The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANKIE L. BROWN, )
)
Plaintiff, )
) Case No. 1:22-cv-277
v. )
)
STATE CORRECTIONAL )
INSTITUTION - ALBION, et al., )
)
Defendants. )
MEMORANDUM ORDER
In this counseled prisoner civil rights action, Plaintiff Frankie L. Brown has filed claims
under 42 U.S.C. §1983 and Pennsylvania common law against the Pennsylvania Department of
Corrections ("DOC"), the State Correctional Institution at Albion ("SCI-Albion"), Michael Clark,
the former Superintendent at SCI-Albion, Jerri Smock, the Correctional Health Care
Administrator ("CHCA") at SCI-Albion (collectively, "DOC Defendants"), Dr. Max Gottesman,
Wellpath, LLC (f/k/a Correct Care Solutions, LLC), Dr. Lisa Baird, a Wellpath employee,
Corizon Health of Pennsylvania, LLC, Corizon Health, Inc., and multiple "John Doe" and "ABC
Corporation" Defendants. Plaintiff’s operative pleading at this point is the Amended Complaint,
which sets forth three causes of action. ECF No. 55. His claims stem from allegedly deficient
medical care which he received between May 2020 and July 2021, when he was incarcerated at
SCI-Albion. In general, Plaintiff alleges that he experienced Dilantin toxicity after medical staff
administered Dilantin at too high a level. He claims that the overdose resulted in neurological
deficits that made it difficult for him to ambulate safely. Additionally, Plaintiff claims he was
denied assistive devices and proper therapy that were necessary for his recovery.
Plaintiff’s Amended Complaint sets forth three causes of action. In Count I, he asserts an
Eighth Amendment claim against Smock, Clark, Wellpath, and Dr. Baird based on their alleged
deliberate indifference to his serious medical needs. In Count II, Plaintiff asserts a negligence
claim against all Defendants. In Count III, he asserts a corporate negligence claim against
Wellpath, SCI-Albion, the DOC, Smock, and Clark. Id.
The DOC Defendants have moved to dismiss the claims against them pursuant to Rule
12(b)(6). ECF No. 57. The motion has been briefed and is ripe for adjudication. ECF Nos. 58,
63. The matter was referred to Chief United States Magistrate Judge Richard A. Lanzillo for a
Report and Recommendation (“R&R”) in accordance with the Magistrate Judges Act, 28 U.S.C.
§636(b)(1), and Local Civil Rule 72.
On November 8, 2023, Judge Lanzillo issued an R&R in which he concluded that the
DOC Defendants’ motion should be granted but with leave for Plaintiff to amend certain claims.
As to Count I, Judge Lanzillo found that the Amended Complaint failed to allege facts that
would show Clark’s or Smock’s personal involvement in Plaintiff’s medical care, or in any
conduct that could be considered deliberately indifferent to Brown’s serious medical needs.
Judge Lanzillo recommended that the Court allow Plaintiff to replead these claims, as he did not
consider them futile.
As to Count II, Judge Lanzillo concluded that the negligence claims against the DOC
Defendants are barred by the doctrine of sovereign immunity. First, he found that the DOC,
SCI-Albion, and Superintendent Clark are not “health care employees” or “health care
personnel” exempted from state sovereign immunity. See ECF No. 66 at 16 (discussing 42 Pa.
C.S. §8522(b)). Next, Judge Lanzillo considered whether Smock would be exempted from
sovereign immunity under these same categories in her capacity as prison the Correctional
Health Care Administrator for SCI-Albion. Because he viewed her alleged role in Plaintiff’s
case to be purely administrative, as opposed to medical, Judge Lanzillo concluded that Smock,
like the other DOC Defendants, was protected from suit by sovereign immunity.
Judge Lanzillo also concluded that no negligence claim had been stated against Smock on
substantive grounds. Construing Count II as a “professional liability claim,” Judge Lanzillo
opined that Plaintiff had failed to plausibly allege an independent duty of medical care on the
part of Smock, or that she breached such a duty, which also precluded an inference of proximate
causation of harm. Although he found Count II deficient, Judge Lanzillo recommended that
Plaintiff be given leave to replead this claim as against Smock -- and also against the DOC,
inasmuch as the DOC could conceivably be vicariously liable under Pennsylvania law for any
actionable negligence on the part of Smock. See ECF No. 66 at 18; id. at n.6 (discussing 42 Pa
C.S. §8522(b)(2)).
With respect to Count III, Judge Lanzillo recommended that the corporate negligence
claim be dismissed as against all DOC Defendants. Judge Lanzillo opined that Smock and Clark
could not be individually liable under a corporate negligence theory and, additionally, Plaintiff
has indicated his willingness to withdraw that claim as it relates to the DOC Defendants.
On November 22, 2023, Plaintiff filed counseled objections to the R&R. ECF No. 69. In
his objections, Plaintiff takes issue with the Chief Magistrate Judge’s recommendations relative
to Counts I and II of the Amended Complaint. He does not contest the dismissal of the DOC
Defendants from Count III.
As an initial matter, the Court will adopt the Chief Magistrate Judge’s recommendation
that the corporate negligence claims against the DOC Defendants in Count III be dismissed with
prejudice. As noted, Plaintiff does not appear to challenge this aspect of the Report and
Recommendation.
With respect to the deliberate indifference claims in Count I, Plaintiff insists that he
adequately pled Clark’s and Smock’s involvement in unconstitutional conduct. His central
allegation is that Smock and Clark were responsible for enacting an administrative policy that
generally limited inmates’ access to physical therapy during the Covid-19 pandemic. He
contends that the reasonableness of this policy can only be judged on a fully developed record
after discovery. Plaintiff also contends that Smock and Clark were deliberately indifferent in
failing to ensure that he receive a neurological consult in a timely manner.
After de novo review, this Court agrees with Judge Lanzillo’s analysis and
recommendations as they relate to the Eighth Amendment claims in Count I. In particular, the
Court agrees that the Plaintiff’s allegations are somewhat speculative regarding the Defendants’
involvement in establishing the alleged policy and, in any event, a generally applicable Covid-19
policy does not demonstrate the Defendants’ personal involvement in Plaintiff’s medical care.
Nor do Plaintiff’s allegations about Smock demonstrate her knowledge and acquiescence in
constitutionally deficient medical treatment. To the extent Plaintiff argues that Clark and Smock
violated the DOC’s parameters for timely medical treatments as set forth in DOC Policy 13.2.1,
Section 1(A)(6)(n), the Court notes that this policy was not referenced in the Amended
Complaint, and Plaintiff may not amend his pleading via arguments raised in his objections to
the R&R. See Commw. of Pa. ex. rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d
Cir.1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to
a motion to dismiss.”). The Court also notes that an official’s “failure to adhere to a prison
policy does not alone amount to a constitutional violation.” Watley v. Pike Cnty., No. 3:17-CV-
1539, 2018 WL 6018903, at *11 (M.D. Pa. Nov. 16, 2018). In any event, Plaintiff makes no
assertion that the cited policy would apply to Clark. Finally, the Court agrees with the Chief
Magistrate Judge’s reasoning that no inference of deliberate indifference can be drawn from the
Defendants’ alleged involvement in enacting a Covid-19 policy that necessarily involved the
balancing of competing medical risks during a world-wide pandemic. Accordingly, the Eighth
Amendment claims against the DOC Defendants will be dismissed, but the Court will grant
Plaintiff leave to replead those claims.
With respect to the negligence claims in Count II, the Court will adopt Judge Lanzillo’s
recommendation that the claims against Superintendent Clark and SCI-Albion be dismissed with
prejudice, as those claims are barred by Pennsylvania’s Sovereign Immunity Act, 42 Pa. C.S.
§§8521 et seq. Plaintiff generally opposes the Chief Magistrate Judge’s recommendations
regarding Count II but, notably, he cites no law that would support exempting Superintendent
Clark or SCI-Albion from sovereign immunity under the exception that applies to “health care
employees” or “health care personnel.” See id. §8522(b)(2). Accordingly, Plaintiff’s objections
on this point are not well-taken.
As it relates to Defendant Smock, the Court acknowledges authority cited by Plaintiff that
suggests a CHCA may be considered a “health care employee” or “health care personnel” for
purposes of a negligence claim. See, e.g., See Wareham v. Jeffes, 564 A.2d 1314 (Pa. Commw.
Ct. 1989); William v. Syed, 782 A.2d 1090, 1096 (Pa. Commw. Ct. 2001); Watson v. Caleb, No.
385 MDA 2019, 2019 WL 3763967, at *1 n. 2 (Pa. Super. Ct. Aug. 9, 2019). But the Court also
agrees with Judge Lanzillo that, as pled, the negligence claim contains overly broad allegations
and insufficiently particular factual content to satisfy federal pleading standards. Accordingly,
the negligence claim against Smock will be dismissed with leave for Plaintiff to replead that
claim. Plaintiff will also be given leave to replead the DOC’s liability for any negligence on the
part of Smock under a vicarious liability theory. See Cornish v. City of Phila., Civil Action No.
14-6920, 2015 WL 4931758, at *7 (E.D. Pa. Aug. 18, 2015) (recognizing respondeat superior
liability under § 8522(b)(2) based on the acts of Commonwealth employees).
Accordingly, after de novo review of the documents in the case, including the Amended
Complaint, the DOC Defendants’ motion to dismiss and all filings related thereto, the Chief
Magistrate Judge’s R&R, and Plaintiff’s objections to the R&R,
IT IS ORDERED, this 31st day of March, 2024, that the DOC Defendants’ motion to
dismiss the Amended Complaint, ECF No. [57], is GRANTED as follows:
1. The negligence claims in Count II of the Amended Complaint against Defendants Clark
and SCI-Albion are DISMISSED with prejudice;
2. The corporate negligence claims in Count III of the Amended Complaint against
Defendants Smock, Clark, the DOC, and SCI-Albion are DISMISSED with prejudice;
3. The Eighth Amendment claims in Count I of the Amended Complaint against Defendants
Smock and Clark are DISMISSED without prejudice; and
4. The negligence claims in Count II of the Amended Complaint against Defendants Smock
and the DOC are DISMISSED without prejudice.
IT IS FURTHER ORDERED that, on or before April 22, 2024, Plaintiff may replead his
Eighth Amendment claims against Defendants Smock and Clark and his negligence claims
against Smock and the DOC, along with any other surviving claims not addressed herein. In the
event Plaintiff fails to file an amended pleading within the time frame allowed by this
Memorandum Order, the dismissal of his Eighth Amendment claims against Defendants
Smock and Clark and the dismissal of his negligence claims against Defendant Smock and
the DOC will be converted to dismissals with prejudice, without further notice.
IT IS FURTHER ORDERED that the Report and Recommendation issued by Chief
United States Magistrate Judge Richard Lanzillo on November 8, 2023, ECF No. [66], is hereby
adopted as the opinion of this Court. Plaintiff’s objections to the Report and Recommendation,
ECF No. [69], are OVERRULED.
_____________________________
SUSAN PARADISE BAXTER
United States District Judge