POLITICAL PRISONER NO. DL-4686 v. WEXFORD HEALTH SOURCES, INC. et al
Filing
171
MEMORANDUM OPINION & ORDER. The DOC Defendants' Motion to Dismiss (Doc. 82 ) will be granted in part and denied in part. The Motion will be granted (i) as to all claims against Defendants Wolf, Beard, and Wetzel; (ii) all claims against the H epatitis C Treatment Committee; (iii) all state law tort claims (Counts X XVIII, inclusive); (iv) all retaliation claims (Count VI); and (v) all claims alleging denial of access to courts(Counts VIII and IX). The Motion will be denied as to (i) any supervisory claims against Defendants Gordon, Guth, Vihlidal and Knauer; (ii) any claims against The Bureau of HealthCare Services Assistant Medical Director and the Bureau of Health Care Services Infection Control Coordinator; (iii) all official cap acity claims; and (iv) all Eighth Amendment claims pertaining to Plaintiffs alleged deficient diet (Count II). Any additional Eighth Amendment claims alleging the DOC Defendants are deliberately indifferent to Plaintiffs serious medical needs will al so proceed (Counts I, III, IV, and V). The Corizon Defendants' Motions to Dismiss (Docs. 100 and 143 ) will be granted in their entirety. Medical Defendants' Motion to Dismiss (Doc. 104 ) will be GRANTED in part and DENIED in part. Spe cifically, the Motion will be granted as to (i) all state court tort claims; (ii) all retaliation claims (Count VI; (iii) all access to court claims (Counts VIII and IX); (iv) all professional negligence claims (Counts X, XI, XVII); (v) the negligenc e claims (Counts XII and XV); (vi) the breach of contract claim (Count XIII); and (vii) the equitable estoppel claim (Count XVI). The Motion is denied as to (i) all deliberate indifference to serious medical needs (Counts I, II, III, IV, and V); (ii ) the Monel claim alleged against Wexford Health and Correct Care Solutions (Count X); and (iii) the intentional infliction of emotional distress and assault and battery claims (Counts XIV and XVIII). Signed by Judge Cathy Bissoon on 06/28/2018. (alj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALTON D. BROWN, also known as
POLITICAL PRISONER,
Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC.,
et al,
Defendants.
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Civil Action No. 16-1680
Judge Cathy Bissoon
MEMORANDUM ORDER
I. MEMORANDUM
Pending before the Court are the following four Motions to Dismiss. For the reasons that
follow, the DOC Defendants’ Motion to Dismiss (Doc. 82) will be granted in part and denied in
part; Corizon Health, Inc.’s, Dr. Blatt’s, Dr. Stefanic’s and P. Hallworth’s Motion to Dismiss
(Doc. 100) will be granted; the Medical Defendants’ Motion to Dismiss (Doc. 104) will be
granted in part and denied in part; and Dr. McDonald’s Motion to Dismiss will be granted (Doc.
143).
A.
PROCEDURAL HISTORY
The instant case was commenced in this Court on November 4, 2016, when Defendants,
Correct Care Solutions LLC and Wexford Health Sources, Inc., removed the case from the Court
of Common Pleas of Allegheny County, Pennsylvania. (Doc. 1). The genesis of the case,
however, actually began six months earlier on May 17, 2016, when Plaintiff Alton D. Brown
(“Plaintiff”), a Pennsylvania state prisoner currently confined at SCI-Fayette, initiated a separate
civil rights lawsuit in this Court at Civil Action No. 16-0627, with the filing of a request to
1
proceed in forma pauperis accompanied by a complaint under 42 U.S.C. § 1983. (“Brown I”).
Brown I was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial
proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B), and
Local Rule of Civil Procedure 72.
In Brown I, Plaintiff alleged that, since medical officials diagnosed him with Hepatitis C
in 2000, Defendants have refused to provide appropriate medical care for his liver disease,
including providing an adequate diet, and have refused his requests for a new drug treatment,
which eliminates Interferon as part of the Hepatitis C treatment regimen. The Magistrate Judge
recommended that Plaintiff’s request for in forma pauperis in Brown I be denied and the case
closed as Plaintiff had not shown that he was in imminent danger of serious physical injury.1 On
August 18, 2016, three days after the report and recommendation was filed, Plaintiff filed a
nearly identical complaint to the complaint in Brown I in the Court of Common Pleas of
Allegheny County (“the state court case”).2
On October 14, 2016, this Court adopted the report and recommendation as the opinion
of the Court, and the case was dismissed without prejudice to Plaintiff reopening it by paying the
full statutory and administrative filing fees, totaling $400.00. (Brown I, Doc. 7). Thereafter,
1
Federal courts, including this Court, have repeatedly denied Plaintiff’s requests for in forma
pauperis status pursuant to 28 U.S.C. § 1915(g) as Plaintiff has had three prior qualifying
dismissals.
2
The docket of the Court of Common Pleas reflects that the Complaint was filed on August 18,
2016. However, the Complaint is dated July 1, 2016, and it appears that Brown’s original
attempt to file the complaint was rejected by the Allegheny County Department of Court
Records. See correspondence of August 5, 2016 from Brown to Kate Barkman, Director,
Department of Court Records. (Doc. 1-2, p. 21).
2
Plaintiff filed a Notice of Appeal of that Order to the United States Court of Appeals for the
Third Circuit (Doc. 8), which was docketed at Court of Appeals No. 16-4136.
While the appeal in Brown I was pending, Defendants, Correct Care Solutions LLC and
Wexford Health Sources, Inc., had the state court case removed to this Court. In response to
motions to dismiss, Plaintiff filed an Amended Complaint on April 27, 2017 (Doc. 42), which
remains his operative pleading. In the Amended Complaint, Plaintiff added approximately
twenty-eight (28) additional defendants and eight new claims. The Amended Complaint is
comprised of forty-one (41) handwritten pages, names a total of sixty-two (62) defendants, and
alleges a variety of federal and state claims: violations of the Eighth Amendment right to
medical care (Counts I – V), violation of First Amendment right of the petition clause (Count
VI), violation of the Eighth Amendment right from excessive punishment (Count VII), violations
of the Fourteenth Amendment right to access to the courts (Counts VIII and IX), medical
malpractice, negligence, and vicarious liability (Counts X, XI, XII, XV, and XVII), breach of
contract (Count XIII), intentional infliction of emotional distress (Count XIV), equitable estoppel
(Count XVI), and assault and battery (Count XVIII).
On August 29, 2017, the court of appeals remanded Brown I to this Court and on
September 1, 2017, Brown I and the instant case were consolidated under Civil Action No. 161680. (Doc. 66).
3
B.
FACTUAL BACKGROUND3
According to the Amended Complaint, in 2000, while confined at SCI-Pittsburgh,
Plaintiff was informed by the medical staff that he tested positive for the Hepatitis C virus (also
referred to as “Hepatitis C” or “HCV”). (Doc. 42, ¶ 80). He acknowledges that “from 2004 –
2009, [he] was repeatedly advised by Corizon staff that he needed treatment for his HCV,” id. ¶¶
80, 89, but that he refused any treatment until 2011 after experiencing “numerous HCV related
symptoms and complications” over the years. Id. ¶ 90. Plaintiff claims new drugs to treat
Hepatitis C came on the market in 2011, 2013, and 2014, and the Department of Corrections
(“DOC”) changed its protocol on Hepatitis C treatment in 2015. Id. ¶¶ 36-39, 46. Specifically,
he alleges that “his requests for medical treatment for his HCV during the past 5/6 years while
confined at SCI-Graterford, Smithfield, and Greene, have been completely ignored by
Defendants. . . . .” Id. ¶ 90. Plaintiff contends that his requests for a new drug treatment, one
which eliminates the use of Interferon, have been denied because of cost cutting measures. Id.
¶¶ 70-76, 89, 91, 146, 152, 153. He also alleges that due to cost cutting measures and retaliation,
Defendants, inter alia, make partial diagnoses, do not follow physicians’ orders, and deviate from
standard treatment procedures. Id. ¶ 149. Along those same lines, Plaintiff contends that he has
been denied meals catered to his special dietary needs and nutritional therapy for non-medical
3
The following background facts are taken from Plaintiff’s Amended Complaint (Doc. 42).
Because the case is presently before the Court on Motions to Dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court accepts as true all allegations in the Amended Complaint and all
reasonable inferences that can be drawn therefrom. See Rocks v. City of Philadelphia, 868 F.2d
644, 645 (3d Cir. 1989). In addition, the Court views all well pleaded factual averments and
reasonable inferences in the light most favorable to the non-moving party.
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reasons. Id. ¶¶ 56 – 78. Plaintiff contends that he learned of Defendants’ “illegal scheme” to
provide sub-standard medical care due to Defendants’ cost-saving and retaliation policies after
reading articles published in the Prison Litigation News Magazine. Id. ¶ 152.
Plaintiff’s multi-faceted Amended Complaint has, in turn, inspired multi-faceted Motions
to Dismiss. Each of the Motions challenges Plaintiff’s claims on a host of grounds. The
Motions will be addressed seriatim.
C.
ANALYSIS4
Before beginning its analysis, the Court notes that throughout the Amended Complaint,
Plaintiff predominantly makes generalized references to “Defendants,” without differentiating
them.
See, e.g., ¶ 50 (“Defendants have denied numerous requests by Plaintiff for the
appropriate and medical necessary DAAD5 treatment for his HCV infections”); ¶ 98 (“The
Defendants’ has simply generally refused to provide the basic protections for plaintiff’s infected
liver . . .”); ¶ 105 (“Defendants’ have also intentionally caused harm to Plaintiff over the years
covering the period between 2011 to present . . .”); ¶ 149 (“Defendants’ tactics employed against
Plaintiff and others under their care in support of their cost-saving and retaliation policies and
scheme include . . .”). In the few instances where Plaintiff does identify certain Defendants by
name, he recites a long list of Defendants and then makes general, vague and conclusory
4
In deciding whether to grant a Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(6), the court must take as true all of the well-pleaded facts in the complaint, Fowler v.
UPMC Shadyside, 578 F.3d 201, 211 (3d Cir. 2009), and determine whether these facts raise a
reasonable expectation that discovery will reveal the evidence necessary to prove each element
of plaintiff’s claims, Thompson v. Real Estate Mortgage Network, 748 F.3d 142, 147 (3d Cir.
2014).
5
DAAD is an acronym for “direct-acting antiviral drugs.” Doc. 42, ¶ 35.
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allegations regarding their conduct as a whole. See, e.g., ¶ 150 (“Plaintiff has been intentionally
subject to the tactics mentioned in paragraph No. 149 by Defendants Jin, Mwaura, Dascani,
Salamen, Mattes, Robinson, Gillman, Doll, Long, Price, Cutshall, Arias, Knauer, Stanikeski,
McDonald, Blatt, Stefanic, Capone, Gonzalez, Park, Beaubout, Lightburn, Zimmerly,
DeFrangesco, Machak, Agra, Kaminsky, Kephart, Austin, Santos, Valley, Literatore, Hice, Noel,
Oppman, Gordan, Silva, Alpert, Malhi, Vihlidal, Guth and Nicholson, on many occasions . . .
.”). The Court, and counsel, have endeavored, where possible, to identify specific allegations
against specific defendants. Motion to Dismiss filed by the DOC Defendants.6
The Motion filed by the DOC Defendants was filed on October 6, 2017. (Doc. 82).
Plaintiff was granted an extension until December 15, 2017 to respond. (Doc. 115). Plaintiff has
not responded to the Motion, and the time for responding has now passed. Therefore, in the
absence of any timely response by Plaintiff, the Court will deem the Motion to Dismiss ripe for
resolution. The issues raised by the DOC Defendants will be addressed seriatim.
6
The DOC Defendants are identified as Governor Tom Wolf, DOC Secretary John Wetzel,
former DOC Secretary Jeffrey Beard, Chief of Clinical Services Paul Noel, Deputy Secretary
Christopher Oppman, Dietary Management Services Specialist Margaret Gordon, Director of
Health Services Joseph Silva, SCI-Greene Food Services Manager Todd Funk, former
Corrections Health Care Administrator (CHCA) Irma Vihlidal, former CHCA Julie Knauer,
former CHCA Myron Stanishefski, SCI-Greene Medical Records Supervisor Kyle Guth, SCIGreene CHCA William Nicholson, SCI-Smithfield CHCA William Dreibelbis, and SCIGraterford CHCA Joseph Korszniak. The current employees are named in their official and
individual capacities, while the former employees appear to be named in only their individual
capacities.
6
a. Lack of Personal Involvement with Respect to Defendants Wolf, Wetzel, and Beard /
Deliberate Indifference Claims against Defendants Wolf, Wetzel, Beard, Gordon,
Guth, Vihlidal and Knauer
Distilled to its essence, the Amended Complaint alleges that Plaintiff has attempted to
obtain medical treatment for Hepatitis C and that Defendants have systemically denied his
requests based on non-medical reasons.
As to the claims against Governor Wolf, the Court finds that Plaintiff’s contention of
personal involvement is not “plausible on its face.” See Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). The Court finds it implausible, without more, that the Chief
Executive of the Commonwealth would have known of or had personal involvement with
Plaintiff or with his requests (or denials) for medical treatment. Accordingly, Plaintiff’s
Amended Complaint insofar as it alleges § 1983 liability against Governor Wolf will be
dismissed.
Similarly, the Court does not find it plausible that either Beard or Wetzel, as the former
and current Secretaries of the Department of Corrections, had personal involvement in any denial
of medical care to Plaintiff.
However, the issue is not so clear with respect to Defendants Gordon, Guth, Vihlidal and
Knauer. It is plausible that each of these defendants would play a role in the administration of
medical and dietary services in the various facilities where Plaintiff was housed and that each
would have some control over the extent to which those services were made available to
Plaintiff.
For these reasons, the Court finds that Plaintiff has sufficiently alleged that he was
subjected to certain constitutional deprivations and that Defendants Gordon, Guth, Vihlidal and
7
Knauer, acting in supervisory roles, knew of and acquiesced in these deprivations, and that the
denials at issue amount to “policies” and “customs.” See Rode, 845 F.2d at 1207.
The Court finds that Plaintiff has pleaded sufficient facts to withstand the DOC Defendants’
Motion to Dismiss as to his claims against Gordon, Guth, Vihlidal and Knauer.
b. Claims Against The Bureau of Health Care Services Assistant Medical Director and
The Bureau of Health Care Services Infection Control Coordinator
The DOC Defendants contend these two unidentified defendants should be dismissed as
nothing in the Amended Complaint indicates that these two individuals were involved in any
alleged unconstitutional conduct. Rather, the only allegation against them is generally that they
were members of the Hepatitis C Treatment Committee.
Defendants’ request will be denied without prejudice. The Amended Complaint states
that the members of the Hepatitis C Treatment Committee reviewed prisoners’ clinical status and
prioritization for treatment with DAAD medications. (Doc. 42 at ¶ 45(xvii)). Throughout the
Amended Complaint, Plaintiff alleges that individual defendants knowingly acquiescence in the
systemic denial of his medical care for cost-saving reasons. The Court finds that Plaintiff has
pleaded sufficient facts to withstand the DOC Defendants’ Motion to Dismiss. Through
discovery, the identity of the individuals on the Hepatitis C Treatment Committee will be made
known. (“According to the interim protocol, the HCV Treatment Committee consist of at least
four people . . . .” Doc. 42 at ¶ 45(xvi)).
8
c. Claims Against the “PA DOC Hepatitis C Treatment Committee”
The DOC Defendants’ request to have the “PA DOC Hepatitis C Treatment Committee”
dismissed will be granted. To state a prima facie claim under 42 U.S.C. § 1983, a plaintiff must
allege a violation of rights secured by the United States Constitution and the laws of the United
States and must show that the alleged deprivation was committed by a “person” acting under
color of state law. West v. Atkins, 487 U.S. 42 (1988).
The “PA DOC Hepatitis C Treatment Committee” is not a “person” for purposes of a
§ 1983 claim. Therefore, Defendant “PA DOC Hepatitis C Treatment Committee” will be
dismissed.
d. Official Capacity Claims
The DOC Defendants seek to have all claims against Defendants in their official
capacities dismissed. In Kentucky v. Graham, 473 U.S. 159 (1985), the Supreme Court of the
United States discussed the differences between a suit against a public official in his personal
capacity and in his official capacity. See id. at 166. The Court noted that personal capacity
actions seek to impose liability on government officials for actions taken under color of state
law, while official capacity actions represent another way to sue the municipality of which an
officer is an agent. See id. Although an action brought against both the entity and the public
official in his or her official capacity is redundant, the Court ultimately has discretion in deciding
whether to dismiss the claims against the individual defendants. See Satterfield v. Borough of
Schuylkill Haven, 12 F. Supp. 2d 423, 432 (E.D. Pa. 1998). Furthermore, a claim that is
redundant is not necessarily invalid under Rule 12(b)(6). See id. Given the nature of Plaintiff’s
9
claims and the early stage of this litigation, the Motion to Dismiss the claims against the DOC
Defendants in their official capacities will be denied without prejudice.
e. Deliberate Indifference to Plaintiff’s Dietary Needs (Count II)
At a minimum, “prison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of
the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468
U.S. 517, 526–27 (1984)). Count II of the Amended Complaint alleges generally that
Defendants have been deliberately indifferent to Plaintiff’s “dietary needs.” (Doc. 42 ¶177).
Plaintiff alleges that Defendants have refused to provide him with the “adequate and sanitary
diet” he requires as a result of his Hepatitis C diagnosis and that the diet he receives is “high in
fat content and short on protein.” (Id. ¶ 137). Plaintiff alleges that this prolonged “deficient”
diet has had a deleterious impact on his health.
At this early stage of the litigation, and accepting Plaintiff’s allegations as true, it cannot
be determined whether Defendants have deliberately disregarded an excessive risk to Plaintiff's
health or safety. Therefore, the request to dismiss Count II will be denied.
f. State Tort Law Tort Claims (Counts XI, XII, XIII, XIV, XVII, and XVIII)
The Pennsylvania General Assembly, after the judicial abolition of sovereign immunity
by the Pennsylvania Supreme Court in Mayle v. Pa. Dep't of Highways, 388 A.2d 709 (Pa.
1978), reaffirmed by statute the concept of immunity for the Commonwealth and its employees.
The statute reads:
Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is
hereby declared to be the intent of the General Assembly that the Commonwealth,
and its officials and employees acting within the scope of their duties, shall
continue to enjoy sovereign immunity and official immunity and remain immune
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from suit except as the General Assembly shall specifically waive the immunity.
When the General Assembly specifically waives sovereign immunity, a claim
against the Commonwealth and its officials and employees shall be brought only
in such manner and in such courts and in such cases as directed by the provisions
of Title 42 (relating to judiciary and judicial procedure) or 62 (relating to
procurement) unless otherwise specifically authorized by statute.
1 Pa. Cons. Stat. Ann. § 2310 (emphasis added).
According to the clear language of the statute, not only the Commonwealth, but also its
employees and officials are entitled to immunity. “In other words, if the Commonwealth is
entitled to sovereign immunity . . . , then its officials and employees acting within the scope of
their duties are likewise immune.” Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw.
Ct. 1988).
The Pennsylvania General Assembly has provided nine specific exceptions to the general
grant of immunity: (1) the operation of a motor vehicle in the control or possession of a
Commonwealth party; (2) health care employees; (3) care, custody or control of personal
property; (4) Commonwealth-owned property; (5) potholes or other dangerous conditions; (6)
care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9)
toxoids and vaccines. See 42 Pa. Cons. Stat. Ann § 8522.
The proper test to determine if a Commonwealth employee is protected from liability
pursuant to 1 Pa. Cons. Stat. Ann. § 2310 and 42 Pa. Cons. Stat. Ann. § 8522 is to consider
whether the Commonwealth employee was acting within the scope of his or her employment;
whether the alleged act which causes injury was negligent and damages would be recoverable
but for the availability of the immunity defense; and whether the act fits within one of the nine
exceptions to sovereign immunity. See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa.
Commw. 1992).
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Here, the DOC Defendants are current or former employees of the Department of
Corrections, a state agency, and, at all relevant times, were acting within the scope of their duties
as DOC employees. Moreover, none of the allegations described in the Amended Complaint
place the DOC Defendants’ actions within any of the nine exceptions to state sovereign
immunity. Accordingly, Plaintiff’s state law claims against the DOC Defendants – Counts XI,
XII, XIII, XIV, XVII, and XVIII – are barred by Pennsylvania law.
Further, any medical malpractice claims asserted against the non-medical DOC
Defendants, i.e., Wolf, Wetzel, Beard, Gordon and Funk, are barred because to establish
professional negligence, the defendant must be a healthcare provider. McCool v. Dept. of
Corrections, 984 A.2d 565, 570 (Pa. Commw. Ct. 2009). As these individuals are not licensed
healthcare providers, any professional negligence claims against Wolf, Wetzel, Beard, Gordon
and Funk will be dismissed.
g. Retaliation Claims (Count VI)
The DOC Defendants argue that Plaintiff’s “unsubstantiated, conclusory statements” that
he was denied treatment in retaliation for filing complaints against them fails to state a claim.”
(Doc. 83, p. 17).
It is well settled that “government actions, which standing alone, do not violate the
Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire
to punish an individual for exercise of a constitutional right.” Mitchell v. Horn, 318 F.3d 523,
530 (3d Cir. 2003) (quoting Allah v. Seiverling, 229 F.3d 220, 224–25 (3d Cir. 2000)). To state
a prima facie case of retaliation, a prisoner / plaintiff must demonstrate: (1) that the conduct in
which he engaged was constitutionally protected, (2) he suffered an “adverse action” at the hands
of prison officials; and (3) a causal link between the exercise of his constitutional rights and the
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adverse action taken against him. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.
2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)); see also, 375 F. App’x 232,
236 (3d Cir. 2010); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Although there is not a
heightened pleading standard in civil rights cases and liberal standards are to be applied to pro se
pleadings, a § 1983 complaint still must comply with the Federal Rules of Civil Procedure, and
must contain at least a modicum of factual specificity, identifying the particular conduct of each
defendant that is alleged to have harmed plaintiff, so that a defendant has adequate notice to
frame an answer.
In the instant case, Plaintiff’s retaliation allegations are stated in wholly conclusory
terms. He attempts to cast a wide net, making a bald assertion of retaliation -- in essence
claiming that every action taken by every Defendant was done in retaliation for Plaintiff
engaging in constitutionally protected activity. These threadbare, conclusory allegations are
insufficient to state a claim for First Amendment retaliation. Under these circumstances,
Plaintiff’s retaliation claim will be dismissed.
h. Access to Court Claims (Counts VIII and IX)
In Counts VIII and IX of the Amended Complaint, Plaintiff appears to be alleging that
Defendants have violated his right of access to the courts by denying him access to information
“necessary to have a reasonable suspicion that he was a victim of a scheme to defraud.” (Doc.
42, ¶¶ 190, 192). The DOC Defendants argue that Plaintiff’s claims fail to state a viable claim as
he has failed to state what information he has sought or what has been withheld from him. (Doc.
83, pps. 18 - 20). Plaintiff did not respond to the DOC Defendants’ Motion; however, in his
response to the Medical Defendants’ Motion, he argues that “the Defendants obviously took
13
steps to prevent Plaintiff from [discovering] their money-making schemes and tactics . . . and did
so, at least in part, to prevent their victims from seeking relief / redress from same.” (Doc. 135,
pps. 24-25).
The focus of any right of access analysis is whether the defendant’s actions denied the
plaintiff adequate, effective, and meaningful access to the courts. The Court of Appeals for the
Third Circuit has explained:
[A] denial of access claim is available where the state officials “wrongfully and
intentionally conceal information crucial to a person's ability to obtain redress
through the courts, and do so for the purpose of frustrating that right, and that
concealment and the delay engendered by it substantially reduce the likelihood of
one's obtaining the relief to which one is otherwise entitled.
Gibson v. Superintendent of N.J. Dep't of Law & Pub. Safety - Div. of State Police, 411 F.3d
427, 445 (3d Cir. 2005) (emphasis in original) (quoting Estate of Smith v. Marasco, 318 F.3d
497, 511 (3d Cir. 2003)), overruled on other grounds by Dique v. N.J. State Police, 603 F.3d 181
(3d Cir. 2010). See also Burkett v. Newman, No. 3:11-cv-00037, 2012 WL 1038914, at *3
(W.D.Pa. Feb. 21, 2012). Importantly, a plaintiff must demonstrate actual injury stemming from
the denial of access. Lewis v. Casey, 518 U.S. 343 (1996). A plaintiff must allege both an
underlying cause of action, whether anticipated or lost, and official acts frustrating the litigation.
Christopher v. Harbury, 536 U.S. 403 (2002).
Prisoners have a constitutional right to “adequate, effective and meaningful” access to the
courts. Bounds v. Smith, 430 U.S. 817 (1977). In order for Plaintiff to support his access to
courts claim, he is required to demonstrate that he has lost the opportunity to pursue a
nonfrivolous or arguable underlying legal claim, that no other remedy is available to him, and
that the Defendants had the requisite intent to deny his constitutional right of access to courts.
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Here, Plaintiff alleges generally that the Defendants concealed crucial information with the intent
to frustrate his attempts to seek relief from court.
The Amended Complaint contains no allegations that show actual injury or that Plaintiff
lost an arguable claim as a result of any actions by any of the Defendants. In fact, Plaintiff’s
arguments are undercut by the fact that he has filed the present civil action with respect to the
very issues he claims he lacked necessary information. Thus, the Court finds that Plaintiff is
unable to show that any action on the part of the DOC Defendants denied him the right “to
pursue a ‘nonfrivolous' or ‘arguable’ underlying claim,” as is required to establish an access to
courts claim. For these reasons, the DOC Defendants’ Motion to Dismiss Counts VIII and IX
will be granted.
1. Motion to Dismiss filed by the Corizon Defendants
Defendants Corizon Health, Inc., W. Myers, Dr. Blatt, Dr. Stefanic, P. Hallworth and Dr.
McDonald (“Corizon Defendants”) have also moved to dismiss Plaintiff’s Amended Complaint
(Docs. 101 & 143). Plaintiff identifies Messrs. Hallworth and Myers as executive officers with
Corizon (Doc.1-2, ¶ 7); Drs. Blatt and Stefanic are identified as medical directors at the state
correctional facilities where Plaintiff was housed (Doc. 42, ¶ 14); and Dr. McDonald is identified
as being a physician employed by Corizon. According to the Amended Complaint, Defendants
Hallworth, Myers, Blatt, and Stefanic were on the Hepatitis C committee with several other
individuals to set treatment for inmates with Hepatitis C, id. ¶ 68, and Dr. McDonald is listed
among several other individuals as ignoring Plaintiff’s requests for treatment. (Id. ¶ 91).
The Corizon Defendants argue, inter alia, that all claims against them are barred by the
applicable two-year statute of limitations. Corizon contracted with DOC to provide medical care
15
to DOC prisoners from January 2006 through January 2013. (Doc. 101). Dr. McDonald has not
worked for Corizon since June 2012. (Doc. 144, p.4). Plaintiff did not file the Complaint in this
lawsuit until 2016.7
Plaintiff responds that he only discovered Corizon’s “refusal to provide treatment
(medical) for HCV virus during 2011-2013 (when they were under contract)” was a result of
cost-saving and/or retaliation schemes when he read an article printed in the Prison Legal News.
(Doc. 166, p. 4). He does not indicate, however, when he first read the article. Additionally,
according to Plaintiff, “[a]fter reading the Prison Legal News article, it still took Plaintiff quite
some time to locate information that enlighten him about the realities with HMO’s (Health
Maintenance Organizations) in prison settings.” Id.
The statute of limitations is an affirmative defense that may be raised in a Rule 12(b)(6)
Motion if “the time alleged in the statement of a claim shows that the cause of action has not
been brought within the statute of limitations.” Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir.
2002) (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975))
(internal quotation marks omitted). “If the bar is not apparent on the face of the complaint, then
it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).” Id. (internal
quotation marks and citation omitted).
Under § 1983, federal courts apply the statute of limitations governing personal injury
actions in the state where the cause of action arose. Garvin v. City of Philadelphia, 354 F.3d
215, 220 (3d Cir. 2003). In Pennsylvania, the statute of limitations for personal injury claims is
two years. Id. (citing 42 Pa. Cons. Stat. Ann. § 5524). “Under federal law, a cause of action
7
The complaint filed in Brown I was filed on May 17, 2016 (but signed and dated by Plaintiff on
April 18, 2016) and the state court complaint was filed on August 18, 2016 (but signed and dated
by Plaintiff on July 1, 2016).
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accrues, and the statute of limitations begins to run, ‘when the plaintiff knew or should have
known of the injury upon which its action is based.’” Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009) (quoting Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998)). “The
determination of the time at which a claim accrues is an objective inquiry; we ask not what the
plaintiff actually knew but what a reasonable person should have known.” Id. (citing Barren v.
United States, 839 F.2d 987, 990 (3d Cir. 1988)).
Plaintiff recognizes that his claims against the Corizon Defendants accrued over two
years before he filed the instant suit, but he argues that two exceptions toll the two-year statute of
limitations, namely the continuing violations doctrine and the doctrine of fraudulent
concealment. The Court finds Plaintiff’s arguments to be without merit.
Under the continuing violations doctrine, “when a defendant’s conduct is part of a
continuing practice, an action is timely so long as the last act evidencing the continuing practice
falls within the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001)
(internal quotation marks and citation omitted). The Amended Complaint contains no claims of
conduct by any of the Corizon Defendants that falls within the limitations period. In fact, there
cannot be any such claims as Corizon’s role with DOC ended by January 2013.
Plaintiff’s attempt to rely on the doctrine of “fraudulent concealment” fares no better.
The doctrine of fraudulent concealment tolls the statute of limitations where “through fraud or
concealment the defendant causes the plaintiff to relax his vigilance or deviate from the right of
inquiry.” Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir. 1991) (quoting Ciccarelli v. Carey Can.
Mines, Ltd., 757 F.2d 548, 556 (3d Cir. 1985)); see also Fine v. Checcio, 870 A.2d 850, 860 (Pa.
2005) (citing Deemer v. Weaver, 187 A. 215, 215 (Pa. 1936)) (“The doctrine does not require
17
fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest
sense, which includes an unintentional deception.”).
The doctrine of fraudulent concealment requires an affirmative and independent act of
concealment that would divert or mislead the plaintiff from discovering the injury. Bohus, 950
F.2d at 925 (citing Gee v. CBS, Inc., 471 F. Supp. 600, 623 (E.D. Pa. 1979)). The Amended
Complaint is void of any allegations to support such a theory.
As there is no basis to toll or extend the statute of limitations, the Court finds that
Plaintiff’s federal claims against the Corizon Defendants are barred by the statute of limitations.8
Plaintiff’s remaining claims against the Corizon Defendants allege state law claims. A district
court may decline to exercise supplemental jurisdiction over state law claims if “the district court
has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.A. § 1367. However,
the Court of Appeals for the Third Circuit has recognized, “where the claim over which the
district court has original jurisdiction is dismissed before trial, the district court must decline to
decide the pendent state claims unless considerations of judicial economy, convenience, and
fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204
F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788
(3d Cir. 1995)) (emphasis in original). Here, all of Plaintiff’s federal claims against the Corizon
Defendants -- that is, all of the claims over which the district court had original jurisdiction -will have been dismissed. Considerations of judicial economy, convenience and fairness do not
provide an affirmative justification for maintaining Plaintiff's state law claims against the
Corizon Defendants. Shaffer v. Bd. of Sch. Dir. of Albert Gallatin Area S.D., 730 F.2d 910,
8
Because the Court finds that Plaintiff’s claims are barred by the statute of limitations, there is
no need for the Court to analyze the Corizon Defendants’ alternative arguments for dismissal of
the claims against them.
18
912–13 (3d Cir. 1984) (noting that “time already invested in litigating the state cause of action is
an insufficient reason to sustain the exercise of pendent jurisdiction” and that “decisions of state
law should be avoided both as a matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law”). As such, the Court will dismiss
these state law claims without prejudice for want of jurisdiction. See Burnsworth v. PC Lab.,
364 F. App’x 772, 776 (3d Cir. 2010) (affirming a district court's decision to decline
supplemental jurisdiction over state law claims when the federal claims had been dismissed).
2.
The Motion to Dismiss filed by the Medical Defendants9
The Medical Defendants moved to dismiss on November 6, 2017 (Doc. 104), and
Plaintiff responded in opposition on January 5, 2018. (Doc. 135). The Motion is ripe for
resolution.
The Medical Defendants’ first argument is similar to that made by the Corizon
Defendants, namely that all claims against them are barred by the two-year statute of limitations.
The Medical Defendants, however, are in a much different posture than the Corizon Defendants.
Plaintiff contends that the Medical Defendants have been responsible for his healthcare since the
expiration of Corizon’s contract. (Doc. 135, p. 2). Specifically, he states that Wexford Health
had a contract with DOC from January 1, 2013, until September 1, 2014, (contract #
44000010454) and that Correct Care Solutions took over after the expiration of the Wexford
9
Defendants Wexford Health Sources, Inc.; Correct Care Solutions, LLC; Byunghak Jin, Elon
Mwaura, Paul Dascani, Jawad A. Salamen, Esther L. Mattes, John N. Robinson, Tyson D.
Gillmen, Christina B. Doll, Ronald A. Long, Deb Cutshall, Dr. Felipe Arias, V. Capone, Min H.
Park (identified as “Doctor Park”), Susan Lighbourn, Jack Zimmerly, J. Defrangesco, Ray
Machak, C. Agra, Stephen Kaminsky, C. Kephart, Rob Price, Natalie Austin, Stacey Liberatore,
Mike Hice, Nicholas Schariff, Andrew Dancha, Thomas Lehman, Doctor Alpert and C. Keldie
comprise the “Medical Defendants.”
19
Health contract. Id.10 Based on this scenario, it appears that the continuing violations theory
provides an exception to the two-year statute of limitations for claims against Wexford Health
and its employees. As to the claims against Correct Care Solutions and its employees, those
claims appear to be timely filed.
The Court will now address the Medical Defendants’ remaining arguments seriatim.
a. Lack of Personal Involvement (Counts I, III, IV, and V)
The Medical Defendants argue that the Amended Complaint should be dismissed for
failure to allege personal involvement. Specifically, the Medical Defendants argue that the
claims of the Amended Complaint contain generalized references and fails to show that any of
the Medical Defendants “actually participated in Plaintiff’s medical care or that they had the
requisite subjective state of mind for liability.” (Doc. 105, p. 7). Plaintiff responds that he is
making “collective” claims because “he was/is collectively attacked pursuant to the high (sic)
Defendant’s policies, practices, and /or procedures.” (Doc. 135, p.10).
Although, at first blush, a review of the Amended Complaint appears to confirm a lack of
personal involvement on the part of certain Medical Defendants, a closer read reveals that
Plaintiff’s core allegation is that the Medical Defendants instituted cost-saving policies and
practices regarding the delay or denial of requests for medical treatment and that the individual
defendants knowingly acquiescence in the systemic denial of medical care for cost-saving
reasons. Without evaluating the underlying merits of the claim, but noting the deference
traditionally afforded to pro se plaintiffs, the Court finds that Plaintiff has pleaded sufficient facts
10
It is not clear from the limited record before Court when Wexford Health and its employees
actually ceased responsibility for healthcare to the DOC prisoners. Plaintiff states that “CCS
and its employees didn’t begin their contract duties until sometime in 2015, when they took over
after the expiration of WHS contract.” (Doc. 135 at 2, Doc. 42 at ¶ 158).
20
to withstand the Medical Defendants’ Motion to Dismiss on his claims of deliberate indifference
to his serious medical needs.
b. Retaliation Claim (Count VI)
The same analysis applies to the retaliation claims against the Medical Defendants as that
applied to the retaliation claims against the DOC Defendants. See supra. Therefore, the
retaliation claims of Count VI of the Amended Complaint will be dismissed against the Medical
Defendants.
c. Deprivation of 14th Amendment Right of Access to the Courts (Counts VIII and IX)
Similarly, the same analysis applies to the access to courts claims against the Medical
Defendants as that applied to the access to court claims against the DOC Defendants. See supra.
Therefore, the claims in Counts VIII and IX of the Amended Complaint will be dismissed
against the Medical Defendants.
d. Professional Negligence Claims (Counts X, XI, XII, XV, and XVII)
Pennsylvania law requires that a certificate of merit accompany a claim for professional
liability brought against designated licensed professionals, including health care providers. See
Pa R. Civ. P. 1042.3 and 1042.1(b). The United States Court of Appeals for the Third Circuit
has held that Rule 1042.3 is substantive law under the Erie doctrine and must be applied as such
by federal courts. Liggon-Redding v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011).
Additionally, “one of Pennsylvania’s conditions precedent to dismissing an action for failure to
comply with the [certificate of merit] requirement, fair notice to a plaintiff, is also substantive
law,” Schmigel v. Uchal, 800 F.3d 113, 115 (3d Cir. 2015), and, therefore, also must be applied
in federal court. Id. at 124. This requirement of state law applies with equal force to counseled
21
complaints, and to pro se medical malpractice actions brought under state law. See Leaphart v.
Prison Health Services, No. 3:10-cv-1019, 2010 WL 5391315 (M.D. Pa. Nov. 22, 2010).
Rule 1042.3 specifically states that a plaintiff shall file with the complaint or within sixty
days after the filing of the complaint a certificate of merit. The Medical Defendants argue that
all of Plaintiff’s professional negligence claims against them should be dismissed because
Plaintiff has failed to file the requisite certificate of merit. In response, Plaintiff contends that
this claim is “clearly frivolous” because the Medical Defendants have failed to provide him with
notice as required under Rule 1042.7.
Plaintiff’s position is belied by the record. The docket reflects that on March 9, 2017, the
Medical Defendants filed a Notice of Intention to Enter Judgment for Failure to File a Certificate
of Merit. (Doc. 25).11 The certificate of service reflects that Plaintiff was served with the notice
by first class, United States mail, postage pre-paid. And, in fact, on March 31, 2017, in response
to the Medical Defendants’ notice, Plaintiff requested an extension of time in which to file his
certificate of merit (Doc. 34),12 which request was denied by the Magistrate Judge on April 6,
2018. (Doc. 38).
Accordingly, the Court finds that the record reflects that Plaintiff was given notice in
March of 2017 that the Medical Defendants were seeking to have his professional negligence
claims dismissed for failing to file a certificate of merit. The filing of the Amended Complaint,
11
Similarly, the Corizon Defendants filed a notice of intention to take judgment for failure to
file a certificate of merit on November 1, 2017. (Doc. 99).
12
In his request for an extension, Plaintiff stated that the filing of an Amended Complaint would
make the need for filing a certificate of merit “obsolete.” However, the Amended Complaint
contains a number of professional negligence claims; therefore, the need for Plaintiff to file a
certificate of merit was not eliminated.
22
which again included multiple professional negligence claims, did not relieve Plaintiff of his
obligation to file a certificate of merit. The Amended Complaint was filed in April of 2017. The
instant Motion to Dismiss was filed on November 6, 2017. Plaintiff did not obtain the required
certificate even after the filing of the instant Motion to Dismiss, which again gave him notice
that one was needed. It is undisputed that Plaintiff has not submitted a certificate of merit as
required by Rule 1042.3. Thus, the Medical Defendants are entitled to have Plaintiff’s
professional negligence claims against them dismissed.
e. Claim against Wexford Health and Correct Care Solutions for Vicarious Liability
(Count X)
The Medical Defendants also argue that to the extent Plaintiff is alleging that an
unconstitutional policy or custom attributable to Wexford Health or Correct Care Solutions
resulted in a constitutional injury, such a claim fails as the Amended Complaint does not
sufficiently allege that they knew that they had a policy or practice that was deliberately
indifferent to Plaintiff’s constitutional rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663
(1978). A private corporation may be held liable for § 1983 constitutional violations if while
acting under color of state law, the corporation knew of and acquiesced in the deprivation of a
plaintiff's rights. Id. at 694-95 (1978). To establish liability regarding a private corporation, the
plaintiff must show that the corporation, with “deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused [plaintiff's]
constitutional harm.” Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989),
cert. denied, 493 U.S. 1044 (1990).
Here, the Medical Defendants claim they are unable to discern any policy Plaintiff is
challenging. The Medical Defendants argue that Plaintiff has not sufficiently pleaded the
23
existence of a practice or policy that the Medical Defendants knew constituted a substantial risk
of harm to Plaintiff. The Court disagrees with this argument.
Plaintiff’s Amended Complaint quite clearly alleges that the Medical Defendants have a
policy of saving money by ignoring the serious medical needs of prisoners, and alleges that this
policy has been applied to him through their failure to treat his Hepatitis C and related illnesses.
Plaintiff's Amended Complaint states that as a result of the cost-saving policy, he is forced to
endure the effects of non-treatment: pain that serves no penological purpose and his health
continues to decline. Policies that subject prisoners to pain that serve no penological purpose are
unconstitutional. See Estelle, 429 U.S. at 103. By alleging that treatment was deliberately
denied or delayed in violation of his Eighth Amendment right to be free from cruel and unusual
punishment as part of the Medical Defendants’ cost-saving policy, Plaintiff has sufficiently
pleaded the existence of an unconstitutional policy carried out by an entity acting under color of
state law. Therefore, Plaintiff has sufficiently pleaded a cognizable § 1983 claim, and the
Medical Defendants’ request to have the claims raised in Counts X against Wexford Health and
Correct Care Solutions be dismissed pursuant to Fed.R.Civ.Proc. 12(b)(6) will be denied.
f. Breach of Contract (Count XIII)
In Count XIII of the Amended Complaint, Plaintiff alleges that the Medical Defendants
breached their contractual agreement with the Commonwealth by failing to provide adequate
medical care and that he is a third-party beneficiary of the contract. The Medical Defendants
argue that Plaintiff’s allegations cannot support such a breach of contract claim.
In Pennsylvania, third party beneficiary law is summarized as follows: a party becomes a
third party beneficiary only where both contracting parties have expressed an intention to benefit
the party in the contract itself. Scarpitti v. Weborg, 609 A.2d 147, 149 (Pa. 1992) (citing Spires
24
v Hanover Fire Ins. Co., 70 A.2d 828 (Pa. 1950)). However, in Guy v. Liederbach, 459 A.2d
744 (Pa. 1983), the Pennsylvania Supreme Court carved out an exception stating that if the
circumstances are so compelling that recognition of the beneficiary’s right is appropriate to
effectuate the intention of the parties, and the performance satisfies an obligation of the promisee
to pay money to the beneficiary or the circumstances indicate that the promisee intends to give
the beneficiary the benefit of the promised performance. See also Perlman v. Universal
Restoration Sys., Inc., No. 09-4215, 2013 WL 5278211, at *8 n.11 (E.D. Pa. Sept. 19, 2013).
The standing requirement “leaves discretion with the trial court to determine if recognition of the
third party beneficiary status would be ‘appropriate’.” Guy, 459 A.2d at 751.
In response to Defendants’ Motion, Plaintiff states he has pleaded sufficient facts in
support of his third party contractual claims. (Doc. 135, p. 8). However, other courts in this
Circuit have found that plaintiffs lack standing to sue for the type of violation Plaintiff here
claims; “this is so even if Plaintiff deems or designates himself as a third-party beneficiary of
[the] contract.” Parker v. Gateway Nu-Way Found., No. 10-2070, 2010 WL 4366144, at *4
(D.N.J. Oct. 26, 2010). See also Zeigler v. Correct Care Systems, No. CV 1:16-CV-1895, 2018
WL 1470786, at *4 (M.D. Pa. March 26, 2018); Robinson v. Corizon Health, Inc., No. CV 107165, 2016 WL 1274045, at *9 (E.D. Pa. March 30, 2016) (citing cases). Plaintiff has not
sufficiently alleged that there was an express contractual intent to make him a third-party
beneficiary of the relevant contract. Nor do Plaintiff’s allegations support a finding that he has
sufficiently alleged compelling circumstances to warrant a finding that he has third-party
beneficiary standing. Ultimately, Plaintiff's conclusory allegation that he was “a third party
beneficiary” is not enough to support his claim. Thus, Plaintiff’s breach of contract claim (Count
XIII) will be dismissed.
25
g. Intentional Infliction of Emotional Distress (Count XIV) and Assault and Battery
(Count XVIII)
The Medical Defendants argue that these claims should dismissed because the statute of
limitations for actions lying in tort is two years and the statute tolled in either 2013 or 2014.
However, the Court’s analysis which was applied to Plaintiff’s federal claims, equally applies to
his state tort claims. Therefore, the Medical Defendants’ Motion to Dismiss Plaintiff’s
intentional infliction of emotional distress and assault and battery claims will be dismissed.
h. Equitable Estoppel (Count XVI)
The Medical Defendants argue that this claim should be dismissed as Plaintiff “is
asserting the doctrine of estoppel on behalf of Defendants, which is wholly improper.” (Doc.
105 at 18). Plaintiff responds that “[t]he Amended Complaint is simply full[] of allegations to
satisfy Defendants’ concerns regarding Plaintiff’s “equitable estoppel” claim. (Doc. 135, p. 25).
The Court finds that Plaintiff’s argument can be rejected rather summarily.
Equitable estoppel “is not an independent cause of action but one ‘raised either as an
affirmative defense or as grounds to prevent the defendant from raising a particular defense.’ ”
Retail Brand Alliance, Inc. v. Rockvale Outlet Center, LP, No. 06-01857, 2007 WL 966509, at
*3 (E.D.Pa. March 28, 2007) (quoting Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411,
416 (3d Cir. 1990) (citation omitted)); see also Bair v. Purcell, No. 1:04-CV1357, 2007 WL
2219306, at *17 (M.D.Pa. Aug. 2, 2007) (providing that “equitable estoppel is raised as an
affirmative defense or as grounds to prevent a defendant from raising a particular defense, it
cannot be pleaded as a separate cause of action”). Plaintiff seeks to invoke equitable estoppel
stating “he was subjected to Defendant’s intentional misrepresentations regarding their intent to
26
comply with the terms of their contract. . . .” (Doc. 135, p. 25). The Court’s ruling on Plaintiff’s
third-party beneficiary claim renders his equitable estoppel claim unsustainable. Therefore, the
Medical Defendants’ request will be granted and Count XVI will be dismissed.
4. Leave to Amend
The Court must allow amendment by the plaintiff in a civil rights case brought under
§ 1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested,
unless doing so would be “inequitable or futile.” Fletcher–Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235
(3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6),
the district court must offer the opportunity to amend unless it would be inequitable or futile).
The undersigned is cognizant of these holdings, but finds that allowing for amendment by
Plaintiff would be futile.
Defendants’ Motions to Dismiss the Amended Complaint placed Plaintiff on notice of the
deficiencies in the Amended Complaint. Further amendment would be futile because Plaintiff
has had the opportunity to revise his claims to add any missing factual averments, but has elected
not to do so.
II.
ORDER
For the reasons set forth above, the Motion to Dismiss filed by the DOC Defendants
(Doc. 82) will be GRANTED in part and DENIED in part. Specifically, the Motion will be
granted (i) as to all claims against Defendants Wolf, Beard, and Wetzel; (ii) all claims against the
Hepatitis C Treatment Committee; (iii) all state law tort claims (Counts X – XVIII, inclusive);
(iv) all retaliation claims (Count VI); and (v) all claims alleging denial of access to courts
(Counts VIII and IX). The Motion will be denied as to (i) any supervisory claims against
27
Defendants Gordon, Guth, Vihlidal and Knauer; (ii) any claims against The Bureau of Health
Care Services Assistant Medical Director and the Bureau of Health Care Services Infection
Control Coordinator; (iii) all official capacity claims; and (iv) all Eighth Amendment claims
pertaining to Plaintiff’s alleged deficient diet (Count II). Any additional Eighth Amendment
claims alleging the DOC Defendants are deliberately indifferent to Plaintiff’s serious medical
needs will also proceed (Counts I, III, IV, and V).
The Motions to Dismiss filed by the Corizon Defendants (Docs. 100 and 143) will be
GRANTED in their entirety as any claims against the Corizon Defendants are barred by the
applicable two-year statute of limitations.
The Motion to Dismiss filed by the Medical Defendants (Doc. 104) will be GRANTED
in part and DENIED in part. Specifically, the Motion will be granted as to (i) all state court tort
claims; (ii) all retaliation claims (Count VI; (iii) all access to court claims (Counts VIII and IX);
(iv) all professional negligence claims (Counts X, XI, XVII); (v) the negligence claims (Counts
XII and XV); (vi) the breach of contract claim (Count XIII); and (vii) the equitable estoppel
claim (Count XVI). The Motion is denied as to (i) all deliberate indifference to serious medical
needs (Counts I, II, III, IV, and V); (ii) the Monel claim alleged against Wexford Health and
Correct Care Solutions (Count X); and (iii) the intentional infliction of emotional distress and
assault and battery claims (Counts XIV and XVIII).
IT IS SO ORDERED.
June 28, 2018
/s Cathy Bissoon
Cathy Bissoon
United States District Judge
28
cc:
Alton D. Brown
(via U.S. First Class Mail)
All Counsel of Record
(via ECF email notification)
29
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