The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEITH S. BROWN, : Civil No. 1:21-CV-01828
:
Plaintiff, :
:
v. :
:
SHANNON QUIGLEY, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is a motion to dismiss filed by Defendants Tony Iannuzzi
(“Iannuzzi”), Dr. Stanley Stanish (“Stanish”), and Wellpath Health Services, Inc.
(“Wellpath”). (Doc. 24.) For the reasons discussed below, the court will deny
Defendants’ motion to dismiss with respect to the Eighth Amendment claims
against Defendants Iannuzzi and Stanish and will otherwise grant the motion. The
court will dismiss the remaining claims without prejudice.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Keith S. Brown (“Plaintiff”) is a self-represented individual who is
presently housed at the State Correctional Institution Frackville (“SCI-
Frackville”). He filed an amended complaint on December 16, 2021, Doc. 21,
which is the operative pleading in this case. It names thirteen defendants: (1) John
Wetzel in his official capacity as the Secretary of the Pennsylvania Department of
Corrections (“Wetzel”); (2) Shannon Quigley in her official capacity as the
Director of the Bureau of Health Care Services of the Pennsylvania Department of
Corrections (“Quigley”); (3) Kathy Brittain in her official capacity as the
Superintendent of the SCI Frackville (“Brittain”); (4) Tony Iannuzzi in his
individual capacity; (5) S. Kephart sued in the official capacity as the Deputy
Superintendent of SCI Frackville (“Kephart”); (6) Karen Holly in her individual
capacity and in her official capacity as the hospital administrator of SCI Frackville
(“Holly”); (7) Dr. Stanley Stanish in his individual capacity; (8) Russel Miller in
his individual capacity (“Miller”); (9) Megan Delpais in her individual capacity
(“Delpais”); (10) Correctional Officer Hale in his individual capacity (“Hale”);
(11) Nurse Erin in her individual capacity (“Nurse Erin”); (12) Nurse Amber in her
individual capacity (“Nurse Amber”); and (13) Wellpath Health Services, Inc.
(Doc. 21.)
The amended complaints brings six claims: (1) a Fourteenth Amendment
claim against Defendants Wetzel, Quigley, Brittain, Kephart, Holly, Stanish,
Miller, Delpais, Hale, Nurse Erin, and Nurse Amber; (2) an Eighth Amendment
denial of medical care claim against Defendants Wetzel, Brittain, Kephart, Holly,
and Stanish; (3) an Eighth Amendment denial of medical care claim against
Defendants Brittain, Iannuzzi, Kephart, Holly, Stanish, Miller, Delpais, Hale,
Nurse Amber, and Nurse Erin; (4) an Eighth Amendment denial of medical care
claim against Defendant Wellpath; (5) a medical negligence claim against
Defendants Brittain, Iannuzzi, Kepart, Holly, Stanish, Miller, Delpais, Hale, Nurse
Amber, and Nurse Erin; and (6) a claim of intention infliction of emotional distress
against Defendants Brittain, Iannuzzi, Kepart, Holly, Stanish, Miller, Delpais,
Hale, Nurse Amber, and Nurse Erin. (Doc. 21, ¶¶ 132–142.)
On December 16, 2021, Defendants Iannuzzi, Stanley, and Wellpath,
represented by Attorney Caitlin Goodrich, filed a motion to dismiss under Fed. R.
Civ. P. 12(b)(6) along with a brief in support of that motion. (Docs. 24, 25.) The
court ordered Plaintiff to respond to this motion on June 30, 2022. (Doc. 84.)1
Plaintiff filed what the court will construe as a motion to dismiss Defendants’
motion to dismiss, Doc. 92, and a brief in support, Doc. 93, on August 11, 2022.
Defendants did not reply to Plaintiff’s briefing. The December 16, 2021 motion to
dismiss, Doc. 24, is now ripe to be addressed by the court.
JURISDICTION
The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §
1331, which allows a district court to exercise subject matter jurisdiction in civil
cases arising under the Constitution, laws, or treaties of the United States. Venue
1 The state of the remining claims in this case has been rendered confusing because of
Defendants’ multiple motions to dismiss. See Doc. 84. Currently, all claims against Defendants
Wetzel Quigley, Brittain, and Kephart have been dismissed. (Doc. 90.) The claims against
Defendant Holly have survived a Rule 12(b)(6) challenge. (Id.) Defendant Miller has not yet
been served with the amended complaint. (Doc. 85.) The court has granted leave to Defendants
Hale, Delpais, Nurse Amber, and Nurse Erin to renew their Rule 12(b)(6) challenges. (Doc. 84.)
However, no motion has been filed as of the date of this order.
is proper in this district because the alleged acts and omissions giving rise to the
claims occurred at FCI-Frackville, located in Schuylkill County, Pennsylvania,
which is located within this district. See 28 U.S.C. § 118(b).
STANDARD OF REVIEW
In order “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other
grounds by Mack v. Yost, 968 F.3d 311 (3d. Cir. 2020).
When ruling on a motion to dismiss under Rule 12(b)(6), the court must
“accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Phillips v. County of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts
contained in the complaint, the court may also consider “exhibits attached to the
complaint, matters of public record, as well as undisputedly authentic documents”
attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon
these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993)).
The pleadings of self-represented plaintiffs are to be liberally construed and
held to a less stringent standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193
(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be
granted leave to file a curative amended complaint even when a plaintiff does not
seek leave to amend, unless such an amendment would be inequitable or futile.
See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.
2014). A complaint that sets forth facts which affirmatively demonstrate that the
plaintiff has no right to recover is properly dismissed without leave to amend.
Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).
AMENDED COMPLAINT
Plaintiff’s amended complaint, Doc 21, sets forth the facts which govern the
consideration of the pending motion to dismiss. The twenty-seven page pleading
provides a detailed description of Plaintiff’s chronic medical complaints beginning
in 1996, when he was shot in his left leg. (Id., ¶¶ 18–19). Plaintiff alleges that the
bullet is lodged in his leg, and he subsequently had a metal plate and five screws
surgically installed in his ankle. (Id.) The amended complaint sets forth an
extended factual narrative describing various alleged failures by medical personnel
at FCI-Frackville between 2017 and 2021 to adequately treat the medical
complications stemming from this injury. (Id., ¶¶ 18–129). Thus, the gist of the
action consists of claims of medical neglect and deliberate indifference lodged
against multiple individual and institutional health care providers.
Plaintiff specifically alleges five claims involving Defendants Stanish,
Iannuzzi, and Wellpath: (1) an Eighth Amendment claim against Stanish and
Iannuzzi; (2) an Eighth Amendment claim against Wellpath; (3) a Fourteenth
Amendment claim against Stanish; (4) a claim of medical negligence against
Stanish and Iannuzzi; and (5) a claim of intentional infliction of emotional distress
against Stanish and Iannuzzi.
DISCUSSION
A. Eighth Amendment Claim of Deliberate Indifference Against Stanish
and Iannuzzi Will Not Be Dismissed.
Plaintiff raises an Eighth Amendment claim of deliberate indifference
against Defendants Stanish and Iannuzzi. (Doc. 21, ¶¶ 134–35.) Prison officials
violate the Eighth Amendment when they act with deliberate indifference to a
prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104–05
(1976). To sustain a constitutional claim under the Eighth Amendment for
inadequate medical treatment, a plaintiff must make (1) an objective showing that
his medical needs were serious, and (2) a subjective showing that the defendants
were deliberately indifferent to those medical needs. See Pearson v. Prison Health
Serv., 850 F.3d 526, 534 (3d Cir. 2017). A serious medical need is “one that has
been diagnosed by a physician as requiring treatment or is so obvious that a lay
person would easily recognize the necessity for a doctor’s attention.” Monmouth
Cty. Corr. Inst'l Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d Cir. 1987) (citation
omitted). A prison official is deliberately indifferent when he “knows of and
disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511
U.S. 825, 837 (1994).
Plaintiff’s allegations in his complaint meet the objective showing that his
medical needs were serious. Plaintiff had been under medical treatment for his left
leg injury since 1996. (Doc 21, ¶¶ 19–21.) In fact, Defendants Stanish and
Iannuzzi are medical professional who had prescribed some of his treatment.
(Doc. 21, ¶¶ 20–36, 39–40, 46–48, 50–52, 59.) Furthermore, Plaintiff alleges that
when a member of prison staff saw his leg, the staff member stated he had to report
the leg and wanted him to be seen by a medical processional immediately, i.e., it
was so obvious that a lay person easily recognized the need for medical attention.
(Id., ¶ 82.)
Plaintiff’s allegations also meet the subjective requirement by repeatedly
alleging that Defendants were aware that his medical need was serious. (Doc. 21,
¶¶ 25–26, 33, 49–50, 55.) He further repeatedly alleges that despite this
knowledge, Defendants disregarded his need for treatment. (Id.) Therefore,
Plaintiff has alleged sufficient facts to survive a motion to dismiss the Eighth
Amendment claim of deliberate indifference against Defendants Stanish and
Iannuzzi.
B. Eighth Amendment Claim Against Wellpath Will Be Dismissed
Without Prejudice.
Plaintiff also brings an Eighth Amendment claim against Defendant
Wellpath, which is a private corporation. (Doc. 21, ¶ 136.) A private corporation
contracted by a prison to provide health care for inmates cannot be held liable on a
respondeat superior theory; rather, it can only be held liable for constitutional
violations if it has a custom or policy exhibiting deliberate indifference to a
prisoner’s serious medical needs. Natale v. Camden County Correctional Facility,
318 F.3d 575, 583–84 (3d Cir. 2003). Accordingly, to state a viable § 1983 claim
against Defendant Wellpath, the amended complaint must set forth “facts to state a
claim that [it] had a policy, custom, or practice, and that the policy, custom, or
practice caused the constitutional violation at issue.” See Sims v. Wexford Health
Sources, 635 F. App’x 16, 20 (3d Cir. 2015) (quoting Natale, 318 F.3d at 583).
Plaintiff alleges liability based on respondeat superior, Doc. 21, ¶¶ 117–18,
but this claim cannot proceed under Natale. Plaintiff did not set forth any
allegation regarding policy, custom, or practice as required by Sims. Plaintiff’s
complaint references policy, but only when referring to why his request for an MRI
and additional specialists were denied because of their budget and their policy.
(Doc. 21, ¶ 89.) However, this allegation is general and fails to challenge any
specific policy of the private corporation that caused the alleged constitutional
violation. Therefore, the claim against Defendant Wellpath will be dismissed
without prejudice.
C. Fourteenth Amendment Claim Against Stanish Will Be Dismissed
Without Prejudice.
Plaintiff brings a Fourteenth Amendment claim against Defendant Stanish
alleging that he was treated differently from other similarly situated prisoners.
(Doc. 21, ¶ 136.) The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall “deny to any person within its jurisdiction the equal
protection of the laws,” which is essentially a direction that “all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985). Thus, to state a claim under the Equal Protection Clause, a
plaintiff must allege that (1) he is a member of a protected class, and (2) he was
treated differently from similarly situated inmates. See id.
Here, Plaintiff failed to allege that he is a member of a protected class.
Skipping that required element entirely, he repeatedly references one other inmate
who was not asked to perform his own wound cleaning and dressing as Plaintiff
was instructed. (Doc. 21, ¶¶ 56, 78.) The court assumes that this is Plaintiff’s
assertion about how he was treated differently from similarly situated inmates.
However, given the absence of any assertion about being a member of a protected
class, Plaintiff’s Fourteenth Amendment claim will be dismissed without prejudice.
D. Medical Negligence Claim Against Stanish and Iannuzzi Will Be
Dismissed Without Prejudice.
Plaintiff brings a state law claim of medical negligence against Defendants
Stanish and Iannuzzi. (Doc. 21, ¶ 137.) In Pennsylvania, medical negligence, or
medical malpractice, is defined as “the unwarranted departure from generally
accepted standards of medical practice resulting in injury to a patient, including all
liability-producing conduct arising from the rendition of professional medical
services.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa.
2003) (citing Hodgson v. Bigelow, 7 A.2d 338 (Pa. 1939)). To establish a cause of
action for negligence under Pennsylvania law, a plaintiff must prove the following
elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3)
a causal connection between the conduct and the resulting injury; and (4) actual
damages. See Northwestern Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d
Cir. 2005) (citing In re TMI, 67 F.3d 1103, 1117 (3d Cir. 1995)).
Pennsylvania Rule of Civil Procedure 1042.3 requires a plaintiff alleging
professional negligence to file a certificate of merit within 60 days of filing the
complaint. Pa. R. Civ. P. 1042.3. The certificate must include one of the
following: a written attestation by “an appropriate licensed professional” that there
is a “reasonable probability that the care, skill or knowledge exercised or
exhibited” by the defendant “fell outside acceptable professional standards,” and
that this was the cause of the plaintiff's injuries; a statement that the claim against
the defendant is based only on the professional negligence of those for whom the
defendant is responsible; or a statement that expert testimony is unnecessary for
the plaintiff's claim to proceed. Pa. R. Civ. P. 1042.3(a)(1)-(3). Failure to file a
certificate of merit is fatal to a plaintiff’s claim. Pa. R. Civ. P. 1042.7.
The requirements of Rule 1042.3 are substantive in nature and, therefore,
federal courts in Pennsylvania must apply these prerequisites of Pennsylvania law
when assessing the merits of a medical malpractice claim. See Liggon-Redding v.
Estate of Sugarman, 659 F.3d 258, 262-65 (3d Cir. 2011); Iwanejko v. Cohen &
Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007). This requirement applies
with equal force to counseled complaints and to pro se medical malpractice actions
brought under state law. See Hodge v. Dep’t of Justice, 372 F. App’x 264, 267 (3d
Cir. 2010) (affirming district court’s dismissal of medical negligence claim for
failure to file a certificate of merit).
The Pennsylvania Supreme Court has noted that “[b]ecause the negligence
of a physician encompasses matters not within the ordinary knowledge and
experience of laypersons[,] a medical malpractice plaintiff must present expert
testimony to establish the applicable standard of care, the deviation from that
standard, causation and the extent of the injury.” Toogood, 824 A.2d at 1145. A
very narrow exception applies “where the matter is so simple or the lack of skill or
care is so obvious as to be within the range of experience and comprehension of
even non-professional persons.” Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1
(Pa. 1997).
Here, Plaintiff has failed to supply the required certificate of merit within the
60-day time period provided by rule. Therefore, this claim will be dismissed
without prejudice. See Stoud v. Abington Mem. Hosp., 546 Supp. 2d 238, 250
(E.D. Pa. 2008) (“[T]he proper procedure in federal practice is to file with the
Court a motion pursuant to Fed. R. Civ. P. 12(b) to dismiss the professional
negligence claim without prejudice” based on this missing certificate of merit.).
E. Intentional Infliction of Emotional Distress Claim Against Stanish
and Iannuzzi Will Be Dismissed Without Prejudice.
Plaintiff brings a claim of intentional infliction of emotional distress against
Defendants Stanish and Iannuzzi. (Doc. 21, ¶¶ 139–42.) A claim for intentional
infliction of emotional distress under Pennsylvania law requires four elements: “(1)
the conduct must be extreme and outrageous; (2) the conduct must be intentional or
reckless; (3) it must cause emotional distress; and (4) the distress must be severe.”
Bruffett v. Warner Commc’ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982).
Defendants contend that this claim fails because Plaintiff has not pleaded
extreme and outrageous conduct. (Doc. 25, pp. 23–27.) However, Plaintiff’s
amended complaint fails to properly allege the third and fourth elements of a claim
for intentional infliction of emotional distress. Plaintiff repeatedly alleged intense
pain and damages to his leg, ankle, and foot, but he failed to allege psychological
symptoms. (Doc. 21.) While he generally asserts that he suffered distress, anxiety,
and fear, Doc. 21, ¶ 140, he failed to allege facts in support of this assertion. In a
single paragraph in reference to Defendant Stanish, he asserts that “as a result . . .
plaintiff suffered intense pain for several days and emotional distress, because of
the Defendants intentional deprivation.” (Id., ¶ 40.) However, he fails to assert the
nature of the emotional distress. Therefore, he has failed to allege facts to support
whether the emotional distress was severe. The court will dismiss the claim of
intentional infliction of emotional distress without prejudice.
CONCLUSION
For the foregoing reasons, the motion to dismiss filed by Defendants
Stanish, Iannuzzi, and Wellpath will be granted in part and denied in part.
Plaintiff’s Eighth Amendment claim against Defendants Stanish and Iannuzzi will
not be dismissed. The remaining claims will be dismissed without prejudice.
Before dismissing a civil rights complaint, a district court “must permit a
curative amendment unless such an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 245. Plaintiff will be granted leave to file an amended
complaint, but he must clearly label the document as his second amended
complaint and use the docket number assigned to this case. Further he is cautioned
that any amended pleading filed with the court replaces all prior pleadings filed
with the court. Therefore, Plaintiff must replead all remaining claims against
Defendants, including those that were not dismissed by the court.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: September 19, 2022