PETROSKY v. ALLEGHENY COUNTY et al
OPINION & ORDER re 4 Motion to Dismiss. 4 Motion to Dismiss is GRANTED WITHOUT PREJUDICE as to Counts I and V. Plaintiffs may file an Amended Complaint no later than 06/09/17. 4 Motion to Dismiss GRANTED WITH PREJUDICE as to Count XII against Allegheny County, Allegheny County Jail, and Orlando Harper. Allegheny County Jail DISMISSED. Signed by Chief Magistrate Judge Maureen P. Kelly on 05/10/17. (eca)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN PETROSKY and STEPHANIE
ALLEGHENY COUNTY, ALLEGHENY
COUNTY JAIL, ORLANDO HARPER,
Individually and in his capacity as Warden,
CORIZON HEALTH, INC. CORIZON, INC.,
SARAH A. PATTERSON, as Administratrix
of the ESTATE OF MICHAEL D.
PATTERSON, SR., MD., DANIELLE
LITZINGER, CRNP and DAVID DRUSKIN,
Civil Action No. 17-146
Chief Magistrate Judge Maureen P. Kelly
Re: ECFNo. 4
John and Stephanie Petrosky (collectively, "Plaintiffs") bring this action pursuant to 42
U.S.C. § 1983 against Allegheny County, the Allegheny County Jail ("ACJ'') and Orlando
Harper ("Warden Harper") (collectively, "the County Defendants") as the result of serious
injuries allegedly caused by their deliberate indifference to Mr. Petrosky's serious medical
condition, endocarditis. Plaintiffs contend that the County Defendants violated constitutional
provisions by not providing adequate medical care to Mr. Petrosky when he was a pretrial
detainee at ACJ from March 6, 2014, to September 14, 2014. Plaintiffs also bring state law
negligence claims against Corizon Health, Inc., Corizon Inc., Sarah A. Patterson, as
administratrix of the Estate of Dr. Michael D. Patterson ("Dr. Patterson"), Danielle Litzinger,
CRNP ("CRNP Litzinger"), and David Druskin, PA-C ("PA-C Druskin") (collectively, "the
Specifically, Plaintiffs allege that the Corizon Defendants provided
negligent medical care to Mr. Petrosky while he was incarcerated in ACJ. Mrs. Petrosky also
brings a loss of consortium claim against all Defendants.
Currently pending before the Court is the County Defendants' Rule 12(b)( 6) Motion to
Dismiss Counts I, V and XII. ECF No. 4. For the following reasons, the Motion to Dismiss will
FACTUAL AND PROCEDURAL BACKGROUND
In the Complaint, Plaintiffs make the following detailed factual allegations.
Petrosky, age 43, arrived at ACJ on March 6, 2014.
ECF No. 1-2
11. Upon arrival, he
complained of chest pain at the infirmary. Id. The Corizon Defendants operated the ACJ's
11, 15. On March 7, 2014, the intake-and-receiving screening of Mr. Petrosky
showed that his body temperature was 100.1 degrees Fahrenheit, his pulse was 111 beats per
minute, and his blood pressure was 152/86. Id.
12. Repeated evaluations over the next two
months showed Mr. Petrosky to be febrile, tachycardic and hypertensive. Id.
On May 15, 2014, a medical evaluation noted that Mr. Petrosky's body temperature was
102.2 degrees Fahrenheit and his pulse at 114 beats per minute.
continued findings and a worsening physical condition, a complete physical assessment,
evaluation, and work-up was not performed. Id.
During a June 27, 2014, medical examination, it was noted that Mr. Petrosky had lost
twenty-nine pounds since his incarceration. Id.
14. On that date, his body temperature was
103.5 degrees Fahrenheit, his pulse was 140 beats per minute, and his blood pressure was
170/40. Id. Again, despite a worsening physical condition, a complete physical assessment,
evaluation, and work-up was not completed. Id.
From June 27, 2014, to September 14, 2014, Corizon employees CRNP Litzinger and
PA-C Druskin repeatedly evaluated Mr. Petrosky and entered numerous orders.
However, they never ordered a complete physical assessment, evaluation, and work-up. Id.
At some point between the date of his incarceration at ACJ on March 6, 2014, and
September 14, 2014, Mr. Petrosky lost the ability to walk. Id.
16. He also developed profuse
night sweats. Id. He submitted numerous requests to the ACJ infirmary for medical assistance
and evaluation that were ignored. Id.
On September 14, 2014, immediately upon transfer to the Westmoreland County Jail, Mr.
Petrosky's serious medical condition was recognized. Id.
17. He was promptly transported to
Westmoreland Regional Hospital. Id. He presented with tachycardia, shortness of breath and
complaints of substemal chest pain. Id. He was found to be in congestive heart failure and
blood cultures were positive for streptococci, gram negative.
echocardiogram showed multiple vegetations of the tricuspid valve with severe aortic
insufficiency. Id. Vegetation of the mitral valve was also seen. Id.
Due to the seriousness of Mr. Petrosky's cardiac condition, he was transferred from
Westmoreland Regional Hospital to Allegheny General Hospital ("AGH") where he was
diagnosed with endocarditis, a life-threatening bacterial infection affecting his heart and its
valves. Id. At AGH, Mr. Petrosky underwent aortic and mitral valve replacement surgery and
repair of an aortic pseudoaneurysm.
In January of 2015, due to damage to his spleen caused by the delay in treatment, Mr.
Petrosky had his spleen removed. Id.
In May 2015, Mr. Petrosky's endocarditis recurred.
20. He required a repeat
stemotomy in which aortic and mitral valves were replaced with mechanical valves. Id. Further,
between his surgeries, Mr. Petrosky suffered profound respiratory failure which required
extracorporeal membrane oxygenation, tube feeding and a tracheostomy. Id. As a result of these
complications, Mr. Petrosky lost all of his toes. Id.
Plaintiffs initiated this action by filing their Complaint in the Court of Common Pleas of
Allegheny County on January 4, 2017. Id. at 1. Therein, Plaintiffs raised twelve counts: (1)
Count I: Section 1983 claim against Allegheny County; (2) Count II: Negligence against
Allegheny County; (3) Count III: Section 1983 claim against ACJ; (4) Count IV: Negligence
against ACJ; (5) Count V: Section 1983 claim against Warden Harper; (6) Count VI: Negligence
against Warden Harper; (7) Count VII: Negligence against Corizon Health, Inc.; (8) Count VIII:
Negligence against Corizon, Inc.; (9) Count IX: Negligence against Sarah A. Patterson, as
administratrix of the Estate of Dr. Patterson; (10) Count X: Negligence against CRNP Litzinger;
(11) Count XI: Negligence against PA-C Druskin; and (12) Count XII: Loss of Consortium
against all Defendants.
The County Defendants removed Plaintiffs' action to this Court on February 1, 2017.
ECF No. 1. On February 6, 2017, the Corizon Defendants filed an Answer and Affirmative
Defenses. ECF No. 3. On February 22, 2017, the County Defendants filed the instant Motion to
Dismiss and Brief in Support. ECF Nos. 4, 5. On March 16, 2017, Plaintiffs filed a Brief in
Opposition. ECF No. 11. Therein, Plaintiffs withdrew Count II, Count III, Count IV and Count
VI. Id. at 2 n.1. On March 23, 201 7, the County Defendants filed a Reply to Plaintiffs' Brief in
Opposition. ECF No. 12. The County Defendants' Motion to Dismiss is now ripe for review.
The remaining bases for the Motion to Dismiss relate only to Counts I, V and XII.
STANDARD OF REVIEW
As the United States Supreme Court explained in Bell Atlantic Com. v. Twombly, 550
U.S. 544 (2007), a complaint may properly be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)( 6) if it does not allege "enough facts to state a claim to relief that is plausible on
its face." Id. at 570. 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 v. County of Allegheny, 515 F.3d 224, 228 (3d Cir.
2008) (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
Graffv. Subbiah Cardiology Associates, Ltd., 2008 WL 2312671 (W.D. Pa. June 4, 2008)). The
scope of review may extend to "matters of public record, orders, exhibits attached to the
complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).
Count I: Section 1983 (Allegheny County)
At Count I of their Complaint, Plaintiffs allege violations by Allegheny County of Mr.
Petrosky's rights under the Fourth, Eighth and Fourteenth Amendments (including claims under
the Due Process and Equal Protection clauses). ECF No. 1-2
21-31. However, a review of
Plaintiffs' Brief in Opposition to the County Defendants' Motion to Dismiss indicates that, in
Count I, they are pursuing a Section 1983 claim for deliberate indifference to Mr. Petrosky's
serious medical needs based solely on a violation of Eighth Amendment standards arising under
the Fourteenth Amendment. 1 ECF No. 11 at 4-10.
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).
Prisoners have a constitutional right to receive adequate medical care. Estelle v. Gamble,
429 U.S. 97, 104 (1976). "A prisoner can establish a violation of his Fourteenth Amendment
right to adequate medical care by showing (1) a serious medical need and (2) prison officials'
acts or omissions indicating deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999). Deliberate indifference to a prisoner's medical needs includes "where prison
authorities deny reasonable requests for medical treatment ... and such denial exposes the
inmate 'to undue suffering or the threat of tangible residual injury,"' Monmouth Cty. Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (quoting Westlake v. Lucas, 537 F.2d 857,
860 (6th Cir. 1976)), and when medical care is intentionally not provided even when the need for
it is known. Id. (citing Ancata v. Prison Health Servs., 769 F.2d 700, 704 (I Ith Cir. 1985)).
The County Defendants argue that Allegheny County cannot be held liable on this claim
because Plaintiffs have failed to allege a policy or custom which rendered Allegheny County
deliberately indifferent to Mr. Petrosky's serious medical needs. ECF No. 5 at 12-16.
Indeed, a municipality may not be held liable under 42 U.S.C. § 1983 based on a
respondeat superior theory or merely because its employees may have acted unconstitutionally.
Mr. Petrosky was a pretrial detainee at ACJ. ECF No. 11 4 n.2. "[T]he Fourteenth Amendment affords pretrial
detainees protections at least as great as the Eighth Amendment protections available to a convicted prisoner."
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (internal citation omitted). The United
States Court of Appeals for the Third Circuit applies the same standard to claims for inadequate prison medical care
brought under the Eighth and Fourteenth Amendments. lQ_, at 582.
Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978). Rather, a municipality may
only be liable for its own illegal acts or if a plaintiff identifies a municipal "policy" or "custom"
that caused a constitutional violation. Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S.
397, 403 (1997). Such policies or customs arise in the following ways:
The first is where the appropriate officer or entity promulgates a generally
applicable statement of policy and the subsequent act complained of is
simply an implementation of that policy. The second occurs where no rule
has been announced as policy but federal law has been violated by an act of
the policymaker itself. Finally, a policy or custom may also exist where the
policymaker has failed to act affirmatively at all, [though] the need to take
some action to control the agents of the government is so obvious, and the
inadequacy of existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably be said to have
been deliberately indifferent to the need.
Natale v. Camden County Corr. Facility, No. 01-3449, 2003 U.S. App. LEXIS 2152 (3d Cir.
2003) (citations and quotation marks omitted).
In opposing the Motion to Dismiss as to Count I, citing Mr. Petrosky'-s "rapid" weight
loss, "eventual" inability to walk and repeated requests for medical care, Plaintiffs argue that
they "should be given the opportunity to prove that Allegheny County allowed a policy to exist
where medical care of such obviously ill patients was not reviewed, and requests for care not
ECF No. 11 at 16.
However, even assuming the truth of the allegations in
Plaintiffs' Complaint, nothing alleged by Plaintiffs in Count I asserts that a specific policy
Thus, at this juncture, Plaintiffs lack sufficient well-pleaded allegations to establish a
plausible claim that Allegheny County policymakers were deliberately indifferent to Mr.
Petrosky's medical needs or that a policy or custom existed that deprived Mr. Petrosky of his
constitutional rights. However, 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 24 7, 251 (3d Cir. 2007).
Therefore, Count I will be dismissed without prejudice to
Plaintiffs' ability to file an Amended Complaint specifically identifying the policies and/or
customs upon which Plaintiffs base their deliberate indifference claim and curing the defects
Count V: Section 1983 (Warden Harper)
At Count V, Plaintiffs allege a Section 1983 claim of deliberate indifference against
Warden Harper. 2 ECF No. 1-2 ~~ 59-69.
As in Count I, a review of Plaintiffs' Brief in
Opposition to the County Defendants' Motion to Dismiss indicates that, in Count V, they are
pursuing a Section 1983 claim of supervisor liability on the part of Warden Harper for deliberate
indifference to Mr. Petrosky's serious medical needs based solely on a violation of Eighth
Amendment standards arising under the Fourteenth Amendment. ECF No. 11at11-14.
Under Section 1983, a supervisor may be liable if he or she, "with deliberate indifference
to the consequences, established and maintained a policy, practice or custom which directly
caused the constitutional harm." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.
2014) (citations omitted), rev'd sub nom on other grounds ill: Taylor v. Barkes, 135 S. Ct. 2042
(2015). A supervisor may also be liable if he or she "participated in violating the plaintiffs
rights, directed others to violate them, or, as the person in charge, had knowledge of and
acquiesced in the subordinate's unconstitutional conduct." Id. (citations and quotation marks
Plaintiffs assert that Warden Harper is liable because he "was deliberately indifferent to
whether the medical needs of Petrosky, or other obviously ill inmates, were being addressed by
To the extent that Plaintiffs bring claims against Warden Harper in his official capacity, they are dismissed with
prejudice as duplicative those against Allegheny County. See Hart v. W. Mifflin Area Sch. Dist., No. 16-1066, 2016
U.S. Dist. LEXIS 169473, at* 13 (W.D. Pa. Dec. 8, 2016).
the medical provider." ECF No. 11 at 14. However, Plaintiffs' allegations are not sufficient for
the Court to infer that Warden Harper was deliberately indifferent to any medical needs.
Plaintiffs' allegations do not indicate that Warden Harper had any knowledge of Mr. Petrosky's
medical issues, nor do Plaintiffs allege any policies, customs or subordinate conduct that Warden
Harper knew about, authorized or acquiesced to that caused a constitutional injury to Mr.
Petrosky. Thus, the Court will dismiss Count V without prejudice to Plaintiffs' ability to file an
Amended Complaint curing the defects identified herein.
Count XII: Loss of Consortium (Allegheny County, Warden Harper and
In Count XII, Mrs. Petrosky asserts a loss of consortium claim against all of the
Defendants. As to the Motion to Dismiss relative to the County Defendants, Mrs. Petrosky's
claim in Count XII for loss of consortium due to County Defendants' alleged violation of her
husband's federal civil rights is precluded as a matter oflaw.
As a preliminary matter, loss of consortium is a derivative claim that is wholly dependent
on the success of the underlying claim. Newlon v. Davis, No. 13-1213, 2014 U.S. Dist. LEXIS
71941, at *15 (W.D. Pa. May 27, 2014). Because, at this point, the underlying claims against
County Defendants are not viable, neither is this derivative claim.
However, even if Plaintiffs had stated or can state in an amended Complaint plausible
Section 1983 claims, Mrs. Petrosky would be precluded from recovering damages for loss of
consortium related thereto. As this Court has explained, "there is no authority to permit spousal
recovery for loss of consortium based on violations of the other spouse's civil rights . . .. In
particular, there is no authority to consider a loss of consortium claim deriving from a claim of
injury by an injured spouse brought pursuant to 42 U.S.C. § 1983." Newlon, 2014 U.S. Dist.
LEXIS 71941, at * 16-17 (citation and quotation marks omitted).
Therefore, the Court will
dismiss with prejudice Count XII against the County Defendants. Permitting amendment of the
Complaint as to this claim would be futile. As Count XII is the sole claim remaining against
ACJ, ACJ will be dismissed from the case.
For the foregoing reasons, the County Defendants' Motion to Dismiss, ECF No. 4, will
AND NOW, this 101h day of May, 2017, IT IS HEREBY ORDERED that the County
Defendants' Motion to Dismiss, ECF No. 4, is GRANTED as to Count I and Count V without
prejudice to Plaintiffs' ability to file, on or before June 9, 2017, an Amended Complaint curing
the defects identified herein.
IT IS FURTHERED ORDERED that the Motion to Dismiss, ECF No. 4, is GRANTED
with prejudice as to Count XII against Allegheny County, Allegheny County Jail and Orlando
Harper and as to all claims brought against Orlando Harper in his official capacity.
IT IS FURTHER ORDERED that Allegheny County Jail is dismissed from the case.
BY THE COURT:
All counsel of record via CM/ECF
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