The opinion
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARRYL C. BROWN,
: CIVIL ACTION NO. 1:19-CV-1941
Plaintiff, : (JUDGE MARIANI)
: (Magistrate Judge Schwab)
V. :
PA. DEPARTMENT OF CORRECTIONS, — :
et al., :
Defendants. :
Y ORDER
>V)
AND NOW, THIS + / DAY OF APRIL 2022, upon review of Magistrate Judge Susan
E. Schwab's February 28, 2022, Report and Recommendation (“R&R”) (Doc. 148), Plaintiff's
objections thereto (Doc. 149), and all other relevant documents, IT IS HEREBY ORDERED THAT:
1. Plaintiff's objections (Docs. 149) are SUSTAINED IN PART and DEEMED MOOT IN
PART:
a. Plaintiff objects to the recommendation in the R&R that Count Five of the Third
Amended Complaint (Doc. 114 at 27) should be dismissed.’ (Doc. 150 45.) Count
Five, “42 U.S.C. Section 1983 Violation of the 8TH Amendment: Corporate Liability
by Entity Healthcare Defendants, Correct Care Solutions (and/or Wellpath),”
includes the following allegations:
110. [T]the deficient DOC policy for treating HCV, a serious medical
need, and that official policy, custom or practice enacted or engaged
by CCS to direct compliance to the DOC policy at SCI Coal are
responsible for violating Plaintiff ‘s said Eighth Amendment rights.
112. Said official policies . . . of the DOC and the medical entities here
named in tandem deprived plaintiff of any treatment whatsoever for
his HCV status, F-2 and thus of his constitutional right to be
appropriately treated.
1 Plaintiff states that “he is not independently pursuing objections over dismissal of CCS at either
Count One... and Count Two.” (Doc. 149 75.)
118. [CCS]... had a duty to hire and staff appropriately the medical
personnel it provided to Mr. Brown’s care, to educate and train said
employees, contractors or agents, and to supervise them according
to said standards of practice, among other duties, and not to
implement faulty, life threatening policies.
119. [If CCS] is shown to have also been aware of these other
problems, among them, its duties to supervise and train employees
with regard to the treatment of infections as afflicted Plaintiff, the
selection and applications of appropriate antibiotics, the timely
universal care of Hepatitis C with DAADs, general and specific wound
care, the need to seek consultation with a wound or other expert, to
identify when emergency care is necessary, the post surgical care of
Plaintiffs wounds, the needs for psychological care with an
amputation, pain relief, the needs to then seek specialized consults
and the need to begin physical therapy, corporate liability may be
found to exist upon these grounds also, the said entities having done
nothing to implement the standard of care DAAD regimen.
(Doc. 114 at 27-29.) With his objections and supporting brief (Docs. 149, 150),
Plaintiff essentially argues that Count Five should go forward because discovery is
needed to ascertain CCS’s policies, customs, or practices regarding HCV care and
the care of Plaintiff's leg both before and after the amputation. (Doc. 149 J 19; Doc.
150 at 4-8.) In the circumstances of this case, the difficulty of acquiring concrete
information about relevant policies, customs, or practices cautions against dismissal
of CCS. For example, it is plausible that corporate liability pursuant to Monell v.
New York City Dep't of Social Services, 436 U.S. 658 (1978), and its progeny could
potentially be established if discovery were to show that CCS had some autonomy
regarding treatment of HCV under the applicable DOC policy or an ability to
influence a DOC policy that was inconsistent with a recognized standard of care.
By way of further example, in the context of liability for failure to train or supervise,
courts have recognized a three-part test to determine whether such a failure
amounts to the necessary showing of deliberate indifference to constitutional rights:
in order for a municipality's failure to train or supervise to amount to
deliberate indifference, it must be shown that (1) municipal
policymakers know that employees will confront a particular situation;
(2) the situation involves a difficult choice or a history of employees
mishandling; and (3) the wrong choice by an employee will frequently
cause deprivation of constitutional rights.
Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999). As set out in the
R&R, to allege a viable Eighth Amendment medical claim, a plaintiff “must allege
facts from which it can reasonably be inferred that the defendant acted with
deliberate indifference to a serious medical need.” (Doc. 148 at 13 (citing Estelle v.
Gamble, 429 U.S. 97, 103 (1976)).) Though Plaintiff identifies many bases upon
which CCS liability could be found, allegations regarding training and supervision
related to the treatment of Plaintiff's leg infection illustrates the plausibility of
establishing corporate liability. Applying the first Carter factor, there is no doubt that
CCS knew that its employees would confront situations where an inmate developed
a serious infection. Second, common experience indicates that infections can be
medically handled in more than one way--the difficulty in the choice of
treatment/management is a subject for discovery as is whether there is a history of
CCS employees mishandling infections. Third, infections which are untreated or not
properly treated can cause “serious medical needs” which, coupled with deliberate
indifference, supports an Eighth Amendment medical claim. Estelle, 429 U.S. at
103. With at least two plausible bases for CCS liability, the Court will not dismiss
CCS from this action and will allow discovery to proceed on Plaintiff's claims
regarding the alleged policies, practices, or customs which may support corporate
liability in this case. Therefore, Plaintiffs objection to the dismissal of Count Five is
SUSTAINED.
b. With this determination, Plaintiff's objection to the dismissal of Count Ten (Doc. 149
1 5; Doc. 150 at 1-2) is MOOT given that the R&R’s recommendation to dismiss
Count Ten is based on the recommendation that all federal claims against CCS be
dismissed (see Doc. 148 at 33) and, because all federal claims against CCS will not
be dismissed, Count Ten will not be dismissed.
c. Plaintiff also objects to the R&R’s conclusion that allowing leave to amend would be
futile and asserts that it would not be if discovery would support his claim for
corporate liability. (Doc. 150 at 8.) This objection is also MOOT because this case
goes forward as to CCS and Plaintiff will have the opportunity to develop his
corporate liability claim through discovery.
2. Because the Court sustains Plaintiffs objection regarding Count Five, the R&R is
ADOPTED IN PART and NOT ADOPTED IN PART:
a. The R&R is NOT ADOPTED as to the recommendations that Count Five and
Count Ten be dismissed;
b. The R&R is ADOPTED in all other respects.
3. The pending motions to dismiss (Docs. 117, 118) are GRANTED IN PART and DENIED IN
PART.
4. The motions to dismiss (Docs. 117, 118) are GRANTED insofar as Plaintiff's Third
Amended Complaint (Doc. 114) is DISMISSED WITH PREJUDICE as to the following
claims:
2 As noted in the R&R, the Counts in the Third Amended Complaint “are not linearly numbered,
and... the Court refers to the Counts as Brown has em numbered.” (Doc. 138 at 4n.3.) The Third
a. Count One as asserted against Defendants CCS, Davis, and Boguslaw;
b. Count Two as asserted against Defendant CCS;
c. Count Six as asserted against Defendants CCS and McGinley;?
d. Count Seven as asserted against Defendant McGinley;
e. Count Eight as asserted against Defendant McGinley.
5. The motions to dismiss (Docs. 117, 118) are DENIED in all other respects.
6. As aresult of the foregoing determinations, only the following claims go forward:
a. Count One as asserted against Defendants Moclock, Monsalud, Nurse “Big Red,”
Jane Doe 1, John Doe 5, and Sgt. Shikes
b. Count Two as asserted against Defendants Moclock, Monsalud, Davis, Boguslaw,
Nurse “Big Red,” Jane Doe 1, John Doe 5, Sgt. Shikes, Wetzel, Wenerowitz,
Wenhold, and Noel;
c. Count Five as pled;
d. Count Six as asserted against Defendant Moclock;
e. Count Seven as asserted against Defendants John Doe 1, John Doe 2, and John
Doe 3;
f. Count Eight as asserted against Defendants John Doe 1, John Doe 2, and John
Doe 3;
g. Count Ten as pled.
7. This matter is REMANDED to Magistrate Judge Schwab for further consideration.
Fr Ud hid7
Robert D.-Mariani
United States District Judge
Amended Complaint identifies seven counts: Count One, Count Two, Count Five, Count Six, Count Seven,
Count Eight, and Count Ten. (Doc. 114 at 10-41.)
3 Count Six is asserted against “certain of the Defendants.” (Doc. 114 at 31.) Because Defendants
CCS, Moclock, and McGinely are named in the body of the count, the R&R construes the claim to be
asserted against these Defendants. (Doc. 148 at 26.) Plaintiff does not object to the R&R’s recommended
disposition of Count Six.