Opinion
1:21-CV-00213-SPB-RAL
10-27-2022
JUSTIN BEGANDY, Plaintiff v. WELLPATH, AMANDA HARTWELL, MEDICAL DIRECTOR OF THE STATE CORRECTIONAL INSTITUTION AT ALBION SCI ALBION; MORGAN OLIVER-HARMON, HEALTH SERVICES ADMINSTRATOR OF SCI ALBION; JERI SMOCK, CORRECTIONS HEALTH CARE ADMINSTRATOR OF SCI ALBION AND KIMBERLY GASSER, CERTIFIED REGISTERED NURSE PRACTIONER AT SCI ALBION, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S AMENDED COMPLAINT IN RE: ECF NOS. 51,53
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendant Smock's motion to dismiss (ECF No. 51) and the Wellpath Defendants' motion to dismiss (ECF No. 53) be granted.
II. Report
Plaintiff Justin Begandy (“Begandy”) is an inmate in the custody of the Pennsylvania Department of Corrections (“DOC”) at its State Correctional Institution at Albion (“SCI-Albion”). He initiated this pro se federal civil rights and state law negligence action against Wellpath, the company contracted by the DOC to provide healthcare services at its facilities, Amanda Hartwell, SCI-Albion's Medical Director, Morgan Oliver-Harmon, SCI-Albion's Health Care Administrator, Kimberly Gasser, a Certified Registered Nurse Practitioner at SCI-Albion (collectively, “Wellpath Defendants”), and Jeri Smock (“Smock”), Corrections Healthcare Administrator at SCI-Albion. Each individual Defendant is sued in his or her individual and official capacities. ECF No. 50. Begandy's two-count amended complaint alleges that he received medical care at SCI-Albion that fell below the standard of care required under Pennsylvania law and reflected deliberate indifference to his serious medical needs in violation of his rights under the Eighth Amendment to the United States Constitution. ECF No. 50, ¶¶ 2-8.
Count I is a state law medical negligence claim against all Defendants. Id., ¶¶ 74-79. Count II presents a claim pursuant to 42 U.S.C. § 1983 against all Defendants except Gasser. Id., ¶¶ 80-97. As relief, Begandy seeks compensatory, punitive, and nominal damages. Id., p. 19. Pending before the Court are separate motions to dismiss the amended complaint filed by the Wellpath Defendants and Defendant Smock pursuant to Fed. R. Civ. Pro. 12(b)(6). See ECF Nos. 51, 53.
A. Procedural History
Begandy commenced this action by filing a civil complaint and motion for leave to proceed in forma pauperis (“IFP”). ECF Nos. 1,1-2. Begandy's complaint was docketed on September 3, 2021, after the Court granted his IFP motion. ECF No. 6. Pursuant to Pennsylvania Rule of Civil Procedure § 1042.12, the Wellpath Defendants and Smock each filed a notice of intent to enter judgment in their favor because Begandy failed to file a certificate of merit (COM) as to each Defendant within sixty days after he filed his complaint asserting state law negligence claims. ECF Nos. 17, 21.
On November 15, 2021, Smock moved pursuant to Fed. R. Civ. Pro. 12(b)(6) to dismiss all claims against her for failure to state a claim. ECF No. 22. Thereafter, the Court granted Begandy's motion for an extension of time to file his COMs (ECF No. 28), extending the due date from December 28, 2021, to February 22, 2022 (ECF No. 30). The Wellpath Defendants then timely moved to dismiss the claims against them for failure to state a claim. ECF No. 32. On Begandy's motion, the Court further extended Begandy's deadline for filing his COMs by another forty-five days or until April 8, 2022. ECF Nos. 34, 37.
On April 15, 2022, Begandy filed an amended complaint accompanied by eight exhibits labeled “A”-“H.” ECF No. 50. The amended complaint is the operative pleading before the Court. Based on its filing, the Court denied as moot the Wellpath Defendants' and Smock's motions to dismiss Begandy's original complaint. ECF Nos. 48, 49.
Although Begandy's amended complaint slightly changed the order and labeling of his claims and the specific Defendants named in each, their substance did not vary materially from his original complaint. Count I is a negligence claim against all Defendants. It alleges that “Hartwell, Gasser, Oliver-Harmon, and Smock failed to possess and/or exercise adequate medical skills, knowledge, experience, and techniques for the proper treatment of plaintiff.” Id., ¶ 75. As to Wellpath, Count I alleges that it “failed to ensure quality medical care for individuals with ruptured biceps tendon injuries through the adoption and/or enforcement of any rule or policy that would have ensured that the standard of care was followed.” Id., ¶ 78. The amended complaint further alleges that “Wellpath failed to employ competent medical staff who could have ascertained the seriousness of plaintiffs ruptured biceps tendon injury and that would have ensured that the standard of care was followed.” Id., ¶79. Count II of the amended complaint asserts that Wellpath, Hartwell, Oliver-Harmon, and Smock acted with “deliberate indifference” to his serious medical needs. Id., ¶¶ 80-97.
The amended complaint added Smock and Oliver-Harmon as Defendants to the deliberate indifference claim and added the Wellpath Defendants to the negligence claim.
On April 29, 2022, the Wellpath Defendants filed a motion to dismiss the amended complaint for failure to state a claim and supporting brief. ECF Nos. 51, 52. Three days later, Smock filed her motion to dismiss and supporting brief. ECF Nos. 53, 54.
Begandy then moved for another extension of time to file COMs and a response to each motion to dismiss. ECF No. 64. The Court granted Begandy's request for an extension to respond to the pending motions but denied his request for a further extension to file COMs. ECF No. 70. On August 18, 2022, Begandy moved for reconsideration of the Court's denial of a further extension to file COMs. ECF No. 72. The Court denied this motion but sua sponte granted Begandy another ten days to respond to the motions to dismiss. ECF No. 73. On August 25, 2022, Begandy timely filed a single responsive brief to both motions to dismiss. ECF No. 76.
B. Facts
The following factual allegations of the amended complaint (ECF No. 50) are taken as true for purposes of the pending motions to dismiss. See Victor v. Overmyer, 2020 WL 2220541, at *2 (W.D. Pa. Mar. 16, 2020), report and recommendation adopted, 2020 WL 2220128 (W.D. Pa. May 7, 2020) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
At or around noon on July 29, 2019, Begandy slipped while he was working in the kitchen at SCI-Albion. As he reached for a nearby cart to brace himself, the “bottom-half of his body went underneath him while his top-half remained stationary.” ECF No. 50, ¶ 11. Begandy heard “a popping sound” and felt “immense fiery pain in the [right] forearm and bicep” before hitting the ground. Id., ¶ 12.
Begandy went to Medical about an hour later. CRNP Gasser and nurse assistant Daniel Giroux examined Begandy's right bicep, which was “no longer in its natural bodily position,” while Begandy told them about the popping sound and pain and that his bicep had “moved backwards.” Id., ¶ 16. He also “informed Gasser that he could not flex his arm because it. .. would knot up when” he bent it at ninety degrees. Id., ¶ 21. Gasser then offered him a sling, but he declined it because his “arm was less painful when hanging straight down.” Id.
Begandy asked Gasser if he would be taken to the emergency room (“ER”). Before responding, Gasser left the room for “a few minutes.” Id., ¶ 18. Upon her return, Gasser informed Begandy that he would not be going to the ER, to which Begandy “expressed concerns about how long his arm could go without being fixed.” Id., ¶ 19. Gasser then said she would order an urgent consultation, which HSA Oliver-Harmon confirmed the next week (August 7, 2019). Id. Begandy also “inquired about diagnostic testing but received no answer from Gasser.” Id., ¶ 20. Gasser then ordered a photograph of his arm, which showed “swelling in [the] forearm area” and the “biceps muscle not in its natural position.” Id., ¶ 22. She also “ordered [Begandy] to receive ice twice-a-day for one month,” and “Ibuprofen three times-a-day.” Id., ¶ 23.
The next day, Begandy submitted a Sick Call Request for pain and “blackened bruising” on his right forearm. Id., ¶ 25. Begandy was seen by Physician's Assistant Daniel Stroup for a follow-up appointment on August 1, 2019. Begandy asked Stroup if he could get an MRI and an x-ray, but only an x-ray was ordered. This x-ray, taken on August 5, 2019, showed “no bones were fractured or broken;” however, “[t]he x-ray technician told [Begandy] that tendons, ligaments, and muscles are not seen on an x-ray.” Id., ¶ 26. Stroup also ordered Begandy medically unemployable for 30 days. Id.
On August 12, 2019, Begandy saw CRNP Erin Hayton at the chronic care clinic for high cholesterol. He asked Hayton when he would see a doctor. Hayton said that she did not know “because the doctor was off-site.” Id., ¶ 27.
On August 29, 2019, Begandy was seen by Orthopedic Surgeon Carl Y. Seon at UPMC Orthopedic and Sports Medicine in Erie, Pennsylvania. Dr. Seon asked when the accident occurred and informed Begandy that his bicep tendon had ruptured and that the “muscle had retracted.” Id., ¶ 29. Dr. Seon then said that the “tendon should have been repaired within two weeks of the injury” and that the longer he waited, the greater the risk of permanent damage, surgery complications, and a difficult recovery. Id. He then ordered an MRI and x-ray.
Begandy's MRI was taken on September 4, 2019. On September 11, 2019, Dr. Hartwell signed the MRI report, which confirmed that his bicep tendon had completely tom:
[C]omplete tear of the biceps tendon is present with retraction of the tendon by approximately 6:5 centimeters [2 and 9/16 inches] from its intersection site onto the proximal radius, 1' and "complete rupture of the biceps tendon with tendon retraction as noted.AZ,¶31. .
On September 9, 2019, Begandy filed another Sick Call Request for pain and was seen two days later by CRNP Hayton. Hayton extended Begandy's unemployment to October 31, 2019, and prescribed him two 500 mg Tylenol pills three times a day.
On September 27, 2019, Dr. Seon performed surgery on Begandy's right bicep at UPMC-Hamot. After the surgery, Begandy was brought to SCI-Albion's infirmary, where he remained until October 4, 2019. “(F]or approximately three or four days” after the surgery, Begandy was given “Tylenol-3 for the pain.” Id., ¶ 35.
While recovering from surgery in the infirmary, Begandy was seen by Dr. Hartwell on September 30 and October 2, 2019. Dr. Hartwell noted that his blood pressure was high and explained that pain could cause this increase. After twice having to specifically request the Tylenol, Begandy asked Dr. Hartwell why he needed to request his medication to receive it. Hartwell responded by telling him that he would now receive Motrin. Begandy was also prescribed an antibiotic after developing an infection around his surgery wound.
Upon release from the infirmary on October 4, 2019, Begandy learned from Giroux that he had to first write a request to Dr. Hartwell before he could get the Motrin and antibiotics from the Medication Line. Begandy wrote the request that day-it was sent the next day on October 5, 2019. Begandy's medication ran out on October 8, 2019. His medication refill was ordered on October 11, 2019, and on October 12, 2019, he received the medication.
On October 10, 2019, Dr. Seon removed Begandy's stitches and told him that “his right biceps could not be put back in its natural position because the muscle fibers locked in place and that a cadaver hamstring tendon had to be used and anchored with a mesh.” Id., ¶ 41. Dr. Seon prescribed about six months of physical therapy for his right arm on November 21, 2019.
Because Begandy had not yet received physical therapy by December 1, 2019, he sent a Request to CHCA Smock asking about this delay. In her December 4, 2019 response, “Smock stated she would have to look into options for physical therapy because SCI-Albion” could not provide it. Id., ¶ 43. Six days later, Begandy was transferred to SCI-Laurel Highlands to receive physical therapy, which began “approximately two days later,” on or about December 12, 2019. Id., ¶ 44. “On or about March 2020,” COVID-19 measures resulted in the termination of physical therapy at SCI-Laurel Highlands. Id.
C. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and view them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir.1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Emp. Ret. Sys. v. The 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 disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (emphasis added) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Begandy is proceeding pro se, the allegations in the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
D. Analysis
Begandy's civil rights and state law negligence claims are based on an alleged delay in medical diagnosis and treatment of his arm injury resulting in increased pain and disability. ECF No. 50, ¶¶ 74-79. Count II, which the Court addresses first, asserts that Dr. Hartwell, Oliver-Harmon, Smock, and Wellpath's conduct regarding Begandy's medical care manifested deliberate indifference to his serious medical needs and, thus, violated his Eighth Amendment right to be free from cruel and unusual punishment. Id., ¶¶ 80-97. The state negligence claim asserts that the care provided by each Defendant fell below the applicable medical standard of care. Id., ¶¶ 74-79. For the reasons discussed below, the amended complaint fails to state an Eighth Amendment or state law negligence claim.
1. The facts alleged in the complaint are insufficient to state an Eighth Amendment claim for deliberate indifference to serious medical needs.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” See Estelle v. Gamble, 429 U.S. 97 (1976)) (internal quotation omitted). Begandy alleges that Smock, Oliver-Harmon, and Hartwell acted with deliberate indifference to his ruptured bicep tendon. ECF 50, ¶¶ 85-97. Begandy also asserts that Wellpath manifested deliberate indifference to his medical needs by adopting cost-cutting policies that motivated its employees, Hartwell and Oliver-Harmon, t delay his treatment. ECF No. 50, ¶¶ 80-84.
To establish a violation of his constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a “failure to treat can be expected to lead to substantial and unnecessary suffering.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Deliberate indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
The amended complaint's allegations concerning the nature and severity of Begandy's ruptured bicep tendon injury easily satisfy the “serious medical need” element of his Eighth Amendment claim. See ECF No. 50, ¶¶ 11-12. Accordingly, only the second prong of the deliberate indifference test is at issue here - whether the treatment of Begandy's right arm manifested a deliberate indifference to his serious medical need.
It is well-settled that “an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional claims because “the exercise by a doctor of his professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.”)). “Therefore, where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5 (citing Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009) (characterizing a dispute over pain medication as the type of “disagreement over the exact contours of [plaintiff s] medical treatment” that does not violate the constitution)).
Similarly, “the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice standing alone is not a constitutional violation.” Id. (quoting Estelle, 429 U.S. at 106). “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). And the Third Circuit has made clear that “there is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'” Wisniewski v. Frommer, 751 Fed.Appx. 192,195-96 (3d Cir. Oct. 3, 2018) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)). Thus, “courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018) (quoting Clarkv. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)).
a. Hartwell, Oliver-Harmon, and Smock were not deliberately indifferent to Begandy's serious medical needs.
Begandy asserts that Dr. Hartwell, Oliver-Harmon, and Smock acted with deliberate indifference by “t[aking] part... in denying and/or delaying time-sensitive surgical intervention for [his] ruptured biceps tendon and biceps muscle injury,” which “caus[ed him] to endure unnecessary pain and suffering.” ECF No. 50, ¶ 97. Begandy also alleges that “Smock showed indifference to [his] physical therapy order.” ECF No. 76, p. 11. Defendants counter that Begandy's own allegations show that he consistently received medical treatment and that the time between treatments and surgery do not represent deliberate indifference. They also argue that Morgan-Oliver, a prison health services administrator, is not a medical provider and, therefore, cannot be held liable for deliberate indifference. They further argue that none of DOC employees named in the amended complaint had reason to believe that Begandy was receiving inadequate care, further negating an inference of deliberate indifference. See ECF No. 54, pp. 17-23; ECF No. 52, p. 10. Smock also contends that Begandy has not established her personal involvement. ECF No. 52, pp. 10-11.
Because the chronology and description of Begandy's treatment set forth in his amended complaint does not support a finding of deliberate indifference, his Eighth Amendment claim fails against all individual Defendants. The facts show that Begandy received continuous treatment and care for his arm injury. At his initial appointment on July 29, 2019, CRNA Gasser and a Nurse Assistant rendered medical care - Gasser examined his arm and ordered a picture and urgent consult, as well as pain medication, ice, and a sling. ECF No. 50, ¶¶ 12-23. The two times Begandy filed a Sick Care Request because of pain in his arm, he was seen by a medical professional no more than two days later. Id., ¶¶ 9, 32. For the two months before his surgery and sometime after, he received pain medication and was relieved of employment within the prison. Id., ¶¶ 23, 25, 32, 35, 37, 39-40. He had an x-ray on August 5, 2019, consultation with the orthopedic surgeon on August 29, 2019, an MRI on September 4, 2019, and surgery on September 27, 2019. Id.,¶¶ 26, 29, 31,33.
Courts have routinely found that regular assessment, treatment, and care like that provided in this case do not support a finding of deliberate indifference under the Eighth Amendment. See, e.g., Payo v. Stechschulte, 2022 WL 912588, at *7 (W.D. Pa. Mar. 29, 2022) (No deliberate indifference found where it was undisputed that “Plaintiff was seen, evaluated and treated on a regular basis and was prescribed medication as medically needed.”); Gause, 339 Fed.Appx. at 135 (Deliberate indifference standard unmet where “[Plaintiff s] medical records show that he was seen many times by the prison medical staff and received medicine, physical therapy, and even treatment outside of the prison,” thus establishing that “[Plaintiff] received medical care.”).
The facts are also insufficient to show that any delay in Begandy's care constituted “a continuation of an ineffective and/or painful treatment in violation of the Eighth Amendment.” Williams v. Kort, 223 Fed.Appx. 95, 100 (3d Cir. 2007). As detailed in the amended complaint, Begandy filed a Sick Call Request because of pain only twice, and each time he received care shortly after. ECF 50., ¶¶ 9, 32. And although Begandy alleges that he went without pain medication for eight days, this does not amount to deliberate indifference when viewed in the context of the totality of the care he received. See Williams, 223 Fed.Appx. 95 (eleven months between injury and surgery not a constitutional violation where record shows sufficient medical treatment); McCloskey v. Welch, 803 Fed.Appx. 578, 581 (3d. Cir. 2020) (medical director was not deliberately indifferent where Plaintiff, who had fractured his intramedullary rod on June 3, 2013, received an x-ray on June 14, 2013, and surgery eight weeks after the injury but no continuous medical care in-between).
The amended complaint also fails to allege facts to infer “a delay of medical treatment for non-medical reasons.” Williams, 223 Fed.Appx. at 100. See also McCloskey, 803 Fed.Appx. at 581. Begandy asserts that Dr. Hartwell and Oliver-Harmon's conduct was improperly motivated by “the cost of sending plaintiff to the Emergency Room” because Wellpath emphasizes cutting costs as a feature of its Medical Plan. ECF Nos. 76, p. 10; 47-3. Although cost can be an improper motivating factor evidencing deliberate indifference, cost considerations alone are not dispositive of a constitutional violation. Compare, e.g, Winslow v. Prison Health Servs., 406 Fed.Appx. 671, 675-76 (3d Cir. 2011) (“[Plaintiff] does not have a constitutional right to unlimited medical care of his choosing, free from all considerations of cost.”).
Here, Begandy alleges that he was told that his tom bicep tendon should have been repaired within two weeks of his injury to maximize his chances for an optimal recovery. But he acknowledges that he was seen and treated immediately after he sustained his injury. Although he was not immediately sent to the hospital emergency room, he acknowledges that an “urgent” consult was promptly ordered and executed. He was evaluated by a specialist, Dr. Seon at UPMC Orthopedic and Sports Medicine in Erie, on August 29, 2019, exactly one month after his injury, and underwent a surgical repair of his tom bicep on September 27, 2019. These facts do not support a delay in care sufficient to rise to the level of an Eighth Amendment violation or that cost considerations caused any delay. The initial decision to assess and treat Begandy in the prison medical department rather than to immediately send him to the emergency room was a medical judgment. The amended complaint alleges no facts to support Begandy's conclusory allegation that this judgment was improperly influenced by cost considerations.
It is also unclear what role Dr. Hartwell played in the emergency room decision. Begandy suggests that Dr. Hartwell was responsible for not sending him to the emergency room, but all that is known from the amended complaint is that, after Begandy asked if he would go to the emergency room, Gasser left the room for “a few minutes” before returning to tell Begandy that he would not. Id., ¶ 18. Likewise, nothing in the record supports an inference that Oliver-Harmon improperly delayed Begandy's treatment. Begandy points to the seven-day period between his injury and Oliver-Harmon's confirming the order for an urgent consultation. The facts alleged, however, fail to demonstrate that this delay was undue or improperly motivated by non-medical factors. Oliver-Harmon's actions complied with Wellpath and the DOC's sevenday policy. ECF No. 47-4. Thus, while Begandy may disagree with the course of treatment he received for his injury, he fails to establish that this treatment was constitutionally deficient. See, e.g., Payo, 2022 WL 912588, at *8 (“Without more, however, his disagreement does not support an Eighth Amendment claim or demonstrate deliberate indifference to his serious medical needs.); Young v. Quinlan, 960 F.2d 351, 358 n. 18 (3d Cir. 1992) (“an inmate's disagreement with prison personnel over the exercise of medical judgment does not state a claim for relief.”).
Begandy's deliberate indifference claim also fails against Oliver-Harmon because his allegations do not show that she knew or should have known that Begandy was receiving insufficient treatment. “‘To state an Eighth Amendment claim of deliberate indifference against' a corrections healthcare administrator, [Begandy] must show that she ‘possessed actual knowledge or a reason to believe that prison doctors or their assistants [were] mistreating (or not treating) him.” Trainor v. Wellpath, et al., 2021 WL 3913970, at *10 (W.D. Pa. Sept. 1, 2021) (citing Spruill v. Gillis, Ml F.3d 218, 236 (3d Cir. 2004)) (internal citations omitted). In Spruill, the Court of Appeals explained the rationale for this standard as follows:
If a prisoner is under the care of medical experts ... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a non-medical prison official liable in a case where a prisoner was under a physician's care would strain this division of labor. Moreover, under such a regime, non-medical officials could even have a perverse incentive not to delegate treatment responsibility to the very physicians most likely to be able to help prisoners, for fear of vicarious liability.Spruill, 372 F.3d at 236.
The facts similarly cannot show that the three-week delay in physical therapy constituted an Eighth Amendment violation. Three days after Begandy wrote to Smock asking about the delay in his physical therapy, Smock responded. ECF 51-1. She explained that SCI-Albion did not have the ability to provide physical therapy as often as he required it but that she was looking into alternatives. ECF No. 51-1. Efforts to accommodate Begandy's physical therapy needs were successful as his physical therapy began at SCI-Laurel Highlands by “approximately” December 12, 2019 - about three weeks after Dr. Seon's physical therapy order. ECF No. 50, ¶ 44. The facts alleged do not support an inference that the time it took medical personnel to arrange and accommodate Begandy's physical therapy requirements was unduly delayed, adversely affected Begandy, or otherwise represented deliberate indifference to a serious medical need.
Moreover, HSA Oliver-Harmon and CHCA Smock are unquestionably administrators. See Thomas v. Dragovich, 142 Fed.Appx. 33, 39 (3d Cir. 2005)); Fantone v. Herbik, 528 Fed.Appx. 123, 128 n.6 (3d Cir. 2013); Roberts v. Tretnick, 2014 WL 4218249, *3-4 (W.D. Pa. 2014); McEachin v. Wilson, 2009 WL 5206008, *13 (W.D. Pa. 2009). Begandy was initially assessed and treated by prison medical personnel. He came under the care of Dr. Seon on August 29, 2019, and Dr. Hartwell's first alleged involvement in Begandy's treatment occurred on September 11, 2019, when she signed off on his MRI report. ECF No. 50, ¶ 31. The facts alleged in the amended complaint demonstrate that Begandy received regular care by medical personnel after his injury and do not support an inference that Oliver-Harmon or Smock had “reason to believe that the prison doctors were either mistreating or not treating [Begandy].” Fantone, 528 Fed.Appx. at 128. And even if Oliver-Harmon or Smock “could have been more helpful to [Begandy] by undertaking” certain “actions ... a failure to undertake such actions or others like them does not constitute deliberate indifference and may not be legally recognized as such.” Thomas, 142 Fed.Appx. at 39 (3d Cir. 2005).
At best, Begandy's allegations support his belief that his injury warranted treatment different from what he received. A prisoner's differences of opinion with medical personnel do not support an inference of deliberate indifference. The facts alleged in the amended complaint do not support a plausible inference that Hartwell, Oliver-Harmon, or Smock “deliberately or intentionally denied reasonable requests for medical treatment or knew of and disregarded an excessive risk to [Begandy's] health.” Payo, 2022 WL 912588, at *7. Accordingly, Begandy s Eighth Amendment claim against Hartwell, Oliver-Harmon, and Smock should be dismissed.
b. The claim against Smock also fails based on her lack of personal involvement.
Smock also asserts that she cannot be liable under Section § 1983 because the amended complaint does not allege facts to support her personal involvement in the conduct that allegedly led to Begandy's claimed injury. ECF No. 52, p. 10-11. The Court agrees.
To prevail on a claim pursuant to 42 U.S.C. § 1983, a plaintiff “must show that each and every defendant was ‘personally] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (emphasis added) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)) (emphasis added). This means that each defendant must have played an “affirmative part” in the complained-of misconduct. Iqbal, 556 U.S. at 677 (“In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). Allegations that broadly implicate multiple defendants without delineating individual conduct are legally insufficient. See Van Tassel v. Piccione, 608 Fed.Appx. 66, 69-70 (3d Cir. 2015). Absent specific allegations that a defendant helped deprive the plaintiff of a constitutional right, dismissal of the claim is appropriate. See e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to 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).
Where the alleged personal involvement only relates to a prison official's participation in the grievance process, it is “well established that the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Mearin, 951 F.Supp.2d at 782. See also Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”). As such, courts have routinely dismissed civil rights claims against healthcare prison officials whose only involvement in the alleged deliberate indifference stemmed from their participation in the grievance process. See Stevens v. Winger, 2021 WL 2075585, at *4 (W.D. Pa. May 24, 2021) (dismissing claims against prison health care administrator whose only awareness of the alleged misconduct was based on receipt of a grievance); Brown v. Nicholson, 2020 WL 610523, at *6 (E.D. Pa. Feb. 7, 2020) (dismissing claim against prison CHCA who “denied [plaintiff s] grievance [and] staffed] that he had received appropriate medical attention for his reported complaint”); 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.”).
Here, Smock's only involvement in the alleged delay in the surgical repair of Begandy's tom bicep tendon was her responding to the grievance Begandy submitted on April 5, 2019, which complained that he had not been seen by a doctor or had diagnostic tests. ECF No. 47-9. In her response denying the grievance, Smock describes the treatment he had received to date and expressed that this treatment “was appropriate for the type of injury received and [he] w[as] referred to a Specialist for evaluation.” Id. Smock's participation in the grievance process does not support a claim for deliberate indifference regarding a delay in surgery because it does not constitute personal involvement in the conduct upon which the claim is based. See e.g., Fantone v. Herbik, 528 Fed.Appx. 123 (3d Cir. 2013) (the Third Circuit concluded that a prison administrator's denial of an inmate's grievance with respect to his medical care does not amount to deliberate indifference to his serious medical needs where there is no evidence that the administrator “had a reason to believe that the prison doctors were either mistreating or not treating [plaintiff], or that they inappropriately handled his grievances.”). Smock responding to Begandy's inmate request slip - her alleged personal involvement in the physical therapy delay -is likewise insufficient to show personal involvement. See, e.g.,Rieco v. Moran, 633 Fed.Appx. 76, 80 (3d Cir. 2015) (response to inmate request slip does not suffice to show personal involvement). See also ECF Nos. 50, ¶¶ 43-44; 47-2; 76, p. 11. Begandy's Eighth Amendment claim against Smock also should be dismissed because the facts alleged do not support her involvement in any constitutional deprivation.
Begandy also discusses Smock's involvement in allegedly delaying his physical therapy treatment. ECF Nos. 50, ¶¶ 43-44; 47-2; 76, p. 11. His physical therapy is irrelevant to the claim of a delay or denial of surgical intervention.
c. The facts alleged do not support that Wellpath maintained a policy, practice, or custom that was the moving force behind any constitutional deprivation.
Wellpath argues that Begandy has not alleged facts to support that a final policymaker adopted or ratified a policy, practice, or custom that was the moving force behind a violation of his constitutional rights and that it cannot be vicariously liable under 42 U.S.C. § 1983 for the conduct of others. See ECF No. 54, pp. 13-17. Begandy asserts that Oliver-Harmon and Dr. Hartwell's conduct evinces Wellpath's custom of allowing its medical staff to act with deliberate indifference to prisoners' medical needs. ECF Nos. 50, ¶¶ 81-84, 90; 76, 10. Begandy also contends that Wellpath's deliberate indifference is manifested by its choice to “couch its policies, procedures, protocols and/or customs under PA DOC policy.” ECF No. 50, ¶ 80.
“[T]he touchstone of the § 1983 action against a government body,” or a non-govemment entity performing a state function, such as Wellpath, “is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution.” Monell v. Department of Social Services, 436 U.S. 658, 690 (1978)). As a threshold matter, the insufficiency of Begandy's allegations to state a claim against the individual Defendants preclude a claim that a policy, practice, or custom caused an individual Defendant's constitutional violation. Absent plausible allegations of a constitutional violation, a plaintiff cannot allege that a company's official policy is responsible for the conduct that caused the alleged constitutional violation and thus cannot succeed on a Section 1983 claim. See e.g., Stankowski v. Farley, 251 Fed.Appx. 743, 748 (3d Cir. 2007) (Because Plaintiff could not allege that “the nurses' practice of not distributing bandages until the patient sees a doctor” violated the Eighth Amendment, he could not show that the nurses' employer “adopted any policy, custom or practice that caused any constitutional violations”).
Begandy's allegations also fail to support the other elements necessary to state a claim under Monell. First, a Section 1983 claim against Wellpath cannot proceed “under a theory of respondeat superior or vicarious liability.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003) (citing Monell, 436 U.S. at 691). To hold Wellpath liable, Begandy must plead facts to show “that there was a relevant [Wellpath] policy or custom, and that the policy caused the constitutional violation [he] allege[s].” Id. at 584 (citing Bd. of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997). See Sims v. Wexford Health Sources, 635 Fed.Appx. 16, 20 (3d Cir. 2015).
Policy is created “when a ‘decisionmaker possess[ing] final authority to establish a municipal policy with respect to the action' issues an official proclamation, policy, or edict.” McTernan v. City of York, PA, 564 F.3d at 658 (3d Cir. 2009) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990)). This “decisionmaker” must have “final, unreviewable discretion to make a decision or take an action,' and who is or is not a policymaker is determined by reference to state law.” Ginyard v. Del-Prete, 2021 WL 3476601, (W.D. Pa. July 9, 2021), report and recommendation adopted, 2021 WL 3472150 (W.D. Pa. Aug. 6, 2021) at *5 (quoting Andrews, 895 F.2d at 1481). When conduct cannot be attributed to company policy, it can “become[] corporate custom when it is ‘so widespread as to have the force of law.'” Id. (quoting Bd. of County Comm'rs of Bryan County, 520 U.S. at 404).
Begandy generally claims that Wellpath maintained policies and customs that authorized or condoned deliberate indifference to his serious medical need. Specifically, he alleges that Wellpath's policies or customs prevented or delayed his access to necessary emergency room and surgical services. ECF No. 50, ¶¶ 80-84. As purported support for this claim, Begandy points to the PA DOC policy requiring Wellpath to approve off-site medical services within seven days. Id., ¶¶ 65, 80. Begandy also asserts that Wellpath was deliberately indifferent because it “chose cost over care” Id., ¶ 56. He quotes from Wellpath's Request for Proposal (“RFP”), which states that Wellpath's Medical Program includes “cost reductions in ‘off-site services' and ‘all health care services delivered in the most cost-efficient method.” Id.', ECF No. 47-3.
These allegations fail to show that Wellpath was deliberately indifferent to Begandy's medical needs or that its policies or customs caused its employees to be deliberately indifferent to his needs. First, DOC's placing a time limit on Wellpath's approval of off-site medical services promotes rather than negates timely treatment and other medical services. The policy does not state that services are not to be authorized before the expiration of seven days. And, as discussed above, the chronology of treatment provided to Begandy does not support a finding of unconstitutional delay. Thus, the formal policies identified by Begandy do not support a Monell claim because none can be said to have resulted in a constitutional violation. See Ginyard, 2021 WL 3476601, at *5; McCloskey, 803 Fed.Appx. at 583 (3d Cir. 2020); Perez v. Larson, 2020 WL 5507227, at *3 (M.D. Pa. Sept. 11, 2020) (quoting Berg v. County of Allegheny, 219 F.3d 261, 275-76 (3d Cir. 2000) (“Once a § 1983 plaintiff identifies a municipal policy or custom, he must ‘demonstrate that, through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.'”)). Finally, to the extent Begandy relies on other conduct that he attributes to “custom” having the force of policy, his claim fails because he does not allege facts to support that the custom was condoned by a final policymaker or that it resulted in a violation of his Eighth Amendment rights. See Andrews, 895 F.2d at 1481 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) (an official's decisions are not corporate policy if “constrained by policies not of that official's making” or “subject to review by the [corporation's] authorized policymakers”). Accordingly, it is further recommended that Begandy's Section 1983 claim against Wellpath be dismissed.
2. The state claim for negligence/medical malpractice cannot proceed without a certificate of merit.
Count I of the amended complaint asserts a state law negligence claim against all Defendants. Begandy's original complaint labeled this claim as one for “professional negligence.” ECF No. 6, p. 6. His amended complaint omitted the reference to “professional” in an apparent attempt to evade the requirement that he file a certificate of merit (“COM”) as to each Defendant as required by 231 Pa. Code Rule 1042.3(a). Defendants contend this claim remains in substance a medical malpractice claim that must be dismissed based on Begandy's failure to file a COMs. ECF Nos. 52, pp. 7-8; 54, pp. 6-11. In his response to the pending motions, Begandy does not dispute that he needs a COM concerning each Defendant, but requests that his negligence claim be spared because of the challenges inmates face in trying to obtain COMs. ECF 76, pp. 3-5. Count I should be dismissed as to each Defendant based on Begandy's failure to file a COM.
Dismissal based on Begandy's failure to file COMs makes it unnecessary to reach Defendants' arguments concerning the merits of Begandy's negligence claims or Wellpath's argument that it cannot be liable for punitive damages. See ECF No. 54, pp. 23-24.
Rule 1042.3(a) of the Pennsylvania Rules of Civil Procedure states:
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard ... the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the .. . party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or ...
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or .. .
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.231 Pa. Code Rule 1042.3(a)
Begandy alleges that the medical care provided by each of the individual Defendants fell below the accepted standard of care applicable to each of their positions. He alleges that Hartwell, Gasser, Oliver-Harmon, and Smock “failed to possess and/or exercise adequate medical skills, knowledge, experience and techniques for the proper treatment of plaintiff' and that Wellpath “failed to ensure quality medical care ... and employ competent medical staff.” ECF No. 50, pp. 15-16. Because the negligence claim against each Defendant hinges on her or its alleged breach of a medical standard of care, Count I clearly presents a medical malpractice claim. See e.g., Grant v. Pennsylvania Dep't of Corr., 2021 WL 4312451, at *12 (W.D. Pa. Aug. 6, 2021), report and recommendation adopted, 2021 WL 3828146 (W.D. Pa. Aug. 27, 2021). To support such a claim, Begandy must establish that
(1) the [medical professional] owed a duty to the patient; (2) the [medical professional] breached the duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm.”Id. (quoting Doe v. Hosp, of Univ, of Pa., 546 F.Supp.3d 336 (E.D. Pa. 2021)).
Rule 1042.3 requires a plaintiff in a medical malpractice claim to file a COM coverihg each defendant who is the subject of the claim either with the complaint or within 60 days after its filing thereof. The COM must attest that there is a reasonable probability that the medical care described in the complaint fell outside of acceptable professional standards. The Third Circuit has held that Rule 1042.3 is substantive law that applies to professional malpractice claims based on Pennsylvania law that are asserted in federal court. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 262-64 (3d Cir. 2011) (citing Erie R.R. v. Thompkins, 304 U.S. 64 (1983)). Thus, for purposes of a motion to dismiss, Rule 1042.3 is applied as “controlling, substantive state law.” Scaramuzza v. Sciolla, 345 F.Supp.2d 508, 509-10 (E.D. Pa. 2004).
“[A] plaintiffs failure to comply with Rule 1042.3 requires dismissal of any malpractice claim.” Bennett v. PrimeCare Medical, Inc., 2018 WL 6072126, at *10 (M.D. Pa. Sept. 14, 2018). However, “Pennsylvania practice expressly provides plaintiffs with notice of Rule 1042.3 's requirements and an opportunity to cure any failure to file a certificate of merit before a matter is dismissed.” TranSystems Corp. v. Hughes Associates, Inc., 2014 WL 6674421, at *5 (M.D. Pa. Nov. 24, 2014). Rule 1042.6 of the Pennsylvania Rules of Civil Procedure states:
(a)... a defendant seeking to enter a judgment of non pros under Rule 1042.7(a) shall file a written notice of intention to file the praecipe and serve it on the party's attorney of record or on the party if unrepresented, no sooner than the thirty-first day after the filing of the complaint.Pa. R. Civ. P. 1042.6(a).
Under this rule, no judgment may be entered against a plaintiff for failure to timely file a COM unless the defendant has complied with its notice requirements. Schmigel v. Uchal, 800 F.3d 113, 124 (3d Cir. 2015) (“The condition of thirty days' notice prior to seeking dismissal of an action for failure to comply with the COM regime is substantive and must be applied in federal court.”).
Here, the Wellpath Defendants provided Begandy with the requisite notice on October 27, 2021, and Smock did so on November 15, 2021. ECF Nos. 17, 21. Although the Court recognizes the difficulties inmates face in obtaining a COM, they are not excused from the requirements of Rule 1042.3. The Court granted Begandy numerous extensions of the deadline to file his COMs. Despite these extensions, he has failed to file a COM as to any Defendant. Given this failure, Count I should be dismissed as to all Defendants. Bennett, 2018 WL 6072126, at *10.
Smock argues, alternatively, that she is immune from Begandy's negligence claim under the Eleventh Amendment doctrine of sovereign immunity. ECF No. 52, pp. 5-6. It appears Smock may fall within the category of medical professionals who are excepted from immunity under Pennsylvania state law. See Wareham v. Jeffes, 564 A.2d 1314 (Pa. Commw. Ct. 1989) (holding that a health care administrator fell within the “medical professional” exception to Eleventh Amendment immunity because “his function as chief health care administrator encompassed providing health care services to inmates pursuant to physicians' orders”). However, as Begandy's medical negligence claim against Smock should be dismissed based on his failure to file a COM, the Court need not reach this issue.
Begandy's response clarifies that he also asserts a corporate negligence claim against Wellpath. ECF No. 76, p. 5. Under the Pennsylvania state law doctrine of corporate negligence, a healthcare provider such as Wellpath can be directly liable “if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being.” Thompson v. Nason Hosp., 527 Pa. 330, 339 (1991); see also Hyrcza v. West Penn Allegheny Health Sys., Inc., 978 A.2d 961 (Pa. Super. 2009) (extending the doctrine of corporate liability to healthcare providers); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998) (holding that corporate liability applies to HMOs).
This clarification does not save his malpractice claim against Wellpath. “Pennsylvania law requires that a plaintiff alleging corporate negligence based on a licensed professional's deviation from the standard of care provide a certificate of merit.” Beckwith v. Blair Cnty.,2018 WL 2186421, at *3 (W.D. Pa. May 11, 2018). Accordingly, Begandy's claim of corporate negligence also should be dismissed for his failure to file a COM.
E. Further leave to amend would be futile.
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should 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). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, Begandy has alleged a detailed chronology of the facts upon which he bases his claims that belies any basis for an Eighth Amendment “deliberate indifference” claim. His own allegations demonstrate that he received a level of care that plainly satisfies constitutional standards. It is apparent that no other factual allegations could alter this outcome. And Begandy has already availed himself of the opportunity to amend his pleading in response to the Defendants' motions to dismiss his original complaint. Because further amendment would be futile, it is recommended that Begandy not be granted leave to file a second amended complaint.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that the Court GRANT both the Wellpath Defendants' motion to dismiss (ECF No. 53) and Smock's motion to dismiss (ECF No. 51).
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections will have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).