# Loughney v. Correctional Care, Inc.

> District Court, M.D. Pennsylvania · September 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10410789

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 28, 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/10410789

## How later opinions describe it (automated extraction)

- explaining that judges should give some review to every report and recommendation
- explaining that judges should give some review to every report and recommendation

## Opinion text

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longer parties to this case), (Doc. 71), be deemed withdrawn pursuant to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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410789. Public record. Not legal advice.