Opinion
3:19-CV-00130
05-06-2020
PITTSBURGH CHAD ALLEN SASSE, Plaintiff, v. JOHN WETZEL, individually and in their official capacity; BARRY R. SMITH, individually and in their official capacity; DORETTA CHENCHARICK, individually and in their official capacity; REBECCA REIFER, individually and in their official capacity; THERESA CANTOLINA, R.N. individually and in their official capacity; JANET PEARSON, R.N. individually and in their official capacity; MUHAMMAD NAJI, individually and in their official capacity; PATRICK NAGLE, M.A. individually and in their official capacity; CASEY JAMES, M.A. individually and in their official capacity; MARGARET BARNES, C.R.N.P. individually and in their official capacity; AND CORRECT CARE SOLUTIONS, LLC, Defendants,
District Judge Stephanie L. Haines Magistrate Judge Lisa P. Lenihan
REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS
ECF Nos. 80, 83
LISA PUPO LENIHAN, United States Magistrate Judge
I. RECOMMENDATION
For the reasons below, it is respectfully recommended that the Motions to Dismiss filed by Department of Corrections (“DOC”) Defendants Wetzel, Smith, Chencharick, Reifer, Cantolina, Pearson, and Medical Defendants Naji, Nagle, James (formerly Thornley), Barnes, and Correct Care Solutions, LLC. (ECF Nos. 80 and 83) be granted, and the Third Amended Complaint be dismissed with prejudice, as further amendment would be futile.
The Medical Defendants refer to this iteration of the Complaint as the “Second Amended Complaint.” Even so, this is the third time Plaintiff has amended his original complaint. The Original Complaint is at ECF No. 10; the Amended Complaint at ECF No. 17; the Second Amended Complaint at ECF No. 57; and the one which is the subject of the pending Motions to Dismiss is at ECF No. 79.
II.REPORT
A. Factual and Procedural History
Plaintiff Chad Allen Sasse (“Plaintiff”), pro se, is currently incarcerated at SCI Houtzdale. ECF No. 79. In his Third Amended Complaint, Plaintiff maintains that he suffers from a gluten-related illness, specifically gluten sensitive enteropathy, or Celiac Disease. Id. His condition has caused in him vitamin deficiencies, loss of hair color, and other physical symptoms. Id. ¶ 1, 4, 5. Plaintiff claims that the Medical Defendants failed to properly diagnose his condition, and they, along with the DOC Defendants, were deliberately indifferent to his serious medical condition. Id. ¶ 2.
Plaintiff provides his SCI Houtzdale medical records ranging from 2014 to 2020, consisting mostly of notes from the medical staff. ECF No. 88. The records show that Plaintiff was tested by blood panel at least twice for Celiac Disease. Plaintiff did a blood panel laboratory test for Celiac Disease in 2014, which was negative for Celiac. Id. p. 21. On July 15, 2015, Defendant Naji notes that Plaintiff feels well as long as he avoids wheat. Id. p. 33. About one month later, Naji writes that Plaintiff “was worked up for celiac which was all negative and no diet was issued…Advised to avoid foods which can cause significant symptoms.” Id. p. 32. Later that year, on December 13, Defendant Cantolina notes that she will provide Central Office with his medical information so they can approve a gluten-free diet for him. Id. p. 29. A diet order form appears to have been submitted on January 5, 2015, stating what Plaintiff's allergies are and that he needed to be on a gluten-free diet. Id. p. 52. The next day, a PA notes that she spoke with the R.N. supervisor about Plaintiff's need for a gluten-free diet and that CHCA is aware of this. Id. p. 28. On that same day, Defendant Naji states that Plaintiff tested negative for allergy to wheat and eggs, and was told that he would go on a regular diet, to which Plaintiff agreed. Id. By March of that year, however, Plaintiff reported to Defendant Nagle gastrointestinal issues and diarrhea as soon as he went on a regular diet. Id. p. 26. Plaintiff told Nagle that his blood panel for Celiac was negative because Plaintiff was not exposing himself to gluten at the time. Id. p. 24. Nagle asked Defendant Naji to review Plaintiff's blood panel results; Naji notes “labs received. No. further test needed.” Id.
In September of that same year, Nagle notes that Plaintiff was still unable to introduce gluten back into his diet, and that he wanted to see a gastroenterologist. Id. p. 18. He also told Nagle that gluten is in so many things that he rarely has a regular bowel movement. Id. p. 17. On October 3, 2016, Naji notes that Plaintiff's condition is “likely IBS, not Celiac.” Id. p. 16. In December 2016, Naji notes that Plaintiff still insists he has Celiac Disease even though the blood panel shows he does not; “we offered him meds but he just wants to be placed on gluten free diet.” Id. p. 15.
In October 2019, medical notes state that Plaintiff will “eat regular diet and retest for antiendomysial antibodies/celiac panel in one month.” Id. p. 12. Another set of notes confirms that a Celiac panel was scheduled for him on November 25, 2019. Id. p. 42.
On December 6, 2019, presumably after the second Celiac panel, Defendant Nagle notes “celiac panel was normal but b12 level was low. Has been doing gluten challenge to attempt to make the bw for the celiac panel become positive. Feel terrible when he eats foods that are not gluten free.” Id. p. 9. On December 12, 2019, Naji notes that he was having Plaintiff start on Vitamin B12 injections; Plaintiff complained of numbness in hands and feet, but no diarrhea; Plaintiff also mentioned seeing blood in stool one time. Id. p. 6. By January 9, 2020, Plaintiff reported his numbness feeling better. Id. p. 4. On February 6, 2020, Naji notes that Plaintiff felt better, that there was no more numbness, and his B12 level was normal. Id. p. 2. There are no other mentions of Plaintiff's gastrointestinal issues.
Plaintiff alleges that he was never given an endoscopic intestinal biopsy while he was consuming gluten. ECF No. 79, ¶ 1. Plaintiff alleges that he was lied to about the accuracy of the blood test. Id. ¶ 2. Plaintiff has complained through the grievance system and with medical staff about days when all three meals of the day contained gluten. Id. ¶ 3.
Plaintiff alleges that when he appealed one of his grievances relating to his medical needs to the final level, the response from the Chief Grievance Officer was: “These clinical decisions are made by your attending practitioner.” Id. ¶ 7. Plaintiff claims that Defendant Barry Smith, Facility Manager of SCI Houtzdale, willfully withheld medical services from him by denying Plaintiff's appeal of that grievance. Id. Plaintiff claims that Defendant John Wetzel willfully withheld medical services from him through the Chief Grievance Officer's denial of his grievance. Id.
Plaintiff alleges that Defendants Doretta Chencharick and Rebecca Reifer, both Grievance Coordinators at SCI Houtzdale, “willfully withheld medical services by allowing deliberate indifference to serious medical needs to continue.” Id. ¶¶ 9-10. Plaintiff makes the same allegation about Defendant Theresa Cantolina, R.N., Medical Director of SCI Houtzdale. Id. ¶ 11.
Plaintiff claims that Defendant Janet Pearson, R.N., Medical Director for SCI Houtzdale, “willfully withheld medical services by referring to diagnostic testing that is null and void because gluten is not being consumed.” Id. ¶ 12. Plaintiff alleges that she stated to him: “you should be ashamed that concerned family is calling here for you.” Id.
Medical Defendant Muhammad Naji, M.D., allegedly lied to Plaintiff about the “necessary gluten consumption for proper gluten sensitive enteropathy testing and diagnosis.” Id. ¶ 13. He also allegedly prevented all others in the medical offices from providing retesting while Plaintiff was on a diet containing gluten. Id. Plaintiff alleges that Defendant Naji changed his initial diagnosis from Irritable Bowel Syndrome to “non-existent.” Id. Finally, Defendant Naji allegedly “misrepresented height in a body mass index calculation, ” and upon meeting with Plaintiff, said, “you might be right.” Id.
Medical Defendants Patrick Nagle and Casey James, both Medical Assistants at SCI Houtzdale, “willfully withheld medical services by allowing deliberate indifference to serious medical needs to continue.” Id. ¶¶ 14-15. Plaintiff alleges that Defendants Nagle and James were in an office while meeting with Plaintiff and James was eating crackers, even though Plaintiff had stated before that Plaintiff could not eat crackers. Id. Plaintiff states: “this is a concerted effort and the problem is well understood.” Id.
Medical Defendant Margaret Barnes, C.R.N.P., “willfully withheld medical services by allowing deliberate indifference to serious medical needs to continue.” Id. ¶ 16. Upon meeting with Plaintiff she stated: “I'm not saying that this is not the problem, but how are you getting on that diet line?” Id.
Lastly, Plaintiff alleges that Correct Care Solutions, LLC (“CCS”), which provides the medical services for SCI Houtzdale, “willfully withheld medical services by means of their human resources (employees) and policies that allow those employees to give cursory exams for something as serious as bloody stools during periods of gluten consumption.” Id. ¶ 17.
Plaintiff initiated this lawsuit under 42 U.S.C. § 1983 by moving for Leave to Proceed in forma pauperis on August 13, 2019. ECF No. 1. Plaintiff claims that Defendants' deliberate indifference to his medical needs violated his constitutional rights under the Eighth and Fourteenth Amendments. Id. p. 6. Plaintiff seeks as relief for the Court to “order all tests for gluten sensitive enteropathy including but not limited to: anti-DGP IgA and anti-tTg IgA and DQ2/DQ8 genetic testing and an endoscopic intestinal biopsy while plaintiff, Chad Alan Sasse, is on a gluten challenge to be immediately performed by a gastroenterologist at a hospital with its own lab, ” and for him to go on a gluten free diet after the testing. Id. pp. 9-20. Plaintiff seeks $100,000 in nominal damages, $100,000 in compensatory damages, and $100,000 in punitive damages from Defendants, jointly and severally, plus costs. Id. p. 20.
As Plaintiff is a convicted prisoner rather than a pre-trial detainee, his claim will be analyzed as arising under the Eighth Amendment. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003).
Plaintiff's original Complaint was filed on September 18, 2019. ECF No. 10. Plaintiff submitted an Amended Complaint on November 19, 2019 (ECF No. 17), and his Second Amended Complaint was entered on April 29, 2020. ECF No. 57. The DOC and Medical Defendants filed their motions to dismiss to the Second Amended Complaint on May 13, 2020 (ECF Nos. 61, 63). In its Report and Recommendation dated August 17, 2020, the Court recommended that the motions be granted, and that Plaintiff be granted leave to file another amended complaint. ECF No. 73.
The Court stated that to sufficiently state a claim, Plaintiff should allege more specificity on the DOC Defendants' personal involvement in the deliberate indifference to his serious medical needs, and not simply allege that they denied his grievances. ECF No. 73, pp. 7-8. Plaintiff was also told to allege more specificity as to actions taken by each Defendant and dates on which the alleged acts took place. Id. p 11. Finally, the Court stated that Plaintiff's Second Amended Complaint as to Defendant CCS, a corporate entity, lacked specificity about the policy, or about any customs or practices, that caused a violation of his civil rights. Id. p. 13.
The District Judge adopted the Court's Report and Recommendation on October 2, 2020. ECF No. 76. On December 4, 2020, Plaintiff filed his Third Amended Complaint. ECF No. 79. Thereafter, the Medical and DOC Defendants filed their motions to dismiss, with accompanying briefs in support. ECF Nos. 80, 81, 83, 84. Plaintiff filed briefs in opposition to the respective motions on January 11 and February 8, 2021. On April 2, 2021, Plaintiff also submitted the relevant medical records to his claims. ECF No. 88. The motions are now ripe for disposition.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a
reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice, and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
C. Discussion
1. The DOC Defendants
DOC Defendants argue that Plaintiff failed to cure the deficiencies in his Second Amended Complaint. ECF No. 84, p. 5. Plaintiff has provided no additional factual allegations related to his claims against the DOC Defendants, and the Third Amended Complaint is identical in all respects to the Second Amended Complaint. Id. The only difference, Defendants point out, are the additions at the beginning of Plaintiff's Statement of Claims, where he lists dates of his contact with the medical providers at SCI-Houtzdale. Id. As a result, his allegations against the DOC Defendants are still limited to their denial of his grievances and he has not shown their personal involvement. Id.
Plaintiff's very brief Responses in Opposition to both Motions are identical. ECF Nos. 86, 87. In his Response, Plaintiff states that “all requests by the court for additional information have been honestly and diligently met” to the best of his abilities, and that he believes that Defendants' deliberate indifference to Plaintiff's serious medical needs “has been stated clearly and succinctly.” Id.
The Court agrees with DOC Defendants that Plaintiff has failed to cure the deficiencies against them in the Third Amended Complaint. His Third Amended Complaint is identical to the Second except for the addition of the lists of dates on which he met with medical personnel. The medical records do not clarify how the DOC Defendants were personally involved in Plaintiff's civil rights violation, or what the affirmative nexus is between their denial of his grievances and being deliberately indifferent to his serious medical needs. Nor does Plaintiff offer more allegations that explains what he expects the Court to find within the s that supports his allegations.
As the Court stated in its Report and Recommendation dismissing the Second Amended Complaint without prejudice:
It is well settled that 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) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)). A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. These allegations “must be made with appropriate particularity.” Id. See also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a ‘plausible nexus' or ‘affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'”). A defendant's mere participation in the grievance process is insufficient to confer knowledge of, and acquiescence to, a constitutional violation. Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013); see also Sears v. McCoy, No. 1: 17-CV-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept. 12, 2017) (“the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's
grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.”).ECF No. 73. As before, Plaintiff's statements that Defendants Chencharick, Reifer, and Cantolina “willfully withheld medical services by allowing deliberate indifference to serious medical needs to continue” remain conclusory. He has alleged no specificity about Wetzel's participation, personal direction, or actual knowledge and acquiescence of Plaintiff's condition that led to a deliberate indifference to his serious medical needs. Plaintiff has not elaborated on why Defendant Smith's denial of Plaintiff's grievance at the Facility Manager level states a claim of deliberate indifference. It is still not clear how Defendant Pearson referring to an allegedly void test result relates to the deliberate indifference Plaintiff is claiming, nor has Plaintiff specified how her statement “you should be ashamed that concerned family is calling here for you” relates to any harm he suffered.
For these reasons, the Court respectfully recommends that the Motion to Dismiss the Third Amended Complaint by the DOC Defendants be granted, and the Third Amended Complaint as against all DOC Defendants be dismissed with prejudice. The Court gave Plaintiff several opportunities to state his allegations with the requisite specificity, and he has failed to do so each time. Any more amendments would be futile.
The court must allow amendment by the plaintiff in civil rights cases brought under § 1983 before dismissing pursuant to Rule 12(b)(6), 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).
2. The Medical Defendants
The Medical Defendants also argue that Plaintiff fails to cure the deficiencies in his Third Amended Complaint, and therefore the Complaint should be dismissed. ECF No. 81.
a. Defendant Naji
Defendant Naji maintains that Plaintiff's allegations against him do not show how he was deliberately indifferent, even taking as true that Naji did interfere with the result of his blood panel. Id. pp. 10-11. Defendant also argues that “there is no reasonable basis to conclude that the consumption of gluten is a necessary aspect of testing.” Id. Plaintiff's Third Amended Complaint does not have more specific allegations against Naji, and the list of dates on which he saw Naji does not provide the necessary context for what occurred on those dates and how they show that Naji was deliberately indifferent. Id. p. 11.
As this Court stated in its previous Report and Recommendation:
To state a claim for deliberate indifference, a plaintiff must satisfy the two-part test drawn from Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “First, plaintiff must make an ‘objective' showing that the deprivation was ‘sufficiently serious,' or that the result of defendant's denial was sufficiently serious. Additionally, the plaintiff must make a ‘subjective' showing that defendant acted with ‘a sufficiently culpable state of mind'” - i.e., “deliberate indifference” Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
A medical need is “serious” if it is “one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003). “The seriousness of an inmate's medical need may also be determined by reference to the effect of denying the particular treatment.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations omitted). “In addition, where denial or delay causes an inmate to suffer a lifelong handicap or permanent loss, the medical need is considered serious.” Id.
To demonstrate deliberate indifference, the plaintiff “must make a subjective showing that defendant acted with a sufficiently culpable state of mind.” Pinchak, 294 F.3d at 499. The level of culpability is “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Thomas v. Dragovich, 142 Fed.Appx. 33, 36 (3d Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A prison official must “know of an excessive risk to an inmate's health or safety and affirmatively disregard it.” Innis v. Wilson, 334 Fed.Appx. 454, 456 (3d Cir. 2009) (citing Farmer, 511 U.S. at 835-
38). The Third Circuit has “found ‘deliberate indifference' in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citations omitted). Conversely, “[m]ere medical malpractice cannot give rise to a violation of the Eighth Amendment.” White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990). As our Court of Appeals long ago explained, “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979).ECF No. 73, p. 8-10.
The Court allowed Plaintiff to amend his claim of deliberate indifference against Naji because of his allegation that the diagnosis of his condition itself was improperly done. Id. p. 10. The Court felt that Plaintiff was entitled to develop the record on this issue. Id. The Court also stated that Plaintiff would benefit from adding more specific allegations of Naji's conduct and the dates on which that conduct occurred. Id. While the Third Amended Complaint remains unchanged as to any specific allegations from the previous iteration, the medical notes submitted by Plaintiff do develop the record. However, these notes support Defendants more than they do Plaintiff's claim.
Plaintiff's condition may be serious within the meaning of the Eighth Amendment. Left untreated, Plaintiff experiences painful intestinal issues and diarrhea. That said, the record shows that Naji was keeping track of Plaintiff's condition and making determinations about the best course of treatment for his condition, along with Plaintiff's input and opinions. There is no subjective showing that Naji had a culpable state of mind to deprive Plaintiff of the medical attention he needed. The notes show that from the end of 2019 to the beginning of 2020 Plaintiff's condition and various symptoms were resolving with Naji's treatment. Not being referred to a gastroenterologist or given an endoscopic intestinal biopsy is not enough to meet the standard for deliberate indifference. Mere disagreements over medical judgment do not state an Eighth Amendment clais as there are typically several acceptable ways to treat an illness. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (citations omitted). Accord 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 claim for relief under section 1983). Also, Plaintiff still has not added any specificity as to how Naji making a mistake about his BMI rises to the level of a constitutional violation. See Moore v. Luffey, 767 Fed.Appx. 335, 341 (3d Cir. 2019) (inadvertence or mistake in medical judgment does not constitute deliberate indifference.) Simply put, Plaintiff has not stated a plausible claim that Defendant Naji was deliberately indifferent to his serious medical needs.
b. Defendants Nagle and James
Defendants Nagle and James argue that Plaintiff still has alleged no facts that raise his claim against them above the speculative level. ECF No. 81, p. 11. As with all other Defendants, Plaintiff did not add additional factual allegations to his Third Amended Complaint. Rather, he relied on the lists of dates on which he had encounters with each Defendant, based on the medical records he provided. Id. The Court agrees that this does not cure the issues. The allegation that Nagle and James “willfully withheld medical services by allowing deliberate indifference to medical needs to continue” remains conclusory. Plaintiff also does not clarify how eating crackers in front of him rises to the level of a constitutional violation.
Furthermore, the medical records show that Nagle and James took notes of Plaintiff's conditions and collaborated in Plaintiff's treatment by consulting with Naji. It does not support the claim that Defendants affirmatively disregarded Plaintiff's serious medical condition. As Plaintiff's allegations against Nagle and James are still conclusory and the medical records he provides contradict those allegations, the Court finds that Plaintiff has failed to state a claim against these Defendants.
c. Defendant Barnes
Defendant Barnes argue that Plaintiff fails to allege sufficient facts against her to state a claim for deliberate indifference because he is still alleging that her statement “I'm not saying that this is not the problem, but how are you getting on that diet line?” There are no other explanations on why that statement amounts to a constitutional violation; there is not even an allegation of the date on which this conversation took place. ECF No. 81, p. 12.
The Court agrees that the list of dates do not sufficiently cure the allegations against Defendant Barnes, including why the statement she allegedly made rises to the level of a constitutional violation. As with Defendants Nagle and James, the medical records show Defendant Barnes performing what is expected of her. From 2014 to 2016 she kept notes on Plaintiff's symptoms, wrote down discussions with Plaintiff where he expressed dissatisfaction with his diagnosis and requested a gastroenterologist, and his weight loss from his gastrointestinal issues. Id. p. 19. She also spoke to Naji about Plaintiff's course of treatment and Plaintiff's concerns. Id. p. 18.
Again, the record presents no allegations or any other indications that Defendant Barnes' actions rise to the level of a constitutional violation. Defendant appears to be doing what her job required. Nothing in the Third Amended Complaint changes the fact that Plaintiff has failed to state a claim of deliberate indifference against Defendant Barnes and she should be dismissed.
d. Defendant Correct Care Solutions
As it did with the Motion to Dismiss the Second Amended Complaint, Defendant argues that Plaintiff has alleged no official custom or policy that operated to deny him access to medical care against CCS, and that CCS cannot be held vicariously liable for an alleged constitutional violation. ECF No. 81, p. 14. The Court agrees that Plaintiff offers no other allegations or records that shows otherwise.
In its Report and Recommendation granting the Second Amended Complaint, this Court stated:
For the purposes of a § 1983 claim, a corporate entity cannot be held responsible for the acts of its employees under a theory of respondeat superior or vicarious liability. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583- 84 (3d Cir. 2003) (treating a private corporate entity operating under a government contract as a government entity for § 1983 liability) (citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). To sustain a § 1983 claim against a corporate entity, a plaintiff must provide evidence that there was a relevant policy or custom, and that the policy caused the constitutional violation they allege. Id.
There are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under § 1983. The first is where “the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy.” Bryan County, 520 U.S. at 417, 117 S.Ct. 1382 (Souter, J., dissenting). The second occurs where “no rule has been announced as policy but federal law has been violated by an act of the policymaker itself.” Id. Finally, a policy or custom may also exist where “the policymaker has failed to act affirmatively at all, [though] the need to take some action to control the agents of the government ‘is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.'” Id. at 417-18, 117 S.Ct. 1382 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)); see also Berg, 219 F.3d at 276 (holding that plaintiff must “demonstrat[e] that the municipal action was taken with ‘deliberate indifference' to its known or obvious consequences”).ECF No. 73 (quoting Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003)). Plaintiff's allegations are unchanged. He maintains that CCS “willfully withheld medical services by means of their human resources (employees) and policies that allow those employees to give cursory exams for something as serious as bloody stools during periods of gluten consumption.” ECF No. 79 ¶ 17. As the Court stated in its Report and Recommendation, this is a conclusory allegation. Even construed liberally in Plaintiff's favor, Plaintiff does not allege any of the three situations that the Natale case outlined. The allegations do not state what the generally applicable statement of policy is that led to the cursory exams-whether CCS failed to properly train their employees to give basic physical examinations; how any acts by CCS violated federal laws; nor do they allege some failure of CCS to act affirmatively even though it was obvious a constitutional violation is likely to occur.
In the Third Circuit, courts have granted Motions to Dismiss on this issue when allegations are conclusory and lack specificity. See Shaner v. PrimeCare Med. Inc., No. CV 19-2442, 2020 WL 1164799, at *4 (E.D. Pa. Mar. 10, 2020) (allegations that the defendants refused to administer medical care by following company rules and that the medical staff that saw the plaintiff were following the rules set forth by the defendant are conclusory and include no facts describing a policy, custom, or practice of the defendant that caused the alleged violation of the plaintiff's constitutional rights, even drawing all reasonable inferences in the plaintiff's favor). Allegations are enough to state a claim where they show a pattern of practices and policies that could lead to constitutional violations. See McKissick v. Cty. of York, No. CIV.A.1: 09-CV-01840, 2010 WL 1930132, at *6 (M.D. Pa. Mar. 19, 2010), report and recommendation adopted, No. CIV.A. 1:09-CV-1840, 2010 WL 1930144 (M.D. Pa. May 13, 2010) (Allegations that the medical defendants failed to implement adequate training of staff to respond to medical emergencies and medical needs of inmates, inadequate maintenance, and monitoring of medical equipment, and failure to properly prescribe and administer medical treatment and medication can state a claim); see also McPherson v. Cty. of Dauphin, No. 1: 19-CV-01865, 2020 WL 1558206, at *5 (M.D. Pa. Mar. 24, 2020) (finding that failure by prison to give the plaintiff his bipolar medication despite learning about his condition several times show the lack of an affirmative policy regarding how to address the serious medical needs of a detainee and can support Monell liability). There is not enough specificity to establish that CCS maintained a pattern of behavior, whether through customs or policy, that led to examinations being cursory. Finally, as Plaintiff has failed to establish there was a constitutional violation, he cannot establish that any policy, custom, or practice on the part of CCS led to any violation of his rights. Thus, it is respectfully recommended that the Motion to Dismiss on behalf of all Medical Defendants, including Defendant CCS, be granted, and the claims be dismissed with prejudice, as any amendment would be futile.
III.CONCLUSION
For these reasons, it is respectfully recommended that the Motions to Dismiss filed by Medical Defendants Naji, Nagle, Thornley, Barnes, and Correct Care Solutions, LLC. (ECF No. 80) and by DOC Defendants Wetzel, Smith, Chencharick, Reifer, Cantolina, Pearson (ECF No. 83) be granted. It is also recommended that Plaintiff's Third Amended Complaint be dismissed with prejudice for having failed to cure the deficiencies in the previous three complaints.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.