HICKOX v. PRIMECARE MEDICAL, INC. et al

Filing 50

MEMORANDUM ORDER adopting in part 34 Report and Recommendation; granting 41 Motion for Summary Judgment; adopting in part 49 Report and Recommendation; adopting 3 Report and Recommendation; granting 23 Motion to Dismiss for Failure to State a Claim; adopting 28 Report and Recommendation; denying 29 Motion for Summary Judgment, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 2/3/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JUSTIN M. HICKOX,

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Case No. 3:15-cv-164

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Plaintiff,

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JUDGE KIM R. GIBSON

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PRIMECARE MEDICAL, INC., THOMAS
MALAY, CHRISTINA HARZBECKER,
and LISA HEWITT,

MAGISTRATE JUDGE KEITH A.
PESTO

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Defendants.

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MEMORANDUM ORDER

On June 15, 2015, Justin M. Hickox filed this case against PrimeCare Medical, Inc.,
Thomas Malay, Christina Harzbecker, and Lisa Hewitt for alleged civil-rights violations that
occurred at the Cambria County prison while Hickox was incarcerated there.

In his

complaint (ECF No. 2), Hickox explained that PrimeCare is the contracted provider for
medical services at the Cambria County prison, that Malay is the medical administrator at
the prison, and that Harzbecker and Hewitt are licensed practical nurses at the prison. In his
original complaint Hickox alleged two grounds for relief: deliberate indifference to medical
needs (presumably under the Eighth Amendment to the U.S. Constitution) and retaliation
(presumably under the First Amendment).
Pursuant to 28 U.S.C. § 636 and Local Civil Rule 72, Hickox' s case was referred to
Magistrate Judge Keith A. Pesto for pretrial proceedings. After screening Hickox' s complaint
pursuant to 28 U.S.C. § 1915A, the magistrate judge issued an order, report and
recommendation (ECF No. 3), recommending that Hickox's complaint be dismissed as to
PrimeCare and Malay. The magistrate judge found that Hickox had failed to allege facts that
would support the inference that either PrimeCare or Malay was deliberately indifferent to a
serious medical need or had retaliated against Hickox. The magistrate judge opined that
PrimeCare appeared to be named only because it employed Harzbecker and Hewitt, and that

Malay appeared to be named only because he is the medical administrator at the prison.
Federal claims against state or local actors for civil-rights violations are brought under 42
U.S.C. § 1983, and-as the magistrate judge explained-§ 1983 claims cannot be predicated
on a theory of respondeat superior or vicarious liability. Monell v. Dep't of Soc. Servs., 436
U.S. 658, 693-94 (1978); Mulholland v. Gov't Cnty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013). The
magistrate judge thus recommended that the claims against PrimeCare and Malay be
dismissed, but granted Hickox leave to amend his complaint as to PrimeCare and Malay.
Hickox timely filed both objections to the magistrate judge's report and
recommendation (ECF No. 5) and an amended complaint (ECF No. 8). Hickox's amended
complaint added-among other things-a claim for violations of the Health Insurance
Portability and Accountability Act of 1996, also known as HIPAA. A year later, after some
issues effecting service, Harzbecker and Hewitt filed a motion to dismiss some of Hickox' s
claims for failure to state a claim (ECF No. 23). The magistrate judge thereafter issued
another report and recommendation (ECF No. 28), wherein he explained that he had
screened Hickox' s amended complaint when it was filed, found no substantive differences
with the original complaint, and had therefore ordered service only on Harzbecker and
Hewitt. 1 The magistrate judge also recommended that Harzbecker and Hewitt's motion to
dismiss be granted. Specifically, the magistrate judge recommended that (1) Hickox's claim
for deliberate indifference be dismissed as to Hewitt because Hickox had not alleged
sufficient facts to support an inference of liability on her part, and (2) that Hickox's HIPAA
claim be dismissed in its entirety because HIPAA does not allow for a private right of action.
Hickox filed no

objections to the magistrate judge's second report and

recommendation. Instead, he moved for summary judgment on his deliberate-indifference
claim against Harzbecker and his retaliation claim against Hewitt (ECF No. 29). Hickox
attached a total of three pages of medical records to his brief in support of his motion (ECF

Although the magistrate judge stated in his first report and recommendation that he would order
service on Malay and PrimeCare if Hickox successfully amended his complaint, the magistrate judge
appears to have screened Hickox's amended complaint without making any record of it at the time he
ordered service on Harzbecker and Hewitt.
1

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No. 30), and contended that he was entitled to summary judgment because Harzbecker and
Hewitt had "admitted to the allegations in the complaint" in their filings. (ECF No. 30 at 6.)
At this point some additional detail is appropriate; Hickox's deliberate indifference claims
are based on two specific incidents, one involving a spider bite and one involving rectal
bleeding. Both these incidents-as Hickox has clarified in his filings (see, e.g., ECF No. 30 at
4)-were alleged to involve Harzbecker.
In response to Hickox's motion for summary judgment, the magistrate judge issued a
third report and recommendation (ECF No. 34), recommending that Hickox' s motion be
denied because Hickox had failed to prove liability on the part of Harzbecker and Hewitt.
The magistrate judge recommended also that summary judgment be entered in part in favor
of Harzbecker-apparently as to the deliberate-indifference claim based on the spider-bite
incident. Notably, by this point no defendant had yet moved for summary judgment.
Hickox timely filed objections to the magistrate judge's third report and
recommendation (ECF No. 36). He took issue with the magistrate judge's determination that
Hickox had failed to establish his deliberate-indifference claim against Harzbecker, but
provided no new arguments or proof.

Harzbecker and Hewitt thereafter moved for

summary judgment (ECF No. 41) on the deliberate-indifference claim against Harzbecker
and the retaliation claims against both Harzbecker and Hewitt.
On January 3, 2017, the magistrate judge issued a fourth report and recommendation
(ECF No. 49), recommending that summary judgment be entered in favor of Harzbecker and
Hewitt on all remaining claims. The magistrate judge concluded that-based on the ample
medical records for Hickox provided by Harzbecker and Hewitt-Hickox received treatment
for both the spider bite and his rectal bleeding, and that his deliberate-indifference claim
therefore failed. As for his retaliation claims, the magistrate judge found those claims failed
as to Harzbecker because there was no genuine dispute as to adverse action and as to Hewitt
because there was no genuine dispute as to causation.
Hickox did not object to the magistrate judge's fourth report and recommendation,
and the Court now holds as follows:

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The magistrate judge's first report and recommendation (ECF No. 3) is adopted in
full as the opinion of this Court. Hickox has not alleged facts to support the inference that
PrimeCare or Malay were deliberately indifferent to a serious medical need or retaliated
against Hickox. And neither Hickox's objections to the magistrate judge's first report and
recommendation (ECF No. 5) nor Hickox's amended complaint (ECF No. 7) are sufficient to
survive dismissal; although Hickox makes more conclusory allegations regarding PrimeCare
and Malay, he identifies no specific acts or omissions on their part that would support
liability.
It is therefore ORDERED that PrimeCare and Malay are DISMISSED from this case.

The magistrate judge's second report and recommendation (ECF No. 28) is also
adopted in full as the opinion of this Court. Neither Hickox's original complaint (ECF No. 2)
nor his amended complaint (ECF No. 8) contains sufficient facts for his claim of deliberate
indifference against Hewitt to proceed. His allegations occasionally refer generally to "the
Defendants," or "the medical staff," but at no point does he identify a specific act or omission
by Hewitt that would support a claim of deliberate indifference. And the magistrate judge
concluded correctly that HIPAA does not provide a private cause of action. See Henderson v.

Borough of Baldwin, No. 15-cv-1011, 2016 WL 5106945, at *6 (W.D. Pa. Sept. 20, 2016) (citing
cases).
Thus, defendants' partial motion to dismiss (ECF No. 23) is GRANTED. Hickox's
claim of deliberate indifference against Hewitt and his HIPAA claim in its entirety are
DISMISSED.

The magistrate judge's third report and recommendation (ECF No. 34) is adopted in
part as the opinion of this Court. Specifically, the Court accepts the magistrate judge's
recommendation that Hickox' s motion for summary judgment be denied, and adopts the
discussion in support of that recommendation.

But the Court does not accept the

recommendation in the third report and recommendation that summary judgment be
entered in part in favor of Harzbecker. Defendants had not yet filed for summary judgment
when this report and recommendation was issued, and it is not clear that the factual record

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presented at the time established the absence of a genuine dispute of material fact required
for summary judgment. Although Federal Rule of Civil Procedure 56(f) authorizes a court to
grant or consider summary judgment on its own initiative, this Court cannot conclude that
summary judgment in favor of Harzbecker was appropriate simply because Hickox had
failed to meet his burden for summary judgment. Thus, the Court adopts the third report
and recommendation as it relates to Hickox' s motion for summary judgment.
Hickox's motion for summary judgment (ECF No. 29) is therefore DENIED.
Similarly, the magistrate judge's fourth report and recommendation (ECF No. 49) is
adopted in part as the opinion of this Court. The magistrate judge initially suggested in that
report and recommendation that he was proceeding under the assumption that his prior
reports and recommendations would be adopted (see ECF No. 49 at 2), which would leave
three claims in the case: the deliberate-indifference claim against Harzbecker based on the
rectal-bleeding incident, and a retaliation claim against both Harzbecker and Hewitt. But the
magistrate judge also addressed the deliberate-indifference claim based on the spider-bite
incident.

And as the magistrate judge found, the evidence in this case establishes that

Hickox received treatment for both incidents. There is thus no genuine dispute of material
fact as to Hickox' s deliberate-indifference claims. As for the retaliation claims, Hickox has
not presented any evidence to raise a genuine dispute of material fact as to adverse action or
causation. Summary judgment in favor of Harzbecker and Hewitt on all remaining claims is
therefore appropriate.
There are, however, portions of the magistrate judge's fourth report and
recommendation that the Court does not adopt.

The Court agrees with the magistrate

judge's recitation of the relevant law as well as its application to the facts of this case. But the
Court rejects the magistrate judge's discussion of the need to "look up from the individual
case and see the larger trend of frequent filer inmates" (ECF No. 49 at 7), and his reliance on
the timing of Hickox's pleadings and allegations (ECF No. 49at14-15). Those portions of the
report and recommendation are unnecessary for the resolution of defendants' summary
judgment motion, and irrelevant under the applicable legal standard.

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Thus, defendants' motion for summary judgment (ECF No. 41) is GRANTED.
Because this memorandum order resolves all claims in this case the Clerk shall mark
this matter closed.
BY THE COURT:

Dated: February 3, 2017
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE

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