Brown v. Monsalud

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEITH S. BROWN, : Civil No. 1:20-CV-0849

:

Plaintiff, :

:

v. :

:

DR. MARY JOY MONSALUD, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

The motions to dismiss filed by Defendants Dr. Mary-Joy Monsalud, Dr.

Andrew Newton, and Corrections Health Care Administrator (“CHCA”) Karen

Holly are presently before the court for disposition.1 (Docs. 7, 18, 24.) For the

reasons set forth below, Brown’s claims under the Americans with Disabilities Act

(“ADA”) against Dr. Monsalud and Dr. Newton will be dismissed with prejudice.

Plaintiff’s ADA claims against CHCA Holly in her individual capacity will also be

dismissed with prejudice. The Defendants’ motions to dismiss Brown’s Eighth

Amendment medical and state law intentional infliction of emotional distress

claims will be denied. Defendants will be directed to file an answer to the

complaint in accordance with the Federal Rules of Civil Procedure.

1 All Defendants are represented by separate counsel.

FACTUAL BACKGROUND

Keith Brown (“Plaintiff” or “Brown”), a self-represented individual housed

at the Frackville State Correctional Institution (“SCI-Frackville”) in Frackville,

Pennsylvania, initiated this action on May 1, 2020 in the Court of Common Pleas

of Schuylkill County. Defendant Monsalud removed the action to this court on

May 26, 2020. (Doc. 1.)

In his complaint, Brown describes himself as an individual with a significant

history of mental illness with hospitalizations, and limited vision due to glaucoma

and a corneal transplant. (Doc. 1-3, ¶ 5.) Based on these ailments, Brown claims

to be a qualified individual with a disability under the terms of the ADA, 42 U.S.C.

§ 12131(2). He adds that he has a “very long history of suicide attempts with all

his medication.” (Id., ¶¶ 6, 11, 34.)

Upon Brown’s arrival at SCI-Frackville in April 2018, he advised all

Defendants of his “special needs” and that he was “not allowed to hold any

medication inside his cell” per a Bureau of Health Care Services directive. He

cites to a March 23, 2016 Final Appeal Decision resolving Grievance 592113

(“Final Grievance Appeal”) as evidence of this mandate. (Id., ¶ 10; see also Doc.

1-2, p. 10.)2 In the appeal, the DOC’s Bureau of Health Care Services reviewed

Brown’s 2015 concerns that he was not capable “of self-administering [his]

2 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

glaucoma eye [drops] based on [his] history and risk of self-harm” while housed at

a different prison. (Id.) Brown was “encouraged to participate in [his] treatment

plan to self-administer [his] eye drops under supervision of the medical staff in the

medical department” and advised the Defendants that all medication, including his

“7 bottle[s] of eye drops and his pills” must be taken “under the supervision of

medical staff down in the medical department.” (Doc. 1-3, ¶ 11.)

“Defendants [were] complying” with the terms of the grievance response

until June 7, 2019, when Brown filed a grievance against the nursing staff for

allowing officers to handle his medications. (Doc. 1-3, ¶ 12.) On June 7, 2019,

Defendants Monsalud, Newton, and Holly “were waiting” for Brown to report to

the treatment line. When he arrived, “Defendants had the Plaintiff[’s] medication

in a big plastic bag [and] t[old] the plaintiff if he do[es]n’t take his medication back

to his cell then he don’t get nothing.” (Id., ¶ 13.) Brown warned them “he can’t do

that and that they disregard the excessive risk to [his] health and safety.” (Id.)

Defendants retorted that “they don[’]t care if [he] killed himself.” (Id.)

After that encounter, Brown was denied his eye drops for a month until

someone from Governor Wolf’s Office intervened. Brown lost the vision in his

right eye due to the lack of the medication. (Id., ¶¶ 14, 17.) He also “suffered

severe physical damages, including but not limited to the risk created by unsafe

and unhealthy living conditions and exposure to degrading and in human

conditions of confinement resulting in great emotional distress.” (Id., ¶ 31.)

Defendants’ actions “caused the Plaintiff severe emotional distress, anxiety, and

fear.” (Id., ¶ 41.)

Brown asserts that Defendants violated Title II of the ADA and the Eighth

Amendment when they modified the manner of access to his prescription

ophthalmic drops which placed him at an increased risk of harm due to his known

vulnerability to self-harm with prescription medication under his exclusive control.

Defendants’ denial of prescription ophthalmic medication for three weeks lead to

his loss of vision in his right eye. Brown also sets forth a state law claim of

intentional infliction of emotional distress (“IIED”) due to the extreme and

outrageous nature of Defendants’ conduct. (Doc. 1-3.) Each Defendant has filed

a motion to dismiss Brown’s ADA, Eighth Amendment, and IIED claim. (Docs. 7,

18, and, 24.) Brown filed a consolidated opposition brief. (Doc. 60.) Only

CHCA Holly filed a reply brief. (Doc. 61.) The motions are now ripe for

disposition.

JURISDICTION

The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331,

which allows a district court to exercise subject matter jurisdiction in civil cases

arising under the Constitution, laws, or treaties of the United States. The court has

supplemental jurisdiction over Plaintiff’s related state law claim of intentional

infliction of emotional distress in accordance with 28 U.S.C. § 1367(a).

STANDARD OF REVIEW

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

Under Rule 12(b)(6), the court must accept all well pleaded allegations as

true and construe all reasonable inferences in favor of the nonmoving party. Doe

v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). The pleadings of self-

represented plaintiffs are held to a less stringent standard than formal pleadings

drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551

U.S. 89, 94 (2007); Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d. Cir. 2011). Self-

represented litigants are to be granted leave to file a curative amended complaint

even when a plaintiff does not seek leave to amend, unless such an amendment

would be inequitable or futile. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,

245 (3d Cir. 2008). However, a complaint that sets forth facts which affirmatively

demonstrate that the plaintiff has no right to recover is properly dismissed without

leave to amend. Dooley, 957 F.3d at 376 (citing Grayson v. Mayview State

Hospital, 293 F.3d 103, 106 (3d Cir. 2002)).

DISCUSSION

A. Brown’s ADA Claims against Defendants in their Individual and

Official Capacities

1. Title II of the ADA

Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. As prisons

fall within the definition of “public entity,” prisoners may bring claims against

their jailors for disability discrimination under Title II of the ADA. Pa. Dep’t of

Corr. v. Yeskey, 524 U.S. 206, 209–210 (1998); see also 42 U.S.C. § 12313(1).

“[T]he phrase ‘service, program, or activity’ under Title II … is ‘extremely broad

in scope and includes anything a public entity does.’” Furgess v. Pa. Dept. of

Corr., 933 F.3d 285, 289 (3d Cir. 2019). As such, “a prison’s refusal to

accommodate inmates’ disabilities in such fundamentals as mobility, hygiene,

medical care, and virtually all other prison programs constitutes a denial of the

benefits of a prison’s services, programs, or activities under Title II” of the ADA.

Furgess, 933 F.3d at 290 (internal quotation and citation omitted).

To state a cognizable claim under Title II of the ADA, a plaintiff must show

that: “(1) he is a qualified individual with a disability; (2) he was either excluded

from participation in or denied the benefits of some public entity’s services,

programs, or activities; and (3) such exclusion, denial of benefits, or discrimination

was by reason of his disability.” Mutschler v. SCI Albion CHCA Health Care, 445

F. App’x 617, 621 (3d Cir. 2011).

Broadly construing this self-represented litigant’s pleading, Brown alleges that

Defendants denied him access to medical care based on his mental health disability

which resulted in physical and mental harm. Specifically, he claims to suffer from

a long and documented history of ophthalmic and mental health issues. The latter

makes unrestricted access to prescription medication an irresistible temptation to

harm himself, a complication of his disability known by Defendants. At the

motion to dismiss stage, as the court is bound by the allegations of the complaint,

Brown has sufficiently alleged that he suffers from a qualifying disability.

Moreover, accepting as true that Defendants delivered Brown an ultimatum of

either taking his eye medication to his cell or forgoing them, these claims assert a

Title II denial of medical services claim under the ADA. See Anderson v. Bickell,

754 F. App’x 113, 116 (3d Cir. 2018) (holding that “under some circumstances,

forcing an inmate to endure pain in order to access a program or service could

constitute the denial of access for ADA purposes). The court finds Brown’s

predicament in complying with the options presented by Defendants in order to

access necessary medical care to be adequate to make out this claim. Whether or

not Brown can prove his allegations is yet to be seen, but at this point, he has

adequately asserted facts to establish a Title II ADA claim.

2. Brown’s Individual Capacity ADA Claims against Defendants

Defendants argue that Brown’s Title II ADA claim against them in their

“individual capacities” fails as a matter of law. See Docs. 17, 19, 25. Although the

United States Court of Appeals for the Third Circuit has not addressed the issue

precedentially, it has indicated in several non-precedential decisions that Title II of

the ADA does not recognize claims for monetary damages against government

officers in their individual capacities. See Kokinda v. Pa. Dep’t of Corr., 779 F.

App’x. 938, 942 (3d Cir. 2019) (per curiam) (holding that plaintiff’s “claims for

individual damages liability under Title II of the ADA fail for the simple reason

that there is no such liability.” (internal citations omitted)); Bowens v. Wetzel, 674

F. App’x 113, 136 (3d Cir. 2017) (noting that “the District Court could have

properly followed the holdings of [other] circuits which have concluded that there

is no individual damages liability under Title II of the ADA, which provides an

additional basis to affirm the dismissal of this claim.” (citations omitted));

Matthews v. Pa. Dep’t of Corr., 613 F. App’x 163, 169-70 (3d Cir. 2015) (agreeing

with the Second and Eighth Circuits that “Title II of the ADA does not provide for

suits against state officers in their individual capacities”). Accordingly, none of

the individual Defendants are subject to individual liability under Title II of the

ADA. As such, these claims will be dismissed without leave to amend as any such

amendment would be futile.

3. Brown’s Official Capacity ADA Claims against Defendants

Only Dr. Monsalud and Dr. Newton specifically address Brown’s official

capacity ADA claims against them. (Docs. 19, 25.) Dr. Monsalud and Dr. Newton

argue that they are not “public entities” under Title II of the ADA. See Docs. 19,

25. The court agrees, as their roles as private medical and mental health

contractors with the DOC do not make them “public entities” under Title II of the

ADA. See Matthews, 613 F. App’x at 169–70 (a contract medical provider of

medical services to various state prisons is not a “is not a public entity merely

because it contracts with a public entity to provide some service.”) Therefore,

Brown’s ADA official capacity claims against Dr. Monsalud and Dr. Newton will

be dismissed with prejudice as any amendment would be futile.

CHCA Holly does not specifically address Brown’s official capacity ADA

claim. Instead, she asserts she cannot be sued under Title II of the ADA because

“violations of the ADA cannot be asserted against individuals, such as Defendant

Karen Holley, and therefore, this claim should be decided in favor of the

Defendant. Simply put, she is not a public entity, and as a result, cannot be held

liable.” Doc. 17, p. 8; see also Doc. 61, p. 4. Although CHCA Holly herself is not

a “public entity” and therefore cannot be sued for monetary damages in her

individual capacity, supra, she may still be sued in her official capacity for

prospective injunctive relief and monetary damages. 3

The Third Circuit Court of Appeals has held that a state official may be sued

in his or her official capacity when prospective injunctive relief is sought for

ongoing violations of the ADA. This is because at its core, the claim is against

“entities for which an officer is an agent.” Koslow v. Pennsylvania, 302 F.3d 161,

178–79 (3d Cir. 2002) (“[F]ederal ADA claims for prospective relief against a state

official in their official capacity is “authorized by the Ex Parte Young doctrine.”).

Additionally, the United States Supreme Court has held that Title II of the ADA

3 Punitive damages are not available under Title II of the ADA. See Bowers v. Nat’l Collegiate

Athletic Ass’n, 346 F.3d 402, 429 (3d Cir. 2003) (citing Barnes v. Gorman, 536 U.S. 181, 187

(2002)).

abrogates state sovereign immunity and allows an inmate to bring a claim for

money damages against the State “for conduct that actually violates the Fourteenth

Amendment.” United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in

original). Again, CHCA Holly is a State employee.

To evaluate whether a plaintiff has presented an ADA claim premised on

conduct that does not independently violate the Fourteenth Amendment, district

courts must, “on a claim-by-claim basis” determine “(1) which aspects of the

State’s alleged conduct violated Title II; (2) to what extent such misconduct also

violated the Fourteenth Amendment; and (3) insofar as such misconduct violated

Title II but did not violate the Fourteenth Amendment, whether Congress’s

purported abrogation of sovereign immunity as to that class of conduct is

nevertheless valid.” (Id.; see also Geness v. Admin. Office of Pa. Courts, 974 F.3d

263, 274 (3d Cir. 2020)). As CHCA Holly’s defense to Brown’s Title II ADA

claim did not address the official capacity ADA claim against her, the court will

not engage in a sua sponte review of the Georgia factors without input from the

parties. Therefore, Brown’s official capacity claims against CHCA Holly will not

be dismissed.

B. Brown’s Eighth Amendment Medical Claims

A prison official or healthcare provider violates the Eighth Amendment by

“acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In the prison

context, an Eighth Amendment claim of deficient medical care must demonstrate

two elements: 1) an objectively serious medical condition; and 2) an official’s

deliberate indifference to that condition. See Ryle v. Fuh, 820 F. App’x 121, 123

(3d Cir. 2020) (citing Estelle, 429 U.S. at 104). A medical need is serious if it “has

been diagnosed by a physician as requiring treatment or one that is so obvious that

a lay person would easily recognize the necessity for a doctor's attention.”

Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)

(internal quotation omitted). “To act with deliberate indifference to serious

medical needs is to recklessly disregard a substantial risk of serious harm.” Giles

v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). To constitute deliberate

indifference, “the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

The United States Court of Appeals for the Third Circuit has found deliberate

indifference where a prison official knows of an inmate’s need for medical care

and intentionally refuses to provide it, delays it for non-medical reasons, or

prevents the prisoner from receiving needed or recommended treatment. See

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1992). Circumstantial evidence can

establish the subjective knowledge requirement if it shows that the excessive risk

was so obvious that the official must have known about it. See Beers-Capitol v.

Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842)).

Generally, courts accord prison medical providers “considerable latitude in the

diagnosis and treatment of prisoners,” Durmer v. O'Carroll, 991 F.2d 64, 67 (3d

Cir. 1993), and “disavow any attempt to second-guess the propriety or adequacy of

a particular course of treatment … [which] remains a question of sound

professional judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754,

762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977))

(alternations in original).

As such, prisoners do not have the right to choose their medical treatment,

Lasko v. Watts, 373 F. App’x 196, 203 (3d Cir. 2010) (citing Harrison v. Barkley,

219 F.3d 132, 136 (2d Cir. 2000)), and their disagreement with a prison medical

professional’s judgment, or a difference of medical opinion between two

physicians does not demonstrate an Eighth Amendment violation because “[t]here

may … be several acceptable ways to treat an illness.” White v. Napoleon, 897

F.2d 103, 110 (3d Cir. 1990). “[W]hen medical care is provided, we presume that

the treatment of a prisoner is proper absent evidence that it violates professional

standards of care.” Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir.

2017).

However, “there are circumstances in which some care is provided yet it is

insufficient to satisfy constitutional requirements.” Palakovic v. Wetzel, 854 F.3d

209, 228 (3d Cir 2017). “[P]rison officials may not, with deliberate indifference to

the serious medical needs of the inmate, opt for an easier and less efficacious

treatment of the inmate’s condition.” Id. (citations and internal quotations marks

omitted). They cannot “deny reasonable requests for medical treatment …[when]

such denial exposes the inmate ‘to undue suffering or the threat of tangible residual

injury.’” Id. (citing Monmouth Cnty. Corr. Inst. Inmates, 834 F.2d at 346 (quoting

Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)).

Accordingly, a diagnosis or treatment provided, even if incorrect, without the

requisite accompanying culpable state of mind does not rise to the level of a

constitutional violation. Estelle, 429 U.S. at 106; Farmer, 511 U.S. at 835. “It is

obduracy and wantonness, not inadvertence or error in good faith, that characterize

the conduct prohibited by the Cruel and Unusual Punishments Clause…” Whitley

v. Albers, 475 U.S. 312, 319 (1986). With that said, “[i]f a prisoner is under the

care of medical experts ... a non-medical prison official will generally be justified

in believing that the prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d 218,

236 (3d Cir. 2004). “[A]bsent a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical

prison official ... will not be chargeable with the Eighth Amendment scienter

requirement of deliberate indifference.” Id. Where a state of mind is relevant, as

with a claim of deliberate indifference, the complaint is inadequate if it merely

contains conclusory allegations describing the defendant’s requisite state of mind

such as “intentionally” or “recklessly” without supporting factual allegations.

Wilson v. Seiter, 501 U.S. 294, 297–98 (1991); Pearson, 850 F.3d at 539.

Here, in order to allege a cognizable Eighth Amendment violation, Brown is

required to plead facts showing that he suffered from a sufficiently serious medical

need, that Defendants were subjectively aware of facts from which the inference

could be drawn that failure to provide treatment for that need posed a substantial

risk of serious harm or undue suffering, and that they drew that inference but

disregarded the risk anyway. In his complaint, Brown asserts that Defendants were

deliberately indifferent to his serious eye conditions when he “was not permitted to

use” his prescription eye drops between June 2019 until July 2019 unless he kept

his medication in his cell. (Doc. 1-3, ¶ 17.) As a result of Defendants’ action,

Brown claims he was exposed to a significant risk of harm and “went blind in [his]

right eye.” (Doc. 1-3, ¶¶ 14.)

Dr. Monsalud argues she exercised her professional judgment when

determining Brown should keep his medication in his cell rather than return

periodically throughout the day to receive his eye drops. She adds that Plaintiff

“has not alleged that [she] refused to provide him with medical treatment that he

needed, but rather disagrees with the manner in which that treatment was provided

over a one-month period.” (Doc. 19, p. 13.) Brown counters that Dr. Monsalud

was aware of his extensive mental health history, past suicide attempts, and need

for his vision sustaining medication. Given her knowledge of this information, he

claims she was deliberately indifferent to his serious medical needs by altering his

access to that medication in a manner she knew placed him at substantial risk of

harm due to his particular vulnerability of suicide4 or denied him of his medically

prescribed medication.

Under these unique circumstances, Dr. Monsalud’s change in the method of

delivery of Brown’s medication could be construed as deliberately indifferent to

his serious medical needs. See Colburn v. Upper Darby Township, 838 F.2d 663

(3d Cir. 1988) (Establishing vulnerability to suicide as a serious medical need); see

also Palakovic, 854 F.3d at 224. Given Brown’s allegations, the court concludes

he has set forth a plausible Eighth Amendment claim against Dr. Monsalud. Her

motion to dismiss this claim will be denied.

Dr. Newton seeks dismissal of Brown’s Eighth Amendment claim because

“Plaintiff has failed to adequately allege [his] involvement in the care received

4 To maintain such an Eighth Amendment claim, Plaintiff must set forth facts suggesting that (1)

he “had a ‘particular vulnerability to suicide,’ (2) the custodial officer or officers knew or should

have known of that vulnerability, and (3) those officers ‘acted with reckless indifference’ to [his]

particular vulnerability.” See Hinton v. Mark, 544 F. App'x 75, 77 (3d Cir. 2013) (quoting

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991)).

associated with the prescription and administration of eye drops which forms the

basis of his Eighth Amendment claim.” (Doc. 25, p. 5.) He adds that he “did not

personally direct or, in the alternative, have actual knowledge and acquiescence in

the prescription and method of administration of Plaintiff’s eye drops.” (Id.) Dr.

Newton asks the court to look outside the four corners of the complaint and

consider his affidavit filed in opposition to Brown’s motion for injunctive relief to

support his asserted lack of involvement in decisions regarding the delivery of

Brown’s medical care. (Id.) However, Dr. Newton provides no caselaw that

would allow the court to do so on a motion to dismiss. In the complaint, Brown

avers that on June 7, 2019, Dr. Newton and the other Defendants “was waiting for

plaintiff” and “tell plaintiff if he don’t take his medication back to his cell then he

don’t get nothing,” Plaintiff has alleged the personal involvement of Dr. Newton in

the events of June 7, 2019. (Doc. 1-3, ¶ 13.) Accordingly, Dr. Newton’s motion to

dismiss Brown’s Eighth Amendment claim based on the lack of allegations of his

personal involvement will be denied.

Next, the court will consider CHCA Holly’s motion to dismiss Brown’s

Eighth Amendment medical claim. The court agrees that CHCA Holly is

considered a non-medical defendant. See Fantone v. Herbik, 528 F. App’x 123,

128, n. 6 (3d Cir. 2013) (Defendant, although a registered nurse, “while acting as

the Corrections Health Care Administrator [ ] acted in a purely administrative role

and did not provide direct medical treatment to inmates.”) As such, she claims she

was not personally involved in the decision to modify the method of delivery of

Brown’s medication. Even if this is true, Brown alleges that CHCA Holly was

familiar with his mental health issues and particular vulnerability to suicide

attempts with prescription medications. Also, she was aware that prior to June 7,

2019, all his medications were taken in the medical unit under the direct

observation of staff. Given this alleged knowledge, the court finds that Brown has

adequately alleged that CHCA Holly had a reason to believe, if not actual

knowledge, that the change to Brown’s medication delivery exposed him to a

substantial risk of harm due to his mental health conditions or would result in the

denial of his necessary ophthalmic medication. Spruill v. Gillis, 372 F.3d 218, 236

(3d Cir. 2004). Based on the allegations of the complaint, Brown’s Eighth

Amendment claim against CHCA Holly will not be dismissed.

C. Brown’s State Law Claim for Intentional Infliction of Emotional

Distress

Brown alleges all three Defendants caused him to suffer “severe emotional

distress, anxiety, and fear” when they “fail[ed] to provide him the use of his

prescribed eye drops or other means of adequately using his drops safely for a

month.” (Doc. 1-3, ¶¶ 35, 40.) As a result, he claims he lost the vision in his right

eye. (Id., ¶ 14.) Defendants’ knowledge of his mental health issues and suicide

attempts with his medications makes their decision to withhold his eye drops if he

did not agree to take them back to his cell, knowing he “would go blind without

[them] …[and] that [his] transplant would then reject without the drops” makes

their behavior extreme and outrageous. (Doc. 60.) In response, all Defendants

argue that Brown’s IIED claim fails as a matter of law. CHCA Holly argues

Brown’s IIED claim “is a textbook example” of conclusory allegations not to be

credited with the assumption of truth. (Doc. 17, p. 9; Doc. 61, p. 4.) She adds that

there are “no facts alleged which demonstrate extreme and outrageous conduct,

and surely no facts which link any actions by” her to such conduct. (Doc. 17, p. 9.)

Dr. Monsalud contends that Brown’s disagreement with the method of delivery of

his medication does not rise to the level of an IIED claim as well as Brown’s

failure to plead that his emotional distress manifested as a physical injury. (Doc.

19, pp. 9–10.) Dr. Newton reasons that because Brown’s IIED claim “relates to

the administration of medications associated with medical, rather than psychiatric

treatment, not within [his] direction or control” it fails as a matter of law. (Doc.

25, p. 11.)

Although the Pennsylvania Supreme Court has not recognized a cause of

action for intentional infliction of emotional distress, the Pennsylvania Superior

Court has recognized this cause of action. Reedy v. Evanson, 615 F.3d 197, 231

(3d Cir. 2010); see also Capresecco v. Jenkintown Borough, 261 F. Supp. 2d 319,

323 (E.D. Pa. 2003) (“Pennsylvania courts have ‘signaled their acceptance of this

evolving tort,’ and that it may be applied as part of Pennsylvania common law.”

(quoting Williams v. Guzzardi, 875 F.2d 46, 50 (3d Cir. 1989)). To prevail on an

IIED claim, the plaintiff must “at the least, demonstrate intentional outrageous or

extreme conduct by the defendant, which causes severe emotional distress to the

plaintiff” and results in “some type of [ ] physical harm.” Reedy, 615 F.3d at 231;

see also Corbett v. Morgenstern, 934 F. Supp. 680, 684–85 (E.D. Pa. 1996)

(finding that symptoms of severe depression, nightmares, stress, and anxiety,

requiring psychological treatment, and ongoing mental, physical, and emotional

harm sufficiently state physical injury). Pennsylvania courts have found liability

on intentional infliction of emotional distress claims only “where the conduct has

been so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Field v. Phila. Elec. Co., 565 A.2d 1170, 1184 (Pa.

Super. Ct. 1989). Generally, liability is only found where “the case is one in which

the recitation of the facts to an average member of the community would arouse

his resentment against the actor, and lead him to exclaim, ‘Outrageous!’”

Restatement (Second) of Torts § 46 comment d.

Viewing the factual allegations in the complaint in the light most favorable to

Brown, the court finds he has sufficiently set forth an IIED claim against all

Defendants. Brown suffers from severe mental illness, glaucoma, and is a corneal

transplant recipient. His propensity to use prescribed medications for self-harm

has necessitated the dispensation of all medication, including his eye drops, in the

medical unit under direct supervision. Defendants altered that historical practice

on June 7, 2019. It could be argued that Defendants’ ultimatum to Brown that day

denied him a safe environment to take his glaucoma and anti-rejection drops

without any regard for his particular vulnerability to self-harm. Brown’s claim that

Defendants withheld his eye drops of 30 days resulting in the loss of vision in his

right eye, if proven, are sufficiently extreme and outrageous to support an IIED

claim. 5 See Rodriguez v. Smith, No. 03-3675, 2005 WL 1484591, at *9 (E.D. Pa.

June 21, 2005) (denying motion to dismiss IIED claim against prison doctor who

allegedly refused to provide medically necessary treatment for plaintiff’s brain

tumor, and then verbally abused him when he sought treatment).

5 All three Defendants argue that Brown “admits” he received his drops, and thus his argument

boils down to a disagreement over medical treatment. However, no Defendant provides a valid

citation to the complaint which supports this statement. Without reference to the complaint,

CHCA Holly states that “Plaintiff admits that he was provided with his prescription eye drops.”

(Doc. 17, p. 12.) Similarly Dr. Monsalud argues “Plaintiff admits that he was provided with his

prescription eye drops.” (Doc. 19, p. 9.) Citing ¶ 13 of the complaint, Dr. Newton claims

“Plaintiff appears to allege that he was provided with eye drops, to keep in his cell, to self-

administer rather than to have DOT in the medical department.” (Doc. 25, p. 8.) Paragraph 13 is

Brown’s statement of the Defendants’ ultimatum. More to the point, Defendants ignore Brown’s

averment that “[f]rom June 2019 until July 2019 the plaintiff was not permitted the use of his

drops until Gov. Tom Wolf Office made the Defendants comply with the grievance final

decision.” (Doc. 1-3, ¶ 17.) The court finds no basis for Defendants’ assertion that Brown

admitted in the complaint he was provided meaningful access to his medication between June

2019 and July 2019.

Additionally, Pennsylvania courts are more inclined to permit recovery for

IIED “when there is a continuing course of conduct.” Williams, 875 F.2d at 52.

Here, Brown’s medication was withheld for one month and resulted in his loss of

vision in one eye. Given Brown’s reliance upon Defendants as the sole source of

his medical care, if proven, Defendants’ behavior could be construed as intentional

as well as extreme and outrageous. To the extent Defendants argue that Brown

does not assert a claim of physical harm that must accompany the emotional

distress the court disagrees as ongoing mental and emotional harm are

compensable injuries. See Corbett, 934 F. Supp. at 684–85. Given Brown’s pre-

existing significant mental illness which automatically triggers monitoring by

mental health staff (and perhaps treatment), the court finds Brown has satisfied the

harm requirement as his already fragile mental health was negatively impacted by

Defendants’ alleged actions. Whether Brown will be able to substantiate these

allegations is unknown at this time. However, currently, he has alleged facts and

circumstances which are sufficient to withstand the motions to dismiss this claim.

CONCLUSION

For the reasons detailed herein, Brown’s individual and official capacity

claims under Title II of the ADA against Dr. Monsalud and Dr. Newton will be

dismissed with prejudice. Plaintiff’s ADA claim against CHCA Holly in her

individual capacity will also be dismissed with prejudice. Brown’s official

capacity ADA claim against CHCA Holly is not subject to dismissal. The

Defendants’ motions to dismiss Brown’s Eighth Amendment medical and state law

intentional infliction of emotional distress claims will be denied. An appropriate

order will follow.

s/ Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Dated: September 30, 2021 Middle District of Pennsylvania