Opinion
2:22-CV-00556
04-11-2023
KHALIL NEWMAN, Plaintiff, v. OLIVER JACOB BURROWS, ERNA CRAIG, OFFICER STONER, NURSE JANE DOE, DEPUTY WARDEN REICHARD, MERCER COUNTY PRISON BOARD MEMBERS, PRIME CARE INC., Defendants.
Marilyn J. Horan Judge
REPORT AND RECOMMENDATION ECF NO. 28
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendant PrimeCare Medical, Inc. (ECF No. 28) be granted in part and denied in part. It is recommended that the motion to dismiss the Fourteenth Amendment deliberate indifference claim be granted without prejudice and that Plaintiff be allowed leave to file a second amended complaint to cure the deficiencies noted below. It is further recommended that the motion to dismiss the negligence claim be denied as premature and without prejudice to raise it in a subsequent motion.
II. REPORT
A. Factual Background and Procedural History
Plaintiff Khalil Newman is an inmate currently housed at the Erie County Jail. At the time of the alleged incidents upon which this Civil Rights lawsuit is predicated, Mr. Newman was a pretrial detainee incarcerated at the Mercer County Jail. Am. Compl. ¶ I, ECF No. 12 at 1.
In May of 2022 while housed on B-unit, Mr. Newman alleges that he injured his hand during a physical altercation with another inmate P. Austin. ECF No. 12 at 5. Mr. Newman alleges that he notified nurse Jane Doe of PrimeCare of constant ache, pain, and swelling, but no action was taken. Id. Afterwards Mr. Newman claims that he filed a grievance on this issue but no action was taken. Id. As of June 19, 2022, Mr. Newman alleges that his hand is severely injured, possibly broken, and he still experiences pain, but he is not receiving any medical treatment. Id.at 5-6; Ex. in Supp. of Am. Compl., ECF No. 15 at 2.
Mr. Newman commenced this civil rights action on April 14, 2022 against several employees of the Mercer County Jail as well as against PrimeCare Medical, Inc. (“PrimeCare”), a private company that provides health services to Mercer County Jail inmates, and nurse Jane Doe. He subsequently filed an Amended Complaint (ECF No. 12) on June 28, 2022 asserting inter alia a claim against Defendants nurse Jane Doe and PrimeCare for failure to provide medical treatment in violation of the Fourteenth Amendment Due Process Clause. ECF No. 12 at 5. For relief, Mr. Newman requests a declaratory judgment that the actions and inactions of Defendants violated his rights, injunctive relief in the form of a medical exam by an outside hospital not affiliated with the jail, nominal, compensatory, and punitive damages, as well as reasonable amount for pain and suffering. See Am. Compl. ¶ IV, ECF No. 12 at 3; Supp. to Am. Compl., ECF No. 21.
It is unclear from the Amended Complaint whether nurse Jane Doe is employed by the prison or PrimeCare. The identity of nurse Jane Doe has not yet been determined.
In response, Defendant PrimeCare filed a motion to dismiss (ECF No. 28) on November 1, 2022, to which Plaintiff filed a response in opposition (ECF No. 39) on November 15, 2022. As the motion is fully briefed, it is ripe for disposition.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
Also, when considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must liberally construe the pro se litigant's pleadings and “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). Notwithstanding this liberality, there are limits to the court's procedural flexibility-“pro se litigants still must allege sufficient facts in their complaints to support a claim. . . they cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).
C. Discussion
1. Fourteenth Amendment Deliberate Indifference Claim
In support of its motion to dismiss, PrimeCare submits that the Amended Complaint fails to demonstrate that it violated Mr. Newman's constitutional rights. PrimeCare advances two arguments in support of its position. First, PrimeCare argues that “[a] private corporation contracted by a prison to provide health care for inmates cannot be held liable on respondeat superior theory; rather, it can only be held liable for constitution violations if it has a custom or policy exhibiting deliberate indifference to a prisoner's serious medical needs[,]” citing Henry v. Buskirk, No. 08-1348, 2011 WL 767540, *4 (E.D.Pa. Feb. 24, 2011) (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-92 (1978)). PrimeCare argues that the Amended Complaint does not mention any PrimeCare policies or procedures concerning the provision of medical care at the Mercer County Jail. As such, PrimeCare maintains that Plaintiff has failed to state a plausible Fourteenth Amendment claim against it.
In his one page response to PrimeCare's motion to dismiss, Mr. Newman does not address this argument, but rather poses a question: “Are there Procedures not to check a harmed Inmate?” ECF No. 39. In order to state a claim against PrimeCare, Newman must allege facts to show that there was a relevant PrimeCare policy or custom, and that the policy or custom caused the alleged constitutional violation. Natalie, 318 F.3d at 583-84. Here the Amended Complaint fails to allege that PrimeCare employed a policy or custom that prevented its employees from providing necessary medical treatment or that PrimeCare failed to establish a policy to address appropriate medical care when an inmate sustains a serious injury while incarcerated. As such, Plaintiff has failed to state a plausible claim of deliberate indifference to a serious medical need against PrimeCare under the Fourteenth Amendment Due Process Clause. Although the Court recommends that PrimeCare's motion to dismiss be granted as to Newman's Fourteenth Amendment claim against PrimeCare, the Court also recommends that Plaintiff be granted leave to file a second amended complaint to cure the deficiency noted above.
A policy is made “when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir.1996) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (plurality opinion)). A custom is an act “that has not been formally approved by an appropriate decisionmaker,” but that is “so widespread as to have the force of law.” Bryan County, 520 U.S. at 404. Natale, 318 F.3d at 584.
Next, PrimeCare argues that the Amended Complaint fails to demonstrate a deliberate indifference to a serious medical condition. Specifically, PrimeCare argues that Plaintiff's hand injury does not demonstrate a serious medical condition and therefore Newman has failed to plead a constitutional violation. Because there is no underlying constitutional violation, PrimeCare submits that Monell liability cannot lie, citing in support Stephens v. City of Englewood, 689 Fed.Appx. 710, 714 (3d Cir. 2017). The Court disagrees with PrimeCare's conclusion that Plaintiff's hand injury does not constitute a serious medical condition.
Newman was a pretrial detainee at the time of his incarceration and, as such, his claim for inadequate medical care must be analyzed under the Fourteenth Amendment not the Eighth Amendment. Hubbard v. Taylor, 399 F.3d 150, 166-67 & n. 23 (3d Cir. 2005); King v. Cnty. of Gloucester, 302 Fed.Appx. 92, 96 (3d Cir. 2008) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Hubbard, 399 F.3d at 166). “The applicable constitutional protection is the Due Process Clause of the Fourteenth Amendment which ‘does require the responsible ... governmental agency to provide medical care' to pre-trial detainees, [City of Revere, 463 U.S. at 244], because the failure to do so amounts to punishment without an adjudication of guilt. See Hubbard I, 399 F.3d at 166.” King, 302 Fed.Appx. at 96. The court of appeals in King went on to explain:
In assessing the denial of medical care to a pretrial detainee, the inquiry is whether the denial was “imposed for the purpose of punishment or whether it [was] but an incident of some other legitimate governmental purpose.” Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). That inquiry involves an indirect application of the Eighth Amendment deliberate indifference standard: “the Supreme Court has concluded that the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner,' without deciding whether the Fourteenth Amendment provides greater protections.” Natale, 318 F.3d at 581 (quoting City of Revere, 463 U.S. at 244, 103 S.Ct. 2979); see also Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979) (holding that “at a minimum the ‘deliberate indifference' standard of Estelle v. Gamble, must be met”).Id. In other words, when evaluating inadequate medical care claims by pretrial detainees, courts must apply the Eighth Amendment's deliberate indifference standard as articulated by the Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976), but must view this inquiry in the context of the standard articulated in Bell v. Wolfish, which applies Fourteenth Amendment due process principles to pretrial detainees, rather than the cruel and unusual punishment standard. Langella v. Cnty. of McKean, Civ. A. No. 09-cv-311E, 2010 WL 3824222, *13 (W.D.Pa. Sept. 23, 2010)(citing Hubbard, 399 F.3d at 165-66). See also Montgomery v. Ray, 145 Fed.Appx. 738, 739-40 (3d Cir. 2005) (vacating an order and remanding case where district court evaluated pretrial detainee's claim involving inadequate medical treatment under the same standards as Eighth Amendment claims). In Montogmery, the court of appeals noted its recent decision in Hubbard, which:
clarified that the Eighth Amendment only acts as a floor for due process inquiries into medical and non-medical conditions of pretrial detainees. While “the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner,” Hubbard, 399 F.3d at 166 (citation omitted), the proper standard for examining such claims is the standard set forth in Bell v. Wolfish, . . . i.e., whether the conditions of confinement (or here, inadequate medical treatment) amounted to punishment prior to an adjudication of guilt, Hubbard, 399 F.3d at 158.145 Fed.Appx. at 740 (emphasis and brackets in original).
The deliberate indifference standard under the Eighth Amendment requires the inmate to show (1) a serious medical need, and (2) behavior on the part of prison officials that constitutes deliberate indifference to that need. Estelle, 429 U.S. at 104; see also Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). PrimeCare is only challenging the first prong of the Estelle inquiry. To satisfy that prong, the inmate must demonstrate that his medical needs are serious. “Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.'” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle, 429 U.S. at 103-04).
The Third Circuit has defined a serious medical need as: (1) “'one that has been diagnosed by a physician as requiring treatment[;]'” (2) “'one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention[;]'” or (3) one “where the denial of treatment would result in the ‘unnecessary and wanton infliction of pain,' or ‘a life-long handicap or permanent loss[.]'” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), and Estelle, 429 U.S. at 103) (Ambro, J., dissenting).
PrimeCare maintains that Plaintiff's hand injury does not rise to the level of a serious medical condition, but rather, is similar to cuts, bruises, scrapes, scratches, suspected broken fingers, or a black eye that the courts have found do not constitute a serious medical need. ECF No. 29 at 7 (listing cases). However, in response to PrimeCare's motion to dismiss, Newman states that he was told by a doctor during a medical trip to the hospital a month after he sustained the hand injury that his hand was broken and because it had already “healed dislocated” it was too late to do anything about it. ECF No. 39. These allegations, if pled in the Amended Complaint, would be sufficient at this stage of the proceedings to plausibly show a serious medical need. Certainly, the subsequent diagnosis by the physician of a broken hand and the implication that had his injury been treated promptly the healed dislocation would not have occurred, as well as the alleged permanent dislocation are sufficient under Atkinson to plausibly show a serious medical need.
Therefore, the Court recommends granting the motion to dismiss without prejudice and giving Plaintiff leave to file a second amended complaint which should include the additional facts regarding the seriousness of his hand injury.
2. Negligence Cause of Action
Finally, PrimeCare submits that out of an abundance of caution if a liberal reading of Plaintiff's pleadings, in particular Plaintiff's statement in his Supplement to the Amended Complaint (ECF No. 21), is construed as alleging a vicarious liability claim against PrimeCare for the alleged malpractice of the nurse Jane Doe, any such cause of action should be dismissed because he has not suffered any injury as a result of the alleged negligence. PrimeCare's motion to dismiss the negligence claim is premature at this stage of the proceedings as the identity of nurse Jane Doe has not yet been established, nor has it been established that she is an employee of PrimeCare. Moreover, the docket shows that nurse Jane Doe is not represented by counsel, let alone counsel for PrimeCare. Therefore, the Court recommends that PrimeCare's motion to dismiss any negligence cause of action be denied without prejudice to raise it in a subsequent motion once the identity and relationship of nurse Jane Doe is established.
PrimeCare's argument is based on the following statement by Plaintiff in ECF No. 21: “I'd like to amend a new relief amount of and money of $1,500,000 because it just occurred to me I could have caught a desease [sic] from the urine being thrown on me and the nurse did not follow protocol or proper procedures. Wrongful malpractice.”
D. Conclusion
For the reasons set forth above, it is respectfully recommended that the Motion to Dismiss (ECF No. 28) filed by Defendant PrimeCare Medical, Inc. be granted without prejudice as to the Fourteenth Amendment deliberate indifference claim and that Plaintiff be allowed leave to file a second amended complaint which sets forth sufficient factual allegations to plausibly show (1) that PrimeCare employed a policy or custom that prevented its employees from providing necessary medical treatment or that PrimeCare failed to establish a policy to address appropriate medical care when an inmate sustains a serious injury while incarcerated, and (2) that the hand injury he sustained constitutes a serious medical condition.
The Court further recommends that PrimeCare's Motion to Dismiss the negligence cause of action be denied as premature and without prejudice to raise it in a subsequent motion.
The Court further recommends that the PrimeCare be ordered to provide the identity of nurse Jane Doe if she is affiliated with it or, if not, to so inform the Court, within ten days of the District Court's order regarding this Report and Recommendation.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.