Loughney v. Correctional Care, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LISA LOUGHNEY, ) CIVIL ACTION NO. 3:19-CV-1101

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

CORRECTIONAL CARE, INC., et al., )

Defendants )

MEMORANDUM OPINION

I. INTRODUCTION

Ryan Lynady committed suicide after four days spent in custody in

Lackawanna County Prison. His mother Lisa Loughney, as the administrator of his

estate, sued the county, prison staff, a private corporation under contract to provide

medical services the prison, and the medical staff employed by that corporation to

provide medical care at the prison.

The county and prison officials have settled. Seven Defendants remain:

Correctional Care Inc., one of its doctors, and five of its nurses, (collectively the

“Medical Defendants”). The Medical Defendants have filed a Motion to Dismiss

(Doc. 44) challenging the sufficiency of the Amended Complaint (Doc. 35). Because

the Amended Complaint meets minimum standards the motion to dismiss will be

denied.

The Medical Defendants have also filed a Motion requesting leave to file a

cross claim against the County and Prison Officials (who are no longer parties to this

case). (Doc. 71). For procedural reasons this Motion will be deemed withdrawn.

II. BACKGROUND & PROCEDURAL HISTORY

On or around July 22, 2018, Ryan Lynady (“Lynady”) was arrested on state

criminal charges. (Doc. 35, ¶ 44).1 Lynady was confined in Lackawanna County

Prison pending trial on those charges. Id. During intake, prison staff noted that

Lynady was an alcohol addict, suffered from mental illness, was actively under the

influence of drugs or alcohol, and was found in possession of a needle. Id. at ¶¶ 45-

46.

Nurse Beth Matalonis (“Defendant Matalonis”) performed the medical

portion of Lynady’s intake screening. Id. at ¶ 47. As part this screening, Defendant

Matalonis noted that Lynady was prescribed suboxone, was a habitual suboxone

user, experienced withdrawal when suboxone is stopped, and suffered from an

unspecified “mental illness.” Id. at ¶¶ 45, 48.

Following the intake screening, Lynady was placed on “thirty-minute detox

watch,” until further notice. Id. at ¶ 51. The prison medical staff did not issue Lynady

1 In the Amended Complaint Plaintiff alleges that Lynady was arrested in June 2018

and committed suicide in June 2018 while at Lackawanna County Prison. However,

Plaintiff also alleges that the prison staff failed to check Lynady at regular intervals

in July 2018—after Lynady’s death. I infer that these events transpired either in June

or July, but not both. In their Brief in Opposition, Defendants use the July dates.

a new prescription for suboxone to be used in the prison. Id. at ¶ 49. Despite his

placement on a “thirty-minute detox watch,” correctional officers failed to check

Lynady at the appropriate intervals. Id. at ¶¶ 52-58.

In addition to the lack of regular check-ins by the correctional officers,

Plaintiff also alleges that Lynady was not provided with appropriate mental health

or detox care while at Lackawanna County Prison.

During the period of incarceration at issue, Lynady was examined by Nurses

Holly Bogaski, Beth Matalonis, Cassandra Ketten, Akasha Mrykalo, and Jessica

Wombacker. Id. at 69. Defendants Bogaski, Matalonis, Ketten, Mrykalo, and

Wombacker did not refer Lynady to a doctor, did not give Lynady a bottom bunk,

did not place Lynady in the special needs unit, and failed to perform “adequate”

medical detox checks (required once per shift, for a total of 3 checks per day) nine

times over a period of four days. Id. at 71-73. Plaintiff alleges that, during the

medical detox checks that were done, Defendants Bogaski, Matalonis, Ketten,

Mrykalo, and Wombacker observed Lynady in extreme distress and took no action.

Id. at ¶ 75.

On July 27, 2018, Lynady was found hanging in his cell from a sheet. Id. at ¶

61. At the time he was found, it had been fifty-one minutes since the last staff check-

in. Id.

On June 26, 2019, Plaintiff initiated this case alleging claims arising out of

Lynady’s death. (Doc. 1). On July 26, 2020, Plaintiff filed an Amended Complaint

against the following seventeen Defendants:

(1) Lackawanna County;

(2) Correctional Care, Inc.;

(3) Patrick O’Malley, Lackawanna County Commissioner;

(4) Laureen Cummings, Lackawanna County Commissioner;

(5) Jerry Notarianni, Lackawanna County Commissioner;

(6) Edward Zaloga, president of Defendant CCI;

(7) Tim Betti, Warden of Lackawanna County Prison;

(8) Satish Malik, a psychiatrist responsible for providing care at

Lackawanna County Prison;

(9) John Gilroy, corrections officer at Lackawanna County Prison;

(10) Christopher Jenkins, corrections officer at Lackawanna County Prison;

(11) Delon Aldubayan, corrections officer at Lackawanna County Prison;

(12) Mike Zemantauski, corrections officer at Lackawanna County Prison;

(13) Holly Bogaski, nurse employed by Defendant CCI to provide care at

Lackawanna County Prison;

(14) Cassandra Ketten, nurse employed by Defendant CCI to provide care

at Lackawanna County Prison;

(15) Beth Matalonis, nurse employed by Defendant CCI to provide care at

Lackawanna County Prison;

(16) Akasha Mrykalo, nurse employed by Defendant CCI to provide care at

Lackawanna County Prison; and

(17) Jessica Wombacker, nurse employed by Defendant CCI to provide care

at Lackawanna County Prison.

(Doc. 35).

In November 2020, the claims asserted by Plaintiff against the ten non-

medical Defendants were settled out of Court. (Doc. 69). The remaining claims

against the Medical Defendants are:

Count 1: Monell claim against Defendants CCI and Zaloga;

Count 2: § 1983 denial of adequate medical care/failure to prevent suicide

claim against Defendants Zaloga, Bogaski, Matalonis, Ketten,

Mrykalo, and Wombacker;

Count 4: State Law Medical Negligence against Defendant Zaloga; and,

Count 5: State Law Corporate Negligence & Vicarious Liability against

Defendants CCI and Zaloga.

Presently pending before the Court is a Motion to Dismiss filed by Defendants

CCI, Zaloga, Bogaski, Matalonis, Ketten, Mrykalo, and Wombacker (collectively

the “Medical Defendants”). (Doc. 44). This Motion is ripe for resolution. (Docs. 52,

67, 68).

On January 12, 2021, the Medical Defendants filed a Motion requesting leave

to file cross-claims. (Doc. 71, pp. 2-6). Along with that Motion, the Medical

Defendants filed a proposed order (Doc. 71, p. 1), their proposed crossclaims (Doc.

71-1), and a certificate of non-concurrence (Doc. 71-2). This Motion is also ripe for

resolution.

III. LEGAL STANDARD

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). When reviewing a motion to dismiss, the

court “must accept all factual allegations in the complaint as true, construe the

complaint in the light most favorable to the plaintiff, and ultimately determine

whether Plaintiff may be entitled to relief under any reasonable reading of the

complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In review of a

motion to dismiss, a court must “consider only the complaint, exhibits attached to

the complaint, matters of public record, as well as undisputedly authentic documents

if the [plaintiff’s] claims are based upon these documents.” Id. at 230.

In deciding whether a complaint fails to state a claim upon which relief can

be granted, the court is required to accept as true all factual allegations in the

complaint as well as all reasonable inferences that can be drawn from the complaint.

Jordan v. Fox Rothchild, O’Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir.

1994). These allegations and inferences are to be construed in the light most

favorable to the plaintiff. Id. The court, however, “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). Further, it is not proper to

“assume that the [plaintiff] can prove facts that [he] has not alleged.” Associated

Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519,

526 (1983).

“A pleading that offers labels and conclusions or a formulaic recitation of the

elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Rather, a complaint must recite factual allegations sufficient to raise the

plaintiff’s claimed right to relief beyond the level of mere speculation. Id. To

determine the sufficiency of a complaint under the pleading regime established by

the Supreme Court, the court must engage in a three-step analysis:

First, the court must take note of the elements a plaintiff must plead to

state a claim. Second, the court should identify allegations that, because

they are no more than conclusions, are not entitled to the assumption of

truth. Finally, where they 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. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556

U.S. at 675, 679). “In other words, a complaint must do more than allege the

plaintiff’s entitlement to relief” and instead must “‘show’ such an entitlement with

its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

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.’” Id.

(citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

IV. ANALYSIS

A. WHETHER PLAINTIFF’S MONELL CLAIM SHOULD BE DISMISSED

In Count One of her Amended Complaint, Plaintiff alleges:

Count One

42 U.S.C. § 1983

Monell Liability

Plaintiffs v. Defendants County, CCI, O’Malley, Notarianni, Cummings,

Zaloga, and Betti

. . . .

135. Defendants County, CCI, O’Malley, Cummings, Natarianni,

Zaloga, and Betti, developed implemented, approved, and/or

maintained a number of deficient customs, policies, and/or

practices with deliberate indifference, which proximately caused

the deprivation of Decedent’s rights to be free from cruel and

unusual punishment, right to due process, right to bodily

integrity, right to protection, and right to medical treatment under

the 4th, 8th, and 14th Amendment to the United States

Constitution.

136. These policies and practices include failure to train, failure to

staff, lack of policy, and defective policy, as detailed at length

above.

137. Plaintiff’s Monell claim is specifically premised on the failure to

train and staff nurses and corrections officers and the defective

policies and practices specifically noted in this complaint.

138. Defendants County, CCI, O’Malley, Cummings, Notarianni,

Zaloga, and Betti, were final policymakers regarding medical

care at the Prison.

139. These policies and/or customs evidence a reckless or callous

indifference to the federally protected rights of Decedent.

(Doc. 35, ¶¶ 135-138).

In the Amended Complaint, Plaintiff alleges that Defendant CCI is a

corporation under contract to provide medical services to the inmates at Lackawanna

County Prison. (Doc. 35, ¶ 10). A private corporation contracted by a prison to

provide healthcare for inmates cannot be held liable under 42 U.S.C. § 1983 on

a respondeat superior theory. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,

583 (3d Cir. 2003). Rather, pursuant to Monell and Natale, a private corporation like

contracted by a prison to provide healthcare can only be held liable for constitutional

violations if it has a custom or policy exhibiting deliberate indifference to a

prisoner’s serious medical needs. See Monell v. New York City Dept. of Social

Servs., 436 U.S. 658 (1978) (subjecting municipalities to liability for policies or

customs that cause constitutional deprivations); Natale, 318 F.3d at

584 (applying Monell to a private company providing medical services to

inmates). To prevail on a § 1983 claim against Defendant CCI, Plaintiff must allege

facts in the Amended Complaint that show “there was a relevant [CCI] policy or

custom, and that the policy caused the constitutional violation” for which he seeks

relief. See Natale, 318 F.3d at 583-84.

The Medical Defendants do not discuss Plaintiff’s Monell claim in their

Motion to Dismiss. However, they argue that the conduct of Defendant CCI’s

employees did not violate the constitution. I infer that, the Medical Defendants take

the position that, the Monell claim should also be dismissed because Defendant

CCI’s employees did not violate the constitution. As explained in Section IV.B(1)

& (2) of this Opinion, I find that Plaintiff has alleged enough facts to state a plausible

claim. Therefore, Plaintiff’s Monell claim should also be permitted to proceed.

B. WHETHER PLAINTIFF’S § 1983 CLAIMS FOR DENIAL OF ADEQUATE

MEDICAL CARE SHOULD BE DISMISSED

In Count Two of her Amended Complaint, Plaintiff alleges:

Count Two

42 U.S.C § 1983

Plaintiff v. Defendants Mallik, Zaloga, Bogaski, Matalonis, Ketten, Mrykalo,

and Wombacker

Failure to Provide Medical Care

. . . .

141. The conduct and failure to act of Defendants Mallik, Zaloga,

Bogaski, Matalonis, Ketten, Mrykalo, and Wombacker against

Decedent were undertaken under color of state law with

deliberate indifference and caused the violation of Decedent’s

rights to be free from cruel and unusual punishment, right to due

process, and right to medical treatment under the 4th, 8th, and

14th Amendment to the United States Constitution.

142. Defendants’ acted in concert and in conspiracy with one another

with knowledge, intent, and malice.

143. Moreover, the conduct engaged in by the Defendants exceeded

normal standards of decent conduct and were willful, malicious

and outrageous and therefore punitive damages are necessary and

appropriate.

144. The actions of Defendants were not objectively reasonable under

the present set of facts and circumstances previously articulated

herein.

145. As a result of Defendants’ violations of Decedent’s

Constitutional rights, Decedent suffered damages including, but

not limited to, that he was killed and suffered all damages

associated with such an unnatural and premature death.

(Doc. 35, ¶¶ 141-145).

At the outset, I note that Plaintiff as pleaded her claim under the Fourth,

Eighth, and Fourteenth Amendments. In the Amended Complaint she alleges that

Lynady was a pretrial detainee at the time of his suicide. (Doc. 35, ¶ 44) (alleging

that Lynady entered the Prison on new criminal charges and was “subject to pretrial

detention.”). Therefore, for the purposes of this Motion to Dismiss, I will analyze

Plaintiff’s claims under the Fourteenth Amendment.

In addition, despite its title, it isn’t clear to me whether Plaintiff is alleging

that Lynady was denied adequate medical and mental health care while at

Lackawanna County Prison, or whether she is alleging a claim that Defendants

Zaloga, Matalonis, Bogaski, Ketten, Mrykalo, and Wombacker failed to prevent

Lynady’s suicide.

“The Third Circuit has set out several distinct constitutional claims that may

be raised when a pretrial detainee commits suicide, including failure to prevent

suicide and deliberate indifference to a serious medical need.” Estate of Semprevivo

v. Atlantic County, No. 18-CV-1953, 2020 WL 7022947 at *5 (E.D. Pa. Nov. 30,

2020) (citing Palakovic v. Wetzel, 854 F.3d 209, 224-27 (3d Cir. 2017)). In either

case, Plaintiff would need to allege facts showing that the Medical Defendants were

deliberately indifferent—something the Medical Defendants argue Plaintiff has not

done.

To plead a claim for the denial of adequate medical care under the Fourteenth

Amendment, Plaintiff needs to allege: (1) deliberate indifference on the part of the

prison medical staff; and (2) a serious medical need. Monmouth County

Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987);

Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 581 (3d Cir. 2003)

(“[T]he Fourteenth Amendment affords pretrial detainees protections at least as great

as the Eighth Amendment protections available to a convicted prisoner.”). In their

Motion, the Medical Defendants do not address whether Plaintiff pleaded that

Lynady had a serious medical need. Instead, they generally argue that the facts

alleged in the Amended Complaint are not enough to show deliberate indifference,

and instead show only negligence.

The elements of a Fourteenth Amendment Due Process claim seeking to hold

prison medical staff liable for failure to prevent a detainee’s suicide are:

(1) that the individual had a particular vulnerability to suicide, meaning

that there was a “strong likelihood, rather than a mere possibility,” that

suicide would be attempted; (2) that the [medical staff] knew or should

have known of the individual’s particular vulnerability; and (3) that the

[medical staff] acted with reckless or deliberate indifference, meaning

something beyond mere negligence, to the particular vulnerability.

Palakovic v. Wetzel, 854 F.3d 209, 223-24 (3d Cir. 2017). For the purposes of their

Motion, the Medical Defendants do not address whether Plaintiff has pleaded

enough facts to show that Lynady had a particular vulnerability to suicide and that

the Medical Defendants knew or should have known of that vulnerability. Instead,

they generally argue that the facts alleged in the Amended Complaint are not enough

to show deliberate indifference, and instead show only negligence.

In support of their Motion that Count Two of the Amended Complaint should

be dismissed, the Medical Defendants argue:

The instructive law in this issue comes from the United States Supreme

Court decision in Estelle v. Gamble, 429 U.S. 97 (1976). In that case, a

pro se prison plaintiff alleged deprivation of medical care by the prison

because he claimed the prison ignored his heart and back problems. Id.

at 97.

Deprivation of medical needs rising to the level of 8th Amendment

violations is a high standard. The 8th Amendment prohibits “cruel and

unusual punishment.” The Amendment has been said to embody “broad

and idealistic concepts of dignity, civilized standards, humanity, and

decency.” Jackson v. Bishop, 404 F.2d 571 (1968). Treatment that

involves the “unnecessary and wanton infliction of pain” is a violation

of the Amendment. Gregg v. Georgia, 428 U.S. 153 (1976).

In Estelle, the Court determined that only deliberate indifference to

serious medical needs will constitute the “unnecessary and wanton

infliction of pain.” Estelle, 429 U.S. at 104. Mere negligence is not

enough. “In the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute ‘an unnecessary and

wanton infliction of pain’ or to be ‘repugnant to the conscience of

mankind.’” Id. at 105-106.

The Estelle Court noted that the Plaintiff “was seen by medical

personnel on 17 occasions spanning a 3 month period,” and questions

over “additional diagnostic techniques or forms of treatment is

indicated is a classic example of a matter for medical judgment . . . and

does not represent cruel and unusual punishment.” Id. at 107.

In the case at hand, as in Estelle, the criticisms of Medical Defendants’

care are not “repugnant to the conscience of mankind.” Id. at 106.

Plaintiff does not allege that Decedent was not seen at all by medical

personnel, only that Decedent “was never seen by a medical doctor,

nurse practitioner, physician’s assistant, or any similar professional.”

(Doc. 35 at ¶78). Such an allegations, disagreements with the level of

qualifications of the personnel caring for Decedent, involve such

“matter[s] for medical judgment,” not deliberate indifference. Estelle,

429 U.S. at 107.

Likewise, claims of “insufficient medication,” medical, and psychiatric

care, (Doc. 35 at ¶¶ 63, 77, and 83), are further disagreements in clinical

determinations made by Medical Defendants. While Plaintiff may feel

that Medical Defendants could or should have done more, such

determinations are not of the type rising to the level of “an unnecessary

and wanton infliction of pain,” as defined by the Estelle Court. Estelle,

429 U.S. at 104.

(Doc. 52, pp. 9-11).

In response, Plaintiff argues:

Deliberate indifference requires an official “to both ‘be aware of facts

from which the inference could be drawn that a substantial risk of

serious harm exists’ and to ‘also draw that inference.’” Id. (quoting

Farmer v. Brennan, 511 U.S. 825, 835-37 (1994). Deliberate

indifference can exist in numerous scenarios including: (1) denial of

reasonable treatment requests; (2) failed to provide care despite

knowledge of the need for that care; (3) delay of treatment for non-

medical reasons; and (4) preventing an inmate from obtaining

recommended treatment. Id. (citing Lanzaro, 834 F.2d at 347).

Deliberate indifference exists where an inmate is validly prescribed

medication by a doctor outside of prison and prison medical officials

cease that medication. Wolfe v. Horn, 130 F.Supp.2d 648, 652 (E.D. Pa.

2001) citing (Phillips v. Michigan Dep’t of Corrections, 731 F.Supp.

792 (W.D. Mich. 1990), aff’d, 932 F.2d 969 (6th Cir. 1991)). Stopping

medication is “measurably worse” than not providing treatment at all.

Id. (citing Phillips, 731 F.Supp. at 800).

Here, there are numerous bases for liability. There was a complete

abandonment of psychiatric care. Dr. Zaloga ceased the suboxone

which was validly prescribed outside of the prison, causing Decedent

to enter withdrawal. This alone, like in Wolfe is sufficient to show

deliberate indifference. The Complaint alleges that the nurses

witnessed Decedent in distress, knew he needed treatment, and ignored

him. This is all more than enough to establish deliberate indifference,

and Defendants’ motion should be denied.

(Doc. 67, pp. 9-10).

1. Claim Against the Defendant Nurses

In her Amended Complaint, Plaintiff alleges that Lynady was screened at the

time of intake by Defendant Matalonis. Defendant Matalonis “noted” presumably

on Lynady’s medical chart that Lynady: (1) had a history of “mental illness” (the

Amended Complaint does not specify the nature of extent of this history); (2) was a

habitual drug and alcohol user; (3) was actively under the influence of drugs; and

(4) had a current prescription for suboxone. (Doc. 35 ¶ 45). Between July 22, 2018

and July 27, 2018, Lynady was not treated with suboxone. Id. at ¶ 49. At some point

before his suicide on July 27, 2018, Lynady was “exhibiting violent signs of

withdrawal and suicidal symptoms.” Id. at ¶ 59.

CCI has a short (65 word) standing order regarding detox treatment. Id. at

¶¶ 65-67. That standing order requires that the inmate be referred to a physician, be

given a bottom bunk, and be given the “requisite medication.” Id. at ¶¶ 70-71.

Lynady was not referred to or examined by a physician or psychiatrist between July

22, 2018 and July 27, 2018. Id. Lynady was not given a bottom bunk. Id. The

Amended Complaint does not specify what, if any, medication was administered.

Defendants Matalonis, Bogaski, Ketten, Mrykalo, and Wombacker

(collectively the “Defendant Nurses”) were “collectively” responsible for

conducting one medical detox check per shift (3 checks per day). Id. at ¶ 72. The

Defendant Nurses did not perform “appropriate” checks on nine out of thirteen

checks during the period between July 22, 2018 and July 27, 2018. Id. at ¶ 72. They

also missed two checks. Id. at ¶ 74.

The Supreme Court has explained that the term “deliberate indifference” lies

“somewhere between the poles of negligence at one end and purpose or knowledge

at the other.” Farmer, 511 U.S. at 837. It explained that:

a prison official cannot be found liable under the Eighth Amendment

for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or

safety; that is, the official must both be aware of the facts from which

the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.

Id.

The demarcation of where negligence ends, and deliberate indifference

begins, is a subtle one. Not all failures to provide care demonstrate the state of mind

required for deliberate indifference. For example, there is no constitutional violation

when prison medical staff, through the exercise of professional judgment,

negligently misdiagnoses or treats a condition. Estelle v. Gamble, 429 U.S. 97, 106

(1976). Similarly, mere disagreement between prison medical staff and an inmate

about the propriety, adequacy, or necessity of a particular course of treatment over

another often does not rise to the level of a constitutional violation. Monmouth, 834

F.2d at 346 (citing Bowering v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) and Massey

v. Hutto, 545 F.2d 45, 26 (8th Cir. 1976)). The distinction between negligence and

deliberate indifference is that, for deliberate indifference, a defendant acts with

reckless disregard to a known harm. Crawford v. Corizon Health, Inc., No. 1:17-

CV-00113-BR, 2018 WL 9965506 at *3 (W.D. Pa. Jan. 2, 2018).

As noted in Shultz v. Allegheny Cty.:

Our Court of Appeals has identified several other scenarios that satisfy

Estelle, such as “[w]here prison authorities deny reasonable requests

for medical treatment . . . and such denial exposes the inmate to undue

suffering or the threat of tangible residual injury,” Monmouth, 834 F.2d

at 346 (internal quotation omitted), or “where ‘knowledge of the need

for medical care [is accompanied by the] . . . intentional refusal to

provide that care,’” Thomas v. Dragovich, 142 F. App’x 33, 36-37 (3d

Cir. 2005) (quoting Monmouth, 834 F.2d at 346). Similarly, if

“deliberate indifference caused an easier and less efficacious treatment”

to be provided, a defendant will have violated the plaintiff’s Eighth

Amendment rights by failing to provide adequate medical care. West v.

Keve, 571 F.2d 158, 162 (3d Cir. 1978) (citing and quoting Williams v.

Vincent, 508 F.2d 541, 544 (2d Cir. 1974)); see also Estelle, 429 U.S.

at 104.

835 F.Supp.2d 14, 22 (W.D. Pa. 2011).

Plaintiff alleges that her allegations, taken as true, rise to the level of deliberate

indifference because the Defendant Nurses observed Lynady experiencing violent

detox symptoms and ignored them. When all facts alleged are considered as true and

all reasonable inferences are drawn, there is enough in the Amended Complaint to

state a plausible Fourteenth Amendment claim against the Defendant Nurses.

2. Defendant Zaloga

In her Amended Complaint, Plaintiff alleges:

78. Decedent was never seen by a medical doctor, nurse practitioner,

physician’s assistant, or any similar professional. Defendant

Zaloga is the only doctor to provide medical treatment in the

Prison and is responsible for the entire CCI Medical staff. This

is a violation of the standard of care.

. . . .

81. Likewise, Decedent became Dr. Zaloga’s patient upon intake on

July 22, 2018, and Defendant Zaloga never provided care to him.

This abandonment of care is a breach of the standard of care.

82. It is incumbent that inmates who are in detox receive mental

health treatment; failure to do so violates the standard of care.

83. Despite the fact that Defendants CCI, Zaloga, and Mallik knew

Decedent was in detox, they provided no mental health treatment

and insufficient detox treatment to him.

(Doc. 35, ¶¶ 78, 81-83).

Liability in a § 1983 action is personal in nature, and to be liable, a defendant

must have been personally involved in the wrongful conduct. In other words,

defendants are “liable only for their own unconstitutional conduct.” Barkes v. First

Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds sub nom.

Taylor v. Barkes, 135 S.Ct. 2042 (2015). Respondeat superior cannot form the basis

of liability. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). “Personal

involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). As this Court has explained:

This personal involvement can be shown where a defendant personally

directs the wrongs, or has actual knowledge of the wrongs and

acquiesces in them. Id.; A.M. ex rel. J.M.K. v. Luzerne County Juvenile

Detention Center, 372 F.3d 572, 586 (3d Cir.2004) (noting that “a

supervisor may be personally liable under § 1983 if he or she

participated in violating the plaintiff's rights, directed others to violate

them, or, as the person in charge, had knowledge of and acquiesced in

his subordinates’ violations”). Actual knowledge “can be inferred from

circumstances other than actual sight.” Baker v. Monroe Twp., 50 F.3d

1186, 1194 (3d Cir.1995). Acquiescence is found “[w]here a

supervisor with authority over a subordinate knows that the subordinate

is violating someone’s rights but fails to act to stop the subordinate from

doing so, the factfinder may usually infer that the supervisor

‘acquiesced’ in (i.e., tacitly assented to or accepted) the subordinate's

conduct.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d

Cir.1997).

Festa v. Jordan, 803, F. Supp. 2d 319, 325 (M.D. Pa. 2001) (Caputo, J.) (internal

footnote omitted).

In her Brief, Plaintiff argues that “Dr. Zaloga ceased the suboxone which was

validly prescribed outside of the prison, causing Decedent to enter withdrawal.” The

Amended Complaint, however, does not contain any allegation that Defendant

Zaloga stopped Lynady’s suboxone. It does, however, include allegations that

Defendant Zaloga supervised Defendants Matalonis, Bogaski, Ketten, Mrykalo, and

Wombacker, had some knowledge of the allegedly inadequate care provided by

Defendants Matalonis, Bogaski, Ketten, Mrykalo, and Wombacker, and did nothing

to prevent the inadequate care. Although a close case, I find that the denial of

adequate medical care claim against Defendant Zaloga should be permitted to

proceed.

C. WHETHER PLAINTIFF’S MEDICAL NEGLIGENCE CLAIM SHOULD BE

DISMISSED

In Count Four of her Amended Complaint, Plaintiff alleges:

Count Four

Medical Negligence

Plaintiff v. Defendant Mallik and Defendant Zaloga

. . . .

153. The above mentioned injuries to Decedent were caused by the gross

negligence, negligence, carelessness and recklessness of Defendant

Mallik and Defendant Zaloga, acting individually and/or through their

agents, servants, and employees acting in the course and scope of their

employment, authority or apparent authority.

154. The gross negligence, negligence, recklessness and carelessness of

Defendants is described at length above.

155. As a direct result of the gross negligence, negligence, recklessness and

carelessness of the above Defendants, Plaintiff suffered physical and

psychological injuries and pain and suffering associated with his

physical and mental condition.

(Doc. 35, ¶¶ 153-155). In their Brief, the Medical Defendants do not address whether

Plaintiff has pleaded a plausible medical negligence claim in her Amended

Complaint. The only basis for dismissal argued is that Defendant Zaloga (a

physician) is immune from civil liability under Pennsylvania’s Mental Health

Procedures Act (the “MHPA”), 50 P.S. § 7101 et seq. (Doc. 52, pp. 6-9).

The MHPA “. . . establishes rights and procedures for all involuntary

treatment of mentally ill persons, whether inpatient or outpatient, and for all

voluntary inpatient treatment of mentally ill persons.” 50 P.S. § 7103. Under the

MHPA “inpatient treatment” is defined as “[a]ll treatment that requires full or part-

time residence in a facility.” 50 P.S. § 7203.1. A “facility” is “[a] mental health

establishment, hospital, clinic, institution, center, day care center, base service unit,

community mental health center, or part thereof, that provides for the diagnosis,

treatment, care or rehabilitation of mentally ill persons, whether as outpatients or

inpatients.” Id. Under the MHPA, a person “charged with crime, or who is

undergoing sentence, is or becomes severely mentally disabled, proceeding may be

instituted for examination and treatment under the civil provisions of this act in the

same manner as if he were not so charged or sentenced.” 50 P.S. § 7401.

As noted by the Medical Defendants, the MHPA also confers immunity from

civil liability on certain actors in certain situations. It provides, in relevant part:

In the absence of willful misconduct or gross negligence, a county

administrator, a director of a facility, a physician, a peace officer or any

other authorized person who participates in a decision that a person be

examined or treated under this act, or that a person be discharged, or

placed under partial hospitalization, outpatient are or leave of absence,

or that the restraint upon such person be otherwise reduced, or a count

administrator or other authorized person who denies an application for

voluntary treatment or for involuntary emergency examination and

treatment, shall not be civilly or criminally liable for such decision or

any of its consequences.

50 P.S. § 7114(a).

The Medical Defendants argue that Defendant Zaloga is immune under 50

P.S. § 7114(a). Specifically, they argue:

In the case at bar, Medical Defendants, as professional individuals

providing care to inmates at Lackawanna County Prison, are

unquestionably “medical providers” as defined under the MHPA, and

as such qualify for the immunity provisions under the law, excepting

evidence of conduct constituting “gross negligence” or “willful

misconduct.” 50 P.S. § 7103. Further, Plaintiff failed to allege a scintilla

of evidence that Medical Defendants’ conduct in this meets the

exceedingly high bar to evade the immunity provisions of the MHPA.

The glaring alleviations in the nature of the allegations in Plaintiff’s

Amended Complaint, when compared to the original Complaint,

demonstrate the failure of those allegations to rise to the level of “gross

negligence” or “willful misconduct.” At most, the allegations merely

amount to simple negligence, disagreements in the clinical judgments

of Medical Defendants in how they rendered their care of the Decedent.

Plaintiff’s own Amended Complaint uses simple negligence terms in

alleging the acts of Medical Defendants were “a violation of the

standard of care.” (Doc. 35 ¶78). Further, Plaintiff backs away from her

claims of complete deprivations, in favor of alleging “insufficiencies”

in medication, medical, and psychiatric care. (See Id. at ¶¶ 63, 68, and

77). Insufficiencies are neither gross negligence nor willful misconduct,

and thus, Plaintiff’s claims are barred under the MHPA.

(Doc. 52, pp. 8-9).

Based on the allegations in the Amended Complaint, the MHPA is not

applicable to this case. Under 50 P.S. § 7114(a), a physician, like Defendant Zaloga,

who participates in a decision that a person be examined or treated under the MHPA

is immune from civil liability absent gross negligence or willful misconduct. At the

motion to dismiss stage, the Court is limited to considering the allegations in the

pleading. Here, nothing in the Amended Complaint suggests that Defendant Zaloga

participated in any decision that Lynady be treated under the MHPA in the four full

days he spent at Lackawanna County Prison between July 22, 2018 and July 27,

2018. See e.g., Herman v. County of York, 482 F.Supp.2d 554, 576-68 (M.D. Pa.

2007); Carlos v. York County, No. 3:15-CV-1994, 2016 WL 5024232 at *5 (M.D.

Pa. Aug. 19, 2016); Scherer v. Pennsylvania DOC, No. 3:04-CV-191, 2007 WL

4111412 at *48-49 (W.D. Pa. Nov. 16, 2007); Murzynski v. Erie County, No. 1:15-

CV-195, 2016 WL 5872430 at *6 (W.D. Pa. Oct. 7. 2016).

Accordingly, Plaintiff’s medical negligence claim against Defendant Zaloga

should be permitted to proceed at this time. If, through discovery, the Medical

Defendants find evidence that Defendant Zaloga participated in making a decision

that Lynady be treated under the MHPA, they may raise the issue at summary

judgment. At this point, it appears that the allegation is a total failure to act.

D. WHETHER PLAINTIFF’S VICARIOUS LIABILITY CLAIM SHOULD BE

DISMISSED

In Count Five of her Amended Complaint, Plaintiff alleges:

Count Five

Corporate Negligence and Vicarious Liability

Plaintiff v. Defendants CCI and Zaloga

. . . .

157. CCI is responsible for health care of all inmates at Lackawanna

County Prison.

158. CCI has a duty to retain competent physicians and nurses and

adequately staff them.

159. CCI has a duty to oversee administration of medical treatment at

Lackawanna County Prison.

160. CCI has a duty to promulgate adequate policy to meet the

medical and psychiatric needs of inmates at Lackawanna County

Prison.

161. Defendants Mallik, Zaloga, Bogaski, Matalonis, Ketten,

Mrykalo, and Wombacker are principles, agents, employees,

servants, or officers of Defendant CCI. All of these individuals

individually committed medical negligence as described herein,

and Defendant CCI is vicariously liable for this negligence.

162. At all relevant times Defendants Mallik, Zaloga, Bogaski,

Matalonis, Ketten, Mrykalo, and Wombacker were acting within

the course and scope of their employment as principles, agents,

employees, and servants or officers of Defendant CCI.

163. Defendant CCI is vicariously liable for the actions/inactions and

commissions/omissions of these Defendants as set forth in the

aforementioned paragraphs as though Defendant CCI performed

the acts or omissions itself.

164. Defendant CCI is liable for Decedent’s injuries due to their

defective policies as set forth in full above.

165. As a direct result of the conduct set forth above, Decedent has

suffered damages, both physical and psychological, more fully

described in the preceding paragraphs.

(Doc. 35, ¶¶ 157-165).

The Medical Defendants do not discuss Plaintiff’s corporate negligence or

vicarious liability claims in their Motion or Briefs. In the absence of any argument,

I find that this Court should be permitted to proceed.

E. THE MEDICAL DEFENDANTS’ MOTION REQUESTING LEAVE TO FILE

CROSS-CLAIMS (DOC. 71).

On January 12, 2021, the Medical Defendants filed a Motion requesting leave

to file cross-claims. (Doc. 71, pp. 2-6). Along with that Motion, the Medical

Defendants filed a proposed order (Doc. 71, p. 1), their proposed crossclaims (Doc.

71-1), and a certificate of non-concurrence (Doc. 71-2). No Brief in Support has

been filed.

This Court’s Local Rule 7.5 provides, in relevant part, that:

Within fourteen (14) days after the filing of any motion, the party filing

the motion shall file a brief in support of the motion. If the motion seeks

a protective order, a supporting brief shall be filed with the motion. If

a supporting brief is not filed within the time provided in this rule

the motion shall be deemed to be withdrawn. A brief shall not be

required: (a) In support of a motion for enlargement of time if the

reasons for the request are fully stated in the motion, (b) In support of

any motion which has concurrence of all parties, and the reasons for the

motion and the relief sought are fully stated therein, or (c) In support of

a motion for appointment of counsel.

(emphasis added).

More than fourteen days have passed since the Medical Defendants filed their

Motion (Doc. 71). No brief has been submitted. No exception to the briefing

requirement applies.

I also note, for the Medical Defendants’ benefit that, although they are correct

that under Fed. R. Civ. P. 12(a)(1)(A)(i) a responsive pleading (which may contain

counterclaims and crossclaims properly asserted under Fed. R. Civ. P. 13) must be

served within 21 days after being served with a Complaint. However, filing a Motion

to Dismiss under Fed. R. Civ. P. 12, as the Medical Defendants did in this case, alters

the response period. See Fed. R. Civ. P. (a)(4). Under Fed. R. Civ. P. 12(a)(4)(A), if

the Court denies a Motion filed under Fed. R. Civ. P. 12 (as it has done here), “the

responsive pleading must be served within 14 days after notice of the court’s action.”

[The following page contains the Conclusion]

V. CONCLUSION

Accordingly, it is ORDERED that:

(1) The Medical Defendants’ Motion to Dismiss (Doc. 44) is DENIED.

(2) The Medical Defendants’ Motion Requesting Leave to File

Crossclaims (Doc. 71) is DEEMED WITHDRAWN.

(3) An Appropriate Order shall issue.

Date: February 10, 2021 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge