Opinion
CIVIL 1:23-CV-1245
02-14-2024
FRANCIS LOMBARDO, Plaintiff, v. LUZERNE COUNTY, et al., Defendants.
Mehalchick Judge.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE.
I. Factual Background
This case was referred to the undersigned on November 1st, 2023, for pretrial management. The plaintiff, Francis Lombardo, an inmate at Luzerne County Correctional Facility (“LCCF”), initiated this action under 42 U.S.C. §1983 and Pennsylvania state tort against various institutional defendants alleging that the defendants used excessive force and assaulted him. He also claims that the warden of LCCF, Mark Rockovich, and Luzerne County failed to protect him from this assault despite their knowledge that he was to be kept away from Defendant Flynn due to a history of prior unprovoked attacks.
The well-pleaded facts in the plaintiff's complaint which guide our consideration of this case allege that on or about July 2, 2021, when he was booked into LCCF, Lombardo made facility staff aware that he needed to be kept separate from Defendant Ryan Flynn, Corrections Officer at LCCF, due to previous incidents, unprovoked attacks by Flynn resulting in Lombardo's hospitalization, and prior grievances made by Lombardo against Flynn and Flynn's prior involvement in a civil action brought by Lombardo. (Doc. 23, ¶ 18). Specifically, the plaintiff alleges that he was assaulted by Flynn more than a decade ago on December 30, 2009, and again on November 22, 2011, and that he filed numerous other written and verbal complaints to supervisory staff and administration at LCCF concerning harassment, threats, and his fear of retaliation by Defendant Flynn. (Id., ¶ 85). The plaintiff alleges that, despite the institution's purported knowledge of these previous interactions between Flynn and Lombardo, on July 29, 2021, Flynn, along with other corrections officers, attacked and injured him. (Id., ¶ 86).
On that day, the plaintiff alleges he was informed by facility staff that he needed to go to LCCF's psychiatric department and was secured using a restraint belt and handcuffs to be escorted there. (Doc. 23, ¶¶ 21-22). Lombardo was seated in the back office of the psychiatric department where Defendant Nurse Practitioner Iannuzzi was present. (Id., ¶ 24). The plaintiff then alleges that, after he asked NP Iannuzzi about the timeframe for the return of test results, NP Iannuzzi stood up, moved in front of him and began yelling at him and positioned his pelvis nearly against his face. (Id., ¶¶ 25-27). According to Lombardo, NP Iannuzzi continued to yell while remaining hovering over him with his pelvis in his face and forced him back into his chair using both hands on his chest when he attempted to stand. (Id. ¶¶ 27-28). Hearing the altercation between NP Iannuzzi and Lombardo, an unknown female staff member made a request for corrections officers to respond and Defendant Corrections Officers Flynn and Antosh were the first to respond. (Id., ¶¶ 29, 31). COs Flynn and Antosh entered the office and CO Flynn grabbed Lombardo by his shirt and violently pulled him into the doorway of the office. (Id., ¶ 31). Lombardo, who remained in handcuffs secured to a restraint belt around his waist throughout the entire incident, struck his left shoulder on the door frame and COs Flynn and Antosh continued to force him through the office and out into the second-floor corridor into the control room/center of the facility. (Id., ¶¶ 31-33). Once they were outside the office, CO Flynn violently pushed Lombardo into the thick glass of the control booth located across from the psychiatric department, causing him to fall to the ground. (Id., ¶¶ 35-36). CO Flynn then put his knee directly into Lombardo's back and his forearm across his neck, causing Lombardo to experience difficulty breathing. (Id., ¶¶ 38-39). At least three other COs applied their weight on top of Lombardo, pressing him into the floor while CO Flynn continued to press his knee into his back and hold his forearm across his neck. (Id., ¶ 41). CO Antosh and the three John Doe CO officers then shackled Lombardo's ankles and tied them to the restraint belt, essentially “hogtying” the plaintiff. (Id., ¶ 42). Then the three Doe COs, CO Flynn, and CO Antosh picked Lombardo up from the floor, carried him into an elevator, and dropped him face-first onto the elevator floor. (Id., ¶¶ 43-44). The defendants then carried him to the Restricted Housing Unit (“RHU”) and again threw him onto the floor of the cage located outside the RHU. (Id., ¶¶ 45-46). He was then released from the restraints and taken to an RHU cell. (Id., ¶ 50).
Several days later, Lombardo was seen by NP Iannuzzi, complaining of severe pain in his left ankle, left shoulder, and right/posterior chest and ribs. (Id., ¶ 52). Medical staff ordered x-rays and provided him with an immobilization boot. (Id., ¶ 54). Lombardo alleges he had to receive steroid injections for nearly four to six months following the incident, suffered two broken ribs, had a chipped front tooth that required filing, and has ongoing severe pain in his left shoulder. (Id., ¶¶ 58, 60, 61). He also alleges that he continues to suffer ongoing emotional pain, humiliation, embarrassment, severe anxiety, and mental anguish as a result of the incident. (Id., ¶ 62). According to Lombardo's complaint, he filed multiple grievances regarding the July 29, 2021, incident and submitted written requests for the surveillance video to be preserved. (Id., ¶¶ 55-57). On July 27, 2023, Lombardi initiated the instant action, (Doc. 1), and later submitted an amended complaint which is the operative pleading in this case. (Doc. 23).
The defendants have filed two separate motions to dismiss the plaintiff's amended complaint. Defendant Iannuzzi has moved to dismiss all counts of the plaintiff's complaint as they relate to him, (Docs. 26, 27), and the balance of the defendants have separately moved to dismiss all but the plaintiff's excessive force and state law assault and battery claims. (Docs. 28, 32). The motions are fully briefed and are ripe for disposition. (Docs. 27, 31, 32, 34, 35, 36). For the reasons that follow, we recommend that the defendants' motions to dismiss the plaintiff's amended complaint be granted in part and denied in part.
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 the 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 (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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
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.3d 382, 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).
B. The Plaintiff's Claims Against the County Defendants
Lombardo's amended complaint includes allegations against Luzerne County, Luzerne County Correctional Facility, two named corrections officers at LCCF, Defendants Flynn and Antosh, and three John Doe corrections officers at LCCF. The complaint also alleges wrongdoing by the LCCF Nurse Practitioner, Nelson Anthony Iannuzzi,who has submitted a separate motion to dismiss. We will address these various motions, in turn, below.
We use the spelling of Defendant Iannuzzi's name from his motion but note that the plaintiff's complaint spells his name Ianuzzi.
1. The Constitutional Claims Against Luzerne County and Luzerne County Correctional Facility Should Be Dismissed.
The plaintiff brings his constitutional claims under 42 U.S.C. § 1983 and includes as defendants not only the corrections officers he alleges were directly involved in the alleged assault, but also Luzerne County/Luzerne County Correctional Facility (“LCCF”) and the warden of Luzerne County Correctional Facility, Warden Rockovich.
In considering these allegations, we note that different standards govern the analysis of a § 1983 claims against individual, institutional, and supervisory defendants. With respect to the plaintiff's constitutional claims against Luzerne County Correctional Facility as an institution, it is well settled that inmate civil rights actions under § 1983 may be brought against:
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 [of the United States].§ 1983 (emphasis added). Thus, by its terms § 1983 limits the scope of liability to specific persons or entities who violate constitutional rights, and it has been held that a “county correctional facility is not a ‘person' amenable to suit under section 1983”. Johnson v. Chester Cnty. Prison, No. CV 19-4960, 2020 WL 405605, at *4 (E.D. Pa. Jan. 24, 2020) (collecting cases). Thus, Luzerne County Correctional Facility is not a proper defendant in this case.
As to the plaintiff's contention that Luzerne County holds a constitutional liability for his injuries, it is well settled that local governmental entities may not be held liable under § 1983 for the acts of others under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. 662; see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). Instead, such an agency may only be held liable “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 the injury that the government as an entity is responsible under § 1983.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
Thus, to sustain a claim against this institutional defendant, a plaintiff must “identify a ... ‘policy' or ‘custom' that caused the plaintiff's injury.” Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). A plaintiff can adequately allege a policy or custom establishing institutional liability for the acts committed by its employees by showing a formal policy, a specific injury-causing action taken by a government official, a practice so widespread it had become a custom, or a widespread failure to train or supervise subordinates. See Ashley v. Kosehba, No. 1:22-CV-00982, 2023 WL 6200805, at *4 (M.D. Pa. Sept. 22, 2023). Once this policy or custom has been established, the plaintiff must also allege “that it was the proximate cause of his injuries by demonstrating a plausible nexus or affirmative link between the municipality's policy or custom and the specific harm sustained.” Hargrove v. City of Philadelphia, No. CV 21-4082, 2023 WL 3229927, at *6 (E.D. Pa. May 3, 2023) (citing Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990); Est. of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)) (quotations omitted).
The plaintiff has lodged Eighth and Fourteenth Amendment claims against Luzerne County under theories of excessive force, failure to protect, deliberate indifference, state-created danger, and failure to train/supervise. As the Third Circuit has reiterated, a § 1983 claim against a municipality, or county, may proceed under a theory that an unconstitutional policy or custom of the county led to his injuries, or that his injuries were caused by “a failure or inadequacy by the municipality that ‘reflects a deliberate or conscious choice,'” which typically arises in a failure-to-train context. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019).
To the extent that the plaintiff is alleging §1983 liability based on a policy or custom of Luzerne County that led to his injuries, his theories with regard to the customs and policies he alleges caused his injuries overlap amongst the alleged constitutional violations. However, since his complaint wholly fails to demonstrate “a government ] policy or custom [that] can be said to inflict constitutional injury such that government as an entity is responsible under § 1983,” Monell at 713 (Powell, J., concurring), we find that the plaintiff has failed to allege a custom or practice that would impute liability upon Luzerne County based on any of the constitutional causes of action under § 1983.
Primarily, Lombardo alleges that, despite knowing that the plaintiff faced a substantial risk of harm if he were placed into a situation whereby he was restrained and confronted by Defendant Flynn, Luzerne County failed to take any measures to address this obvious risk of harm to the plaintiff The policies and customs he alleges caused this risk of harm are LCCF requesting information about arriving inmates to determine whether they should be kept separate from any individuals and requiring all available correctional officers to respond to requests for assistance without considering whether a particular officer should not have contact with a particular inmate.
However, these specific and mundane policies are not of the constitutional dimension contemplated in Monell. Indeed, “[t]o establish Monell liability, ‘a plaintiff must either point to a facially unconstitutional policy or must show a pattern of the policy being applied unconstitutionally.'” Hightower v. City of Philadelphia, No. CV 21-4075-KSM, 2023 WL 8879761, at *12 (E.D. Pa. Dec. 22, 2023) (quoting Remlinger v. Lebanon Cty., No. 1:18-CV-00984, 2022 U.S. Dist. LEXIS 201793 (M.D. Pa. Nov. 4, 2022)). Clearly, neither the policy of collecting arriving inmate's information nor requiring all available correctional officers to respond to requests for assistance without considering whether a particular officer should not have contact with a particular inmate is facially unconstitutional or “deliberately indifferent to a substantial risk of serious harm.” Id. at *12 (citing Farmer 511 U.S. at 834). Indeed, each of these policies appears to actually directly attempt to mitigate substantial harm by requiring the closet and most available officer to respond to emergencies. Moreover, the plaintiff has not alleged a pattern of either policy being applied unconstitutionally. Although he alleges he has had altercations with CO Flynn in the past and filed grievances, he has not alleged that any of those previous interactions were a result of either of these policies or that either policy had resulted in unconstitutional conduct in the past.
The plaintiff also alleges the policy or custom of routinely placing an inmate involved in any altercation into the RHU regardless of wrongdoing resulted in his injury. (Doc. 23, ¶ 111). To the extent that he argues his placement in the RHU caused his injuries, it misidentifies the injury for which the plaintiff is seeking redress, stating only that it caused him to be “unnecessarily punished.” He does not allege that his placement in the RHU caused any delay in his treatment for his injures.Moreover, it is well established that, “there is no constitutional right to remain in the general prison population,” Bracey v. Sec'y Pennsylvania Dep't of Corr., 686 Fed.Appx. 130, 135 (3d Cir. 2017), and “the federal . . . courts unanimously have found that the . . . conditions of confinement in the various restrictive housing units in the Pennsylvania state institutions, . . ., without more, do[ ] not violate the [constitution].” Norris v. Davis, No.10-1118, 2011 WL 5553633, *6 (W.D. Pa. Nov.15, 2011) (collecting cases).
Importantly, as addressed below, Lombardo's medical deliberate indifference claim against all defendants fails because he did receive treatment for his injuries.
Finally, the plaintiff's claim that Luzerne County's policy or custom of routinely not using the restraint chair and, instead, using multiple mechanical restraints to carry inmates in an essentially hogtied position caused his injuries fails to demonstrate the requisite connection between the County and his injuries under § 1983. Even assuming the veracity of the plaintiff's averment regarding this custom of Luzerne County, this custom dictating the transport of prisoners within the facility is not facially unconstitutional. Further, the plaintiff notes that this practice of not using a restraint chair and attempting to carry inmates while hogtied “has an obvious increased risk of injury,” he does not allege that any similar incidents where an inmate was injured have ever occurred and certainly does not include facts to allege a pattern of behavior that would amount to deliberate indifference on the part of the County with regard to this custom.
The plaintiff's complaint fails against Luzerne County similarly under a failure to train theory of liability. This analysis differs from the policy and custom analysis in that the plaintiff need not allege an unconstitutional policy, Forrest, 930 F.3d at 105, but:
One whose claim is predicated on a failure or inadequacy has the separate, but equally demanding requirement of demonstrating a failure
or inadequacy amounting to deliberate indifference on the part of the municipality. This consists of a showing as to whether (1) municipal policymakers know that employees will confront a particular situation, (2) the situation involves a difficult choice or a history of employees mishandling, and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.Forrest v. Parry, 930 F.3d 93, 106 (3d Cir. 2019) (citing Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)) (internal citations omitted). But the Supreme Court has cautioned that, “a municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011). A municipal defendant can be held liable under this theory based on deliberate indifference amounting to “the city itself [ ] violating] the constitution,” Id. (quoting Canton v. Harris, 489 U.S. 378, 395 (1989)), “when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.” Id. at 61. Typically, a pattern of similar constitutional violations is necessary to demonstrate that the policymakers were on notice of the need for further training, Id. at 62, unless the need for training is “so obvious, that failure to do so could properly be characterized as deliberate indifference to constitutional rights even without a pattern of constitutional violations.” Evans v. Columbia Cnty., No. 1:20-CV-00722, 2024 WL 115202, at *38 (M.D. Pa. Jan. 10, 2024) (quoting Thomas v. Cumberland Cnty., 749 F.3d 217, 223 (3d Cir. 2014).
But, as previously discussed, the plaintiff fails to provide any factual allegations that show either “a pattern of similar constitutional violations by untrained employees,” Connick at 62, or any that the risk of a constitutional violation resulting from those policies was so obvious that the County's deliberate indifference could be implied from this single incident. See e.g., Evans, 2024 WL 115202 (denying summary judgment where the plaintiff pointed to research, reports, and policies demonstrating the known risks involving prolonged restraint chair use). Thus, without more, it cannot be said that the plaintiff has alleged any of the cited policies showed a failure to train prison officials amounting to constitutional liability under § 1983.
As the Supreme Court held in Monell, “it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Since the plaintiff has failed to identify any policy or custom on the part of Luzerne County that caused his injuries following the July 29, 2021, incident, the County cannot be constitutionally liable. Accordingly, we recommend the constitutional claims against the Luzerne County be dismissed.
The County Defendants' motion did not address Count I or Count II of the complaint with respect to Luzerne County or Luzerne County Correctional Facility. The motion only requests dismissal of Count II as to Defendant Rockovich and does not move to dismiss Count I. Nonetheless, because we find all the constitutional claims against Defendants Luzerne County and LCCF suffer from the same deficiencies, we recommend these claims be dismissed sua sponte. See Kaetz v. TransUnion, No. 3:05CV1545, 2006 WL 8451343, at *3 (M.D. Pa. Apr. 26, 2006) (collecting cases discussing sua sponte authority to dismiss claims).
2. The Constitutional Claims Against Defendant Warden Rockovich Should Be Dismissed.
This prohibition against liability based upon notions of respondeat superior under § 1983 applies with equal force to supervisory defendants such as Warden Rockovich. It is well-settled that a claim of a constitutional deprivation cannot be premised merely on the fact that the named defendant was the prison warden, or a prison supervisor, when the incidents set forth in the complaint occurred. Quite the contrary, to state a claim under § 1983, the plaintiff must show that a supervisory defendant, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; Morse v. Lower Merion School Dist., 132 F.3d 902 (3d Cir.1997); see also Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Liability under § 1983 is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence in the challenged practice. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.1997). In particular, with respect to prison supervisors it is well-established that:
A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (quotations omitted).
Applying these benchmarks, courts have frequently held that, in the absence of evidence of supervisory knowledge and approval of subordinates' actions, a plaintiff may not maintain an action against supervisors based upon the misdeeds of their subordinates. As our sister court has observed:
Personal involvement by a defendant can be shown by alleging either personal direction or actual knowledge and acquiescence in a subordinate's actions. Rode, 845 F.2d at 1207. “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Id. See also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005). Moreover, in order to maintain a claim for supervisory liability, a plaintiff must show: 1) that the supervising official personally participated in the activity; 2) that the supervising official directed others to violate a person's rights; or 3) that
the supervising official had knowledge of and acquiesced in a subordinate's violations.O'Connell v. Sobina, No. 06-238, 2008 WL 144199, * 21 (W.D. Pa. Jan.11, 2008) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir.1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir.1995)).
Consequently, a supervisor may be liable under 42 U.S.C. § 1983 for his or her subordinate's unlawful conduct if he or she directed, encouraged, tolerated, or acquiesced in that conduct. See Blanche Road Corp. v. Bensalem Twp., 57 F.3d 253, 263 (3d Cir.1995); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir.1995). However, the mere assertion “that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did” is insufficient to establish liability. Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989). Likewise, a supervisor's mere failure to train, supervise or discipline subordinate officers does not state a basis for a § 1983 claim against the supervisor absent proof of direct participation by the superior in some unlawful conduct. Mobley v. City of Atlantic City Police Dept., No. Civ. A. 97-2086JBS, 2000 WL 363692 at *3 (D.N.J. March 30, 2000) (citing Brown v. Grabowski, 922 F.2d 1097, 1119-20 (3d Cir. 1990)).
Though the plaintiff's complaint asserts that Warden Rockovich was aware of past incidents between Lombardo and Flynn because he filed grievances against him, he does not allege that Warden Rockovich was aware of the July 29, 2021, incident or that he forewent any opportunity to intervene. It appears the plaintiff wishes to impute liability upon Warden Rockovich for failing to ensure that CO Flynn was never called to respond to a call for assistance involving the plaintiff. However, not only would this requirement be dangerously burdensome on prison staff in requiring supervisory review of all officers responding to an emergency call for assistance, but it is also not constitutionally required. Thus, it does not appear that the complaint alleges any personal involvement on the part of Warden Rockovich that would subject him to liability under § 1983.
3. The Plaintiff's Negligence Claims Against the County Defendants Should Be Dismissed.
In addition to the plaintiff's federal constitutional claims under § 1983, he alleges violations of Pennsylvania tort law, bringing causes of action against Luzerne County, Luzerne County Correctional Facility, and Warden Rockovich for negligent supervision; claims of negligence against Warden Rockovich, Defendants Flynn, Antosh, and the three John Doe CO defendants; and claims of negligent/intentional infliction of emotional distress against all defendants. In our view, these state law claims sounding in negligence fail under Pennsylvania law.
Subject to certain specific exceptions, the Political Subdivision Tort Claims Act (“PSTCA”) provides in relevant part that “no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa. C.S.A. § 8541. “Under 42 Pa.C.S.A. § 8501, a ‘local agency' is said to be ‘[a] government unit other than the Commonwealth government. The term includes an intermediate unit.'” Schwartz v. Cnty. of Montgomery, 843 F.Supp. 962, 972 (E.D. Pa.), aff'd, 37 F.3d 1488 (3d Cir. 1994) (quoting 42 Pa. C.S.A. § 8542). The Act permits negligence suits against local agencies and their agents in the following eight narrow categories: (1) vehicle liability, (2) care, custody, or control of personal property, (3) real property, (4) trees, traffic controls and street lighting, (5) utility service facilities, (6) streets, (7) sidewalks, and (8) care, custody, or control of animals. Pa. C.S.A. § 8542(a).
An employee of a local agency is liable for civil damages on account of injuries to persons or property caused by acts of the employee within the scope of his employment, only to the same extent as his employing local agency. 42 Pa. C.S.A. § 8545. Accordingly, in order to maintain a negligence claim for damages against an officer or employee of a local agency covered by the Act, a plaintiff must demonstrate that a recognized exception to the Act's broad grant of immunity applies.
Although an employee's willful misconduct may vitiate the immunity provided under the Act, 42 Pa. C.S.A. § 8550, acts of lesser culpability, such as mere negligence as alleged in Counts VI, VII, and IX of the amended complaint, will not cause the employee to forfeit immunity from a damages suit. See, e.g., Dull v. West Manchester Twp. Police Dep't, 2008 WL 717836, at *9 (M.D.Pa. 2008); Boria v. Bowers, No. Civ. A. 06-4383, 2007 WL 2726338, at *6 (E.D. Pa. Sept. 17, 2007) (“Mere negligence or deliberate indifference is not sufficient to break through governmental immunity on the grounds of willful misconduct.”); see also Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006) (applying the PSTCA to law enforcement officials whose conduct could not be deemed to be “willful misconduct”).
In this case, the PSTCA plainly applies to the plaintiff's negligence claims against Luzerne County, LCCF, and the corrections officer defendants, and none of the eight exceptions set forth in 42 Pa. Cons.Stat. Ann. § 8542 has any application to the allegedly negligent conduct at issue in this case. Instead, the plaintiff alleges he was injured in an assault by corrections officers and that the County and LCCF failed to prevent the plaintiff from coming into contact with Defendant Flynn or otherwise appropriately supervise their employees who allegedly committed the assault. None of this activity is actionable in a negligence suit in Pennsylvania, as the defendants are immune under the Act. See, e.g ., Cooper v. City of Chester, 810 F.Supp. 618, 625 (E.D.Pa.1992) (finding claim for negligence in connection with allegations for false arrest barred by the PSTCA). Accordingly, we recommend the plaintiff's negligence, negligent supervision, and negligent infliction of emotional distressclaims be dismissed as to the County defendants.
The County Defendants did not specifically move to dismiss the plaintiff's Intentional Infliction of Emotional Distress claim, although their intentions are unclear since the complaint combines the NIED and IIED claims into a single count. Nevertheless, since, as we discussed below, the plaintiff does not allege the type of outrageous conduct, nor emotional distress, required to allege a claim for IIED as to any of the defendants, we recommend the entirety of Count IX be dismissed as to all defendants. See Kaetz v. TransUnion, No. 3:05CV1545, 2006 WL 8451343, at *3 (M.D. Pa. Apr. 26, 2006) (collecting cases discussing sua sponte authority to dismiss claims).
C. The Plaintiff's Claims Against CRNP Iannuzzi
1. Defendant Iannuzzi's Motion to Dismiss the Plaintiff's Eight Amendment Claim of Excessive Force Should Be Denied.
Defendant Iannuzzi moves to dismiss all claims against him, including Count I which alleges excessive force under the Eighth and Fourteenth Amendments. The Eighth Amendment to the United States Constitution prohibits the infliction of “cruel and unusual punishment.” U.S. Const. amend. VIII. In the prison context, the Supreme Court of the United States has stated that only “the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977) (internal quotations omitted)). This Eighth Amendment prohibition extends to the use of excessive force by correctional officers upon prison inmates, Hudson v. McMillian, 503 U.S. 1, 6-7, (1992), as well as a failure to protect inmates from the use of excessive force. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
However, not every incident in which a prison official uses force will give rise to a claim under the Eighth Amendment. Hudson, 503 U.S. at 9, 112 S.Ct. 995. A plaintiff asserting a claim of excessive force in the prison context must show that the force was applied “‘maliciously and sadistically for the very purpose of causing harm' instead of ‘in a good faith effort to maintain or restore discipline.'” Robinson v. Danberg, 673 Fed.Appx. 205, 211 (3d Cir. 2016) (quoting Hudson, 503 U.S. at 6, 112 S.Ct. 995). Several factors should be considered to determine if force used by the official violates the Eighth Amendment:
(1) the need for the application of force, (2) the relationship between the need and the amount of force that was used, (3) ... the extent of the injury inflicted, ... (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials, ... and (5) any efforts made to temper the severity of a forceful response.Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (internal quotations and citations omitted). Thus, Eighth Amendment excessive force claims entail a showing of some subjective intent to injure. In an excessive force case involving excessive physical force by prison officials amounting to cruel and unusual punishment, “the core judicial inquiry is that set out in Whitley [v. Albers, 475 U.S. 312 (1986)]: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).
When considering such claims, the reasonableness of a particular use of force is often dependent upon factual context and must be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). Moreover, in the context of prison excessive force claims, in determining “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm,” Hudson at 6-7, “even if we concede [that an inmate] has established at most that prison officials over-reacted to the disturbance that he caused . . . any such over-reaction would still fall short of supporting a finding that prison officials acted ‘maliciously and sadistically to cause harm.'” Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000).
Defendant Iannuzzi argues that the force Lombardo alleges he used against him, placing his pelvis nearly against his face and forcing him back into his chair using both hands to push on his upper chest, was de minimis and did not rise to the level of constitutionally objectionable conduct under the Eighth Amendment. It is true that “[t]he Eighth Amendment's prohibition of ‘cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind,'” Hudson, 503 U.S. at 9-10 (quoting Whitley, 475 U.S. at 327), and the Supreme Court has recognized that not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. at 9 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights”)). However, since the keystone to analysis of an Eighth Amendment excessive force claim entails issues of motivation- whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm, Hudson, 503 U.S. at 6-7- excessive force claims often turn on factual disputes which cannot be resolved as a matter of law. As the United States Court of Appeals for the Third Circuit has aptly observed:
[T]he Eighth Amendment serves as the primary source of substantive protection in cases where an inmate challenges a prison official's use of force as excessive and unjustified. See Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In an excessive force claim, the central question is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Summary judgment in favor of a defendant is not appropriate if “it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain.” Whitley, 475 U.S. at 322, 106 S.Ct. 1078; see also Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir. 1983) (holding that wantonness exists when a prison guard intends to harm an inmate).Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000). Thus, we recognize that typically claims of excessive force should be left to the jury in circumstances where there is a question as to the motivations of the law enforcement officials accused of excessive force. Thus, in our view, it would be inappropriate to dismiss the plaintiff's Eight Amendment claim against Iannuzzi at this early stage in the litigation, given the factbound nature of the excessive force determination.
We are also not convinced that Defendant Iannuzzi's suggestion that the plaintiff has not alleged any injury caused by his actions necessarily causes his claim to fail at this stage. As the Supreme Court has stated, “[i]njury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). Thus, “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . whether or not significant injury is evident.” Id. at 9 (citing Whitley, 475 U.S. at 327). Nonetheless, the absence of, or extent of, a prisoner's injury may be instructive as to “'whether the use of force could plausibly have been thought necessary' in a particular situation, and ‘may also provide some indication of the amount of force applied.'” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson at 9) (internal citations omitted).
Given our view that whether Iannuzzi had the malicious motivation the Eighth Amendment prohibits when he shoved the plaintiff is a question that cannot be determined as a matter of law at this stage, neither is the lack of injury attributed to this defendant determinative. More importantly, the factual allegations as pleaded do not foreclose the possibility that some of the plaintiff's injuries were caused by Iannuzzi, as the plaintiff alleges he suffered injuries from the incident that began with Iannuzzi shoving him down into his chair.
Accordingly, we recommend Defendant Iannuzzi's motion to dismiss the plaintiff's Eight Amendment excessive force claim be denied.
2. The Medical Deliberate Indifference Claim Against Defendant Iannuzzi Should Be Dismissed.
The plaintiff also argues that NP Iannuzzi was deliberately indifferent to his medical needs in violation of the Eighth and Fourteenth Amendments arguing that he was forced to wait several days to received treatment for the injuries he sustained in the July 29, 2021, incident. Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice standing alone is not a constitutional violation. Estelle, 429 U.S. at 106. “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Clark v. Doe, 2000 U.S. Dist. LEXIS 14999, 2000 WL 1522855, at *2 (E.D. Pa. Oct.13, 2000) (“[C]ourts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care”). Thus, such complaints fail as constitutional claims since “the exercise by a doctor of his professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa.1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights”). Under this standard, courts have frequently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received, particularly where it can be shown that significant medical services were provided to the inmate, but the prisoner is dissatisfied with the outcome of these services. See e.g., Ham v. Greer, 269 Fed.Appx. 149 (3d Cir. 2008); James v. Dep't of Corrections, 230 Fed.Appx. 195 (3d. Cir. 2007); Gillespie v. Hogan, 182 Fed.Appx. 103 (3d Cir. 2006); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D. Pa. Oct.15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D. Pa. 1997).
Instead, courts have defined the precise burden which an inmate must sustain in order to advance an Eighth Amendment claim against a healthcare professional premised on allegedly inadequate care, stating that:
The district court [may] properly dis [miss an] Eighth Amendment claim, as it concerned [a care giver], because [the] allegations merely amounted to a disagreement over the proper course of his treatment and thus failed to allege a reckless disregard with respect to his . . . care. The standard for cruel and unusual punishment under the Eighth Amendment, established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and its progeny, has two prongs: 1) deliberate indifference by prison officials and 2) serious medical needs. “It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.'” “Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation.” . . . [The inmate] alleged no undue delay in receiving treatment and, as the district court noted, the evidence he presented established that he received timely care.... Although [an inmate plaintiff] may have preferred a different course of treatment, [t]his preference alone cannot establish deliberate indifference as such second-guessing is not the province of the courts.James, 230 F. App'x. at 197-198. (citations omitted).
Furthermore, it is well-settled that an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 Fed.Appx. 228, 229 (8th Cir. 2002) (deliberate indifference claim failed when it boiled down to a disagreement over recommended treatment for hernias and decision not to schedule a doctor's appointment); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir. 1996) (inmate's disagreement with selection of medicine and therapy for sickle cell anemia falls well short of demonstrating deliberate indifference); Sherrer v. Stephen, 50 F.3d 496, 497 (8th Cir. 1994) (inmate's “desire for a replacement joint instead of fusion surgery is merely a disagreement with the course of medical treatment and does not state a constitutional claim”); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990) (inmate failed to prove deliberate indifference where his complaints represented nothing more than mere disagreement with course of his medical treatment). Therefore, where a dispute, in essence, entails nothing more than a disagreement between an inmate and caregivers over alternate treatment plans, the inmate's complaint will fail as a constitutional claim. See e.g., Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009) (dispute over choice of medication does not rise to the level of an Eighth Amendment violation); Innis v. Wilson, 334 Fed.Appx. 454 (3d Cir. 2009) (same); Rozzelle v. Rossi, 307 Fed.Appx. 640 (3d Cir. 2008) (same); Whooten v. Bussanich, 248 Fed.Appx. 324 (3d Cir. 2007) (same); Ascenzi v. Diaz, 247 Fed.Appx. 390 (3d Cir. 2007) (“[T]he exercise . . . of . . . professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citations omitted).
Here, it is undisputed that the plaintiff received treatment for his injuries, including x-rays, an immobilization boot, and steroid injections for nearly four to six months following the incident. However, the plaintiff argues that the defendants failed to address his medical needs immediately following the incident and he had to wait several days in the RHU before receiving treatment. Thus, it appears it is this brief delay in treatment which forms the basis of his claim for deliberate indifference.
With regard to delays in treatment, the Third Circuit has found deliberate indifference only where a prison official: “1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; 2) delays necessary medical treatment for non-medical reasons; or 3) prevents a prisoner from receiving needed or recommended treatment.” Bacon v. Carroll, 232 Fed.Appx. 158, 160 (3d Cir. 2007) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Indeed, the Third Circuit has noted that “deliberate indifference could exist in a variety of different circumstances, including where “‘knowledge of the need for medical care [is accompanied by the] ... intentional refusal to provide that care'” or where “[s]hort of absolute denial ... ‘necessary medical treatment [i]s ... delayed for non-medical reasons,'” or where “‘prison authorities prevent an inmate from receiving recommended treatment.'” Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (citing Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)).
On the part of Defendant Iannuzzi, the plaintiff's complaint alleges that he was involved in the incident that caused the plaintiff's injuries and thus was aware that the plaintiff required medical attention. He also claims that Iannuzzi visited him in the RHU cell in the days that followed the July 29, 2021, incident, presumably to evaluate his medical needs. (Doc. 23, ¶¶ 105, 108). According to the plaintiff, despite his obvious need for medical care, as observed by Iannuzzi, the defendants failed to adequately address his medical needs until several days later, resulting in further unnecessary pain and suffering. However, the factual allegations in the complaint demonstrate that the plaintiff did receive medical care in the RHU - he was seen by NP Iannuzzi in the days following the incident - and that he received the requisite medical treatment within several days of his injuries, including x-rays, steroid shots, and dental work, and he was seen by NP Iannuzzi for a medical evaluation in the days that followed the July 29, 2021, incident. Thus, although he does allege that Iannuzzi knew of his medical needs, there is no allegation that Iannuzzi, or any other defendant, intentionally refused to provide medical care or delayed care for nonmedical reasons. Accordingly, we recommend the plaintiff's claim of deliberate indifference be dismissed.
3. The Plaintiff's Negligence Claims Against Defendant Iannuzzi Require More a More Definite Statement.
Given this finding that the allegations in the complaint tend to indicate that the plaintiff was treated for his injuries, we turn next to his claim that Defendant Iannuzzi was negligent in the medical treatment he provided. Pennsylvania has exacting standards for negligence, and the plaintiff's claims sounding in negligence, including his medical negligence and negligent infliction of emotional distress (NIED) claims, have specific pleading requirements.
On this score, 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 malpractice plaintiffs like Lombardo by Pennsylvania Rule of Civil Procedure 1042.3, which requires filing a valid certificate of merit along with a malpractice claim or medical negligence claim. A certificate of merit must affirmatively demonstrate “either that (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 ... (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Bresnahan v. Schenker, 498 F.Supp.2d 758, 761-62 (E.D. Pa. 2007). Under Pennsylvania law expert testimony is typically required to establish the elements of a tort claim unless the matter “is so simple or the lack of skill or care is so obvious as to be within the range of experience and comprehension of even nonprofessional persons.” Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997). Likewise, expert testimony is typically needed to prove causation of a medical condition. Feit v. Great West Life and Annuity Insurance Company, 271 Fed.Appx. 246, 252 (3d Cir. 2008).
Given that such tort claims often require expert testimonial proof, an improvident declaration that no expert testimony is needed can have dire consequences. Once a plaintiff certifies that he requires no expert proof for a tort claim he is bound by that certification and absent exceptional circumstances is precluded from introducing the expert testimony he needs on the standard of care and causation. See Rodriguez v. United States, No. CV 3:14-1149, 2016 WL 4480761, at *4 (M.D. Pa. Aug. 23, 2016) (quoting Pa. R. Civ. P. 1042.3(a)(3)), affd, No. 163913, 2017 WL 2438205 (3d Cir. June 6, 2017).
Along with his complaint, the plaintiff has provided a certificate of merit certifying only that “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant.” (Doc. 16). Nonetheless, Iannuzzi argues that the plaintiff's negligence claim should be dismissed at the outset on the pleadings alone because he cannot prove his negligence claim without a medical expert, and he is now prohibited from soliciting expert opinion evidence since he is bound by his certificate of merit stating expert testimony of an appropriate licensed professional is unnecessary for prosecution of this claim. Iannuzzi also argues that the plaintiff has failed to plead facts showing he breached any duty owed to him in rendering medical care or how that duty was breached. For his part, the plaintiff argues that he can prevail on his negligence claim without expert testimony because the conduct alleged in his complaint obviously fell short of any possible accepted standard of medical care.
In a similar case, at the motion to dismiss phase of the litigation, we found that, although the plaintiff was unlikely to succeed on his medical malpractice claim without the testimony of a medical expert, his filing of a certificate of merit stating that a medical expert was unnecessary was not fatal to his complaint. In that case we held:
Recognizing that [the plaintiff] has filed pleadings which are tantamount to certifications under Rule 1042.3(a)(3) that expert testimony is unnecessary to prosecute his case, we will decline to dismiss this claim for non-compliance with the rule. Instead, we will hold [the plaintiff] to the election he has made, an election whose consequences may include a prohibition against offering expert testimony later in the litigation, absent “exceptional circumstances,” Pa. R. Civ. P. 1042.3(a)(3) (Note), but an election which allows the case to proceed to discovery, leaving the consequence of [the plaintiff's] decision to be dealt with at a later stage of the litigation, such as summary judgment or trial. Liggon-Redding, 659 F.3d at 265; see Bennett v. PrimeCare Med. Inc., No. 3:18-CV-517, 2018 WL 6072126, at *11 (M.D. Pa. Sept. 14, 2018), report and recommendation adopted, No. 3:18-CV-00517, 2018 WL 6062306 (M.D. Pa. Nov. 20, 2018).Moore v. Wetzel, No. 1:18-CV-1523, 2019 WL 1397405, at *13-14 (M.D. Pa. Mar. 6, 2019), report and recommendation adopted, No. 1:18-CV-1523, 2019 WL 1383631 (M.D. Pa. Mar. 27, 2019).
Here again, we do not think the certificate of merit, as filed, is necessarily fatal to the plaintiff's negligence claim at this stage, however the complaint is flawed in another way; it is unclear to us on the face of the complaint upon which facts the plaintiff is alleging Defendant Iannuzzi's actions fell below the acceptable standard of care and which of the alleged injuries he attributes to Iannuzzi. For example, it appears the plaintiff alleges that Defendant Iannuzzi was negligent in his duty to render him medical care following the alleged assault but also that Iannuzzi, the prison nurse practitioner charged with evaluating and caring for his injuries, attacked him. It also appears he alleges that he suffered physical injuries in the incident, but he has not made it clear which injuries he attributes to Defendant Iannuzzi's conduct.Thus, it is unclear why the plaintiff alleges his injuries are so obvious that a medical expert is not necessary. He also alleges that Defendant Iannuzzi was negligent in failing to treat his injuries in the days following the attack, but later claims that Defendant Iannuzzi came to see him in the RHU in the days following the attack, presumably to assess his injuries.
We simply note that this causation element will be particularly difficult to prove without the testimony of a medical expert, but nevertheless would require at least a simple allegation in the complaint to clarify what the plaintiff will later be required to prove.
This confusion as to the injuries he attributes to Defendant Iannuzzi and the conduct for which he alleges Iannuzzi was negligent likewise causes difficulty in assessing his claim for negligent infliction of emotional distress. In Pennsylvania NIED is a limited tort that imposes liability in only four expressly delineated circumstances:
(1) impact liability where emotional distress is accompanied by physical injury or impact; (2) zone of danger liability where emotional distress is inflicted on a plaintiff who was in close proximity of physical impact and thereby reasonably experienced a fear of physical injury; (3) bystander liability for emotional distress experienced by a plaintiff who personally witnessed an impact upon a close relative; and (4) special relationship liability premised on the breach of a preexisting
contractual or fiduciary relationship that foreseeably resulted in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.Humphries v. Pennsylvania State Univ., 492 F.Supp.3d 393, 409 (M.D. Pa. 2020). Due to difficulties in proving causation, historically, Pennsylvania had only recognized claims for NIED in cases involving physical impact, or danger thereof, on the plaintiff or a close relative of the plaintiff. Toney v. Chester County Hosp., 614 Pa. 98, 119 (PA 2011). But, finding that rule to be unworkable, the Pennsylvania Supreme Court later extended NIED to injuries resulting from special relationships “involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach.” Id. at 117. However, Pennsylvania requires heightened standards for plaintiffs alleging a special relationship NIED:
A plaintiff asserting a special relationship NIED cause of action absent physical injury, however, must still demonstrate the genuineness of the alleged emotional distress, in part, by proving the element of causation. Unlike cases involving a physical impact, a plaintiff in a non-impact case faces a more difficult task of convincing a court of the legitimacy of the emotional distress and the causal nexus between the negligent action at issue and alleged distress.Toney v. Chester Cnty. Hosp., 614 Pa. 98, 123-24, 36 A.3d 83, 99 (2011). Thus, more is required in demonstrating the emotional distress suffered in a situation where there is no physical impact.
Defendant Iannuzzi asks us to dismiss the plaintiff's claim of NIED against him citing the standard for special relationship NIED that, “[c]ompensable emotional harm has been described as ‘likely to be experienced as a visceral and devastating assault on the self' such that it ‘resemble[s] physical agony in its brutality.'” Toney v. Chester Cnty. Hosp., 614 Pa. 98, 117, 36 A.3d 83, 95 (2011) (quoting Gregory C. Keating, Is Negligent Infliction of Emotional Distress A Freestanding Tort?, 44 Wake Forest L. Rev. 1131, 1174 (2009)). Here again, our uncertainty as to exactly what the plaintiff is alleging makes it difficult to assess his claim. Clearly, he has not alleged this type of visceral emotional harm that would be required for a claim of special relationship NIED. But he has alleged that the defendant made physical contact with his body by pushing him down and he has alleged that he suffered physical injuries in the incident, which could form the basis of an impact liability claim of NIED. Unfortunately, the manner in which the plaintiff has presented his complaint, which lumps together every defendant despite their different roles in the alleged incident, makes it difficult for us to understand which of Defendant Iannuzzi's alleged actions caused him emotional distress - whether it was an alleged delay in his treatment, some special relationship between the plaintiff and Iannuzzi that obviously held the potential for emotional harm, or the physical act of Iannuzzi pushing him. For essential issues of negligence, such as causation and injury, a precise pleading of these facts is necessary to determine whether a cause of action exists.
Presented with these obstacles to a fully informed understanding of the plaintiff's claim, we note that, when a plaintiff's complaint is unclear, the court may, sua sponte, order the plaintiff to file a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure in order to clarify the plaintiff's claims. See, e.g., Kyeame v. Buchheit, No. 1:07-CV-1239, 2011 WL 3651369, at *1 (M.D. Pa. Aug. 18, 2011); MFS, Inc. v. Twp. of South Annville, No. 1:05-CV-1371, 2006 WL 3254535, at *7 (M.D. Pa. Nov. 9, 2006); see also Moore's Federal Practice, § 12.36 (Matthew Bender 3d ed.) (“Because of its potential usefulness ... courts will occasionally order a more definite statement sua sponte, which they have the freedom to do”); Fikes v. City of Daphne, 79 F.3d 1079, 1082-83 (11th Cir. 1996) (finding that a more definite statement can tighten a complaint and clarify which of several possible claims are being asserted).
In a case such as this, where the plaintiff's negligence claim may not be clearly and thoroughly articulated, Rule 12(e) of the Federal Rules of Civil Procedure provides, in part, that the court may order a party to prepare: “a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Further, under this rule “[i]f the court orders a more definite statement, and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.” Fed. R. Civ. P., Rule 12(e).
Here, we find that this particular complaint aptly:
highlights] the particular usefulness of the Rule 12(e) motion for a more definite statement. Under Rule 12(e), [the court may order] a more definite statement “[i]f a pleading ... is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” Fed.R.Civ.P. 12(e).... When a complaint fashioned under a notice pleading standard does not disclose the facts underlying a plaintiff's claim for relief, the defendant cannot reasonably be expected to frame a proper, fact-specific ... defense....
The Rule 12(e) motion for a more definite statement is perhaps the best procedural tool available to the defendant to obtain the factual basis underlying a plaintiff's claim for relief.Thomas v. Independence Tp., 463 F.3d 285, 301 (3d Cir. 2006)
Given some of the legal and factual ambiguities of the plaintiff's negligence claim against Defendant Iannuzzi, it is recommended that the plaintiff be directed pursuant to Rule 12(e) to submit a more definite statement of these claims in the form of an amended complaint.
4. Defendant Iannuzzi's Motion to Dismiss the Plaintiff's Assault and Battery Claim Should Be Denied.
Defendant Iannuzzi has not moved to dismiss the plaintiff's tort claims under a theory of governmental immunity and, without briefing from the parties, it is unclear whether his position at LCCF would entitle him to immunity under the PSTCA. Moreover, although Pennsylvania law generally bars negligence claims against local agencies and their employees, the PSTCA does not provide for immunity to law enforcement officials who engage in willful misconduct. See 42 Pa. Cons.Stat. Ann. § 8550 (permitting action against governmental employees who are determined to have “cause the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct” and providing that the limitations on liability and provisions for indemnity provided for under the PSTCA shall not apply in such cases). Since, intentional torts, such as assault and battery, are synonymous with “willful misconduct” for the purposes of the PSTCA, see White v. Dauphin Cnty., No. 1:22-CV-1241, 2023 WL 6392735, at *6 (M.D. Pa. Sept. 29, 2023) (citing Burkhart v. Knepper, 310 F.Supp.2d 734, 744 (W.D. Pa. 2004); Kuzel v. Krause, 658 A.2d 856, 859 (Pa. Commw. Ct. 1995)), the PSTCA would not shield any of the law enforcement officer defendants from liability from an assault and battery claim.
Since Iannuzzi, nor any of the other defendant corrections officers,are shielded from liability for their actions based on Pennsylvania law, our analysis next moves to the elements of assault and battery. In Pennsylvania:
The other defendants have not moved to dismiss the plaintiff's assault and battery claims.
The tort of assault requires that the defendant act with the intent to place the plaintiff in apprehension of imminent harmful or offensive bodily contact and that the plaintiff actually experience such apprehension.
See Heverly v. Simcox, No. 4:05-1370, 2006 WL 2927262, at *9 (M.D. Pa. Oct. 11, 2006); D'Errico v. DeFazio, 763 A.2d 424, 431 n. 2 (Pa. Super Ct. 2000). Battery requires proof that the defendant acted with the intent to cause harmful or offensive bodily contact with the person of the plaintiff and that such contact actually followed. See Fulks ex rel. Daniel v. Gasper, 439 F.Supp.2d 372, 379 (M.D. Pa. 2006); Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. Ct. 1999).Dull v. W. Manchester Twp. Police Dep't, 604 F.Supp.2d 739, 754 (M.D. Pa. 2009).
Thus, “[a] battery is defined as a ‘harmful or offensive contact' with the person of another,” and requires such contact as an element of this tort. C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336, 340 (2008).
Therefore, the relationship between these two torts has been aptly described by the Pennsylvania courts in the following terms: “‘Assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person.'” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (1994) (quoting Cohen v. Lit Brothers, 70 A.2d 419, 421 (1950)) (citation omitted).
Iannuzzi argues that the plaintiff has not alleged assault or battery because his complaint alleges only that his pelvis area was nearly against his face but does not allege that NP Iannuzzi made contact with his face. However, the plaintiff does indeed allege that, in addition to yelling at him, NP Iannuzzi forced him back into his chair using both hands to forcefully push down on his upper chest, (Doc. 23, ¶ 28). In our view, this is enough to allege that he both the apprehension of harmful contact, and harmful contact in the form of him pushing him down in his chair. This is sufficient at this stage in the litigation. Thus, we recommend Defendant Iannuzzi's motion to dismiss the plaintiff's assault and battery claim be denied.
5. The Intentional Infliction of Emotional Distress Claim Against Defendant Iannuzzi Should Be Dismissed.
The plaintiff also alleges claims of intentional infliction of emotional distress against all defendants. Although the plaintiff asserts his claims of negligent and intentional infliction of emotional distress as a single cause of action, there are different standards governing the torts of negligent infliction of emotional distress, which we discussed above with his other negligence claim, and intentional infliction of emotional distress.
With regard to the tort of intentional infliction of emotional distress, under Pennsylvania Law:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.10 Restatement (Second) of Torts § 46(1) (1965). Our sister court has explained that, to establish a claim for IIED: “(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe.” Richardson v. Barbour, No. 2:18-CV-01758-JMG, 2020 WL 4815829, at *14 (E.D. Pa. Aug. 19, 2020). With regard to the level of conduct required, the Pennsylvania Superior Court has noted:
“The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Buczek v. First National Bank of Mifflintown, 366 Pa.Super. 551, 558, 531 A.2d 1122, 1125 (1987). Described another way, “[i]t has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,' or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.”Hoy v. Angelone, 554 Pa. 134, 151, 720 A.2d 745, 754 (1998) (quoting Restatement (Second) of Torts § 46, comment d; Daughen v. Fox, 372 Pa.Super. 405, 412, 539 A.2d 858, 861 (1988)).
In addition to alleging outrageous conduct, “a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct.” Reeves v. Middletown Athletic Ass'n, 2004 PA Super 475, ¶ 17, 866 A.2d 1115, 1122-23 (2004) (citing Fewell v. Besner, 444 Pa.Super. 559, 664 A.2d 577, 582 (1995)). On this score, a plaintiff must allege “more than a conclusory recitation of two elements of an emotional distress claim, namely causation and the requisite level of harm.” White v. Brommer, 747 F.Supp.2d 447, 466 (E.D. Pa. 2010).
Defendant Iannuzzi argues that the plaintiff has not alleged the kind of outrageous conduct required to demonstrate a claim for IIED. He also argues that the plaintiff has failed to sufficiently allege any physical harm or physical manifestations of any emotional distress he suffered at the hands of NP Iannuzzi. We agree. Claims of IIED are reserved for truly abhorrent behavior that shocks the conscience, and “[c]ases which have found a sufficient basis for a cause of action of intentional infliction of emotional distress have had presented only the most egregious conduct.” Hoy v. Angelone, 554 Pa. 134, 151, 720 A.2d 745, 754 (1998). Thus, even if the plaintiff has alleged conduct on the part of Iannuzzi that was otherwise tortious, his act of yelling, positioning his pelvis nearly against a plaintiff's face, and pushing him down in a chair is not the type of outrageous conduct sufficient to state a claim for IIED. Further, although the plaintiff has alleged he suffered physical injuries from the alleged assault that began with Iannuzzi pushing him, with regard to any emotional injury he suffered, he states only that he is “suffering severe emotional pain and suffering, mental anguish, humiliation, and embarrassment,” which, in our view, only impermissibly recites the elements of the tort without alleging sufficient detail as to the emotional distress he has suffered. See e.g., M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F.Supp.3d 412, 430 (M.D. Pa. 2014) (dismissing IIED claim where the complaint alleged emotional distress, but did not allege physical manifestation of that distress); White v. Brommer, 747 F.Supp.2d 447, 466 (E.D. Pa. 2010) (dismissing IIED claim where complaint was silent as to how this “severe emotional distress” manifested itself in plaintiff). Accordingly, we recommend the plaintiff's claim of intentional infliction of emotional distress be dismissed as to Defendant Iannuzzi.
As previously discussed, the origin and causation of any injuries the plaintiff is alleging were caused by Defendant Iannuzzi should be clarified in an amended complaint.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the County Defendants' motion to dismiss, (Doc. 28), be GRANTED, and Luzerne County, Luzerne County Correctional Facility, and Warden Rockovich be dismissed from this action leaving only the plaintiff's Eight Amendment Excessive Force claims and state law assault and battery claims against the corrections officer defendants. IT IS FURTHER RECOMMENDED that Defendant Iannuzzi's motion to dismiss, (Doc. 26), be DENIED with respect to the plaintiff's Eighth Amendment Excessive Force claim and state law assault and battery claims and that Defendant Iannuzzi's motion to dismiss be GRANTED with respect to his Eight and Fourteenth Amendment deliberate indifference claims and state law intentional infliction of emotional distress claims. Finally, IT IS FURTHER RECOMMENDED that the plaintiff be required to provide a more definite statement, in the form of an amended complaint, with regard to the exact nature of his negligence claims against Defendant Iannuzi.
The Parties are further 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 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.