Tisdale v. Zaloga

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES JOHN TISDALE, IV, :

Plaintiff :

: No. 1:19-cv-1022

v. :

: (Judge Rambo)

DR. EDWARD ZALOGA, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to the motion to dismiss (Doc. No.

23) filed by Defendants Dr. Edward Zaloga (“Dr. Zaloga”) and Anthony Ianuzzi

(“Ianuzzi”). Pro se Plaintiff James John Tisdale, IV (“Tisdale”), who is presently

incarcerated at the Lackawanna County Prison, has neither filed a response to the

motion nor requested an extension of time to do so. Accordingly, because the time

to respond has expired, the motion to dismiss is ripe for disposition. Although

Tisdale has not opposed the motion to dismiss, the Court concludes for the following

reasons that his complaint survives dismissal. Thus, the Court will deny Defendants’

motion to dismiss.

I. BACKGROUND

Tisdale initiated the above-captioned action on June 17, 2019 by filing a

complaint pursuant to 42 U.S.C. § 1983 against Defendants Dr. Zaloga, Ianuzzi, and

Correctional Care Inc. (“CCI”). (Doc. No. 1.) Tisdale alleges that CCI is owned by

Dr. Zaloga and has a contract to provide medical care to inmates housed at the

Lackawanna County Prison. (Doc. No. 1 at 13.) In August of 2018, Tisdale began

to lose feeling “in the lower half of [his] body and extremities making it almost

impossible to walk or even shower.” (Id.) He submitted a sick call request on

August 9, 2018. (Id.) Three (3) days later, he was called to medical to see Ianuzzi.

(Id.) According to Tisdale, Ianuzzi stated that Tisdale “wasn’t numb because [he]

walked in there but provided no treatment.” (Id.) Tisdale alleges that he experienced

“constant loss of balance and falling,” as well as uncontrolled movements of his

mouth and tongue. (Id. at 14.) He maintains that these symptoms were caused by

the level of Dilantin in his blood “due to not being monitored by medical e.g. Dr.

Edward Zaloga.” (Id. at 15.) Tisdale maintains that on October 4, 2018, he fell in a

hallway and was taken to medical, where a nurse told the corrections officers

accompanying Tisdale that he “was fine” and just needed to lie down. (Id.) He

suggests that Defendants failed to refer him to a neurologist or other testing. (Id. at

13, 16.) Tisdale seeks $50,000.00 in damages as relief. (Id. at 17.)

In a Memorandum and Order dated June 25, 2019, the Court granted Tisdale

leave to proceed in forma pauperis, dismissed his Eighth Amendment claims against

CCI without prejudice, and granted him leave to file an amended complaint within

thirty (30) days. (Doc. Nos. 7, 8.) The Court advised Tisdale that if he did not file

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an amended complaint, the Court would direct service of his original complaint upon

Defendants Dr. Zaloga and Ianuzzi. (Doc. No. 8.) Tisdale did not file an amended

complaint. Accordingly, on July 30, 2019, the Court dismissed CCI and directed the

Clerk of Court to effect service of Tisdale’s complaint upon Defendants Dr. Zaloga

and Ianuzzi. (Doc. No. 10.)

Defendants Dr. Zaloga and Ianuzzi returned waivers of service on September

4, 2019. (Doc. No. 16.) Accordingly, their answers or other responses to the

complaint were due on or before September 30, 2019. In an Order dated October 4,

2019, the Court observed that Defendants Dr. Zaloga and Ianuzzi had not filed a

response to the complaint and directed them to show cause within seven (7) days

why Tisdale should not request the entry of default and default judgment pursuant

to Rule 55 of the Federal Rules of Civil Procedure. (Doc. No. 20.) Defendants Dr.

Zaloga and Ianuzzi filed their response that same day, requesting a short extension

of time to respond to the complaint. (Doc. No. 21.) In an Order dated October 7,

2019, the Court granted Defendants’ request for an extension and directed them to

respond to the complaint within seven (7) days. (Doc. No. 22.) Defendants

subsequently filed their motion to dismiss (Doc. No. 23) and brief in support (Doc.

No. 24).

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II. STANDARD OF REVIEW

A. Motion to Dismiss, Federal Rule of Civil Procedure 12(b)(6)

When ruling on a motion to dismiss under Rule 12(b)(6), the Court must

accept as true all factual allegations in the complaint and all reasonable inferences

that can be drawn from them, viewed in the light most favorable to the plaintiff. See

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court’s

inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal,

pleading requirements have shifted to a “more heightened form of pleading.” See

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal,

all civil complaints must set out “sufficient factual matter” to show that the claim is

facially plausible. Id. The plausibility standard requires more than a mere possibility

that the defendant is liable for the alleged misconduct. As the Supreme Court

instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing

Fed. R. Civ. P. 8(a)(2)).

Accordingly, to determine the sufficiency of a complaint under Twombly and

Iqbal, the United States Court of Appeals for the Third Circuit has identified the

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following steps a district court must take when determining the sufficiency of a

complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint “not

entitled” to the assumption of truth; and (3) determine whether any “well-pleaded

factual allegations” contained in the complaint “plausibly give rise to an entitlement

to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)

(citation and quotation marks omitted).

In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a

court must consider only the complaint, exhibits attached to the complaint, matters

of public record, as well as undisputedly authentic documents if the complainant’s

claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d

Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters

incorporated by reference or integral to the claim, items subject to judicial notice,

matters of public record, orders, [and] items appearing in the record of the case.’”

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed.

2004)); see also Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002) (noting that when considering a motion to dismiss, courts may consider

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“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading”).

In the context of pro se prisoner litigation specifically, the court must be

mindful that a document filed pro se is “to be liberally construed.” Estelle v.

Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,”

must be held to “less stringent standards than formal pleadings drafted by lawyers”

and can only be dismissed for failure to state a claim if it appears beyond a doubt

that the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Civil Rights Statute, 42 U.S.C. § 1983

Section 1983 is the vehicle by which private citizens may seek redress for

violations of federal constitutional rights committed by state officials. See 42 U.S.C.

§ 1983. The statute states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means

through which “to vindicate violations of federal law committed by state actors.”

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See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting

Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To state a cause of action

under Section 1983, a plaintiff must allege that: (1) the conduct complained of was

committed by persons acting under color of state law; and (2) the conduct violated a

right, privilege, or immunity secured by the Constitution or laws of the United States.

See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting

West v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

Defendants seek dismissal of Tisdale’s complaint for the following reasons:

(1) Tisdale failed to file the requisite certificate of merit for a medical malpractice

action; and (2) Tisdale has not set forth plausible Eighth Amendment claims against

them. (Doc. No. 24 at 4-8.) The Court considers each argument in turn below.

A. Failure to File a Certificate of Merit

Defendants first contend that if Tisdale “is attempting to assert a medical

malpractice negligence action,” such claims are subject to dismissal for his failure

to file the requisite certificate of merit. (Doc. No. 24 at 5.) The Court previously

construed Tisdale’s complaint as alleging violations of his Eighth Amendment rights

because of his allegations that he has been denied adequate medical care while

incarcerated at the Lackawanna County Prison. (Doc. No. 7 at 6.) Nevertheless, a

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liberal reading of Tisdale’s complaint leads the Court to agree that it could be

asserting medical malpractice claims pursuant to Pennsylvania state law.

Under Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, plaintiffs

seeking to raise medical malpractice claims must file a valid certificate of merit.

That rule states in pertinent part:

(a) In any action based upon an allegation that a licensed professional

deviated from an acceptable professional standard, the attorney for the

plaintiff, or the plaintiff if not represented, shall file with the complaint

or within sixty days after the filing of the complaint, a certificate of

merit signed by the attorney or party that either

(1) an appropriate licensed professional has supplied a written

statement that there exists a reasonable probability that the care,

skill or knowledge exercised or exhibited in the treatment,

practice or work that is the subject of the complaint, fell outside

acceptable professional standards and that such conduct was a

cause in bringing about the harm, or

(2) the claim that the defendant deviated from an acceptable

professional standard is based solely on allegations that other

licensed professionals for whom this defendant is responsible

deviated from an acceptable professional standard; or

(3) expert testimony of an appropriate licensed professional is

unnecessary for prosecution of the claim.

Pa. R. Civ. P. 1042.3. The requirements of Rule 1042.3 are deemed substantive in

nature and, therefore, federal courts in Pennsylvania must apply these prerequisites

of Pennsylvania law when assessing the merits of a medical malpractice claim.

Liggon-Reading v. Estate of Sugarman, 659 F.3d 258, 262-65 (3d Cir. 2011);

Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007). This

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requirement applies with equal force to counseled complaints and to pro se medical

malpractice actions brought under state law. See Hodge v. Dep’t of Justice, 372 F.

App’x 264, 267 (3d Cir. 2010) (affirming district court’s dismissal of medical

negligence claim for failure to file a certificate of merit); Levi v. Lappin, No. 07-

1839, 2009 WL 1770146, at *1 (M.D. Pa. June 22, 2009).

While a plaintiff’s failure to comply with Rule 1042.3 “requires dismissal of

any malpractice claim,” Bennett v. PrimeCare Med., Inc., No. 3:18-CV-517, 2018

WL 6072126, at *10 (M.D. Pa. Sept. 14, 2018), Report and Recommendation

adopted, 2018 WL 6062306 (M.D. Pa. Nov. 20, 2018), “Pennsylvania practice

expressly provides plaintiffs with notice of Rule 1042.3’s requirements and an

opportunity to cure any failure to file a certificate of merit before a matter is

dismissed,” TranSystems Corp. v. Hughes Assocs., Inc., No. 1:14-CV-1541, 2014

WL 6674421, at *5 (M.D. Pa. Nov. 24, 2014). Rule 1042.6(a) of the Pennsylvania

Rules of Civil Procedure provides that “a defendant seeking to enter a judgment of

non pros under Rule 1042.7(a) shall file a written notice of intention to file the

praecipe and serve it on the party’s attorney of record or on the party if

unrepresented, no sooner than the thirty-first day after the filing of the complaint.”

Pa. R. Civ. P. 1042.6(a). In federal courts, a judgment of non pros is “the equivalent

of a dismissal without prejudice.” Mayo v. Cty. of York, No. 1:10-cv-1869, 2012

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WL 948438, at *1 (M.D. Pa. Mar. 20, 2012). However, “[n]o judgment can be

entered against a plaintiff for failure to timely file a certificate of merit until the

defendant has complied with the notice requirements of Rule 1042.6(a).” Young v.

Halligan, No. 18-169, 2019 WL 1427249, at *5 (W.D. Pa. Mar. 29, 2019); see also

Schmigel v. Uchal, 800 F.3d 113, 124 (3d Cir. 2015) (“The condition of thirty days’

notice prior to seeing dismissal of an action for failure to comply with the [certificate

of merit] regime is substantive and must be applied in federal court.”).

Here, Defendants were required to provide Tisdale with the requisite notice

pursuant to Rule 1042.6(a) before seeking dismissal of any medical malpractice

claims Tisdale may be asserting. Nothing in the record before the Court, however,

indicates that Defendants did so before filing their motion to dismiss. Accordingly,

the Court will deny Defendants’ motion to dismiss as to Tisdale’s medical

malpractice claims.1

1 The Pennsylvania Rules of Civil Procedure provide that a court may extend the sixty (60)-day

period for filing a certificate of merit for successive periods of up to sixty (60) days each, with no

limit on the number of sixty (60)-day extensions that the Court might grant. See Pa. R. Civ. P.

1042.3(d) & note. While Tisdale has not filed a motion seeking such an extension of time, the

Court has not located any authority suggesting that a court is precluded from granting one sua

sponte. Cf. Liggon-Redding, 659 F.3d at 260 n.2 (declining to decide whether district court lacked

jurisdiction to grant an extension sua sponte and noting that “[i]n any event, under Pennsylvania

law, a plaintiff may file an untimely certificate of merit as long as []he does so before the defendant

files a praecipe for non pros”). Accordingly, the Court will grant Tisdale a thirty (30)-day

extension to file a certificate of merit that complies with Rule 1042.3(a) in support of his medical

malpractice claims. If Tisdale fails to do so, however, he is on notice that his medical malpractice

claims may be subject to dismissal. See Pa. R. Civ. P. 1042.6(b) (noting that a judgment of non

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B. Eighth Amendment Claims

Eighth Amendment claims have both objective and subjective components.

Wilson v. Seiter, 501 U.S. 294, 298 (1991). Serious hardship to the prisoner is

required to satisfy the Eighth Amendment’s objective component. Id. The

subjective component is met if the person or persons causing the deprivation acted

with “a sufficiently culpable state of mind.” Id.

The objective component of an Eighth Amendment medical care claim, i.e.,

whether a plaintiff’s medical needs were serious, has its roots in contemporary

standards of decency. See Hudson v. McMillian, 503 U.S. 1 (1992). A medical need

is serious if it is one that has been diagnosed by a physician as mandating treatment

or is one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention. Johnson v. Busby, 953 F.2d 349, 351 (8th Cir.

1991); Monmouth Cty. Corr. Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3d

Cir. 1987); West v. Keve, 571 F.2d 158, 162-63 n.6 (3d Cir. 1978). The serious

medical need element contemplates a condition of urgency, one that may produce

death, degeneration, or extreme pain. See Lanzaro, 834 F.2d at 347.

pros may be entered without notice if “the court has granted a motion to extend the time to file the

certificate and the plaintiff has failed to file it within the extended time”).

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The Eighth Amendment “requires prison officials to provide basic medical

treatment to those [individuals who are] incarcerated.” Rouse v. Plantier, 182 F.3d

192, 197 (3d Cir. 1999). To establish a claim under § 1983 based on the Eighth

Amendment, an inmate must allege acts or omissions by prison officials sufficiently

harmful to evidence deliberate indifference to a serious medical need. See Spruill v.

Gillis, 372 F.3d 218, 235 (3d Cir. 2004), Natale v. Camden Cty. Corr. Facility, 318

F.3d 575, 582 (3d Cir. 2003); Farmer, 511 U.S. at 837. Because only egregious acts

or omissions can violate this standard, mere medical malpractice cannot result in an

Eighth Amendment violation, nor can disagreements over a prison physician’s

medical judgment. White v. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990). Thus,

this standard “affords considerable latitude to prison medical authorities in the

diagnosis and treatment of the medical problems of inmate patients. Courts will

‘disavow any attempt to second guess the propriety or adequacy of a particular

course of treatment . . . which remains a question of sound professional judgment.’”

Little v. Lycoming Cty., 912 F. Supp. 809, 815 (M.D. Pa. 1996) (quoting Inmates of

Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)).

A complaint that a physician or a medical department “has been negligent in

diagnosing or treating a medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106

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(1976). For example, “[a] medical decision not to order an X-ray, or like measures,

does not represent cruel and unusual punishment. At most it is medical malpractice.”

Id. at 107. “[A]s long as a physician exercises professional judgment his behavior

will not violate a prisoner’s constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). In sum, negligence, unsuccessful

medical treatment, or medical malpractice do not give rise to a § 1983 cause of

action, and inmate’s disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

Defendants seek dismissal of Tisdale’s Eighth Amendment claims because he

“has failed to establish and/or plead any serious medical illness or injury.” (Doc.

No. 24 at 7.) They suggest that “there has been no indication of a physician that any

of [Tisdale’s] ailments required treatment, nor is there anything contained within the

pleadings beyond [Tisdale’s] own observations suggesting that the condition as so

obvious that a lay person would recognize the necessity for a physician’s attention.”

(Id.) Defendants maintain that “[i]n fact, Federal Courts and other Circuits have

indicated that minor abrasions even involving associated bleeding do not rise to the

level of an Eighth Amendment violation.” (Id. at 8.)

The Court is not persuaded by Defendants’ arguments. In fact, nowhere in

Tisdale’s complaint does he allege that he suffered from minor abrasions involving

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associated bleeding. Rather, Tisdale alleges that he began to lose feeling “in the

lower half of [his] body and extremities making it almost impossible to walk or even

shower.” (Doc. No. 1 at 13.) He maintains further that he experienced “constant

loss of balance and falling” as well as uncontrolled movements of his mouth and

tongue. (Id. at 14.) Tisdale alleges that Defendants failed to provide any treatment

and failed to monitor the level of Dilantin in his blood. (Id. at 13, 15.) Under the

Eighth Amendment, deliberate 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, [and] denial of reasonable requests

for treatment that results in suffering or risk of injury.” Wisniewski v. Frommer, No.

1:16-cv-1626, 2017 WL 9534006, at *4 (M.D. Pa. July 28, 2017) (citing Durmer,

991 F.2d at 68), Report and Recommendation adopted, 2017 WL 3770493 (M.D.

Pa. Aug. 31, 2017). In its June 25, 2019 Memorandum and Order screening

Tisdale’s complaint, the Court determined, under the same standard applicable to

motions to dismiss, that his Eighth Amendment claims against Defendants survived.

(Doc. No. 7 at 8.) Defendants’ arguments in support of dismissal do not persuade

the Court to reconsider this conclusion. Thus, the Court will deny Defendants’

motion to dismiss with respect to Tisdale’s Eighth Amendment claims as well.

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IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss (Doc. No. 23) will

be denied, and Defendants will be directed to file their answer to the complaint

within fourteen (14) days of the date of this Order. The Court will sua sponte grant

Tisdale a thirty (30)-day extension of time to file a certificate of merit in support of

any medical malpractice claims he may be raising. An appropriate Order follows.

s/Sylvia H. Rambo

Sylvia H. Rambo

United States District Judge

Dated: October 30, 2019

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