Kitchen v. Clinton County

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEBORA KITCHEN, individually and

as ADMINISTRATRIX OF THE ESTATE

OF SHAWN KITCHEN, : NO. 3:19-CV-1936

Plaintiff :

(JUDGE MARIANI)

V. :

CLINTON COUNTY, WELLPATH LLC

CORRECT CARE SOLUTIONS,

LLC; KARL PECHT; HOLLY BARRETT;

CHRISTAL MILLER; CYNTHIA MANN;

ASHELY BECHDEL; CATHY PERRY; :

[FIRST NAME UNKNOWN] POWELL;

[FIRST NAME UNKNOWN] MOORE; :

[FIRST NAME UNKNOWN] MUTHLER;

and [FIRST NAME UNKNOWN] :

WATSON,

Defendants. :

MEMORANDUM OPINION

I INTRODUCTION

Presently before the Court is the motion to dismiss filed by Defendants Clinton

County, Powell, Moore, Muthler, and Watson (collectively “County Defendants”). (Doc. 22).

The County Defendants seek dismissal of portions of the complaint filed by Plaintiff Debora

Kitchen, individually and as administratrix of the Estate of Shawn Kitchen (“plaintiff”). For the

reasons discussed below, the Court will deny the motion.

Il FACTUAL ALLEGATIONS

On November 21, 2017, Shawn Kitchen became incarcerated at the Clinton County

Correctional Facility pursuant to a detainer involving an alleged probation violation. (Doc. 1,

Compl. at J 26). He had “pre-trial detainee” status at the prison. (/d. at ] 27).

At intake and processing, Kitchen complained of severe back pain. The prison

prescribed nerve and pain medication, such as Tylenol and ibuprofen, as well as a steroid

taper to resolve what they diagnosed as muscular skeletal complaints. (/d. at 28).

The medicine did not resolve Kitchen’s pain, and the pain in fact increased. (/d. at □

30). The defendants immediately became aware that the medicine did not work. (/d. at

29). As early as November 24, 2017, Defendant Holly Barrett, LPN, reported that Kitchen

had so much pain that he was crying in his cell and could not stand on his own. (/d. at Jf 7,

31). Kitchen requested that he be taken to the emergency room, Barrett denied the request

without any examination, care or treatment. (Id. at J 32).

Over the next two weeks, Kitchen’s condition continued to worsen. He screamed

and cried from pain. (Id. at | 42-94). He also continued to seek emergency care as the

pain spread. (/d. at ] 45). He began to hit his head against the bars due to the pain. (/d. at

] 63). He shook and perspired profusely. (/d. at ] 72). The prison, however, did not change

his medical regimen or provide him emergency medical care. (/d. at ] 56). Plaintiff alleges

that a reasonable medical practitioner would have known that Kitchen did not suffer from

muscular skeletal pain, but actually showed signs and symptoms of an infection. (/d. at f

59).

Medical staff repeatedly denied Kitchen’s requests for emergency care. (Id. at ff] 45,

73, 74, 90). He eventually could not move or eat. (/d. at {J} 79, 93). He laid in his cell

immobile and urinated on himself. (/d. at ] 91). Corrections staff ridiculed him and placed

him in a restraint chair for hours as punishment for continuing to seek medical care. (/d. at

1] 65 66). They told him that he complained too much. (/d. at J 85).

On December 3, 2017, Defendants Bechdel and Barrett found Kitchen lying face

down in his cell, soaked in urine. (/d. at ] 95). They reported that he appeared to be

catatonic, but neither called for emergency medical assistance. (/d. at ] 96). Instead,

Bechdel and Barrett along with corrections staff placed him in a wheelchair to take him to

the shower where he lost consciousness and his pulse. (/d. at ] 97). Then for the first time,

prison medical staff called for emergency medical assistance. (/d. at ] 99). Staff members

reported to the emergency medical personnel that Kitchen had not had any recent injury or

illness, and had no complaints prior to his collapse. (/d. at ] 102).

Shortly after the emergency medical personnel arrived, Kitchen was pronounced

dead. (/d. at | 103). He died from a kidney infection caused by an easily treatable urinary

tract infection. (/d. at ] 104). He was forty (40) years old. (/d. at ] 105). By the time

Kitchen died, the Medical and Correctional Defendants had denied over two dozen requests

for medical assistance. (Id. at ] 100). The prison doctor had physically examined him only

once. No blood work or tests had been performed, and no antibiotics had been prescribed.

Based upon these allegations, which are provided with much greater detail in the

complaint, Kitchen’s Estate filed the instant lawsuit. The eight (8) count complaint asserts

the following causes of action: Count |, failure to adopt policy, or in the alternative, failure to

train or supervise, pursuant to 42 U.S.C. § 1983 against the Municipal Defendants'; Count

Il, denial and delay of access to adequate medical care pursuant to 42 U.S.C. § 1983

against the Medical Defendants2; Count I!l, denial and delay of access to adequate medical

care pursuant to 42 U.S.C. §1983 against the Correctional Defendants?; Count IV, failure to

intervene pursuant to 42 U.S.C. § 1983 against the Medical and Correctional Defendants;

Count V, medical negligence (wrongful death) against Defendants Pecht and Wellpath;

Count VI, medical negligence (survival) against Defendants Pecht and Wellpath; Count VII,

medical negligence (wrongful death) as to the LPN Defendants*; and Count VIII, medical

negligence (survival) as to the LPN Defendants and Wellpath.

Plaintiff lists the Municipal Defendants as Clinton County and Wellpath, LLC. (Doc. 1, Compl. at

2 The Medical Defendants are Karl Pecht, M.D.; Holly Barrett, LPN; Christal Miller, LPN; Cynthia Mann,

LPN; Ashely Bechdel, LPN; and Cathy Perry, LPN. (Doc. 1, Compl. at J 12).

3 The Correctional Defendants are Powell, Moore, Muthler, and Watson. (Doc. 1, Compl. at □ 19).

4 The LPN Defendants are Holly Barrett, LPN; Christal Miller, LPN; Cynthia Mann, LPN; Ashely Bechdel,

LPN; and Cathy Perry, LPN.

Defendants Clinton County, Powell, Moore, Muthler and Watson (collectively “the

County Defendants”) have filed a motion to dismiss the counts asserted against them,

specifically Count |, Count Ill and Count IV. The parties have briefed their respective

positions, bringing the case to its present posture.

Ill, STANDARD OF REVIEWS

The court must dismiss a complaint under Federal Rule Civil Procedure

12(b)(6), if it does not allege “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007). The plaintiff must aver “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement

to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations,

5 Defendants do not label their motion as a motion to dismiss under Rule 12(b)(6) but we

shall treat it as such. Apparently, defendants seek dismissal pursuant to the provisions of

28 U.S.C. § 1915A, which provides for screening of civil complaints which are filed by

prisoners. This complaint, however, is not filed by a prisoner or while the plaintiff's

decedent was imprisoned and the initial screening provisions of section 1915A are

inapplicable. See, e.g., Olivas v. Nev. Ex rel. Dept. of Corr., 856 F.3d 128 (9 Cir. 2017)

(Former prisoner who filed suit, after he was released from custody, for his treatment while

a prisoner was not a suit filed by a “prisoner” and subject to 1915A initial screening).

alterations, and quotations marks omitted). In other words, “[flactual allegations must be

enough to raise a right to relief above the speculative level.” Covington v. Int'l Ass'n of

Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and

quotation marks omitted). A court “take[s] as true all the factual allegations in the Complaint

and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal

conclusions and threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements.” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n.14

(3d Cir. 2013) (internal citation, alteration, and quotation marks omitted). Thus, “the

presumption of truth attaches only to those allegations for which there is sufficient ‘factual

matter’ to render them ‘plausible on [their] face.” Schuchardt v. President of the U.S., 839

F.3d 336, 347 (3d Cir. 2016) (alteration in original) (quoting /gbal, 556 U.S. at 679).

“Conclusory assertions of fact and legal conclusions are not entitled to the same

presumption.” /d.

“Although the plausibility standard ‘does not impose a probability requirement,’ it

does require a pleading to show ‘more than a sheer possibility that a defendant has acted

unlawfully.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal

citation omitted) (first quoting Twombly, 550 U.S. at 556; then quoting /gbal, 556 U.S. at

678). “The plausibility determination is ‘a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” /d. at 786-787 (quoting

Iqbal, 556 U.S. 679).

However, even “if a complaint is subject to Rule 12(b)(6) dismissal, a district court

must permit a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[E]ven when plaintiff does not seek leave to amend his complaint after a

defendant moves to dismiss it, unless the district court finds that amendment

would be inequitable or futile, the court must inform the plaintiff that he or she

has leave to amend the complaint within a set period of time.

Id.

IV. ANALYSIS

The issues raised in the County Defendants’ motion can be broken down into the

following four general areas: whether plaintiff has plausibly pleaded municipal liability

against the county; whether plaintiff properly alleges a denial and delay of access to

adequate medical care against the Correctional Defendants; whether plaintiff states a

plausible claim for failure to intervene against the Correctional Defendants and whether the

individual Correctional Defendants are shielded by qualified immunity. We will discuss each

issue in turn.

1. Municipal Liability

Count | of the plaintiffs complaint asserts a cause of action for failure to adopt policy

or, in the alternative, failure to train or supervise pursuant to 42 U.S.C. § 1983 brought

against the Municipal Defendants, that is Defendant Clinton County and Defendant Wellpath

LLC, f/k/a Correct Care Solutions, LLC. Plaintiff alleges that these defendants failed to

adopt a policy or procedure to address the immediate and/or emergency medical concerns

of inmates under their care and custody. (Doc. 1, Compl. at □ 115). The failure to adopt

such a policy caused Kitchen to “suffer from actual physical torture that culminated in his

slow, painful, and lingering death.” (/d. at J 116). In the alternative, plaintiff claims that the

Municipal Defendants failed to train and/or supervise the Medical and Correctional

Defendants in emergency medical concerns. (/d. at J] 121-122). Clinton County moves to

dismiss this count as to itself.

Plaintiff brings Count | pursuant to 42 U.S.C. § 1983 (“section 1983”). In pertinent

part, section 1983 provides as follows:

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

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

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity or other

proper proceeding for redress ....

42 U.S.C. § 1983.

Section 1983 does not, by its own terms, create substantive rights. Rather, it

provides only remedies for deprivations of rights established elsewhere in the Constitution

or federal laws. United States v. Kneipp, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a

claim under section 1983, two criteria must be met. First, the conduct complained of must

have been committed by a person acting under of color of state law. Second, the corduct

must deprive the complainant of rights secured under the Constitution or federal law.

Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998).

Here, plaintiff seeks redress for the violation of Kitchen’s right to adequate medical

care as a pretrial detainee, which is a right protected by the due process clause of the

Fourteenth Amendment to the United States Constitution. See Natale v. Camden Cnty.

Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003).

The Municipal Defendants, including Defendant Clinton County, however, cannot be

held liable for the constitutional violations of their employees based upon vicarious liability.

Monnell v. New York City Dept. of Soc. Svcs., 436 U.S. 658, 691 (1978). Rather, for liability

to attach to the Municipal Defendants, plaintiff must allege that the violation of Kitchen’s

constitutional rights was caused by a policy or custom used by the Municipal Defendants.

Id.

The Third Circuit Court of Appeals has explained that “policy or custom” can be

found in one of the following three situations: 1) where the appropriate officer has

promulgated a generally applicable statement of policy for the municipality; 2) where no

general rule has been announced, but the policymaker itself performs the act which violated

federal law; and 3) where no policy exists and the policymaker has refused to act, even

though the “need to take some action to control the agents of the government is so obvious,

and the inadequacy of existing practice so likely to result in the violation of constitutional

rights, that the policymaker can reasonably be said to have been deliberately indifferent to

the need.” Natale, 518 F.3d at 584 (internal quotation marks and citations omitted).

Here, plaintiff alleges the third type of municipal liability, the failure of the Municipal

Defendants to impose a policy. Specifically, plaintiff argues that the Municipal Defendants

violated Kitchen’s rights by failing to implement a policy with regard to emergency care at

the prison, a policy which was obviously needed. The County Defendants move to dismiss

this claim for several reasons. Generally, they argue that plaintiff cannot identify a Clinton

County policy or custom that violates federal law. Defendant is accurate in a sense,

because plaintiff has not alleged a policy or custom. Plaintiff does, however, allege that the

failure of the defendants to impose a policy regarding emergency care is sufficient to state a

cause of action pursuant to Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575 (3d Cir.

2003). After a careful review, we agree.

Natale dealt with a plaintiff who was a pre-trial detainee in a New Jersey prison. /d.

at 578. He was insulin dependent. /d. The prison did not timely provide him with insulin,

which he alleged caused him to suffer a stroke. /d. He sought to impose municipal liability

against the prison health services on the basis that they had failed to establish a policy

which addressed the immediate medication needs of inmates with serious medical

conditions. The Third Circuit, in ruling at the summary judgment stage, ruled in favor of the

plaintiff. The court explained: “A reasonable jury could conclude that the failure to establish

a policy to address the immediate medication needs of inmates with serious medical

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conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to

those inmates’ medical needs.” /d. at 585.

Plaintiff argues that likewise having a policy responsive to inmates’ emergent

medical needs is an obvious need in any corrections medical program. The Municipal

Defendants here did not have such a policy; therefore, they have sufficiently alleged a

“policy or practice” to impose municipal liability.

The County Defendants attempt to distinguish Natale. They point out, for example,

that the Third Circuit holding applied to the health services provider, not to the county. In

Natale, the district court had granted summary judgment for the county and the jail itself.

The plaintiff did not appeal the grant of summary judgment as to those entities. Thus,

liability with regard to the county and jail was not before the Third Circuit. No explanation

was provided as to why summary judgment was granted in their favor by the district court.

Id, at578n.2. There is no reason, therefore, to conclude that because the county was not

before the court in Natale that Clinton County should be dismissed from this case. The

analysis in Natale appears applicable to any municipal defendant and the court did not limit

its holding to prison health service providers. The Supreme Court has indicated that the fact

that a local government may contract with a private provider to provide medical care at a

prison does not “relieve [the local governmental entity] of its constitutional duty to provide

adequate medical treatment to those in its custody.” West v. Atkins, 487 U.S. 42, 56 (1988).

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Next, defendants attempt to distinguish Natale on the facts.

The policy in Natale dealt with a failure to address immediate medication needs of inmates

who were brought to the prison. Here, according to the County Defendants, plaintiff does

not raise issues about immediate medication needs, and therefore, Natale does not apply.

While defendants are correct that the policy at issue here is not exactly the same as the

policy at issue in Natale, they are not correct in arguing that dismissal of Count | is as a

result needed.

Where a municipal body fails to establish a policy which creates a risk that is

sufficiently obvious as to constitute deliberate indifference to an inmate’s medical needs, a

prisoner may have a civil rights action. Natale, 318 F.3d at 584. Here, it is obvious that

prisoners may have emergency medical needs — just as in Natale it was obvious that

prisoners may have immediate medical needs. A failure to have a policy related to such

emergent needs might be deemed deliberate indifference. Accordingly, Clinton County's

motion to dismiss Count | will be denied.®

6 Defendant Clinton County points out that it contracted with Defendant Wellpath to provide medical care

and treatment to inmates at the county correctional facility. (See Doc. 1, Comp. at 75). Clinton County

argues that plaintiff cannot utilize this contract to establish liability against the County based on the alleged

actions or inactions of Wellpath, for example, medical malpractice. It does not appear that the complaint

seeks to hold Clinton County liatle on the basis of the contract with Wellpath. Ratner, the complaint

asserts an independent constitutional violation against the county. Even if the plaintiff can be construed to

be relying on the contract, it would be inappropriate to dismiss as this point because the contract is not

before the court and discovery has not yet been completed. Without the contract it is not possible to fully

analyze the relationship between Clinton County and Wellpath. It may be more appropriate to address

these issues at the summary judgment stage if necessary. Likewise, the County Defendants challenge

plaintiff's alternative theories of liability, failure to train and supervise. For purposes of the procedural

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2. Denial or Delay of Access to Adequate Medical Care

Count III of plaintiffs complaint asserts a cause of action against the individual

Correctional Officers for denial and delay of access to adequate medical care pursuant to

42 U.S.C. § 1983. (Doc. 1, Compl. J at 127-28). Plaintiff alleges that the Correctional

Defendants had reason to believe, or actually knew, that the Medical Defendants were

mistreating or not treating Kitchen’s serious medical needs and exhibited deliberate

indifference to that mistreatment/nontreatment. (/d. at | 128).

The law provides that absent a reason to believe a prison’s medical staff are

mistreating, or not treating, a prisoner, a non-medical prison official is not exhibiting

deliberate indifference by failing to respond to a prisoner’s medical complaints. Farmer v.

Brennan, 11 U.S. 825, 837 (1994). Thus, non-medical prison officials may be held liable for

denial of adequate medical treatment of an inmate only where they have reason to believe,

or actual knowledge, that prison medical staff are mistreating, or not treating a prisoner.

Spurill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

The parties agree on the law. They disagree, however, as to whether plaintiff has

sufficiently pleaded deliberate indifference on the part of the Correctional Defendants. We

find that the plaintiff has.

posture of this case, these claims have been sufficiently pleaded. These issues may be revisited, however,

after the facts regarding the training and supervision are revealed through discovery.

13

According to the plaintiffs complaint, the Correctional Defendants for two weeks

witnessed Kitchen crying and screaming in pain, being unable to move, eat or drink, curling

up on his cell floor writhing in pain, urinating on himself, and engaging in self-harm in an

attempt to procure medical care. They ridiculed him during this time period. The

Correctional Defendants argue that during Kitchen’s incarceration, the Medical Defendants

were examining Kitchen, and therefore, they had no duty to see that Kitchen obtained

medical treatment. At this early stage of the case, before discovery has even taken place,

and when we must accept the complaint’s allegations as true, it is inappropriate to decide

what the facts actually were. Plaintiffs have sufficiently plead that the Correctional

Defendants were deliberately indifferent to Kitchen’s serious medical needs. The motion to

dismiss Count III will be denied.

3. Failure to Intervene

Count III of plaintiffs’ complaint asserts a cause against the Correctional Defendants

for denial and delay of access to adequate medical care pursuant to 42 U.S.C. § 1983.

(Doc. 1, Compl. ff at 127-28). The complaint alleges that the Correctional Defendants had

reason to believe or actually knew that the Medical Defendants were mistreating or not

treating Kitchen’s serious medical needs and inflicted “unnecessary and wanton pain upon

him by denying and/or delaying access to medical care in a way that patently offends the

evolving standards of decency for which he was constitutionally protected to enjoy...” (Id.

at J 128).

14

The law provides that to establish a constitutional claim for failure to intervene, a

plaintiff must demonstrate the following three elements: 1) an underlying constitutional

violation; 2) a duty to intervene and 3) a realistic and reasonable opportunity to intervene.

Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).

As explained in the previous section, plaintiff has sufficiently alleged that the

Correctional Defendants were reasonably aware the prison’s medical staff were denying

medical care to Kitchen, which is a constitutional violation. They failed to intervene where

they had a realistic and reasonable opportunity, over the course of two weeks, to do so.

Accordingly, the motion to dismiss Count IV will be denied.’

4. Qualified Immunity

The final issue raised by the Correctional Defendants involves the doctrine of

qualified immunity. They argue that qualified immunity shields them from liability in the

instant case. We disagree.

Qualified immunity can serve as a defense to an individual defendant accused of a

civil rights violation. See Hunter v. Bryant, 502 U.S. 224, 227 (1991). “A government

official sued under § 1983 is entitled to qualified immunity unless the official violated a

statutory or constitutional right that was clearly established at the time of the challenged

7 With regard to Counts III and IV, the parties’ briefs go into great detail regarding the factual allegations of

the complaint. The resolution of these factual matters is best left to a latter stage of the case, not the

motion to dismiss stage.

15

conduct.” Carroll v. Carman, 574 U.S. 13, 16 (2014). For a qualified immunity analysis,

therefore, the court must examine: 1) whether the officials violated a constitutional right and

2) whether that right was clearly established at the time. Wright v. City of Phila., 409 F.3d

595, 699-700 (3d Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

A legal right is “clearly established” where “its contours [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). “In other words, existing precedent must have placed

the statutory or constitutional question beyond debate. This doctrine gives government

officials breathing room to make reasonable but mistaken judgments and protects all but the

plainly incompetent or those who knowingly violate the law.” Carroll, 574 U.S. at 17.

Qualified immunity is inapplicable in the present case. The constitutional rights at

issue, which the Correctional Defendants are accused of violating, are denial/delay of access

to adequate medical care and failure to intervene. Existing precedent has placed the

existence of these constitutional rights beyond debate. See Spurill v. Gillis, 372 F.3d 218,

236 (3d Cir. 2004) (explaining when a non-medical prison official can be held liable for

deliberate indifference to a serious medical need); Smith v. Mensinger, 293 F.3d 641, 650-51

(3d Cir. 2002) (applying failure to intervene analysis to prison officials who failed to stop an

Eighth Amendment violation in prison). Accordingly, qualified immunity does not apply to

the individual Correctional Defendants.

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v. CONCLUSION

For the reasons set forth above, we find no merit to the County Defendants’ motion

to dismiss Counts |, Ill or lV of plaintiffs complaint. Additionally, we find that it is

inappropriate at this time to conclude that qualified immunity shields the individual

Correctional Defendants from liability. The County Defendants’ motion to dismiss will thus

be denied. An appropriate order follows.

[=

PAX

Robert Mariani

United States District Judge

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