# Loughney v. Correctional Care, Inc.

> District Court, M.D. Pennsylvania · February 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10409765

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409765

## How later opinions describe it (automated extraction)

- applying Monell to a private company providing medical services to inmates

## Opinion text

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 For procedural reasons this Motion will be deemed withdrawn.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409765. Public record. Not legal advice.