Opinion
Civil Action 23-698
05-14-2024
ROBERT LEE ALLEN, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE U.S. MARSHALS et al., Defendants.
Re: ECF Nos. 39, 42 and 53
Robert J. Colville, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Pending before the Court are three Motions to Dismiss filed by the below listed defendants requesting that the Complaint, ECF No. 9, filed by Plaintiff Robert Lee Allen (“Allen”) be dismissed with prejudice.
1) Butler County Prison (“BCP”); Warden Joe Demore; Deputy Warden Jennifer Passarelli; Major Justin Baptiste; Captain Winters (“Winters”); and Captain Tracey (collectively, the “BCP Defendants”), ECF No. 39.
2) Wexford Health Sources, Inc. (“Wexford”); Nina Grossman, RN (“Grossman”); Staci Rutan, HSA (“Rutan”); Maria Depew, RN (“Depew”); Rebecca Rudd, MD (“Rudd”); Heather Miller, RN (“Miller”); Brenda DeNinno, Administrative Assistant (“Deninno”); Monica McCabe, LPN (“McCabe”); and Brenda Bash, LPN (“Bash”) (collectively, the “Wexford Defendants”), ECF No. 53.
3) PrimeCare Medical, Inc. (“PrimeCare”), ECF No 42.
For the reasons that follow, it is respectfully recommended that:
1) The BCP Defendants' Motion to Dismiss be granted in part and denied in part, with leave to amend;
2) The Wexford Defendants' Motion to Dismiss be granted in part and denied in part, with leave to amend; and
3) PrimeCare's Motion to Dismiss be granted in its entirety, with leave to amend.
II. REPORT
A. FACTUAL BACKGROUND
In his Complaint, ECF No. 9, and its accompanying “Consolidated Affidavit in Support of Statement of Claim, Declarations to Provide Context for Plaintiffs Voluminous Exhibits and Submitted Prosed Undisputed Findings of Fact” [sic], ECF No. 9-1, consisting of over 100 pages, Allen sets forth a detailed account of his injury and medical treatment as a federal pretrial detainee at BCP. ECF No. 9 at 2. The salient facts are as follows.
On April 28, 2021, Allen tore his left Achilles tendon while playing basketball at BCP. ECF No. 9-1 ¶ 6. A Correctional Officer (“CO”) requested immediate medical care for Allen from the BCP Medical Department, which was administered by Wexford. Id. ¶ 7. The CO reached Defendant Nurse Miller on the phone. Id. Miller informed the CO that Allen must fill out an Inmate Sick Call Request to be seen. Id. ¶ 8. Allen submitted a request that day. Id. ¶ 9.
On April 29 and 30, Allen reported to multiple unnamed COs that his left foot and leg were swollen, he was in severe pain, and he required emergency medical care, but he was still not seen by medical staff. Id. ¶¶ 11, 12. On May 1, CO Wako called Wexford and spoke to Nurse Miller, noting that Allen needed medical treatment. Id. ¶ 13. Miller declined to see Allen that day. Id. ¶ 15. On May 2, Allen again informed unnamed COs about the swelling and severe pain and that he needed emergency medical care. Id. ¶ 18. He filled out a grievance form requesting medical care. Id. ¶ 19.
On May 5, seven days after his injury, Defendant Nurse Grossman examined Allen. Id. ¶ 22. She recommended that he be given ice and pain medication and be evaluated by a physician. Id. She did not provide Allen with any equipment to immobilize his injury or assign him to lower bunk status. Id. ¶ 23. On May 7, Defendant Dr. Rudd evaluated Allen. Id. ¶ 24. She did not provide Allen with a way to immobilize his injury or a lower bunk assignment. Id. She recommended he receive an orthopedic consult and continuation of pain medication. Id.
On May 9, Defendant Rutan, a health administrator, approved Allen's orthopedic consult and coordinated with the United States Marshals to arrange his transportation to an outside specialist. Id. ¶ 26. On June 7, Allen filled out an Inmate Sick Call Request asking for an update as to his consult and noting he had not received pain medication. Id. ¶ 27.
On June 11, Allen received his orthopedic consult at the Foot and Ankle Wellness Center with Maureen Heurich, DPM (“Dr. Heurich”). Id. ¶ 28. She noted that his Achilles rupture is “now neglected.” Id. Heurich provided Allen with a Cam Boot, as well as felt pads to place in his prison-mandated footwear if he could not wear the boot. Id. ¶ 29. That same day, Allen was housed in the Medical Unit, because he could not be in the general population with his Cam Boot. Id. ¶ 30. On June 20, Allen requested Nurse Grossman provide him with his prescribed pain medication. Id. ¶ 33. Grossman informed him she was the only nurse working that day and that Allen's medication was only as needed or at night. Id. He did not receive his medication that day. Id.
On June 23, Nurse Miller rescheduled Allen's follow up with Dr. Rudd to June 25. Id. ¶¶ 34, 35. On June 25, Rudd examined Allen and noted he had not been receiving his Tylenol. Id. ¶ 36. Rudd also noted Allen should receive an MRI and placed the request on June 25. Id. ¶¶ 36, 38.
On June 27, Captain Winters asked Allen if he wanted to waive his right to boot treatment in exchange for being housed in the general population for physical therapy and single cell status. Id. ¶ 39. Allen agreed. Id. On July 4, Allen requested to be moved back to the medical unit to continue boot therapy because he did not receive single cell status, but this request was denied. Id. ¶¶ 41, 42. Allen continually requested ice and medication and filed several grievances that he did not receive them. Id. ¶¶ 45-47, 49, 51, 52.
On July 26, Allen asked about the status of his MRI. Id. ¶ 48. On August 2, Allen again requested that he receive boot treatment. Id. ¶ 53. He then followed up stating his left knee gave out, and he fell, injuring his right knee. Id. ¶ 54. Allen was seen the next day and also received an MRI. Id. ¶¶ 56, 57. On August 4, Nurse Grossman examined Allen and advised him to rest and elevate his right knee. Id. ¶ 59. On August 5, the Foot and Ankle Wellness Center reviewed Allen's MRI and found he had a high-grade tear/rupture of his Achilles tendon. Id. ¶ 60.
On August 11, Matthew Sabo, DPM (“Dr. Sabo”), at the Foot and Ankle Wellness Center examined Allen and recommended he be placed in an Arizona brace. Id. ¶ 61. Allen subsequently filed several grievances when he did not receive his pain medication. Id. ¶¶ 65, 67. On August 18, Defendant DeNinno, an administrative assistant for Wexford, approved Allen's Arizona brace request. Id. ¶ 69. On September 1, Allen was transferred to another clinic and was fitted for his Arizona brace. Id. ¶ 71.
Around October 2021, PrimeCare took over the medical duties at the BCP in place of Wexford. Id. ¶ 73. On October 18, Allen requested a surgical evaluation of his injury. Id. ¶ 76. On October 21, Allen was approved to see Dr. Sabo for his surgical consult. Id. ¶ 77. On October 27, Allen was examined by Sabo. Id. ¶ 82. He noted that Allen was faring well with the Arizona brace, prescribed Motrin, and said Allen should follow up as needed. Id.
On January 20, 2022, Allen filed a grievance stating that PrimeCare would not refill his Motrin or tell him when he was about to run out. Id. ¶ 83. On February 19, Allen filed a grievance stating that PrimeCare was not providing his Motrin. Id. ¶ 86.
On August 22, Allen requested new shoes for support, as his current ones had holes. Id. ¶ 87. He reiterated this request via grievances filed on September 1 and 2. Id. ¶ 88. On September 2, Nurse Miller requested approval for Allen's new shoes. Id. ¶ 93. That same day, she noted Allen's request was denied by a “provider.” Id. ¶ 94 On September 14, Allen was ordered new shoes and was referred for additional podiatry care. Id. ¶¶ 100-02. On September 15, DeNinno scheduled Allen's orthopedic appointment for October 20. Id. ¶ 104. On September 20, DeNinno received Allen's new shoes. Id. ¶ 105. On September 29, Allen informed medical personnel the shoes did not fit and requested new shoes. Id. ¶¶ 106-108.
On October 20, Allen saw an orthopedic surgeon, William Saar (“Dr. Saar”). Id. ¶ 115. Dr. Saar noted Allen's injury was treated “conservatively.” Id. “He may not need to have any type of surgical intervention.” Id. On December 5, Allen attended his six week follow up appointment with Dr. Saar. Id. ¶ 119. No surgery was recommended for his Achilles tendon. Id.
B. PROCEDURAL BACKGROUND
On April 28, 2023, Allen filed his Complaint and its accompanying exhibit, bringing multiple claims against the Defendants. ECF Nos. 9, 9-1.
On September 25, 2023, the BCP Defendants filed a Motion to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted and a brief in support. ECF Nos. 39, 40. Allen filed a response on December 1, 2023. ECF No. 63.
On September 26,2023, PrimeCare filed a Partial Motion to Dismiss and a brief in support. ECF Nos. 42, 43. Allen filed a response on December 1, 2023. ECF No. 62.
On October 25, 2023, the Wexford Defendants filed a Motion to Dismiss Plaintiffs Complaint and a brief in support. ECF Nos. 53, 54. Allen filed a response on December 1, 2023. ECF No. 61.
The Motions to Dismiss are ripe for consideration.
C. STANDARD OF REVIEW
1. Motion to Dismiss
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” “[D]etailed pleading is not generally required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). Rather, the rules require “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Id. (quoting Bell Atl. Corp, v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconduct . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, the court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys, v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555. Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice. The complaint therefore “must allege facts suggestive of [the proscribed] conduct” that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s of his claim].”). Id. at 233-34.
2. Pro Se Pleadings and Filings
In the instant case, Plaintiff is proceeding pro se. Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner . . . may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Dep't. of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Even so, there are limits to the court's procedural flexibility - “pro se litigants still must allege sufficient facts in their complaints to support a claim .... [T]hey cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a pro se litigant, the Court will consider the facts and make inferences where it is appropriate.
D. DISCUSSION
1. BCP Defendants
In Counts 18-28 of his Complaint, Allen brings medical negligence and deliberate indifference claims against the BCP Defendants, either individually or collectively. ECF No. 9 at 10-13. The BCP Defendants move to dismiss all of these Counts of the Complaint on various grounds. ECF No. 39. Each argument will be addressed separately.
Allen also brings a claim for “ministerial neglect” against BCP, Wexford, and PrimeCare, ECF No. 9 at 3, 5, 7, but this claim has no basis in Pennsylvania or federal law.
Allen brings duplicative medical negligence claims against BCP and Wexford. In Counts 17-22, Allen lists BCP, Wexford, as well as specific individuals (Joe DeMore (Count 18), Jennifer Passarelli (Count 19), Justine Baptist (Count 20), Capitan Winters (Count 21), and Captain Tracey (Count 22)). ECF No. 9 at 1012. However, he separately brings medical negligence claims against BCP and Wexford in Counts 23 and 17, respectively. Id. at 9-12. The Court therefore construes Counts 17-22 as asserted against the listed individuals only. Allen's medical negligence claims against BCP and Wexford will be construed as asserted against the entities in Counts 23 and 17.
In Count 23, Allen brings medical negligence and deliberate indifference claims against BCP. ECF No. 9 at 11-12. In the Motion to Dismiss, BCP argues that it is not subject to suit, because it is not a “person” under Section 1983. ECF No. 40 at 4.
Allen responds that governmental entities and municipalities can be considered “persons” under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) when appropriate circumstances have been met and that those circumstances have been met here. ECF No. 63 at 57.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .. .42 U.S.C. § 1983 (emphasis added). For municipalities to be considered “persons” under Monell, a plaintiff must: “1) demonstrate the existence of an unlawful policy or custom, and 2) prove that the municipal practice was the proximate cause of the injury.” Rittenhouse Ent., Inc, v. City of Wilkes-Barre, 861 F.Supp.2d 470, 480 (M.D. Pa. 2012). The policy or custom must be affirmative, so that it is “the ‘moving force' of the constitutional violation at issue.” Monell, 436 U.S. at 694. A failure to monitor can impart liability “only where the plaintiff can identify a failure to provide specific training that has a causal nexus with their injuries and must demonstrate that the absence of that specific training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred.” Emick v. Borough of Montoursville, No. 4:16-CV-01856, 2017 WL 2436032, at *8 (M.D. Pa. May 12, 2017), report and recommendation adopted, No. 4:16-CV-01856, 2017 WL 2424059 (M.D. Pa. June 5, 2017) (internal quotations omitted).
Allen argues that BCP's policy of failing to monitor Wexford's performance and staff meets the Monell criteria. ECF No. 63 at 72. He also cites Wexford's contract with BCP in his Complaint. ECF No. 9-1 ¶ 2.
Upon review, Allen has not identified any specific training or policy to impart liability to BCP, only stating a general lack of monitoring and a “responsibility” to do so. ECF No. 63 at 72. Without the allegation of the requisite facts, BCP is not a person within the meaning of Section 1983. Ruff v. Health Care Adm'r, 441 Fed.Appx. 843, 845 (3d Cir. 2011); Austin v. Cnty. of Butler Pa., No. 12-534, 2013 WL 425134, at *3 (W.D. Pa. Feb. 4, 2013). Therefore, it is recommended Count 23 against BCP be dismissed.
b. Medical Negligence Claims Against the BCP Defendants
In Counts 18-22 of his Complaint, Allen brings medical negligence claims against the individual BCP Defendants, arising from their “automatic” breach of duty to him through the “inadequate and untimely treatment” of his Achilles tendon. ECF No. 9 at 10-11. In the Motion to Dismiss, the BCP Defendants argue that they cannot be sued for medical negligence because such claims are barred by Pennsylvania's Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. Cons. Stat. § 8541 et seq. (1980). ECF No. 40 at 4-7. Allen does not specifically address this argument in his Response. See ECF No. 76.
In Count 23, Allen asserts deliberate indifference and medical negligence claims against BCP. ECF No. 9 at 11-12. In Section D.l.a, it is recommended that all claims against BCP be dismissed, because it is not a person within the meaning of Section 1983. Even without this analysis, however, the Court would still recommend that the medical negligence claim against BCP be dismissed, as medical negligence is not a viable claim against BCP, in accordance with the analysis set forth in Section D.l .b.
The PSTCA provides that municipal entities and employees are generally immune from tort claims except for those that fall within one of the Act's enumerated exceptions. 42 Pa. C.S. § 8541. Local government agencies or officials may be held liable for negligent acts resulting in injury to person or property only where damages are recoverable under common law or a statute creating a cause of action, and the injury was caused by a person that does not have an available defense under 42 Pa. C.S. § 8541 (relating to governmental immunity generally) or 42 Pa. C.S. § 8546 (relating to defense of official immunity). 42 Pa. C.S. § 8542(a)(1) (1980). The aforementioned enumerated exceptions to the PSTCA are: (1) vehicle liability; (2) care, custody, or control of personal property; (3) real property; (4) trees, traffic controls, and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care custody or control of animals. 42 Pa. C.S. § 8542(b).
Medical negligence/malpractice does not fall within these exceptions to governmental immunity. See Syder v. Philadelphia Indus. Corr. Ctr., No. CV 22-3856,2023 WL 8622337, at *3 n. 9 (E.D. Pa. Dec. 13, 2023) (dismissing medical negligence claims against the Philadelphia Industrial Correctional Center because the PSTCA prohibits such claims). Therefore, medical negligence is not a viable claim against the BCP Defendants. As such, it is recommended that the medical negligence claims against the BCP Defendants in Counts 18-22 be dismissed.
c. Deliberate Indifference Claims Against the Individual BCP Defendants
In Counts 24-28 of his Complaint, Allen alleges the individual BCP Defendants were deliberately indifferent to his serious medical needs, in violation of his Fourteenth Amendment rights. ECF No. 9 at 12-13. The BCP Defendants argue that these claims should be dismissed because the doctrine of respondeat superior does not apply to Section 1983 civil rights claims. ECF No. 40 at 8.
Allen also requests relief under the Fifth Amendment. ECF No. 9 at 5. However, the Fifth Amendment provides criminal defendants the right to not incriminate themselves. U.S. Const. Amend. V. Accordingly, this Court construes Allen's claim only as arising under the Fourteenth Amendment, which provides an individual the right to due process, U.S. Const. Amend. XIV., in accordance with the Supreme Court's guidance to reasonably read pro se pleadings to state a valid claim on which the litigant could prevail. See, e.g., Boag v. MacDougall, 454 U.S. 364 (1982).
Allen responds that the BCP Defendants had knowledge of Wexford's deliberate indifference to his serious medical need and can be held liable for it. ECF No. 63 at 60.
As the Eighth Amendment's protection against cruel and unusual punishment is only available to prisoners after their conviction, not pretrial detainees like Allen, Allen's claims against the BCP Defendants for their deliberate indifference arise out of the Fourteenth Amendment. The Fourteenth Amendment “affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner.'” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)). See also Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005).
To succeed on his deliberate indifference claim, Allen must allege facts that would demonstrate: “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (internal citation omitted). “Only unnecessary and wanton infliction of pain or deliberate indifference to the serious medical needs of prisoners are sufficiently egregious to rise to the level of a constitutional violation.” White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir.1990) (internal quotations omitted).
“Correctional defendant-administrators who are not themselves physicians cannot ‘be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.'” Davis v. Norwood, 614 Fed.Appx. 602, 605 (3d Cir. 2015) (quoting Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993)). Indeed, “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official. . . will not be chargeable with the ... scienter requirement of deliberate indifference.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). The United States Court of Appeals for the Third Circuit has found
“deliberate indifference” in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (internal citations omitted).
In this case, the Achilles tear that Allen sustained is a serious medical need, and no Defendants contest this fact. See Gibbons v. Cnty., No. CV 16-1233, 2016 WL 3878182, at *3 (E.D. Pa. July 18,2016) (holding that an Achilles tear is a serious medical need and noting multiple courts have held the same). The issue that remains is whether Allen has sufficiently alleged acts or omissions by the individual BCP Defendants to aver a claim of deliberate indifference to this serious medical need.
i. Actual Knowledge of Allen's Serious Medical Needs
While Allen submitted multiple grievances regarding his medical needs relative to his Achilles tear, most of the BCP Defendants had no reason to believe that the medical professionals were mistreating Allen. He only makes limited references in the Complaint. First, he alleges that the unknown CO that Allen saw when he first injured himself immediately called the medical unit and spoke with Nurse Miller. ECF No. 9-1 ¶ 7. When Allen began receiving care, Allen had continued medical visits, including visits to outside medical professionals, medication, and medical equipment, albeit at a pace that Allen was dissatisfied with.
Second, as it relates to Defendant Captain Winters, Allen alleges more specific facts compared to the other BCP Defendants. Allen alleges Winters “hustled” him to “waive” his right to boot treatment and concealed facts about Allen's cell status. Id. ¶ 39. Allen requested to be moved back to the medical unit to continue boot therapy, but this request was denied. Id. ¶ 41. “[N]on-medical employees can be liable for deliberate indifference if they were personally involved with a denial of treatment or deliberately interfered with the medical staffs treatment.” Reid v. Newton, No. 3:13-CV-572, 2014 WL 1493569, at *15 (E.D. Va. Apr. 14, 2014). Allen argues that Winters “deliberately selected to disobey or override Rudd MD order through the medium of removing plaintiff from [the medical unit].” ECF No. 63 at 26 [sic throughout]. Given that, as pled, Winters was personally involved in an alleged denial of or interference with treatment of Allen's Achilles tendon injury, it is recommended that the BCP Defendants' Motion to Dismiss, as to Defendant Winters only, be denied on this ground.
Because Allen does not plead specific allegations against any of the other BCP Defendants, it is recommended that the BCP Defendants' Motion to Dismiss be granted on this ground as to the remaining individual BCP Defendants.
ii. Knowledge of Allen's Serious Medical Needs from Involvement in Grievance Process
Allen also relies on the individual BCP Defendants' alleged involvement in the grievance process to impart liability, but this is unavailing. ECF No. 9-1 ¶¶ 146-149.
To prevail on a Section 1983 claim, a plaintiff must show that a defendant was “personally involved” in the alleged deprivation of rights. Evancho v. Fisher, 423 F.3d 347,353 (3d Cir. 2005). Individual liability can be imposed only if the state actor played an “affirmative part” in the alleged misconduct and “cannot be predicated solely on the operation of respondeat superior.” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Without any specific allegations that a defendant helped deprive the plaintiff of a constitutional right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims under Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
Responding to a grievance or misconduct appeal cannot by itself show the actual knowledge necessary to establish personal involvement. See Rode, 845 F.2d at 1208; Ramos v. Pennsylvania Dept, of Corre., No. 4:cv-06-1444, 2006 WL 2129148, at *2 (M.D. Pa. 2006); Jefferson v. Wolfe, No. cv-04-44, 2006 WL 1947721, at *17 (W.D. Pa. 2006); and Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (“If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official.”). Nor can liability be imposed under a theory of supervisor liability in a Section 1983 claim unless that supervisor played an “affirmative part” in the complained of misconduct. See Chincello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986), reaffirmed in Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005).
Allen cites Adams v. Naphcare, Inc., No. 2:16-CV-229, 2017 WL 9480144 (E.D. Va. Feb. 22, 2017), report and recommendation adopted, 244 F.Supp.3d 546 (E.D. Va. 2017), to demonstrate the BCP Defendants' involvement on the Grievance Committee is sufficient to import knowledge that Allen needed medical care. ECF No. 69 at 88-89. However, in Adams, 2017 WL 9480144, at *2, that detainee had not received any even “basic” medical care, unlike this case where Allen was under ongoing treatment by medical personnel.
As it relates to involvement in the grievance process, Allen has not pled the involvement of the individual BCP Defendants with enough specificity to allege their personal involvement in the deprivation of his constitutional right.
In sum, as to the deliberate indifference claims as to individual BCP Defendants, it is recommended that the deliberate indifference claims against the individual BCP Defendants in Counts 24-27 be dismissed, except as to Defendant Winters in Count 28.
2. Wexford Defendants
The Wexford Defendants move to dismiss Counts 4-17 of Allen's Complaint on various grounds. ECF No. 53. Each argument will be addressed separately.
a. Deliberate Indifference Claims Against Defendants Rudd, Grossman, and Miller
In Counts 9-11 of Allen's Complaint, he alleges that Defendants Dr. Rudd, Nurse Grossman, and Nurse Miller were deliberately indifferent to his serious medical needs through their delays in his treatment and the inadequate treatment provided. ECF No. 9 at 8-9. The Wexford Defendants move to dismiss for failure to plead facts sufficient to support claims of deliberate inference to his medical needs, because the Defendants did provide “significant treatment” to Allen. ECF No. 54 at 9, 11. They argue that Allen's disagreement with the medical care provided does not state a claim for deliberate indifference. Id. at 11.
Allen responds that the Wexford Defendants' actions and inaction caused suffering and risk of injury, as appropriate for a deliberate indifference claim. ECF No. 61 at 46-47.
Deliberate indifference to a serious medical need constitutes a violation of the Eight Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The mental state of deliberate indifference goes beyond mere negligence. Id. at 106 (“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.”). “Deliberate indifference .. . requires obduracy and wantonness, which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk.” Rouse, 182 F.3d at 197 (internal citations omitted). This requisite mental state may be shown by intentionally denying or delaying medical care for non-medical reasons. Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). “The deliberate indifference standard affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients.” Pearson v. Prison Health Serv., 850 F.3d 526, 538 (3d Cir. 2017) (internal citations omitted).
Once an inmate has received some level or medical care, deliberate indifference is difficult to establish. Clark v. Doe, No. CIV. A. 99-5616,2000 WL 1522855, at *2 (E.D. Pa. Oct. 13,2000). Indeed, a court may not substitute its own judgment for diagnosis and treatment decisions made by prison medical staff members. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (courts “will disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment”) (internal quotations omitted). See also Zilich v. Doll, No. 3:13-CV-02814,2015 WL 9690311, at *5 (M.D. Pa. Dec. 4,2015), report and recommendation adopted, No. CV 3:13-2814, 2016 WL 108119 (M.D. Pa. Jan. 11, 2016) (“Inconsistencies or differences in medical diagnoses, short delays unaccompanied by arbitrary or unduly burdensome bureaucratic procedures, and the refusal to ... perform tests or procedures that the inmate desires, or to explain to the inmate the reason for medical action or inaction does not amount to a claim of deliberate indifference under the Eighth Amendment.”).
i. Deliberate Indifference of Nurse Miller
Allen alleges that he promptly showed a CO his injury on April 28, 2021. ECF No. 9-1 ¶ 7. The CO called the medical department and reached Defendant Nurse Miller. Id. The CO described the serious nature of the injury and noted that Allen was experiencing severe pain and could not walk. Id. Miller informed the CO that Allen needed to file a sick call request. Id. ¶ 8. That evening, Allen did so. Id. ¶ 9. Another CO spoke to Miller on May 1 regarding Allen's injury, but she again declined to examine Allen. Id. ¶¶ 13, 15. He did not see a medical professional until May 5. Id. ¶ 22.
At this early stage of the litigation, Allen's allegations as they relate to Defendant Nurse Miller sufficiently aver deliberate indifference. Miller was immediately aware of Allen's injury on April 28, 2021. Id. ¶ 7. She did not examine him on April 28, nor did she schedule him to be seen that day or the next day, despite being told by the CO that Allen was in severe pain and could not walk. She also knew that Allen had not yet been seen by a medical professional on May 1, but she also did not examine him that day. Id. ¶¶ 13, 15. As pled, there may be no medical reason for a seven-day delay for an initial medical examination regarding a serious injury. Such a delay may amount deliberate indifference. Giles, 571 F.3dat330.
ii. Deliberate Indifference of Nurse Grossman
As to Defendant Nurse Grossman, Allen alleges she examined him on May 5, seven days after his injury. ECF No. 9-1 ¶ 22. Nurse Grossman recommended that Allen be given ice and pain medication and be evaluated by a physician. Id. ¶ 33. On June 20, Allen requested Nurse Grossman provide him with his prescribed pain medication, but Grossman informed him she was the only nurse working that day and that Allen's medication was only as needed or at night. Id. ¶ 33. He did not receive his medication that day. Id. On August 4, after Allen fell, Grossman examined him and advised him to rest and elevate his right knee. Id. ¶ 59.
Allen alleges that “in general” this demonstrates deliberate indifference, because his medical care was “untimely or inadequate,” and Nurse Grossman did not recommend the emergency room, provide Allen with any equipment to immobilize his injury, assign him to lower bunk status, or give him pain medication. Id. ¶ 137.
While Allen disagrees with the care provided by Nurse Grossman, the above-related averments are not sufficient to assert a constitutional violation. Mere negligence is not enough to demonstrate a constitutional violation. Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). As pled, Grossman did not have the mental state of deliberate indifference. She recommended Allen be seen by a physician and be treated with ice and pain medication. ECF No. 9-1 ¶ 22. While Allen alleges that she did not provide his pain medication on one day, that interaction as pled does not indicate a mental state of wantonness. Nurse Grossman's actions or inactions, as alleged, during Allen's course of treatment by do not arise to deliberate indifference. See also Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006) (“[Plaintiffs] disagreement with the medical decisions regarding follow-up visits to the specialist and physical therapy, without more, does not state an Eighth Amendment violation.”). Compare Allen's allegations in this case with Cardona v. Warden - MDC Facility, Civ. No. 12-7161,2013 WL 6446999, at *4 (D.N.J. Dec. 6,2013) (“plaintiff alleges that defendant Lopez denied him therapy, pain medication and denied him from seeing an orthopedist even after such an appointment was scheduled for the serious medical need for treatment of his broken leg”).
iii. Deliberate Indifference of Dr. Rudd
Allen alleges Defendant Dr. Rudd examined him on May 7, two days after his examination by Nurse Grossman. ECF No. 9-1 ¶ 24. She did not provide Allen with a way to immobilize his injury or a lower bunk assignment, but she recommended he receive an orthopedic consult and continuation of pain medication. Id. On June 25, Dr. Rudd examined Allen, recommended that he receive an MRI, and placed the request that same day. Id. ¶¶ 36, 38.
Allen alleges that Rudd was “inextricably intertwined with virtually everything about my diagnosis.” Id. ¶ 136. He asserts that the lack of proper diagnostic tests and treatment from Rudd amount to deliberate indifference. IcL
As with Nurse Grossman, while Allen disagrees with the medical care Dr. Rudd provided, these averments are not sufficient to assert a constitutional violation. They do not demonstrate a mental state of intentionally denying or delaying medical care or wanton infliction of pain. Whenever appropriate, Dr. Rudd placed orders for tests or a specialist shortly after her examinations of Allen. Allegations of negligence do not amount to allegations of deliberate indifference.
Therefore, it is recommended that the Wexford Defendants' Motion be granted as to the claims of deliberate indifference against Defendants Rudd and Grossman, Counts 9 and 10, and be denied as to Allen's claim of deliberate indifference against Defendant Miller, Count 11.
b. All Claims Against Defendants Depew, Bash, and McCabe
In Counts 4-6 and 12-14, Allen alleges Defendants Depew, Bash, and McCabe were medically negligent in his care by “automatically breach[ing] their duty” with their “inadequate and untimely treatment” and deliberately indifferent to his medical needs. ECF No. 9 at 7-9. He alleges Depew, McCabe, and Brash reviewed his sick call requests and scheduled medical appointments. ECF No. 9-1 ¶¶ 16, 55, 56, 139-141. These actions and inactions allegedly violated his Fourteenth Amendment rights and constituted medical negligence. ECF No. 9 at 7-9.
The Wexford Defendants argue that Allen does not allege he had direct interactions with DePew, McCabe, and Brash. ECF No. 54 at 8.
Allen responds that Depew, McCabe, and Brash played an “active role” in his treatment. ECF No. 61 at 66.
Contrary to Allen's arguments, nowhere in the Complaint has he pled specific facts that establish Depew, Brash, or McCabe played an active role in his medical treatment, only conclusory statements. These are legal conclusions and cannot be considered when evaluating Allen's factual allegations, as they are merely bald assertions reciting necessary elements of his claims. Twombly, 550 U.S. at 555. There are no facts actually connecting Depew, Brash, and McCabe to Allen or establishing a breach of any duty of care owed to him that resulted in an injury.
Allen has also not pled any facts that establish deliberate indifference to a serious medical need required for that claim. There are no allegations in his Complaint indicating any type of intentional delay in his treatment or other wanton infliction of pain on the part of Depew, Bash, or McCabe.
Therefore, it is recommended that Counts 4-6 and 12-14 against Defendants Depew, Bash, and McCabe be dismissed.
c. All Claims Against Defendants DeNinno and Rutan
In Counts 7, 8, 15 and 16 of his Complaint, Allen alleges DeNinno and Rutan were medically negligent in their care of him and deliberately indifferent to his serious medical need. ECF No. 9 at 8-9. He alleges that DeNinno scheduled his outside appointments and coordinated his transportation, in addition to approving medical equipment and services. ECF No. 9-1 ¶¶ 34, 81, 108. Allen alleges Rutan coordinated his appointments medical appointments, was “responsible for the overall operation of BCP Healthcare program,” acted “as a liaison between Wexford and BCP administration and staff,” and provided general supervision. ECF No. 61 at 6768. In their Motion to Dismiss, the Wexford Defendants argue these Counts should be dismissed, because Allen does not allege DeNinno and Rutan were directly involved in the provision of his medical care. ECF No. 54 at 10.
Allen responds that DeNinno did not need actual knowledge to commit medical malpractice and that she did not act urgently enough regarding his immediate medical needs. ECF No. 61 at 69-70, 76. Allen also argues that Rutan's oversight responsibilities imparted constructive knowledge of his medical needs that makes her actions and inaction amount to deliberate indifference and medical negligence. Id. at 67-87.
Upon review of the allegations, Dr. Rudd requested Allen receive an orthopedic consultation on May 7, 2021; Rutan approved it on May 9. ECF No. 9-1 ¶¶ 24, 26. While Allen did not see his specialist until June 11, there are no factual allegations that this was the fault of Rutan. Id. ¶ 27. She promptly processed the request on May 9. Id. ¶ 29. Similarly, there is no evidence that DeNinno did not act expeditiously regarding Allen's multiple medical requests. She promptly approved Allen's Arizona brace request and scheduled his orthopedic appointment. Id. ¶¶ 69, 104.
The averments in the Complaint do not sufficiently assert that either Rutan or DeNinno acted with deliberate indifference, violated any duty of care, or had any knowledge that Allen's medical needs were not being met. None of Rutan and DeNinno's actions or inactions indicate a mental state of deliberate indifference, either by way of wanton infliction of pain or an intentional delay in his medical treatment. As with Defendants Depew, Brash, and McCabe, Allen's allegations against Defendants Rutan and DeNinno are conclusory statements and are not entitled to a presumption of the truth.
Therefore, it is recommended that Counts 7, 8, 15, and 16 against DeNinno and Rutan be dismissed.
d. All Claims Against Wexford
In Count 17 of his Complaint, Allen alleges that Wexford is liable for medical negligence and for violating his Fourteenth Amendment right. ECF No. 9 at 9-10. Allen alleges Wexford “automatically breached its duty” to him through its “inadequate and untimely treatment” of his Achilles tendon “and for maintaining a policy of denying and delaying needed medical services and negligently failing to provide Plaintiff prompt and appropriate medical care, failing to ensure Plaintiff received medical treatment prescribed for him including medical surgical repair and timely MRI... and failing to ensure prompt scheduling.” Id.
In its Brief in Support of its Motion to Dismiss, Wexford argues that Allen cannot state a Monell claim against Wexford, because he has not identified the policy, custom, or practice that resulted in a constitutional violation. ECF No. 54 at 15-16. Allen failed to plead the existence of a longstanding custom that could constitute a standard operating procedure. Id.
While Wexford seemingly moves to dismiss all of Count 17, it did not brief the medical negligence portion of this Count. ECF No. 54. Therefore, only the deliberate indifference portion of Allen's claim against Wexford will be evaluated.
In opposing the Motion to Dismiss, Allen argues that Wexford has a pattern of deliberate indifference and a custom of delaying medical treatment for non-medical reasons. ECF No. 61 at 73. He cites various Wexford policies and practices in his Complaint. ECF No. 9-1 ¶¶ 2-4. Allen also argues that Wexford can be held vicariously liable for the actions of its employees. ECF No. 61 at 73.
Upon review, Allen has not pled sufficient facts that it was Wexford's custom to delay medical treatment for non-medical reasons. As noted in Section D.l.a, under Monell, 436 U.S. at 694, Allen must allege facts that show that an affirmative policy or custom was in place that led to his injury in order to hold a governmental entity liable for a constitutional violation. The policies he relies on are general statements of treatment, and Allen has not pled how these policies led to his injury.
As also discussed in Section D.l.c, a constitutional violation cannot be imparted through respondeat superior. Rode, 845 F.2d at 1207. Even when viewed in the light most favorable to Allen, as we must at this initial stage of this case, his allegations do not make out a claim against Wexford. Therefore, it is recommended that the deliberate indifference portion of Count 17 of Allen's Complaint be dismissed.
3. Defendant PrimeCare
In Count 30 of his Complaint, Allen makes identical claims against PrimeCare as he does against Wexford. Defendant PrimeCare moves to dismiss only the deliberate indifference portion of Count 30 on the grounds that the Monell criteria cannot be met and that it cannot be held vicariously liable. ECF No. 44 at 4.
Allen argues in his Response that PrimeCare's lack of affirmative policy or custom regarding patient's pain medication, shoes, lower bunk status, or additional treatment plan constitute an affirmative policy sufficient to establish a claim under Monell. ECF No. 62 at 35, 3941,43.
As noted in Section D.l.a, under Monell, 436 U.S. at 694, Allen must allege a specific municipal affirmative policy or custom that led to his constitutional violation. He has failed to do so. Allen has not identified a specific policy or custom that was “the ‘moving force' of the constitutional violation at issue.” Id. And as discussed in Section D.l.c, a constitutional violation cannot be imparted through respondeat superior. Rode, 845 F.2d at 1207.
Therefore, it is recommended that the deliberate indifference portion of Count 30 against PrimeCare be dismissed.
E. CONCLUSION
For these reasons, the Court respectfully makes the below recommendations.
As to the BCP Defendants' Motion to Dismiss, ECF No. 39, it is recommended that the Motion be granted in part and denied in part as follows:
• The Motion be granted, and Allen's claims be dismissed with prejudice as to his medical negligence claims, Counts 18-23;
• The Motion be granted, and Allen's claims be dismissed without prejudice as to his deliberate indifference claims, Counts 23-27; and
• The Motion be denied as to his deliberate indifference claim against Defendant Winters, Count 28.
As to the Wexford Defendants' Motion to Dismiss, ECF No. 53, it is recommended that the Motion be granted in part and denied in part as follows:
• The Motion be granted, and Allen's claims be dismissed without prejudice as to his deliberate indifference claims against Defendants Rudd, Grossman, and Wexford, Counts 9, 10, and 17;
• The Motion be granted, and Allen's claims be dismissed without prejudice as to his deliberate indifference and medical negligence claims against Defendants Depew, Brash, McCabe, DeNinno, and Rutan, Counts 4-8 and 12-16; and
• The Motion be denied as to Allen's deliberate indifference claim against Defendant Miller, Count 11.
As to Defendant PrimeCare's Motion to Dismiss, ECF No. 42, it is recommended that the Motion be granted, and Allen's claim be dismissed without prejudice as to his deliberate indifference claim, Count 30.
The United States Court of Appeals for the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, Allen may be in possession of additional facts to support his allegations. Therefore, it is recommended that Allen be afforded a final opportunity to file an Amended Complaint to correct the substantial pleading deficiencies identified in this Report only as to the claims dismissed without prejudice. The Court should further instruct Allen that an Amended Complaint must be filed within thirty days, must fully allege every claim he wishes to pursue against all parties, and must be a pleading that stands by itself without reference to the original or amended complaint. Young v. Minnick, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992).
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections within fourteen days, or seventeen days for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.