Opinion
1:23-CV-00019-SPB
11-02-2023
CYNTHIA CURRAN, ADMINISTRATOR OF THE ESTATE OF CARA BETH SALSGIVER, Plaintiff v. VENANGO COUNTY, JOHN DOE CORRECTIONS OFFICER,MAXIM HEALTHCARE STAFFING,ANGELA TROWBRIDGE,REAGAN SNYDER, MARK BISHOP, UPMC COMMUNITY MEDICINE,INC., Defendants Count Claim Defendants
OMNIBUS REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS THE AMENDED COMPLAINT
IN RE: ECF NOS. 39, 62, 64, AND 67
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Introduction and Recommendation
Cynthia Curran ("Curran"), as administrator of the estate of her late daughter, Cara Beth Salsgiver ("Cara"), brings this action against Defendants Venango County ("County"), Maxim Healthcare Staffing ("Maxim"), UPMC Community Medicine, Inc. ("UPMC"), Angela Trowbridge ("Trowbridge"), Reagan Snyder ("Snyder"), Mark Bishop ("Bishop"), and multiple "John Doe" Defendants. Curran asserts claims against the Defendants pursuant to 42 U.S.C. § 1983 and Pennsylvania state law arising out of Cara's death while she was detained at the Venango County Prison ("VCP"). ECF No. 32 (Amended Complaint). All named Defendants have filed motions to dismiss the claims against them pursuant to Fed.R.Civ.P. 12(b)(6) as follows: the County at ECF No. 39; UPMC and Snyder at ECF No. 62; Maxim and Trowbridge at ECF No. 64; and Bishop at ECF No. 67. All four motions are before the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636. The undersigned respectfully recommends that (1) the County's motion (ECF No. 39) be granted, (2) UPMC and Snyder's motion (ECF No. 62) be granted in part and denied in part, (3) Maxim and Trowbridge's motion (ECF No. 64) be granted in part and denied in part, and (4) Bishop's motion (ECF No. 67) be granted.
II. Report
A. Procedural History and Claims
Curran filed her original Complaint on January 31, 2023. ECF No. 1. The County moved to dismiss the claims against it, prompting Curran to file an Amended Complaint. See ECF Nos. 20 (motion to dismiss), 32 (Amended Complaint). The Amended Complaint is the operative pleading before the Court and asserts the following eight claims:
Count
Claim
Defendants
I
Eighth and Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983 based on alleged failure to provide Cara with necessary medical care
All Defendants
II
Eighth and Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983 based on alleged failure to prevent illicit drugs from entering the prison
County, John Doe Corrections Officer and Bishop
III
Fourteenth Amendment supervisory liability/failure to train claim pursuant to 42 U.S.C. § 1983
County, UPMC, Maxim, and Bishop
IV
Fourteenth Amendment municipal liability/Monell pursuant to 42 U.S.C. § 1983
County, UPMC, Maxim
V
Negligence claim under Pennsylvania state law
UPMC, Maxim, Trowbridge, Snyder, John Doe Corrections Officer
VI
Wrongful death claim under Pennsylvania state law
UPMC, Maxim, Trowbridge, Snyder, John Doe Corrections Officer
VII
Survival claim under Pennsylvania state law
UPMC, Maxim, Trowbridge, Snyder and John Doe Corrections Officer
Id., pp. 6-18. Curran seeks compensatory and punitive damages. Id. As concerns the individual Defendants, Curran has sued Trowbridge, Snyder, and John Doe Corrections Officer in their individual capacities. See id, ¶¶ 5-6. But Curran's claims against Bishop (Counts I-III) are asserted against him solely in his official capacity as the Warden of the VCP. See id., ¶ 7.
VIII
Vicarious liability/respondeat superior claim under Pennsylvania state law
UPMC, Maxim
The four pending motions to dismiss have been fully briefed, see ECF Nos. 39, 48, 62, 64, 67, 70, 71, and 75, and are ripe for disposition.
B. Material Facts
The following facts are taken from the Amended Complaint and accepted as true for purposes of the pending motions to dismiss.
Cara entered the custody of the VCP on July 5, 2022. ECF No. 32, ¶ 12. At that time, the County had a contract or contracts with UPMC and Maxim to provide healthcare services for detainees and inmates at the VCP, and Trowbridge and Snyder were members of the VCP medical staff. Id., ¶¶ 17, 19. While detained at the VCP, Cara was seen by Trowbridge and Snyder. Cara presented with extremely swollen legs and an inability to walk, but Trowbridge and Snyder did not provide her with care to address these symptoms. Cara's cellmate and other inmates also asked Trowbridge, Snyder, and a “John Doe Corrections Officer” to attend to Cara's medical needs, but their requests were also ignored. Id., ¶ 19. Cara died on July 18, 2022, while still in the custody of the VCP. Id., ¶ 19. An autopsy determined that Cara died from “severe bilateral pyelonephritis [severe kidney infection] and acute bronchopneumonia.” Id., ¶ 24. At the time of her death, Cara “had active fentanyl and cocaine in her bloodstream.” Id., ¶ 15. Cara ingested these drugs while she was in the custody of the VCP. Id., ¶ 16. The County, UPMC, and Maxim “were responsible for creating, implementing, and enforcing policies, practices, and procedures to ensure that all pretrial detainees and prisoners are provided proper medical and proper behavioral healthcare while in custody.” Id., ¶ 18.
C. Standard of Decision
All named Defendants have moved to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Each motion tests the legal sufficiency of the allegations of the Amended Complaint to state a claim against the moving Defendants. See Kost v. Kozakiewicz, 1 F.3d 176,183 (3d Cir. 1993). In deciding a motion under Rule 12(b)(6), the court must accept as true all well-pled factual allegations in the complaint and view them in the 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 a 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 Iqbal, 556 U.S. 662. 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. Employee 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 of the pleading 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).
D. Discussion
1. Count I states a § 1983 claim against Trowbridge and Snyder based on deliberate indifference to Cara's serious medical needs.
Count I of the Amended Complaint is Curran's only claim against Trowbridge and Snyder pursuant to 42 U.S.C. § 1983. Curran's other claims against Trowbridge and Snyder are based on Pennsylvania state law. Count I asserts that Trowbridge and Snyder violated Cara's rights under the Eighth and Fourteenth Amendments to the Constitution by failing to provide her with adequate care for her serious medical needs. Although this claim is also asserted against the County, UPMC, Maxim, and Bishop in his official capacity as Warden of the VCP, Curran must allege facts to support additional elements to state a viable § 1983 claim against those Defendants. Accordingly, the Court will first address whether the Amended Complaint alleges facts sufficient to state a § 1983 claim against Trowbridge and Snyder.
As explained infra, Curran's claims against Bishop in his official capacity are essentially claims against the County and, thus, duplicative of the claims against the County.
Section 1983 authorizes a federal cause of action against any “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws..42 U.S.C. § 1983. To state a claim for relief under § 1983, a plaintiff must allege facts to support that a person acting under color of state law caused the violation of a right secured by the Constitution or laws of the United States. See Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487 U.S. 42, 48 (1988). Here, Curran alleges that both Trowbridge and Snyder were members of the VCP medical staff. See ECF No. 32, ¶¶ 17, 19. For pleading purposes, this allegation is sufficient to support an inference that Trowbridge and Snyder were state actors. See West v. Atkins, 487 U.S. 42, 54 (1988) (holding that medical personnel under contract with a state or prison to provide medical services to prisoners are state actors for purposes of 42 U.S.C. § 1983); Ford. v. Prison Health Servs., Inc., 1991 WL 137022, at *1 (E.D. Pa. July 17, 1991) (holding that a physician is a state actor under § 1983 where the physician worked for Prison Health Systems, which was under a contract with the state to provide medical services to prisoner).
The precise liability standard applicable to Curran's denial of adequate medical care claim depends on whether it arises under the Fourteenth Amendment or the Eighth Amendment to the Constitution, and that determination depends on Cara's status at the time of her detention in the VCP. The Due Process Clause of the Fourteenth Amendment applies to pretrial detainees' claims of inadequate medical care while the Eighth Amendment applies only “after [the State] has secured a formal adjudication of guilt in accordance with due process of law.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40 (1977)). To state a claim under the Eighth Amendment, an inmate must allege: (1) a serious medical need; and (2) behavior on the part of prison officials constituting deliberate indifference to that need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Fourteenth Amendment, however, protects pretrial detainees from “any and all punishment.” Montgomery v. Aparatis Dist. Co., 607 Fed.Appx. 184, 187 (3d Cir. 2015). The Court of Appeals for the Third Circuit has emphasized that while the Estelle analysis can inform the Fourteenth Amendment analysis applicable to pretrial detainees, the Eighth and Fourteenth Amendment standards are not identical. See Hubbard v. Taylor, 399 F.3d 150, 165-66 (2005) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)); Montgomery v. Ray, 145 Fed.Appx. 738, 740 (3d Cir. 2005) (vacating and remanding district court's entry of summary judgment for defendant premised on Estelle analysis in a case involving pretrial detainee's claims of inadequate medical care for consideration under the Fourteenth Amendment standard). See also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner”). “While the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner, the proper standard for examining such claims is the standard set forth in Bell v. Wolfish, i.e., whether the conditions of confinement (or here inadequate medical treatment) amounted to punishment prior to an adjudication of guilt.” Young v. Kubrin, 2022 WL 16637729, at *4 (W.D. Pa. Nov. 2, 2022) (citations omitted).
Curran's Amended Complaint does not expressly state whether Cara was a pretrial detainee or as an inmate following an adjudication of guilt. At this stage of the proceedings, however, it is unnecessary to determine Cara's precise status because the Amended Complaint alleges facts sufficient to state a claim against Trowbridge and Snyder under the arguably higher Eighth Amendment standard. See Moore v. Durand, 2023 WL 4884855, at 1 n.2 (3d Cir. Aug. 1, 2023 (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003).
The circumstances of Cara's detention, including her medical condition upon entering the VCP and the absence of any reference to a term of confinement, support an inference that she was a pretrial detainee, see ECF No. 32, ¶ 12, but such a finding is not necessary to resolve any of the pending motions to dismiss.
First, the facts alleged in the Amended Complaint are plainly adequate to satisfy the serious medical need element of the claim. According to the Amended Complaint, Cara presented with extremely swollen legs and an inability to walk; she also complained of severe pain; her need for prompt medical attention was sufficiently obvious that other inmates pleaded on her behalf; and, ultimately, she succumbed to a severe bilateral kidney infection and bronchopneumonia. See ECF No. 32, ¶¶ 19, 24. Second, as to Trowbridge and Snyder, the facts alleged are also sufficient to support the deliberate indifference element of the claim. To constitute deliberate indifference, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Ray v. Camacho, 2023 WL 5416221, at *1 (W.D. Pa. July 13, 2023), report and recommendation adopted, 2023 WL 5409433 (W.D. Pa. Aug. 22, 2023) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994). Circumstances that have been found to support a finding of deliberate indifference include “where (1) prison authorities deny reasonable requests for medical treatment, (2) knowledge of the need for medical care is accompanied by the intentional refusal to provide it, (3) necessary medical treatment is delayed for non-medical reasons, and (4) prison authorities prevent an inmate from receiving recommended treatment for serious medical needs.” Id. (citing Pearson v. Prison Health Serv., 850 F.3d 526, 538 (3d Cir. 2017)). The Court of Appeals for the Third Circuit has made clear that “there is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'” Wisniewski v. Frommer, 751 Fed.Appx. 192, 195-96 (3d Cir. Oct. 3, 2018) (quoting Pearson, 850 F.3d at 535). Where a medical provider exercises professional judgment, his or her treatment decisions will not violate a prisoner's constitutional rights. See Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Here, the Amended Complaint alleges that Trowbridge and Snyder exercised no professional judgment but, instead, “ignored” Cara's symptoms and serious medical needs. ECF No. 32, ¶¶ 14, 19-21. Thus, the Amended Complaint alleges facts to support that Trowbridge and Snyder each knew of Cara's serious medical need and responded with a complete denial of care. Accordingly, the motions to dismiss filed at ECF No. 62 and ECF No. 64 should be denied as to Count I against Snyder and Trowbridge.
The Amended Complaint identifies Trowbridge and Snyder as “medical staff' members at the VCP but does not identify their employers. See ECF No. 32, ¶ 5. Given that Snyder and UPMC have filed a joint motion to dismiss, one may surmise the existence of an employment relationship between the two. See, e.g., ECF No. 62, ¶ 1 (noting that UPMC and Snyder should be collectively referred to as “UPMC Defendants”). Similarly, based on the joint motion filed by Trowbridge and Maxim, it appears that the former is employed by the latter. See ECF No. 64.
2. AH claims against the County, UPMC, Maxim, and Bishop pursuant to § 1983 should be dismissed based on Curran's failure to allege facts sufficient to support a policy, custom or practice that caused Cara's constitutional injury.
Each of Counts I though IV of the Amended Complaint includes a § 1983 claim against some combination of the County, UPMC, Maxim, and Bishop. Count I asserts a violation of Cara's right to adequate medical care; Count II is based on a failure to prevent Cara's access to illicit drugs while detained in the VCP; Count III is a supervisory liability/failure to train claim; and Count IV is styled as a Monell claim. These four claims materially overlap in the elements Curran must support, and each suffers from common pleading deficiencies such that none states a claim against the County, UPMC, Maxim, or Bishop. Before addressing these common deficiencies, however, the Court can quickly dispose of the claims against Bishop.
a. The claims against Bishop in his official capacity are duplicative of those against the County.
Curran has sued Bishop, the Warden of the VCP, solely in his official capacity. See, ECF No. 32, ¶¶ 3, 7 (“Bishop ... is being sued in his official capacity only.”). “Official capacity” claims against municipal officials are indistinguishable from claims against the governmental entity that employs them. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent.” (quoting Monell v. Dep 't. of Social Services of City of New York, 436 U.S. 659, 690 n.55 (1978)). Bishop is an officer of the County, which is also a Defendant in this action. See ECF No. 32, ¶¶ 2, 7. Claims against official capacity defendants are routinely dismissed as redundant if the plaintiff has also sued that official's government employer. See, e.g., Pena v. City of Lancaster, 2023 WL 5807005, at *2 (E.D. Pa. Sep. 7, 2023); see also Bailey v. Lancaster Cnty., MM Fed.Appx. 30, 32 (3d Cir. 2012); Shelton v. City of Phila., 2021 WL 3857856, at *5 (E.D. Pa. Aug. 30, 2021) (collecting cases); Redclift v. Schuylkill Cnty., 2022 WL 2973819, at *7 (M.D. Pa. Aug. 31, 2022) (recognizing “the Third Circuit's practice of routinely affirming district court decisions that dismiss official capacity claims as duplicative”). This rationale applies here as Curran's official capacity claims against Bishop are entirely duplicative . of her claims against the County. Accordingly, Bishop's motion to dismiss (ECF No. 67) should be granted and the claims against him dismissed with prejudice.
b. Counts I-IV of the Amended Complaint fail to state a claim against the County, UPMC, or Maxim absent allegations of fact to support that the violation of Cara's constitutional rights was caused by a policy, custom or policy of one or more of these entity Defendants.
As discussed, the Amended Complaint alleges facts sufficient to state a constitutional claim against Trowbridge and Snyder based on their alleged failure to provide any care in response to Cara's serious medical need. Similar facts are alleged against a John Doe Corrections Officer, who presumably was an agent of the County. Although this John Doe Corrections Officer is not alleged to have been a member of the medical staff at the VCP, the allegations that he was aware of Cara's serious medical condition, her need for prompt medical attention, and the failure of medical personnel to respond to that need, plausibly supports a claim that he too violated Cara's Eighth or Fourteenth Amendment rights. Having found the allegations of the Amended Complaint sufficient to state § 1983 claims against the individual Defendants, the next question is whether the County, UPMC, or Maxim can also be held responsible for their violation of Cara's right to medical care.
This observation is limited to ascertaining whether the Amended Complaint plausibly alleges that an agent or employee of the County committed a constitutional violation. Absent such a violation, the analysis of whether the County can be held liable ends. See Ivy v. Wellpath, 2023 WL 4565328, at * 11 (W.D. Pa. July 17,2023) (noting that “the requirement of an underlying constitutional violation is implicit in the Third Circuit's Monell framework”) (quoting Lansberry v. Altoona Area Sch. Dist., 356 F.Supp.3d 486,497 (W.D. Pa. 2018)). Accordingly, the Court's recognition of a possible claim against a John Doe Corrections Officer is not an express finding that the Amended Complaint states such a claim. The John Doe Corrections Officers have yet to be identified and substituted as parties. Once named and served, they will have the right to assert any defense or motion authorized under the Federal Rules of Civil Procedure and supported by applicable law.
Like Trowbridge and Snyder, based on the allegations of the Amended Complaint, UPMC and Maxim are “state actors” for purposes of § 1983. The Amended Complaint alleges that the County “contracted with ... UPMC and Maxim ...” to provide medical care to VCP detainees and inmates. ECF No. 32, ¶ 17. That allegation is sufficient at this early stage of litigation to support UPMC and Maxim's status as state actors. See West v. Atkins, 487 U.S. 42 (1988) (private medical providers that treat inmates are generally held to be state actors for purposes of§ 1983); see also Neuenv. PrimeCare Med., Inc., 2011 WL 1104118, at *8 (E.D. Pa. Mar. 24, 2011) (“Private entities that contract with municipalities to provide services to prison inmates, as well as employees of those entities, are acting ‘under color of state law.'” (citation omitted)).
In Monell, the United States Supreme Court held that a municipality may be liable under § 1983 “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts injury that the government as an entity is responsible.” 436 U.S. at 694. This rule extends to private corporations, like UPMC and Maxim, that provide services pursuant to a government contract. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 n.4, 583 (3d Cir. 2003) Monell applies to other private organizations faced with liability under § 1983.”). Thus, UPMC and Maxim, as private corporations operating as state actors, are subject to the same standard of § 1983 liability as the County. This standard begins with the rule that a municipality's § 1983 liability does not arise “solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691. The same rule applies to a private corporation performing a governmental function, such as providing medical care to persons in the custody of a state or municipality. See Palakovic v. Wetzel, 854 F.3d 209, 232 (3d Cir. 2017). To state a claim against a municipality or “a private corporation providing medical services under contract with a state prison system [or municipality], a plaintiff must allege a policy or custom that resulted in the alleged constitutional violations at issue.” Id. (citing Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003)). In other words, whether the defendant is a governmental entity or a private corporation performing the functions of a governmental body, it may be liable under § 1983 for the constitutional violations committed by its subordinates only when they acted pursuant to its policies, customs, or practices. See id.
Accordingly, to state a § 1983 claim against the County, UPMC, or Maxim, Curran must allege facts to show that it, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [Cara's] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). The Court of Appeals has identified three situations where acts of a government employee or employee performing a government function may be deemed to be pursuant to a policy, practice, or custom of the entity for whom the employee works, thereby rendering the entity liable under § 1983: (1) “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,” (2) “where no rule has been announced as policy but federal law has been violated by an act of the policymaker itself,” or (3) “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.” Natale, 318 F.3d at 584 (internal quotation marks and citations omitted).
In this case, Curran does not allege that a policymaker at the County, UPMC, or Maxim adopted or promulgated a formal policy evincing a disregard for the serious medical needs of detainees at the VCP or one permitting illicit drugs to enter and be ingested at the VCP. To pursue such a theory of liability, Curran would have to “point to an official proclamation, policy or edict by a decisionmaker possessing final authority to establish municipal policy on the relevant subject.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019). She has not done so. Similarly, Curran does not allege that a policymaker at one of the Defendant entities acted to violate Cara's constitutional rights. Rather, Curran's § 1983 claims are based on the third liability scenario, i.e., the “custom” theory of liability.
A course of conduct not expressly authorized by law becomes a “custom” when the challenged “practices of state officials [are] so permanent and well settled” as to virtually constitute law. Monell, 436 U.S. at 690. Thus, to succeed on this theory, Curran must allege facts to support that one or more employees of the County, UPMC, and/or Maxim engaged in a pattern of deliberate indifference to the medical needs of inmates and detainees at the VCP or to the introduction of illicit drugs into the VCP and that a policymaker associated with one or more of the these entities knew of and acquiesced in that misconduct. She must also demonstrate that the custom was the proximate cause of Cara's injuries by pointing to an “affirmative link between the custom and the constitutional violation.” Smith v. McKinney, 2023 WL 6543531, at *9 (E.D. Pa. Oct. 6, 2023) (citing Est. of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019))).
As to the County, the Amended Complaint identifies Bishop, the Warden, as the “chief decision maker on prison policy at the [VCP] at the time in question.” ECF No. 32, ¶ 7. The Amended Complaint does not identify any policymaker for UPMC or Maxim or allege any facts to support an inference that a policymaker at either entity was on notice of unconstitutional conduct by its employees. The possible only link between UPMC and Maxim and Cara's deficient medical care is the speculation that UPMC employed Snyder and Maxim employed Trowbridge. The Amended Complaint alleges no facts to support an inference that a pattern of deficient medical care existed on either's watch, let alone that a policymaker or any other person associated with UPMC or Maxim acquiesced in such a pattern. And the Amended Complaint fails to allege facts to support that Bishop acquiesced in a pattern or custom of deliberate indifference to prisoner medical needs or the presence of illicit drugs in the prison. These omissions are fatal to Curran's claims against the County, UPMC and Maxim. See McTernan v. City of York, PA, 564 F.3d 636, 658-59 (3d Cir. 2009) (“Although [plaintiff] maintains that York officers ‘periodically' instructed protesters to exit the alley, he does not plead knowledge of such directives by a municipal decisionmaker, such as the Mayor or Police Chief... Nor do the allegations support, indirectly, such an inference.”).
The Amended Complaint alleges generally how Trowbridge, Snyder, and a John Doe Corrections Officer failed to respond properly to Cara's medical needs. See id., ¶¶ 19-23. While these allegations are minimally sufficient to support a claim against Trowbridge, Snyder, and potentially the John Doe Corrections Officer, neither these allegations nor any others support an inference that their failures were pursuant to any policy or custom of the County, UPMC, or Maxim. Curran attempts to mask the factual deficiencies of her pleading with conclusory allegations against all “Defendants.” Except for allegations that Trowbridge, Snyder, and John Doe Corrections Officer neglected Cara's medical needs, however, the Amended Complaint includes no factual allegations tying any Defendant to actionable conduct.
A plaintiff advancing a Monell claim based on a municipal custom theory typically must show a pattern of similar constitutional violations known to a policymaker and concerning which the policymaker failed to respond properly. See Connickv. Thompson, 563 U.S. 51, 54 (2011). As support for her claim that the County had a custom of deliberate indifference to the medical needs of VCP inmates and to the introduction of drugs into the VCP, Curran points to three other lawsuits that have been filed against the County: Selby v. Caffery, 1:20-cv-240 (W.D. Pa), Happel v. Bishop, l:22-cv-347 (W.D. Pa), and Strawbridge v. Venango County, l:19-cv-272 (W.D. Pa). See ECF No. 32, ¶ 33 (a)-(c). Curran argues that these cases demonstrate a pattern sufficient to support a finding that the County was deliberately indifferent to the medical needs of inmates and to the introduction of illicit drugs into the VCP. An examination of these cases reveals, however, that the unsubstantiated allegations upon which each is based are not sufficiently similar to the facts Curran alleges to evidence a pattern as that term has been defined and interpreted by the Supreme Court and courts within this Circuit.
The Selby case was based on an alleged assault by one inmate at VCP upon another inmate. Selby v. Caffery, 1:20-cv-240 at ECF No. 1. An early neutral evaluation failed to resolve the case. Id., at ECF No. 19. Thereafter, the parties engaged in discovery, at the, conclusion of which the plaintiff filed a notice of voluntary dismissal in which he acknowledged that his claim against the sole defendant was factually unsubstantiated. Id., at ECF Nos. 24-25. Strawbridge, an action commenced against the County in 2019, was based on an inmate's prison suicide. In that case, the plaintiff affirmatively alleged that the prison had a specific policy regarding how to respond to a report of an inmate's suicidality, but a corrections officer failed to follow the policy. The plaintiff asserted that this alleged failure evidenced inadequate training of corrections officers. Strawbridge v. Venango County, l:19-cv-272 at ECF No. 1. An early mediation resulted in a settlement of the case before it proceeded to discovery, prompting the plaintiff to voluntarily dismiss the action. Id. at ECF No. 15-18. In the Happel case, the plaintiff challenged the refusal of medical personnel at the VCP to prescribe the specific treatment protocols and medication he requested to ease his withdrawal from opioid addiction. Happel v. Bishop, 1:22-cv-347, ECF No. 9. The plaintiff voluntarily dismissed the case. Id. at ECF No. 17, 19. But Happel also commenced a similar action in state court that the defendants removed to federal court. See Happel v. Venango Cnty. Prison, No. 1:23-cv-00013. In his amended complaint in that action, Happel acknowledged that VCP medical personnel provided him with I treatment and medications to address and ease his opioid addiction but complained that they did not provide him with the “gold standard of opioid treatment.” Id. at ECF No. 18, ¶ 7. Motions to dismiss the amended complaint are currently pending in the action. Id. at ECF No. 49, 53, 55.
As relevant case law demonstrates, the three cases relied upon by Curran do not support a municipal custom that resulted in Cara's constitutional injury. First, the Supreme Court's reasoning in Connick v. Thompson is instructive as to the level of specificity and factual correspondence needed to demonstrate a pattern of similar violations for the purpose of establishing a municipality's deliberate indifference. The plaintiff in Connick sued the district attorney's office that prosecuted him after his conviction was overturned because the prosecution failed to disclose a potentially exculpatory crime lab report in violation of Brady v. Maryland, 373 U.S. 83 (1963). Connick, 563 U.S. at 57. As evidence of a pattern of “deliberate indifference to an obvious need to train ... prosecutors ... in order to avoid such constitutional violations,” the plaintiff pointed to four other cases in which the same district attorney's office had convictions overturned for Brady violations. The Supreme Court held that the four reversals could not serve to establish a pattern of violations sufficient to put the office on notice that its training was inadequate because the earlier Brady violations did not involve the specific types of evidence that the district attorney's office failed to turn over in plaintiffs case. Connick, 563 U.S. at 62-63. Consistent with the Court's reasoning in Connick, federal courts in this Circuit and elsewhere have rejected reliance upon prior lawsuits as supporting a pattern of misconduct or deliberate indifference. See, e.g., Postie v. Frederick, 2016 WL 4521855, at *5 (M.D. Pa. Aug. 8, 2016), report and recommendation adopted, 2016 WL 4502499 (M.D. Pa. Aug. 29, 2016) (holding that complaint failed to support a pattern of constitutional violations despite attaching four lawsuits in which the defendant township was sued for various alleged Fourth Amendment violations committed by the defendant police officer and other township police officers); Gonzalez v. Borough of Red Bank, 2020 WL 2029338, at *10 (D.N.J. Apr. 28, 2020) (holding that “two civil complaints that generally involve alleged excessive force and fabrication of evidence..., standing alone, do not demonstrate that the Municipal Defendants had knowledge of a prior pattern of similar incidents committed by” the defendant officers”); Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir.2005) (holding that where prior excessive force cases did not involve substantially similar factual situations, plaintiff could not make out a custom); Pharaoh v. Dewees, 2016 WL 2593842, at *7 (E.D. Pa. May'4, 2016) (holding that five excessive force lawsuits - two that resulted injury verdicts for the defendants and three that were settled -did not “establish that [the officer's] actions constituted a pattern of using excessive force.”); Brown y. Ridley Twp., 2015 WL 568640, at *6 (E.D. Pa. Feb. 10, 2015) (holding that several lawsuits and newspaper articles detailing police officers' use of tasers in specific incidents did not evidence a custom because their factual allegations did not demonstrate that the defendant municipality was “aware of any similar taser-related conduct by their police officers and then failed to take appropriate precautions.”). The three lawsuits cited by Curran in this case provide even less support for a pattern of misconduct than those rejected in the cases cited above.
Curran also alleges that a community organization, “Speak Up Venango,” has gathered information that demonstrates a custom or practice of deliberate indifference on the part of the County. Specifically, she alleges that this organization “has compiled a list of complaints against the Venango County Prison, including but not limited to a list of Venango County Correctional Officers complaining about the lack of medical care available to inmates” at the VCP. ECF No. 32; ¶ 34. Curran alleges that these unspecified complaints “are tantamount to a de facto custom or policy of deliberate indifference and failure to provide medical care to inmates at the Venango County Prison.” Id. This allegation, however, is entirely devoid of factual support. The Amended Complaint provides no information upon which the Court can find that the “complaints” have the case specific similarity that the Supreme Court and other federal courts consistently require to support the existence of a relevant pattern of misconduct. This allegation also lacks any basis upon which to infer that the “complaints” have substance or that a policymaker received them and failed to respond to them. For a custom to have been the proximate cause of Cara's death, the County must have “had knowledge of similar unlawful conduct in the past, failed to take precautions against future violations, and that its failure, at least in part, led to [plaintiffs] injury.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). The plaintiff must plead facts to support such a finding. Allegations such as Curran's that simply paraphrase the standard for municipal liability are plainly insufficient. See, e.g, Szerensci v. Shimshock, 2021 WL 4480172, at *7 (W.D. Pa. Sept 30, 2021).
c. Count II of the Amended Complaint also fails to state a § 1983 claim against any Defendant.
The claim asserted in Count II of the Amended Complaint that the County maintained a policy or custom that facilitated Cara's exposure to illicit drugs is even more bereft of factual support than its medical neglect claim. The only fact alleged concerning this claim is that fentanyl and cocaine were found in Cara's bloodstream following her death. See id, ¶ 15. This isolated incident of drug use in the VCP does not support a claim. Brooks v. Harper, 2023 WL 2653471, at *7 (W.D. Pa. Mar. 2, 2023), report and recommendation adopted, 2023 WL 2649089 (W.D. Pa. Mar. 27, 2023) (holding that “[t]he presence of and risk of exposure to illegal drugs in prison does not in itself give rise to a Constitutional violation, and an isolated instance of Plaintiffs consumption of it... cannot alone sustain a claim that Defendants knew of and recklessly disregarded an unreasonable risk of such an occurrence”). Also inadequate is the Amended Complaint's factually unsupported assertion that “Defendants knew there was a pervasive drug smuggling problem at the Venango County Prison,” and “Defendants ignored their knowledge and did not do anything to curb the introduction, spread, and usage of dangerous drugs in prison, despite their direct knowledge from prisoners regarding drugs in the prison.” ECF No. 32, ¶¶ 51, 53. These allegations are mere conclusions of law masquerading as allegations of fact. See Caraway v. CoreCivic of Tennessee, LLC, 2023 WL 2799732, at * 11 (W.D. Tenn. Apr. 5, 2023) (complaint failed to state a claim where “Plaintiff merely alleges that [defendant] had a policy and/or custom of chronically understaffing its facilities to save money and this understaffmg led to an influx of illegal drugs which ultimately resulted in the death of the Decedent[, but alleged] no facts to connect that understaffing to the drugs that killed Decedent”). Curran's allegations stand in sharp contrast to those that have been found sufficient to state a deliberate indifference claim based on the presence of drugs in a prison or jail. See Zakora v. Chrisman, 44 F.4th 452, 460 (6th Cir. 2023) (complaint stated an Eighth Amendment deliberate indifference claim where it included factual allegations regarding two specific instances of drug smuggling and overdoses in a small unit of the prison where the plaintiff s decedent died a short time later and identified specific prison officials who received reports of the prior smuggling and overdoses but took no action to investigate or respond).
d. The Amended Complaint fails to state a § 1983 “failure to train” claim or any other “failure” claim against any Defendant.
To the extent the Amended Complaint asserts a “failure to train” theory of liability, see ECF No. 26, ¶ 82, it fails for similar reasons. The Supreme Court has recognized a cause of action for failure to train, supervise, or discipline employees under § 1983 where the need for different or additional training was apparent and the defendant's failure to respond to this need amounted to a “deliberate indifference to the rights of [others].” City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). Canton teaches that the failure to train an employee must be a choice on the part of the supervisor or supervising entity knowing that the training that is (or is not) being provided is not sufficient for the employees and the choices they encounter on the job. 489 U.S. at 388-90.
To maintain a claim for failure to train, a plaintiff must show that “a responsible municipal policymaker had contemporaneous knowledge of the offending occurrence or knowledge of a pattern of prior incidents of similar violations of constitutional rights and failed to take adequate measures to ensure the particular right in question or otherwise communicated a message of approval to the offending subordinates.” Garcia v. Cnty. Of Bucks, Pa, 155 F.Supp.2d 259, 268 (E.D. Pa. 2001) (citations omitted). “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for ... failure to train.” Simpson v. Ferry, 2016 WL 4247546, at *7 (E.D. Pa. Aug. 10, 2016) (internal quotation marks and further quotations omitted). Alternatively, “a need for training or other corrective action to avoid imminent deprivations of a constitutional right must be so apparent that any reasonable policymaker or supervisor would have taken appropriate preventive measures.” Garcia, 155 F.Supp.2d at 268. A failure to train claim also requires a plaintiff to identify specific training not provided that could reasonably be expected to prevent the injury that occurred. Joines v. Twp. Of Ridley, 229 Fed.Appx. 161, 163 (3d Cir. 2007). Curran has not alleged facts to support any of the requirements necessary to support a failure to train claim.
As previously discussed, the Amended Complaint alleges only the isolated incident of neglect to Cara's serious medical needs. It does not allege any facts to show a pattern of similar constitutional violations by untrained employees. Curran cannot rely upon the alleged failures relating to Cara's care alone to show a pattern. Tirado v. Montgomery Cty., Pa., 2013 WL 1285487, at *7 (E.D. Pa. Mar. 29, 2013) (“Generally, deficient training can only amount to the requisite deliberate indifference ‘where the failure to train has caused a pattern of violations.'”) (quoting Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)). And it is not enough for Curran to allege in conclusory terms that “[h]ad Defendants Venango County and their subcontractors, UPMC and Maxim Healthcare Staffing, .. .adequately trained and/or supervised the individual defendants, the decedent would have received appropriate care and supervision.” ECF No. 26, ¶ 82. See Yoast v. Pottstown Borough, 437 F.Supp.3d 403, 431 (E.D. Pa. 2020). Curran must identify a specific training deficiency or deficiencies that led directly to Cara's injury. Id.', Joines, 229 Fed.Appx. At 163. She has failed to do so.
The Amended Complaint also alleges the following additional “failures” on the part of the County, UPMC, and Maxim:
• The Defendants failed to create, implement and enforce policies, practices, and procedures to ensure that proper care was provided to the decedent.
• The Defendants failed to ensure that medical personnel properly examined inmates complaining of physical health complaints while detained at the VCP.
• The County failed to ensure that UPMC and Maxim properly treated patients at the VCP.
• The County failed to provide medical personnel and staff to treat inmates with physical complaints while detained.ECF No. 32, ¶¶ 29-32. These allegations suffer from the same deficiencies as Curran's “failure to train” claim. They are mere conclusions and unsupported by facts. See Groman v. Twp. Of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (holding that “vague assertions” ... without more, are not sufficient to state a claim under Monell). As such, they do not support a § 1983 claim against the County, UPMC, or Maxim.
3. Count V states a negligence claim against Snyder and Trowbridge but not against UPMC or Maxim, and Count VIII fails to state a vicarious liability claim against UPMC or Maxim.
Count V of the Amended Complaint asserts an “ordinary negligence” claim against UPMC, Maxim, Trowbridge, Snyder, and the John Doe Corrections Defendants. See ECF No. 32, ¶¶ 87-93. Curiously, the Amended Complaint disclaims any characterization of this claim as one for “medical negligence.” Id., ¶ 88. Maxim and Trowbridge argue that this claim is plainly a medical malpractice claim. See, e.g., ECF No. 65, p. 9. Whether this claim is a professional negligence claim or an ordinary negligence claim may have a significant impact on its ultimate disposition, but at this stage the proceedings, and based on the arguments for dismissal presently raised by the Defendants, the label attached to the claim is of no moment. Therefore, the Court will analyze Count V based on the well-established elements of negligence and the sufficiency of Curran's allegations of fact to satisfy those elements as to each Defendant to that claim.
For example, if the claim is one for professional negligence, Curran may be required to file a Certificate of Merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011). Challenges to claims based on the absence or alleged insufficiency of a Certificate of Merit are best addressed under Rule 56 and according to the summary judgment standard, not under Rule 12(b)(6). See id. at 263 (noting that the COM “does not have any ‘effect on what is included in the pleadings of a case or the specificity thereof”) (citation omitted); Schmigel v. Uchal, 800 F.3d 113, 122 (3d Cir. 2015) (“the COM requirement and its conditions are facts that can form the basis for a motion for summary judgment”) (citation omitted).
A negligence claim under Pennsylvania law requires proof of four elements: “(1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa. 2012). Therefore, at the pleading stage, a plaintiff asserting a cause of action for negligence must first allege facts that establish the breach of a legally recognized duty or obligation of the defendant that is causally connected to actual damages suffered by the plaintiff. See id. at 596. The plaintiff proves the duty and breach elements by “showing that the defendant's act or omission fell below the standard of care and, therefore, increased the risk of harm to the plaintiff.” Id. Once plaintiff has successfully met this burden, the plaintiff must further demonstrate the causal connection between the breach of a duty of care and the harm alleged. Id.
UPMC and Snyder argue that the allegations of the Amended Complaint are insufficient to support the duty of care and breach elements of the general negligence claim against them. ECF No. 63, pp. 14-15. The Court finds that the facts alleged support a duty of care on the part of both UPMC and Snyder and support a breach of duty by Snyder, but they do not support any independent breach of duty by UPMC. The Amended Complaint alleges that UPMC contracted with the County to provide medical services to inmates and detainees at the VCP and that Snyder is a member of the medical staff at the prison. The Amended Complaint does not detail the terms of the contract between UPMC and the County. Nevertheless, its description of that agreement, while minimal, is sufficient to support a plausible inference of a legal duty on the part of UPMC to provide reasonable care to inmates and detainees such as Cara. The Amended Complaint's identification of Snyder as a member of the medical staff similarly supports such a duty on her part. And Snyder's alleged neglect of the patently serious symptoms Cara presented is sufficient to support a plausible inference that she breached her duty of care. Thus, the Amended Complaint satisfies the two elements of the negligence claim challenged by Snyder and her motion to dismiss Count V of the Amended Complaint should be denied.
The Amended Complaint, however, includes no allegations of fact to support that UPMC independently breached its duty of care to Cara. Instead, the Amended Complaint offers only conclusions of law to support this element of the claim. And, assuming an employment or agency relationship existed between UPMC and Snyder, Curran may have a claim against UPMC based on respondeat superior liability, but the Amended Complaint alleges no such relationship. The Court surmises that such a relationship may exist based on counsel's joint representation of UPMC and Snyder and their joint motion to dismiss. But this circumstance is not a substitute for pleading facts to support the relationship. Accordingly, the Court should dismiss Count V against UPMC, but as with most of the other claims recommended for dismissal herein, Curran should be given a final opportunity to amend to cure the deficiencies of the claim.
The allegations against Trowbridge and Maxim largely correspond to those against Snyder and UPMC. Maxim is alleged to have provided medical services to prisoners at the VCP under a contract with the County, and Trowbridge is alleged to have been a member of the medical staff who was responsible for providing such care and who directly interacted with Cara. Like the allegations against UPMC and Snyder, the Amended Complaint does not allege any relationship between Maxim and Trowbridge. Given these parallel allegations, the Court reaches the same conclusions regarding the sufficiency of the negligence claim against Trowbridge and Maxim as it did regarding that claim against Snyder and UPMC. Their joint motion to dismiss Count V should be granted as to the Maxim and denied as to Trowbridge.
4. Count VI and VII state Wrongful Death and Survivor Act claims against Snyder and Trowbridge but not against UPMC or Maxim.
Count VI is a claim for wrongful death under Pennsylvania law. See ECF No. 32, ¶¶ 94102. Count VII is a survival action. Under Pennsylvania law, “wrongful death and survival actions are not substantive causes of action; rather, they provide a vehicle through which plaintiffs can recover for unlawful conduct that results in death.” 42 PA. CONS. STAT. §§ 8301, 8302; see also Johnson v. City of Phila., 105 F.Supp.3d 474, 483 (E.D. Pa. 2015) (citing Sullivan v. Warminster Twp., 765 F.Supp.2d 687, 707 (E.D. Pa. 2011); Carroll v. Skloff, 202 A.2d 9,10-11 (Pa. 1964)). Plaintiffs asserting these claims must assert some other independent, cognizable claim to survive a motion to dismiss wrongful death and survival claims. See Salvio v. Amgen, Inc., 810 F.Supp.2d 745, 757 (W.D. Pa. 2011) (dismissing wrongful death and survival claims because they “cannot be brought... as claims in-and-of themselves, because an underlying claim, such as negligence, is needed for these claims to be cognizant...”); Palakovic V. Wetzel, No. 3:14-cv-145, 2015 WL 3937499, at *12 (W.D. Pa. June 26, 2015), rev'don other grounds, 854 F.3d 209 (3d Cir. 2017). Wrongful death and survival actions have often been brought alongside § 1983 claims. Section 1983 is recognized as a sufficient underlying basis for wrongful death and survival claims under Pennsylvania law. See, e.g, Maldet v. Johnstown Police Dep't, 2019 WL 2435869, at *5 (W.D. Pa. June 11, 2019) (citing Estate of Kempf v. Washington Cty., 2018 WL 4354547 (W.D. Pa. Sept. 12, 2018)). Thus, if a plaintiff has pleaded a successful § 1983 claim, then their wrongful death and survival action claims should be allowed to proceed. Summers v. City of Phila., 2017 WL 2734277, at *28-29 (E.D. Pa. June 26, 2017); Maldet, 2019 WL 2435869, at *7.
Because Curran's Eighth Amendment deliberate indifference to medical needs and state law negligence claims against Trowbridge and Snyder should proceed, her state-law wrongful death and survivorship claims also should proceed against those Defendants. Conversely, because the Amended Complaint fails to state a claim for § 1983 liability against UPMC and Maxim, the wrongful death and survivorship claims against those entities should be dismissed.
Maxim also argues that Curran has failed to properly identify the beneficiaries of the claims and their relationship to the decedent. See ECF No. 65, p. 10. Pennsylvania Rule of Civil Procedure 2204 requires that the plaintiff “state the plaintiffs relationship to the decedent, the plaintiffs right to bring the action, the names and last known residence addresses of all persons entitled to recover damages, their relationship to the decedent and that the action was brought on their behalf.” See also Bouchon v. Citizen Care, Inc., 176 A.3d 244, 259 (Pa., Supr. Ct. 2017). Here, the Amended Complaint identifies Curran as Cara's mother and as administrator of Cara's estate and provides her address, but it does not list the names and addresses of any beneficiaries of the estate. See ECF No. 32, ¶ 1. The Court regards the requirements of Pennsylvania Rule 2204 as procedural, rather than substantive, and therefore not a proper ground upon which to challenge the legal sufficiency of wrongful death claim, particularly given the derivative nature of this claim. See Rothschild v. Ritter, 4 F.R.D. 495, 496 (M.D. Pa. Oct. 9, 1945). See also Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (federal courts apply state substantive law but federal procedural law).
Lastly, Count VIII is a claim for “vicarious liability-respondeat superior” against Defendants UPMC and Maxim. ECF No. 32, ¶¶ 110-115. Here, Curran attempts to hold UPMC and Maxim liable for the negligence of Trowbridge and Snyder. See id. This claim should be dismissed as Curran has yet to allege facts to support an employment or agency relationship between either individual Defendant and either entity Defendant. See discussion, supra.
5. Leave to amend should be granted except as to the claims against Bishop in his official capacity.
Where the Court determines that a civil rights complaint should be dismissed, in whole or in part, pursuant to Fed.R.Civ.P. 12(b)(6), it must provide the plaintiff an opportunity to amend the pleading, even if not requested, unless such amendment involves bad faith, would cause undue delay or prejudice, or would be futile. Ferreiras v. CHCA Rice-Grego, et al., 2021 WL 3056812, at *1 (W.D. Pa. June 7, 2021), report and recommendation adopted sub nom. Ferreiras v. Rice-Grego, 2021 WL 3056206 (W.D. Pa. July 20, 2021) (citing AIston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)) (prisoner civil rights case)). See also Grant v. Pennsylvania Dep't of Corr., 2021 WL 4312451, at *14 (W.D. Pa. Aug. 6, 2021), report and recommendation adopted, 2021 WL 3828146 (W.D. Pa. Aug. 27, 2021)). Here, Curran may be able to cure the deficiencies identified in this Report, except the redundancy of her claims against Bishop in his official capacity. Accordingly, it is recommended that all claims recommended for dismissal herein be dismissed without prejudice except her claims against Bishop in his official capacity, which should be dismissed with prejudice. It is further recommended that Curran be granted leave to file a Second Amended Complaint within a reasonable time following adoption of this Report and Recommendation.
III. Conclusion
For the reasons explained above, it is recommended that:
• the County's motion to dismiss (ECF No. 39) be GRANTED and that all claims against the County (Counts I-IV) be dismissed, without prejudice, and with leave to amend;
• UPMC and Snyder's motion to dismiss (ECF No. 62) be GRANTED as to all claims against UPMC (Counts I, III, IV) and that these claims be dismissed, without prejudice, and with leave to amend, and DENIED as to all claims against Snyder (Counts I, V, VI, and VII);
• Maxim and Trowbridge's motion to dismiss (ECF No. 64) be GRANTED as to all claims against Maxim (Counts I, III, IV) and that these claims be dismissed, without prejudice, and with leave to amend, and DENIED as to all claims against Trowbridge (Counts I, V, VI, and VII); and
• Bishop's motion (ECF No. 67) be granted and that all claims against him (Counts I, II, III) be dismissed, with prejudice. .
IV. Notice to the Parties Concerning Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).
DATED this 2nd day of November, 2023.