Opinion
Civ. 3:22-CV-1023
12-07-2023
TASHAWN HUNTER, Plaintiff, v. LEHIGH VALLEY MOUNT POCONO HOSPITAL, et al., Defendants.
Mannion Judge
REPORT AND RECOMMENDATION
Carlson Magistrate Judge
I. Factual Background and Procedural History
This is pro se prisoner lawsuit brought by a state inmate, Tashawn Hunter, against an array of medical and law enforcement defendants. (Doc. 26). Currently pending before the court are several motions, including a motion to dismiss filed by the medical defendants, (Doc. 43), and a motion lodged by Hunter which seeks leave of court to forego the state-mandated certificate of merit requirement which applies to state law medical malpractice claims. (Doc. 50). Upon consideration of these motions, for the reasons set forth below, it is recommended that the medical defendants' motion to dismiss be granted and Hunter's motion to forego the statelaw certificate of merit requirement be denied.
There is also a motion to dismiss pending which was filed by the law enforcement defendants named in Hunter's complaint. (Doc. 34). We will address this motion through a separate Report and Recommendation.
With respect to these motions, the pertinent facts are as follows: This case arises out of a May 17, 2021, incident in which Hunter was brought to the Emergency Department (ED) of Defendant, Lehigh Valley Hospital - Pocono, following a highspeed motor vehicle accident. Upon arrival, Hunter was seen by the trauma service and by the early morning hours of May 18, refused further medical treatment. Police were then called to the hospital, engaged in a physical altercation with Hunter, and the plaintiff was arrested.
It is asserted, without dispute by Hunter, that he was charged with various offenses as a result of this incident, was tried, convicted, sentenced, and is currently incarcerated serving this sentence.
With respect to the medical defendants named in the complaint, the well-pleaded allegations made by Hunter, which guide our resolution of this motion to dismiss assert as follows:
15. On May 18, 2021 about 12:30 a.m, plaintiff awoke to two full body pain and two “iv” slots in his left arm one improperly installed with pain and swelling and the other slot was correct.
16. Plaintiff can't account for when but, upon information and belief nurse Katherine injected the plaintiff with a narcotic without knowledge or his consent. Also the narcotic was prescribed by Dr. Kar.
17. Plaintiff confronted nurse Katherine about how he was being treated by telling her she didn't have permission to touch him, he wanted his clothes and everything that was taken from his person, and requested the whereabouts of his daughter.
18. Nurse Katherine told plaintiff because she didn't like how he spoke to her, so therefore she wasn't going to help him find his daughter.(Doc. 26 ¶¶ 15-18). Given these factual averments, Hunter lodged the following legal claims against these private health care providers:
31. Defendant Katherine injected plaintiff with a narcotic and withdrew blood without plaintiff's consent which gives rise to a medical assault and battery, lack of informed consent and invasion of privacy. Katherine's actions violated plaintiff's civil rights under the Fourth and Fourteenth Amendment.
32. Defendant Lemley invaded the privacy of the plaintiff and the unpermitted touching itself gives rise to a civil battery by removing the plaintiff's clothes and seizing the contents of plaintiff's pockets. Defendant Lemley's actions violated plaintiff's rights under state law, the Fourth and Fourteenth Amendment to the United States Constitution ....
33. Defendant Kar was the prescribing doctor of the medications given to the plaintiff by defendant Kumi-Atiemo which makes defendant Kar guilty by vicarious liability, malpractice, and negligence. Defendant Kar's actions violated plaintiff's rights under the fourth and Fourteenth Amendment to the U.S.C. 36. Defendant Lehigh Valley Pocono Hospital's policy to treat someone medically register under a John Doe gives rise to lack of consent, medical assault and battery, invasion of privacy and or vicarious liability for the actions of the individual defendants on the parts of the Lehigh Valley Pocono Hospital. The defendant Lehigh Valley Pocono Hospital (sic) actions violated plaintiff's rights under state law, the Fourth, and Fourteenth Amendment to the U.S.C.(Id. ¶¶ 31-33).
Thus, liberally construed, Hunter's complaint lodges constitutional tort and state law medical malpractice claims against the individual and institutional health care providers named in this pleading. On the basis of these averments, Hunter seeks compensatory and punitive damages along with declaratory relief. (Id.)
It is against the backdrop of these well-pleaded facts that the medical defendants have moved to dismiss Hunter's complaint, alleging that the actions of these private health care providers do not fall within the ambit of the federal civil rights statutes, 42 U.S.C. §1983, and further contending that Hunter's failure to obtain a certificate of merit as required by state law compels the dismissal of any Pennsylvania common law malpractice claims. (Doc. 43). Hunter has responded to this motion by, inter alia, seeking a declaration from this court that he is exempt from the state-mandated certificate of merit requirement which applies to state law medical malpractice claims. (Doc. 50). As discussed below, it is recommended that the medical defendants' motion to dismiss be granted and Hunter's motion to forego the state-law certificate of merit requirement be denied.
II. Discussion
A. Motion to Dismiss-Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861, 182 L.Ed.2d 644 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id.” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
It is against these legal guideposts that we assess the sufficiency of Hunter's constitutional and common law claims against these medical defendants.
B. The Defendants' Motion to Dismiss Should be Granted.
The defendants have moved to dismiss the claims against them, arguing that the actions of these private health care providers do not fall within the reach of the federal civil rights statute, 42 U.S.C. §1983, which only applies to persons acting under color of law, and further contending that Hunter's failure to obtain a certificate of merit as required by state law compels the dismissal of any Pennsylvania common law malpractice claims. (Doc. 43).
We agree. Turning first to Hunter's constitutional claims against these individual and institutional health care providers, we note that Hunter's efforts to convert the conduct of these private medical caregivers into some form of unconstitutional state conduct run afoul of a rising tide of case law. As we have recently noted:
A plaintiff who wishes to bring a federal claim must utilize 42 U.S.C. § 1983, which is the statutory vehicle for asserting constitutional claims. This federal statute 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 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 (emphasis added).
Under this statute, in order to maintain a claim, a plaintiff must plead two elements: (1) deprivation of a constitutional right or violation of federal law, and (2) that the constitutional deprivation was caused by a person acting under the color of state law. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008); see also West v. Atkins, 487 U.S. 42, 47 (1988). The requirement of state action is a “threshold issue” in cases brought under section 1983, Bailey v. Harleysville National Bank & Trust, 188 F. App'x. 66, 67 (3d Cir. July 18, 2006), because “there is no liability under § 1983 for those not acting under color of law.” Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
The phrase “under color of law” used in section 1983 is parallel in meaning to “state action” as used in the Fourteenth Amendment. Mark, 51 F.3d at 1141; see also Bailey, 188 F. App'x. at 67 (“To show that the defendant acted under color of state law, a litigant must establish that the defendant is a ‘state actor' under the Fourteenth Amendment”) (citing Benn v. Universal Health System, Inc., 371 F.3d 165, 169 n.1 (3d Cir. 2004)). Under this standard, the state must be “responsible” for the plaintiff's alleged constitutional injury. Id. at 1141-42. Thus, a plaintiff must show that there is a “sufficiently close nexus between the State and the challenged action ... so that the action ... may be fairly treated as that of the State itself.” Id. at 1142 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). As a general rule, “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Bailey, 188 F. App'x. at 68 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974)).
Applying these legal guideposts, cases are legion that private counseling or health care providers do not engage in conduct under color of state law for purposes of § 1983. For example, the United States Supreme Court has held that vocational counselors employed at a nonprofit private school are not state actors within the meaning of § 1983. See Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982). Likewise, counselors and staff at a private mental health treatment facility have been found not to be state actors for purposes of federal civil rights liability under this statute. Benn v. Universal Health Sys., Inc., 371 F.3d 165, 173 (3d Cir. 2004). Further, it has been held that private pharmacy employees typically do not act under color of state law for purposes of § 1983. Caldwell v. CVS Corp., 443 F.Supp.2d 654, 657 (D.N.J. 2006). Thus, a rising tide of case law rejects the notion that private counselors or health care providers are state actors subject to civil liability under § 1983.Stackhouse v. St. Joseph Inst. for Addiction, No. 4:22-CV-1761, 2023 WL 3205334, at *4 (M.D. Pa. May 2, 2023).
Given this rising tide of case law which holds that the actions of private medical providers fall beyond the reach of this federal civil rights statute, since these health caregivers are not state actors, Hunter's constitutional claims fail as a matter of law and should be dismissed.
In the same vein, Hunter's state claw claims against these medical professionals also fail and should be dismissed. In the current posture of this case, Hunter's state law claims face two insurmountable obstacles.
At the outset, the dismissal of Hunter's federal constitutional claims against these defendants also suggests the path this court should follow with respect to any pendent state law claims that the plaintiff might wish to pursue against these defendants. In this regard, we are reminded of the familiar propositions which govern the exercise of jurisdiction over state law claims by federal courts once the primary federal claims have been dismissed. In this setting it is said that:
When a district court has dismissed all claims over which it had original jurisdiction, the court may decline to exercise supplemental jurisdiction over any remaining state law claims. 28 U.S.C. § 1367(c)(3). Although the district court's decision to exercise supplemental jurisdiction is within its discretion, courts ordinarily decline to exercise supplemental jurisdiction when all federal claims have been dismissed and only state law claims remain. See Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009).Chapman v. United States, 480 F.Supp.3d 601, 613-14 (M.D. Pa. 2020). In this case since we are dismissing Hunter's federal claims against these medical defendants at this early stage of the litigation, the proper exercise of discretion would be to also decline to assert jurisdiction over any supplemental state law claims, and dismiss those claims as well.
But, in any event, we agree that Hunter's failure to obtain a certificate of merit also compels the dismissal of these state law claims at this time. In order to present a prima facie case of medical malpractice under Pennsylvania law, “as a general rule, a plaintiff has the burden of presenting expert opinions that the alleged act or omission of the defendant physician or hospital personnel fell below the appropriate standard of care in the community, and that the negligent conduct caused the injuries for which recovery is sought.” Simpson v. Bureau of Prisons, No. 02-2213, 2005 WL 2387631, at *5 (M.D. Pa. Sept. 28, 2005) This requirement is imposed upon plaintiffs by Pennsylvania Rule of Civil Procedure 1042.3 which requires the filing a valid certificate of merit along with any malpractice or medical negligence claim.
Pa.R.C.P. No. 1042.3 (“Rule 1042.3”) provides in pertinent part:
Rule 1042.3. Certificate of Merit
(a) In any action based upon an allegation that a licensed professionals deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
The requirements of Rule 1042.3 are deemed substantive in nature and, therefore, federal courts in Pennsylvania will apply these prerequisites of Pennsylvania law when assessing the merits of a medical malpractice claim. Liggon-Reading v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011); Iwanejko v. Cohen & Grigsby, P.C., 249 Fed.Appx. 938, 944 (3d Cir.2007); Ramos v. Quien, 631 F.Supp.2d 601, 611 (E.D. Pa. 2008); Stroud v. Abington Memorial Hosp., 546 F.Supp.2d 238, 248 (E.D.Pa.2008) (noting that Pennsylvania federal courts “have uniformly held that the COM requirement is a substantive rule of law that applies in professional liability actions proceeding in federal court”). Thus, to the extent that Hunter wishes to bring a claim against medical professionals, a failure to comply with Rule 1042.3 is a bar to this claim. This requirement of state law applies with equal force to counseled complaints, and to pro se lawsuits brought against health care providers under state law. See Hodge v. Dept. of Justice, 372 Fed. App=x 264, 267 (3d Cir. 2010) (affirming district court's dismissal of medical negligence claims for failure to file COM); Iwanejko v. Cohen & Grigsby, P.C., 249 F. App=x 938, 944 (3d Cir. 2007); Levi v. Lappin, No. 07-1839, 2009 WL 1770146 (M.D. Pa. June 22, 2009). Therefore, Hunter's status as a pro se litigant cannot excuse him from compliance with the substantive state law when bringing this state law claim of malpractice. Id.
Nor can Hunter avoid this requirement by suggesting that there is no need for a certificate of merit in his case since his claims entail allegations relating to the failure to obtain informed consent. Indeed, courts have specifically rejected this argument and held that such informed consent claims require a certificate of merit. See Chamberlain v. Giampapa, 210 F.3d 154, 162 (3d Cir. 2000) (construing New Jersey law). In this regard, it has been held that: “In Pennsylvania, ‘[a] claim of lack of informed consent sounds in the intentional tort of battery because a procedure] performed without the patient's consent is deemed to be the equivalent to a technical assault.'” Munsif v. Jefferson Hosp., No. CV 15-5649, 2016 WL 4123944, at *4 (E.D. Pa. Aug. 2, 2016) (quoting Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1237 (Pa. 2002)). Given the essential nature of this claim under state law it has also been determined that the state law certificate of merit requirement applies to these claims. Thus:
This requirement applies not only to medical malpractice claims against individual physicians but also to vicarious liability claims based on underlying physician malpractice, see P a. R. Civ. P. 1042.3(a)(2), Note (clarifying a claim of vicarious liability must be supported by a certificate of merit as to the licensed professionals for whom the defendant is responsible), and to corporate negligence claims “premised on allegations that a hospital's actions fell below the applicable medical or professional standard,” Stroud v. Abington Mem'l Hosp., 546 F.Supp.2d 238, 248 (E.D. Pa. 2008). The certificate of merit requirement also applies to claims based on a lack of informed consent. See Pa. R. Civ. P. 1042.3(a), Note (“The requirements of [Rule 1042.3(a)] apply to a claim for lack of informed consent.”); Pa. R. Civ. P. 1042.1(b) (“A professional liability claim asserted against a licensed professional includes a claim for lack of informed consent.”).Munsif v. Jefferson Hosp., 2016 WL 4123944, at *5. Therefore, Hunter may not avoid this legal requirement by arguing that his informed consent claim is of such a simple nature that it may be exempted from this mandate of state law.
In sum, as currently pleaded, Hunter's federal and state claims against these medical providers fail as a matter of law. Accordingly, we recommend that the medical defendants' motion to dismiss be granted and Hunter's motion to forego the state-law certificate of merit requirement be denied.
III. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the medical defendants' motion to dismiss (Doc. 43), be GRANTED and the plaintiff's motion to forego the state-law certificate of merit requirement, (Doc. 50), be DENIED.
The parties are hereby placed on notice that pursuant to Local Rule 72.3: Any party may object to a magistrate judge's proposed findings, recommendations, or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is 17 made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.