The opinion
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARRYL C. BROWN, :
: CIVIL ACTION NO. 1:19-CV-1941
Plaintiff, : (JUDGE MARIANI)
: (Magistrate Judge Schwab)
V. ‘
PA DEPARTMENT OF CORRECTIONS, :
et al., :
Defendants. :
dy ORDER
AND NOW, THIS ) IDAY OF FEBRUARY 2021, upon review of Magistrate
Judge Susan E. Schwab’s January 14, 2021, Report and Recommendation (“R&R”) (Doc.
100) for clear error or manifest injustice, IT 1S HEREBY ORDERED THAT:
1. The R&R (Doc. 100) is ADOPTED as modified for the reasons set forth therein.
2. Plaintiffs First Amended Complaint (Doc. 27) is DISMISSED WITH PREJUDICE as
to the following claims: 2
1 Modifications will be noted in the margin.
2 The IR&R recommends dismissing all claims; against Unserved Defendants with prejudice. (Doc.
100 at 31.) The Unserved Defendants are “SC! Coal John Doe (1),” “SCI Coal John Doe, (2),” “SCI Coal
John Doe, (3)” “SCI Coal John Doe, (4),” “Sargeant Shikes,” “Nurse Big Red,” “Nurse John Doe (5),” and
“Nurse Jane Doe 1.” (Doc. 100 at 4.) Rather than dismiss claims against these Defendants with prejudice,
the Court will dismiss them without prejudice as the futility of service of a second amended complaint and
further identification of the Unserved Defendants has not been established.
a. Counts One and Two as asserted against Defendants Pennsylvania
Department of Corrections and SCI Coal Township;
b. Count Five against Defendants Pennsylvania Department of Corrections and
SCI Coal Township;
c. Count Nine in its entirety;
d. Plaintiffs sought remedy of punitive damages for Count Eleven;
e. Plaintiff's sought remedy of monetary damages for Counts Three and Four;
f. Plaintiff's sought remedy of monetary damages, as asserted against any or all
of the Corrections Defendants for Counts One, Two, Six, Seven, and Eight, to
the extent that these claims are against these defendants acting in their
official capacities.4
3. Plaintiffs First Amended Complaint is DISMISSED WITHOUT PREJUDICE as to the
following claims:
3 While Defendant Department of Corrections and SC] Coal Township are immune from suit under
the Eleventh Amendment, Defendant Correct Care Solutions or Wellpath is not. As a private health
company providing service to inmates, Defendant Correct Care Solutions or Wellpath “cannot be held
responsible for the acts of its employees under a theory of respondeat superior or vicarious liability,” Natale
v. Camden Cty. Corr. Facility, 318 F.3d 575, 583 (3d Cir.2003), but may be held liable under 42 U.S.C. §
1983 if a plaintiff alleges facts to state a claim that the private company had a policy, custom, or practice,
and that the policy, custom, or practice caused the constitutional violation at issue. /d at 583-84 (citing Bd.
of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997)).
4 The Corrections Defendants are the Commonwealth of Pennsylvania's Department of Corrections,
State Correctional Institution Coal Township, Secretary of Corrections John E. Wetzel, Michael Wenerowicz,
Paul Noel, Thomas McGinley, Trisha Kelley, Karen Merritt, and Richard Wenhold. (Doc. 100 at 4.)
a. Counts One and Two except as asserted against Defendants Pennsylvania
Department of Corrections and SCI Coal Township and except as to Plaintiff's
request for monetary damages against Corrections Defendants acting in their
official capacities;
b. Counts Three and Four except as to Plaintiff's request for monetary
damages;>
c. Count Five as to Defendant Correct Care Solutions or Wellpath;
d. Counts Six, Seven, and Eight except as to Plaintiff's request for monetary
damages against Corrections Defendants acting in their official capacities;
e. Count Ten;®
f. Count Eleven.’
5 In addition to the reasons set out in the R&R, the Court notes that claimed violations of the
Pennsylvania Constitution are not properly raised under 42 U.S.C. § 1983 which addresses “rights,
privileges, or immunities” secured by the United States Constitution and federal laws.
6 The R&R recommends dismissal of Count Ten with prejudice as to Defendant Merritt. (Doc. 100
at 28.) While the R&R’s determination regarding Plaintiffs medical malpractice claim against Defendant
Merritt is likely accurate, in an abundance of caution the Court will dismiss the claim against her without
prejudice.
7 Because the Court of Appeals for the Third Circuit does not appear to have ruled in a
precedential opinion on the issue of whether a private entity contracted to provide health services to
inmates at a state prison can be liable under the Americans with Disabilities Act (“ADA”) or Rehabilitation
Act (“RA”), the Court dismisses Count Eleven claiming violations of the ADA and RA without prejudice as to
Defendant Correct Care Solutions and/or Wellpath rather than dismissing the claim with prejudice as
recommended in the R&R (Doc. 100 at 28).
4. In accordance with the foregoing determinations, Corrections Defendants’ Motion to
Dismiss (Doc. 45) is GRANTED, Medica! Defendants’ Motion to Dismiss (Doc. 48) is
GRANTED, Corrections Defendants’ Motion to Strike (Doc. 85) is DEEMED MOOT;
5. Plaintiff is GRANTED LEAVE to file a second amended complaint regarding the
claims dismissed without prejudice within 28 days of the date of this Order;
6. This matter is remanded to Magistrate Judge Schwab for further consideration.
Ge 4 oe
Robert D. Mariani
United States District Judge