# Brown v. Glover

> District Court, M.D. Pennsylvania · June 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10413271

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 14, 2023
- **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/10413271

## How later opinions describe it (automated extraction)

- noting that 30-days’ notice requirement in PA. R. CIV. P. 1042.7 is substantive and must be followed before dismissal of a medical malpractice action
- holding that Pennsylvania’s certificate of merit requirement is substantive state law that must be applied by a federal court sitting in diversity

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TODD ALAN BROWN, No. 4:22-CV-01154

Plaintiff, (Chief Judge Brann)

v.

WARDEN GLOVER, et al.,

Defendants.

MEMORANDUM OPINION

JUNE 14, 2023
Plaintiff Todd Alan Brown is currently incarcerated in a state correctional
institution. Prior to being transferred into the state prison system, he was detained
at Huntingdon County Prison in Huntingdon, Pennsylvania. Brown filed the
instant pro se Section 19831 action concerning alleged lack of medical care at the
prison, asserting constitutional violations against various prison officials and
medical staff. Brown’s initial complaint was dismissed but he was granted leave to
amend. His amended complaint was partially dismissed. The two remaining
medical defendants now move to dismiss the amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional
wrongs committed by state officials. The statute is not a source of substantive rights; it serves
as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.
I. STANDARD OF REVIEW
In deciding a Rule 12(b)(6) motion to dismiss, courts should not inquire

“whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.”2 The court must accept as true the factual
allegations in the complaint and draw all reasonable inferences from them in the
light most favorable to the plaintiff.3 In addition to the facts alleged on the face of

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.4
When the sufficiency of a complaint is challenged, the court must conduct a
three-step inquiry.5 At step one, the court must “tak[e] note of the elements [the]
plaintiff must plead to state a claim.”6 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal
conclusions, which “are not entitled to the assumption of truth” and may be
disregarded.7 Finally, the court must review the presumed-truthful allegations “and

2 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.
1996).
3 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).
4 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).
5 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and
quotation marks omitted) (footnote omitted).
6 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).
7 Id. (quoting Iqbal, 556 U.S. at 679).
then determine whether they plausibly give rise to an entitlement to relief.”8
Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”9
Because Brown proceeds pro se, his pleadings are to be liberally construed
and his amended complaint, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers[.]”10 This is

particularly true when the pro se litigant, like Brown, is incarcerated.11
II. DISCUSSION
In his original complaint, Brown alleged that he was involved in an incident

with police officers and suffered serious injuries from their use of excessive force,
including a hematoma, facial contusion, broken left pinky finger, and concussion.12
He was hospitalized, and after his discharge on December 21, 2021, he was taken
to Huntingdon County Prison and remained there until February 3, 2022.13 Brown

maintained that his medical care at the prison fell below constitutional standards.14
The Court screened Brown’s initial complaint as required by 28 U.S.C. §
1915A.15 The Court first determined that Brown had failed to allege personal

8 Id. (quoting Iqbal, 556 U.S. at 679).
9 Iqbal, 556 U.S. at 681.
10 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
11 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).
12 Doc. 1 at 5.
13 Id. at 4; Doc. 11 at 1.
14 See generally Doc. 1.
15 See generally Docs. 9, 10.
involvement for most of the named defendants.16 As to the two healthcare
defendants, the Court found that Brown’s allegations failed to state deliberate

indifference to serious medical needs.17 Thus, the Court dismissed Brown’s
complaint but granted leave to amend.18
Brown then filed an amended complaint, again raising claims under the
Fourteenth Amendment19 for alleged deliberate indifference to serious medical

needs.20 The Court screened the amended complaint pursuant to Section 1915A.21
The Court again dismissed the Section 1983 claims against the non-medical
defendants, as Brown had failed to establish their personal involvement in the

purported constitutional violation.22 The claims against the medical defendants—
“nurse Susan” and an unidentified doctor—were permitted to proceed.23
Following identification of and service on the two healthcare defendants—

nurse Susan Watkins and Dr. Mark Minor—both Defendants filed motions to
dismiss the amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). Brown opposed Watkins’ motion24 but did not respond to or oppose Dr.

16 See Doc. 9 at 6-7.
17 See id. at 7-10.
18 Id. at 10-11.
19 Because Brown was a pretrial detainee at the time of the events, his claims implicate the
Fourteenth Amendment, not the Eighth. See Jacobs v. Cumberland County, 8 F.4th 187, 193-
94 (3d Cir. 2021); Thomas v. Cumberland County, 749 F.3d 217, 223 n.4 (3d Cir. 2014).
20 See generally Doc. 11.
21 See generally Docs. 16, 17.
22 See Doc. 16 at 5-6.
23 Id. at 6-9.
24 See generally Doc. 26.
Minor’s motion in any way. The time for briefing has passed, so the Rule 12(b)(6)
motions are ripe for disposition.

A. Alleged Fourteenth Amendment Violation
As previously noted, Brown was a pretrial detainee at the time of the
relevant events, so his claims implicate the Due Process Clause of the Fourteenth

Amendment rather than the Eighth Amendment’s cruel-and-unusual-punishment
provision. However, it does not appear that the United States Court of Appeals for
the Third Circuit has established or adhered to a different standard with respect to
Fourteenth Amendment pretrial detainee medical indifference claims versus those

raised by incarcerated individuals under the Eighth Amendment.25 Accordingly,
the Court will apply existing Eighth Amendment jurisprudence to Brown’s
Fourteenth Amendment medical indifference claims.

In the context of prison medical care, the Eighth Amendment “requires
prison officials to provide basic medical treatment to those whom it has

25 This remains so even following the Supreme Court of the United States’ decision in Kingsley
v. Hendrickson, 576 U.S. 389 (2015), which established a different standard for pretrial
detainee excessive force claims. See Moore v. Luffey, 757 F. App’x 335, 340 & n.2 (3d Cir.
2019) (nonprecedential) (rejecting plaintiff’s argument to apply Kingsley’s holding to
Fourteenth Amendment medical care claim and instead analyzing under Eighth Amendment
jurisprudence); see also Parker v. Butler County, 832 F. App’x 777, 780 & n.1 (3d Cir. 2020)
(nonprecedential) (applying Eighth Amendment standard to pretrial detainee medical care
claim while acknowledging Fourteenth Amendment is source of right); Miller v. Steele-Smith,
713 F. App’x 74, 76 n.1, 78 (3d Cir. 2017) (nonprecedential) (same); Goode v. Giorla, 643 F.
App’x 127, 129 & n.3 (3d Cir. 2016) (nonprecedential) (same); Edwards v. Northampton
County, 663 F. App’x 132, 136-37 (3d Cir. 2016) (nonprecedential) (citing Natale v. Camden
Cnty Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003)).
incarcerated.”26 To state an Eighth Amendment deliberate indifference claim
regarding inadequate medical care, a plaintiff must plausibly plead “(i) a serious

medical need, and (ii) acts or omissions by prison officials that indicate deliberate
indifference to that need.”27 A serious medical need is “one that has been
diagnosed by a physician as requiring treatment or one that is so obvious that a lay
person would easily recognize the necessity for a doctor’s attention.”28

Deliberate indifference by prison officials may be evidenced by intentional
refusal to provide care known to be medically necessary, delayed provision of
medical treatment for non-medical reasons, denial of prescribed medical treatment,

or denial of reasonable requests for treatment resulting in suffering or risk of
injury.29 Deliberate indifference to serious medical needs is an exacting standard,
requiring a showing of “unnecessary and wanton infliction of pain.”30 Claims
sounding in mere medical negligence will not suffice.31

In his amended complaint, Brown alleges that it took “the jail” 33 days to
send him to a follow-up otolaryngologist appointment that should have been
scheduled within three days after Brown’s release from the hospital.32 He claims

26 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
27 Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
28 Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
29 See Durmer v. O’Carroll, 991 F.2d 64, 68 & n.11 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d
at 346).
30 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted).
31 Rouse, 182 F.3d at 197.
32 See Doc. 11 at 2, 3.
that, upon admission to the prison, he underwent an initial health screening by Dr.
Minor and Watkins and he showed them his broken left pinky finger.33 According

to Brown, Dr. Minor stated that his otolaryngologist appointment would be
scheduled “soon.”34 Brown asserts that it was Watkins’ responsibility to schedule
his follow-up appointments for his injuries and it took her “44 days” to schedule an

appointment for his finger, resulting in serious pain, the need for a more
complicated surgery, and loss of function in his finger.35 Brown additionally
alleges that he “fell unconscious” while at the prison but was never seen by
medical or taken to an outside hospital despite having recently suffered head

trauma.36 However, he does not aver that either Watkins or Dr. Minor was made
aware of this loss-of-consciousness episode.37
In her motion to dismiss, Watkins primarily argues that the medical records
tell a different story than Brown’s rendition of events.38 Watkins provides prison

medical records and grievance paperwork and relies on these documents to rebut
Brown’s allegations of deliberate indifference.39 The problem with this approach
is that Brown did not attach these documents to his amended complaint or rely on

them in his pleadings, so the Court cannot consider them at the Rule 12(b)(6)

33 Id. at 2.
34 Id.
35 Id. at 2, 3-4, 5.
36 Id. at 4, 5.
37 See id.
38 See Doc. 22 at 13-15.
39 See id. (citing medical records contained in Doc. 21-1).
stage.40 Watkins’ arguments and supporting evidence are better reserved for
summary judgment. Accordingly, the Court must deny Watkin’s Rule 12(b)(6)

motion, primarily for the same reasons stated in its October 12, 2022
Memorandum.41
Dr. Minor’s motion to dismiss, on the other hand, will be granted. First,

Brown has not responded to or opposed Dr. Minor’s motion to dismiss in any way.
Thus, under Local Rule of Court 7.6, Dr. Minor’s motion is deemed unopposed.42
Second, Dr. Minor is correct that Brown’s allegations against him do not
implicate deliberate indifference to serious medical needs. Brown’s averments

indicate only that Dr. Minor physically examined Brown upon his entrance to the
prison and told him a follow-up appointment would be scheduled soon. Brown
does not allege that Dr. Minor refused to provide care, denied requests for medical

treatment, willfully delayed treatment, or denied treatment for non-medical
reasons. Brown, in fact, alleges that it was Watkins’ responsibility to schedule his
follow-up appointments and she failed to take the appropriate action. Brown’s
allegations against Dr. Minor simply do not reflect “unnecessary and wanton

infliction of pain”; at most they implicate negligence for failing to ensure that
Brown was promptly scheduled for his follow-up appointments.

40 See Mayer, 605 F.3d at 230 (citing Pension Benefit Guar. Corp., 998 F.2d at 1196).
41 See Doc. 16 at 8-9.
42 See LOCAL RULE OF COURT 7.6.
Finally, to the extent that Brown is alleging a state-law claim of medical
negligence against Dr. Minor, that claim must also be dismissed. Brown did not

file a certificate of merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3
within 60 days of filing his complaint.43 Dr. Minor provided notice to Brown in
January 2023 that—if Brown was asserting medical malpractice—he must comply

with Pennsylvania Rule of Civil Procedure 1042.3 within 30 days of Dr. Minor’s
notice.44 To date, no certificate of merit has been produced by Brown, nor has he
asserted that a certificate of merit is not required for his claims.45 Accordingly, if
Brown is attempting to assert a claim of medical negligence against Dr. Minor in

his amended complaint, that claim must be dismissed.46
B. Leave to Amend
Generally, “plaintiffs who file complaints subject to dismissal under Rule

12(b)(6) should receive leave to amend unless amendment would be inequitable or
futile.”47 The claims against Dr. Minor will be dismissed as follows. The Section
1983 medical indifference claim will be dismissed with prejudice for failure to

43 See PA. R. CIV. P. 1042.3(a); Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d
Cir. 2011) (holding that Pennsylvania’s certificate of merit requirement is substantive state law
that must be applied by a federal court sitting in diversity).
44 See Doc. 32.
45 See PA. R. CIV. P. 1042.3(a)(3).
46 See PA. R. CIV. P. 1042.7; see also Schmigel v. Uchal, 800 F.3d 113, 124-25 (3d Cir. 2015)
(noting that 30-days’ notice requirement in PA. R. CIV. P. 1042.7 is substantive and must be
followed before dismissal of a medical malpractice action).
47 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
cure deficiencies by previous amendments allowed.48 The medical negligence
claim will be dismissed without prejudice for failure to comply with Pennsylvania

Rule of Civil Procedure 1024.3 after appropriate notice.49
III. CONCLUSION
Based on the foregoing, the Court will grant Dr. Minor’s motion to dismiss

and will deny Watkins’ motion to dismiss. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

48 See Foman v. Davis, 371 U.S. 178, 182 (1962) (explaining that leave to amend may be denied
due to “repeated failure to cure deficiencies by amendments previously allowed”); Jones v.
Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019).
49 See Schmigel, 800 F.3d at 117 n.5 (noting that dismissal for failure to comply with Rule
1024.3—known as entry of “a judgment of non pros” under Pennsylvania law—constitutes a
dismissal without prejudice provided that the statute of limitations has not expired).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413271. Public record. Not legal advice.