Reed v. Lackawanna County et al
Filing
30
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 9/28/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES REED,
:
Plaintiff
:
:
v.
LACKAWANNA COUNTY, et al.,
Defendants
CIVIL ACTION NO. 3:16-2143
(MANNION, D.J.)
(MEHALCHICK, M.J.)
:
:
MEMORANDUM
Pending before the court is the report of the magistrate judge filed on
July 26, 2017, (Doc. 26), which recommends that Counts IV, V, VI and VII of
the plaintiff’s complaint be dismissed; the Medical Defendants’ motion to
dismiss, (Doc. 18), be dismissed as moot; the Lackawanna County
Defendants’ motion to dismiss, (Doc. 10), be denied; and that the matter be
remanded for further proceedings. The Lackawanna County Defendants filed
objections to the report, (Doc. 27), along with a brief in support thereof, (Doc.
28). Upon review, the report and recommendation will be adopted, in part, and
the matter will be remanded for further proceedings.
I.
PROCEDURAL HISTORY
By way of relevant background, on October 24, 2016, the plaintiff, a
former pre-trial detainee at the Lackawanna County Prison, filed the instant
counseled civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). On
December 22, 2016, defendants Robert Cornall, Lackawanna County, Brian
Langan, Robert McMillan, Corey O’Brien, Patrick O’Malley, and Jim Wansacz,
(“Lackawanna County Defendants”), filed a motion to dismiss the plaintiff’s
complaint. (Doc. 10). A brief in support of the motion was filed on January 4,
2017. (Doc. 11).
On February 2, 2017, defendants Correctional Care, Inc., Anthony
Iannuzzi, John/Jane Doe Medical Staff I-X, Ken McCowley, Alexis Morskat,
Ruth, Eugene Tockett and Edward Zaloga, (“Medical Defendants”), filed a
motion to dismiss the plaintiff’s complaint. (Doc. 18). On February 6, 2017, a
brief was filed in support of the Medical Defendants’ motion to dismiss. (Doc.
20).
The plaintiff filed a combined brief in opposition to the defendants’
motions to dismiss his complaint on February 20, 2017. (Doc. 22). This was
followed by the Lackawanna County Defendants’ reply brief on March 2, 2017,
(Doc. 23), and the Medical Defendants’ reply brief on March 6, 2017, (Doc.
24).
On July 26, 2017, the pending report and recommendation was issued.
(Doc. 26). On August 3, 2017, the Lackawanna County Defendants filed
objections to the report, (Doc. 27), along with a brief in support thereof, (Doc.
28). No other party has filed objections to the report and recommendation.
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II.
STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
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III.
DISCUSSION
The following summarization of the factual allegations contained in the
plaintiff’s complaint is set forth in the report, to which no party has objected:
On October 15, 2014, Plaintiff James Reed entered
Lackawanna County Prison for incarceration. (Doc. 1, ¶36). As a
result of surgery undergone prior to incarceration, Reed must use
a colostomy bag exposing his “innards and/or broken skin when
it had to be removed, cleaned, and/or replaced,” and necessitated
a sanitary environment when cleaned. (Doc. 1, ¶37). Reed
informed the prison of this via his intake form at the time of
admission. (Doc. 1, ¶40). Despite his requests, staff denied Reed
access to medical equipment related to his condition, including
equipment provided by Reed’s wife. (Doc. 1, ¶42). Reed was
released on October 16, 2014, before being reincarcerated at the
facility on October 23, 2014. (Doc. 1, ¶43).
Upon readmission to the prison, Reed again informed
officials of his medical needs, and he was again placed in the
medical unit. (Doc. 1, ¶¶44-46). Reed alleges that on a daily basis
during his second incarceration, Defendants from both of the
identified groups [Lackawanna County Defendants and Medical
Defendants] ignored his stated needs for supplies and particular
conditions for cleaning his colostomy bag. (Doc. 1, ¶47). As with
Reed’s initial incarceration, prison officials refused to permit him
access to the medical supplies provided by his wife. (Doc. 1, ¶49).
Reed states that cleaning of his colostomy bag, meant to be
done three times a day, requires a clean environment with
running, hot water, access to antibacterials for cleaning, and
proper tools; none of which were available to him during his time
in the prison. (Doc. 1, ¶¶50-52). Reed complained of the
conditions daily, yet was never provided an adequate environment
for cleaning. (Doc. 1, ¶56). Instead, Reed was deprived access to
a sink, being forced to clean the bag in the toilet of his cell. (Doc.
1, ¶¶53-54). Reed developed “numerous internal and skin
infections” as a result of the conditions. (Doc. 1, ¶57). These
infections manifested as severe skin rashes across his body and
face, high fever, and bleeding from his side. (Doc. 1, ¶59). Daily,
Reed requested medical treatment and was ignored. (Doc. 1,
¶60).
On November 20, 2014, Reed was released and
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immediately sought medical treatment. (Doc. 1, ¶61). Reed “was
diagnosed with multiple severe infections and was required to
undergo invasive and painful surgery that would have otherwise
been unnecessary but for his lack of care at the Prison.” (Doc. 1,
¶62). He states that he still suffers and will continue to suffer
physically and mentally as a result of his time in the Prison. (Doc.
1, ¶63).
(Doc. 26, pp. 2-3). Based upon these allegations, the plaintiff sets forth the
following claims in his complaint: “Count I - Municipal Liability, Failure to
Supervise, Failure to Train and Civil Rights Violations Caused By Policy as to
Defendant County, Defendant O’Malley, Defendant Wansacz, Defendant
O’Brien, Defendant McMillan, Defendant Langan, Defendant Contractor, and
Defendant Zaloga, United States Constitution, Amendment XIV, 42 U.S.C.
§§1983"; “Count II - Individual Violations as to Defendants Zaloga, Cornall,
Tockett, Iannuzzi, Morskat, Ruth, McCowley, John Doe Medical Defendants,
and John Doe Correctional Defendants, United States Constitution,
Amendments XIV; 42 U.S.C. §§1983"; “Count III - Conspiracy, Failure to
Intervene, Failure to Supervise, and Failure to report as to Defendants
Zaloga, Cornall, Tockett, Iannuzzi, Morskat, Ruth, McCowley, John Doe
Medical Defendants, and John Doe Correctional Defendants, United States
Constitution, Amendment XIV, 42 U.S.C. §§1983"; “Count IV - Supplemental
State Law Claim for Intentional Infliction of Emotional Distress, against
Defendants Zaloga, Cornall, Tockett, Iannuzi, Morskat, Ruth, McCowley, John
Doe Medical Defendants, and John Doe Correctional Defendants”; “Count V -
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Supplemental State Law Claim for Civil Conspiracy Against All Defendants”;
“Count VI - Supplemental State Law Claim for Medical Negligence,
Negligence, and Gross Negligence against Defendants Zaloga, Contractor,
McCowley and John Doe Medical Defendants”; and “Count VII - Supplemental
State Law Claim for Corporate Negligence against Defendant Contractor”.
In support of their motion to dismiss the plaintiff’s complaint, the
Lackawanna County Defendants argued that the plaintiff: (1) failed to exhaust
his administrative remedies at the Lackawanna County Prison prior to filing
the instant action; (2) failed to state a claim for failure to train; (3) failed to
state a claim for a violation of his right to due process under the Fourteenth
Amendment; (4) failed to state a claim for intentional infliction of emotional
distress by defendant Cornall; (5) failed to state a claim for civil conspiracy;
and (6) is barred from relief on all claims from his first incarceration due to
filing his complaint outside of the two-year statute of limitations. In support of
their motion to dismiss the plaintiff’s complaint, the Medical Defendants also
argued that the plaintiff had failed to exhaust his administrative remedies prior
to bringing the instant action, and argued that the plaintiff had failed to file the
required certificates of merit for his medical and corporate negligence claims
in Count VI and VII. Considering these arguments, the magistrate judge
issued the instant report containing the above recommendations.
The court begins its review of the report with those recommendations
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to which no objections have been filed. Initially, it is recommended that
Counts IV, V, VI and VII of the plaintiff’s complaint be dismissed, “as the
plaintiff has acknowledged their insufficiency in his brief in opposition to the
defendants’ motions to dismiss”. Upon review, in his combined brief in
opposition to the defendants’ motions to dismiss his complaint, the plaintiff
“concedes that Counts IV and V should be dismissed against the County
Defendants only . . .” Counts IV and V of the plaintiff’s complaint are brought
against both Lackawanna County Defendants and Medical Defendants.
Although the plaintiff has not objected to the report dismissing Counts IV and
V as to the Medical Defendants, it does not appear from his filings that the
plaintiff acknowledges the insufficiency of Counts IV and V with respect to
these defendants. As such, the report will be adopted to the extent it
recommends dismissal of Counts IV and V against the Lackawanna County
Defendants only, and not adopted to the extent it recommends the dismissal
of Counts IV and V against the Medical Defendants.
With respect to Counts VI and VII, these Counts are brought only
against Medical Defendants. The Medical Defendants sought dismissal of
these Counts on the basis that the plaintiff had failed to file the required
certificates of merit. In his combined brief opposing the defendants’ motions
to dismiss, the plaintiff “concurs in the dismissal of the medical negligence
under Counts VI and VII of the Complaint.” The plaintiff asks, however, that
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such dismissal be without prejudice. If a plaintiff fails to file the required
certificate of merit within sixty (60) days of filing the complaint, the proper
procedure in federal practice is to file a motion pursuant to Fed.R.Civ.P.
12(b)(6) to dismiss the professional negligence claim without prejudice.
Stroud v. Abington Mem'l Hosp., 546 F.Supp.2d 236, 250 (E.D. Pa. 2008). As
such, the court will adopt the recommendation to dismiss Counts VI and VII
of the plaintiff’s complaint, with the added provision that such dismissal be
without prejudice.
It is next recommended that the Medical Defendants’ motion to dismiss
be dismissed as moot, as all claims contained within have been withdrawn.
Upon review, the Medical Defendants’ motion to dismiss was brought on two
bases. First, the Medical Defendants sought dismissal of the plaintiff’s
complaint, in its entirety, for his failure to exhaust his administrative remedies
pursuant to the Prison Litigation Reform Act, (“PLRA”), 42 U.S.C. §1997(e)(a).
Second, the Medical Defendants sought dismissal of Counts VI and VII of the
plaintiff’s complaint for failure to file the required certificates of merit. Based
upon the plaintiff’s representation in his opposing brief that he was not
required to exhaust administrative remedies because he has not been
incarcerated since on or about November 20, 2014, the Medical Defendants
withdrew that portion of their motion to dismiss. Moreover, because the
plaintiff concurred in the dismissal of Counts VI and VII, the Medical
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Defendants represented that their motion to dismiss was moot. In light of the
foregoing, the court finds that there is no clear error on the face of the record
with respect to the recommendation that the Medical Defendants’ motion to
dismiss be dismissed as moot, and the court will adopt the report and
recommendation in this respect.
The court then moves to those portions of the report to which there are
objections. In this regard, the Lackawanna County Defendants initially argue
that it appears that the magistrate judge believes that they were requesting
that the plaintiff’s entire action be dismissed as untimely. To the contrary, the
Lackawanna County Defendants point out that they were only seeking to have
any claims related to the plaintiff’s incarceration from October 15, 2014 to
October 16, 2014 dismissed as untimely. Apparently, the plaintiff understood
the Lackawanna County Defendants’ motion in this regard, as he indicated by
responding that he “does not seek relief related to conduct occurring between
October 15, 2014 and October 16, 2014" but “only seeks relief relative to his
incarceration from October 23, 2014 through November 20, 2014, which is
within the statute of limitations.” In light of the plaintiff’s statements, the
Lackawanna County Defendants seek acknowledgment on the record that
there are no claims being made for the conduct occurring between October
15, 2014 and October 16, 2014, thereby making their motion moot in this
respect.
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In considering the timeliness issue, the magistrate judge correctly
provided that “[a] complaint is subject to dismissal for failure to state a claim
on statute of limitations grounds only when the statute of limitations defense
is apparent on the face of the complaint.” (Doc. 26, p. 6) (citations omitted).
In reviewing the allegations of the plaintiff’s complaint, including those from
the plaintiff’s incarceration on October 15, 2014 and October 16, 2014, the
magistrate judge indicated:
Thus, the question becomes whether or not it is apparent on the
face of the complaint that Reed knew or should have known of his
injuries during the first incarceration. It is not clear exactly when
Reed developed medical complications as a result of the conduct
alleged, however it is apparent that symptoms did not manifest
until sometime during the second incarceration. Thus, at this
procedural juncture, Reed may be excused from not knowing the
need to press his rights during or immediately following his initial
one-night stay in the Prison.
(Doc. No. 26, p. 10) (citations omitted). The magistrate judge went on to
consider whether any alleged violations on October 15, 2014 and October 16,
2014 fit ongoing violations under the continuing violations doctrine and were
therefore subject to equitable tolling. In doing so, the magistrate judge
determined that the factors for application of the continuing violations doctrine
appeared to weigh in favor of the plaintiff. Accordingly, the magistrate judge
indicated that it could not be said that the plaintiff’s allegations were untimely
at this stage of the proceedings and recommended that the Lackawanna
County Defendants’ motion to dismiss on timeliness grounds be denied.
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In considering the record, including the brief supporting the Lackawanna
County Defendants’ motion to dismiss and the plaintiff’s response thereto, it
is apparent that the Lackawanna County Defendants were only arguing that
the allegations relating to the plaintiff’s incarceration from October 15, 2014
and October 16, 2014 be dismissed as untimely and that the plaintiff made
clear that he was not seeking any recovery for that period of time. As such,
the Lackawanna County Defendants’ objections will be sustained on this
basis. Rather than denying the Lackawanna County Defendants’ motion
related to timeliness, the court will dismiss the motion as moot in light of the
fact that the plaintiff concedes that he is not seeking any relief for this period
of time, but only with respect to his second period of incarceration from
October 23, 2014 through November 20, 2014.
The Lackawanna County Defendants next object to the denial of their
motion to dismiss the plaintiff’s claims predicated upon Monell liability1. Here,
although they acknowledge that under certain factual circumstances others
can do so, the defendants argue that the prison board makes policy under
Pennsylvania statute2 and that the plaintiff does not allege in his complaint
that the prison board made any unconstitutional policy with respect to him.
1
The magistrate judge has set forth the standard for Monell liability
which the Lackawanna County Defendants do not challenge and which need
not be set forth at length herein.
2
61 Pa.C.S.A. §1731(a).
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While the plaintiff has named three commissioners who are members of the
prison board, the defendants argue that nowhere in his complaint does the
plaintiff suggest that they are being named in their capacity as prison board
members in order to establish a basis for Monell liability. Even if this were the
case, the defendants argue, as set forth by the magistrate judge, that the
prison board also consists of the president judge of the court of common
pleas (or a judge designated thereby), the district attorney, the sheriff, and the
controller. The defendants argue that there are a total of seven board
members and the plaintiff has only named three. Since the three named
would constitute a minority of the board, which is insufficient to make policy,
the defendants argue that the plaintiff’s complaint is insufficient.
For his part, when responding to the Lackawanna County Defendants’
motion to dismiss3, the plaintiff argued that he “does not need to specifically
identify the official with policymaking authority” because “practices so
permanent and well settled as to have the force of law are ascribable to
municipal decisionmakers.” (Doc. 22, p. 5) (citations omitted). The plaintiff is
correct in this respect. The Third Circuit has acknowledged that a plaintiff
need not specifically identify a responsible policymaker, if the plaintiff has
demonstrated a custom that is so permanent and well settled as to have the
3
As indicated earlier, the plaintiff has neither responded to the report
and recommendation, nor the objections thereto by the Lackawanna County
Defendants.
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force of law, such that the custom can be ascribed to municipal policymakers.
Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996); Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990); Anela v. City of Wildwood, 790 F.2d 1063,
1067 (3d Cir. 1986). As such, the plaintiff can survive a motion to dismiss his
Monell claim without alleging conduct by a specific municipal policymaker by
pleading facts that allow a court to infer that he sustained a constitutional
injury as a result “of a widespread practice that, although not authorized by
written law or express municipal policy, is ‘so permanent and well settled as
to constitute a custom or usage with the force of law.’” City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988) (internal quotation marks omitted)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)); Boyden
v. Twp. of Upper Darby, 5 F.Supp.3d 731, 743 (E.D. Pa. 2014).
Moreover, despite the plaintiff’s response to the defendants’ motion to
dismiss, in reviewing his complaint, the plaintiff does, in fact, identify who he
believes to be the official policymakers in this case, including “Defendants
County, O’Malley, Wansacz, O’Brien, McMillan, Langan, Contractor and
Zaloga”. (Doc. 1, ¶89). The plaintiff alleges that these “Defendant Policy
Makers” “. . . over the course of the time relevant to this case, held regular
meeting (sic) to discuss prison matters and to set policy.” He alleges that
each of these defendants “developed, implemented, approved, and/or
maintained a number of deficient customs, policies, and practiced (sic) with
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deliberate indifference, which proximately caused a deprivation of Plaintiff’s
Constitutional Rights.” (Id.). In prior paragraphs of his complaint, the plaintiff
identifies the various customs, practices, or policies which he believes led to
his constitutional injury. Whether any of the defendants identified as
policymakers by the plaintiff are properly designated as such in this case is
a matter which cannot be determined at this stage of the proceedings. The
court will therefore overrule the Lackawanna County Defendants’ objections
on this basis.
The Lackawanna County Defendants also object to the denial of their
motion to dismiss the plaintiff’s failure to train claim. In this regard, it is argued
that the plaintiff does not claim a “single violation” basis for failure to train and
that deliberate indifference has not been sufficiently alleged.
A plaintiff can, in limited circumstances, successfully allege a municipal
policy or custom through a theory that the municipality failed to adequately
train its employees on how to avoid constitutional violations in a certain area,
but the municipality’s liability in these situations is “at most tenuous”. Connick
v. Thompson, 563 U.S. 51, 61 (2011); Oklahoma City v. Tuttle, 471 U.S. 808,
822-23 (1985). In this circumstance, the plaintiff must show that the
municipality acted with deliberate indifference to the rights of the persons the
employees come into contact with. City of Canton v. Harris, 489 U.S. 378, 388
(1989). Typically, in cases where the alleged municipal custom or policy is the
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failure to adequately train its officers in some relevant area of law or practice,
deliberate indifference can only be established by a showing of a pattern of
constitutional violations due to the failure to train. Berg v. County of Allegheny,
219 F.3d 261, 276 (3d Cir. 2000). This is because a municipality usually
cannot act deliberately concerning a training program it is not aware is
deficient. Connick, 563 U.S. at 62. Through a pattern of similar violations, a
municipality becomes aware of inadequacies in its training program, and any
later violations stemming from the unchanged training program can rightfully
be said to be a result of deliberate indifference on the part of the municipality.
Bd. of County Comm’rs of Bryan County, 520 U.S. at 407.
However, in Board of the County Commissioners of Bryan County v.
Brown, the Supreme Court did note that in a narrow set of circumstances, it
may be possible to show deliberate indifference without such a pattern of
constitutional violations stemming from the municipality’s custom or policy, but
the bar in these cases is very high. Bd. of County Comm’rs of Bryan County,
520 U.S. at 409. The Court stated that there are some situations that are so
likely to cause constitutional violations from the failure to adequately train the
officers in how to handle those circumstances, that a single incident, not
necessarily repeated violations, can give way to municipal liability. Id. at 409.
The Supreme Court in Canton, explained that on a municipal liability claim on
a failure-to-train theory, deliberate indifference can be sufficiently alleged by
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showing that “in light of the duties assigned to specific officers or employees
the need for more or different training is so obvious, and [that] the inadequacy
[of the current training]” will predictably lead to the violation of constitutional
rights of those the officer comes into contact with. City of Canton, Ohio v.
Harris, 489 U.S. 378, 390 (1989). Therefore, without a showing of a pattern
of similar violations, the plaintiff must show a “a violation of federal rights may
be a highly predictable consequence of a failure to equip law enforcement
officers with specific tools to handle recurrent situations” and there is a
“likelihood of recurrence” that “could justify a finding that [the] policymakers’
decision not to train an officer reflected deliberate indifference to the obvious
consequence” of that decision. Bd. of County Comm’rs of Bryan County, 520
U.S. at 409.
In this case, the plaintiff alleges that the County “fail[ed] to train . . . their
employees in responding to the serious medical needs and requests of
detainees at the Prison, despite the fact that they have been placed on notice
countless times over the past decade of instances in which detainees’ serious
requests for medical attention are ignored.” The plaintiff further alleges that
corrections officers “were never trained . . . in regards to providing adequate
medical care to inmates and reporting concerns regarding inmate health, even
after the need for training was obvious to defendants in authority positions.”
Further, it is alleged that the County “failed to train the Prison guards in
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responding to and reporting on the medical needs of patients, despite the fact
that they knew of the need for this policy.” According to the plaintiff, this failure
to train was “made . . . with deliberate indifference” and, as a result of the
failure to train correctional officers in this regard, he was continuously
subjected to lack of medical care and treatment while confined at the
Lackawanna County Prison violating his constitutional rights.
Thus, the plaintiff has alleged that correctional officers at the
Lackawanna County Prison are in need of a specific type of training, i.e.,
training in how to recognize and report the serious medical needs of inmates
or detainees. He has alleged a causal nexus between the failure to train in
this regard and his injury. And the plaintiff has suggested that the need for
such training was or should have been so obvious that the failure to provide
such training was the result of deliberate indifference. Although the plaintiff
has a difficult burden to meet in establishing his failure to train claim, at this
early stage of the proceedings, the court will permit the claim to proceed. See
Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (“Although it is
possible to maintain a claim of failure to train without demonstrating such a
pattern, the Bryan County Court made clear that the burden on the plaintiff in
such a case is high.”); see also Reynolds v. Municipality of Norristown, 2015
WL 4450979, at *12 (E.D. Pa. July 17, 2015) (plaintiff’s allegation that his
injury resulted from failure to train officers in identifying individuals
17
experiencing a medical emergency was sufficient to state a claim); Hall v.
Raech, 2009 WL 811503, at *5 (E.D. Pa. Mar. 25, 2009) (plaintiff’s allegation
that his injury resulted from failure to train officers in identifying need for
medical care and taking appropriate action was sufficient to state a claim).
The Lackawanna County Defendants’ objections will therefore be overruled
in this respect.
Finally, the Lackawanna County Defendants object to the denial of their
motion to dismiss defendant Cornall. The defendants argue here that the
plaintiff has failed to sufficiently allege deliberate indifference on the part of
defendant Cornall or that any conduct on his part resulted in a violation of the
plaintiff’s constitutional rights. The defendants argue that “[t]he Plaintiff’s only
complaint was that he was dissatisfied with the conditions under which he was
changing his colostomy bag. To a non medical prison official, that complaint
would not appear to be a serious medical need to which he was being
deliberately indifferent under the circumstances. The Plaintiff did have his
colostomy bag, and he was changing it. The conditions required for the
changing of the bag would be a matter of professional medical judgement, to
which the corrections officer could reasonably defer.”
Despite the Lackawanna County Defendants’ characterization of the
plaintiff’s claim, the court agrees with the magistrate judge that the allegations
of the plaintiff’s complaint present facts plausibly permitting a jury to find that
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defendant Cornall’s denial of requests for medical care constitute deliberate
indifference to serious medical needs. In this regard, the plaintiff alleges that
he made defendant Cornall aware of his need for medical attention on a daily
basis. The plaintiff alleges that the need for such medical attention was
obvious based upon developing skin infections, rashes across his body and
face, fever, and bleeding from his side. Despite the plaintiff’s obvious need for
medical treatment, the plaintiff alleges that defendant Cornall ignored his
requests. For the reasons set forth in the report of the magistrate judge, the
Lackawanna County Defendants’ objections will be overruled in this respect.
An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: September 28, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2143-01.wpd
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