Opinion
Case No. 3:17-cv-222-KRG-KAP
09-10-2019
ISAIAH J. GIVENS, Jr., Plaintiff, v. DR. MUHAMMAD G. NAJI, et al., Defendants
Report and Recommendation
Recommendation
Plaintiff Isaiah Givens is a longtime inmate in the Pennsylvania Department of Corrections system who has Buerger's disease, a condition that has caused circulatory difficulties leading to the amputation of one of plaintiff's toes and that may according to plaintiff cause more amputations in the future. Plaintiff alleges that defendants were deliberately indifferent to this serious medical need, committed professional negligence in their treatment of his condition, and denied him access to programs and services in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 121321.
I recommend that the motion to dismiss of defendants Cantolina and Pearson, ECF no. 70, be granted as explained below.
I recommend that the motion to dismiss of defendants Barnes, Correct Care Solutions, Nagle, Naji, Thornley, and Turner, ECF no. 68, be granted in part and denied in part as explained below. After three tries it would be inequitable to permit further amendment of the complaint.
Report
Plaintiff filed a civil complaint on November 21, 2017, ECF no. 1, amended on December 21, 2017, ECF no. 9, alleging the liability of various employees and contractors of the Pennsylvania Department of Corrections for their provision of allegedly inadequate medical care to plaintiff during his incarceration at S.C.I. Huntingdon and S.C.I. Houtzdale. In response to my Report and Recommendation addressing the first round of motions to dismiss, see the corrected copy of the Report and Recommendation at ECF no. 59 (that was adopted in part at ECF no. 74) plaintiff filed a Second Amended Complaint at ECF no. 64 that repeats and in some respects amplifies the first two versions of the complaint.
Two preliminary comments: first, the Second Amended Complaint makes allegations against defendant Hardesty based on events that took place while plaintiff was incarcerated at Huntingdon during the 1990s. Except for noting the plaintiff's change in the date of the last relevant action by Dr. Hardesty from 1997 to 1999, the allegations do not need not to be discussed because Hardesty has been completely dismissed from this matter.
Second, plaintiff names ten John/Jane Doe defendants. Plaintiff, beginning with Second Amended Complaint at ¶6, alleges that these unidentified defendants echoed exactly the actions of the named defendants. Since by definition these Doe defendants cannot have been served and do not have representation, no one challenges the adequacy of the Second Amended Complaint as to them. The Prison Litigation Reform Act (PLRA), however, requires my independent screening of the adequacy of a complaint.
Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to name all the party defendants in the caption to the original complaint. There is no provision in Rule 10 or elsewhere that permits or prohibits the use of fictitious names for defendants. The customary rule is to permit John/Jane Doe defendants until the defendant is sufficiently identified to permit service of process. Often a time limit is placed on this process, and courts also hold that the use of a fictitious name for a defendant will not be permitted if ignorance of the defendant's identity is the result of lack of reasonable inquiry. Stratton v. City of Boston, 731 F. Supp. 42, 45 (D. Mass. 1989), citing 2A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice ¶10.02 (2d ed.1989), and Saffron v. Wilson, 70 F.R.D. 51, 56 (D.D.C.1975). If after adequate time to conduct discovery a party cannot identify the Doe defendant, the complaint is properly dismissed without prejudice as to the Doe defendant. Scheetz v. Morning Call, Inc., 747 F. Supp. 1515, 1534-35 (E.D.Pa.1990), aff'd 946 F.2d 202 (3d Cir.1991).
It should not require my pointing out that the reason for these customary rules is, as Fed.R.Civ.P. 1 commands, to do justice with a minimum of delay and expense, not to do precisely the opposite by allowing a plaintiff to create contingent defendants. A properly named Doe defendant is an entity (in this case a person who provided or denied medical services to plaintiff) whose existence is certain but whose identity is uncertain. Someone whose existence is not even certain is improperly put forward as an expense-adding and case-delaying (since no one can move to dismiss a complaint on behalf of a contingent party) Doe defendant.
Since with one exception (discussed below) none of the ten Doe defendants in the Second Amended Complaint is alleged to have taken a single action distinguishable from those of the named defendants - or even from any of the other nine Doe defendants, see Second Amended Complaint at ¶20 - it should be obvious that (despite plaintiff's implicit assertion that there are ten of them) their existence is speculative. If they did exist, plaintiff's ability to describe (albeit in a conclusory fashion that echoes the alleged actions of the named defendants) the actions they took that injured plaintiff since his incarceration at Huntingdon in the 1990s coupled with plaintiff's ignorance of their identity for up to twenty years would be a textbook example of a lack of reasonable inquiry.
The one exception to this class of nonentities is Second Amended Complaint at ¶62, where John Doe #1 allegedly informed plaintiff that his pain medication would expire if not renewed by November 14, 2017. But this incident is trivial and the allegations state no claim: the Doe defendant is not alleged to have done anything to cause the end of this treatment.
Further, the PLRA's exhaustion of remedies requirement in the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C.§ 1997e(a), applicable here, provides: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted[,] and, as I noted in my first Report and Recommendation, one of the requirements of the relevant administrative remedy process is that the grievant identify the persons against whom a remedy is sought. In short, the Doe defendants should be dismissed.
The Second Amended Complaint at ¶6 alleges without specifics that defendants Naji, Barnes, Thornley, Nagle, and Cantolina "delayed medical treatment and/or interfered with Mr. Given's access to medical treatment for Buerger's disease." This condition had been documented in plaintiff's medical records by Dr. Hardesty in the 1990s. Second Amended Complaint at ¶28.
Plaintiff begins to explain the conclusory accusation of ¶6 in and about ¶29. Allegedly, while at Houtzdale in 2014, plaintiff cut the second toe of his right foot under the nail and reported to sick call. Defendants Barnes (a nurse practitioner and wound care specialist), Thornley (a physician assistant), and Nagle (a physician assistant), treated plaintiff by trimming the callus on top of and underneath the toe on a weekly basis until about July 2017. Allegedly they did not tell plaintiff that he had Buerger's disease, and they were aware that their "merely treating a symptom" of Buerger's disease "would result in severe health consequences" to plaintiff. Second Amended Complaint at ¶29.
During this course of treatment, in 2016 plaintiff was seen in the office of an outside podiatrist, Dr. Murray, and an unidentified assistant to Dr. Murray suggested that plaintiff have his toe removed because the "toe was at that time deteriorating and the bone was protruding." Second Amended Complaint at ¶ 30.
In June or July of 2017, defendants Thornley and Nagle during one of their treatments of plaintiff smelled a pungent odor from plaintiff's toe. Someone prescribed an antibiotic "without success," and Nagle did not change this prescription. Second Amended Complaint at ¶31, ¶32. By "early July" Nagle observed that the toe had turned black." Second Amended Complaint at ¶33. On July 31, 2017, plaintiff was taken to an outside hospital, where a PA named Dave removed scar tissue from the toe. Second Amended Complaint at ¶34. At a followup appointment on August 7, 2017, PA Dave scheduled an appointment for plaintiff with Dr. Maitra, a vascular surgeon. Second Amended Complaint at ¶36. Dr. Maitra opined that the toe would have to be amputated, and recommended an angioplasty of plaintiff's right leg (or failing that, an arterial bypass) to improve circulation and therefore the healing after the amputation. Angioplasty took place on August 10, 2017. Second Amended Complaint at ¶36, ¶37.
Back at Houtzdale on August 15, 2017, Dr. Naji, the medical director at Houtzdale, told plaintiff for the first time that he had Buerger's disease, that he had dry gangrene in his toe, that no intervention was possible (and he would not be scheduled for an appointment to discuss a bypass, Second Amended Complaint at ¶72), and that the care he would receive would be pain management until the "toe fell off on its own." In fact amputation was not only possible but medically necessary, and Dr. Naji chose "gleefully" and "malevolently" to give plaintiff false medical information to terrify him. Second Amended Complaint at ¶40-¶46.
Plaintiff was prescribed ibuprofen, and when he sought Tylenol with codeine, defendant Cantolina (a nurse) told him on September 19, 2017 that if he persisted in his request for stronger pain medication or filed grievances about those requests he would be moved to infirmary housing. Cantolina did this allegedly to intimidate plaintiff because she knew plaintiff had an "abject fear of being housed in the infirmary unit." Second Amended Complaint at ¶49.
On September 20, 2017, plaintiff returned to the outside hospital and was told by a PA named Whitney that amputation of his toe was necessary. This was performed on November 3, 2017. In the period of time before surgery, on October 10, 2017, a nurse named Knowles recommended to defendant Pearson (who "supervised medical personnel at Houtzdale" Second Amended Complaint at ¶14), that plaintiff have his pain medication increased, but Pearson refused for two reasons: 1) to punish plaintiff for filing grievances; and 2) to comply with an unwritten policy of defendant Correct Care Solutions (which supervises and oversees provision of medical services at Houtzdale. Second Amended Complaint at ¶21) to "limit prisoner medical care for nonmedical reasons even when such limitations will harm the patient." Second Amended Complaint at ¶52.
Also in the month of October, on one occasion after defendant Thornley examined plaintiff's toe, defendant Barnes rebuffed plaintiff's request that Barnes examine the toe as well. Second Amended Complaint at ¶53.
After plaintiff's toe was amputated on November 3, 2017, he was admitted to the hospital and remained there for five days before his return to Houtzdale on November 8, 2017. Pearson encountered plaintiff shortly thereafter and was "noticeably perturbed" that plaintiff had been admitted. Pearson told plaintiff that he was going to receive only ibuprofen for pain relief, in order 1) to punish plaintiff for "breaking the unwritten policy" of defendant CCS, or of the Pennsylvania Department of Corrections, or of Houtzdale to limit prisoner medical care for nonmedical reasons even when such limitations will harm the patient. Second Amended Complaint at ¶58. (my emphasis of the "or")
On November 8, 2017, Dr. Naji saw plaintiff when plaintiff returned from the hospital, but refused to examine plaintiff's foot as plaintiff requested. Second Amended Complaint at ¶59. Plaintiff alleges that he asked someone for a wheelchair on November 8, 2017, and presumably did not get one, because the lack of a wheelchair allegedly caused him to miss an unquantified number of meals, showers, and recreational, exercise, and fitness activities. Second Amended Complaint at ¶61. This is the basis of the plaintiff's ADA claim against CCS.
Plaintiff alleges that being told by John Doe #1 that his pain medication would expire if not renewed by November 14, 2017 caused him distress and, despite his repeated complaints, his pain medication was not renewed from November 14, 2017, until November 30, 2017, when Dr. Maitra examined plaintiff in a followup appointment and recommended pain medication, which Dr. Naji prescribed that same day when plaintiff returned to Houtzdale. Second Amended Complaint at ¶62-¶68.
On December 1, 2017, plaintiff received what he was later told was an overdose of medication (it is not alleged from whom) that caused him to feel "incapacitated and dumbfounded." Second Amended Complaint at ¶69.
Defendants Barnes, Thornley, and Nagle
A deliberate indifference claim (and a pendent medical negligence claim) is stated against these three for allegedly persisting in a course of treatment for Buerger's disease that they knew to be harmful to the plaintiff. According to the Second Amended Complaint at ¶29, between 2014 and 2017 they treated plaintiff while they were aware that their "merely treating a symptom" of Buerger's disease "would result in severe health consequences" to plaintiff, and allegedly harm was caused to plaintiff as a result. Knowing persistence in ineffective treatments has been held to be deliberate indifference since Estelle v. Gamble, 429 U.S. 97, 106 (1976). This would also describe the claim based on PA Nagle's alleged failure to change plaintiff's antibiotic in 2017 despite allegedly knowing that Bactrim was ineffective.
Defendant Naji
In the Second Amended Complaint at ¶46, plaintiff alleges that Dr. Naji deliberately terrified plaintiff by giving him false medical information. The allegation must be presumed true, and if true, under Pennsylvania law this would state a claim for intentional infliction of emotional distress.
Defendant CCS
CCS is alleged to be the employer of all the medical providers at Houtzdale and as such is validly named for respondeat superior liability based on the allegedly negligent actions of Barnes, Thornley, Nagle, and the intentional tort by Naji.
CCS has no respondeat superior liability for the deliberate indifference claim. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691 (1978). The CCS policy on which plaintiff premises CCS's liability for deliberate indifference is the alleged "unwritten policy" of saving money. A policy is an official proclamation or edict, so what plaintiff means is a custom, that is, a practice "so persistent and widespread as to practically have the force of law." See Connick v. Thompson, 563 U.S. 51, 61 (2011). There are no allegations here that would allow any inference that any treatment decision saved CCS money, or was based on a comparison of its cost with any alternative, much less that there was a persistent and widespread practice of opting for an inferior treatment for plaintiff on the basis of cost.
The balance of the complaint
The balance of the complaint attempts to create claims out of nothing. Defendant Turner only appears as an alter ego of CCS and it is CCS, not Turner that would have respondeat superior liability. Turner is lumped in with the other defendants in he "they all are liable" paragraphs but no specific actions by Turner are alleged.
Defendant Cantolina allegedly attempted to intimidate plaintiff when plaintiff requested narcotics by "threatening" him with a stay in the infirmary (something ordinarily sought by inmates), but 1) there is no allegation that any medical professional believed plaintiff needed narcotics; 2) dispensing narcotics in a more controlled environment in a prison is, to say the least, not deliberate indifference; 3) whether plaintiff's alleged fear of being in the infirmary was sincere or not, there are no allegations that would allow the inference that the fear was reasonable or that Cantolina believed her statements to plaintiff would injure him; and 4) no harm other than frustration of plaintiff's desire for narcotics is alleged to have resulted from this interaction.
No deliberate indifference claim is alleged against Dr. Naji. If the facts ultimately were to show that Dr. Naji gleefully terrified plaintiff with false information about wanting to let his toe fall off (while he was scheduling consults with Dr. Maitra), that would support the IIED claim. But examine what plaintiff alleges Dr. Naji actually did: when an infection of plaintiff's toe was detected, he scheduled outside consults with a vascular surgeon. He did not countermand any treatment decision by Dr. Maitra, and he prescribed the narcotic pain reliever ordered by Dr. Maitra on the very same day. That on one occasion Dr. Naji refused an unscheduled examination of plaintiff's toe when plaintiff wished to show it to him in no way can be inferred to be deliberate indifference, even assuming plaintiff had alleged some harm from the episode. (The same goes for Barnes alleged "rebuff" of plaintiff in Second Amended Complaint at ¶53 by refusing to examine the same toe that Thornley just examined.)
One of the wrongs alleged to have been committed by CCS, Naji and the other medical personnel is that plaintiff's medical treatment was "delayed." This is a conclusion, not an allegation of fact. Anything that is not instantaneous can truthfully be characterized as delayed, but it is not a basis for a legal claim that plaintiff was not given immediate access to every medical specialty imaginable. To be the basis for a deliberate indifference claim or a negligence claim "delay" requires some sort of wrongdoing that frustrates the provision of medical services known to be needed at a specific time. That a course of treatment consumes time is not delay.
Here, there is the plausible claim discussed above that from 2014 to July 2017 something was amiss and three defendants knew or should have known it. But, as plaintiff himself relates in the Second Amended Complaint at ¶36 through ¶54, once plaintiff presented for treatment in July 2017 with an infection, things moved from examination to surgical treatment in just a few months. PA "Dave" schedules an appointment for plaintiff with Dr. Maitra, on August 7, 2017, and Maitra sees plaintiff on August 10, 2017. The followup appointment on September 20, 2017 is characterized by plaintiff as his "finally [being] permitted to return" to Dr. Maitra, but there is no allegation that Dr. Maitra needed or wanted him any sooner, or that the date of the appointment had any effect on plaintiff's care, much less that any defendant had or sought any input into the date. At the appointment, Maitra schedules plaintiff's surgery for November 3, 2017, and surgery takes place on that date, with no allegation that any defendant had or sought any input into the date. No factual allegation of delay by any defendant appears anywhere in the complaint.
After plaintiff's surgery, plaintiff remained in the hospital for five days as ordered by Dr. Maitra, allegedly "to protect" plaintiff from CCS. Allegedly, this so angered Pearson, a Pennsylvania Department of Corrections employee, that she told plaintiff that she "was limiting his medication to ibuprofen only." Second Amended Complaint at ¶58. Given Pearson's role in the prison health care system it is implausible that Pearson had any power to do this, and as plaintiff himself alleges in the very same paragraph Pearson had no license to prescribe anything. And even accepting the report of the conversation as accurate, there is no allegation anywhere in the complaint that Pearson herself believed that plaintiff needed something other than ibuprofen, much less that any medical professional had prescribed anything other than ibuprofen and Pearson was frustrating that prescription. To the contrary, when on November 30, 2017 Dr. Maitra ordered narcotics the order was carried out the same day.
But, allegedly, Pearson was motivated by an "unwritten policy" of CCS, or of the Pennsylvania Department of Corrections, or of Houtzdale to limit prisoner medical care for nonmedical reasons, i.e. to save money. This is conclusory pleading on steroids. Inmate health care ranges from treatment for hepatitis C, to setting of broken bones, to therapies for dozens of mental illnesses. It is provided in two score prisons, on an outpatient basis in maybe a thousand offices, and in dozens of hospitals, by thousands of persons in a hundred medical specialties. To allege that any single policy governing health care could exist is to misunderstand the legal meaning of the word "policy." That this unwritten policy hidden among all the written health care protocols nevertheless was the cause of Pearson's alleged ultra vires treatment decision about plaintiff's pain relievers is simply conclusion masquerading as allegation. Plaintiff could just as meaningfully have alleged a unwritten policy by Pearson, or Houtzdale, or CCS, or Pennsylvania Department of Corrections to limit plaintiff to ibuprofen "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest," which is precisely what the Supreme Court described as inadequate "formulaic recitation" of the elements of a claim in Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). As the Supreme Court pointed out: First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S.Ct. 1955. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). (my emphasis) Id., 556 U.S. at 678-79. Some fact has to be alleged to define this floating policy and fix it to a defendant, because there is nothing illegal or liability-creating about efforts to save money simpliciter.
Consider if, as is likely, CCS bids on the basis of a very complicated Request for Proposals on a contract, perhaps at a fixed price, to provide medical care across the Pennsylvania Department of Corrections. What interest would Pearson have as a Pennsylvania Department of Corrections employee in the cost to CCS of ibuprofen to a single inmate at Houtzdale who has just undergone months of far more expensive healthcare including surgery? Assuming that Pearson had such an interest, how could she save money by "limiting" plaintiff to ibuprofen instead of the nonexistent prescription for something else? What does the nonexistent something else cost?
There is one allegation of fact in all this, that plaintiff repeatedly sought narcotics and was refused them until Dr. Maitra ordered them. The failure without more to provide narcotics at a patient's request, inmate or not, is not even negligence. Plaintiff states no claim against Pearson or any other defendant on this point. I do not overlook the single allegation that on one occasion a nurse Knowles "recommended" something else. Second Amended Complaint at ¶52. A failure to follow a nurse's recommendation for "something else" simply has no legal effect.
No ADA claim is stated. Plaintiff names only CCS as a defendant for this claim. Under Title II of the ADA, "[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.§ 12132. If I struck an inmate with my car and rendered him unable to access meals, showers, and recreational activities provided by the Pennsylvania Department of Corrections I may have committed a tort, but not a violation of the ADA. CCS is in the business of health care, and if it failed to provide a needed wheelchair plaintiff may have a negligence claim. But as I said in the previous round of motions to dismiss, CCS is not thereby in violation of the ADA. The ADA does not enact plaintiff's implicit theory that any medical judgment, if later alleged to have been incorrect, results in an ADA claim.
Second, that the terms "services" and "programs" under the ADA encompass virtually everything a public entity does, Haberle v. Troxell, 885 F.3d 170, 179 (3d Cir.2018), does not mean that CCS is the relevant public entity. Plaintiff alleges that he "needed a wheelchair" for a period of several weeks in November 2017 to access programs and services. Second Amended Complaint at ¶61. But the programs and services that plaintiff alleges he was unable to participate in - showers, meals, and recreational activities - are all provided by the public entity that is the Pennsylvania Department of Corrections, not by CCS. Not only is there is no allegation that an agent of CCS (or anyone other than plaintiff) believed that plaintiff needed a wheelchair, there is no allegation that anyone at CCS (or elsewhere) even knew that without a wheelchair plaintiff was missing showers, meals, or recreational activities. An ADA claim contemplates that a disabled individual unable to access a program or service will request a reasonable accommodation, which begins an interactive process with the public entity (here, the Pennsylvania Department of Corrections) providing the service. See Baxter v. Pennsylvania Dep't of Corr., 661 Fed.Appx. 754, 757-58 (3d Cir.2016) (a Title II claim by an inmate), citing Mengine v.Runyon, 114 F.3d 415, 419-20 (3d Cir.1997) and Colwell v. Rite Aid Corp., 602 F.3d 495, 507 (3d Cir.2010). As Baxter and the cases cited therein indicate, the ADA violation occurs when the interactive process is wrongly ended by the relevant public entity. Mengine v. Runyon cited with approval the Seventh Circuit's decision in Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996), which observed: No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. (my emphasis) Colwell v. Rite Aid, finding no liability in Title I case where the interactive process was frustrated by the disabled person, made the similar observation that an employee must make clear that he or she wants assistance for his or her disability. 602 F.3d at 506 (my emphasis, and internal references omitted). Plaintiff alleges no facts that indicate a failure by the Pennsylvania Department of Corrections to make a requested accommodation or that CCS had any reason to suspect such. The ADA does not contemplate claims that do nothing more than seek duplicate recovery for an allegedly incorrect medical decision. The ADA claim is fatally defective.
Finally, the plaintiff's argument for the existence of a constitutional common law duty to protect, see ECF no. 73 at 29-30 is an invalid attempt to duplicate the deliberate indifference claim already provided by the Eighth Amendment. Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, inventing a common law or general substantive due process claim is inappropriate. See Albright v. Oliver, 510 U.S. 266, 273 (1994)(plurality opinion). There is no claim of otherwise unredressed "conscience shocking" behavior, see County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998), that would justify a departure from that rule.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. DATE: September 10, 2019
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice to counsel of record by ECF