# Babner v. Cumberland County

> District Court, M.D. Pennsylvania · March 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10411426

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 11, 2022
- **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/10411426

## How later opinions describe it (automated extraction)

- finding vague assertions of policy deficiencies insufficient to impose liability under Monell and § 1983

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

AARON BABNER,

Plaintiff, CIVIL ACTION NO. 3:20-cv-02465

v. (SAPORITO, M.J.)

CUMBERLAND COUNTY, et al.,

Defendants.

MEMORANDUM
This federal civil rights action was commenced when the plaintiff,
Aaron Babner, appearing through counsel, filed his fee-paid complaint on
December 31, 2020. (Doc. 1.) The complaint names seven defendants:
(1) Cumberland County, a Pennsylvania municipality that owns and
operates the Cumberland County Correctional Facility (“CCCF”), where
Babner was formerly incarcerated as a pretrial detainee; (2) Earl Reitz,
the warden of CCCF; (3) Rebekah Finkey, the deputy warden of
treatment at CCCF; (4) PrimeCare Medical, Inc. (“PrimeCare”), a
Pennsylvania corporation that contracted with CCCF and Cumberland
County to provide medical treatment to inmates at CCCF; (5) Michelle
Young, a registered nurse employed by PrimeCare to provide medical
services to inmates at CCCF; and (6) Sandra Abbey, a psychiatric
certified registered nurse practitioner employed by PrimeCare to provide

psychiatric medical services to inmates at CCCF.1 The counseled
complaint asserts: (1) § 1983 deliberate indifference to serious medical
needs claims against the “medical defendants”2 and the “correctional

officer defendants”3; (2) supplemental state-law medical negligence and
corporate liability claims against the medical defendants only; and
(3) § 1983 municipal or supervisory liability claims against the “county

defendants”4 and PrimeCare. At the time of filing, Babner was no longer
incarcerated.
All defendants actually named in the complaint and served with

original process have appeared through counsel to answer the complaint.
(Doc. 17; Doc. 18.) The county defendants subsequently moved for
judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules

of Civil Procedure. (Doc. 19). That motion is fully briefed and ripe for

1 The complaint also names several fictitious “John Doe” and “ABC
Company” defendants, none of whom have been identified, much less
served with original process.
2 The “medical defendants” include PrimeCare, Young, Abbey, and
several unidentified and unserved fictious defendants.
3 The “correctional officer defendants” include unidentified and
unserved fictious defendants only.
4 The “county defendants” include Cumberland County, Reitz, and
Finkey only.
decision. (Doc. 20; Doc. 26.)

I. ALLEGATIONS OF THE COMPLAINT
On December 14, 2018, Babner was received into custody at CCCF;
he was incarcerated as a pretrial detainee based on charges that he had
violated a protection from abuse order.5 At the time of his arrival at

CCCF, unspecified medical personnel conducted an intake interview with
Babner, who advised that he had been taking Tegretol and gabapentin
on a daily basis. The intake interviewer advised Babner that he would

not be receiving his medications because he would only be at CCCF for a
short time. Babner explained to unspecified individuals that he needed

these medications, and he further advised that he suffered from asthma.
On December 31, 2018, Babner again requested his medications.
On January 2, 2019, a second intake interview was conducted by

defendant Young. Babner’s prescriptions were verified with his
pharmacy. That verification indicated that, prior to his incarceration,
Babner had been prescribed 800 mg of Tegretol twice per day, for a total

daily dosage of 1,600 mg, and he had been prescribed 800 mg of

5 See generally Commonwealth v. Babner, Docket No. CP-21-MD-
0000723-2018 (Cumberland Cty. (Pa.) C.C.P.).
gabapentin per day. Young placed an order for Tegretol that same day,

which was approved by defendant Abbey.
Because Babner had not taken any Tegretol since his incarceration
commenced on December 14, 2018, he should have been treated as if he

had never taken the medication and started on a low initial dose, to be
gradually tapered up to avoid serious harm to Babner due to the toxicity
of Tegretol. But instead, on January 2, 2019, Babner was prescribed the

full 1,600 mg dosage of Tegretol (800 mg twice daily) immediately.
Moreover, after the Tegretol was resumed, bloodwork should have been
promptly ordered to monitor Babner’s Tegretol levels and to ensure it was

not at a toxic level. Instead, bloodwork was not ordered and medical
personnel ordered that Babner’s Tegretol levels be checked two weeks
after he resumed taking it. In addition, beginning on January 2, 2019,

Babner was prescribed 600 mg of gabapentin daily.
Babner initially questioned the amounts of Tegretol and
gabapentin he was prescribed and advised unidentified medical

personnel that he had been gradually built up to those dosages in the
past. His concerns were dismissed by the unidentified medical personnel.
Babner was told he must take the prescribed amount, and he was assured
that he would not suffer any harm as a result.

On January 3, 2019, Babner received two 800 mg doses of Tegretol
and one 600 mg dose of gabapentin. On January 4, 2019, Babner again
received two 800 mg doses of Tegretol and one 600 mg dose of gabapentin.

As a result of the excessive amounts of Tegretol and gabapentin he had
received, Babner became lethargic, disoriented, and he experienced
slurred speech and difficulty walking.

Babner told unidentified correctional officers that he did not think
he could go to work because he was unable to perform his work duties.
The correctional officers dismissed his concerns. When Babner arrived at

his workplace, his employer questioned whether he had been drinking
alcohol. Babner advised him that he was experiencing the effects of his
newly resumed prescription medicines. His employer permitted him to

sleep in the back room.
When Babner returned to CCCF, he told unidentified correctional
officers that he felt “high,” but his concerns were dismissed.

Babner spoke with his mother on the telephone, and she was unable
to understand him due to his slurred speech. She called CCCF officials
and complained about her son’s condition, but she was told he would go
to “the hole” if he refused his medications.

On January 5, 2019, at approximately 2:30 a.m., Babner was
sleeping in the top bunk of his cell when, as a result of the excessive
amounts of Tegretol and gabapentin in his system, he began to

experience muscle twitches and fell, striking his head on the floor. A
“Code Blue” was called and Babner was found by CCCF personnel sitting
on the floor, holding a towel to his head, and blood was noted on the floor.

Babner was evaluated by medical personnel, who noted that his pupils
were dilated, his mental status was altered, and he was disoriented. They
also observed a laceration on his head. CCCF medical personnel initially

placed a cervical collar on Babner, but it was removed because he was
vomiting.
CCCF medical personnel decided to send him to the emergency

department at Geisinger Holy Spirit Hospital (“Geisinger”) by
ambulance. Emergency medical services records reflect that Babner was
in and out of consciousness, dizzy, and vomiting, and he was experiencing

severe pain in his head, neck, back, and elbow.
Babner was admitted to Geisinger, where various blood tests were
performed. These tests revealed that his Tegretol level was toxic at 16.7
ug/mL—a result that was flagged as “critical” because it was well above

the normal reference range of 4 to 12 ug/mL. The blood tests further
revealed that Babner had elevated liver function test levels, including a
creatine kinase level in excess of 20,000 U/L, which was well in excess of

the normal reference range of 39 to 308 U/L. An elevated creatine kinase
level indicates a condition known as rhabdomyolysis, which is a
breakdown of muscle tissue that can lead to serious complications,

including kidney failure.
Medical providers at Geisinger withheld Babner’s Tegretol until his
levels trended down. Once that happened, his Tegretol was re-started at

a dosage of 400 mg daily (200 mg twice daily). Babner was discharged
from Geisinger on January 9, 2019.
In cursory fashion, the complaint alleges that the county

defendants and PrimeCare, with deliberate indifference, failed to develop
and implement policies, practices, and procedures to ensure that
detainees or inmates, including Babner, would receive safe and proper

prescriptions of medication and or to ensure proper fall prevention
protocols. The complaint further alleges, also in cursory fashion, that the
county defendants and correctional officials had a policy, practice, or
custom of dismissing detainees’ or inmates’ concerns regarding their

medical needs or medical conditions. Although not clearly pleaded, the
complaint appears to suggest that the county defendants failed to
adequately train and supervise the medical defendants and correctional

officer defendants with respect to the provision of proper medical care to
inmates.
II. LEGAL STANDARD
The county defendants have answered the complaint and moved for

judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure. Rule 12(c) provides that “[a]fter the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c). “Under Rule 12(c), a court must accept
all factual averments as true and draw all reasonable inferences in favor

of the non-moving party.” U.S. Fid. & Guar. Co. v. Tierney Assoc., Inc.,
213 F. Supp. 2d 468, 469 (M.D. Pa. 2002) (citing Soc’y Hill Civic Ass’n v.
Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)); see also Westport Ins. Corp.

v. Black, Davis & Shue Agency, Inc., 513 F. Supp. 2d 157, 163 (M.D. Pa.
2007) (“When deciding a motion for judgment on the pleadings, the court
is directed to view ‘the facts presented in the pleadings and the inferences
drawn therefrom in the light most favorable to the nonmoving party.’”)

(quoting Hayes v. Cmty. Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir.
1991)). In deciding a Rule 12(c) motion, we may also consider “matters of
public record, and authentic documents upon which the complaint is

based if attached to the complaint or as an exhibit to the motion.” Chemi
SpA v. GlaxoSmithKline, 356 F. Supp. 2d 495, 496–97 (E.D. Pa. 2005);
see also Kilvitis v. Cty. of Luzerne, 52 F. Supp. 2d 403, 406 (M.D. Pa. 1999)

(“In deciding a Rule 12(c) motion, however, a court may take judicial
notice of any matter of public record.”). Ultimately, “[a] party moving for
judgment on the pleadings under Rule 12(c) must demonstrate that there

are no disputed material facts and that judgment should be entered as a
matter of law.” U.S. Fid. & Guar., 213 F. Supp. 2d at 469–70 (citing
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290–91 (3d Cir.

1988), and Inst. for Sci. Info., Inc. v. Gordon & Breach, Sci. Publishers,
Inc., 931 F.2d 1002, 1005 (3d Cir. 1991)).
III. DISCUSSION

The county defendants are named in only one of the three counts of
the plaintiff’s complaint: Count Three asserts § 1983 municipal liability
claims against Cumberland County and PrimeCare, and § 1983
supervisory liability claims against Reitz and Finkey.6 The county

defendants—Cumberland County, warden Reitz, and deputy warden
Finkey—have moved for judgment on the pleadings. PrimeCare is
separately represented, and it has not moved for judgment on the

pleadings.
A. Warden Reitz and Deputy Warden Finkey
Warden Reitz and Deputy Warden Finkey are named in the caption
and identified once in the body of the complaint, but no conduct

whatsoever by these two individual defendants is alleged at all. Absent
any specific allegations of personal involvement by these defendants, the

plaintiff has failed to state a plausible § 1983 claim upon which relief can
be granted. See Simonton v. Ryland-Tanner, 836 Fed. App’x 81, 84 (3d
Cir. 2020) (per curiam); Hudson v. City of McKeesport, 244 Fed. App’x

519, 522 (3d Cir. 2007) (per curiam); Evancho v. Fisher, 423 F.3d 347, 353
(3d Cir. 2005); Unum v. Expert Witness, Civil Action No. 3:14-2332, 2015

6 Count One asserts § 1983 claims for deliberate indifference to
serious medical needs against the individual medical defendants (several
of whom are unidentified and unserved fictitious defendants) and the
individual correctional officer defendants (all of whom are unidentified
and unserved fictitious defendants). Count Two asserts state-law medical
negligence claims against the individual medical defendants and state-
law corporate negligence claims against PrimeCare.
WL 136384, at *8 (M.D. Pa. Jan. 7, 2015); see also Caristo v. Blairsville-

Saltsburg Sch. Dist., 370 F. Supp. 3d 554, 569 n.21 (W.D. Pa. 2019)
(“Plaintiff must plead facts demonstrating specific personal involvement
of each Individual Defendant as to any Constitutional deprivations she

alleges. Group pleading as to such matters will not suffice.”).7
Accordingly, the plaintiff’s § 1983 supervisory liability claims
against Reitz and Finkey will be dismissed for failure to state a claim

upon which relief can be granted, pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
B. Cumberland County

The plaintiff seeks to hold Cumberland County liable for the
allegedly unconstitutional conduct of the medical defendants, which
include PrimeCare and several medical professionals employed by

7 See generally Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir.
2001) (“[T]o hold a supervisor liable because his policies or practices led
to an Eighth Amendment violation, the plaintiff must identify a specific
policy or practice that the supervisor failed to employ and show that:
(1) the existing policy or practice created an unreasonable risk of the
Eighth Amendment injury; (2) the supervisor was aware that the
unreasonable risk was created; (3) the supervisor was indifferent to that
risk; and (4) the injury resulted from the policy or practice.”). Here, the
complaint has failed to plausibly allege facts to satisfy any of the
foregoing elements.
PrimeCare. The plaintiff contends that the County has failed to develop

and implement policies, practices, and procedures to ensure that inmates
receive safe and proper prescriptions of medication or to ensure proper
fall prevention protocols. The plaintiff further contends that the County

had a policy, practice, or custom of dismissing inmates’ concerns
regarding their medical needs or medical conditions. Although not clearly
pleaded, the complaint appears to suggest that the County also failed to

adequately train and supervise medical personnel and correctional
officers with respect to the provision of proper medical care to inmates.
“On its face, § 1983 makes liable ‘every person’ who deprives

another of civil rights under color of state law.” Burns v. Reid, 500 U.S.
478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In
Monell v. Department of Social Services, 436 U.S. 658 (1978), the

Supreme Court of the United States established that municipalities and
other local governmental units are included among those “persons”
subject to liability under § 1983. Id. at 690. Cumberland County is such

a municipality subject to liability as a “person” under § 1983. See id. at
694; Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013).
But “[u]nder Monell, a municipality cannot be subjected to liability
solely because injuries were inflicted by its agents or employees.” Jiminez

v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007).
Rather, a municipality can be liable under § 1983 only if the conduct
alleged to be unconstitutional either “implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers” or is “visited pursuant to
governmental ‘custom’ even though such a custom has not received

formal approval through the body’s official decision-making channels.”
Monell, 436 U.S. at 690–91. “[I]t is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsible under § 1983.”
Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy,

attribute it to the [municipality or corporation] itself, and show a causal
link between execution of the policy and the injury suffered.” Losch v.
Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). Alternatively,

“[a] municipality may be held liable under § 1983 for failure to train,
monitor, or supervise, [but] only where the plaintiff can ‘identify a failure
to provide specific training that has a causal nexus with their injuries
and must demonstrate that the absence of that specific training can

reasonably be said to reflect a deliberate indifference to whether the
alleged constitutional deprivations occurred.’” Watson v. Philadelphia
Hous. Auth., 629 F. Supp. 2d 481, 487 (E.D. Pa. 2009) (quoting Gilles v.

Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005)); see also Nawuoh v. Venice
Ashby Cmty. Ctr., 802 F. Supp. 2d 633, 645 (E.D. Pa. 2011) (“While
municipal liability under § 1983 originally hinged on affirmative policies,

or customs, modern jurisprudence has extended it to a [municipality]’s
failure to train, supervise and discipline its officers.”).
Here, the plaintiff relies not on the affirmative implementation or

execution of a policy, but the County’s alleged failure to adopt adequate
policies with respect to the prescription of medications to inmates or fall
prevention protocols with respect to inmates who are prescribed

medications. The plaintiff further alleges, in conclusory fashion, that the
County has a policy of disregarding inmates’ medical concerns. Beyond
these vague assertions that existing policies were inadequate, see

Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (finding
vague assertions of policy deficiencies insufficient to impose liability
under Monell and § 1983), the plaintiff points to no prior incidents from
which we might reasonably infer that the County and its governing

officials had actual or constructive knowledge of the purported policy
deficiencies upon which the plaintiff’s § 1983 Monell claims are premised.
See Connick v. Thompson, 563 U.S. 51, 62 (2011) (“A pattern of similar

constitutional violations by untrained employees is ‘ordinarily necessary’
to demonstrate deliberate indifference for purposes of failure to train. . . .
Without notice that a course of training is deficient in a particular

respect, decisionmakers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.”); see
also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (“[A]

single incident of unconstitutional activity is not sufficient to impose
liability under Monell, unless proof of the incident includes proof that it
was caused by existing, unconstitutional municipal policy, which policy

can be attributed to a municipal policymaker.”); Brown v. City of
Pittsburgh, 86 F.3d 263, 292–93 (3d Cir. 2009) (recognizing that, where
no explicit policy is identified, “‘more proof than the single incident will

be necessary’ to establish a causal connection between the incident and
some municipal policy”).
The complaint appears to further suggest that the County should
be held liable because Babner’s injury could have been prevented if it has

simply implemented better policies. But policies are not deficient simply
because they are not the best. See Serafin v. City of Johnstown, 53 Fed.
App’x 211, 215 (3d Cir. 2002) (“The fact that the City’s policy was not the

most effective policy possible, however, does not, without more, create an
unreasonable risk to detainees’ safety or demonstrate the City’s
indifference to such a risk, and there is no ‘more’ here.”); see also Koreny

v. Smith, Civil Action No. 17-371, 2018 WL 1141513, at *16 (W.D. Pa.
Mar. 2, 2018) (“An assertion that a constitutional injury could have been
avoided with more or better training is insufficient.”).

Accordingly, the plaintiff’s § 1983 municipal liability claims against
Cumberland County will be dismissed for failure to state a claim upon
which relief can be granted, pursuant to Rule 12(c) of the Federal Rules

of Civil Procedure.
C. Leave to Amend
The Third Circuit has instructed that, if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be
inequitable or futile, Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004). Based on the sparse facts alleged in the complaint, we cannot say
that amendment would be futile. Therefore, the plaintiff’s claims against

the county defendants will be dismissed with leave to amend.
IV. CONCLUSION
For the foregoing reasons, the county defendants’ motion for
judgment on the pleadings will be granted, and the plaintiff’s § 1983

municipal and supervisory liability claims against Cumberland County,
Earl Reitz, and Rebekah Finkey will be dismissed without prejudice for

failure to state a claim upon which relief can be granted, pursuant to Rule
12(c) of the Federal Rules of Civil Procedure.

Dated: March 11, 2022 s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411426. Public record. Not legal advice.