POLITICAL PRISONER NO. DL-4686 v. WEXFORD HEALTH SOURCES, INC. et al
Filing
289
OPINION and ORDER adopting 279 Report and Recommendation. Dr. Santos's and Dr. Valley's Motions to Dismiss, or in the alternative for Summary Judgment, 236 and 239 , are GRANTED in part, and DENIED in part, as stated in detail in the Order. This matter will proceed upon the claims and against the Defendants who have survived following the 171 June 28, 2018 Memorandum Opinion and Order and the 279 November 13, 2020 Report and Recommendation. This matter is referred back to the Magistrate Judge for further proceedings. Signed by Judge Marilyn J. Horan on 3/15/21. (rtw)
Case 2:16-cv-01680-MJH-CRE Document 289 Filed 03/15/21 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALTON D. BROWN,
)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES, et al., )
)
Defendants.
)
Civil No. 16-cv-1680
OPINION and ORDER
This case 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)(1)(A) and (B), and Local
Rule of Civil Procedure 72. On November 13, 2020, the Magistrate Judge issued a Report and
Recommendation, recommending granting in part and denying in part the motions to dismiss
and/or for summary judgment filed by Defendants Arthur M. Santos, M.D. and Robert Valley,
M.D. ECF No. 279. The parties were informed that in accordance with 28 U.S.C. § 636(b)(1)(B)
and (C), and Local Rule of Court 72.D.2, that objections to the Report and Recommendation were
due by November 27, 2020 for the electronically registered Defendants, and by November 30,
2020 for the non-electronically registered party Plaintiff. After obtaining an extension of time to
file, Mr. Brown’s “Objections to Magistrate Judge’s Report and Recommendation,” were filed on
January 4, 2021. ECF No. 288. For the reasons that follow, after de novo review, the Court finds
that Mr. Brown’s objections do not undermine the recommendation of the magistrate judge.
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I.
Background
A. Relevant Procedure
On April 26, 2017, Mr. Brown filed an Amended Complaint asserting eighteen claims
against numerous defendants. ECF No. 42. His claims are: deprivation of the Eighth
Amendment right to medical care (Counts I – V), deprivation [through retaliation] of the First
Amendment right of petition (Count VI), deprivation of Eighth Amendment right [to be free]
from excessive punishment (Count VII), deprivation of Fourteenth Amendment right of access to
the courts (Counts VIII and IX), medical malpractice, negligence, and vicarious liability as to the
corporate Defendants (Count X), medical malpractice (Count XI), negligence per se (Count XII),
breach of contract (Count XIII), intentional infliction of emotional distress (Count XIV),
corporate negligence (Count XV), equitable estoppel (Count XVI), medical malpractice (Count
XVII), and assault and battery (Count XVIII). Prior to Doctors Anthony Santos and Robert
Valley responding to the Amended Complaint, the then-presiding District Judge1 issued a
Memorandum Order resolving four Motions to Dismiss filed by fifteen Department of
Corrections Defendants (DOC Defendants2), five Corizon Health, Inc. Defendants (Corizon
1
District Judge Cathy Bisson was the presiding Judge in this matter until it was reassigned to the
undersigned on December 12, 2018. ECF No. 202.
2
The fifteen Department of Corrections Defendants (DOC Defendants) on whose behalf the Motion to
Dismiss was filed are 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 Care 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, SCI- Greene CHCA William Nicholson, SCI-Smithfield CHCA William Dreibelbis, and SCIGraterford CHCA Joseph Korszniak. ECF Nos. 82 & 83.
2
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Defendants3), and thirty-one entities and individuals referred to as the Medical Defendants4.
Mem. Order, June 28, 2018, ECF No. 171.
The June 28, 2018 decision resulted in the dismissal of all claims against the five Corizon
Defendants. As to the Medical Defendants, the Court dismissed all state court tort claims,
retaliation claims, access to court claims, professional negligence claims, negligence claims, the
breach of contract claim, and the equitable estoppel claim. As to the DOC Defendants, the Court
dismissed all claims against Defendants Wolf, Beard, and Wetzel, all claims against the “PA
DOC Hepatitis C Treatment Committee”, all state law tort claims, all retaliation claims, and all
claims alleging denial of access to courts.
The Medical Defendants’ Motion was denied as to all claims of deliberate indifference to
serious medical needs, the municipality liability claim against Wexford Health and Correct Care
Solutions, the intentional infliction of emotional distress claim, and the assault and battery claim.
The DOC Defendants’ Motion was denied as to supervisory claims against Gordon, Guth,
Vihlidal and Knauer; claims against The Bureau of Health Care Services Assistant Medical
Director and the Bureau of Health Care Services Infection Control Coordinator, all official
capacity claims, and all Eighth Amendment claims pertaining to Mr. Brown’s alleged deficient
3
The five Corizon Health Defendants are Corizon Health, Inc., W. Myers, Dr. Blatt, Dr. Stefanic, P.
Hallworth and Dr. McDonald. ECF Nos. 100 & 143.
4
The thirty-one Medical Defendants on whose behalf a Motion to Dismiss was filed are 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 Lightbourn, 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. ECF No. 104.
.
3
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diet. Further, any additional Eighth Amendment claims alleging that the DOC Defendants were
deliberately indifferent to Mr. Brown’s serious medical needs were permitted to proceed forward.
The remaining claims in the case all relate to Mr. Brown’s allegations that he received deficient
medical care while he was incarcerated at SCI-Greene. Specifically, he contends that Defendants
denied him medical treatment for his Hepatitis C and other health issues, including malnutrition
and bacterial infections. The remaining Defendants include approximately twelve Department of
Corrections employees, including SCI-Greene staff members and DOC Central Office staff in
Mechanicsburg, PA, Wexford Health Sources, Inc., Correct Care Solutions, LLC, and
approximately thirty-three individuals of the contract prison medical staff.
B. Factual Background
Mr. Brown alleges that his attempts to obtain medical treatment for Hepatitis C, and other
conditions and symptoms, were denied for non-medical reasons. He alleges that he was denied
medical care in retaliation for engaging in constitutionally protected activity. Mr. Brown also
alleges that he was denied medical care due to cost-saving policies and practices that incentivize
profits. The Amended Complaint’s abbreviated factual allegations are as follows. In 2000, while
confined at SCI-Pittsburgh, Mr. Brown was informed by the medical staff that he tested positive
for the Hepatitis C virus (also referred to as “Hepatitis C” or “HCV”). Am. Compl. ¶ 80. He
acknowledges that “from 2004– 2009, [he] was repeatedly advised by Corizon staff that he
needed treatment for his HCV,” but that he refused any treatment until 2011 after experiencing
“numerous HCV related symptoms and complications” over the years. Id. ¶ 80-90. Mr. Brown
claims new drugs to treat Hepatitis C came on the market in 2011, 2013, and 2014, and the DOC
changed its protocol on Hepatitis C treatment in 2015. Id. ¶¶ 36-39, 46. Specifically, he alleges
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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.
Mr. Brown 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. Mr. Brown further contends that he has been denied meals catered to his
special dietary needs and nutritional therapy for non-medical reasons. Id. ¶¶ 56 – 78. He
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.
C. November 13, 2020 Report and Recommendation
The November 13, 2020 Report and Recommendation was issued to resolve the Motions
to Dismiss, or in the alternative, Motions for Summary Judgment, filed by Dr. Santos and Dr.
Valley. The Magistrate Judge recommended granting the Motions in part and denying them in
part. As to the Motions for Summary Judgment, based on the failure to exhaust administrative
remedies, the Magistrate Judge recommended that the motions be denied without prejudice. The
Magistrate Judge recommended that the Motion to Dismiss be denied as to whether the claims are
barred by the statute of limitations and as to whether the Amended Complaint fails to allege the
personal involvement of either Dr. Santos or Dr. Valley. The Magistrate Judge also
recommended that the Motions to Dismiss be denied as to the following: Counts I through V, the
Eighth Amendment deliberate indifference claims; Counts XIV and XVIII, the intentional
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infliction of emotional distress and assault and battery claims, and Mr. Brown’s request for
punitive damages. The Magistrate Judge recommended that Dr. Valley’s motion be denied
without prejudice as to Count XVII, the medical malpractice claim, because Dr. Valley has not
met the notice requirements of Pa. R. C. P. 1042.7.
The Magistrate Judge recommended that the Motions to Dismiss be granted as to Count
VI, all retaliation claims, Count VII the claim for excessive punishment, Counts VIII and IX, the
access to courts claims, Counts X, XI, and XV, the medical malpractice, corporate negligence,
and negligence per se claims, Count XIII, the breach of contract claim, and Count XVI, the
equitable estoppel claim. With respect to Count XVII, the medical malpractice claim, the
Magistrate Judge recommended that Dr. Santos’ Motion to Dismiss said Count XVII be granted
because Mr. Brown responded that Count XVII was not meant to apply to Dr. Santos.
II.
DISCUSSION
In response to the Report and Recommendations, Mr. Brown filed written Objections.
The filing of timely objections requires the district judge to “make a de novo determination of
those portions of the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1); Sample v.
Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); Fed. R. Civ. P. 72(b)(3). While Mr. Brown
generally expresses disagreement with the manner in which the Magistrate Judge characterized
his Amended Complaint, his sole substantive Objection is to the recommendation to grant the
Motions to Dismiss his Count VI retaliation claim.5
5
Mr. Brown seeks leave to supplement his Amended Complaint, in part, to add four new SCI-Fayette
Defendants. Pltf. Obj. 26. The request is improperly raised in the Objections and therefore will not be
addressed by the Court.
6
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“To state a prima facie case of First Amendment retaliation, a claimant must allege that (1)
he engaged in constitutionally protected conduct; (2) he suffered an adverse action ‘sufficient to
deter a person of ordinary firmness from exercising his [constitutional] rights’; and (3) the
constitutionally protected conduct was ‘a substantial or motivating factor’ for the adverse action.”
Palmore v. Hornberger, 813 F. App’x 68, 70 (3d Cir. 2020) (quoting Rauser v. Horn, 241 F.3d
330, 333 (3d Cir. 2001)).6 “Because retaliation claims can be easily fabricated, district courts
must view prisoners’ retaliation claims with sufficient skepticism to avoid becoming entangled in
every disciplinary action taken against a prisoner.” O’Connell v. Sobina, No. CIV.A.
1:06CV238, 2008 WL 144199, at *11 (W.D. Pa. Jan. 11, 2008).7 In that respect, Mr. Brown’s
broad and general claims of retaliatory conduct were properly dismissed.
The Report and Recommendation for dismissing the retaliation claims against Dr. Santos
and Dr Valley is based on the rationale set forth in District Court Judge Bisson’s June 28, 2018
decision addressing other defendants’ motions to dismiss. Presently, the Magistrate Judge states
6
Once a plaintiff states a prima facie case of retaliation, a prison official may still prevail if he meets the
burden to “establish that ‘they would have made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological interest.’” Watson v. Rozum, 834 F.3d 417, 422 (3d
Cir. 2016) (quoting Rauser, 241 F.3d at 334). We need not consider the Defendants’ legitimate
penological interest at the motion to dismiss stage. “[W]hen ruling on a motion to dismiss, a district court
must consider only the complaint and its attached documents, see In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1424–25 (3d Cir. 1997) (Alito, J.), and, for that reason, ‘[i]t makes little sense to apply [the
burden-shifting framework] at the pleading stage, Thomas v. Eby, 481 F.3d 434, 442 (6th Cir. 2007).”
Palmore v. Hornberger, 813 F. App’x 68, 71 (3d Cir. 2020).
7
Citing Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); Woods v. Smith, 60 F.3d 1161, 1166 (5th
Cir. 1995); and Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). See also Shelbo v. Wetzel, No. 1:15CV-0344, 2017 WL 635110, at *2 (M.D. Pa. Feb. 16, 2017) (While mindful that the pro se plaintiff may
not be held to a heightened burden of proof, the court should approach prisoner claims of retaliation ‘with
skepticism and particular care’ due to the ‘near inevitability’ that prisoners will take exception with the
decisions of prison officials and ‘the ease with which claims of retaliation may be fabricated.’”) (citations
omitted).
7
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that the “undersigned incorporates the ratio decidendi applied in the June 2018 Memorandum
Opinion and recommends that Defendants’ motions to dismiss Count VI of the Amended
Complaint be granted.” ECF No. 171 at 13. The rationale in the June 28, 2018 decision, which
was also expressly stated in the present Report and Recommendation, is as follows:
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.
ECF No. 171 at 12-13; ECF No. 279 at 16. The Court agrees with the above rationale. The
District Court’s and the Magistrate Judge’s descriptions of Mr. Brown’s Amended Complaint are
accurate. The Amended Complaint is a “sprawling narrative comprised of forty-one handwritten
pages” and “throughout the Amended Complaint Plaintiff predominantly makes generalized
references to ‘Defendants,’ without making any differentiation between them.” ECF No. 171, at
9. When Mr. Brown does “identify certain Defendants by name, he recites a long list of
Defendants and then makes general, vague, and conclusory allegations regarding their conduct as
a whole.” Id. at 10. Mr. Brown also includes allegations, some of which are merely descriptive,
of matters tangentially related to his claims, and in some cases not related at all. Although not in
violation of the Rules, such allegations are unnecessary in a federal complaint, and further, make
analysis of an already unwieldy document more difficult. His allegations are further complicated
by combining alleged unrelated dual motivations for Defendants conduct. Mr. Brown alleges that
Defendants’ conduct was motivated by a desire to retaliate against him for engaging in protected
conduct, and that the same adverse conduct was also motivated by Defendants’ desire to conform
to alleged system-wide cost-cutting policies. Mr. Brown acknowledges “that some of his
8
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retaliation claims are very similar to his claims regarding Defendants’ acts designed to save
money.” Obj. 6. Following de novo review, the Court agrees that Mr. Brown’s “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.” ECF No. 279 at 16.
III.
CONCLUSION
The Court accepts the Report and Recommendation as to disposition of Mr. Brown’s
retaliation claim asserted in Count VI. The Court accepts the Report and Recommendation as to
the Magistrate Judge’s disposition of the Motions as to other issues and claims.
Accordingly, the following Order is hereby entered.
ORDER
AND NOW, this 15th day of March 2021, following a de novo review of the relevant
pleadings and documents in this case, together with the Report and Recommendation, and
Objections thereto, the Court finds that Plaintiff’s objections do not undermine the
recommendations of the Magistrate Judge.
Accordingly, it is hereby ORDERED that the Report and Recommendation, ECF No. 279,
dated November 13, 2020, is ADOPTED as the Opinion of the Court.
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IT IS FURTHER ORDERED that Dr. Santos’ and Dr. Valley’s Motions to Dismiss, or in
the alternative for Summary Judgment, ECF Nos. 236 and 239, are GRANTED in part, and
DENIED in part, as follows:
1. The Motions for Summary Judgment based on failure to exhaust administrative remedies
are DENIED without prejudice to refiling same after discovery has been completed.
2. The Motions to Dismiss are DENIED as to Defendants’ arguments that Mr. Brown’s
claims are barred by the statute of limitations and that the Amended Complaint fails to
allege the personal involvement of either Dr. Santos or Dr. Valley.
3. The Motions to Dismiss are DENIED as to Mr. Brown’s deprivation of the Eighth
Amendment right to medical care/deliberate indifference asserted in Counts I, II, III, IV,
and V.
4. The Motions to Dismiss are DENIED as to Mr. Brown’s intentional infliction of
emotional distress claim asserted in Count XIV.
5. The Motions to Dismiss are DENIED as to Mr. Brown’s assault and battery claim asserted
in Count XVIII.
6. The Motions to Dismiss are DENIED as to Mr. Brown’s request for punitive damage
claims.
7. Dr. Valley’s Motions to Dismiss is DENIED without prejudice as to Mr. Brown’s medical
malpractice claim asserted against Dr. Valley, as Dr. Valley has not met the notice
requirements of Pa. R. C. P. 1042.7.
8. The Motions to Dismiss are GRANTED as to Mr. Brown’s claim of deprivation [through
retaliation] of the First Amendment right of petition asserted in Count VI.
9. The Motions to Dismiss are GRANTED as to Mr. Brown’s stand-alone claim for
excessive punishment asserted in Count VII.
10. The Motions to Dismiss are GRANTED as to Mr. Brown’s claims of denial of access to
courts asserted in Counts VIII and IX.8
11. The Motions to Dismiss are GRANTED as to Mr. Brown’s medical malpractice claim
asserted in Count X.
8 Mr. Brown states in his Objections that Counts VIII and IX were not meant to be asserted against Dr.
Santos and Dr. Valley. Pltf. Obj. 26.
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12. The Motions to Dismiss are GRANTED as to Mr. Brown’s corporate negligence claim
asserted in Count XI
13. The Motions to Dismiss are GRANTED as to Mr. Brown’s negligence per se claim
asserted in Counts XV.
14. The Motions to Dismiss are GRANTED as to Mr. Brown’s breach of contract claims
asserted in Count XIII.
15. The Motions to Dismiss are GRANTED as to Mr. Brown’s equitable estoppel claims
asserted in Count XVI.
16. Dr. Santos’s Motions to Dismiss is GRANTED as to Mr. Brown’s medical malpractice
claim asserted against Dr. Santos in Count XVII because Mr. Brown concedes that this
claim was not meant to apply to Dr. Santos.
The Court finds that further amendment would be futile, and therefore leave to amend is
not granted.
This matter will proceed upon the claims and against the Defendants who have survived
following the June 28, 2018 Memorandum Opinion and Order, ECF No. 171, and the November
13, 2020 Report and Recommendation, as adopted herein. This matter is referred back to the
Magistrate Judge for further proceedings.
__________________________
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______ ________
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Marilyn J. Horan
Ho
Ho
United States District Court Judge
cc:
ALTON D. BROWN
DL-4686
SCI Fayette
48 Overlook Drive
LaBelle, PA 15450-1050
(via U.S. First Class Mail)
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