Loughney v. Correctional Care, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LISA LOUGHNEY, :

Plaintiff : CIVIL ACTION NO. 3:19-1101

V. : (MANNION, D.J.)

(ARBUCKLE, M.J.)

CORRECTIONAL CARE, INC., et :

al.,

Defendants :

MEMORANDUM

Presently before the court is the April 9, 2021 Report and

Recommendation (“Report”) of Magistrate Judge William Arbuckle, (Doc.

86), which recommends that the Medical Defendants’' motion to dismiss for

failure to state a claim upon which relief can be granted, (Doc. 44), with

respect to the amended complaint, (Doc. 35), filed by plaintiff Lisa Loughney,

as the administrator of her son Ryan Lynady’s estate, raising constitutional

claims pursuant to 42 U.S.C. §1983, be denied. The Report also

recommends that the Medical Defendants’ first motion for leave to file

‘Medical Defendants are: Correctional Care, Inc., (“CCI”), a private

corporation under contract to provide medical services for inmates at LCP:

Edward Zaloga, D.O., president of CCl; and medical staff at LCP employed

by CCl, namely, Nurses Hoily Bogaski, Beth Matalonis, Cassandra Ketten,

Akasha Mrykalo, and Jessica Wombacker. Only Medical Defendants remain

in this case.

crossclaims against Lackawanna County and Lackawanna County Prison

Officials, (“Lackawanna County Defendants”), and Dr. Mallik (who are no

longer parties to this case), (Doc. 71), be deemed withdrawn pursuant to

Local Rule 7.5, M.D. Pa., and that Medical Defendants’ second motion for

leave to file crossclaims against the stated dismissed defendants, (Doc. 74),

be denied.

On April 23, 2021, Medical Defendants filed objections to the Report,

(Doc. 87), and a brief in support, (Doc. 88). On May 10, 2021, plaintiff filed a

brief in opposition to the Medical Defendants’ objections. (Doc. 89).

For the following reasons, the Report, (Doc. 86), will be ADOPTED IN

iTS ENTIRETY and, Medical Defendants’ motion to dismiss plaintiffs

amended complaint, (Doc. 44), will be DENIED. Medical Defendants’ first

motion for leave to file crossclaims against Lackawanna County Defendants

and Dr. Mallik, (Doc. 71), will be DEEMED WITHDRAWN. Medical

Defendants’ second Motion for leave to file crossclaims against the

dismissed defendants, (Doc. 74), will be DENIED. Medical Defendants’

objections to the Report, (Doc. 87), will be OVVERULED.

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i. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.

Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, “satisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)

(explaining that judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

2Since Judge Arbuckle states the appropriate standards with respect

to a motion to dismiss and with respect to a civil rights action under 42 U.S.C.

§1983 in his Report, the court will not repeat them herein.

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findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); M.D. Pa. Local Rule 72.3. “[A] Report and Recommendation

does not have force of law unless and until the district court enters an order

accepting or [not accepting] it.” Garceran v. Morris County Prosecutors

Office, 2015 WL 858106, *1 (D. NJ. Feb. 27, 2015) (citing United

Steelworkers of Am. v. N.J. Zinc Co., Inc., 828 F.2d 1001, 1005 (3d Cir.

1987)).

ll. DISCUSSION®

The remaining claims against the Medical Defendants are as follows:

Count 1: Monell* claim against Defendants CCI and Dr. Zaloga;

°Since Judge Arbuckle stated the full procedural history and

background of this case in his Report, as well as the names and positions of

the remaining seven Medical Defendants, and since the parties did not object

to it, the court will not repeat it herein. Additionally, the court will limit its

discussion to information relevant to the objections of Medical Defendants to

Judge Arbuckle’s Report.

4See Monell v. New York City Dept. of Social Servs., 436 U.S. 658

(1978). No doubt that Monell applies to private corporations, such as CCl,

alleged to be acting under the color of state law. See Defreitas v.

Montgomery Cty. Corr. Facility, 525 Fed. Appx 170, 176 (3d Cir. 2013).

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Count 2: 14'" due process claim, under §1983, for denial of adequate

medical care/failure to prevent suicide claim> against Defendants Dr.

Zaloga, Bogaski, Matalonis, Ketten, Mrykalo, and Wombacker;

Count 4: State Law Medical Negligence against Defendant Dr. Zaloga:

and

Count 5: State Law Corporate Negligence & Vicarious Liability

against Defendants CCI and Dr. Zaloga.

Judge Arbuckle analyzes the remaining claims raised by plaintiff and

correctly applies the law to them, and explains why they sufficiently state

cognizable claims against Medical Defendants at this stage of the case.

Thus, the court will not rehash in great detail the thorough explanation in the

Report.

°Since Lynady was confined in LCP pending trial on state criminal

charges at the time of his arrest, i.e., a pre-trial detainee, the 74t

Amendment Due Process Clause applies to plaintiff's denial of proper

medical care claims as opposed to the 8'" Amendment. See Edwards v.

Northampton Cty., 663 F.App’x 132, 135 (3d Cir. 2016). “Nevertheless,

because the Fourteenth Amendment affords pretrial detainees protections

available to a convicted prisoner, the Court will evaluate [plaintiff's] §1983

claims under the same standard used to evaluate similar claims brought

under the Eighth Amendment.” Burgos v. City of Phila, 439 F.Supp.3d 470,

487 n. 79 (E.D. Pa. 2020) (citations and internal quotation omitted). See also

Moore v. Luffey, 767 F.App’x 335, 340 (3d Cir. 2019).

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First, contrary to Medical Defendants’ objection, plaintiffs amended

complaint sufficiently alleges that they were deliberately indifferent to

Lynady’s serious mental health needs.

As the court in Burgos, 439 F.Supp.3d at 487, explained:

“In order to sustain this constitutional claim under 42 U.S.C.

§1983, a plaintiff must make (1) a subjective showing that ‘the

defendants were deliberately indifferent to [his or her] medical

needs’ and (2) an objective showing that ‘those needs were

serious.” Deliberate indifference is a “subjective standard of

liability consistent with recklessness as that term is defined in

criminal law.” To act with deliberate indifference is to “recklessly

disregard a substantial risk of serious harm.” “[F]inding a prison

official liable for violating a prisoner's Eighth Amendment rights

requires proof that the official ‘knows of and disregards an

excessive risk to inmate health or safety.”

(internal citations omitted).

Additionally, “[t]he Constitution requires that prison officials must

ensure that inmates receive adequate food, clothing, shelter, and medical

care, and must ‘take reasonable measures to guarantee the safety of the

inmates.” /d. (citation omitted). “[T]he Supreme Court has established that

prison officials violate the Constitution by intentionally denying or delaying

access to medical care.” /d. (citation omitted).

In order to state a Amendment due process claim against prison

medical staff for failure to prevent a pre-trial detainee’s suicide, plaintiff must

show:

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

that there was a “strong likelinood, 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

individual’s particular vulnerability.

Palakovic v. Wetzel, 854 F.3d 209, 223-24 (3d Cir. 2017).

The Report specifically discusses plaintiffs allegations in her amended

complaint, (Doc. 35 at 10-15), and how they piead a plausible claim for failure

of the individual Medical Defendants, including Dr. Zaloga, to provide Lynady

with proper mental health care during his confinement at LCP. (Doc. 86 at 2-

4. See also Doc. 89 at 2-3, 8). At this stage of the case, plaintiff is not required

to show a causal connection between the alleged indifference and her injury.

See Burgos, 439 F.Supp.3d at 487 (“to survive summary judgment ... a

plaintiff is required to produce sufficient evidence of ... causation.”) (citations

omitted).

Plaintiff also adequately pleads claims of entity lability under Monell

against CCI and Dr. Zaloga. The amended complaint, (Doc. 35 at 12),

alleges, in part, that:

CCl has no policy regarding either inmate suicide or

inmate detox.

The only written documentation CCI maintains regarding detox

is a half-page, sixty-five word “standing order.”

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No other guidance other than this standing order is provided to

medical staff to treat detox patients.

This standing order is wholly inadequate to treat patients for

detox and constitutes a violation of the standard of care for

reasons including, but not limited to, the failure to require

psychiatrist treatment to patients in detox.

Since the Report states the correct standard to hold an entity liable

under §1983 for the constitutional torts, it will not be repeated. See also

Burgos, id. at 484-85, 488. Also, to the extent that plaintiff bases her claim

of lability against CCI on a failure to act theory she must allege that a CCI

“policymaker [i.e., Dr. Zaloga] has failed to act affirmatively at all, [though]

the need to take some action to control the [employees of CCl] is so obvious,

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

constitutional rights, that the policymaker can reasonably be said to have

been deliberately indifferent to the need.” /d. at 488.

The Report discusses how plaintiff alleges that Dr. Zaloga was aware

that an unreasonable risk of harm existed to Lynady, and how he was

deliberately indifferent to that risk. The Report also addresses the allegations

of the amended complaint and how they state that a policy, practice, or

procedure of CCl caused harm to Lynady.

Judge Arbuckle also correctly found that there is nothing in the

amended complaint to show that Medical Defendants are entitled to

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immunity at this stage of the case under §7114 of the Mental Health

Procedures Act (“MHPA”), 50 P.S. §§7101-7503, since he points out that the

pleading does not allege that Dr. Zaloga participated in any decision that

Lynady be treated under the MHPA in the four days he was confined at LCP.

The Report explains that immunity only applies if Dr. Zaloga or the nurses

participated in a decision that Lynady be examined or treated under the

MHPA. The judge also notes that after discovery, Medical Defendants may

revisit this immunity claim if there is evidence showing that Dr. Zaloga and

the other Medical Defendants were acting within the requirements of the

MHPA with respect to Lynady and his treatment at LCP. (Doc. 86 at 24).

The MHPA provides “limited immunity for certain individuals providing

care to the mentally ill’, namely, “50 P.S. §7114 protects from civil and

criminal liability those individuals and institutions that provide treatment to

mentally ill patients, and, thus, promotes the statutory goal of ensuring such

treatment remains available.” Leight v. Univ. of Pitts. Physicians, 243 A.3d

126, 130 (Pa. 2020) (citing Dean v. Bowling Green-Brandywine, —— Pa. —

—, 225 A.3d 859, 869 (2020). “This immunity protection, however, does not

insulate individuals from liability for acts of willful misconduct or gross

negligence.” /d. (citing 50 P.S. §7114). Thus, “[the PA Supreme] Court has

found an affirmative duty exists under the MHPA which requires mental

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health professionals and institutions to avoid willful misconduct or gross

negligence in the treatment of mental health patients, and imposes civil

liability for a breach of that duty.” /d. (citations omitted). As such, if plaintiff

does not allege that Medical Defendants were negligent in their actual

examination or treatment of Lynady, as a mentally ill person, on an

involuntary basis or a voluntary inpatient basis, then their actions fall outside

the coverage of the MHPA. See Leight v. Univ. of Pitts. Physicians, 243 A.3d

at 139-40.

In her brief in opposition to Medical Defendants’ objections, (Doc. 89

at 5-6), plaintiff explains:

The MHPA applies only to “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. The

Magistrate Judge correctly recommended that this does not

apply to this case because [it is alleged that] no mental health

treatment was provided in this case and because Defendant

Zaloga did not participate in any decisions regarding mental

health treatment. Alternatively, this was the appropriate

recommendation because the Pennsylvania Supreme Court

recently held that the MHPA does not apply to drug detoxification

treatment. Dean v. Bowling Green-Brandywine, 225 A.3d 859

(Pa. 2020). Where a patient is being treated for drug

detoxification, but also suffers from a mental illness, “in order to

be entitled to [MHPA] immunity, [a defendant] must have

provided treatment for a mental illness, independent from and in

addition to the treatment provided for [a patient’s] ‘drug

dependance.” /d. at 870. [Lynady] entered [LCP] with a history

of mental illness and in active drug withdrawal. He was treated —

[]—for drug detoxification. He was never treated for any mental

health issues.

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Plaintiff also points out that “exactly like in Dean, [Lynady] was

treated only for detoxification. He did not receive any treatment for mental

health independent from or in addition to the treatment for drug dependance.

Therefore, like in Dean, the MHPA does not apply and Plaintiff need only

establish negligence—not gross negligence. Plaintiff had clearly pled

negligence and has included a certificate of merit from an appropriate

professional indicating that [Lynady’s] treatment fell short of the standard of

care.” (id. at 6).

Thus, at this posture of the case, Medical Defendants’ objection as to

Judge Arbuckle’s finding that they are not entitled to immunity under the

MHPA will be overruled. If appropriate after discovery, Medical Defendants

may re-assert their claim to immunity under the MHPA in a summary

judgment motion.

Finally, the Report concludes that since Dr. Mallik and the County

Defendants were dismissed from this case after a settlement of the plaintiff's

claims against them was reached, the Medical Defendants’ motion for leave

of court to assert crossclaims against these settling defendants, (Doc. 74).

should be denied. The court concurs with the Report's analysis as to this

motion and its recommendation that the motion should be denied. At this

point of the case, and in light of the procedural background detailed in the

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Report, particularly the fact that Dr. Mallik and the County Defendants were

already dismissed on November 24, 2020, (Doc. 69), the court finds that

Medical Defendants’ motion, (Doc. 74), must be denied. See In re Kelvin

Manbodh Asbestos Litig. Series, 2018 WL 5084766, *22 (V.I. Super. Ct. Oct.

17, 2018) (Crossclaims cannot be asserted against nonparties and cannot

be asserted “by one who is not a party to the action.” And “[nlo crossclaim

may be brought against a person who has been eliminated or who has

withdrawn from the action, since that person no longer is a party.”) Id.

(citations omitted). See a/so Underwriters at Lloyd’s v. Abaxis, Inc., 491

F.Supp.3d 506, 514 (N.D. Ca. 2020) (“Courts have consistently held that [a]

cross-claim cannot be asserted against a party who was dismissed from the

action previous to the assertion of the cross-claim.”) (citations omitted).

Thus, “[Medical] Defendants could not assert a Rule 13(g) crossclaim

against either [Dr. Mallik] or [County Defendants], who were dismissed from

the action by plaintiff prior to the filing of the crossclaim.” Id.

As such, the Medical Defendants’ motion for leave of court to assert

crossclaims against Dr. Mallik and the County Defendants, (Doc. 74), will be

denied. Medical Defendants’ first motion for leave to file crossciaims, (Doc.

71), will be deemed withdrawn.

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In sum, the court has reviewed the reasons presented by Judge

Arbuckle for recommending that the Medical Defendants’ motion to dismiss

plaintiffs amended complaint be denied, and because the court agrees with

the sound reasoning that led the Judge to the conclusions in his Report and

finds no clear error on the face of the record, the court will adopt the Report

in its entirety.

ll. CONCLUSION

in light of the foregoing, Judge Arbuckle’s Report, (Doc. 86), will be

ADOPTED IN ITS ENTIRETY, and Medical Defendants’ motion to dismiss,

(Doc. 44), plaintiffs claims against them in her amended complaint, (Doc.

35), will be DENIED. Medical Defendants’ motion for leave of court to assert

crossclaims against Dr. Mallik and the County Defendants, (Doc. 74), will be

denied. Medical Defendants’ first motion for leave to file crossclaims, (Doc.

71), will be deemed withdrawn. An appropriate order shall follow.

sl Walachy 2. Wauniou

MALACHY E. MANNION

United States District Judge

DATE: September 28, 2021

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