Opinion
CIVIL NO.: 1:19-CV-01941
01-14-2021
DARRYL C. BROWN, Plaintiff, v. PA DEPARTMENT OF CORRECTIONS, et al., Defendants.
(Judge Mariani) () REPORT AND RECOMMENDATION
I. Introduction.
Plaintiff Darryl C. Brown ("Brown") alleges that when he was incarcerated at State Correctional Institution Coal Township, Pennsylvania ("SCI Coal Twp."), he received medical care that was grievously lacking. Brown has amended his complaint, and three motions are pending. Two are motions to dismiss: one from a group of defendants associated with the Commonwealth of Pennsylvania's Department of Corrections ("the Corrections Defendants"), and the other from a group of defendants associated with private healthcare provider Correct Care Solutions ("the Medical Defendants"). The Corrections Defendants have also filed a motion to strike Brown's brief in opposition to their motion to dismiss.
We recommend that the court grant the two pending motions to dismiss, and dismiss some claims and sought remedies with prejudice, but afford Brown leave to amend his complaint again. We also recommend that the court deny the motion to strike as moot.
II. Background and Procedural History.
Brown began this action by filing a complaint on November 11, 2019. After some expedited discovery, Brown amended his complaint on April 3, 2020. See Doc. 27. Brown's first amended complaint is the operative complaint. Brown presents a host of claims; they are largely premised on Brown not receiving appropriate medical care when he was incarcerated at SCI Coal Twp. See id. Brown currently resides in Elizabethtown, Pennsylvania. Doc. 27 at ¶ 3.
In Counts One and Two, Brown asserts that certain Defendants have violated the Eighth Amendment by refusing to provide adequate medical care and should be held liable pursuant to 42 U.S.C. § 1983. Doc. 27 at ¶¶ 99-146. In Counts Three and Four, Brown asserts that certain Defendants have violated Article I, Section 13 of the Commonwealth of Pennsylvania's Constitution through their refusal to provide adequate medical care. Doc. 27 at ¶¶ 147-152. Count Five is a "respondeat superior or vicarious liability" claim against the "entity Defendants," Correct Care or Wellpath and SCI Coal Twp., for the provision of deficient medical care. Doc. 27 at ¶¶ 153-155. In Count Six, Brown asserts that all Defendants violated his "right to be free from conditions of confinement that are excessively harsh and/or punitive." Doc. 27 at ¶¶ 156-177. In Count Seven, Brown asserts that certain Corrections Defendants committed "[a] First Amendment violation and Fifth or Fourteenth Amendment due process violations" by stealing his "medical and other records." Doc. 27 at ¶¶ 178-201. In Count Eight, Brown asserts that the theft of these records constituted retaliation. Doc. 27 at ¶¶ 202-204. In Count Nine, Brown requests "attorney fees, costs and expenses." Doc. 27 at ¶¶ 205-209. In Count Ten, Brown brings "pendant state tort claims of medical malpractice under the PA MCARE Act" against certain Defendants. Doc. 27 at ¶¶ 210-227. In Count Eleven, Brown asserts under the Americans with Disability Act of 1990 and Section 504 of the Rehabilitation Act that certain Defendants failed to accommodate his disability. Doc. 27 at ¶¶ 228-245.
Count One targets treatment before Brown received an amputation on his right leg. Count Two targets treatment after the amputation.
Again, Count Three targets treatment before the amputation, and Count Four targets treatment after the amputation.
The Corrections Defendants are the Commonwealth of Pennsylvania's Department of Corrections, State Correctional Institution Coal Township, Secretary of Corrections John E. Wetzel, Michael Wenerowicz, Paul Noel, Thomas McGinley, Trisha Kelley, Karen Merritt, and Richard Wenhold. Further, the Corrections Defendants move on behalf of another group of defendants who the Corrections Defendants purport were not served. These defendants ("the Unserved Defendants") are "SCI Coal John Doe (1)," "SCI Coal John Doe, (2)," "SCI Coal John Doe, (3)" "SCI Coal John Doe, (4)," "Sargeant Shikes," "Nurse Big Red," "Nurse John Doe (5)," and "Nurse Jane Doe 1." The Medical Defendants are Correct Care Solutions / Wellpath - a private provider of healthcare to prisons - and several of its healthcare provider employees: Michael Moclock, MD, Mary Joy Monsalud, MD, Brian Davis, PA, and Nicole Boguslaw, MD.
On June 4, 2020, the Corrections Defendants filed their motion to dismiss. Doc. 45. On June 8, 2020, the Medical Defendants filed their motion to dismiss. Doc. 48. On October 1, 2020, the Corrections Defendants filed their motion to strike Brown's brief in opposition. Doc. 85.
All three motions are now ripe for decision. For the reasons discussed below, we recommend that the court grant the motions to dismiss, dismiss some claims and sought remedies with prejudice, afford Brown an opportunity to further amend his complaint, and deny the motion to strike as moot.
III. Motion to Dismiss Standards - Fed. R. Civ. P. 12(b)(2) and (5).
Federal Rule of Civil Procedure 12(b)(2) provides for dismissal for lack of personal jurisdiction. Once a defendant has raised lack of personal jurisdiction as a defense, the burden to prove that jurisdiction exists in the forum state lies with the plaintiff; a court "must accept all of the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir.2002). A plaintiff, however, must show "with reasonable particularity" enough contact between the defendant and the forum as to support a prima facie case in favor of the exercise of personal jurisdiction by the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1986); Mellon Bank v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). A Rule 12(b)(2) motion, therefore, "requires resolution of factual issues outside the pleadings, i.e., whether in personam jurisdiction actually lies." Clark v. Matsushita Elec. Indus. Co ., Ltd., 811 F. Supp. 1061, 1064 (M.D.Pa. 1993) (quoting Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984)).
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Rule 4 of the Federal Rules of Civil Procedure provides the requisite framework for properly serving a summons and complaint. FED. R. CIV. P. 4. When a plaintiff fails to comply with the procedural requirements of Rule 4, a party may move to dismiss a complaint for "insufficient service of process" under Rule 12(b)(5) of the Federal Rules of Civil Procedure. FED. R. CIV. P. 12(b)(5); see also McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-2555, 2014 WL 4672493, at *3 (M.D. Pa. Sept. 18, 2014) ("[A] Rule 12(b)(5) motion may be used to challenge the method of service or the lack of service."). Upon asserting a Rule 12(b)(5) challenge, "the party asserting the validity of service bears the burden of proof on that issue." Mitchell v. Theriault, 516 F. Supp. 2d 450, 452 (M.D. Pa. 2007) (quoting Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993)).
IV. Motion to Dismiss Standards - Fed. R. Civ. P. 12(b)(6).
In accordance with Federal Rule of Civil Procedure 12(b)(6), the court may dismiss a complaint for "failure to state a claim upon which relief can be granted." When reviewing a motion to dismiss under Rule 12(b)(6), the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, the court "consider[s] only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
"A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)." I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than "labels," "conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to 'show' such an entitlement with its facts." Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court "'must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'" Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
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."Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and "'however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
V. Motion to Strike Standards.
Under Federal Rule of Civil Procedure 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) "is 'designed to reinforce the requirement in Rule 8 ... that pleadings be simple, concise, and direct.'" Miller v. State Farm Mut. Auto. Ins. Co., No. 1:20-CV-00367, 2020 WL 3265345, at *2 (M.D. Pa. June 17, 2020) (quoting 5C Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1380 (3d ed. 2020 update)). "To that end, the purpose of any motion to strike should be to 'clean up the pleadings, streamline litigation, and avoid the unnecessary forays into immaterial matters.'" Id. (quoting United States v. Educ. Mgmt. Corp., 871 F. Supp. 2d 433, 460 (W.D. Pa. 2012) (citation omitted)).
"District courts possess great discretion in disposing of a motion to strike." Wirt v. Bon-Ton Stores, Inc., 134 F. Supp. 3d 852, 857 (M.D. Pa. 2015). But such motions are generally disfavored, and they should be denied unless the allegations at issue "'have no possible relation to the controversy and may cause prejudice to one of the parties, or ... the allegations confuse the issues in the case.'" Id. (quoting Dann v. Lincoln Nat. Corp., 274 F.R.D. 139, 142 (E.D. Pa. 2011)). The party moving to strike bears the burden of showing that the court should strike the challenged allegations. Miller, 2020 WL 3265345, at *2. "Thus, the movant must demonstrate that the matter falls within one of the categories listed in Rule 12(f)." Id.
VI. Facts.
A. Brown's Medical Conditions and Incarceration at SCI Coal Twp.
In August 2010, Brown was involved in a motorcycle accident, and he suffered severe injuries to his torso and to his limbs. Doc. 27 at ¶ 27. Shortly thereafter, he received surgery at an "outside hospital" to treat the wounds that he had suffered in the accident. Id. at ¶ 28. Brown also received follow-up surgeries at certain penal institutions that he does not specify (but that were not SCI Coal Twp.). Id. at ¶ 28. Brown also does not specify when, exactly, he entered confinement at these other penal institutions, but we infer from his complaint that he entered confinement sometime before November 2011. Id. at ¶ 29.
In 2011, Brown began to complain - presumably, to correctional officials - about the condition of his right leg (which had been grievously wounded in the accident), about the "severe and debilitating pain" that he was facing, and about how he needed appropriate care for his positive Hepatitis C Virus ("HCV") status. Id. at ¶ 74. Brown alleges that he sustained his complaints through at least 2017, and throughout the course of his incarceration at SCI Coal Twp.. See id. at ¶ 74. Brown also alleges that by November 2011, the penal system of the Commonwealth of Pennsylvania was aware that Brown was suffering from the Methicillin-resistant Staphylococcus aureus ("MRSA") infection. Id. at ¶ 29.
On July 13, 2012, Brown began his incarceration at SCI Coal Twp. Id. at ¶ 25. Brown asserts that at this point, his right leg was not able to heal properly without appropriate medical care. Id. at ¶ 28. Brown is also diabetic, id. at ¶ 37, and depends on insulin to manage this condition, id. at ¶ 38. Brown alleges that while at SCI Coal Twp., he "received . . . insulin injections solely because of [their] lesser cost [as opposed to pills]," and that the insulin "was injected by some Correct Care Solutions nurses or other Correct Care Solutions staff with used needles," with Brown being "denied his requests to observe the needle released from its envelope and newly placed on the syringe or module for injection into him." Id. at ¶ 39.
Brown alleges that by October 2012 (but likely earlier), the medical and lay personnel at SCI Coal Twp. had recognized that Brown had MRSA. Id. at ¶ 31. Brown also alleges that sometime in 2012, "it was discerned" that Brown had an HCV infection, and that this was "relayed to and known at" SCI Coal Twp. Id. at ¶ 34.
By at least 2013, Brown's right leg was exuding "blood, pus, lymph and other noxious-smelling liquids." Brown alleges that at this point he was suffering "from severe physical pain and depression and/or other severe emotional distress." Id. at ¶ 70.
B. HCV and the Alleged Standard of Care.
Brown asserts that "[s]ince well before [his] incarceration at SCI Coal . . . direct acting antiviral drugs (DAADs) have been known among the medical community to be most effective and capable of curing 95% of those with Hepatitis -C while less dangerous than other regimens used by PA DOC within the state correctional institutions." Id. at ¶ 50. Brown continues: "[a]t the time it had been widely known by infectious disease doctors and other physicians across the country that all stages of HCV are to be treated as soon as detected, no matter how severe the rating of said disease for any individual, with direct acting antiviral drugs (DAADs), same being truly efficacious and permitting a cure in 90 to 95% of cases." Id. at ¶ 51. Brown asserts that "[t]he standard of care identified across the United States requires and has required since [his] incarceration, immediate treatment of any grade of HCV with said direct acting anti-virals (DAADs) because delays in treatment for anyone with any level of fibrosis, inclusive of those with levels at F-1 or F-2, are known to cause severe harm or to unleash threats of severe harm." Id. at ¶ 52.
Brown alleges the following concerning HCV, which he describes as a "disabling, chronic and easily spread blood-borne disease that substantially impairs the digestive and circulatory system as it destroys the liver." Id. at ¶ 53. "HCV infections generally progress in two stages: acute infection, which occurs during the first six months, and chronic HCV." Id. at ¶ 54. "Chronic HCV can result in "liver damage, liver failure, liver cancer, or even death." Id. at ¶ 55. "Chronic HCV does not self-correct: individuals are infected for life unless their HCV is treated with appropriate medication." Id. at ¶ 58.
Brown also alleges the following concerning an alleged standard of care for treating HCV. "In October 2013, the FDA, formally approved new 'breakthrough' [DAADs] that can cure HCV in only 12 weeks with daily oral medication, at a 95% cure rate." Id. at ¶ 56. "A panel of experts known as the HCV Guidance Panel . . . provides guidelines that represent the standard of care within the medical community for treating HCV and it recommends treatment for all patients with chronic HCV, except those with short life expectancies that cannot be remediated by treatment, transplantation, or other directed therapy." Id. at ¶ 57.
According to Brown, the Pennsylvania Department of Corrections is well aware of the risks presented by HCV. The Pennsylvania Department of Corrections screens all inmates, id. at ¶ 59, and has established "a special [HCV] clinic, educational and preventive only," id. at ¶ 59. Previous litigation has made the Pennsylvania Department of Corrections aware of HCV's risks. Id. at ¶ 60. Further, "[a] medical physician, educator and spokesperson for the Pa DOC regarding infectious diseases had also spoken to DOC and peers publicly in 2013 to identify before many physicians the many risks raised by untreated or late treated HCV." Id. at ¶ 61. And in 2004, the Virginia Department of Corrections issued treatment guidelines for how to treat HCV. Id. at ¶ 68.
C. Brown's Attempts to Seek Treatment.
Brown alleges, in a general fashion, that he "repeatedly sought treatment of his HCV infection but was denied same" and that "he repeatedly sought care that would provide for all of his infections and more generally for the wounds on his right leg." Id. at ¶¶ 42, 70, 74, 103. Brown alleges that "[f]or months" he "complained continually of severe and debilitating pain in his right leg and about pus, blood and other exudates flowing from it, all of which were not treated adequately or at all at times." Id. at ¶ 104. Per Brown, "[h]is complaints continued as did the debilitating pain and flow and stench of pus, blood but were unattended by compliance with any medical standard of care by the medical or SCI staff." Id. at ¶ 105. Brown alleges that he issued these complaints "since 2011 through 2017 almost continually." Id. at ¶ 74. Brown alleges that he "also requested a wound specialist but was refused a consultation." Id. at ¶ 77.
D. Additional Allegations Concerning the Alleged Denials and Refusals to Treat Brown.
Brown alleges that though he attended a HCV clinic at SCI Coal Twp., his HCV infection was never treated, and he never received any medication for it. Id. at ¶¶ 40, 72; see also id. at ¶¶ 71, 76. Per Brown, "[d]uring his incarceration at SCI Coal, none of the above said symptoms were treated except by washing the wound and wrapping it, the wrapping having encapsulated the wounds and furthered the infectious harm to his leg which was truly appearing to be rotting." Id. at ¶ 75.
Brown asserts that he was handled in this way because Brown's fibrosis level was only at "F-2," and the Pennsylvania Department of Corrections had a "policy or practice" to deny "any and all treatment to any inmate with a Hep-C (HCV) infection that rated below an F-3 or F- 4 fibrosis status." Id. at ¶¶ 43, 45. Brown asserts that this "inferior protocol" was in place "solely for financial reasons," with the Department seeking to limit "the number of those inmates treated with any treatment whatsoever to those of F-3 and F-4 status," while also considering factors such as inmates' "expected longevity with HCV, their possibilities for early release and the likelihood that they could benefit from the protocol." Id. at ¶ 47. Brown also asserts that this policy "denied treatment with the use of any [DAADs] to all so infected inmates of any rating." Id. at ¶ 46.
Brown also alleges that "because of the short-term high costs of treating HCV-positive inmates in the Pa DOC system, medical Defendants Correct Care Solutions have deliberately instituted policies of rationing anti-HCV medication, to a small number of inmates, failing to comply with the nationwide standard of care for HCV." Id. at ¶ 62.
Brown also alleges, in a general fashion, that none of his infections "nor his diabetes were treated within appropriate standards of care during the entire time that [he] was incarcerated at SCI Coal Township." Id. at ¶ 41. Brown elaborates on the inadequate treatment of his HCV: "Plaintiff Brown was at the time he was incarcerated at SCI Coal with a fibrotic level of F-2 and the Pa DOC had knowledge of his F-2 level as did the Correct Care Solutions Defendants and those of SCI Coal." Id. at ¶ 63. "Resultant of Defendants' failure to treat HCV-positive inmates appropriately, Defendants have exposed the here named Plaintiff (and other HCV-positive inmates) to significant harm, and placed the entire prison population and the general public [at] greatly increased risk of serious harm and injury from HCV infection by spreading the infection throughout the prison population and beyond." Id. at ¶ 64.
Brown alleges that with respect to his HCV, Dr. Moclock told him that "he did not meet their criteria for treatment and/or that the treatments were too costly, that he should follow up with care once he was released." Id. at ¶ 103; see also id. at ¶ 76. Brown also alleges one specific encounter with Dr. Monsalud that happened on or about June 26 through July 1, 2017. According to Brown, he met with Monsalud, who told him to "stop crying" and "get up and walk." Id. at ¶ 106. Later, on July 10, 2017, Brown was being treated for bed sores and his leg infection. Brian Davis, a physician's assistant, asked Brown why he was just then seeking care. Brown told Davis about what Monsalud had said, and that he had submitted numerous sick call slips to corrections officers, who had returned the slips to him as "frivolous." Id. at ¶ 106.
On September 5, 2017, Brown filed a grievance about his exchange with Monsalud. On September 28, 2017, that grievance was denied as frivolous. Id. at ¶ 107. Brown asserts that he has "filed further grievances and reported the callous ignoring of his needs both orally as well as in writing through the chain of command." Id. at ¶ 118. Brown also asserts that he was "advised by [Defendant] John Doe #4 that he ought to watch what he said, that he could end up in the Restrictive Housing [Unit] (RHU) or, in fact, that he could 'disappear.'" Id. at ¶ 193.
Brown asserts that following September 2017, SCI Coal Twp. staff refused to give Brown any additional care. One correctional officer, Defendant John Doe #4, implied that Brown would "only leave the unit if dead or for some other unsavory reason." Further, John Doe #4 refused to treat Brown's leg or call someone who would. Id. at ¶ 111.
Brown asserts that he "never received either psychiatric or psychological counseling or psychiatric medications . . . when incarcerated at SCI Coal." Id. at ¶ 96.
E. Brown's Admission to Geisinger and Surgery.
On November 29, 2017, Brown asked to be admitted to a hospital. SCI Coal Twp. staff refused. Id. at ¶¶ 78-83. The following day, November 30, 2017, Brown was taken to Dr. Moclock, and the determination was made that Brown's "temperature was elevated and his abdomen distended." Brown was taken to and admitted to the Emergency Department at Geisinger Medical Center. Id. at ¶ 84.
On December 2, 2017, Brown received an emergency procedure on his leg involving two surgical cuts and the release of "great amounts" of "purulence." Id. at ¶ 85. A few days later, on December 5, 2017, the infections in Brown's right leg were rampant, and Brown was told that he was "septic" and "that his very life was immediately then at risk." Brown's right leg was "necessarily removed in an emergency surgery." Id. at ¶ 86.
Brown was released from Geisinger on or about December 13, 2017. Id. at ¶ 84.
F. Brown's Facility Placement Following the Surgery.
Upon returning to SCI Coal Twp., Brown was taken to the facility's infirmary. According to Brown, he was "placed in a room there that was entirely unprepared for him, the bedding being generally filthy and stained and visibly infested with bed bugs while red and/or white lights glared daily day and night and the air conditioning chilled [Brown] all day and night." Id. at ¶ 158.
Brown complained about these problems, but "his complaints were rebuked by medical staff and officers of SCI Coal." Id. at ¶ 159. Brown alleges that the room was too cold to sleep or be comfortable, and that he never got additional bedding even after asking for it. Id. at ¶¶ 160-161. Brown also alleges that the room was "unbearable" and impaired his sleep and "psychological welfare," placing him "at substantial risk of increased infection." Id. at ¶¶ 162-163. And Brown alleges that the room was "entirely uninhabitable by any inmate whether with or without medical problems." Id. at ¶ 164.
Brown was eventually transferred to another room, "which he believes was selected solely when the infirmary personnel were advised that a family member was coming to see him." Id. at ¶ 171. When in that other room, Brown alleges that he "was continually and purposefully denied assistance by the medical and prison staff." Id. at ¶ 172. According to Brown, "[h]e was continually denied assistance to travel to and use bathroom facilities for hygiene or toilet" and was forced to lay in his own excrement over excessive periods of time." Id. at ¶¶ 173-174. Brown alleges that at one point he was left to lay on the floor for over twenty minutes after falling, with prison nurses commenting that he "got himself in prison and he could get himself up" without their assistance. Id. at ¶¶ 175-176.
G. The Alleged Failures to Accommodate Brown's Post-Surgery Disability and to Appropriately Treat Brown Following his Surgery.
After his surgery, Brown was, necessarily, wheelchair-bound. Id. at ¶ 237. Brown alleges the following deficiencies in SCI Coal Twp.'s treatment of his disability.
• Brown was "placed in cells without a wheelchair and accommodation for one which also lacked bath facilities, hand rails and other necessities intended for his accommodation." Id. at ¶ 237.
• Brown "suffered pain when being forced to use a non-raised toilet without [a] railing." Id. at ¶ 238.
• Brown "was often denied bathroom facility transport assistance and even when falling, while in the infirmary and while making efforts to traverse by himself to the toilet because assistance was refused, was forced to lay more than twenty minutes on the floor, he being told that he could take care of himself; then when nurses did come, they also refused to assist him." Id. at ¶ 240.
• Brown "had also been repeatedly subjected to brutal expressions of hate and contempt while at SCI Coal by the Defendant personnel at Coal and had been told repeatedly that he had cost so much money that he could and should walk without assistance, that he should not demand further attention, that he should do what he can for himself, Defendant Nurse "Big Red" noting to the others that . . . Brown got himself into SCI Coal and could get himself where he needed to go, that they need not assist him to the rest room for a shower or toileting or do other acts to assist him." Id. at ¶ 243.
• SCI Coal Twp. personnel would not respond "when called upon to provide service when needed, such as when [Brown] rang for assistance to get to the toilet (and did not get it), or during crisis, such as when [Brown] fell, called for help and lay in his own excrement on the floor for greater than twenty minutes." Id. at ¶ 245(d).
H. The Removal of Medical Records.
Brown alleges that on one day between December 2017 and January 2018, SCI Coal Twp. security personnel entered his cell and removed boxes of Brown's medical records, grievances and other documents. Id. at ¶¶ 179-180. Brown never received formal documentation of the removal or a reason for the removal. Id. at ¶¶ 181-182.
Brown later submitted a "DO3 Release of Information slip" to Trisha Kelley, the facility's grievance coordinator; Kelley identified Brown's grievance as "frivolous" and refused to return the documents or provide copies of them to Brown. Id. at ¶¶ 190-191. Brown also asserts that he wrote to "Deputy Secretary Moore Smeal on February 5, 2018, to seek assistance in reacquiring his said confiscated records but did not receive a response." Id. at ¶ 200.
I. Brown's Release from SCI Coal Twp. and Obtaining of Some Prison Records.
On some unspecified date in 2018, Brown was released from SCI Coal Twp. Id. at ¶ 67. After his release, Brown paid about $400 to receive copies of the prison records he alleged were taken from his cell. Brown alleges that these copies were "notably fully without critical grievances, medical call slips and many other formal medical and prison records." Id. at ¶ 199. And on April 14, 2018, Brown received a letter "from the Bureau of Healthcare Services which protested that the institution had provided all the medical care required by his condition." Id. at ¶ 197.
J. The Alleged Consequences of the Failure to Treat Brown.
Brown makes the following allegations about the medical consequences of the inadequate care that he received at SCI Coal Twp.
• Brown's "right leg continued to cause him great concerns, inclusive of loss of sleep and greater pain and anguish; the exudates from it continued to flow - smelling and appearing worse daily." Id. at ¶ 109.
• Brown's "right leg with its infection was not tested, nor diagnosed and treated in any compliance with medical standards of care or diagnosis; nor was any wound or other specialist consulted." Id. at ¶ 110.
• "Once released from SCI Coal, [Brown's] physical therapist advised him that he is also therapeutically impaired otherwise because of the lack of care at SCI Coal Township and because he had initially struggled with a poor prosthesis as ordered by Defendant Dr. Moclock, the prosthetic leg being a bad fit and far too heavy, it being then necessary to order another; the joint being so damaged by such lack of care that it too required replacement." Id. at ¶ 92.
• "[T]he stub [on Brown's right leg] had also deteriorated while at SCI Coal and [Brown] has not been able to support a best-fitting prosthetic leg to stand but for even a very short period of time." Id. at ¶ 93. Brown asserts that he is "now walking with a permanent prosthetic leg, if able to walk, which remains painful due to unnecessarily and wantonly damaged joint and soft tissue, no repair of his knee joint being possible." Id. at ¶ 140.
• Brown "suffered severe hip deterioration and even two weeks before his most recent hospitalization in October-November, 2010 [sic], had been bedridden." Id. at ¶ 94.
• Brown "never received physical therapy while suffering as he had with mobility when incarcerated at SCI Coal." Id. at ¶ 95.
• Brown "is currently unable to stand for any extensive period of time [and] stiffens unless continually moving." Id. at ¶ 140.
• Brown "has in the recent past undergone dialysis three times within a week and may experience dialysis 3-4 times weekly for the remainder of his life, potentially having suffered severe permanent harm to his kidneys." Id. at ¶ 142.
• Brown "has suffered harm also to his heart and permanent serious harm to his liver, which now subjects him to a serious risk of liver cancer and / or death." Id. at ¶ 143.
V. Discussion.
A. Brown failed to comply with Federal Rule of Civil Procedure 8.
The Medical Defendants and Corrections Defendants each argue that Brown's complaint violates Federal Rule of Civil Procedure 8's requirement that a complaint contain a short and plain statement of a plaintiff's claim. See Doc. 63 at 4-7; see also Doc. 66 at 8-10.
Brown's complaint does indeed violate Federal Rule of Civil Procedure 8. As the above factual recitation makes clear, Brown's complaint is voluminous. It runs to fifty-eight pages and 245 numbered paragraphs. See Doc. 27. This is excessively long, repetitive and verbose. Further, the complaint employs a litany of generalized descriptions for the various "Defendants." This makes it extremely difficult for us to tell, in the vast majority of instances, which defendant is responsible, and in what capacity, for each of Brown's eleven claims.
See, e.g. Doc. 27 at 2 ("the prison, its correction officers of all ranks, its superintendents and other agents, and its medical staff"); id. at 2 ("medical and prison staff"); id. at ¶ 31 ("medical and lay personnel"); id. at ¶ 71 ("The PA DOC, SCI Coal and Medical (Correct Care Solutions) Defendants").
We recommend that Brown's complaint be dismissed in full, with leave to amend, for its violation of Federal Rule of Civil Procedure 8. See Snider v. Pennsylvania DOC, No. 4:15-CV-00951, 2018 WL 6184786, at *4 (M.D. Pa. Apr. 18, 2018) (Schwab, M.J.) ("Snider's amended complaint, which is 47 pages long and contains 552 numbered paragraphs, is needlessly long, highly repetitive, and largely verbose."), report and recommendation adopted sub nom. Snider v. Pennsylvania Dep't of Corr., No. 4:15-CV-00951, 2018 WL 4941028 (M.D. Pa. Oct. 12, 2018); see also Downing v. York Cty. Dist. Atty., No. 1:CV-05-0351, 2005 WL 1210949, at *2 (M.D. Pa. 2005) ("In the instant case, the Plaintiffs' Complaint is thirty-three pages long and contains 299 paragraphs, of which 280 constitute the factual background. This far exceeds the notice pleading provided for in the federal rules. . . . While it is not inappropriate to include some factual background, the amount of factual information provided by the Plaintiffs is unnecessary and unfairly cumbersome." (internal citations and quotations omitted)); Burks v. City of Philadelphia, 904 F. Supp. 421, 424 (E.D. Pa. 1995) (finding "a fact-laden, 36-page, 128-paragraph narrative that describes in unnecessary, burdensome, and often improper argumentative detail, every instance of alleged [unlawful conduct] perpetrated by Defendants over [a two year period]" was a "gross departure from both the letter and the spirit of Rule 8(a)(2)").
As we recommend that Brown's complaint be dismissed in full, for reasons of judicial economy, we will refrain from analyzing the Corrections Defendants' motion to strike, which is now moot.
B. Several of Brown's claims are futile.
Rule 15(a) of the Federal Rules of Civil Procedure provides that the court should freely give leave to amend when justice so requires. FED. R. CIV. P. (a)(2). Although the Rule sets forth a liberal standard for amending pleadings, "[a]mong the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). "'Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted." Id. We find that several of Brown's claims are futile, and we therefore recommend that the court dismiss these claims with prejudice and not provide Brown leave to amend these claims.
Defendants each raise statute of limitations defenses in their briefings. See Doc. 63 at 8-11; Doc. 66 at 8-10. Given the vague and generalized nature of Brown's complaint as it stands, we find that any potential statute of limitations defects are not obvious from the face of the complaint. See, e.g., Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). We therefore have declined to recommend dismissal of other claims on a statute of limitations basis.
1. Counts One and Two as asserted against the Pennsylvania Department of Corrections and against SCI Coal Twp.
Brown's Counts One and Two are futile as asserted against the entities of the Pennsylvania Department of Corrections and SCI Coal Twp. Both of these claims issue under 42 U.S.C. § 1983. "A plaintiff seeking relief under 42 U.S.C. § 1983 must establish that the individual or entity who allegedly committed the constitutional violation is a 'person' for the purposes of § 1983." Karns v. Shanahan, 879 F.3d 504, 519 (3d Cir. 2018). "States or governmental entities that are considered 'arms of the State' for Eleventh Amendment purposes are not 'persons' under § 1983." Id. (internal quotations omitted) (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989). We therefore recommend that Counts One and Two be dismissed as asserted against the entities of the Pennsylvania Department of Corrections and SCI Coal Twp.
2. Count Five.
Count Five, as against the Medical Defendants, alleges "respondeat superior or vicarious liability" against Correct Care or Wellpath. See Doc. 27 at ¶¶ 153-155. But "[a] private health company providing service to inmates cannot be held responsible for the acts of its employees under a theory of respondeat superior or vicarious liability." Sims v. Wexford Health Sources, 635 F. App'x 16, 20 (3d Cir. 2015).
Count Five also alleges "respondeat superior or vicarious liability" against Defendants Pennsylvania Department of Corrections and SCI Coal Twp. But "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
As such, we recommend that Brown's Count Five be dismissed with prejudice.
3. Count Nine.
In Count Nine, Brown seeks attorney's fees, costs, and expenses per 42 U.S.C. § 1988. Doc. 27 at ¶¶ 205-209. As Brown concedes, he has only included this Count to provide notice to all Defendants that, should he prevail in this lawsuit, he will be seeking attorney's fees. Doc. 78 at 31.
This request is not an appropriate claim for relief. Brown may seek attorney's fees for his federal claims - if he prevails. As for Brown's state law claims, Brown does not oppose the Medical Defendants' argument that attorneys' fees are not available in these types of claims. See Doc. 78 at 31. We recommend that Brown's Count Nine be dismissed with prejudice. Brown may seek attorney's fees should he ultimately prevail in this lawsuit.
4. Count Ten as against Merritt.
Pennsylvania law requires a plaintiff seeking to bring a professional malpractice claim against a licensed professional to file a certificate of merit within sixty (60) days of the filing of the Complaint. PA. R. CIV. P. 1042.1(a). Brown's Count Ten is for medical malpractice, and names "Corrections Health Care Administrator" Karen Merritt as a defendant. See Doc. 27 at ¶¶ 210-227. However, Brown has not filed a certificate of merit concerning Merritt. We therefore recommend that Brown's Count Ten be dismissed with prejudice as asserted against Merritt.
Brown claims that because Merritt is not a licensed professional, he does not need to provide a certificate of merit for her. See Doc. 81 at 28. We note that if Merritt is not a licensed professional, then this Pennsylvania malpractice statute is not the appropriate vehicle to sue Merritt. See PA. R. CIV. P. 1042.1. Brown is free to, in his second amended complaint, bring an ordinary negligence claim against Merritt, as opposed to a professional negligence claim. See generally Alsop v. Fed. Bureau of Prisons, No. 3:17-CV-02307, 2019 WL 6049248, at *3 (M.D. Pa. Nov. 14, 2019).
5. Count Eleven.
We recommend that Brown's Count Eleven be dismissed with prejudice as to Correct Care. Correct Care is not a government agency or public entity, and therefore is not covered by the Americans with Disabilities Act or the Rehabilitation Act. See Matthews v. Pennsylvania Dep't of Corr., 613 F. App'x 163, 170 (3d Cir. 2015) (holding that a private healthcare provider that served the Pennsylvania Department of Corrections "is not a public entity merely because it contracts with a public entity to provide some service," and therefore dismissing claims under the Americans with Disabilities Act and the Rehabilitation Act).
Further, the Third Circuit Court of Appeals has explicitly concluded that punitive damages are not available under § 504 of the Rehabilitation Act or Title II of the Americans with Disabilities Act against government defendants. See, e.g., Powell v. Pa. Dep't of Corr., 2019 WL 8510289, at *10 (M.D. Pa. 2020) (Schwab, M.J.); Doe v. Cty. of Centre, Pa., 242 F.3d 437, 457-58 (3d Cir. 2001). As such, we recommend that Brown's request for punitive damages in Count Eleven be dismissed with prejudice.
6. Monetary damages.
Brown's Counts Three and Four are restatements of his Counts One and Two - Counts Three and Four issue under the Constitution of the Commonwealth of Pennsylvania as opposed to the Eighth Amendment. See Doc. 27 at ¶¶ 147-152. A plaintiff cannot maintain a claim for monetary damages pursuant to Section 13 of Article I of the Constitution of the Commonwealth of Pennsylvania. Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 F. App'x 681, 687 (3d Cir. 2011); see, e.g., Glenn v. Mataloni, No. 1:20-CV-00069, 2020 WL 7027597, at *9 (M.D. Pa. Nov. 30, 2020).
Brown argues that dismissal of Counts Three and Four on these grounds is not warranted, as he is also seeking equitable relief in the form of a declaration that Defendants have violated his Constitutional rights. See Doc. 78 at 19; Doc. 94 at 10. We recommend that Brown's Counts Three and Four be dismissed with prejudice to the extent that Brown seeks monetary damages.
And, in general, "it is well settled that suits for damages by individuals against state governments, state agencies, or state officers acting in their official capacities are barred by the Eleventh Amendment." Wagner v. Crawford Cty., No. CV 16-206, 2017 WL 2984035, at *3 (W.D. Pa. Apr. 12, 2017), report and recommendation adopted, No. CV 16-206, 2017 WL 2984138 (W.D. Pa. July 12, 2017). Therefore, we recommend that almost all of Brown's claims for monetary damages against the Corrections Defendants, to the extent that these claims are against these defendants acting in their official capacities, be dismissed with prejudice. The exception is Brown's claims for monetary damages in Count Eleven. We find that Congress has abrogated Eleventh Amendment sovereign immunity for suits for money damages springing from alleged violations of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. See United States v. Georgia, 546 U.S. 151, 159 (2006); see also Gonzales v. Pennsylvania, 293 F. App'x 136, 139 (3d Cir. 2008). Therefore, we recommend that Brown's claims for monetary damages against the Corrections Defendants in Count Eleven be permitted to remain.
7. Dismissal of defendants who Brown has not served.
Brown names as defendants "SCI Coal John Doe No. 1," "John Doe No. 2," "John Doe No. 3," "John Doe No. 4," "Sargeant Shikes of SCI Coal," "Nurse Big Red," "Nurse John Doe #5," and "Nurse Jane Doe #1." See Doc. 27. Brown needed to have served these defendants within ninety days of filing the complaint. See FED. R. CIV. P. 4(m). There is no indication in the record that Brown has served these defendants within this time limit, and we find that Brown has not shown good cause for this failure. We therefore recommend that the court dismiss all claims against the above defendants with prejudice. See FED. R. CIV. P. 4(m); see also Langston v. Hershey, No. 1:15-CV-02027, 2016 WL 4366960, at *13 (M.D. Pa. Aug. 16, 2016).
VIII. Conclusion.
For the foregoing reasons, IT IS RECOMMENDED that Brown's first amended complaint (doc. 27) be DISMISSED. IT IS RECOMMENDED that the following claims and sought remedies be DISMISSED WITH PREJUDICE:
1. Counts One and Two as asserted against Defendants Pennsylvania Department of Corrections and SCI Coal Township.
2. Count Five in its entirety.
3. Count Nine in its entirety.
4. Count Ten as asserted against Defendant Karen Merritt, Corrections Health Care Administrator.
5. Count Eleven as asserted against Defendant Correct Care Solutions, LLC and/or Wellpath, Inc.
6. All claims as asserted against any or all of the Unserved Defendants, see supra at 4.
7. Brown's sought remedy of punitive damages for Count Eleven.
8. Brown's sought remedy of monetary damages for Counts Three and Four.
9. Brown's sought remedy of monetary damages, as asserted against any or all of the Corrections Defendants, see supra at 3-4, for Counts One, Two, Six, Seven, and Eight, to the extent that these claims are against these defendants acting in their official capacities.
IT IS FURTHER RECOMMENDED that Brown be GRANTED LEAVE to file a second amended complaint within 28 days of United States District Court Judge Mariani's Order granting such leave.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 14th day of January, 2021.
S/Susan E . Schwab
Susan E. Schwab
United States Magistrate Judge