NEISWONGER v. MONTGOMERY et al
Filing
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MEMORANDUM OPINION regarding Defendant Wexford's motion to dismiss 17 and Defendant Peterson's motion to dismiss; order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 12/20/16. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTHONY NEISWONGER,
Plaintiff
v
CRAIG MONTGOMERY, et al.,
Defendants
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C.A. No. 16-48 Erie
Magistrate Judge Baxter
MEMORANDUM OPINION1
United States Magistrate Judge Susan Paradise Baxter
I.
INTRODUCTION
A.
Relevant Procedural History
On February 29, 2016, Plaintiff Anthony Neiswonger, an adult individual formerly
incarcerated at the Erie County Prison in Erie, Pennsylvania (“ECP”),2 initiated this civil rights
action by filing a complaint pursuant to 42 U.S.C. § 1983. Named as Defendants are: Craig
Montgomery, a parole agent employed by Erie County, Pennsylvania ("Montgomery"); Wexford
Health Sources, Inc., a medical provider under contract to provide medical services at ECP
("Wexford"); and Gary Peterson, D.O., a medical doctor and agent of Wexford who performed
medical services for inmates at ECP ("Peterson").
Plaintiff's complaint contains five counts: Count I is an Eighth Amendment claim of
deliberate indifference to serious medical needs asserted against Defendant Montgomery; Count
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All parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. [ECF
Nos. 27, 28, 29, 30].
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II is a Fourteenth Amendment claim of state created danger asserted against Defendant
Montgomery; Count III is a pendent state law claim of negligence asserted against Defendant
Montgomery; Count IV is an Eighth Amendment claim of deliberate indifference to serious
medical needs asserted against Defendant Peterson; and Count V is a pendent state law medical
negligence claim asserted against Defendant Peterson. Although no count is specified against
Defendant Wexford, it is apparent that the last two counts are also vicariously asserted against
Defendant Wexford as Defendant Peterson's alleged employer. As relief for his claims, Plaintiff
seeks monetary damages.
On April 28, 2016, Defendant Montgomery filed an answer to Plaintiff's complaint.
Conversely, on May 3, 2016, Defendants Wexford and Peterson filed separate motions to dismiss
[ECF No. 17 and 19, respectively]. Defendant Wexford argues that it cannot be held vicariously
liable under Section 1983 for Plaintiff's Eighth Amendment claim against Defendant Peterson,
and cannot be held vicariously liable for Plaintiff's medical negligence claim against Defendant
Peterson because Defendant Peterson was an independent contractor, not an employee.
Defendant Peterson seeks dismissal of Plaintiff's Eighth Amendment claim against him, arguing
that it fails to state a cause of action upon which relief may be granted and Plaintiff failed to
exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA"); and
seeking dismissal of Plaintiff's medical negligence claim, arguing that it is too vague and
ambiguous and that Defendant Peterson is immune from such claim under the Pennsylvania
Political Subdivision Tort Claims Act. Defendant Peterson also seeks to dismiss Plaintiff's claims
for punitive damages.
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Plaintiff has since filed a brief in opposition to each of Defendants’ motions. [ECF Nos.
23, 25]. Of particular note, Plaintiff has conceded that his Eighth Amendment claim against
Defendant Wexford based on vicarious liability should be dismissed (ECF No. 25 at p. 4), but
argues that all other claims against Defendants Peterson and Wexford should remain. This matter
is now ripe for consideration.
B.
Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (May 18, 2009) (specifically applying Twombly
analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also
McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions”). A Plaintiff’s factual allegations “must be enough to raise a right to relief above the
Plaintiff was released from ECP on April 16, 2015, and currently resides in Erie, Pennsylvania.
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speculative level.” Twombly, 550 U.S. at 556, citing 5 C.Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-36 (3d ed. 2004). Although the United States Supreme Court does
“not require heightened fact pleading of specifics, [the Court does require] enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,
at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008). “This ‘does not impose a probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at
556.
The Third Circuit subsequently expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal,
we must take the following three steps:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to
state a claim.’ Second, the court should identify allegations that, ‘because
they are no more than conclusions, are not entitled to the assumption of
truth.’ Finally, ‘where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
C.
Discussion
1.
Eighth Amendment Claim v. Defendant Peterson
a.
Exhaustion of Administrative Remedies
Defendant Peterson argues that the claims against him should be dismissed for Plaintiff's
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failure to comply with the exhaustion requirements of the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a) ("PLRA"), which provides:
no action shall be brought with respect to prison conditions under section
1983 of this title ... by a prisoner confined in any jail, prisons, or other
correctional facility until such administrative remedies as are available are
exhausted.
Id.
However, it is widely recognized that "'[i]t is the plaintiff's status at the time he files suit
that determines whether §1997e(a)'s exhaustion provision applies.'" Blades v. Brushaw, 2011 WL
5509413, at *3 (W.D.Pa. Nov. 10, 2011), quoting Norton v. City of Marietta, 432 F.3d 1145,
1150 (10th Cir. 2005). Specifically, the Third Circuit Court has "expressly adopt[ed]" the
generally held view that a prisoner released from custody prior to the date his lawsuit is filed is
not subject to the provisions of the PLRA. Ahmed v. Dragovich, 297 F.3d 201, 210 n. 10 (3d Cir.
2002). In this case, Plaintiff was released from ECP on April 16, 2015 (ECF No. 1, Complaint, at
¶ 40), well before he filed the instant lawsuit on February 29, 2016. As a result, the PLRA's
exhaustion provisions are not applicable here.
b.
Sufficiency of Allegations
Alternatively, Defendant Peterson argues that Plaintiff's allegations are insufficient to
state a cognizable claim of deliberate indifference to a serious medical need.
In the medical context, a constitutional violation under the Eighth Amendment occurs
only when prison officials are deliberately indifferent to an inmate's serious medical needs.
Estelle v. Gamble, 429 U.S. 97 (1976). "In order to establish a violation of [the] constitutional
right to adequate medical care, evidence must show (i) a serious medical need, and (ii) acts or
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omissions by prison officials that indicate deliberate indifference to that need." Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference to a serious medical need3 involves the "unnecessary and wanton
infliction of pain." Estelle, 429 U.S at 104. Such indifference is manifested by an intentional
refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed
medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of
injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of
resultant pain and risk of permanent injury" White v. Napoleon, 897 F.2d 103, 109 (3d Cir.
1990).
Mere misdiagnosis or negligent treatment is not actionable as an Eighth Amendment
claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106.
"Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of
prisoners." Durmer, 991 F.2d at 67 (citations omitted). Any attempt to second-guess the propriety
or adequacy of a particular course of treatment is disavowed by courts since such determinations
remain a question of sound professional judgment. Inmates of Allegheny County Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979), quoting Bowring v. Goodwin, 551 F.2d 44, 48 (4th Cir. 1977).
Furthermore, deliberate indifference is generally not found when some level of medical care has
been offered to the inmate. Clark v. Doe, 2000 WL 1522855, at *2 (E.D.Pa. Oct. 13, 2000)
("courts have consistently rejected Eighth Amendment claims where an inmate has received
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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." Monmouth County Correction Institute Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
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some level of medical care").
Here, there is no dispute that Plaintiff has sufficiently alleged a serious medical need.
Thus, the only question is whether Plaintiff has sufficiently alleged deliberate indifference to his
medical needs. In this regard, Plaintiff has alleged that during his three month incarceration at
ECP, he repeatedly requested and failed to receive his previously prescribed cast and brace,
which were removed and taken from him before he arrived at ECP. He alleges further than
Defendant Peterson had no legal or medical reason to ignore Plaintiff's requests. (ECF No. 1,
Complaint, at ¶¶ 70-72). These allegations are minimally sufficient to state a claim of deliberate
indifference at this early stage of the proceeding.
Nonetheless, Defendant Peterson has attempted to demonstrate Plaintiff's inability to
establish Defendant Peterson's deliberate indifference by submitting with his motion to dismiss
two exhibits, consisting of the Intake Medical History and Screening form ("Intake form") that
was completed upon Plaintiff's arrival at ECP [ECF No. 21-1], and chart notes that were
completed by nurses at ECP detailing Plaintiff's medical treatment and activities [ECF No. 21-2].
Because these documents are outside the pleadings, Rule 12(d) of the Federal Rules of Civil
Procedure requires the Court to treat Defendant Peterson's motion as one for summary judgment
under Rule 56. Even so, the Court finds that the evidence presented by Defendant Peterson is
insufficient to eliminate all genuine issues of material fact as to Plaintiff's claim. In particular,
although the Intake form does not contain any information that Plaintiff needed any medical
devices, such as a cast or brace, the form does note that Plaintiff had recent micro surgery on his
left pinkie, and there is no dispute that Plaintiff subsequently requested the return of his cast and
brace that were removed from him prior to his arrival at ECP. It is Defendant Peterson's alleged
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indifference to Plaintiff's subsequent requests that form the basis of Plaintiff's claim. As for the
chart notes, they merely contain entries by nurses who summarized Plaintiff's medical treatment;
thus, they do not definitively establish Defendant Peterson's actions or inactions in the same way
as Defendant Peterson's own medical records and/or affidavit would. Thus, Defendant Peterson's
motion to dismiss Plaintiff's Eighth Amendment claim, which is hereby treated as a motion for
summary judgment under Rule 56, will be denied.
2.
Medical Negligence Claim v. Defendant Peterson
a.
Sufficiency of Allegations
Defendant Peterson argues that Plaintiff's medical negligence claim is vague, ambiguous,
and indefinite because Plaintiff fails to identify what alleged "care and treatment" Defendant
Peterson should have rendered, but did not. This argument is unpersuasive. Not only does
Plaintiff specifically allege that Defendant Peterson ignored his "repeated request to provide his
properly prescribed cast and brace," having "no legal or medical reason" to do so, the negligence
claim incorporates by reference all other allegations of the complaint, which have already been
found minimally sufficient to establish deliberate indifference, which carries a higher standard of
proof. See Farmer v. Brennan, 511 U.S. 825, 835 (1994) (noting that deliberate indifference
"describes a state of mind more blameworthy than negligence"). Thus, Defendant Peterson's
motion to dismiss Plaintiff's medical negligence as vague and ambiguous will be denied.
b.
Pennsylvania Political Subdivision Tort Claims Act
Alternatively, Defendant Peterson contends that he is immune from Plaintiff's medical
negligence claim under the Pennsylvania Political Subdivision Tort Claims Act ("PSTCA"), 42
Pa.C.S. § 8501, et seq., which "provides a general grant of immunity from tort liability as to local
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agencies and their employees and agents acting within the scope of their duties, subject only to
certain enumerated exceptions." Hayes v. Erie Cnty. Office of Children & Youth, 497 F.Supp.2d
684, 704-05 (W.D.Pa. 2007). In particular, Section 8542(b) of the PSTCA states, “An employee
of a local agency is liable for civil damages on account of any injury to a person or property
caused by acts of the employee, which are within the scope of his office or duties only to the
same extent as his employing agency and subject to the limitations imposed by this subchapter.”
42 Pa.C.S.A. § 8542(b). Under the PSTCA, an "employee" is defined as:
Any person who is acting or who has acted on behalf of a government
unit whether on a permanent or temporary basis, whether compensated or
not, and whether within or without the territorial boundaries of the
government unit, including any volunteer fireman and any elected or
appointed officer, member of a governing body or any other person
designated to act for the government unit. Independent contractors under
contract to the government unit and their employees and agents and
persons performing tasks over which the government unit has no legal
right of control are not employees of the government unit.
42 Pa.C.S. § 8501. Here, Plaintiff alleges that Defendant Peterson was an employee of Defendant
Wexford, which, in turn, was an independent contractor under contract with Erie County to
provide medical services to inmates at ECP. (ECF No. 1, Complaint, at ¶¶ 5-6). As such, Plaintiff
argues that Defendant Peterson cannot be considered an employee of Erie County entitled to
immunity under the PSTCA. Defendant Peterson counters that, by virtue of his position as a
prison doctor, he is deemed to be an agent or employee of Erie County for purposes of the
PSTCA, citing Walls v. Hazelton State Gen. Hosp., 629 A.2d 232 (Pa.Commw.Ct. 1983)
(holding that a prison doctor, though not a traditional employee, may still qualify as an employee
for immunity purposes if he acts "on behalf of the government unit whether on a temporary or
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permanent basis"). However, the Commonwealth Court's holding in Walls does not establish a
hard and fast rule that is to be followed in every case.
Instead, to determine whether an employer-employee relationship or an independentcontractor relationship exists, the Court must analyze several factors, including: (i) who controls
the manner of work to be performed; (ii) the responsibility for the result; (iii) the terms of
agreement between the parties; (iv) the nature of the work or occupation; (v) the skill required for
the performance; (vi) whether one is engaged in a distinct occupation or business; (vii) which
party supplies the tools; (viii) whether payment is by the time or by the job; (ix) whether the
work is part of the regular business of the employer; and (x) whether there is a right to terminate
the employment at any time. Murzynski v. Erie County, 2016 WL 5872430 at *5 (Oct. 7, 2016),
citing In re Estate of Francis v. Northumberland Cnty., 636 F. Supp. 2d 368, 389-90 (M.D. Pa.
2009). The Court finds it premature to engage in this fact-bound inquiry at the pleading stage,
and, thus, Defendant Peterson's motion to dismiss Plaintiff's medical negligence claim will be
denied.
3.
Medical Negligence Claim v. Defendant Wexford
It is well settled that an employer may be held “‘vicariously liable for the negligent acts of
his employee which cause injuries to a third party, provided that such acts were committed
during the course of and within the scope of employment.’” Murzynski at *5, quoting Scampone
v. Grane Healthcare Co., 11 A.3d 967, 991 (Pa. Super. Ct. 2010). Plaintiff alleges that Defendant
Peterson was employed by Defendant Wexford to provide medical services to inmates at ECP
and, thus, may be held vicariously liable for any injuries negligently caused by Defendant
Peterson. (ECF No. 1, Complaint, at ¶¶ 3, 7).
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Defendant Wexford counters that it cannot be held vicariously liable because Defendant
Peterson was an independent contractor, not its employee. Defendant Wexford's contention is
based upon the terms of a "Letter of Agreement" between Defendant Wexford and Medical
Associates of Erie, a copy of which is attached to Defendant Wexford's brief. Although
Defendant Wexford acknowledges that this document "does not purport to set forth within its
terms, the legal relationship of the parties vis a vis one another…[,] the various terms of the
contract and the relationship of the parties as set forth within it demonstrates that Wexford and
Dr. Peterson are not in an employer-employee relationship, but that of a principal and
independent contractor." (ECF No. 18, Defendant Wexford's Brief, at p. 7). Even if true,
however, the terms of agreement between the parties is only one of several factors to be
considered by the Court in determining whether an employer-employee relationship or an
independent-contractor relationship exists. See Murzynski, at *5. The remaining factors are yet to
be developed in discovery and are not ripe for determination at this early stage. Consequently,
Defendant Wexford's motion to dismiss Plaintiff's medical negligence claim against it will be
denied.
4.
Punitive Damages
The last matter to be considered is Defendant Peterson's motion to dismiss Plaintiff's
claim for punitive damages. In particular, Defendant Peterson contends that "Plaintiff's
Complaint pleads no operative facts that could reasonably support claims that Dr. Peterson acted
with any wanton disregard or deliberate indifference" sufficient to warrant an award of punitive
damages. (ECF No. 20, Defendant Peterson's Brief, at p. 9). The Court disagrees. As noted
earlier, Plaintiff has alleged that Defendant Peterson ignored his "repeated request to provide his
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properly prescribed cast and brace," having "no legal or medical reason" to do so. If these
allegations are proved at trial, a factfinder could reasonably conclude that such actions and/or
inactions were sufficiently malicious, wanton, and willful to support an award of punitive
damages. In any case, it is premature at this early stage to decide whether Plaintiff will be able to
support a claim of punitive damages. Thus, Defendant Peterson's motion to dismiss Plaintiff's
claim for punitive damages will be denied.
An appropriate Order follows.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Dated: December 20, 2016
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