Collins v. DeRose et al

Filing 38

MEMORANDUM (Order to follow as separate docket entry)Since Plaintiff has not submitted a Rule 1042.3 certificate of merit or otherwise indicated that he has retained an expert witness, it is appropriate for this court to dismiss his pendent state law claim of medical malpractice/negligence claims against PrimeCare without prejudice. See Osorio v. United States, 2007 WL 2008498 *2 (W.D. Pa. July 5, 2007); see also Henderson v. Pollack,2008 WL 282372 *4 (M.D. Pa. Jan 31, 2008)(Caldwell, J.)(citing Hartman v. Low Security Correctional Institution, Allenwood, 2005 WL 1259950 * 3 (M.D. Pa. May 27, 2005)(Muir, J.).Signed by Honorable Richard P. Conaboy on 2/8/16. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MATTHEW A. COLLINS,
Plaintiff
CIVIL NO. 3 : CV -14- 2425

v.

DOMMINICK L. DEROSE, ET AL.,

FILED
•.1\. 'TO

(Judge Conaboy)

Defendants

. 0 B 2016

-- MEMORANDUM

Background

Matthew A . Collins

(Plaintiff), an inmate presently confined

at the Forest State Correctional Institution, Marienville,
Pennsylvania (SCI -Forest) , initiated this pro se civil rights
action pursuant to 42 U.S.C. § 1983.
previously ordered .

Service of the Complaint was

Named as Defendants are Plaintiff's prior

place of in carceration , the Dauphin County Prison, the prison's
Medical Department, and its Warden Dominick DeRose.
According to the Complaint and attached exhibits, on the
morning of August 24, 2014, while on a work detail the Plaintiff
slipped and fell on a "wet and saturated" floor in an upstairs
shower area of the Dauphin County Prison.

Doc. 1, p.

3.

Collins

indicates that there were no wet floor signs near the site and the
area was unlit at the time of his fall. As a result of his mishap,
Plaintiff allegedly injured his back, lower back, and tail bone.

1

~

Collins acknowledges that prison medical staff were notified
and responded within ten minutes.

He was helped off the floor and

son's medi

was taken to the

department but was allegedly not

provided with any treatment.
In response to Plaintiff's continued complaints of lower
back pain, an x-ray was ordered and performed on August 26, 2014.
cribed Naprosyn

He was also

r pain.

Thereafter, Collins was

transferred to a state correctional facility where he is allegedly
been

scribed a cane and pain medication.

The Complaint also

udes a claim that although Collins has undergone diabetes
ison, he was deni

testing at the
"diabetic me

previously prescribed

cation for 6 month[s]."

Id. at p. 4.

Plaintiff

seeks compensatory damages for pain, suffering, negligence, and
emotional stress.
Presently pending is a motion to dismiss filed by Defendant
PrimeCare Medical, Inc.
identified in t
Doc. 20.

("PrimeCare") which is erroneously

Complaint as being Defendant Medical Department. 1

Plaintiff has opposed

motion.

See Doc. 23.

Discussion
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
legations in the complaint and all reasonable inferences that can
1.
PrimeCare is a pr
e corporation which has been contracted by
the Dauphin County Prison to provide health care for its inmates.
2

be drawn therefrom, and

ew them in t

the plaintiff."

light most favorable to

489 F.3d 170, 177 (3d Cir.

2007) (quoting

423 F.3d 347, 350 (3d Cir. 2005)).

A plaintiff must present facts that, if true, demonstrate a
plausible ri

to relief.

See

R.

. 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

11 reveal evidence of" the necessary elements of the

plaintiff's cause of action.
"more than an unadorned, the

Id. at 556.

A complaint must contain

fendant unlawfully-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."
conclusions must be supported by factual all

Legal

ions and the

complaint must state a plausible claim for relief.

See

. at 679.

"Factual allegations must be enough to raise a right to
relief above the speculat

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 t

complaint "contain[sj either direct or inferential allegations
respecting all the material elements necessary to sustain recovery
under some viable legal theory."

. at 5

County of Allegheny, 515 F.3d 224, 234

; see also

(3d Cir. 2008) (in order to

survive a motion to dismiss, a plaintiff must allege in his
complaint "enough facts to

se a reasonable expectation that

discovery will reveal evidence of the necessa
3

element[sj" of a

particular cause of action).

Additionally,

be construed liberally,

QKQ

se pleadings are to

404 U.S. 519, 520 (1972).

Personal Involvement

PrimeCare's initial argument is that
against it are improperly "premised upon
21, p. 9.

Plaintiff's c1a

carious liability."

The moving Defendant adds that t

Doc.

Complaint does not

raise any averments showing that it had any policies or customs
which res

ed in del

rate indifference.

A plaintiff, in order to state an actionable ci
two essential elements:

claim, must pI

(1)

that

1 rights
conduct

complained of was committed by a person acting under color of law,
(2) that said conduct depri

the plaintiff of a right,

privilege, or immunity secured by the Constitution or laws of the
Groman v. Township of Manalapan, 47 F.3d 628,

United States.
638

(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135,

1141 42

(3d Cir. 1990).
Furthermore, federal civil rights claims brought under

1983 cannot

premised on a theory of respondeat superior.
845 F.2d 1195, 1207 (3d Cir. 1988).

named defendant must be shown, via

§

Rode v.

Rather, each

complaint's allegations, to

have been personally involved in the events or occurrences which
underlie a claim.
v.

Rizzo v. Goode, 423 U.S. 362 (1976) i Hampton

Holmesburq Prison Officials, 546 F.2d 1077 (3d Cir. 1976).

explained in Rode:
A defendant in a civil rights action must have
personal involvement
the alleged wrongs.
[PJersonal involvement can be shown
through allegations of personal direction or
of actual knowledge and acquiescence.
legations of participation or actual
4

As

knowledge and acquiescence, however, must be
made with appropriate particularity.
II~~~'

845 F.2d at 1207.
In order to establish a viable

§

1983 claim against a

private corporate entity such as PrimeCare, it must be asserted that
said defendant had a policy, practice, or custom which caused injury
2009 WL 890683 * 2 (E.D.

to the plaintiff. See
Pa. March 31, 2009)

(a private health care provider can only be

liable under § 1983 if claim rests upon some policy, practice or
Riddick v. Modery, 250 Fed. Appx. 482, 483-84

custom); see

(3d

Cir. 2007); Carpenter v. Kloptoski, 2010 WL 891825 * 8 (M.D. Pa.
March 10, 2010)

(§

1983 claim against

ivate medical se

ce solely

on the basis that it was responsible for providing health care is
subject to dismissal) .
In Natale v. Camden Cty. Correctional Facility, 318 F.3d
575, 582

(3d Cir. 2003), the Third

rcu

Court of Appeals

addressed a delayed treatment claim by a diabetic pre-trial detainee
who entered confinement with a medical direct
must have insulin while incarcerated.

stating that he

The Court

Appeals stat

liability could exist against an entity such as PrimeCare if it
"turned a blind eye to an obviously inadequate practice."

Natale,

318 F. 3d at 584
Based upon a careful review of the Comp

int, Collins makes

no assertion that PrimeCare enacted any policy, custom, or practice
which resulted in a violation of his constitutional rights.
the Complaint concedes that Plaintiff received an x
medication following

Second,

and pain

s fall and also underwent testing for his

diabetes. Unlike Natale there is no basis for a claim that PrimeCare
5

failed to create a policy to provide
injured or diabetic prisoners.

the necessary treatment of

Rather, this case concerns a

prisoner's claim that there was failure to adequately treat an
injury and his diabetes but the Complaint does not point to any
policy or practice that caused that failure.

Stankowski v.

487 F. Supp.2d 543, 554-555 (M.D. Pa. 2007).

As such, there

is no discernible basis for liability against PrimeCare.
Accordingly, PrimeCare's request for entry of dismissal will
be granted.

Carpenter v. Kloptoski, 2010 WL 891825 * 8 (M.D.

Pa. March 10, 2010) (§ 1983 claim against private medical service
solely on the basis that

was responsible for providing health

care is subject to dismissal).
Deliberate Indifference
PrimeCare alternatively argues that Plaintiff's claim of
constitutionally insufficient medical care following his mishap is
insufficient.

Doc. 21, p. 9.

Specifically,

is asserted that the there is no basis for

a discernible claim because Collins acknowledges that he was
provided with medical assistance within minutes following his

11

which eventually included the taking of an x ray and administration
of pain medication.

The Defendant adds that since Plaintiff admits

that he was given a finger stick blood glucose test and was able to
get by without diabetes medication for the duration of his six month
stay in the Dauphin County Prison the alleged denial of an
!unidentified purportedly previously prescribed medication did not
constitute deliberate indifference.

See id. at pp. 9-10.

2. Plaintiff's opposing brief lists three medications, Metformin
(continued ... )
6

The Eighth Amendment "requires

son officials to provide

basic medical treatment to those whom it
182 F.3d 192, 197 (
Gamble,

429 U.S. 97

(1976)).

s incarcerated."

Cir. 1999)

(citing Estelle v.

In order to establish an Eighth

cal claim, an inmate must allege acts or omissions by

Amendment

prison officials sufficiently harmful to ev
indif

Rouse

deliberate

rence to a serious medical

372

F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Cty. Correctional
318 F.3d 575, 582 (3d Cir. 2003).

In the context of

medical care, the relevant inquiry is whether the
deliberately
aintiff's s

fendant was:

(1)

fferent (the subjective component) to (2) the
ous medical

(the object

component) .

Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987) i West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).
A serious medical need is "one that has been diagnos

by a

physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a
attention."

Mines v. Levi, 2009 WL 839011 *7

2009) (quoting Colburn, 946 F.2d at 1023)
Inmates, 834 F.2d at 347.

(E.n. Pa. March 26,

i

"[IJf unnecessary and wanton infliction

of pain results as a cons
of

r's

quate medical care, the

of denial or delay in the provision
cal 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.
n~~~~'

igent conduct that leads to

834 F.2d at 347). Mere

2.
( ... continued)
(a type 2 diabetes medication), Hetz, and
2.
7

irin.

Doc. 23, p.

serious injury of a prisoner does not expose an individual to
liability under

§

1983.

Davidson v. Cannon, 474 U.S. 344, 347-48

(1986) .
with respect to

serious medical ne

requirement, this

Court is satisfied that Plaintiff's allegation of having diabetes
satisfies the serious medical need standard at this stage in the
proceedings.

However, it is questionable as to whether the pain

Collins purportedly suffered as a result of his sl
medical need.

to the level of a ser

3

with respect to the subjective

liberate indifference

the proper analysis

component of

and fall rises

r del

rate

indifference is whether a prison official "acted or failed to act
de

e his knowledge of a substantial risk of serious harm."

II~~~~~~~~~'

physician "has
condition
the

511 U.S. 825, 841 (1994).

A complaint that a

negligent in diagnosing or treating a medical

s not state a valid claim of medical mistreatment under

ghth Amendment [as]

cal malpractice does not

come a

constitutional violation merely because the victim is a prisoner."
429 U.S. at 106.
When a prisoner has actually been provided wi

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).

Durmer v.

It is true, however,

that if inadequate treatment results simply from an error in me
judgment,

re is no constitutional

where a failure or

lation.

See

cal

However,

lay in providing prescribed treatment is

3. The Plaintiff's opposing brief states that he suffe
for two
Doc. 23, p. 2
8

in pain

rate and motivated by

del

cal factors, a constitut

claim may be presented.

See

553, 555 (3d Cir. 2008)

(\\del

necessa

289 Fed.
e indifference is proven if

medical treatment is de

for non-medical reasons."}.
ration of Plaintiff's

Based upon a liberal cons
tions, the subjective

aIle

I

rate indifference component has

n met with respect to De

not

PrimeCare. Allegations of

treatment are medical rna
ct

r constitutional

tri

Collins was given t

ctice claims, and do not

s.

ly appropriate diagnostic testing in
s, x-rayed for an aIle

e to his medical

re

nal

k

and given a finger stick blood glucose test when he indicated
had diabetes.

S

PIa

tiff's claims as stated

to represent his disa
by individual unidentifi

r at

with determinations/assessments
members of the prison

cal

staff/PrimeCare employees after the completion of diagnostic
testing, there is no discern

e basis for a claim of

i

PrimeCare.

fference against De

I

rate

Certificate of Merit

The moving De

ndant also contends that Plaintiff's pendent

state law claims of medi

ligence should be di

ssed because

he failed to file the required certificate of me

Doc. 21,

p. 10.

Rule 1042.3 requires a person who brings a

aim of medical

malpractice/negligence to file an appropriate certificate of merit
e

sixty (60) days therea

r with the complaint or wi
e 1042.3 certificate must certi

9

that either:

(1)

an

er.

The
riate

licensed professional has s
exists areas

ied a written statement that there

le probability that the conduct which is the

subject of the complaint fell outside acceptable professional
standards and was a cause in bringing about the harm;

(2) the claim

of deviation by defendant from an acceptable professional st
is based solely upon all

ions that other licensed professionals

is respons

for whom

standard;

profess

rd

e deviated from an accept

e

(3) expert testimony of an appropriate

ssional is unnecessary.

licensed

Courts within this circuit have re

zed that Rule 1042.3

is substantive law and should be applied by federal courts sitting
In

divers

Schwalm v. Allstate Boliler & Construction, 2005 WL

1322740 *1 (M.D. Pa. May 17, 2005) (Caputo, J.); Scaramuzza v.
Sciolla, 345 F. Supp.2d 508, 509 10 (E.D. Pa. 2004).
Plaintiff's

rceration or

In addit

se status is not a viable basis

upon which to excuse compl

with Rule 1042.3 or the requirement

of coming forth with expert

cal testimony.

See Perez v.

Griffin, 2008 WL 2383072 *3 (M.D. Pa. June 9, 2008) (Rule 1042.3
applies to

rcerated and Q£Q se plaintiffs and constitutes a rule

of substant

state law to which plaintiffs in federal court must

comply) .
S

of merit or

Plaintiff has not submitted a Rule 1042.3 certificate
rwise indicated that he has retained an

witness, it is appropr

e for this court to dismiss his pendent

state law claim of medical malpractice/negligence cla
PrimeCare without prejudice.
2008498 *2

rt

inst

See Osorio v. United States, 2007 WL

(W.D. Pa. July 5, 2007); see

10

Henderson v. Pollack,

2008 WL 282372 *4

(M.D.

Fa.

Jan 31, 2008) (Caldwell,

J.) (

ting

Hartman v. Low Security Correctional Institution, Allenwood, 2005 WL
1259950 * 3 (M.D.

Fa. May 27,

2005) (Muir,

States

DATED:

FEBRUARY

cbtcf

2016

11

J.).