Opinion
Civil Action No. 19-1385
10-22-2020
COREY BRACEY, Plaintiff, v. COREY VALENCIA, Corrections Officer I, MCLAREN MEDICAL LABORATORY, M.D. DENNIS W. SPENCER, Laboratory Director, WARD MEDICAL LABORATORY, M.D. WILLIAM G. FINN, Laboratory Director, GARCIA CLINICAL LABORATORY, M.D. LORENZ P. KIELHORN, Laboratory Director, CHRISTOPHER COLGAN, Corrections Officer I, and Lieutenant Morris, Defendants.
District Judge William S. Stickman
Re: ECF Nos. 60, 63, 66 and 71 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Corey Bracey brings this pro se civil rights and defamation action pursuant to 42 U.S.C. § 1983 for the alleged violation of his rights resulting from an altercation with corrections officers at the State Correctional Institution - Greene ("SCI - Greene"). Pending before the Court are three motions to dismiss filed on behalf of Garcia Clinical Laboratory ("Garcia") and Lorenz P. Kielhorn ("Kielhorn"), ECF No. 60; William G. Finn ("Finn") and Ward Medical Laboratory ("Ward"), ECF No. 63; and McClaren Medical Laboratory ("McClaren") and Dennis W. Spencer ("Spencer"), ECF No. 66 (collectively, "the Medical Defendants"). Plaintiff has also filed a Motion Pursuant to Pa. R. Civ. P. 1042.6, ECF No. 71.
Also pending before the Court is a Motion to Dismiss filed on behalf of Corrections Officers Corey Valencia, Christopher Colgan and Lieutenant Morris. ECF No. 56. The motion is separately addressed.
For the following reasons, it is recommended that the Court grant each Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Additionally, because Plaintiff's pending claims against the Medical Defendants fail to state a plausible claim for relief, it is recommended that Plaintiff's Motion Pursuant to Rule 1042.6, seeking a determination that a certificate of merit is not required, be denied as moot.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
In the operative Amended Complaint, Plaintiff alleges that Corrections Officer Kuzma was bitten in the forearm during a physical altercation with corrections officers at the State Correctional Institution at Greene ("SCI - Greene") on October 17, 2017. ECF No. 39 ¶ 30. The Department of Corrections ("DOC") requested and was granted a state court order to test Plaintiff for communicable diseases to assess Kuzma's risk of illness. Id. ¶ 45. A blood sample was collected from Plaintiff and submitted to the Medical Defendants for testing. Id. ¶ 46. The Medical Defendants issued a laboratory report on or about November 1, 2017 that indicated Plaintiff tested positive for Hepatitis C. Because of the positive result for a communicable disease, Plaintiff's criminal charges arising out of the assault were upgraded. However, the upgraded charges were withdrawn when additional testing revealed that the initial test yielded a false positive result. Id. ¶¶ 47 - 52.
Plaintiff alleges that the false positive result constitutes defamation per se. Id. ¶ 56. Upon receipt of the false positive, the DOC entered Plaintiff's name on a log of prisoners suffering from Hepatitis C and he was included in a prisoner class action lawsuit relative to the DOC's treatment protocol for Hepatitis C. Id. ¶ 52. Plaintiff alleges that as a result of the false positive test result, he has suffered depression, sleepless nights, loss of appetite and confusion. In addition, Defendant Christopher Colgan ("Colgan") informed other inmates that Plaintiff was infected with Hepatitis C, which resulted in "ridicule, mockery and isolation." Id. ¶ 53.
Plaintiff alleges two claims against the Medical Defendants: (1) defamation and (2) "falsely reporting he had a loathsome disease that exposed Plaintiff to ridicule, mockery, isolation, heightened criminal charges, and mental anguish in violation of the Fourteenth Amendment." Id. ¶ 56. These claims are set forth in the last three paragraphs of the Amended Complaint. Id. ¶¶ 54-56.
In response to Plaintiff's claims, Defendants Finn and Kielhorn filed a Notice of Intention to Enter Judgment of Non Pros, ECF Nos. 15 and 22, and Defendants McClaren and Spencer filed a Motion to Compel Plaintiff to File Certificate of Merit, each raising Plaintiff's failure to comply with Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, ECF No. 24. Finn and Ward then filed a Preacipe for Entry of Non Pros Pursuant to Pa. R.C.P. 1042.7. ECF No. 26. The Medical Defendants contend that pursuant to Pennsylvania law, because Plaintiff's claims place at issue the standard of care owed by medical providers, he must file a certificate of merit.
Pennsylvania Rule of Civil Procedure 1042.3 requires a plaintiff to file a certificate of merit in any professional negligence action for each defendant within sixty days of the filing of the complaint. The certificate must be signed by the party or an attorney, and certify 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, orPa. R. Civ. P. 1042.3(a). The rule applies to pro se and represented plaintiffs alike and constitutes a rule of substantive state law with which plaintiffs in federal court must comply. See Iwanejko v. Cohen & Grigsby, P.C., 249 F. App'x 938, 944 (3d Cir. 2007) (nonprecedential) (holding that district courts must "appl[y] Rule 1042.3 as substantive state law").
(2) the claim that the defendant deviated form 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.
The Court subsequently issued an Order striking the praecipe for non pros because a praecipe was not the appropriate vehicle to place the issue before the Court. ECF No. 30. Defendants Finn, Ward, Kielhorn and Garcia thereafter filed Motions to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, citing Plaintiff's continued failure to comply with Rule 1042.3. ECF Nos. 31 and 34. Plaintiff followed with an Amended Complaint adding claims unrelated to the medical defendants, which rendered the motions to dismiss moot. ECF Nos. 39 and 40.
Plaintiff next filed self-styled Certificates of Merit as to each Medical Defendant attaching a DOC's psychiatrist's "summary of clinical encounters" for the period March 18, 2018 through September 27, 2018. ECF No. 53. The notes reflect that on May 29, 2018, six months after the disputed test, Plaintiff expressed "[c]omplaints of anxiety continued but now related to a Hepatitis C diagnosis. The patient expressed confusion about the accuracy of his diagnosis and was referred back to medical. This continued to be the area of focus for anxiety for the patient during our encounters over the next 2 months before a negative antibody test confirmed he did not have Hepatitis C." ECF No. 53-1 at 2-3.
Plaintiff also filed a Motion to Extend Time to File a Certificate of Merit and requested that the Court consider as timely filed his self-styled certificates of merit. ECF No. 54. Plaintiff argued that a certificate of merit is not necessary to plead and prove defamation claims. Plaintiff also asserted that in requiring a certificate of merit, the Court broadly interpreted his claim as one alleging claims for negligence/professional liability. Id.
The Court reviewed the documents filed by Plaintiff and concluded that none met the requirements of Pennsylvania Rule of Civil Procedure 1042.3 because the Plaintiff failed to attach a written statement from "an appropriate licensed professional" declaring that any defendant's conduct or the conduct of person under his direction fell below the standard of care in bringing about the alleged harm, or a statement by him that no expert testimony will be necessary to prosecute the claim against the defendants. Pa. R. Civ. P. 1042.3(a)(1)-(3). ECF No. 55. That said, the Court noted that to the extent that Plaintiff brings defamation and Fourteenth Amendment claims related to medical care that do not require expert testimony, Plaintiff was free to state as much in compliance with the Rule. Id.
Thereafter, the Medical Defendants filed the three pending Motions to Dismiss raising (1) the expiration of the applicable statute of limitations as to Plaintiff's defamation claim; (2) the absence of state action as to Plaintiff's Fourteenth Amendment claim; (3) Plaintiff's failure to file a certificate of merit attesting to the Medical Defendants' failure to comport with applicable standards of care relative to conducting the blood work; and (4) a request that the Court decline to exercise supplemental jurisdiction if any state law claims remain as to the Medical Defendants. ECF Nos. 60, 63 and 66.
Plaintiff responded by filing the pending Motion Pursuant to Pa. R. Civ. P. 1042.6, asking the Court to exercise "supplemental jurisdiction over state tort claims of third-party medical negligence against independent contractors." ECF No. 71. Plaintiff argues that because he did not have a patient or client relationship with the Medical Defendants, Pennsylvania law does not require that he comply with the certificate of merit requirement. Id.; and see ECF Nos. 72 and 80.
Plaintiff filed nearly identical Responses to the pending Motions to Dismiss. ECF Nos. 82-84. In each, Plaintiff concedes his defamation claim is barred by the applicable statute of limitations and confirms that he did not allege a malicious prosecution claim against the Medical Defendants. See, ECF Nos. 82 at 3. As to his Fourteenth Amendment claim, Plaintiff states his understanding of the law is insufficient to respond to the Medical Defendants' arguments regarding "state actor" status and so he asks the Court to independently resolve the issue. Id. at 1. Plaintiff repeats his contention that because he did not have a professional relationship as a patient or client with the Medical Defendants, Pennsylvania's certificate of merit requirement does not apply. Id. at 1-2. Finally, he requests that the Court retain supplemental jurisdiction over any remaining claims against the Medical Defendants based on ongoing proceedings against DOC Defendants Valencia, Colgan and Morris. Id. at 2-3.
In terms of Plaintiff's litigation experience, in this Court alone, Plaintiff has filed four previous prisoner civil rights actions: Bracey v. Leggitt, No. 09-cv-1002; Bracey v. Price, 09-cv-1662; Bracey v. Pennsylvania, Dep't of Corr., No. 11-cv-04; and Bracey v. Rendell, No. 11-cv-217.
The Medical Defendants oppose Plaintiff's Motion Pursuant to Rule 1042.6. ECF Nos. 87-89. The Medical Defendants contend that any claim challenging the conduct of contracted medical testing providers is subject to Pennsylvania's certificate of merit requirement. See e.g., ECF No. 87 at 2-4. Further, to the extent that Plaintiff appears to assert a third-party beneficiary contract claim in his responses to the Motions to Dismiss, the Medical Defendants counter that Plaintiff has not alleged facts to state a plausible claim under Pennsylvania law. See, e.g., ECF No. 88 at 5-6. Plaintiff has filed replies, ECF Nos. 93, 94 and 98.
The three Motions to Dismiss of the Medical Defendants are now ripe for consideration.
B. STANDARD OF REVIEW
1. Motion to Dismiss
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 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. 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 set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face," id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231, 234 (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 but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of 'the necessary element[s]' [of his claim]").
2. Pro Se Pleadings and Filings
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); United States 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. Department 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. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Still, there are limits to the court's procedural flexibility — "pro se litigants still must allege sufficient facts in their complaints to support a claim .... they 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, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Negligence and Third-Party Beneficiary Claims
In the Amended Complaint, Plaintiff alleges two "causes of action" against the Medical Defendants: defamation and a related Fourteenth Amendment claim. ECF No. 39 ¶¶ 54-56. Despite this clear identification of the two claims in the Amended Complaint, Plaintiff makes reference in his responses in opposition to the Motions to Dismiss to professional liability claims against the Medical Defendants. ECF No. 82 at 2-3; ECF No. 83 at 2-3 and ECF No. 84 at 203. Further, Plaintiff also appears to imply that he is the third party beneficiary to the contract between the DOC and the Medical Defendants. Id.
It is well established that a plaintiff may not amend his complaint in a brief in opposition in a motion to dismiss. See Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) ("[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." (alteration in original) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)); Li v. Metropolitan Life Ins. Co., No. 16-1845, 2016 WL 5477994, at *3 (D.N.J. Sept. 26, 2016) (disregarding allegations that were not included in complaint); Eli Lilly & Co.. Roussel Corp., 23 F. Supp. 2d 460, 493 (D.N.J. 1998) ("Since a 'complaint may not be amended by the briefs in opposition to a motion to dismiss,' the Court must disregard these allegations.").
In this case, the Court declines to consider Plaintiff's purported negligence or third-party beneficiary claims because Plaintiff did not seek leave to amend the Amended Complaint to allege these new claims. For negligence and contract claims to be considered, leave to amend must be granted and Plaintiff must include them in an organized, amended complaint. In light of Plaintiff's pro se status, it is recommended that the Court grant him leave to file a Second Amended Complaint that clearly sets forth the factual basis for any legal claims against the Medical Defendants that are not otherwise dismissed with prejudice.
Whether such claims will relate back to the date of filing for purposes of the statute of limitations is not properly before the Court at this time.
2. Defamation Claims
"Pennsylvania, by statute, sets the statute of limitations for all claims sounding in defamation or invasion of privacy at one year. 42 Pa. Cons. Stat. Ann. § 5523(1). All such claims must be brought within one year of the date of publication." Ghrist v. CBS Broad., Inc., 40 F. Supp. 3d 623, 627 (W.D. Pa. 2014). Moreover, "Pennsylvania courts have further held that the same one year limitations period extends to any other tort claim based on a harmful publication, no matter the label placed on the cause of action." Id. at 628 (citing Evans v. Phila. Newspapers, Inc., 601 A.2d 330, 333 (Pa. Super. 1991)).
In his responses in opposition to the pending Motions to Dismiss, Plaintiff states that he first learned that his test result was in error in July 2018, and that he failed to file this action until October 2019. ECF Nos. 82-84 at 3. As such, Plaintiff concedes that his state law defamation claim is time barred. Id. Because the bar to Plaintiff's claim cannot be overcome through further amendment of his complaint, it is recommended that the defamation claim be dismissed with prejudice.
3. Fourteenth Amendment Claims
Section 1983 provides for redress for violations of federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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.Id. "Section 1983 is not a source of substantive rights," but is merely a means through which "to vindicate violations of federal law committed by state actors." Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the conduct complained of was committed by persons acting under color of state law; and (2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United States. See Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
Here, the Court need not consider the Medical Defendants' status as state actors because Plaintiff fails to allege facts giving rise to a violation of his Fourteenth Amendment rights. Simply stated, the imposition of a stigma or an injury to one's reputation is not sufficient to state a claim for a due process violation. See Paul v. Davis, 424 U.S. 693, 709, 712 (1976); Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984). A plaintiff must allege a stigma plus "a change or extinguishment of a right or status guaranteed by state law or the Constitution." Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul, 424 U.S. at 712). In this case, Plaintiff alleges that upgraded criminal charges against him were withdrawn before trial based on repeated testing that disclosed he had not contracted Hepatitis C. In addition, Plaintiff alleges he suffered emotional distress, had his name added to a log of inmates with communicable diseases, had his condition publicized by a corrections officer, and his name was included in a class action lawsuit seeking medical treatment for all inmates suffering from Hepatitis C. Even assuming Plaintiff suffered additional stigma associated when other inmates or corrections officials mistakenly believed he had tested positive for Hepatitis C, Plaintiff has not stated a claim because he has not suffered a deprivation of any other liberty or property right. Hersh v. Rellaham, 325 F. Supp. 3d 613, 616-17 (E.D. Pa. 2018) ("Outside the public employment context, [the 'stigma-plus'] standard generally requires an allegation that the defamation was 'coupled with an alteration in legal status.'") (citation omitted). Under the circumstances alleged, and given the absence of any alteration of his legal status, Plaintiff cannot set forth a plausible violation of his due process rights. Accordingly, it is recommended that the Court dismiss Plaintiff's Fourteenth Amendment claim with prejudice.
The Medical Defendants have not addressed the required elements of a stigma-plus Fourteenth Amendment claim. Even so, the Court may address the sufficiency of Plaintiff's claim pursuant to its screening obligations under 28 U.S.C. § 1915(e)(2)(B)(ii). Section 1915(e)(2)(B)(ii) applies to all actions filed in forma pauperis and requires the Court to dismiss any complaint that fails to state a claim.
4. Leave to Amend
The court must allow amendment by the plaintiff in a civil rights case brought under Section 1983 before dismissing for failure to state a claim, irrespective of whether it is requested, unless doing so would be "inequitable or futile." Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile). Despite the recommended dismissal with prejudice as to Plaintiff's defamation and Fourteenth Amendment claims, the parties have recognized an attempted negligence and/or third-party beneficiary contract claim. Accordingly, it is recommended that the Plaintiff be granted leave to file an amended complaint to correct the deficiencies identified in this Report and Recommendation, if possible.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the Medical Defendants' Motions to Dismiss, ECF Nos. 60, 63 and 66, for failure to state a claim. Further, it is recommended that Plaintiff's defamation and Fourteenth Amendment claims be dismissed with prejudice, but that Plaintiff be granted a period not to exceed thirty (30) days to file a Second Amended Complaint to state a cognizable claim for negligence and/or a third-party beneficiary claim. Additionally, because Plaintiff's pending claims against the Medical Defendants fail to state a cognizable or plausible claim for relief, it is recommended that Plaintiff's Motion Pursuant to Rule 1042.6, ECF No. 71, be denied as moot. In the event Plaintiff files a Second Amended Complaint to allege a negligence claim, his obligation to file a certificate of merit may be addressed upon proper motion.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. 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.
Respectfully submitted,
/s/ Maureen P . Kelly
UNITED STATES MAGISTRATE JUDGE Dated: October 22, 2020 cc: The Honorable William S. Stickman
United States District Judge
Corey Bracey
GS 4754
SCI Phoenix
1200 Mokychic Road
Collegeville, Pa 19426
All counsel of record via CM/ECF