WYLIE-BIGGS v. HARPER et al
Filing
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ORDER granting 35 Motion to Dismiss with leave to file an amended complaint by August 17, 2015, as to Section 1983 claims; granting 29 Motion to Dismiss for Failure to State a Claim with leave to file amended complaint by August 17, 2015, as to Fourteenth Amendment civil rights claims as to denial of medical care and denial of access to courts; denying as moot 29 Motion for Partial Summary Judgment. Signed by Chief Magistrate Judge Maureen P. Kelly on 07-20-15. A copy of this opinion has been mailed to Plaintiff at his address of record on this date. (ard)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDWIN WYLIE-BIGGS,
)
Plaintiff,
)
)
vs.
)
)
ORLANDO L. HARPER; WILLIAM
)
EMERICK; JESSE ANDRASCIK; SIMON )
WAINWRIGHT; LONG Deputy Warden; )
CORIZON HEALTH SERVICES,
)
Defendants. )
Civil Action No. 14-1150
Chief Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 29, 35
OPINION
KELLY, Chief Magistrate Judge
Presently before the Court are two Motions to Dismiss concerning claims filed by Edwin
Wylie-Biggs (“Plaintiff”), acting pro se, against Defendant Corizon Health Services (“Corizon”)
and against Defendants Orlando L. Harper, William Emerick, Jesse Andrascik, Simon
Wainwright and Deputy Warden Long (“the County Defendants”). ECF Nos. 29 and 35. The
Complaint contains claims which can be categorized as: (1) medical malpractice; and (2) civil
rights claims pursuant to 42 U.S.C. § 1983. ECF No. 3
For the following reasons, the County Defendants’ Motion to Dismiss, ECF No. 29, is
granted with leave to file an Amended Complaint only as to Plaintiff’s Fourteenth Amendment
civil rights claims of denial as to medical care and denial of access to courts. Corizon’s Motion
to Dismiss, ECF No. 35, is granted with leave to file an Amended Complaint only as to
Plaintiff’s claims under Section 1983.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
The relevant procedural history is as follows. Plaintiff filed his Complaint on September
30, 2014. ECF No. 3. The County Defendants filed a Motion to Dismiss/Motion for Partial
Summary Judgment on December 16, 2014. ECF No. 29. Corizon filed its Motion to Dismiss
and brief in support thereof on December 24, 2014. ECF Nos. 35, 36. Plaintiff filed a response
to the County Defendants’ Motion on January 13, 2015, ECF No. 40, and he filed a response to
Corizon’s Motion on March 10, 2015, ECF No. 45. Corizon filed a reply brief in further support
of its Motion to Dismiss on March 11, 2015. ECF No. 46. Plaintiff filed a reply brief in further
support of his response to Corizon on March 30, 2015. ECF No. 47. Plaintiff also filed a
Certificate of Merit on March 30, 2015. ECF No. 48. Both Motions to Dismiss are now ripe for
consideration.
B. Claims
Plaintiff’s Complaint contains the following allegations. On April 17, 2014, Plaintiff, an
inmate at the Allegheny County Jail (“ACJ”), was charged with possession of contraband for a
cell phone and prescription drugs. ECF No. 3 at 13. On the same date, Plaintiff was taken to the
Restricted Housing Unit (“RHU”) by Defendant Andrascik, a sergeant at ACJ. Id. at 13. On
April 27, 2014, Defendant Andrascik “gave” Plaintiff 30 days in the RHU for his “contraband
misconduct.” Id. at 14. On May 17, 2014, Plaintiff was released from the RHU. Id. On May
19, 2014, Plaintiff was placed back into the RHU in administrative custody by Defendant
Andrascik. As a condition of placement in the RHU, Plaintiff was the subject of multiple
restrictions which he claims were improper, including limited access to materials in the law
library. Id. at 14-15.
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Plaintiff also alleges that on April 22, 2014, he began to “write sick call slips to medical”
about pain in his right wrist and the lack of pain medication he had received since his initial
placement in the RHU on April 17, 2014. Id. at 15. Plaintiff alleges that he wrote to Defendants
Major Wainwright, Deputy Warden Long and Warden Harper complaining about his medical
treatment. Id. Plaintiff asserts that his requests for medical care continued for approximately
two months and included complaints about loss of feeling, numbness, pain and pins protruding
from the wrist.
Id.
He also claims that ACJ employees contacted “medical” (Defendant
Corizon) about Plaintiff’s condition but received no response. Id. at 15-16. On June 19, 2014,
Plaintiff passed out and suffered seizure-like symptoms. Id. at 16. On that date, a person
identified as “Doctor Dave” performed “surgery” on Plaintiff, removing the pins from his wrist.
Id. Later, when Plaintiff suffered a lack of mobility in his wrist, he discovered that “Doctor
Dave” was actually a nurse who was neither authorized nor licensed to perform this surgery at
ACJ. Id. Plaintiff concludes his claims thusly:
The Plaintiff is suffering from pain, loss of use in right wrist and hand,
infection, sleep deprivation [due] to pain and nothing prescribed for pain by
medical staff, retaliation by whole Corizon Medical and Allegheny County
Jail Administration, and cruel unusual punishment/treatment.
Id.
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Dismissal of a
complaint or portion of a complaint is warranted under Federal Rule of Civil Procedure 12(b)(6)
when a claimant fails to sufficiently state a claim upon which relief can be granted. Avoiding
dismissal under Rule 12(b)(6) requires that the complaint to provide “enough factual matter
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(taken as true)” to suggest the required elements of the claim presented. Phillips v. County of
Allegheny, 515 F. 3d 224, 234 (3d Cir. 2008). The pleader must “‘nudge his or her claims across
the line from conceivable to plausible.’” Id. (quoting Bell Atlantic Co. v. Twombly, 550 U.S.
544 at 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, a court must accept all
alleged facts as true and draw all inferences gleaned therefrom in the light most favorable to the
non-moving party. Phillips, 515 F. 3d at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F. 3d
651, 653 (3d Cir. 2003)). A pleading party need not establish the elements of a prima facie case
at this stage; the party must only “put forth allegations that ‘raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s].’” Fowler v. UPMC Shadyside, 578
F. 3d 203, 213 (3d Cir. 2009) (quoting Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL
2312671 (W.D. Pa. June 4, 2008)).
Pro se pleadings are held to “less stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); United States ex rel. Montgomery v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully
drawn and should be read “with a measure of tolerance.”).
III.
DISCUSSION
A.
County Defendants
1.
Injunctive Relief
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As an initial matter, to the extent that Plaintiff’s Complaint seeks injunctive relief in the
form of obtaining certain privileges at ACJ, ECF No. 3 at 17, such relief is unavailable because
Plaintiff was released from ACJ on December 3, 2014. ECF No. 29, Exhibit A; ECF No. 40 at
¶10. Accordingly, Plaintiff’s claims for injunctive relief are dismissed with prejudice as moot.
2.
Civil Rights
In the form Complaint, Plaintiff responds to the question as to “[w]hat federal law do you
claim was violated?” by writing, “8th and 14th Amendments.” ECF No. 3 at 2, 6, 10.
In order to succeed on a Section 1983 claim, a claimant must show: (1) the conduct
complained of was performed by a person acting under color of state law; and (2) this conduct
deprived the claimant of rights, privileges, or immunities secured by the Constitution or laws of
the United States. 42 U.S.C. § 1983; Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).
Further, when dismissing a civil rights case for failure to state a claim, a court must give the
plaintiff an opportunity to amend the complaint unless it would be inequitable or futile to do so.
See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
a. Eighth Amendment claims
As set forth above, Plaintiff alleges that the conduct of the County Defendants deprived
him of rights guaranteed to him by the Eighth Amendment to the United States Constitution.
However, because Plaintiff was a pre-trial detainee, he was “‘not within the ambit of the Eighth
Amendment[’s],’ prohibition against cruel and unusual punishment.” Hubbard v. Taylor, 399
F.3d 150, 166 (3d Cir. 2005)(quoting Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir.
1987))(emphasis in original). Therefore, Plaintiff cannot establish an Eighth Amendment claim.
As a result, it would be futile to allow Plaintiff to amend his Complaint as to this claim.
Accordingly, Plaintiff’s Eighth-Amendment-related claims are dismissed with prejudice.
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b. Fourteenth Amendment claims
Plaintiff also alleges that the County Defendants violated his constitutional rights under
the Fourteenth Amendment in various ways, namely: retaliation, denial of medical care and
denial of access to the courts. Plaintiff fails to establish a plausible claim on any of these bases.
i. Retaliation
The basis of Plaintiff’s claims of retaliation is less than clear. At a minimum, Plaintiff
has failed to provide any factual basis for at least one of the requisite elements of a retaliation
claim. The United States Court of Appeals for the Third Circuit has explained, “[a]s a threshold
matter, a prisoner-plaintiff in a retaliation case must prove that the conduct which led to the
alleged retaliation was constitutionally protected.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001). Simply put, Plaintiff’s Complaint contains no allegation he engaged in constitutionally
protected conduct. Rather, Plaintiff alleges that the retaliatory actions were taken by Defendants
in response to his misconduct, i.e. possession of contraband. ECF No. 3, at 13-14. Clearly, the
possession of contraband does not constitute protected conduct. Thus, absent an allegation of
constitutionally protected conduct, Plaintiff has failed to state a claim for retaliation upon which
relief can be granted. As such, it would be futile to allow Plaintiff to amend his Complaint on
this claim given the identified fatal flaw. Therefore, his Fourteenth Amendment retaliation claim
is dismissed with prejudice.
ii. Denial of medical care
Plaintiff’s allegations concerning the denial of medical care by the County Defendants
also fail to make out a plausible claim. At the outset, it appears that Plaintiff characterizes these
claims as ones of negligence. Relief from mere negligence is not available under the protections
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afforded prisoners by the Due Process Clause of the Fourteenth Amendment.
Daniels v.
Williams, 474 U.S. 327 (1986). Thus, all of the negligence claims are dismissed with prejudice.
To the extent Plaintiff is attempting to make some other cognizable FourteenthAmendment claim, he has failed to set forth sufficient facts to establish any such claim. His
relevant allegations state as follows:
On April 22, 2014 the Plaintiff started to write sick calls slips to medical
about pain in right wrist and not receiving anything for pain since being
moved to the R.H.U. on April 17, 2014. The Plaintiff continued to write
medical staff, Major Wainwright, Deputy Warden Long, Warden Orlando
L. Harper, along with complaints to the grievance officer about losing
feeling, numbness, excruciating pain, and the pins that were placed in my
right wrist began to protrude [out of] the skin, with assistance from no one.
On May 1, 2014 – May 20, 2014 –May 29, 2014 – June 11, 2014 – June 15,
2014 – June 16, 2014. After having several correctional officers,
Battykeefer, Bruder, Mazzocca, Kelly, Bosack and Sgt. Andrascik contac[t]
medical by phone and not get a response back about my medical condition
for over a month.
ECF No. 3 at 15-16.
Even accepting these allegations as true and drawing all inferences therefrom in the light
most favorable to Plaintiff, there is simply not enough to support a claim. It is unclear what
Plaintiff told the named County Defendants; it is unclear how many times he told them; even the
significance of the listed dates is unclear. Thus, this claim is dismissed. However, this Court
does not find that it would be inequitable or futile to allow Plaintiff to amend his Complaint as to
these claims. Therefore, the dismissal is without prejudice to the filing of an amended complaint
alleging facts in support of this claim.
iii. Denial of access to courts
Finally, Plaintiff alleges that, while he was in the RHU, he was denied access to legal
resources. Specifically, Plaintiff complains about only being permitted one hour per week in the
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law library, having “to be computer literate to use the law machine,” not being provided a law
clerk or paralegal to assist in his legal defense and that the machine does not print. ECF No. 3, at
15. To the extent that Plaintiff is making a claim that his limited access to legal resources while
he was in the RHU deprived him of access to the courts, such a claim made by an inmate must
include an element of actual harm. Lewis v. Casey, 518 U.S. 343, 351 (1996). Plaintiff alleges
that, while housed in the RHU, he was “being denied [his] constitutional rights to properly and
fairly prepare for trial,” ECF No. 3 at 15. Even when the allegation is accepted as true, it does
not qualify as an allegation that Plaintiff suffered harm, i.e., an adverse trial outcome, due to his
lack of access to legal materials. Accordingly, this claim is also dismissed without prejudice to
the filing of an amended complaint alleging facts in support of this claim.
B.
Corizon
1.
Medical Malpractice/ Negligence
To the extent that Plaintiff raises medical malpractice claims against Corizon, he was
required to file, within 60 days of filing the Complaint, a signed certificate of merit attesting that
either: (1) that an appropriate licensed professional has provided a written statement that a breach
of acceptable professional standards caused the injury alleged; or (2) that expert testimony from
such a professional is unnecessary for prosecution of the claim. Pa.R.C.P. 1042.3(a). 1
On March 30, 2015, Plaintiff filed a document styled as a Certificate of Merit. ECF No.
48. Even a generous reading of this document fails to reveal any tangential relationship between
the contents thereof and the requirements of Rule 1042.3. Due to Plaintiff’s failure to comply
with this rule, his medical malpractice claims are dismissed with prejudice.
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This requirement applies to the instant action even though it was filed in federal court. See Liggon-Redding v.
Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011).
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2.
Civil Rights
Plaintiff’s civil rights claims against Corizon are based on the doctrine of respondeat
superior. See ECF No. 48, ¶ 2. The applicable law on this point is as follows:
Section 1983 provides a cause of action against "every person who," under
color of state law, "subjects, or causes to be subjected," another person to a
deprivation of a federally protected right. 42 U.S.C. § 1983. It is wellrecognized that "[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat
superior." Bistrian [v. Levi], 696 F.3d [352] at 366 [3d Cir. 2012]
(alteration in original) (quoting [Ashcroft v.] Iqbal, 556 U.S. [662] at 676
[2009]). Rather, state actors are liable only for their own unconstitutional
conduct. Id. With this principle in mind, we have previously identified two
general ways in which a supervisor-defendant may be liable for
unconstitutional acts undertaken by subordinates. First, liability may attach
if they, "with deliberate indifference to the consequences, established and
maintained a policy, practice or custom which directly caused [the]
constitutional harm." A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det.
Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) [**20]
(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.
1989)). Second, "a supervisor may be personally liable under § 1983 if he or
she participated in violating the plaintiff's rights, directed others to violate
them, or, as the person in charge, had knowledge of and acquiesced" in the
subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp.,
50 F.3d 1186, 1190-91 (3d Cir. 1995)).
Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir. 2014) (overruled on other
grounds sub nom. Taylor v. Barkes, 135 S.Ct 2042 (2015)).
Plaintiff makes no allegations in the Complaint that the harm he suffered was due to a
policy, practice or custom established by Corizon; further, no Corizon supervisor is alleged to
have been involved. Accordingly, Plaintiff has failed to present a plausible civil rights claim
against Corizon. Thus, Corizon’s Motion to Dismiss is granted without prejudice to the filing of
an amended complaint alleging facts in support of Plaintiff’s claim.
IV.
CONCLUSION
For the foregoing reasons, the following order is entered.
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ORDER
AND NOW, this 20th day of July, 2015, IT IS HEREBY ORDERED that the Motion to
Dismiss/Motion for Partial Summary Judgment of the County Defendants, ECF No. 29, is
GRANTED with leave to file an Amended Complaint solely as to Plaintiff’s Fourteenth
Amendment civil rights claims as to denial of medical care and denial of access to courts.
The Motion to Dismiss of Corizon, ECF No. 35, is GRANTED with leave to file an
Amended Complaint solely as to Plaintiff’s Section 1983 claims.
To the extent that Plaintiff wishes to file an Amended Complaint, he must do so by
August 17, 2015. If Plaintiff fails to file an Amended Complaint, this case will be dismissed.
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
cc:
All counsel of record by Notice of Electronic Filing
Edwin Wylie-Biggs
LU-3352
SCI Fayette
P.O. Box 9999
LaBelle, PA 15450-0999
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