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 Antwan L.
Richardson’s (“Plaintiff”) third amended complaint. (Docs. 73, 77.) Also pending
before the court are Plaintiff’s motion for sanctions, Doc. 68, motion to appoint
forensic handwriting and computer analysis expert, Doc. 101, and motion to
appoint medical expert and/or counsel, Doc. 103. 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 severe health symptoms that were later revealed
to be from a pulmonary embolism. In the second amended complaint, Plaintiff
alleged that he was misdiagnosed as having anxiety and the court found that
although the misdiagnosis was unfortunate, it was not a constitutional violation.
(Doc. 64.) Now, Plaintiff’s third amended complaint does not allege a
misdiagnosis, but instead a refusal to treat his symptoms. Based on the allegations
in the third amended complaint, some of Plaintiff’s claims will survive the Rule
12(b)(6) challenges. As such, Defendants’ motions to dismiss will be granted in
part and denied in part. Plaintiff’s pending motions will be denied. Additionally,
the Medical Defendants included an alternative motion for summary judgment
with their motion to dismiss, Doc. 73, which the court will not consider at this
procedural posture of the case.
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 as a defendant. (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.) On February 28, 2023, this court granted Defendants’ motions
to dismiss the second amended complaint and granted Plaintiff an opportunity to
file a third amended complaint. (Docs. 64, 65.)
On March 8, 2023, the court received and docketed Plaintiff’s third amended
complaint. (Doc. 67.) This third amended complaint names the same thirteen
Defendants identified in the second amended complaint and does not name
Dauphin County Prison. (Id., pp. 3–6.)1
Defendants have filed motions to dismiss the third amended complaint.
(Docs. 73, 77.)2 The twelve active defendants are divided into two groups: (1) the
1 For ease of reference, the court utilizes the page numbers from the CM/ECF header.
2 The Medical Defendants’ motion to dismiss includes an alternative motion for summary
judgment. (Doc. 73.) The Third Circuit held in Renchenski v. Williams that, before converting a
motion to dismiss to a motion for summary judgment in a case brought by a pro se prisoner, a
court must provide the prisoner “with a paper copy of the conversion Order, as well as a copy of
Rule 56,” and a short summary explaining its importance that highlights the utility of a Rule
56(d) affidavit if the plaintiff needs to forestall resolution of the motion to obtain additional
discovery. 622 F.3d 315, 340 (3d. Cir. 2010). The court did not provide such notice in this
“Medical Defendants” including PrimeCare Medical, Inc., Young, Macut, Zeiders-
Heichel, Thomas, and Drabich; and (2) the “Dauphin County Defendants”
including Dauphin County, Clark, Pries, Zimmerman, Glenn, and Burkins. (Docs.
73, 77.) The waiver of service sent to Defendant Horcher was returned as unable
to forward. (Doc. 35.) However, Attorneys Murray J. Weed and Frank J Lavery,
Jr. have been filing motions on his behalf. (Docs. 56, 61, 117.)3 Despite these
filings, it does not appear that Defendant Horcher has made any motion to dismiss
the claims raised against him in the third amended complaint. (Docs. 77, 78.)
Despite the lack of motion, the court can consider the claims raised against him
under 28 U.S.C. 1915(e)(2)(B)(ii).
Plaintiff filed a brief in opposition to both groups of Defendants’ motions to
dismiss. (Doc. 99.) Dauphin County Defendants filed a reply. (Doc. 100.)
Plaintiff has also filed a motion to appoint a forensic handwriting and computer
analysis expert and two motions to appointment a medical expert and/or counsel.
(Docs. 101, 103, 113.)
The court will now address the pending motions as well as the claims raised
against Defendant Horcher.
action. Therefore, the court will not consider the motion for summary judgment or the evidence
presented in support of it.
3 Following resolution of the motions to dismiss, Defense Attorneys Lavery and Weed shall file a
status report clarifying whether or not either they represent Defendant Horcher.
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 Third Amended Complaint
In the third amended complaint, Plaintiff alleges that he was housed in the
Dauphin County Prison as a pretrial detainee. (Doc. 67, pp. 3, 7.) He 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. (Id., p. 8.) 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 breathe. (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
could not figure out why Plaintiff had pain and difficulty breathing, and that he
should try to lie down and rest.4 (Id.) It also appears that Plaintiff was prescribed
4 The court notes that Plaintiff’s second amended complaint alleged that medical providers
diagnosed Plaintiff as suffering from anxiety, and this misdiagnosis was the reason he was
instructed to lie down and rest. (Doc. 36.) Plaintiff has omitted any reference to an anxiety
diagnosis in the third amended complaint. (Doc. 67.)
pain medication at this time because he later alleges that the pain medications were
not sufficient. (Id.) Plaintiff alleges that his condition became worse, the pain
increased each day, he could not sleep at night, and he began to cough up blood.
(Id.) Plaintiff alleges that he continued to complain to staff and nurses, including
Defendant Zeiders-Heichel, and that his symptoms worsened from December 6,
2019 to December 12, 2019. (Id.)
On December 12, 2019, he was examined by Defendant Macut, who told
him to lie down and rest and that he could not understand why Plaintiff was
experiencing these symptoms. (Id.) Plaintiff alleges that he requested to go to the
hospital, which Defendant Macut refused, stating that “[y]ou have to be on your
death bed for Prime Care to send you.” (Id., pp. 8–9.)
On December 15, 2019, Plaintiff told Defendant Thomas in the “pill-line”
that he was having severe difficulty breathing, was feeling dizzy, had severe chest
pains, had extreme pain in both his sides, and was coughing up more blood. (Id.,
p. 9.) Plaintiff alleges that Defendant Thomas stated that “she was not going to
stop pill line, to attend to him,” and turned her back on Plaintiff while continuing
to pass out medications, “[c]ompletely refusing to provide Plaintiff with any kind
of medical treatment.” (Id.) Plaintiff alleges that he then limped to the control
booth and informed Defendant Glenn that he was having a medical emergency
with severe difficulty breathing, feeling extremely dizzy, chest pains, pain in both
of his sides, and coughing up more blood. (Id.) Plaintiff alleges that Defendant
Glenn became upset, and stated “I don’t have time for this shit, go to your fucking
cell or go the fucking hole.” (Id.) Plaintiff alleges that Defendant Glenn then took
him to confinement without providing any type of medical treatment.5 (Id.) He
further alleges that he struggled to breathe that night, was unable to sleep, and was
in agonizing pain due to Defendants Glenn and Thomas’ refusal to provide medical
treatment. (Id.)
Plaintiff alleges that on December 15, 2019, he submitted another medical
request form to obtain care. (Id., p. 10.)
Plaintiff alleges that on December 18, 2019, Defendant Zeiders-Heichler
examined Plaintiff and stated he should just lie down and try to relax. (Id.) He
also alleges that he requested to go the hospital, and Defendant Zeiders-Heichel
denied his request. (Id.)
Plaintiff alleges that on December 20, 2019 he was seen by Defendant
Young, and requested to go to the hospital. (Id.) Plaintiff alleges that Defendant
Young gave him the pain medication and the same orders as on December 5, 2019.
(Id.) He requested to go to the hospital, and Defendant Young refused. (Id.)
5 This is contradicted by past pleadings in which Plaintiff alleged that Defendant Glenn provided
him a medical request form. (Doc. 36, p. 4.)
Plaintiff alleges that on December 25, 2019, his left leg was completely
swollen, he could not put pressure on it, he could not stand on it, and he had to hop
around. (Id.)
He further alleges that on December 28, 2019, he filled out a medical request
form stating he was coughing up blood, having chest pains, and difficulty
breathing. (Id.) He spoke with Defendant Zeiders-Heichler, who stated that she
could not notify the doctor again, and that he should lie down and try to sleep.
(Id.) He also alleges that she stated “they were tired of having to respond to my
request.” (Id.)
Plaintiff alleges that on January 1, 2020, he filled out a medical request form
complaining of the same symptoms and Defendants Zeiders-Heichler and Young
and “numerous staff” responded that they were too busy and refused Plaintiff any
type of medical treatment. (Id., pp. 10–11.)
Plaintiff alleges that on January 6, 2020 and on January 8, 2020, he
submitted medical request forms stating that the symptoms were worse and
informed Defendant Zeiders-Heichler and “numerous staff, who all refused
Plaintiff any time of medical treatment.” (Id., p. 11.)
He alleges that his medical request forms filed on December 18, 2019,
December 28, 2019, January, 1, 2020, January 6, 2020, and January 8, 2020
received no response. (Id.) He alleges that Defendants Zeiders-Heichler, Young,
Macut, Thomas, and Drabich were the medical staff responsible for responding to
the medical requests and refused to do so. (Id.)
Plaintiff alleges that on January 10, 2020, at around 7:30 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 informed non-defendant C.O.
Myer and Defendant Zeiders-Heichler. (Id.) Defendant Zeiders-Heichler told him
that he was probably stressed out. (Id.) Plaintiff alleges that he told her he could
not breathe, could not stand, was having chest pain, and was coughing up blood.
(Id.) He alleges that Defendant Zeiders-Heichler told him to just lie down and
relax. (Id.) He alleges that he told her that he felt like he was dying, and she “left
with Plaintiff sitting on the floor against the wall, saying ‘it was nothing she could
do.’” (Id.)
At 9:00 p.m., Plaintiff told non-defendant Nurse Barnett what happened
earlier that day. (Id.) Plaintiff alleges that Nurse Barnett took him to get an EKG,
which showed he was in “severe cardiac arrest.” (Id.) Defendant Drabich6 called
the non-defendant physician Jen Mroz who told her to send Plaintiff to the
hospital. (Id., pp. 11–12.) Defendant Drabich then called Defendant Zimmerman
and told him Dr. Morz’s orders. (Id., p. 12.) Plaintiff alleges that Defendant
6 Plaintiff identifies her as Nurse Tia Trabich throughout this section of the third amended
complaint. (Doc. 67, pp. 11–12.) The court considers this to be a scrivener’s error and not the
naming of a new party.
Zimmerman told Defendant Drabich to wait thirty minutes before she called the
ambulance. (Id.) He alleges that Defendant Drabich told Defendant Zimmerman
of Plaintiff’s “dire condition” and Defendant Zimmerman told her not to call the
ambulance until he called back. (Id.) Plaintiff alleges that Defendant Drabich
complained to staff about being required to wait. (Id.) Plaintiff states that after
“exactly 37 minutes,” Defendant Zimmerman called back and told Defendant
Drabich to call the ambulance. (Id.)
Plaintiff alleges that upon arriving at the hospital, a CT scan was conducted.
(Id.) He was allegedly told that he was going through cardiac arrest due to several
blood clots in both his lungs, that he had a massive saddle pulmonary embolism,
and that he had respiratory failure. (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, Defendants Horcher and 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. 12.) The nurse told Defendants Horcher and Burkins that this was not
standard procedure and expressed concerns over Plaintiff’s rapidly deteriorating
conditions, and Defendants Horcher and Burkins refused to allow the transport.
(Id.)
Plaintiff alleges that several doctors told him that the saddle pulmonary
embolism 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., pp. 12–13.) He alleges that if he had been treated earlier, he would
have only required six months of treatment. (Id., p. 13.)
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 a lifetime of
medical treatment. (Id., p. 15.)
Plaintiff raises a Fourteenth Amendment deliberate indifference claim for
failing to provide treatment for his medical condition, a negligence claim, and an
intentional infliction of emotional distress claim. (Id., pp. 15–16.)
B. All Claims Against Dauphin County Will Be Dismissed With
Prejudice
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). 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 alleged that Dauphin County has “a pattern, custom and policy
of delaying or refusing inmates medical treatment until the inmates are extremely
ill, or dead, to save money,” but he failed to allege any facts in support of this
conclusion. (Doc. 67, p. 13.) Therefore, all claims against Dauphin County will
be dismissed. Plaintiff was made aware of this pleading requirement in the court’s
order dismissing the second amended complaint. (Doc. 64, p. 14.) However, he
did not cure the pleading defect in the third amended complaint. Therefore, this
claim will be dismissed with prejudice.
C. Deliberate Indifference Claim Against PrimeCare Will Proceed to
Discovery
Similar to municipal bodies, 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).
Plaintiff has alleged that PrimeCare has “a pattern, custom and policy of
delaying or refusing inmates medical treatment until the inmates are extremely ill,
or dead, to save money.” (Doc. 67, p. 13.) Plaintiff also alleged that Defendant
Macut stated that “[y]ou have to be on your death bed for Prime Care to send you”
to the hospital. (Id., p. 9.) This constitutes a factual allegation in support of a
custom or policy within the corporation that supports a claim of deliberate
indifference. Therefore, Plaintiff has pled sufficient facts to survive the motion to
dismiss, and the deliberate indifference claim against PrimeCare will survive the
pending Fed. R. Civ. P. 12(b)(6) challenge.
D. All Supervisory Claims Will Be Dismissed With Prejudice
Plaintiff brings claims against Defendants Clark and Pries in their roles as
Warden and Commissioner, respectively. (Doc. 67, pp. 3, 5.) However, neither of
these Defendants are named in the statement of facts.
As discussed above, “[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, 481 F.3d at 210. Plaintiff’s failure to allege any facts
demonstrating that Defendants Clark and Pries participated in or approved the
alleged constitutional violations results in the claims against them being dismissed
under Fed. R. Civ. P. 12(b)(6). Plaintiff was aware of the personal involvement
requirement of defendants under 42 U.S.C. § 1983 as Baraka was cited in the
court’s previous order dismissing the second amended complaint. (Doc. 64, p. 13.)
Therefore, Plaintiff’s current failure to properly plead claims against Defendants
Clark and Pries will result in the claims being dismissed with prejudice. See
Phillips, 515 F.3d at 245.
To the extent that Plaintiff attempts to attach liability to these defendants
based on their supervisory status, this too will fail. Supervisory liability under §
1983 utilizes the same standard as municipal liability. See Carter v. City of
Philadelphia,181 F.3d 339, 356 (3d Cir. 1999). A supervisor will only be liable
for the acts of a subordinate if he fosters a policy or custom that amounts to
deliberate indifference towards an individual’s constitutional rights. See id. at 357.
To establish supervisory liability, a plaintiff must show that (1) a superior officer
failed to employ a specific supervisory practice; (2) the existing custom created an
unreasonable risk of injury in the absence of the specified supervisory practice; (3)
the supervisor was aware that the risk existed; (4) the supervisor was indifferent to
the risk; and (5) the underlying violation resulted from the failure to employ the
supervisory practice. Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir.
2005) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). Plaintiff has
alleged no such facts in his third amended complaint. (Doc. 67.) Therefore, the
dismissal of claims against these defendants is appropriate.
E. The Fourteenth Amendment Claims Will Be Dismissed In Part
Notably, Plaintiff alleges that he was a pretrial detainee during the relevant
time period. (Doc. 67, p. 3.) While Plaintiff is raising a deliberate indifference to
a serious medical need claim, it will be brought under the Fourteenth Amendment
because of his pretrial detainee status.
The Eighth Amendment does not apply until an inmate has been both
convicted of and sentenced for his crimes. See Graham v. Connor, 490 U.S. 386,
392 n. 6 (1989); Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005). Thus, an
inmate awaiting sentencing must look to either the Fifth Amendment’s or the
Fourteenth Amendment’s Due Process Clause for protection. See Bell v. Wolfish,
441 U.S. 520, 535 n. 16 (1979).
Due process rights of a pretrial detainee are at least as great as the Eighth
Amendment rights of convicted prisoners. See Montgomery v. Ray, 145 F. App’x
738, 740 (3d Cir. 2005). The Third Circuit has evaluated medical care claims
raised by pretrial detainees under the Fourteenth Amendment using the Eighth
Amendment standard. See Hubbard, 399 F.3d at 166 n. 22 (“[E]ven though the
constitutional protections afforded [to] prisoners and pretrial detainees against
inadequate medical care arise from [the prohibition on cruel and unusual
punishment and due process, respectively], the standards governing the provision
of medical care to each class are similar.”).
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 for deliberate indifference to
a serious medical need, 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).
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.”). Likewise, negligence does not rise to an Eighth
Amendment violation. See Estelle, 429 U.S. at 105–06 (“a complaint that a
physician has been negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth Amendment”).
1. Medical Defendants
As stated above, the deliberate indifference claim against PrimeCare will
survive the current Rule 12(b)(6) challenge. The question remains as to the
pleading against the remaining individual Medical Defendants, including
Defendants Young, Macut, Zeiders-Heichel, Drabich, and Thomas. The factual
dividing line for this claim is on January 10, 2020, when the Medical Defendants
had EKG evidence that Plaintiff was in “severe cardiac arrest.” (Doc. 87, p. 11.)
Therefore, the court will assess the deliberate indifference claims based on actions
before and after the EKG.
First addressing the claims of deliberate indifference prior to the EKG,
Plaintiff has failed to meet the second prong of a deliberate indifference claim
regarding Defendants’ actions. 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 third amended
complaint, Plaintiff repeatedly states that prior to January 10, 2020, the remaining
Medical Defendants did not know the cause of his symptoms, but treated him with
pain medications and instructions to rest. (Doc. 67.) The court acknowledges
Plaintiff’s complaint includes allegations that nursing defendants did not provide
additional care, but the nurses allegedly repeated the instructions of Defendants
Young and Macut, both of whom are physicians who advised Plaintiff to lie down
and rest. (Id., pp. 8–11.) Therefore, while Plaintiff may not agree with the medical
care provided, i.e. the lie down and rest order, he was not actually denied medical
care. See White, 897 F.2d at 110 (Mere disagreement over proper treatment does
not state a claim upon which relief can be granted.). Furthermore, any negligence
on the part of Medical Defendants does not rise to an Eighth Amendment violation.
See Estelle, 429 U.S. at 105–06 (“a complaint that a physician has been negligent
in diagnosing or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment”). Therefore, Plaintiff has
failed to establish that any of the Medical Defendants were deliberately indifferent
to a serious medical need prior to the EKG on January 10, 2020.
However, according to the alleged facts, starting on January 10, 2010, there
was subjective knowledge on the part of Medical Defendants regarding a serious
medical need as Plaintiff’s EKG showed he was in cardiac arrest. (Doc. 67, pp.
11–12.) The facts alleged fail to demonstrate any deliberate indifference on the
part of any Medical Defendants after the EKG results were obtained, with a single
exception. (Id.)
The sole exception was when Defendant Drabich delayed the call for the
ambulance and delayed Plaintiff’s transfer to the hospital at the instruction of
Defendant Zimmerman. 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). Based on Rodriguez, the court previously concluded that
ensuring appropriate staff is present at the jail and at the hospital is not “arbitrary”
or “unduly burdensome” in a correctional institution context. (Doc. 64, p. 18.)
However, the third amended complaint, unlike the second amended complaint, did
not allege that the delay was to ensure adequate staffing during a shift change.
Therefore, the claim against Defendant Drabich for delaying the call to the
ambulance survives the Rule 12(b)(6) motion. The other deliberate indifference
claims raised against the Medical Defendants will be dismissed. This dismissal
will be with prejudice as this is Plaintiff’s third amended complaint, and further
leave to amend is considered futile.
2. Dauphin County Defendants and Defendant Horcher
Turning to the remaining Dauphin County Defendants, including Defendants
Glenn, Burkins, and Zimmerman, and Defendant Horcher, the court finds that due
to their reliance on medical opinions and the short delay in treatment, the
allegations of events prior to January 10, 2020 do not rise to the level of a
constitutional violation for deliberate indifference. However, their role in delaying
care following the January 10, 2020 EKG will survive this Rule 12(b)(6)
challenge.
The Third Circuit has stated that “[i]f a prisoner is under the care of medical
experts, . . . a non-medical prison official will generally be justified in believing
that the prisoner is in capable hands. This follows naturally from the division of
labor within a prison.” Spruill v Gillis, 372 F.3d 218, 236 (3d Cir. 2004.)
Therefore, Defendant Glenn is not liable under a theory of deliberate indifference
for failing to provide care after Plaintiff had spoken with Defendant Thomas, a
nurse, just minutes before. (Doc. 67, p. 9.)
Turning to the conduct following the January 10, 2020 EKG, which
demonstrated “severe cardiac arrest,” Plaintiff alleges that the delay in transport to
the hospital and the delay in transfer to the ICU demonstrated deliberate
indifference. (Doc. 67.) As discussed above, short delays in treatment generally
do not rise to the level of deliberate indifference. See Rodriguez, 2015 WL
1470719, at *9. Specifically, “short delays unaccompanied by arbitrary or unduly
burdensome bureaucratic procedures” do not rise to the level of cruel and unusual
punishment. Id. The court has previously found that both delays were not
accompanied by arbitrary and unduly burdensome bureaucratic procedures: “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.” (Doc. 64, p. 18.) However, the third amended complaint fails to allege
the rationale for the delay in calling the ambulance. (Doc. 67, p. 12.)
Additionally, the rationale for the delay in transfer to the ICU was because “they
just called and gave them this room number, and they didn’t want to call back with
a new number.” (Id.) Therefore, the third amended complaint states a claim for
deliberate indifference against Defendants Zimmerman, Burkins, and Horcher, and
these claims will survive the Rule 12(b)(6) challenge.
F. The Negligence Claims Again the Medical Defendants Will Be
Dismissed, But the Claims Against the Dauphin County Defendants
and Defendant Horcher Will Survive
Plaintiff alleges negligence on the part of both Medical Defendants, Dauphin
County Defendants, and Defendant Horcher. (Doc. 67.)
1. Medical Defendants
Medical Defendants argue that Plaintiff has not submitted the required
certificate of merit to precede in a medical negligence claim. (Doc. 81, pp. 33–35.)
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). Plaintiff argues that Pa.R.C.P. 1042.3 does not apply in federal court
as it is a procedural rule. (Doc. 99, pp. 9–12.) However, this argument is
contradicted by the Third Circuit caselaw cited above which defines Pa.R.C.P.
1042.3 as substantive. The court acknowledges that the Third Circuit has found
Pa.R.C.P. 1042.3 as procedural in Federal Tort Claims Act cases, but it has not
been extended to cases with supplemental jurisdiction over state law claims. See
Wilson v. United States, 79 F.4th 312, 316–20 (3d Cir. 2023).
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. The
court acknowledges that typically, the proper procedure would be to dismiss the
negligence claim 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.). However, Plaintiff was aware of this requirement as it was the rationale
for the dismissal of the negligence claim raised in the second amended complaint.
(Doc. 64, pp. 11–12, 20–22.) Therefore, the court finds it appropriate to dismiss
these claims with prejudice at this juncture.
2. Dauphin County Defendants and Defendant Horcher
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.
Plaintiff’s previous negligence claims raised in the second amended
complaint against the Dauphin County Defendants and Defendant Horcher were
dismissed because the second amended complaint alleged that when a medical
request form was requested, it was in fact provided. (Doc. 64, pp. 22–23.)
Additionally, in the second amended complaint Plaintiff failed to allege any delay
in transport to the hospital or to the ICU that resulted in any injury. (Id.) Here, in
the third amended complaint, Plaintiff did not allege that medical request forms
were provided and he did allege that the delays resulted in further injury. (Doc. 67,
pp. 9, 12.) Therefore, Plaintiff’s claims will survive the Rule 12(b)(6) challenge.
G. The Intentional Infliction of Emotional Distress Claim Will Survive
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). The intentional infliction of emotional distress claim
raised in the second amended complaint was dismissed because Plaintiff alleged he
was misdiagnosed with anxiety. (Doc. 64, pp. 23–24.) However, in the third
amended complaint Plaintiff made no such allegations. Therefore, the court will
not dismiss the intentional infliction of emotional distress claim.
H. Plaintiff’s Motion for Sanctions and Handwriting Expert Will Be
Denied
Plaintiff filed a motion for sanctions alleging that Defendants destroyed
medical records to conceal their inadequate care. (Doc. 68.) However, the court
notes that Medical Defendants filed a motion for summary judgment which
included multiple medical records and inmate request forms. (Doc. 74-1.)
Additionally, discovery has not yet occurred in this action. Therefore, Plaintiff’s
mere accusation that records were destroyed is not sufficient to grant the motion at
this time. However, following discovery, should there be proof of spoliation of
evidence, Plaintiff may renew his motion.
Plaintiff also filed a motion for a handwriting expert in furtherance of his
accusations that records were destroyed. (Doc. 101.) Specifically, Plaintiff alleges
that the evidence submitted in furtherance of the summary judgment motion was
fabricated and forged. (Id.) However, since Plaintiff’s motion for sanctions will
be denied and discovery has not yet occurred, his motion for a handwriting expert
will be denied without prejudice to later renewing the request.
I. Plaintiff’s Motion for a Medical Expert Will Be Denied
Plaintiff filed two identical motions to appoint a medical expert and counsel.
(Docs. 103, 113.) However, as discussed above, there has been no discovery in
this action. Therefore, the motions for a medical expert will be denied at this
procedural posture of the action because the appointment of a medical expert is
premature. Plaintiff may renew his request following discovery if such an expert is
necessary.
J. Plaintiff’s Motion for Appointment of Counsel Will be Denied
As stated above, Plaintiff filed two identical motions to appoint medical
exert and counsel. (Docs. 103, 113.)
Although prisoners have no constitutional or statutory right to appointment
of counsel in a civil case, the court has discretion to “request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see
Houser v. Folino, 927 F.3d 693, 697 (3d Cir. 2019). The appointment of counsel is
a privilege, not a statutory or constitutional right. Brightwell v. Lehman, 637 F.3d
187, 192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).
However, representation by counsel may be appropriate under certain
circumstances after a finding that the plaintiff’s case has arguable merit in fact and
law. Tabron, 6 F.3d at 155. If the court finds that the plaintiff has crossed this
threshold inquiry, the court should consider the following factors in deciding
whether to request a lawyer to represent an indigent plaintiff:
(1) the plaintiff’s ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be necessary
and the ability of the plaintiff to pursue such investigation;
(4) the plaintiff’s ability to retain counsel on his or her own
behalf;
(5) the extent to which a case is likely to turn on credibility
determinations, and;
(6) whether the case will require the testimony of expert
witnesses.
Tabron, 6 F.3d at 155-57. This list of factors is non-exhaustive, and no single
factor is determinative. Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002)
(citing Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997)). Instead, these
factors serve as guideposts for the district courts to ensure that the precious
commodity of volunteer attorney time is not “wasted on frivolous cases.” (Id.)
Plaintiff’s request was made as an alternative to the appointment of a
medical expert. (Docs. 103, 113.) However, as stated above, discovery has not
occurred in this action. Therefore, a request for a medical expert is premature.
Thus, appointment of counsel is not warranted at this time. If future proceedings
demonstrate the need for counsel, the matter may be reconsidered either sua sponte
or pursuant to a properly filed motion.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss will be granted in
part and denied in part. All claims against Dauphin County will be dismissed with
prejudice. All claims against Defendants Clark and Pries will be dismissed with
prejudice. The deliberate indifference claims against Defendants PrimeCare,
Drabich, Zimmerman, Burkins, and Horcher will survive. The deliberate
indifference claims against Defendants Young, Macut, Zeiders-Heichel, Thomas,
and Glenn will be dismissed with prejudice. The negligence claims against the
Medical Defendants will be dismissed with prejudice. The negligence claims
against the Dauphin County Defendants and Defendant Horcher will survive. The
intentional infliction of emotional distress claims against Defendants PrimeCare,
Drabich, Young, Macut, Zeiders-Heichel, Thomas, Glenn, Zimmerman, Burkins,
and Horcher will survive. Plaintiff’s motions for sanctions, a handwriting expert, a
medical expert, and the appointment of counsel will be denied. Defense Attorneys
Lavery and Weed are required to file a status report clarifying their representation
of Defendant Horcher. Defendants will file an answer to the third amended
complaint addressing the surviving claims.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: March 25, 2024