering of an x-ray

was an reasonable response, there is simply no factual basis for a
claim that Young failed to provide needed or timely treatment.

2. This determination is bolstered by Plaintiff assertions in his
opposing brief that he was only seen by Shisler on the day of his
injury and that Toolan only performed an intake evaluation of the
Plaintiff when he entered the Perry County Prison.
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Although Plaintiff’s assertion that there was an unwarranted
delay in surgery from July 28, 2012 to December 11, 2012, that
could arguably set forth a claim of medical malpractice/
negligence, the brief, vague factual assertions set forth against
the individual Medical Defendants are insufficient to support an
assertion of deliberate indifference.

Based upon the facts alleged

in the Amended Complaint, this is not a case where medical
treatment was denied.

There is also no assertion that treatment

was delayed for a non-medical reason.

Plaintiff also acknowledges

that initial treatment was provided on the day of his injury and
that diagnostic testing and additional care was given which
culminated in surgery being scheduled.
Plaintiff’s sparse claims against the individual Medical
Defendants at best sound in negligence and as such are insufficient
under Estelle.

The motion to dismiss will be granted.

An

appropriate Order will enter.3

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: FEBRUARY 13 , 2017

3. In additional response to the motion to dismiss, Plaintiff
filed an untimely request for leave to amend his Complaint.
However, his proposed amendments do not overcome the deficiencies
outlined in this Memorandum
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