Opinion
1:20-CV-00305-SPB-RAL
04-15-2024
VARIAN C. CALLAHAN, Plaintiff v. MICHAEL CLARK, SUPERINTENDENT, SCI ALBION; JERI SMOCK, CORRECTIONAL HEALTH CARE ADMINISTRATOR, SCI ALBION; REKHA HALLIGAN, MEDICAL DIRECTOR, SCI ALBION; MORGAN OLIVER, SECRETARY, CORRECTCARE SOLUTIONS; MICHAEL RILEY, PHYSICIAN ASSISTANT, SCI ALBION; JANE DOE, OPTOMETRIST, SCI ALBION, WELLPATH LLC, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOSEPH SILVA, RUTH WISNIEWSKI, Defendants
SUSAN PARADISE BAXTER, United States District Judge.
REPORT AND RECOMMENDATION ON MOTION FOR JUDGMENT ON THE PLEADINGS ECF NO. 83
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
The DOC Defendants' motion for partial judgment on the pleadings (ECF No. 83) is pending before the Court and before the undersigned for Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1). For the following reasons, it is respectfully recommended that the motion be DENIED.
IL Report
Plaintiff Varian C. Callahan brings this action to recover damages and other relief for violation of his rights under the First and Eighth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), 42 U.S. Code §§ 12101 - 12213, and Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S. Code § 794. All such claims are based on alleged deficiencies in his medical care while he was incarcerated at the State Correctional Institution (“SCI”) at Albion. Defendants include the Pennsylvania Department of Corrections (“DOC”); Joseph Silva, Director of the Bureau of Health Care Services; Michael Clark, SCI-Albion Superintendent and Facility Manager; Jeri Smock, SCI-Albion Chief Healthcare Administrator; and Ruth Wisniewski, SCI-Albion Licensed Practical Nurse (“LPN”) (collectively, “DOC Defendants”). See ECF No. 12.
The other Defendants are Wellpath LLC f/k/a Correct Care Solutions, LLC ("Wellpath”), a private entity with which the DOC contracted to provide healthcare services at its correctional institutions; Wellpath employees Morgan Oliver, Dr. Rekha Halligan, and Physician Assistant ("PA”) Matthew Riley; and an unnamed optometrist designated as "Jane Doe.” See ECF No. 12.
On the DOC Defendants' motion to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6), the Court dismissed with prejudice Callahan's First Amendment “access to courts” claim against Smock and ADA/Rehab Act claims against Clark, Smock, and Silva in their official capacities. See ECF No. 79. The Court also dismissed Callahan's Eighth Amendment deliberate indifference claim against Wisniewski and Clark without prejudice to Callahan's right to file a further amended complaint as to this claim. See id. Thereafter, Callahan filed a Second Amended Complaint (“SAC”). ECF No. 80.
The DOC Defendants have filed a motion for partial judgment on the pleadings (ECF No. 83) and a brief in support of the motion (ECF No. 84). ECF Nos. 83, 84. The DOC Defendants again seek dismissal of the Eighth Amendment claim against Wisniewski. Callahan has filed a brief in opposition to the motion. ECF No. 89.
The DOC Defendants' motion initially states that they also seek dismissal of the Eighth Amendment claim against Clark. See ECF No. 84. However, the motion and brief do not include any discussion regarding Clark. See id. More importantly, the SAC does not assert an Eighth Amendment claim against Clark. See ECF No. 80. Thus, whether the motion should be construed as seeking dismissal of an Eighth Amendment claim against Clark is moot.
A. Standard of Review
"A motion for judgment on the pleadings under Rule 12(c) ‘is analyzed under the same standards that apply to a Rule 12(b)(6) motion.'” Wolfington v. Reconstructive Orthopaedic Assocs. II PC, 935 F.3d 187, 195 (3d Cir. 2019) (quoting Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010)). 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 views 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 Ashcroft v. Iqbal, 556 U.S. 662 (2009). 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.”). Put another way, in assessing a motion to dismiss, while the Court must view the factual allegations contained in the pleading at issue as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). 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) (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.
B. Factual Allegations
The following relevant allegations of the SAC are accepted as true for purposes of the motion for judgment on the pleadings.
“On or about August 17, 2017, Mr. Callahan began experiencing blurred vision, accompanied by irritation and a burning sensation in and around his eyes.” ECF No. 80, ¶ 21. Prior to this date, “Callahan had 20/15 or 20/20 vision, which is average or sharper than average, and no problems with his eyes.” Id., ¶ 20. Between September 1 and November 25, 2017, Callahan submitted three “informal grievances” addressed to the “Medical Dept. Supervisor” and three sick call request forms seeking medical care for his swollen, red, and painful eyes, and blurred vision. No one responded to Callahan's requests for medical attention. At one point, “Corrections Officer Bill Schwab called the medical unit and requested that Mr. Callahan receive a medical exam addressing his eye complaints.” Id., ¶ 27. Medical staff told Schwab that “Mr. Callahan could not be seen unless he was on a ‘medical callout.'” Id.
Callahan had his first medical appointment for his eye condition with PA Riley on December 13, 2017. By then, Callahan had also “beg[un] experiencing progressive intermittent vision loss.” Id., ¶ 30. After examining his eyes, Riley arranged for an optometrist appointment that same day “as a measure of importance.” Id., ¶ 44. At his appointment with Optometrist Jane Doe, Callahan “reported experiencing headaches, episodes of total vision loss, and hazy vision.” Id., ¶ 45. Doe observed that Callahan had “swollen eyes and 20/60 vision” and “[d]iagnosed [him] with a swollen optic nerve.” Id., ¶¶ 46, 47. She then “told Mr. Callahan that she was unable to treat his condition and . . . recommended that [he] be referred to an outside ophthalmologist” because “he needed to be seen by an eye surgeon.” Id., ¶ 49. “Defendant Doe documented her findings, diagnosis, and recommendation in Mr. Callahan's medical record.” Id., ¶ 52. Riley attended this appointment as well. Afterward, “Riley also documented the optometry visit and Mr. Callahan's ‘transient vision loss' in Mr. Callahan's chart.” Id., ¶ 53. Nurse Wisniewski and Dr. Halligan reviewed and signed Callahan's medical chart later that day.
According to DOC Policy, for an inmate to receive care from a medical specialist like an ophthalmologist, a practitioner must first complete a DC-441 Consultation Record and “place a copy in the patient's medical record as an indicator that the consultation was written and is being processed.” Id., ¶ 58. The Medical Director must then review the DC-441 “and determine a plan of care within seven days.” Id., ¶ 59. Upon approval of the specialty consultation, “DOC policy requires that the prisoner be taken to the specialist immediately for diagnosis and treatment” “if there is any clinical suspicion of a potentially serious illness.” Id., ¶ 60. Callahan's medical records contain no DC-441 Consultation Record pursuant to Dr. Doe's recommendation. Wisniewski “knew that Callahan needed an immediate referral to an outside eye surgeon,” and was one of three members of the medical staff who “had the authority and responsibility to fill out a DC-441 form.” Id., ¶ 66. Despite this knowledge and responsibility, Wisniewski failed to complete and submit a DC-441 form for Callahan. Id.
Callahan's appearance prompted a corrections officer to bring Callahan “back to medical on an emergency basis” on January 18, 2018. Id., ¶ 73. At this impromptu appointment, “Riley told Mr. Callahan he was looking up the status of the ophthalmology referral from the previous month on his computer and then stated the referral had been canceled.” Id., ¶ 74. Instead of “prepar[ing] a DC-441 form to initiate an ophthalmology referral,” Riley directed Callahan to submit another sick call request. Id., ¶ 75.
Callahan heeded Riley's instruction and received an appointment with PA Stroup four days later. Callahan's examination prompted Stroup to get an ophthalmology appointment “scheduled for later that day at UPMC Mercy.” Id., ¶ 77. “The DC-441 Consultation Record ordering an ophthalmology referral on January 22, 2018, is documented in Mr. Callahan's medical records.” Id., ¶78.
The UPMC Mercy ophthalmologist diagnosed Callahan with a “moderately severe” swollen optic nerve “accompanied by ‘profound vision loss' in both eyes.” After a series of tests and an MRI, the doctors learned that Callahan's swollen optic nerve had resulted from a brain tumor. Id., ¶ 79. Callahan “underwent two emergency surgeries” on January 24 and 25, and a third on March 7, 2018. Id., ¶¶ 82, 83. Upon his discharge from the hospital after his first two surgeries on January 29, “he had limited vision in his right eye and no vision or light perception in his left eye.” Id., ¶ 84. One week later, a UPMC provider suspected “a poor visual prognosis” after determining “that he had no vision in his left eye and only 20/200 vision in his right eye.” Id., ¶ 86. “On April 10, 2018, the UPMC ophthalmologist found that Mr. Callahan had suffered optic nerve atrophy and that he was permanently blind as a result.” Id., ¶ 92. A week later, a UPMC oncologist informed Callahan of this diagnosis and that “his vision would not return.” Id., ¶ 93. Stroup documented this information in Callahan's medical chart.
C. Discussion
The SAC again asserts an Eighth Amendment deliberate indifference to serious medical needs claim against Wisniewski for “delaying necessary medical treatment for months without any cognizable medical reason.” Id., 174. To establish a violation of his constitutional right to adequate medical care, Callahan 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. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). The DOC Defendants do not challenge the sufficiency of the facts alleged in the SAC to support an Eighth Amendment claim except as to Wisniewski. They argue that, like the First Amended Complaint, the SAC alleges insufficient facts to support Wisniewski's personal involvement in the conduct upon which this claim is based.
The DOC Defendants are correct that each defendant must have had “personal involvement” in the deprivation of a constitutional right before he or she faces liability under § 1983. See Gould v. Wetzel, 547 Fed.Appx. 129, 132 (3d Cir. 2013) (citations omitted). This means that each defendant must have played an “affirmative part” in the complained-of misconduct, and liability “cannot be predicated solely on the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1998)); see Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). A defendant's personal involvement can be shown by alleging their “participation] in violating the plaintiffs rights, direct[ing] others to violate them, or, as the person in charge, ha[ving] knowledge of and acquiesce[ing]” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
The Court dismissed this claim without prejudice on the DOC Defendants' initial Rule 12(b)(6) motion because the facts alleged did not support Wisniewski's personal involvement in an Eighth Amendment violation. See ECF No. 78, p. 27. Defendants argue that the SAC fails to cure this deficiency. The undersigned disagrees. Although the First Amended Complaint and the SAC include many common allegations concerning Wisniewski, the SAC specifically alleges not only that Wisniewski had specific knowledge of Callahan's urgent medical need for a referral to an ophthalmologist, but also that she was one of the medical providers who had the specific “authority and responsibility to fill out a DC-441 form” to effectuate that referral and that she failed to do so, resulting in protracted delay in Callahan's treatment. ECF No. 80, ¶ 66 (emphasis supplied). This additional allegation, while somewhat thin on supporting facts, is sufficient to nudge Callahan's Eighth Amendment deliberate indifference claim against Wisniewski to a plausible claim meriting discovery.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the DOC Defendants' motion for partial judgment on the pleadings (ECF No. 83) be DENIED.
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 shall 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).