The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTWAN L. RICHARDSON, : Civil No. 1:22-CV-00029
:
Plaintiff, :
:
v. :
:
BRIAN S. CLARK, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court are Defendants’ motions to dismiss the second amended
complaint. (Docs. 38, 39.) Also pending before the court are Plaintiff’s motion for
stay, Doc. 57, and motion to compel, Doc. 62. Plaintiff Antwan Richardson
(“Plaintiff”) is an inmate currently housed at the State Correctional Institution in
Houtzdale, Pennsylvania, (“SCI- Houtzdale”) and is self-represented in this 42
U.S.C. § 1983 action. In late 2019 and early 2020, Plaintiff suffered symptoms
that were originally misdiagnosed as anxiety and later revealed to be symptoms of
a pulmonary embolism. While the court recognizes that the misdiagnosis was
unfortunate and Plaintiff was, in fact, suffering from a life-threatening condition,
no actions on the part of the Defendants rise to the level of a constitutional
violation. As such, Defendants’ motions to dismiss will be granted. Plaintiff’s
motions for stay and to compel will be denied.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff initiated this action in January of 2022. (Doc. 1.) The initial
complaint named thirteen defendants: (1) Brian Clark (“Clark”), Warden; (2)
William Young (“Young”), Medical Director; (3) Doug Macut (“Macut”), Medical
Director; (4) Kayla Zeiders-Heichel (“Zeiders-Heichel”), nurse; (5) Addonna
Thomas (“Thomas”), nurse; (6) Tia Drabich (“Drabich”), nurse; (7) Michael Pries
(“Pries”), Commissioner; (8) PrimeCare Medical, Inc. (“PrimeCare”); (9) Mark
Neidigh, Correctional Officer Captain; (10) Taylor Glenn (“Glenn”), Correctional
Officer; (11) John Doe 1, Correctional Officer; (12) John Doe 2, Correctional
Officer; and (13) Dauphin County, Pennsylvania, supervisor. (Doc. 1.) In
February of 2022, Plaintiff filed an amended complaint, which corrected the names
of the John Doe defendants to Darrell Horcher (“Horcher”) and Andrew Burkins
(“Burkins”) and changed the name of Defendant Mark Neidigh to Captain Ted
Zimmerman (“Zimmerman”). (Doc. 19.)
Twelve of the named defendants filed motions to dismiss the amended
complaint. (Docs. 25, 27). In response, Plaintiff filed a second amended
complaint on May 13, 2022, naming the same thirteen defendants and adding
Dauphin County Prison. (Doc. 36.) The pending motions to dismiss the amended
complaint were denied as moot, and the same twelve defendants filed subsequent
motions to dismiss the second amended complaint. (Docs. 37, 38, 39.) The
motions to dismiss the second amended complaint are currently before the court.
The twelve active defendants are divided into two groups: (1) the “Medical
Defendants” including PrimeCare Medical, Inc., Young, Macut, Zeiders-Heichel,
Thomas, and Drabich; and (2) the “Dauphin County Defendants” including
Dauphin County Prison, Clark, Pries, Zimmerman, Glenn and Burkins. (Docs. 38,
39.) The waiver of service sent to Defendant Horcher was returned as unable to
forward, and he has not appeared in this action.1 (Doc. 35.)
Plaintiff filed a brief in opposition to the motion to dismiss filed by the
Dauphin County Defendants. (Doc. 55.) The Dauphin County Defendants filed a
reply, Doc. 56, which were followed by sur-replies from both Plaintiff and
Dauphin County Defendants, Docs. 59, 61. In response to the Medical
Defendants’ motion to dismiss, Plaintiff filed a motion to stay . (Doc. 57.)
Plaintiff has also filed a motion to compel, which is pending before this court.
(Doc. 62.)
1 In this memorandum, the court finds that Plaintiff failed to properly raise any Eighth
Amendment, Fourteenth Amendment, negligence, or intentional infliction of emotional distress
claims against the twelve Defendants who have appeared in this action. Therefore, even though
Defendant Horcher has not appeared in this action, the court will also dismiss the claims raised
against him. See 28 U.S.C. §1915(e)(2)(B)(ii) (“the court shall dismiss the case at any time if the
court determines that . . . the action or appeal . . . fails to state a claim on which relief may be
granted.”).
JURISDICTION AND VENUE
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
is proper in this district because the alleged acts and omissions giving rise to the
claims occurred at Dauphin County Prison, which is located within this district.
See 28 U.S.C. § 118(b).
MOTION TO DISMISS STANDARD
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); see also Phillips, 515 F.3d at 245. 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).
DISCUSSION
A. Facts Alleged in the Second Amended Complaint.
In the second amended complaint, Plaintiff alleges that on December 3,
2019, he filled out a medical request form stating he was having pains in both of
his sides and difficulty breathing. (Doc. 36, p. 3.)2 He alleges that on December 4,
2019, he informed non-defendant nurse Katelin Wright that he was having severe
pains in both his sides making it difficult to breath. (Id.) Nurse Wright stated that
she would put him in to see the doctor. (Id.) On December 5, 2019, Plaintiff was
seen and examined by Defendant Young, who stated that he did not know where
Plaintiff’s pain and difficulty breathing were coming from, and he should try to lie
down and relax. (Id.) Plaintiff alleges that he continued to complain to staff and
nurses that his pains and difficulty breathing were getting worse day after day.
(Id., p. 4.)
2 For ease of reference, the court utilizes the page numbers from the CM/ECF header.
On December 11, 2019, he was examined by Defendant Macut, who told
him that he did not know where his pains and difficulty breathing were coming
from and to just lie down and relax. (Id.)
On December 15, 2019, Plaintiff told Defendants Glenn and Thomas that he
had a medical emergency and was having trouble breathing. (Id.) Defendant
Glenn threw a medical request slip at Plaintiff through the gate and told Plaintiff to
go to his “fucking cell.” (Id.) Defendant Thomas stated he was doing a pill call
and could not help Plaintiff. (Id.) Plaintiff alleges that he was taken to
confinement for his medical complaint and neither Defendants Glenn nor Thomas
provided Plaintiff any medical assistance for his complaint. (Id.) Plaintiff alleges
that he filled out a medical request stating he was still having pains and difficulty
breathing and his symptoms were getting worse. (Id., p. 5.)
Plaintiff alleges that on December 18, 2019, Defendant Zeiders-Heichler
examined Plaintiff and stated she did not know where the pains and difficulty
breathing were coming from, and he should just lie down and try to relax. (Id.)
Plaintiff alleges that on December 20, 2019 he was seen by Defendant
Young, who again stated he did not know the cause of the pains and difficulty
breathing. (Id.) He alleges that Defendant Young told him to just try to lie down
and relax and prescribed him more pain medication. (Id.)
Plaintiff alleges that on December 25, 2019, he wrote a medical request
stating that his left leg was completely swollen, and he was given muscle rub and
more medication. (Id., p. 6.)
He further alleges that on December 28, 2019, he filled out a medical request
form stating he was coughing up blood and having chest pains. (Id.) He spoke
with Defendant Zeiders-Heichler and told her that he was coughing up blood and
could not sleep all night because “every time his eyes closed his body
automatically reflected into painful spasms and he felt like he was about to choke
and die.” (Id.) She told him that she could not notify the doctor and told him to lie
down and relax. (Id.)
Plaintiff alleges that on January 1, 2020, he filled out a medical request form
stating that he was still coughing up blood and having chest pains. (Id.)
Plaintiff alleges that on January 6, 2020, he filled out a medical request form
stating his chest pain and difficulty breathing were getting worse and that he was
getting light-headed while standing. (Id.)
Plaintiff alleges that on January 8, 2020, he filled out a medical request form
stating that his chest pains and difficulty breathing were getting worse, and he was
still getting light-headed and seeing black spots when standing. (Id., p. 7.)
He alleges that his medical request forms filed on December 18, 2019,
January, 1, 2020, January 6, 2020, and January 8, 2020 received no response. (Id.)
Plaintiff alleges that on January 10, 2020, at around 8:00 a.m. he started to
feel sharper squeezing pains in his chest and fainted while attempting to walk to
the cell door. (Id.) He alleges that his cellmate then got non-defendant C.O. Myer
and Defendant Zeiders-Heichler, and he told Defendant Zeiders-Heichler about his
symptoms. (Id.) Defendant Zeiders-Heichler told him that he was probably
having anxiety. (Id.) Plaintiff alleges that he told her he did not have anxiety
issues. (Id.) He alleges that Defendant Zeiders-Heichler told him to just lie down
and relax. (Id.)
At 9:00 p.m. on January 10, 2020, Plaintiff told non-defendant Nurse Barnett
what happened earlier that day, and that he was still having chest pains. (Id.)
Plaintiff alleges that Nurse Barnett took him to get an EKG, which showed he was
in “severe cardiac arrest.” (Id.) Defendant Drabich called the provider who told
her to send Plaintiff to the hospital. (Id., pp. 7–8.) Defendant Drabich called
Defendant Zimmerman and told him that she needed to send Plaintiff to the
hospital. (Id., p. 8.) Plaintiff alleges that Defendant Zimmerman told Defendant
Drabich to wait twenty minutes until after the shift changed before she called the
ambulance. (Id.) He alleges that Defendant Drabich hung up the phone and
complained to the other nurses about having to wait twenty minutes before calling
an ambulance where Plaintiff was clearly in severe distress. (Id.) Plaintiff alleges
that after twenty minutes, Defendant Zimmerman called back and told her to call
the ambulance. (Id.)
Once at the hospital, Plaintiff was given a CAT scan and told he was going
through cardiac arrest due to several large blood clots that formed in both lungs, a
massive saddle pulmonary embolism with core pulmonary in acute respiratory
failure with hypoxia. (Id.) Plaintiff further alleges that when hospital staff were
planning to move Plaintiff into the intensive care unit (“ICU”), the nurse was
stopped by two correctional officers, non-defendant CO Darry Orcher and
Defendant Burkins, who told her that she would have to wait twenty minutes after
their supervisors changed shifts because they just called them and told them what
room they are in and did not want to call back and tell them a different room
number until after shift change. (Id., p. 9.) Plaintiff alleges that this resulted in a
“heated argument.” (Id.)
Plaintiff alleges that several doctors told him that the pulmonary embolism
saddle is something that formed over a long period of time and became life
threatening, and that since it became so large that he would need lifetime medical
treatment. (Id.) He alleges that if he had been treated earlier, he would not need
lifetime medical treatment. (Id.)
Plaintiff alleges that he wrote a grievance to Defendant Clark concerning the
“this issue,” following the December 15, 2019 encounter with Defendants Glenn
and Thomas, and then appealed the denial of his grievance. (Id., p. 4.) Both
Defendant Clark and Pries “refused to intervene and correct his staff[’s] deliberate
indifference to Plaintiff’s medical needs.” (Id., pp. 4–5.) He alleges that
Defendants Clark and Pries claimed that his allegations could not be verified. (Id.,
p. 5.) Plaintiff asserts that it could all be verified by the cameras in the front of E
block control booth and named witnesses. (Id.)
Plaintiff alleges that on January 26, 2020 he filed a grievance concerning the
medical neglect, and it went unanswered. (Id., p. 10.)
Plaintiff alleges that all Defendants refused to provide him with medical
care, were deliberately indifferent, and were negligent, causing Plaintiff to go
through unnecessary prolonged pain and emotional distress and resulting in a
lifetime of medical treatment. (Id., p. 9.)
Plaintiff’s complaint states that it raises eight claims, but some are
duplicative. (Docs. 36, pp. 10–13.) Essentially, he raises an Eighth Amendment
deliberate indifference claim for failing to provide treatment for his medical
condition, a Fourteenth Amendment due process claim for denying his grievances,
a negligence claim, and an intentional infliction of emotional distress claim. (Id.)
B. Plaintiff’s Motion to Stay Will Be Denied.
On May 31, 2022, Medical Defendants filed their notice of intent to file a
motion to dismiss all claims of professional negligence for failure to file a
certificate of merit pursuant to PA.R.C.P. 1042.3. (Doc. 42.) They then proceeded
to file their brief in support of their motion to dismiss including the argument that
Plaintiff’s medical negligence claims should be dismissed for failing to seek the
proper certificate of merit under Pennsylvania law. (Doc. 44, p. 29–31.)
In response, on August 5, 20223, Plaintiff filed a motion for stay stating that
he had submitted a request for appointment to the Medical Justice Alliance for a
cardiac doctor to read and evaluate his case and he would need time to gather the
Certificate of Merit. (Doc. 57.) However, under Pennsylvania law, Plaintiff was
required to have the Certificate of Merit within sixty days of filing the complaint.
Pa.R.C.P. 1042.3. Here, Plaintiff’s motion for stay is well outside sixty days from
filing the second amended complaint on May 13, 2022. It is also outside thirteen
days from the notice by Medical Defendants of their intention to seek dismissal
based on the lack of the Certificate of Merit as allotted by Pa.R.C.P. 1042.3(d) to
seek an extension of time. Therefore, the court finds that Plaintiff’s motion for
stay is untimely, and it will be denied. The court will consider the lack of the
Certificate of Merit when addressing the medical negligence claim raised in the
second amended complaint.
3 This is the date the document was received and filed by the court. Plaintiff did not date the
document, and the post-mark date on the envelope is August 3, 2022. (Doc. 57.)
C. All Claims Against Dauphin County Prison, Dauphin County, and
PrimeCare Will Be Dismissed.
To state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold
requirements. He must allege: 1) that the alleged misconduct was committed by a
person acting under color of state law; and 2) that as a result, he was deprived of
rights, privileges, or immunities secured by the Constitution or laws of the United
States. West v. Atkins, 487 U.S. 42, 48 (1988). It is well-settled that neither a state
nor its agencies, are considered a “person” as that term is defined under § 1983
and, therefore, are not subject to a § 1983 suit. Hafer v. Melo, 502 U.S. 21, 25–27
(1991). Similarly, neither a prison nor a department within a prison is a person
subject to suit under § 1983. Fischer v. Cahill, 474, F.2d 991, 992 (3d Cir. 1973).
The Dauphin County Prison is not a person within the meaning of 42 U.S.C. §
1983. Thus, it is entitled to dismissal with prejudice.
It is also well established that “[a] defendant in a civil rights action must
have personal involvement in the alleged wrongs to be liable, and cannot be held
responsible for a constitutional violation which he or she neither participated in nor
approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations and
quotations omitted). The Supreme Court has held that, while municipal bodies
may not be sued solely for violations perpetrated by its employees or agents, “it 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.” Monell v. Department of Social Services of City of New York, 436 U.S.
658, 694 (1978). Here, Plaintiff has failed to allege that any policy or custom
caused his injury. (Doc. 36.) Therefore, all claims against Dauphin County will be
dismissed without prejudice.
Likewise, 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 PrimeCare, the 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). The policy, custom, or practice of PrimeCare was not
addressed anywhere in the complaint. Therefore, the company lacks personal
involvement and there are no allegations consistent with the requirements in
Natale. As such, all claims against PrimeCare will be dismissed without prejudice.
Here, the court notes that there appears to be some confusion on the service
and appearance of Defendants Dauphin County Prison and Dauphin County.
Plaintiff has listed “Dauphin County, Supervisor” and Dauphin County Prison, as
Defendants in this action. (Doc. 36.) Defense counsel for the Dauphin County
Defendants states he represents Dauphin County Prison in the motion to dismiss.
(Doc. 39.) However, only “Dauphin County, Supervisor” was served a waiver of
service form in this action, and the waiver was not returned. (Doc. 7, pp. 21–22.)
Additionally, in the initial notice of appearance defense counsel lists Dauphin
County as a client, not Dauphin County Prison. (Doc. 23.) Regardless of the
confusion between the two entities being properly served or properly appearing in
this action, the court finds it appropriate to dismiss the claims raised against both
as Plaintiff has failed to state a claim for which relief can be granted. In the event
that either Dauphin County or Dauphin County Prison has not been properly
served or failed to appear in this action, the court has authority to dismiss such
claims under 28 U.S.C. §1915(e)(2)(B)(ii): “the court shall dismiss the case at any
time if the court determines that . . . the action or appeal . . . fails to state a claim on
which relief may be granted.”
D. The Eighth Amendment Claim Will Be Dismissed.
Plaintiff raises an Eighth Amendment claim against the remaining
Defendants for deliberate indifference. (Doc. 36.) 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 or she “knows of and disregards
an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
However, “[p]rison medical authorities are given considerable latitude in the
diagnosis and treatment of medical problems of inmates and courts will ‘disavow
any attempt to second guess the propriety or adequacy of a particular course of
treatment . . . which remains a question of sound professional judgment.’” Byrd v.
Shannon, No. 1:09-CV-1551, 2010 WL 5889519, at *4 (M.D. Pa. Nov. 24, 2010)
(quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir.1979)). Mere disagreement over proper treatment does not state a claim upon
which relief can be granted. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990);
Monmouth Cty. Corr. Inst'l Inmates, 834 F.2d at 346 (“Courts, determining what
constitutes deliberate indifference, have consistently held that mere allegations of
malpractice do not raise issues of constitutional import. . . Nor does mere
disagreement as to the proper medical treatment support a claim of an eighth
amendment violation.”).
Here, Plaintiff has failed to meet the second prong of a deliberate
indifference claim regarding Defendants’ actions prior to January 10, 2020. In
order to establish the second prong, Plaintiff must allege that the prison official
knew of and disregarded “an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837. In his second amended complaint, Plaintiff repeatedly states that
Medical Defendants did not know the cause of his symptoms. (Doc. 36, pp. 3–5.)
Therefore, he has failed to establish that any of the Defendants knew that he was
suffering from a serious medical need prior to January 10, 2020. In fact, the
alleged facts support the conclusion that Defendants believed he was suffering
from anxiety by repeatedly telling him the lie down and relax. (Id.)
According to the alleged facts, starting on January 10, 2010 there was
subjective knowledge on the part of Defendants regarding a serious medical need
as his EKG showed he was in cardiac arrest. (Doc. 36, p. 7.) However, the facts
alleged fail to demonstrate any deliberate indifference on the part of any
Defendants after the EKG results were obtained. When Plaintiff sought care, it
was provided. (Doc. 36, pp. 7–9.)
The court understands Plaintiffs’ exasperation at the actions of Dauphin
County Defendants in delaying the call for the ambulance and delaying his transfer
to the ICU. But his complaint fails to allege that these short delays themselves
resulted in any additional or different injury. Instead, he alleges it was the
pulmonary embolism going undiagnosed for a “long period of time” that resulted
in the need for lifetime treatment. (Doc. 36, p. 9.) Additionally, short delays in
treatment generally do not rise to the level of deliberate indifference. See
Rodriguez v. Thomas, No. 1:CV-12-2090, 2015 WL 1470719, at *9 (M.D.Pa. Mar.
31, 2015) (“short delays unaccompanied by arbitrary or unduly burdensome
bureaucratic procedures” do not rise to the level of deliberate indifference). The
court finds that ensuring that appropriate staff is present at the jail and at the
hospital is not “arbitrary” or “unduly burdensome” in a correctional institution
context. Therefore, Plaintiff’s Eighth Amendment claims of deliberate
indifference will be dismissed against all Defendants without prejudice.
E. The Fourteenth Amendment Due Process Claim Will Be Dismissed.
Plaintiff raises Fourteenth Amendment due process claims based on the
handling of his grievances from December of 2019 through January of 2020.
(Doc. 36.) Plaintiff fails to allege that any of the Medical Defendants were
involved in the grievance process at the prison. (Doc. 36.) Therefore, he has failed
to allege the personal involvement necessary for a § 1983 claim against them. As
such, all Fourteenth Amendment claims against the remaining Medical Defendants
shall be dismissed without prejudice.
As to the Dauphin County Defendants, the due process claims will also be
dismissed. The Fourteenth Amendment provides, in pertinent part, that no State
shall “deprive any person of life, liberty, or property, without due process of
law[.]” See U.S. Const. amend. XIV. With respect to a procedural due process
claim, the court observes that there is no constitutional right requiring prison
officials to investigate an inmate’s grievances. In order to state a Fourteenth
Amendment due process claim, a plaintiff must allege that a liberty interest is at
stake:
Procedural due process rights are [only] triggered by deprivation of a
legally cognizable liberty interest. For a prisoner, such a deprivation
occurs when the prison “imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Sandin
v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.E.2d 418 (1995).
In determining whether a protected liberty interest exists, the court must
consider: (1) the duration of the disciplinary confinement; and (2)
whether the conditions of confinement were significantly more
restrictive than those imposed upon other inmates in solitary
confinement. See id. at 468, 115 S.Ct. 2293; Shoats v. Horn, 213 F.3d
140, 144 (3d Cir. 2000).
Huertas v. Sec'y of Pa. Dep't of Corr., 533 F. App'x 64, 66 (3d Cir. 2013). The
failure to investigate or respond to a grievance does not rise to the level of a liberty
interest. Massaquoi v. McConaughey, No. 3:17-CV-938, 2020 WL 1908495, at
*17 (M.D. Pa. Jan. 24, 2020) (citing Mann v. Adams, 855 F.D. 639, 640 (9th Cir.
1995)). Accordingly, because Plaintiff has not identified a cognizable liberty
interest, the court concludes that his Fourteenth Amendment procedural due
process claims fail as a matter of law. As such, these claims will be dismissed with
prejudice.
F. The Negligence Claims Will Be Dismissed.
Plaintiff alleges negligence on the part of both Medical Defendants and
Dauphin County Defendants. (Doc. 36.)
1. Medical Defendants
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 file 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.).
2. Dauphin County Defendants
As set forth above, to establish a general 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., 430 F.3d at 139. Here, Plaintiff has alleged no
causal connection between the conduct of Dauphin County Defendants and
Plaintiff’s injuries. When Plaintiff requested a sick/medical request form from
Dauphin County Defendants, it was provided. (Doc. 36, p. 4.) While Plaintiff is
offended by the manner in which it was provided, the fact remains that it was
provided. When Dauphin County Defendants were made aware of Plaintiff’s
serious medical need, he was provided treatment. (Id., p. 7–9.) While there was a
short delay in calling an ambulance and transferring Plaintiff to the ICU, there is
no allegation that these short delays caused Plaintiff’s injuries. Therefore, the
negligence claims against Dauphin County Defendants will be dismissed without
prejudice.
G. The Intentional Infliction of Emotional Distress Claim Will Be
Dismissed.
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). Here, Plaintiff’s alleged facts demonstrate that he was
misdiagnosed with anxiety while actually suffering from a pulmonary embolism.
(Doc. 36.) This does not rise to the level of extreme or outrageous conduct. While
Plaintiff alleges he was not always treated with a sympathetic tone when seeking
treatment, no conduct he alleges rises to the level of extreme or outrageous.
Therefore, the intention infliction of emotional distress claim will be dismissed
without prejudice.
H. Plaintiff’s Motion to Compel Will Be Denied.
Plaintiff filed a motion to compel in September of 2022 seeking the
production of medical evidence in order to submit the evidence to a medical expert
to obtain a certificate of merit. (Doc. 62.) As discussed above, Plaintiff’s attempts
to obtain a certificate of merit were commenced too late. Therefore, this motion
will be denied.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to stay will be denied as
untimely. Defendants’ motions to dismiss will be granted. Plaintiff’s Eighth
Amendment claims, negligence claims, and intentional infliction of emotional
distress claims will be dismissed without prejudice. Plaintiff’s Fourteenth
Amendment claims against the Medical Defendants will be dismissed without
prejudice. His Fourteen Amendment claims against the Dauphin County
Defendants will be dismissed with prejudice. Plaintiff’s motion to compel will be
denied.
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 third amended complaint
and use the docket number assigned to this case. Should Plaintiff fail to timely file
an amended complaint within thirty days, the case will be closed.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: February 28, 2022