FONTROY v. WETZEL et al
Filing
19
MEMORANDUM OPINION & ORDER that the Motion for Preliminary Injunction relative to Department of Corrections Hepatitis Control Policy 12 is DISMISSED due to Plaintiffs lack of standing. IT IS FURTHER ORDERED that the Motion for Emergency Hearing re lative to Examination by ENT 13 is DENIED.IT IS FURTHER ORDERED that Plaintiff file a Second Amended Complaint before October 1, 2014. The Second Amended Complaint must raise only legal claims related directly related to Plaintiffs medical issues. Failure to comply with this directive may result in the dismissal of this action for failure to prosecute. Signed by Magistrate Judge Susan Paradise Baxter on 9/8/14. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DERRICK DALE FONTROY,
Plaintiff
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vs.
JOHN WETZEL, et al,
Defendants.
C.A.No. 14-165JOHNSTOWN
Magistrate Judge Baxter
MEMORANDUM OPINION AND ORDER
Plaintiff initiated this civil action by filing a purported class action complaint along with
numerous other motions on August 4, 2014. The complaint, in part, challenges the sentence tail
limitation in the Department of Corrections’ Hepatitis C protocol. Despite the fact that
Defendants had not been served with the complaint, on August 19, 2014, this Court conducted a
telephonic hearing on many of Plaintiff’s motions, including a Motion for Return of Property
[ECF No. 5], a Petition for Writ of Prohibition [ECF No. 4], a motion for preliminary injunction
[ECF No. 1-12], and a petition for a kidney transplant [ECF No. 1-10]. The Office of the
Attorney General entered a special appearance to be present for that hearing.
At the hearing, Plaintiff acknowledged that he was serving a life sentence. It was
explained to Plaintiff that he could not file a class action complaint on behalf of a class of
inmates challenging the sentence tail limitation because he was not an appropriate representative
of such a class since the sentence tail did not pertain to him. Accordingly, the motion for
preliminary injunction was dismissed due to Plaintiff’s lack of standing and Plaintiff was
directed to file an Amended Complaint raising claims pertaining to his own medical issues
before September 19, 2014.
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Thereafter, Plaintiff filed an Amended Complaint. The Amended Complaint is similar to
the Original Complaint with only minor changes. While Plaintiff has substituted some of the
class member language with the words “family member,” most of the class allegations remain.
With the Amended Complaint, Plaintiff filed a Motion for Preliminary Injunction relative to
Department of Corrections’ Hepatitis Control Policy [ECF No. 12] and a Motion for Emergency
Hearing relative to Examination by ENT, with a Supporting Brief, and Proposed Order [ECF
Nos. 13, 14, 15]. The motions for preliminary injunctive relief, made relative to the Amended
Complaint, are addressed herein.
Standard of Review
Preliminary or temporary injunctive relief is Aa drastic and extraordinary remedy that is
not to be routinely granted.@ Intel Corp. v. ULSI Sys. Tech., Inc., 995 F.2d 1566, 1568
(Fed.Cir.1993); see also Hoxworth v. Blinder, Robinson & Company. Inc., 903 F.2d 186, 189
(3d Cir. 1990). In determining whether to grant a preliminary injunction, a court must consider
whether the party seeking the injunction has satisfied four factors: A1) a likelihood of success on
the merits; 2) he or she will suffer irreparable harm if the injunction is denied; 3) granting relief
will not result in even greater harm to the nonmoving party; and 4) the public interest favors such
relief.@ Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010) quoting Miller
v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010). See also Fed.R.Civ.P. 65.
As a court sitting in equity, the district court must weigh the four factors, but it is not
incumbent on the movant to prevail on all four factors, only on the overall need for an injunction.
Neo Gen Screening, Inc. v. TeleChem Intern., Inc., 69 Fed.App’x 550, 554 (3d Cir. 2003). A
sufficiently strong showing on either the likelihood of success or irreparable harm may justify an
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injunction, even if a movant=s showing on the other two factors is lacking. Id. Because a
preliminary injunction is an extraordinary remedy, the party seeking it must show, at a minimum,
a likelihood of success on the merits and that they likely face irreparable harm in the absence of
the injunction. See Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir. 2000); Hohe v.
Casey, 686 F.2d 69, 72 (3d Cir. 1989).
These limitations on the power of courts to enter injunctions in a correctional context are
further underscored by statue. Specifically, 18 U.S.C. § 3626 limits the authority of courts to
enjoin the exercise of discretion by prison officials, and provides that:
Prospective relief in any civil action with respect to prison conditions shall extend
no further than necessary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs. The court shall not grant or approve any
prospective relief unless the court finds that such relief is narrowly drawn,
extends no further than necessary to correct the violation of the Federal right, and
is the least intrusive means necessary to correct the violation of the Federal right.
The court shall give substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the relief.
18 U.S.C.A. § 3626(a)(1)(A).
The statute further instructs that:
Preliminary injunctive relief must be narrowly drawn, extend no further than
necessary to correct the harm the court finds requires preliminary relief, and be
the least intrusive means necessary to correct that harm. The court shall give
substantial weight to any adverse impact on public safety or the operation of a
criminal justice system caused by the preliminary relief and shall respect the
principles of comity … in tailoring any preliminary relief.
18 U.S.C.A. § 3626(a)(2).
Moreover, where the requested preliminary injunction “is directed not merely at
preserving the status quo but … at providing mandatory relief, the burden on the moving party is
particularly heavy.” Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Mandatory injunctions
should be issued only sparingly. United States v. Price, 688 F.2d 204, 212 (3d Cir. 1982). Thus, a
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request for any form of mandatory prospective relief in the prison context “must always be
viewed with great caution because judicial restraint is specially called for in dealing with the
complex and intractable problems of prison administration.” Goff v. Harper, 60 F.3d 518, 520
(8th Cir. 1995).
Motion for Preliminary Injunction relative to
Department of Corrections’ Hepatitis Control Policy
Plaintiff’s motion for preliminary injunctive relief relative to the Hepatitis Control Policy
[ECF No. 12] broadly seeks the implementation statewide by the Department of Corrections of a
Hepatitis C policy, which incorporates numerous recommendations by the Center for Disease
Control. Some of these recommendations include the yearly testing of all staff and inmates,
preventative twelve week drug treatments for the uninfected, containment strategies, and a
tracking and reporting system. Although Plaintiff does not outline the precise injunctive relief he
seeks, he explains that preliminary relief is needed “in order to protect the prisoners class, as well
as staff and the general public.” ECF No. 12, page 12.
Plaintiff’s request for preliminary injunctive relief in relation to a Hepatitis C Control
Policy was addressed in the hearing held on August 19th as it related to the Original Complaint
and the request was dismissed due to Plaintiff’s lack of standing. Plaintiff’s current request for
preliminary injunctive relief, like his prior request, will be dismissed for the same reason.
A class action is “an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.” Comcast Corp. v. Behrend, ___ U.S. ___, ___, 133
S.Ct. 1426, 1432 (2013) quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). To come
within the exception, a party seeking to maintain a class action “must affirmatively demonstrate
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his compliance” with Rule 23 of the Federal Rules of Civil Procedure. 1 Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. ___, ___, 131 S.Ct. 2541, 2551-52 (2011). As an “essential prerequisite” to the
Rule 23 analysis, the Court must consider 1) whether there is a precisely defined class and 2)
whether the named plaintiff is a member of that proposed class. Marcus v. BMW of North
America, 687 F.3d 583, 596 (3d Cir. 2012) (explaining the concept of ascertainability2 at length
for the first time). The second part of this ascertainability analysis focuses on whether the class
To meet this burden, a plaintiff must satisfy the four prerequisites of Rule 23(a) and show that
the action can be maintained under at least one of the subsections of Rule 23(b). In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 316 n.14 (3d Cir. 2009). Rule 23(a) provides that: 1) The
class must be so numerous that joinder of all members is impracticable; 2) There are questions of
law or fact common to the class; 3) The claims or defenses of the representative parties are
typical of the claims or defenses of the class; and 4) The representative parties will fairly and
adequately protect the interests of the class. Fed.R.Civ.P. 23(a). These factors are referred to as
numerosity, commonality, typicality and adequacy, respectively.
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In addition to proving the factors set forth in Rule 23(a), the putative class representative has the
burden to satisfy at least one of the provisions of Rule 23(b) through “evidentiary proof.”
Comcast, ___ U.S. at ___, 133 S.Ct. at 1426. Rule 23(b) permits certification if:
(2) the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members
predominate over any question affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating
the controversy. The matters pertinent to these findings include: (A) the class
members’ interests in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation concerning the
controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23 (b).
While the Third Circuit recognizes ascertainability, other courts refer to this implicit
requirement of Federal Rule 23 as “definiteness.” See William Rubenstein and Alba Conte,
Newberg on Class Actions §§ 3.1, 3.2 (5th ed. 2012).
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representative is a member of the proposed class. See Hayes v. Wal-Mart Stores, Inc., 725 F.3d
349, 360 (3d Cir. 2013) (“It is axiomatic that the lead plaintiff must fit the class definition[,]”
because “plaintiffs cannot represent a class of whom they are not a part.”) (internal citation
omitted).
Here, Plaintiff cannot seek preliminary injunctive relief on behalf of a purported class of
which he is not a member. Plaintiff has no standing to challenge the current sentence tail
limitations on Hepatitis C treatment since Plaintiff, as one who is serving a life sentence3, has no
sentence tail. See Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208, 216 (1974)
(“To have standing to sue as a class representative it is essential that a plaintiff must be a part of
that class, that is, he must possess the same interest and suffer the same injury shared by all
members of the class he represents.”). Without standing upon which to base his class action
claims this Court lacks jurisdiction and Plaintiff has virtually no likelihood of success on the
merits of his claim.
Motion for Emergency Hearing relative to Examination by ENT
Plaintiff’s Motion for Emergency Hearing [ECF No. 13] seeks injunctive relief alleging
denial of adequate medical care. Specifically, Plaintiff requests that this Court direct Defendants
to “provide a specialized medically appropriate course of evaluation and treatment recommended
by a [sic] Ear, Nose and Throat doctor, designed to restore and maintain the full function of
Plaintiff’s hearing” and to direct Defendants to “arrange for Plaintiff Fontroy to be examined by
a qualified ENT specialist and to obtain from that specialist an evaluation of the conditions of
deafness and pressure on his ear drums, and prescription for a course of medical treatment that
See ECF No. 16, Notice to Court, with a copy of Plaintiff’s Sentence Status Summary showing
that Plaintiff was convicted of first degree murder and is serving a life sentence.
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will restore and maintain the full function of his hearing.” See also ECF No. 14, Plaintiff’s
Memorandum of Law in Support of his Motion for Preliminary Injunction regarding Treatment
by ENT.
In the medical context, a constitutional violation under the Eighth Amendment occurs
only when prison officials are deliberately indifferent to serious medical needs. Estelle v.
Gamble, 429 U.S. 97 (1976). The standard is two-pronged, “[i]t requires deliberate indifference
on the part of prison officials and it requires that the prisoner's medical needs be serious.” West
v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). A serious medical need is “one that has been
diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would
easily recognize the necessity for a doctor's attention.” Monmouth County Corr’al. Inst. Inmates
v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Deliberate indifference to a serious medical need
involves the “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104.
However, mere misdiagnosis or negligent treatment is not actionable under § 1983 as an
Eighth Amendment claim because medical malpractice is not a constitutional violation. Id. at
106 (“Medical malpractice does not become a constitutional violation merely because the victim
is a prisoner.”).“Neglect, carelessness or malpractice is more properly the subject of a tort action
in the state courts.” Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir.
1976). See also White, 897 F.2d at 108 (“mere medical malpractice cannot give rise to a
violation of the Eighth Amendment.”). “While the distinction between deliberate indifference
and malpractice can be subtle, it is well established that so long as a physician exercises
professional judgment, his behavior will not violate a prisoner's constitutional rights.” Brown v.
Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990).
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Furthermore, deliberate indifference is generally not found when some level of medical
care has been offered to the inmate. Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. 2000)
(“courts have consistently rejected Eighth Amendment claims where an inmate has received
some level of medical care”). There is necessarily a distinction between a case in which the
prisoner claims a complete denial of medical treatment and one where the prisoner has received
some medical attention and the dispute is over the adequacy of the treatment. United States ex
rel. Walker v. Fayette County, 599 F.2d 533, 575 n.2 (3d Cir. 1979). “Mere disagreements over
medical judgment” do not rise to the level of an Eighth Amendment violation. White v.
Napoleon, 987 F.2d 103, 110 (3d Cir. 1990). Any attempt to second guess the propriety or
adequacy of a particular course of treatment is disavowed by courts since such determination
remains a question of sound professional judgment. Inmates of Allegheny County Jail v. Pierce,
612 F.3d 754, 762 (3d Cir. 1979) quoting Bowring v. Goodwin, 551 F.2d 44. 48 (4th Cir. 1977).
The testimony at the August 19th hearing held on Plaintiff’s prior motion for preliminary
injunction reflected that Plaintiff has been continuously treated for his ongoing complaints
related to his ears. Plaintiff had begun a new nasal medication as recently as August 12th, but had
refused it on three occasions prior to the August 19th hearing. This testimony makes clear that
Plaintiff is unhappy with his current medical treatment. Such a disagreement does not rise to the
level of a constitutional violation. Again, Plaintiff has not demonstrated a likelihood of success
on the merits. Plaintiff’s dissatisfaction, as well as his noncompliance, with his current medical
treatment does not warrant preliminary injunctive relief or an independent medical examination
under Rule 35.
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AND NOW, this 8th day of September, 2014;
IT IS HEREBY ORDERED that the Motion for Preliminary Injunction relative to
Department of Corrections’ Hepatitis Control Policy [ECF No. 12] is DISMISSED due to
Plaintiff’s lack of standing.
IT IS FURTHER ORDERED that the Motion for Emergency Hearing relative to
Examination by ENT [ECF No. 13] is DENIED.
IT IS FURTHER ORDERED that Plaintiff file a Second Amended Complaint before
DATE. The Second Amended Complaint must raise only legal claims related directly related to
Plaintiff’s medical issues. Failure to comply with this directive may result in the dismissal of this
action for failure to prosecute.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
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