Opinion
Civil Action 22-49
08-03-2022
CHAD E.ST. CLAIR Plaintiff v. PRIMECARE MEDICAL and JOHN DOE Defendants.
ECF Nos. 32 & 34
LENIHAN, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
FISCHER, DISTRICT JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Strike Certificate of Merit (ECF No. 32) filed by PrimeCare Medical be granted, and that pursuant to Pennsylvania Rule of Civil Procedure 1042.8, Plaintiff be granted leave to file a certificate of merit which cures the defect discussed herein within 20 days after the District Court's adoption of this Report and Recommendation. It is further recommended that the Motion to Dismiss for Failure to State a Claim (ECF No. 34) filed by PrimeCare Medical be granted in part and denied in part. It should be granted with prejudice as to Plaintiff's Eighth Amendment claim for deliberate indifference to serious medical needs as to PrimeCare and denied as to Plaintiff's state law claim for medical negligence. It is further recommended that Plaintiff be given leave to amend his complaint to include specific employees at PrimeCare in their individual capacities only, who were involved in the alleged deliberate indifference to his serious medical needs as described in this Report and Recommendation.
II. REPORT
A. Relevant Procedural History and Facts
Presently before the Court is Defendant PrimeCare Medical's (“Defendant” or “PrimeCare”) Motion to Dismiss for Failure to State a Claim (ECF No. 34) and PrimeCare's Motion to Strike Plaintiff's Certificate of Merit (ECF No. 32).
Plaintiff filed his Second Amended Complaint on April 26, 2022, naming PrimeCare and John Doe, Warden of Fayette County Prison, as Defendants. ECF No. 26. In the Second Amended Complaint, Plaintiff, Chad E. St. Clair (“Plaintiff” or “St. Clair”), alleges that after undergoing reconstructive surgery on his right shoulder in late January of 2021, he was arrested by the German Township Police. Second Amended Complaint, ECF No. 26 ¶¶ 7 & 8. Before being processed into the Fayette County Prison on February 24, 2021, he was taken to the Uniontown Hospital where it was determined that no injury had occurred to his reconstructed shoulder during the arrest. Id. ¶¶ 8-9. At processing on February 24, 2021, he was placed on “medical lock” because his right arm was in a sling/brace. Id. ¶ 9.
There is some confusion in the briefing as to whether the operative complaint (ECF No. 26) is the Second or Third Amended Complaint. The Court will refer to ECF No. 26, the operative complaint, as the Second Amended Complaint.
On March 6, 2021, a Fayette County prison guard pulled Plaintiff's arm that was in a sling so hard that the screw holding the clavicle in place was torn from his collar bone. Id. ¶ 10. The screw went through Plaintiff's skin and became visible through the skin, causing Plaintiff severe pain. Id. ¶ 11. Plaintiff alleges that as a punitive measure, a PrimeCare nurse refused to give him his pain medication and unilaterally discontinued his prescription. Id. ¶ 12.
On March 10, 2021, Plaintiff was taken to the medical department of the Fayette County Prison. The PrimeCare doctor informed Plaintiff that she would order an X-ray. The X-ray was taken that same day when an employee from Uniontown Hospital brought a portable X-ray machine to the Fayette County Prison. Id. ¶¶ 13-15. The X-ray showed that the screw was pulled so far out from his clavicle that the threads on the screw could be counted. The doctor indicated that she would arrange for an appointment with an appropriate surgeon as soon as possible. Plaintiff's pain medication was reinstated that same day, and he was sent back to his cell and remained on medical lock. Id. ¶¶ 16-18.
Plaintiff complained every day to the medication nurse that he was in extreme pain and everyday he was told that he would be taken to the surgeon soon. Id. ¶ 19.
One week later, on March 17, 2021, Plaintiff was taken back to the medical doctor at Fayette County prison. At this time, the doctor told Plaintiff that she forgot to schedule an appointment. Id. ¶ 20. The doctor explained to Plaintiff that the reason he was called to medical was that she needed to write a report on the incident when his shoulder was reinjured. The report indicated that the prison guards were responsible for his injuries. Plaintiff was sent back to his cell with the promise that his shoulder would be fixed very soon. Id. ¶¶ 21-22.
Plaintiff alleges that for six (6) weeks he was left to suffer in severe pain in his cell on medical lock. He was forced to attempt to sleep while sitting in an upright position because he had a screw sticking out of his shoulder. And on medical lock, he received only one hour outside his cell per day. He continued to report his pain to the medication nurse, but he was always told that he “would go to the doctor soon.” Id. ¶¶ 23-25.
Plaintiff submitted several grievances, spoke with prison personnel, and submitted request forms addressed to the Warden, but all of his pleas for help were ignored. Plaintiff was subsequently placed on grievance restriction. Id. ¶¶ 26-28.
After six weeks, Plaintiff was taken to an outside doctor, but the doctor was under the impression that Plaintiff was to have stitches removed. Plaintiff had no stitches. The doctor was not the appropriate doctor to treat Plaintiff and informed the prison transportation personnel that Plaintiff needed to be taken to a surgeon. Plaintiff was returned to Fayette County Prison and returned to his cell. Id. ¶¶ 29-32.
Two weeks later, Plaintiff was taken to a Doctor Bal at West Virginia University who informed Plaintiff that too much time had elapsed since the injury and that the window to operate and fix the shoulder had closed. Plaintiff's clavicle had healed to his collarbone improperly and the doctor indicated that he might be limited in the use of his right arm and that he may be slightly deformed for life. The next day, Dr. Bal removed the screw from Plaintiff's shoulder. Id. ¶¶ 33-36.
Plaintiff alleges that he does not have full range of motion of his shoulder after three (3) months of physical therapy. Id. ¶¶ 37-40. Plaintiff states that from the moment of his injury, PrimeCare Medical employees and Fayette County Prison officials were aware of his serious medical injury and that he was in need of medical attention. Id. ¶ 47.
Relevant to the pending Motion to Dismiss, Plaintiff alleges that PrimeCare violated his Eighth Amendment protection against deliberate indifference to his serious medical needs by the following: 1) sending him to the wrong doctor; and 2) refusing to give him his prescribed medication. Liberally construing the pro se Second Amended Complaint, Plaintiff also appears to allege that Defendant PrimeCare delayed medical treatment for nonmedical reasons, causing him great pain and suffering, and resulting in the limited range of motion in his shoulder. Plaintiff also alleges a state law claim for medical negligence. He seeks compensatory and punitive damages.
B. Legal Standards on a Motion to Dismiss
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).
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.”). 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, 1202 (10th Cir. 1996).
C. Analysis
MOTION TO DISMISS (ECF NO. 34)
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . ...
42 U.S.C. § 1983. To state a claim for relief under this provision, the Plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law, and that such conduct deprived the Plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Eighth/Fourteenth Amendment Deliberate Indifference to Serious Medical Needs
Although Plaintiff invokes the protections of the Eighth Amendment, as a pretrial detainee, his claim of denial of adequate medical care arises under the Fourteenth Amendment rather than the Eighth Amendment. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003). The United States Supreme Court has held, however, that the Fourteenth Amendment affords pretrial detainees protections that are “at least as great” as those afforded convicted prisoners under the Eighth Amendment. Id. (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). The Third Circuit has held that in the context of claims for inadequate medical care, “we have found no reason to apply a different standard than that set forth in Estelle (pertaining to prisoners' claims of inadequate medical care under the Eighth Amendment) when evaluating whether a claim for inadequate medical care by a pretrial detainee is sufficient under the Fourteenth Amendment.” Id. (citing Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987) (footnote omitted)).
In support of its Motion to Dismiss, PrimeCare argues that Plaintiff's § 1983 claims for deliberate indifference to serious medical needs must be dismissed because Plaintiff's claims against PrimeCare all sound in vicarious liability and Plaintiff has alleged no facts to suggest a Monell claim.
“A defendant in a civil rights action must have personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (the personal involvement of each defendant in the alleged constitutional violation is a required element; a plaintiff must allege how each defendant was involved in the events and occurrences giving rise to the claims). Vicarious liability has no place in § 1983 jurisprudence, and therefore, a plaintiff must plead that each government-official defendant, through the official's own actions, violated the constitution. Iqbal, 556 U.S. at 676. Personal involvement may be shown “through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 825 F.2d at 1207.
In Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978), the United States Supreme Court held that municipalities and other local governmental units are persons subject to liability under 42 U.S.C. § 1983. In so ruling, however, the Court declared that municipal liability may not be premised on the mere fact that the governmental unit employed the offending official, that is, through application of the doctrine of respondeat superior. Instead, the Court concluded that a governmental unit may be liable under § 1983 only when its policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. Monell, 436 U.S. at 694. The official policy requirement distinguishes acts of the municipality from acts of employees of the municipality, thereby limiting liability to action for which the municipality is actually responsible. Id. Therefore, “[a] private corporation contracted by a prison to provide health care for inmates cannot be held liable on a respondeat superior theory; rather, it can only be held liable for constitutional violations if it has a custom or policy exhibiting deliberate indifference to a prisoner's serious medical needs.” Henry v. Buskirk, Civil Action No. 08-1348, 2011 WL 767540, at *4 (E.D. Pa. Feb. 24, 2011) (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003); Monell, 436 U.S. at 690-92).
In finding municipal liability pursuant to § 1983, the plaintiff must identify the policy, custom or practice of the municipal defendant that results in the constitutional violation. Id. at 690-91. A municipal policy is made when a decision-maker issues an official proclamation or decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), quoted in, Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A custom or practice, however, may consist of a course of conduct so permanent and widespread that it has the force of law. Andrews, 895 F.2d at 1480. To establish municipal liability based upon a custom or practice, the plaintiff must demonstrate that the decision-maker had notice that a constitutional violation could occur, and that the decision-maker acted with deliberate indifference to this risk. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Finally, Plaintiff must show a causal connection between the custom or policy and the violation of the constitutional right. Bielevicz v. Dubinon, 915 F.2d 845, 850-51 (3d Cir. 1990). That is, a plaintiff must demonstrate an affirmative link or plausible nexus between the custom or practice and the alleged constitutional deprivation.
Here, Plaintiff's Eighth Amendment allegations against PrimeCare in no way suggest that PrimeCare had a custom or policy that resulted in the deliberate indifference to serious medical needs of Fayette County Prison inmates. As argued by Defendant, Plaintiff complains of the actions of a nurse who discontinued his medication for punitive reasons, a physician who forgot to schedule an appointment with a surgeon, seeing the wrong specialist, and delays in being evaluated by a surgeon. These allegations go directly to mistakes made by individuals and not because of defective policies or procedures of PrimeCare. Instead, Plaintiff's allegations demonstrate that he had access to nursing evaluations, physician evaluations, diagnostic testing and outside specialty care. Therefore, the claim against PrimeCare sounding in vicarious liability should be dismissed with prejudice.
The Court recognizes, however, that the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint-regardless of whether the plaintiff requests to do so-when dismissing a cause of action for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Here, it is not necessarily clear that it would be futile to allow Plaintiff to amend his Eighth/Fourteenth Amendment claim for deliberate indifference to serious medical needs if he names the individuals involved in his medical care as party defendants and describes all facts as to how each named individual defendant participated in violating his Eighth Amendment rights. The description should include references to relevant dates, times, and locations. It should explain to the Court what happened by specifically describing each named defendant's behavior or action and how that behavior or action, or lack of action, resulted in the deliberate indifference to his serious medical needs. If the precise identities of these individuals are unknown at this time, Plaintiff may name them as John/Jane Does.
In drafting a Third Amended Complaint, should Plaintiff choose to do so, he must include the state medical negligence claim against PrimeCare or it will be waived. The Plaintiff may not include the Eighth Amendment vicarious liability claim against PrimeCare that the Court now recommends be dismissed with prejudice.
Medical Negligence and Motion to Strike Certificate of Merit (ECF No. 32)
Defendant PrimeCare argues that its Motion to Dismiss Plaintiff's state medical negligence claim must be dismissed because Plaintiff filed a late and deficient Certificate of Merit (“COM”) as defined by the Pennsylvania Rules of Civil Procedure.
In the Third Circuit, it is well-established that actions stemming from claims of medical malpractice are considered “action[s] based upon an allegation that a licensed professional deviated from an acceptable professional standard,” pursuant to Pa. R. Civ. P. 1042.3 (a). Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011); Baumgarder v. Ebbert, 535 Fed.Appx. 72, 77 (3d Cir. 2013); Smith v. U.S., 498 Fed.Appx. 120, 121-22 (3d Cir. 2012). Therefore, unless an exception to the COM requirement applies, Plaintiff's medical negligence claim asserted under Pennsylvania law is subject to the COM requirement under Pa. R. Civ. P. 1042.3(a). The Third Circuit has further held that a plaintiff's pro se status does not excuse compliance with the COM requirement. Hodge v. U.S. Dep't of Justice, 264, 267 (3d Cir. 2010) (citing Iwanejko v. Cohen & Grigsby P.C., 249 Fed.Appx. 938, 943-44 (3d Cir. 2007)). Although St. Clair is a pro se plaintiff, he is still bound by the COM requirements under Pennsylvania Rule of Civil Procedure 1042.3(a).
Furthermore, under the rule, the only circumstance where expert testimony may not be required is under 1042.3 (a)(3), which states that the COM requirement may be met by showing that expert testimony of licensed professionals is unnecessary for the prosecution of a claim. The use of Rule 1042.3 (a)(3), however, does not excuse the filing of a COM; rather, it requires a filing of proof to support that expert testimony is not needed to litigate Plaintiff's claims. Id; Liggon-Redding, 659 F.3d at 264-65. Specifically, the Rule provides in relevant part that a pro se plaintiff “shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the [pro se party]” that “(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Pa. R. Civ. P. 1042.3 (a)(3). Plaintiff has not filed such a certificate. It is important to note that when a plaintiff invokes Rule 1042.3 (a)(3), in the absence of exceptional circumstances, he “is bound by that certification and, subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.” Pa. R. Civ. P. 1042.3 (a)(3) accompanying Note.
When a COM is required, the plaintiff must file the COM with the complaint or within sixty (60) days of the filing of the complaint. Pa. R. Civ. P. 1042.3 (a). Here, the docket reflects that Plaintiff did not file the COM with the filing of his Complaint on January 12, 2022 (ECF No. 5), nor with his supplement to the Complaint on January 25, 2022 (ECF No. 8). PrimeCare filed a Notice of Intention to File a Motion against Plaintiff to Dismiss Claims of Professional Negligence for Failure to File a Certificate of Merit pursuant to Pa. R. Civ. P. 1042.7 on February 16, 2022. ECF No. 16. The Notice indicated that PrimeCare intended to file the motion to dismiss by March 29, 2022, if the Certificate of Merit was not filed as of that date. Id. On March 7, 2022, St. Clair filed a COM within sixty (60) days of the filing of his complaint and invoked the provisions of Rule 1042.3 (a)(2), which provides that the claim of professional negligence “is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard[.]” ECF No. 18 at 23; Rule 1042.3 (a)(2). This COM was deficient, however, because Plaintiff failed to attach a “written statement from an appropriate licensed professional as required by subdivision [] (a) [] (2).” Pa. R. Civ. P. 1042.3(e).
On April 14, 2022, PrimeCare filed a Motion to Dismiss and supporting brief. ECF Nos. 21 & 22. The Court ordered Plaintiff to file a responsive brief or alternatively, a second amended complaint by May 18, 2022. On April 26, 2022, Plaintiff's Second Amended Complaint was docketed. ECF No. 26. A second Certificate of Merit appears on the docket on April 28, 2022, containing the same deficiency as reflected in the first: Plaintiff failed to attach a “written statement from an appropriate licensed professional as required by subdivision [] (a) [] (2).” Pa. R. Civ. P. 1042.3(e). ECF No. 28.
In his response to the Motion to Dismiss, Plaintiff contends that he has made every effort to comply with the Rules but that this task has proved to be impossible. Some of his written requests for a statement from a licensed professional have gone unanswered; some have been denied as being against Department of Corrections' policy and a conflict of interest; his submitted grievances were denied; and his requests to West Virginia University Medical were left unanswered. ECF No. 40 at 2. Plaintiff then argues in the alternative that a statement from a medical professional is unnecessary because medical records and x-rays would clearly show that he was in serious need of medical attention. Id.; see also Certificate of Merit at ECF No. 28 (“It would not take a licensed professional to recognize the serious need of proper medical attention when a screw is visible protruding through the skin on any part of any person's body.”).
Therefore, the Court recommends that the district court grant Defendant's Motion to Strike Plaintiff's deficient Certificates of Merit at ECF Nos. 18 and 28, but pursuant to Pennsylvania Rule of Civil Procedure 1042.8, this Court further recommends that Plaintiff be granted 20 days to file a certificate of merit which cures the defect. Plaintiff is reminded that should he file a certificate of merit in accordance with Pennsylvania Rule of Civil Procedure 1042.3 (a)(3), that absent exceptional circumstances he “is bound by that certification and, subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.” Pa. R. Civ. P. 1042.3(a)(3).
III. CONCLUSION
It is respectfully recommended that the Motion to Strike Certificate of Merit (ECF No. 32) filed by PrimeCare Medical be granted, and that pursuant to Pennsylvania Rule of Civil Procedure 1042.8, Plaintiff be granted leave to file a certificate of merit which cures the defect discussed herein within 20 days after the District Court adopts this Report and Recommendation. It is further recommended that the Motion to Dismiss for Failure to State a Claim (ECF No. 34) filed by PrimeCare Medical be granted in part and denied in part. It should be granted with prejudice as to Plaintiff's Eighth Amendment claim for deliberate indifference to serious medical needs as to PrimeCare and denied as to Plaintiff's state law claim for medical negligence. It is further recommended that Plaintiff be given leave to amend his complaint to include specific employees at PrimeCare in their individual capacities only, who were involved in the alleged deliberate indifference to his serious medical needs as described in this Report and Recommendation.
In accordance with the Federal Magistrate Judge's 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 this Report and Recommendation to file written objections thereto. Unregistered ECF users are allowed an additional three (3) days pursuant to Federal Rule of Civil Procedure 6(d). Any party opposing such 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.