Wooley v. Wellpath

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TAMMY WOOLEY, ) CIVIL ACTION NO. 4:21-CV-996

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

WELLPATH, et al., )

Defendants )

MEMORANDUM OPINION

Defendants’ Motion to Dismiss (Doc. 10)

I. INTRODUCTION

Former state inmate Tammy Wooley alleges that Dr. John Shafik provided

such inadequate care that it violated both the Eighth Amendment and state

professional negligence law. The defendants now seek to dismiss the Eighth

Amendment claim. Because Ms. Wooley has, at most, pleaded a professional

negligence action, I will grant Defendants’ Motion to Dismiss the Eighth

Amendment claim. I will also decline to exercise supplemental jurisdiction over

Plaintiff’s professional negligence claim.

II. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff initiated this action on June 3, 2021 by filing a Complaint (Doc. 1).

The Complaint lists two defendants, Wellpath d/b/a Correct Care Solutions, LLC

and John Shafik D.O. (collectively the “Defendants”). (Id.).

At the motion to dismiss stage, I must take all facts pleaded as true. Mayer v.

Belichick, 605 F.3d 223, 229 (3d Cir. 2010). At all relevant times to the Complaint,

Tammy Wooley (Ms. Wooley or “Plaintiff”) was incarcerated at State Correctional

Institution at Muncy (“SCI Muncy”). (Doc. 1, ¶ 8). On April 13, 2020 Plaintiff

presented to Angelo Anzalone, MD complaining of pain caused by an abscess on

her back/right shoulder. (Id. at ¶¶ 9;11). Dr. Anzalone noted the abscess, scheduled

her for an incision and drainage procedure, and started her on antibiotics. (Id. at ¶

10). On April 20, 2020, Dr. Anzalone performed an incision and drainage procedure

on her right posterior shoulder abscess. (Id. at ¶ 11).

The abscess failed to heal properly, so on May 1, 2020, Dr. Anzalone

performed another incision and drainage of her right posterior shoulder abscess. (Id.

at ¶ 13). Following the second procedure however, the cyst remained in Plaintiff’s

shoulder, causing her debilitating pain and limiting her range of motion. (Id. at ¶ 16).

However, the wound looked visibly closed, and healed. (Id.). According to Plaintiff,

incision and drainage procedures do not remove the cyst wall, so the cyst can reoccur

and become infected unless it is surgically incised. (Id. at ¶ 17).

On May 22, 2020, Plaintiff returned to sick call, complaining of pain in her

right shoulder and arm. (Id. at ¶ 18). She also reported that she had limited mobility

in her shoulder. (Id.). In response, Nurse Isaias Varas ordered an x-ray and

prescribed her an oral steroid. (Id. at ¶ 19). Plaintiff never received her steroid. (Id.

at ¶ 20).

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On June 22, 2020, Plaintiff again reported to sick call for right shoulder pain

and saw Nurse Viorica Velott. Plaintiff reported her pain as an 8/10 and that she

could not move her right arm. (Id. at ¶¶ 22-23). Nurse Velott reviewed Plaintiff’s

May 22, 2020 x-ray, expressed concern about her pain and its duration, and thought

that Plaintiff should consult with an orthopedic specialist. (Id. at ¶ 24). Nurse Velott

noted that she would discuss Plaintiff’s condition with Dr. Shafik. (Id. at ¶ 25). Nurse

Velott’s diagnosis was “right shoulder pain, rule out frozen shoulder.” (Id. at ¶ 23).

Two days following this visit, on June 24, 2020, Nurse Velott consulted with

Dr. Shafik on Plaintiff’s condition “and noted that a physical therapy consultation

request would be placed.” (Id. at ¶ 26). However, Nurse Velott or Dr. Shafik never

ordered an orthopedic consultation, despite her notes that she would rule out frozen

shoulder. (Id. at ¶ 27). Plaintiff waited one month to see a physical therapist. (Id. at

¶ 37).

On July 2, 2020, Ms. Wooley saw Nurse Jamie Ficks about her right shoulder

pain, and reported to Nurse Ficks that she could not sleep more than hour a night

and could not maintain her personal hygiene because of the pain. (Id. at ¶¶ 31-32).

Nurse Ficks provided Plaintiff with pain medication, a muscle relaxant, and medical

unemployment. (Id. at ¶ 34).

On July 22, 2020, Plaintiff saw Dr. Shafik, who told Plaintiff she “likely had

adhesive capsulitis, which is commonly known as a frozen shoulder.” (Id. at ¶ 35).

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Dr. Shafik thought the frozen shoulder occurred coincidentally with her right

shoulder abscess. (Id. at ¶ 36). He ordered physical therapy for Plaintiff and ordered

blood work. (Id.).

On July 24, 2020, Plaintiff saw physical therapist Charlotte Dudek. (Id. at ¶

37). Dr. Dudek examined her, gave her exercises to do, and recommended Plaintiff

have an MRI done. (Id. at ¶ 38).

On July 29, 2020, Plaintiff had an ultrasound done, which showed that her

right shoulder cyst remained. (Id. at ¶ 35). Plaintiff contends that this point, staff

should have referred her to a general surgeon to have the cyst removed. (Id. at ¶ 42).

On July 31, 2020, Dr. Dudek examined Plaintiff, and noted that Plaintiff

“appears to have developed right shoulder adhesive capsulitis.” (Id. at ¶ 44). On

August 7, 2020, Dr. Dudek told Plaintiff not to perform more exercises until she saw

a general surgeon. (Id. at ¶ 45).

On August 18, 2020 Plaintiff saw Nurse Velott again and complained of pain

in her shoulder. (Id. at ¶¶ 46-47). Nurse Velott told her that a general surgery consult

will be requested and Dr. Shafik will see Plaintiff soon. (Id.). On August 24, 2020,

Dr. Shafik examined Plaintiff and diagnosed her with cervical spondylitis, an age-

related arthritic or degenerative condition, right shoulder adhesive capsulitis,

shoulder arthritis, fluid collection in her posterior back, and mental health concerns.

(Id. at ¶ 48). Dr. Shafik wanted to order imaging and testing on Plaintiff’s cervical

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spine, but Plaintiff refused because her pain came from her cyst, not her neck. (Id.

at ¶ 50). Thus, Plaintiff declined further care from Dr. Shafik because she did not

trust him, and she was about to be released from prison. (Id. at ¶ 52). On September

2, 2020, she received an antibiotic for her cyst. (Id. at ¶ 53). She saw Dr. Shafik

again on September 8, 2020 but again, declined his care. (Id. at ¶ 54).

On September 14, 2020 she was released from prison, and starting on

September 30, 2020, saw outside providers. (Id. at ¶¶ 55-58). Despite further

treatment outside of prison, Plaintiff is unsure whether she will ever regain full range

of motion in her right arm. (Id. at ¶¶ 63-66).

Plaintiff’s Complaint contains two counts. The first is an Eighth Amendment

claim against John Shafik because he showed deliberate indifference to Plaintiff’s

medical needs. Plaintiff puts particular emphasis on two events to make her claim:

(1) when Dr. Shafik said he would place a physical therapy consultation, but the

consultation did not happen for another month; and (2) Dr. Shafik’s failure to consult

with a general surgeon for surgical excision of Plaintiff’s cyst. (Id. at ¶¶ 75-83).

Plaintiff alleges that Dr. Shafik knew about the cyst and its related complications

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since April 2020.1 (Id.). Plaintiff alleges that 42 U.S.C. § 1983 gives her a cause of

action and is seeking at least $75,000 in damages against Dr. Shafik. (Id. at ¶ 87).

The second count is a professional negligence claim against all defendants (Id.

at ¶¶ 88-94). For this count, Plaintiff seeks at least $75,000 in damages, as well as

other relief permitted by law. (Id. at ¶¶ 94).

On August 4, 2021, Defendants filed a Motion to Dismiss Plaintiff’s Eighth

Amendment claim. (Doc. 10). Defendants filed their Brief in Support the same day.

(Doc. 11).2 On August 23, 2021, Ms. Wooley filed a Brief in Opposition. (Doc. 12).

Defendants did not file a reply brief. This matter is now ripe for resolution.

III. THE MOTION TO DISMISS STANDARD

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the

court “must accept all factual allegations in the complaint as true, construe the

complaint in the light most favorable to the plaintiff, and ultimately determine

1 While Plaintiff alleges Dr. Shafik knew about Plaintiff’s condition starting in April

2020, the Complaint is silent on Dr. Shafik’s exact role in Plaintiff’s care until Nurse

Velott discussed Plaintiff’s care with Dr. Shafik on June 22, 2020.

2 Defendants’ Brief does not have page numbers so I will refer to the page numbering

superimposed on all electronic filings by the CM/ECF system.

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whether Plaintiff may be entitled to relief under any reasonable reading of the

complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In review of a

motion to dismiss, a court must “consider only the complaint, exhibits attached to

the complaint, matters of public record, as well as undisputedly authentic documents

if the [plaintiff’s] claims are based upon these documents.” Id. at 230.

“A pleading that offers labels and conclusions or a formulaic recitation of the

elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Rather, a complaint must recite factual allegations sufficient to raise the

plaintiff’s claimed right to relief beyond the level of mere speculation. Id. To

determine the sufficiency of a complaint under the pleading regime established by

the Supreme Court, the court must engage in a three-step analysis:

First, the court must take note of the elements a plaintiff must plead to

state a claim. Second, the court should identify allegations that, because

they are no more than conclusions, are not entitled to the assumption of

truth. Finally, where they are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they plausibly

give rise to an entitlement for relief.

Santiago v. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556

U.S. at 675, 679). “In other words, a complaint must do more than allege the

plaintiff’s entitlement to relief” and instead must “‘show’ such an entitlement with

its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

As the Court of Appeals has observed:

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The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, “stops short of the line

between possibility and plausibility of ‘entitlement of relief.’” Id.

(citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

IV. ANALYSIS

Here, I will discuss the standards for Eighth Amendment – inadequate medical

care claims, why Plaintiff’s Eighth Amendment claim fails, and then, why this Court

will not exercise supplemental jurisdiction over Plaintiff’s professional negligence

claim.

A. STANDARDS FOR EIGHTH AMENDMENT – MEDICAL CARE CLAIMS

The Eighth Amendment prohibits cruel and unusual punishment, and

consistent with that demand, it requires prison officials to “provide human

conditions of confinement, including adequate medical treatment. Hankey v.

Wexford Health Sources, 383 F. App’x 165, 168 (3d Cir. 2010) (citing Estelle v.

Gamble, 429 U.S. 97, 103-04 (1976)). To establish a violation of the constitutional

right to adequate medical care, an inmate must show (1) a serious medical need, and

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(2) acts or omissions by prison officials that indicate deliberate indifference to that

need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate indifference

to a serious medical need involves the “unnecessary and wanton infliction of

pain.” Estelle, 429 U.S. at 104. Such indifference may be evidenced by an intentional

refusal to provide care, delayed provision of medical treatment for non-medical

reasons, denial of prescribed medical treatment, denial of reasonable requests for

treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d

64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of

permanent injury,” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

However, the mere misdiagnosis of a condition or medical need, or negligent

treatment provided for a condition, is not actionable as an Eighth Amendment claim

because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at

106. “Indeed, prison authorities are accorded considerable latitude in the diagnosis

and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted).

Furthermore, in a prison medical context, deliberate indifference is generally not

found when some significant level of medical care has been offered to the inmate.

Thus, such complaints fail as Constitutional claims under the Eighth Amendment

since “the exercise by a doctor of his professional judgment is never deliberate

indifference. See, e.g. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d

Cir. 1990) (‘[A]s long as a physician exercises professional judgment his behavior

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will not violate a prisoner's constitutional rights.’)”. Gindraw v. Dendler, 967

F.Supp. 833, 836 (E.D. Pa. 1997). Bennett v. PrimeCare Med. Inc., No. 3:18-CV-

517, 2018 WL 6072126, at *4 (M.D. Pa. Sept. 14, 2018), report and

recommendation adopted, 2018 WL 6062306 (M.D. Pa. Nov. 20, 2018). A prison

official acts with deliberate indifference to an inmate’s serious medical need when

he “knows of and disregards an excessive risk to inmate health or safety; 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).

B. PLAINTIFF’S EIGHTH AMENDMENT CLAIM FAILS

Neither parties discuss whether Plaintiff had a serious medical need, so I only

focus on the second prong of an Eighth Amendment medical care claim: whether

Dr. Shafik acted or failed to act with deliberate indifference to Plaintiff’s medical

needs.

Defendants argue that Plaintiff received “significant treatment” and Dr.

Shafik “made reasonable and appropriate recommendations for conservative

treatment in the form of medication and physical therapy.” (Doc. 11, p. 13).

Defendants argue that Plaintiff merely disagrees with her course of treatment, which

is not actionable under the Eighth Amendment. (Id. at 10).

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Plaintiff counters that her care at SCI Muncy “failed to meet the objective

minimum standard of treatment required by the standard of care.” (Doc. 12, pp. 4-

5). Plaintiff argues that Defendants knew about Plaintiff’s condition and pain, but

failed to refer Plaintiff to specialists, who could remove the cyst in Plaintiff’s right

shoulder. (Id. at 8). Further, as Ms. Wooley argues, the mere fact that Defendants

provided care is not a conclusive defense to a finding of deliberate indifference. (Id.

at 9-10). However, I agree with Defendants; there is no Constitutional violation in

this case. I will discuss my reasoning in two parts: first a discussion of the events of

May and June 2020, and second, the events of July to September 2020.

May to June 2020. Following a May 1, 2020 incision and drainage procedure,

Plaintiff visited the health clinic daily so staff observe and care for her wound. (Id.

at ¶¶ 14-15). These daily visits ended on May 20, 2020. (Id.).

On May 22, 2020 Plaintiff returned to the clinic and saw Nurse Vargas. (Doc.

1, ¶¶ 18-20). Plaintiff complained of right shoulder pain, and in response, Nurse

Vargas ordered an x-ray and oral steroid. (Id.). Plaintiff never received the steroid

until she followed up on it on June 18, 2020. (Id.). Then, four days later, on June 22,

2020, Plaintiff saw Nurse Velott for shoulder pain. (Id. at ¶¶ 26-27). Nurse Velott

examined Plaintiff and told Plaintiff she will discuss her condition and a possible

orthopedic consult with Dr. Shafik. (Id.). Two days later, Nurse Velott spoke to Dr.

Shafik, and in treatment notes, they noted that a physical therapy consultation would

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be placed. (Id.). However, it took about one month before Plaintiff saw a physical

therapist on July 24, 2020. (Id. at ¶ 37).

Up this point, there is no cognizable Eighth Amendment violation. Plaintiff

puts great emphasis that she did not see a physical therapist for one month, despite

Dr. Shafik’s knowledge that she needed it. However, this delay is not a cognizable

Eighth Amendment violation. Plaintiff’s Complaint acknowledges that Dr. Shafik

and Nurse Velott either placed or intended to place, a physical therapy consult for

Plaintiff. Therefore, at most, Plaintiff alleges that Dr. Shafik failed to follow up on

a consult order. That omission might constitute a negligence claim, not an Eighth

Amendment claim. See Reed v. Williams, No. 18-cv-377, 2020 WL 6158304, at *22

(M.D. Pa. Oct. 21, 2020) (“As pled, Dr. Sobolewski prescribed physical therapy for

Reed. At most, Reed alleges that Dr. Sobolewski was negligent in not following up

with Medical or Commonwealth Defendants as to whether his physical therapy

orders were timely followed.”).

July to September 2020. On July 2, 2020, Plaintiff returns to the health clinic,

complaining of right shoulder pain and reduced range of motion. (Id. at ¶¶ 31-34).

On this visit, Plaintiff saw Nurse Ficks who prescribed her pain medication and a

muscle relaxant. (Id.). Nurse Ficks also placed Plaintiff on medical unemployment

for 30 days. (Id.). Plaintiff then saw physical therapist Charlotte Dudek on July 24,

2020, and on the same day, had an x-ray taken. (Id. at ¶¶37-40). The x-ray did not

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explain her symptoms. (Id.). On July 29, 2020, an ultrasound was done, and it

showed that Plaintiff’s cyst reappeared. (Id. at ¶¶ 41-42). At this point, Plaintiff

strenuously argues that medical staff should have consulted a general surgeon. (Id.

at ¶ 43); (Doc. 12, pp. 7-8). However, when Dr. Shafik saw Plaintiff on August 24,

2020, he recommended medical imaging and testing, not a general surgery consult.

(Id. at ¶¶ 48-49). Ms. Wooley refused his recommendation, lost trust in Dr. Shafik,

and declined further care from him. (Id. at ¶¶ 48; 51; 54). Plaintiff was subsequently

released from prison twenty days later on September 14, 2020. (Id. at ¶ 55).

Again, I fail to see how Dr. Shafik acted with deliberate indifference in this

time frame. Plaintiff emphasizes the fact that Dr. Shafik failed to consult with a

general surgeon as an act so far below the standard of care, that it violated the Eighth

Amendment. I disagree. Dr. Shafik believed the appropriate action was to conduct

more medical imaging and tests. Plaintiff believed that Dr. Shafik should have

ordered a consult to a general surgeon and that medical imaging to the cervical spine

was useless. This divergent belief shows that Plaintiff is really disagreeing with Dr.

Shafik over the type of treatment she received. That is not an actionable claim under

the Eighth Amendment. Gause v. Diguglielmo, 339 F. App’x 132, 136 (3d Cir. 2009)

(“mere disagreements between the prisoner and the treating physician over medical

treatment do not rise to the level of deliberate indifference.”); Boring v. Kozakiewicz,

833 F.2d 468, 473 (3d Cir. 1987).

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So, in sum, Plaintiff received care consistent with the Constitution during her

last few months at SCI Muncy. She received medications, medical imaging, and

physical therapy during the relevant time. And while Plaintiff suffered a month-long

delay in actually obtaining physical therapy and did not receive her preferred

treatment (a surgical consultation), those issues lie in negligence, not the Eighth

Amendment. As such, I will dismiss Court I of Plaintiff’s Complaint.

C. WHETHER THIS COURT WILL EXERCISE SUPPLEMENTAL JURISDICTION

OVER PLAINTIFF’S PROFESSIONAL NEGLIGENCE CLAIM

A federal court “may decline to exercise supplemental jurisdiction [over state

law claims] if the . . . district court has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c)(3). In deciding whether to decline supplemental

jurisdiction, a district court must factor in “the values of judicial economy,

convenience, fairness, and comity.” Carnegie Mellon Univ. v. Cohill, 484 U.S. 343,

350 (1988). These factors tip towards declining supplemental jurisdiction when “the

federal-law claims have dropped out of the lawsuit in its early stages and only state-

law claims remain.” Id. Considering this, I decline to exercise supplemental

jurisdiction over Plaintiff’s professional negligence claim.3 I note that the two-year

statute of limitations period for Pennsylvania negligence claims likely has not ended

3 I note that Plaintiff appears to have a cognizable professional negligence claim,

and she has appropriately submitted Certificates of Merit against all the Defendants.

(Docs. 3-4).

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because the first contact with the Defendants did not begin until April 13, 2020. See

42 Pa.C.S. § 5524(2) (negligence actions have a two-year statute of limitations). And

even if it has ended, the statute of limitations was tolled while this federal case was

pending, and for a period of thirty days after this case is dismissed. 28 U.S.C. §

1367(d); Hedges v. Musco, 204 F.3d 109, 123-24 (3d Cir. 2000).

Finally, I note that Plaintiff asserted an amount in controversy greater than

$75,000. If Plaintiff is seeking to invoke this Court’s diversity jurisdiction, I invite

Plaintiff to file a Motion for Reconsideration within fourteen days of the Court’s

order. L.R. 7.10.

IV. CONCLUSION

Plaintiff’s pleadings are sounded in negligence claims rather than

Constitutional claims. As such, Defendants’ Motion to Dismiss will be granted. An

appropriate Order will follow.

Date: March 7, 2022 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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