Opinion
3:19-CV-00163-KRG
05-11-2021
GREGORY BURNS, Plaintiff, v. JENNIFER SCHROCK, RNS; JAWAD A. SALAMEH, M.D.; MELISSA STEFANIC, RN; ANDREW DANCHA, DO; ERIN CLARK, CRNP; AND CHARDONNAY INC., Defendants.
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge
I. RECOMMENDATION
This civil action was initiated by Plaintiff Gregory Burns (“Plaintiff') against Jennifer Schrock, R.N.S. (“RNS Schrock”), Dr. Jawad A. Salameh, M.D. (“Dr. Salameh”), Melissa Stefanic, R.N. (“RN Stefanic”), Dr. Andrew Dancha, D.O. (“Dr. Dancha”), Erin Clark CRNP (“NP Clark”), and CharDonnay Dialysis, Inc., for alleged violations to Plaintiff's civil rights in connection with medical treatment he received while incarcerated in the custody of Pennsylvania Department of Corrections State Correctional Institution at Laurel Highlands (“SCI Laurel Highlands”).
Now before the Court are the following:
1. A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) by RNS Schrock (ECF No. 69);
2. A motion for a more definite statement under Federal Rule of Civil Procedure 12(e) and alternatively for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) by CharDonnay Dialysis, Inc. and RN Stefanic (ECF No. 72); and
3. A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) by NP Clark (ECF No. 75).
The remaining Defendants Drs. Dancha and Salameh have filed answers to Plaintiff's complaint. (ECF No. 76).
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
For the reasons below, it is respectfully recommended that RNS Schrock and NP Clark's motions to dismiss (ECF Nos. 69 and 75) be granted and Plaintiff's claims of civil conspiracy be dismissed with prejudice, and CharDonnay Dialysis, Inc. and RN Stefanic's motion for more definite statement or alternatively to dismiss (ECF No. 72) be denied.
II. REPORT
a. Background
Plaintiff is an inmate currently incarcerated at SCI Laurel Highlands and receives dialysis treatment. Am. Compl. (ECF No. 64 at 8). Plaintiff alleges the following:
Before September 2018, the left arm fistula was normal. On October 6, 2018, the left arm and hand had edema noted by a Chardonnay tech. Dr. Salameh, the nephrologist, was made aware of this.
A fistulogram was ordered on October 9, 2018, and completed on October 17, 2018, at Connemaugh Memorial Medical Cente[r] (CMMC). An occlusion was noted to be present in the upper left arm. On return to SCI Lau[rel Highlands] the left hand and arm showed [m]oderate swelling.
Plaintiff wrote to Dr[.] Dancha[] on November 15, 2018, “I have swelling in my arm, I went for a fistulogram about a month ago. I was told my vein is no good. Dr. Salameh explained to be that no doctor will perform the surgery to repair my vein. He is trying to force me to get another dialysis site. I don't want to, I want my vein repaired.” Dr. Dancha did not respond or take any action in response to Plaintiff's request.
Sometime during November[] 2018, Dr. Salameh told Plaintiff that it was too expensive to repair the veins in his left arm.
On December 4, 2018, a CharDonnay tech noted that Plaintiff was grimacing and[] massaging his left hand and asked to be let off treatment 14 minutes early.
Another fistulogram was completed at CMMC on December 21, 2018. Vein mapping showed inadequate veins for an AVF and a right upper arm AVG was recommended.
On January 16, 2019, a fisulogram was performed at CMMC[.] It showed left upper arm edema with central stenosis. They were unable to open the occlusion.
On January 29, 2019, after a purulent discharge, a culture was taken of Plaintiff's left arm which showed an abscess for which antibiotic treatment was prescribed. Stefanic told the techs to keep using the left arm site and just stick the needles used to access the blood around the abscess.
On February 13, 2019, the left arm fistula was blocked and there was surgery for a right AVF creation.
On March 22, 2019, Plaintiff wrote to Dr. Dancha, D.O., and informed him that he “needs to send me to see a vascular surgeon since my left hand finger tips is(sic) dark purple and feels cold.” Dr. Dancha did not respond to take any action in response to Plaintiff's request.
On April 19, 2019, a vascular study was ordered and completed, which recommended further testing.
On April 23, 2019, Plaintiff spoke to Dr. Salameh about the fistula site.
On April 26, 2019, Plaintiff was taken to the emergency room at CMMC and admitted as an inpatient due to swelling and abscess in Plaintiff's left arm. A right arm fistula was placed on April 29, 2019.Am. Comp. (ECF No. 64 at 8-10).
Plaintiff alleges the following causes of action:
1. A claim for deliberate indifference in violation of the Eighth Amendment under 42 U.S.C. § 1983 against Dr. Salameh (Count I);
2. A claim for deliberate indifference in violation of the Eight Amendment under 42 U.S.C. § 1983 against Dr. Dancha (Count II);
3. A state law negligence claim against RN Stefanic and CharDonnay Dialysis, Inc. (Count III); and
4. A civil conspiracy claim under 42 U.S.C. § 1983 against RNS Schrock and NP Clark (Count IV).Am. Compl. (ECF No. 64 at 10-11).
b. Standard of Review
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Even so, the court need not accept as true “unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff may offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). In short, a motion to dismiss should not be granted if a party alleges facts, which could, if established at trial, entitle him to relief. Twombly, 550 U.S. at 563 n.8.
A motion for more definite statement, in turn, is governed by Rule12(e) of the Federal Rules of Civil Procedure which provides that the court may order a party to prepare: “a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). “If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.” Fed.R.Civ.P. 12(e). A complaint is “vague or ambiguous” when it “does not disclose the facts underlying a plaintiff's claim for relief, [and therefore] the defendant cannot reasonably be expected to frame a proper, fact-specific . . . defense[.]” Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006).
c. Discussion
i. Plaintiff's claim for civil conspiracy under 42 U.S.C. § 1983 against RNS Schrock and NP Clark
RNS Schrock is a Corrections Health Care Administrator at SCI-Laurel Highlands. Am. Compl. (ECF No. 64 at 8). NP Clark assists Drs. Dancha and Salameh. Am. Compl. (ECF No. 64 at 8). The sole claim alleged against RNS Schrock and NP Clark is a civil conspiracy claim under 42 U.S.C. § 1983 that they aided Drs. Dancha and Salameh by “justifying their activities to Plaintiff” and that RNS Schrock responded to and denied Plaintiff's grievances. Am. Compl. (ECF No. 64 at 8, 11). RNS Schrock and NP Clark seek dismissal of this claim.
Plaintiff responds that because the claims of deliberate indifference against Drs. Dancha and Salameh remain, the civil conspiracy claim against RNS Schrock related to the deliberate indifference claim should also remain. Pl.'s Resp. Br. (ECF No 83) at 2-3. Plaintiff also responds that because RNS Schrock denied his grievance and because he was seen by NP Clark, this constitutes a conspiracy to violate his civil rights. See Pl.'s Resp. Br. (ECF No. 83) at 2, 5.
To show a claim of civil conspiracy under section 1983, Plaintiff must allege that (1) two or more persons conspired to deprive him of a constitutional right; (2) that one or more of the conspirators performed an overt act in furtherance of the conspiracy; and (3) the overt act injured Plaintiff by depriving him of his constitutional right; and (4) the conspirators were acting under color of state law. Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 162 (3d Cir. 2001) (quoting 42 U.S.C. § 1983). A “mere general allegation” or “averment of conspiracy or collusion without alleging the facts which constituted such conspiracy or collusion is a conclusion of law and is insufficient” to state a claim for civil conspiracy under section 1983. Kalmanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385, 1400 (D. Del. 1984), aff'd, 769 F.2d 152 (3d Cir. 1985).
Here, the allegations against RNS Schrock are that she “justified” Drs. Dancha and Salameh's “activities” and she responded to and denied Plaintiff's grievances. Likewise, the allegations against NP Clark is that she treated Plaintiff and in doing so “justified” Drs. Dancha and Salameh's “activities.” These allegations cannot state a claim for section 1983 conspiracy as Plaintiff has failed to set forth specific facts that raise a reasonable expectation that discovery would reveal evidence of any of the elements of a section 1983 civil conspiracy claim. See Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994) (“while the pleading standard under Rule 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements.”). Plaintiff's allegations are conclusory and include no facts that would permit a reasonable inference that RNS Schrock and NP Clark, combined with any of the individual Defendants, conspired to violate Plaintiff's constitutional rights. Plaintiff has pleaded no facts “regarding the time, place, or conduct of the alleged conspiracy, ” and provides mere conclusions of law to support his claim and as such his claim must be dismissed for failure to state a claim. Thompson v. Dep't of Servs. for Child., Youth & their Families, No. CV 18-1236 (MN), 2019 WL 4222647, at *6 (D. Del. Sept. 5, 2019).
Moreover, that Drs. Dancha and Salameh have answered Plaintiff's complaint and arguably that he may conduct discovery regarding his claims against them does not subvert Plaintiff's obligation to allege sufficient facts in his complaint supporting each cause of action against each Defendant he names. Because Plaintiff was already given a chance to amend his complaint, it is respectfully recommended that RNS Schrock's motion to dismiss (ECF No. 69) and NP Clark's motion to dismiss (ECF No. 74) be granted and Plaintiff's claim for civil conspiracy against RNS Schrock and NP Clark be dismissed with prejudice as amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
ii. Negligence claims against Defendants Chardonnay and RN Stefanic (ECF No. 72)
Defendants CharDonnay Dialysis, Inc. and RN Stefanic argue that Plaintiff must file a Certificate of Merit for his medical malpractice/negligence claims and asks the Court to enter an order requiring Plaintiff to file a Certificate of Merit by December 14, 2020 and if Plaintiff fails to do so that his negligence claims against them be dismissed with prejudice. Defs' Mot. (ECF No. 72-1).
Plaintiff responds that Defendants' motion should be denied because Defendants have not served a written notice of intention to file a praecipe under Pa. R. Civ. P. 1042.6(a). Pl.'s Resp. (ECF No. 78).
Defendants reply that “[k]nowing that Plaintiff was directed by the Court to file an Amended Complaint, Defendants did not immediately move to enforce the [COM] requirement or provide Plaintiff with notice that they would seek to have the Plaintiff's Complaint dismissed for failing to file a [COM][, ]” but should be deemed to have complied with Rule 1042.6(a) because they placed Plaintiff on notice of their intent to have the case dismissed for failure to file a COM through the filing of this motion for a more definite statement. Defs' Reply (ECF No. 80 at 2).
While the application of Pennsylvania laws on COM requirements in federal court is murky, Defendants CharDonnay Dialysis, Inc. and RN Stefanic have offered no case law to support its contention that a motion for a more definite statement under Federal Rule of Civil Procedure 12(e) is a substitute for the notice requirement set forth in Pa. R. Civ. P. 1042.6(a).
On the contrary, Pa. R. Civ. P. 1042.6(a) is substantive and provides that no judgment can be entered against a plaintiff for failure to timely file a certificate of merit unless the defendant provides notice to the plaintiff thirty-one days after the filing of the complaint of its intent to seek dismissal of an action for failure to comply with the COM requirements. Pa. R. Civ. P. 1042.6(a); Schmigel v. Uchal, 800 F.3d 113, 124 (3d Cir. 2015). Implicit within this notice requirement is giving the plaintiff an “opportunity to cure any failure to file a certificate of merit before a matter is dismissed.” Passalacqua v. Gillick, No. 3:14-CV-1609, 2015 WL 13812204, at *5 (M.D. Pa. May 12, 2015), report and recommendation adopted, No. 3:14-CV-1609, 2015 WL 13812210 (M.D. Pa. June 9, 2015). Defendants' requested relief would provide no opportunity for Plaintiff to cure his failure to file a COM, as they contemporaneously seek Plaintiff to file a COM by December 14, 2020 - a deadline that has since passed - and dismissal of Plaintiff's claims with prejudice for the passage of that deadline. Because Defendants have failed to show compliance with Rule 1042.6, it is respectfully recommended that Defendants CharDonnay Dialysis, Inc. and RN Stefanic's motion for more definite statement or alternatively to dismiss (ECF No. 72) be denied.
Because of the procedural deficiencies related to notice under Rule 1042.6, no recommendation is made with regard to whether a COM is required, and it is recommended that Defendants' motion be denied without prejudice to reassert should those notice deficiencies be mitigated.
III. CONCLUSION
For the above reasons, it is respectfully recommended that RNS Schrock and NP Clark's motions to dismiss (ECF Nos. 69 and 75) be granted and Plaintiff's claims of civil conspiracy be dismissed with prejudice, and CharDonnay Dialysis, Inc. and RN Stefanic's motion for more definite statement or alternatively to dismiss (ECF No. 72) be denied.
Any party may file objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by May 28, 2021, and Defendants, because they are electronically registered parties, must file objections by May 25, 2020. The parties are cautioned that failure to file objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).