# JACKSON v. WELLPATH

> District Court, W.D. Pennsylvania · August 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10765401

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** August 7, 2024
- **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/10765401

## How later opinions describe it (automated extraction)

- noting that constitutional tort liability arises only upon a showing of “personal involvement” in the alleged wrongful conduct
- characterizing a dispute over pain medication as the type of “disagreement over the exact contours of [plaintiff's] medical treatment” that does not violate the constitution
- explaining that “an inmate’s disagreement with prison personnel over the exercise of medical judgment does 16 not state a claim for relief’
- rejecting the traditional Rule 12(b)(6

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIE DIVISION
)
ABDU JACKSON, ) 1:23-CV-00272-SPB-RAL
)
Plaintiff ) SUSAN PARADISE BAXTER
) United States District Judge
VS. )
) RICHARD A. LANZILLO
WELLPATH, DR. DAVID SMITH, CRNP ) Chief United States Magistrate Judge
LESLIE, CRNP SHARP, AND CRNP )
STRICK, ) REPORT AND RECCOMENDATION ON
) MOTION TO DISMISS THE COMPLAINT
Defendants )
) ECF NO. 16
)

I. Recommendation
It is respectfully recommended that the motion to dismiss Plaintiff's Complaint filed by
Defendants Wellpath, CRNP Leslie, and CRNP Sharp be GRANTED in part and DENIED in
part. It is further respectfully recommended that all claims against CRNP Strick and Plaintiffs
Eighth Amendment claim against Dr. Smith be dismissed pursuant to 28 U.S.C. §§1915(e)(2)(B)
and 1915A(b).
II. Report
A. Introduction and Procedural History
Plaintiff Abdu Jackson brings this pro se civil rights action against Dr. David Smith, three
certified registered nurse practitioners, Leslie, Sharp, and Strick, and Wellpath, the private
healthcare company contracted by the Pennsylvania Department of Corrections (“DOC”) to
provide healthcare services at State Correctional Institutions, including SCI-Forest, where

Jackson was previously incarcerated.' See ECF No. 6. Jackson alleges that he suffered from
serious osteoarthritis in his left hip during his incarceration and that the Defendants acted with
deliberate indifference to this serious medical needs in violation of the Eighth Amendment to the
United States Constitution. He further asserts a claim against Dr. Smith for medical malpractice
under Pennsylvania law. See id. Jackson requests compensatory and punitive damages against
each Defendant. See id.
Wellpath, Sharp, and Leslie (collectively, “Wellpath Defendants”) have filed a motion to
dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6)? (ECF No. 16), a supporting brief in
support of their motion (ECF No. 17), supplement to the motion (ECF No. 30), and supplemental
brief (ECF No. 31).? Jackson was ordered to respond to the Wellpath Defendants’ motion to
dismiss by April 4, 2024.4 See ECF No. 24. When no response was received by the deadline,
the Court issued a “‘show cause” order directing Jackson to either explain his failure or to file his
response by May 15, 2023. See ECF No. 33. As of the present date, Jackson has not filed a
response to the motion or the Court’s order.° The undersigned will therefore issue this Report

' Jackson commenced this action while incarcerated. He has since been paroled and is no longer in the physical
custody of the DOC.
2 No appearance has been filed on behalf of Dr. Smith or CRNP Strick. The docket reflects that a USM-285 Form
and Waiver of the Service of Summons Form pursuant to Fed. R. Civ. P. 4(d) was mailed to each Defendant on
December 15, 2023 (see ECF No. 15), but the docket does not indicate that a waiver was executed and returned by
Dr. Smith or CRNP Strick. On May 16, 2024, the Court entered an Order directing Jackson to provide updated
addresses to effectuate service upon Dr. Smith and CRNP Strick and advising him of the timing requirements of Fed.
R. Civ. P. 4(m) and the consequences of failing to comply with those requirements. The Court further ordered that
Jackson wished to again attempt service upon Dr. Smith and CRNP Strick, he should provide the Court with an updated
USM-285 Form and Waiver of the Service of Summons Form for each Defendant by May 28, 2024. The order advised
Jackson that failure to file these forms by that date may result in issuance of a Notice of Call for Dismissal pursuant
to Fed. R. Civ. P. 4(m) as to one or unserved Defendants.
> The Wellpath Defendants supplemental motion requests dismissal of Jackson’s claims based on his failure to file a
Certificate of Merit in accordance with the requirements of Pennsylvania Rule of Civil Procedure 1042.3. See ECF
No. 31.
+ The Court has directed Jackson to respond to the supplemental brief by May 23, 2024. See ECF No. 32.
> On April 11, 2024, the Clerk of the Court received and filed a letter and attachments from Jackson dated April 5,
2024 (ECF No. 27). The letter purports to describe Dr. Smith’s medical treatment and the treatment Jackson has

and Recommendation on the Wellpath Defendants’ motion to dismiss without the benefit of an
opposition brief.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint. See Kost v. Kozakiewicz, | F.3d 176, 183 (3d Cir. 1993). In
deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual
allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S.
Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally
consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of
public record, and documents that form the basis of a claim” when considering the motion to
dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing Jn re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the
plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual
allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice, and
Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege
‘enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570
(rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78

received since his release from the physical custody of the DOC. Jackson appended to this correspondence an x-ray
(ECF No. 27-1) and medical records (ECF No. 27-2) from an April 3, 2024 appointment at the Orthopedic Institute
of Pennsylvania. Given Jackson’s pro se status, the undersigned will consider the letter and attachments as a response
to the motion to dismiss. See, e.g., Sproul v. Walmart, 2023 WL 2895644, at *1 (W.D. Pa. Apr. 11, 2023) (citing
Bush v. City of Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005) (“in keeping with its duty to ‘construe pro se
complaints liberally ... [the Court] will consider’ additional facts included in Sproul's filings that came after the
complaint to the extent they are consistent with the allegations in his complaint.”).

(1957)).
While detailed factual allegations are not required to survive a motion to dismiss, a
complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A
“formulaic recitation of the elements of a cause of action will not do.” /d. (citing Papasan vy.
Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a
plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub.
Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal
conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of
York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another
way, in assessing a motion to dismiss, while the Court must view the factual allegations
contained in the pleading at issue as true, the Court is “not compelled to accept unwarranted
inferences, unsupported conclusions or legal conclusions disguised as factual allegations.”
Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).
Expounding on the 7wombly/Iqbal line of cases, the Third Circuit has articulated the
following three-step approach:
First, the court must “tak[e] note of the elements a plaintiff must
plead to state a claim.” Second, the court should identify
allegations that, “because they are no more than conclusions, are
not entitled to the assumption of truth.” Finally, “where there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement for relief.”
Burtch y. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
Finally, because Jackson is proceeding pro se, his Amended Complaint will be held to
“less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.
519, 520-521 (1972). If the court can reasonably read a pro se litigant’s pleadings to state a valid
claim upon which relief could be granted, it will do so despite the litigant’s failure to cite proper
legal authority, confusion of legal theories, poor syntax, and sentence construction, or
unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982);
United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
C. Factual Allegations
For purposes of the pending motion to dismiss, the Court accepts as true the following
factual allegations of the Complaint.
Jackson was transferred to SCI-Forest in July 2021. On August 4, 2021, Jackson
complained to NP Leslie that he was “experienc[ing] extreme pain and suffering on a daily
basis” from the osteoarthritis in his left hip. ECF No. 6, § 13. He also reported his medical
history to Leslie, which included a right hip replacement and a recommendation from “Dr.
Oliveno of Orthopedics Institute of Pennsylvania” that he undergo surgery for his “degenerating
left hip.” /d. “Thereafter, Mr. Jackson underwent x-rays ... which revealed .. . bone spurs and
total absence of cartilage.” /d § 15. Asa result, “Jackson was scheduled for physical therapy
and an outside consult” in Fall 2021. /d. 417. Around this time, a doctor at SCI-Forest, Dr.
Maxa, also examined Jackson and concluded that he required surgery to treat his left hip. On
August 16, “Leslie informed Mr. Jackson that he submitted a referral for” an orthopedic
specialist consultation, and “the process would take approximately six months.” /d. J 19.

When nearly ten months later Jackson had not yet received the orthopedic consultation,
he submitted a sick call request to address his “worsening condition.” /d. 4 20. On or about
June 12, 2022, he met with Defendant CRNP Sharp for “a reevaluation of his pain medication”
and to learn “the status of his orthopedic consult.” /d. § 20. Sharp told Jackson that the
consultation request was being processed. Jackson submitted another sick call request on July 19
and met with Sharp that day. At this appointment, Sharp informed him that no orthopedic
consultation request had ever been submitted and represented “that the referral would be
resubmitted.” /d. § 22.
While Jackson awaited the consultation, he was in “extreme pain” and experienced
“gradual degeneration of his left hip” and “lack of mobility.” /d. § 19. Additionally, “[s]tanding
and walking was excruciating .. . due to the grinding of” his hip bones, he “could not stand” or
“dress himself without assistance,” and he only slept about two hours a night because “his sleep
was continually interrupted by his immense pain.” /d. § 22.
On February 21, 2023, Defendant Dr. Smith operated on Jackson’s left hip at Clarion
Hospital. Defendants did not adhere to Dr. Smith’s “post-operative treatment” order for
“physical therapy” and “follow-ups... to monitor [his] rehabilitation.” /d. § 27. For example,
the follow-up appointment scheduled for March 29, 2023 did not occur.
“After surgery, Mr. Jackson could not put weight upon his left leg, could barely walk or
stand, and developed swelling in his leg.” /d. 30. Jackson submitted a sick call request to
address these issues and was seen by Defendant CRNP Strick on April 7, 2023. At this
appointment, Strick told him that it would be four months until he would receive physical
therapy. For the next five weeks, “Jackson repeatedly submitted sick call slips and consulted
Defendant Strick about his worsened condition.” Jd. § 32.

On June 14,.2023, Jackson met with Dr. Smith’s Physician Assistant (“PA”). The PA
“assured Mr. Jackson that corrective surgery would take place.” /d. 433. The next day, “Sharp
consulted with Mr. Jackson” and told him that his pain was caused by a half of an inch
discrepancy in the lengths of his legs. Specifically, his right leg measured 39.5 inches in length
while his left measured 39 inches.
“On June 28[], 2023, Mr. Jackson was approved for a second surgery.” /d. § 35. On
August 2, 2023, he met with Dr. Smith at Clarion Hospital. Dr. Smith told him that he was not,
in fact, scheduled for another surgery, as “his radiology test results were negative for
abnormalities,” and he did not know why Jackson experienced “increased pain and lack of
mobility.” /d. § 37. Thirteen days later, “Jackson consulted with Defendant Strick.” /d.
§ 38. Strick prescribed him a shoe implant to “even out [his] gait . . . in place of corrective
surgery.” Id.
On September 11, 2023, he “met with Dr. Smith at Clarion Hospital” for the first time
since his surgery. /d. § 39. Jackson still could not “walk and ha[d] not recovered.” /d. 442. Dr.
Smith explained that his recovery would take about six months instead of the promised two
months because he had made an abnormal incision at the front, instead of the side, of Jackson’s
thigh during surgery and installed “a shorter titanium rod” to avoid injuring his sciatic nerve. /d.
§41. Dr. Smith also informed him that his “spine suffered a misalignment” and
“recommend[ed] a shoe insert for his left leg rather than perform corrective surgery to fix [his]
mistake.” Jd. Jj 40, 43.
Jackson adds that throughout his incarceration at SCI-Forest, Defendants “continually
discontinued [his] pain medication,” thus “forcing [him] to experience a highted [sic] level of
pain and suffering for... several days or weeks until [he] filed paperwork, that paperwork was

processed, and the defendants renewed his medication.” /d. 23. The Defendants also
misrepresented the severity of Jackson’s hip condition in his medical file. For instance, “on
October 17, 2022, Defendant Sharp reported that Mr. Jackson ambulated around the room
without difficulty and that Mr. Jackson’s gait was upright without abnormalities,” despite
Sharp’s knowledge that this was a false depiction of Jackson’s condition. /d. {| 25.
He further contends that after he learned on September 5, 2023, that he was set to be
released on February 19, each individual Defendant asked him when he “expect[ed] to be
paroled” at his appointments with them. In response to their inquiries, he replied “that he
expected to be released in February of 2024.” Id. 4 44.
D. Discussion
The Wellpath Defendants argue that the Eighth Amendment claim should be dismissed as
to all Wellpath Defendants because the facts alleged fail to show that any of them acted with
deliberate indifference to Jackson’s hip condition. They also argue that his Eighth Amendment
claim is in substance a medical malpractice claim and, therefore, subject to dismissal based on
his failure to file a Certificate of Merit.
The undersigned will address these arguments in turn, as well as the sufficiency of the
Complaint to state a claim for relief against Defendants Dr. Smith and CRNP Strick pursuant to
the screening provisions set forth in 28 U.S.C. 1915(e)(2).°

© The Complaint is subject to swa sponte screening for dismissal pursuant to 28 U.S.C. § 1915(e)(2) because Jackson
is proceeding in forma pauperis (“IFP”), initiated this action while incarcerated, and seeks redress from a governmental
employee and entity. See e.g., Hoye v. Allegheny Cnty. Med. Dep’t, 2023 WL 7304825, at *2 (W.D. Pa. Sept. 26,
2023), report and recommendation adopted, 2023 WL 7124580 (W.D. Pa. Oct. 30, 2023). Section 1915(e)(2) requires
the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any
time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). See also Hoye, 2023 WL
7304825, at *2 n.3 (citing Douris v. Middletown Twp., 293 Fed. Appx. 10, 132 (3d Cir. 2008) (non-precedential)
(noting that the statute’s reference to prisoners in § 1915(a)(1) “appears to be a mistake” because IFP status is
“afforded to all indigent persons, not just prisoners.”); Atamian v. Burns, 236 Fed. Appx. 753, 754 (3d Cir. 2007)
(non-precedential) (“the provisions of § 1915(e) apply to all in forma pauperis complaints, not simply those filed by

1. The Eighth Amendment deliberate indifference claim should be
dismissed as to all Defendants except for Leslie.
Jackson avers that the individual Defendants acted with deliberate indifference to his
osteoarthritis for the duration of his incarceration at SCI-Forest and that Wellpath maintained a
policy or custom of requiring its employees to utilize cost-cutting, less efficacious treatments in
deliberate indifference to his serious medical need. See ECF No. 6, § 49-61. “[D]eliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment.” See Estelle v. Gamble, 429 U.S. 97
(1976)) (internal quotation omitted). To establish a violation of his constitutional right to
adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical
need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need.
See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a
“failure to treat can be expected to lead to substantial and unnecessary suffering.” Colburn v.
Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Deliberate indifference is manifested
by an intentional refusal to provide care, delayed medical treatment for non-medical reasons,
denial of prescribed medical treatment, a denial of reasonable requests for treatment that results
in suffering or risk of injury, Durmer v. O ‘Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent
conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d
103, 109 (3d Cir. 1990).
Jackson’s allegations regarding the severity of the osteoarthritic condition of his left hip
satisfies the “serious medical need” element of his Eighth Amendment claim. The Wellpath

prisoners.”)), ‘The determination of whether a complaint fails to state a claim upon which relief may be granted is
governed by the same standard applicable to motions to dismiss under Rule 12(b)(6). D Agostino v. CECOM RDEC,
436 Fed. Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).

Defendants do not disagree. ECF No. 17 (“The first element of serious medical need is met as
Plaintiff's osteoarthritis was diagnosed by a physician.”). Accordingly, only the second prong of
the test is at issue here: whether the treatment of Jackson’s left hip manifested deliberate
indifference to his serious medical needs.
It is well-settled that “an inmate’s dissatisfaction with a course of medical treatment,
standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018
WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as
constitutional claims because “the exercise by a doctor of his professional judgment is never
deliberate indifference.” Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D. Pa. 1997) (citing
Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a
physician exercises professional judgment his behavior will not violate a prisoner’s
constitutional rights.”’)). “Therefore, where a dispute in essence entails nothing more than a
disagreement between an inmate and doctors over alternate treatment plans, the inmate’s
complaint will fail as a constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5
(citing Gause v. Diguglielmo, 339 Fed. Appx. 132 (3d Cir. 2009) (characterizing a dispute over
pain medication as the type of “disagreement over the exact contours of [plaintiff's] medical
treatment” that does not violate the constitution)). Similarly, “the mere misdiagnosis of a
condition or medical need, or negligent treatment provided for a condition, is not actionable as
an Eighth Amendment claim because medical malpractice standing alone is not a constitutional
violation.” /d. (quoting Estelle, 429 U.S. at 106). “Indeed, prison authorities are accorded
considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67
(citations omitted). And the Third Circuit has made clear that “there is a critical distinction
‘between cases where the complaint alleges a complete denial of medical care and those alleging

10

inadequate medical treatment.”” Wisniewski v. Frommer, 751 Fed. Appx. 192, 195-96 (3d Cir.
Oct. 3, 2018) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)). Thus,
“courts have consistently rejected Eighth Amendment claims where an inmate has received some
level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018)
(quoting Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)).
Jackson alleges the Defendants’ conduct throughout his incarceration at SCI-Forest
manifested deliberate indifference to his serious medical needs. He specifies that CRNP Leslie
“caused [him] to needlessly endure prolonged pain and suffering for” over a year when he failed
to submit an orthopedic referral request for his “first surgery . . . despite a Physician’s
recommendation and other clear indications that corrective surgery was required and warranted.”
ECF No. 6, §§ 53, 52. Jackson contends that CRNP Sharp “intentionally made false statements
within [his] medical file . . . to minimize the severity of [his] condition,” “influence the
assessment and opinion of other medical professionals,” and “mislead those medical
professionals that immediate medical intervention was unnecessary.” /d. 54, 55. He further
asserts that CRNP Sharp and CRNP Strick oversaw his post-surgery care and did not abide by
Dr. Smith’s direction that Jackson should receive physical therapy and follow-up appointments.
Jackson alleges that as result, they did not “timely detect” his leg length discrepancy, which has
prolonged Jackson’s “pain and suffering from February 21, 2023 [un]til the present day” and
worsened his condition. /d. § 58. As for Dr. Smith, Jackson claims that he “intentionally
render[ed] a medical opinion that” “could not explain [Jackson’s] post-operative complications”
and that Dr. Smith should have recommended a corrective surgery instead of a shoe insert. /d. §
59. Jackson asserts that Dr. Smith opposed this surgery to “assist[] Wellpath with its goal of cost
containment.” /d. Finally, Jackson alleges that Wellpath “implement[ed] policies and practices

11

that elevate cost containment over proper and adequate care of inmates” and “require[] their
employees and associates (i.e., Dr. Smith) to provide medical treatment . . . that was most cost
efficient with reckless disregard to Mr. Jackson’s constitutional rights.” /d. { 61.
The Wellpath Defendants respond that Jackson “cannot meet the high pleading standard
to demonstrate Deliberate Indifference to a Serious Medical need.” ECF No. 17, p. 13. First,
they argue that the “[C]omplaint demonstrates a course of care with which [Jackson] merely
disagreed.” /d., p. 12. Second, they argue that the Jackson “fail[s] to state the required culpable
state of mind for deliberate indifference:” “malicious and wanton conduct or disregard of an
excessive risk.”” ECF No. 17, p. 13.
a. The facts alleged are sufficient to state an Eighth Amendment
claim against individual Defendant Leslie but not against
individual Defendants Sharp or Strick.
The allegations related to CRNP Leslie’s medical care of Jackson’s hip during his
incarceration at SCI-Forest are as follows: On August 4, 2021, Jackson complained to Leslie
about the extreme daily pain he experienced from his osteoarthritis in his left hip and disclosed
his medical history, including a previous right hip replacement and a surgeon’s recommendation
for left hip surgery. Jackson subsequently underwent hip x-rays and two examinations by Dr.
Maxa, and he agreed that Jackson needed hip surgery. On August 16, Leslie told Jackson that he
had submitted an orthopedic specialist consultation request, which would take about six months
to process. Ten months later, Jackson submitted a sick call request inquiring, infer alia, about
the status of this consultation. At Sharp’s meeting with him in response to this sick call, she
explained that his referral request was still being processed. On July 19, 2022, Jackson asked
again about this consultation in another sick call request. Shortly after, he learned from Sharp
that Leslie never submitted the request and that a new request had been submitted. Jackson

12

underwent hip surgery about seven months after this meeting with Sharp and year and a half after
Leslie said he had requested the orthopedic consultation.
Although thin, the allegations of Leslie’s alleged failure to submit the orthopedic
specialist consultation request suffices to support a plausible inference of deliberate indifference
on the part of Leslie. The Complaint alleges enough facts to infer Leslie’s knowledge of the
severity of Jackson’s osteoarthritis condition and his urgent need to be seen by an orthopedic
specialist. Leslie’s failure to file this request effectively prevented Jackson from receiving this
treatment until the request was re-submitted almost a year later. Because this case is before the
Court on a motion to dismiss, Leslie has no opportunity to provide a medical reason or other
explanation for his alleged delay, and none can be inferred from the allegations of the Complaint.
Read liberally, the Complaint allows for the inference that “necessary medical treatment [wa]s
delayed for non-medical reasons,” Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987) (citing Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th
Cir.1985)), and that the prolonged period Jackson had to wait to receive an orthopedic
consultation due to Leslie’s delay caused him prolonged “ineffective and/or painful treatment,”
in violation of Jackson’s Eighth Amendment rights. Williams v. Kort, 223 Fed. Appx. 95, 100
(3d Cir. 2007). See also Lopez v. Corr. Med. Servs., Inc., 499 Fed. Appx. 142, 146 (3d Cir.
2012) (deliberate indifference found where Defendant “knows of a prisoner’s serious need for
medical treatment, but .. . prevents a prisoner from receiving” the necessary treatment”).
Sharp’s alleged conduct, however, does not suppor: a plausible inference of deliberate
indifference. No basis exists from the facts alleged to infer that Sharp’s misrepresentation of the
status of Jackson’s referral materially contributed to any delay in Jackson’s treatment. The
Complaint alleges no other conduct on the part of Sharp relating to any delay or deficiency in

13

treatment. Accordingly, it is recommended that the Wellpath Defendants’ motion to dismiss be
granted as to Defendant Sharp and denied as to Defendant Leslie. As such, the Complaint states
an Eighth Amendment deliberate indifference claim against Leslie only based on his failure to
submit an orthopedic referral request.
Aside from Sharp’s alleged delay in submitting the consultation request, the Complaint
does not allege facts to support that Jackson’s medical care and treatment during his
incarceration at SCI-Forest was constitutionally deficient. The allegations reflect that the
medical providers addressed Jackson’s concerns at each of his appointments, and examined him,
formulated diagnoses, prescribed medications, and issued additional therapies. The Complaint
indicates that Jackson received numerous medical examinations for his left hip osteoarthritis
from Sharp, Strick, and other SCI-Forest medical staff, and that they tended to his medical needs
promptly upon his requests for care. The Complaint acknowledges that Jackson received an
outside consultation, x-rays, pain medication, surgery, a walker, a shoe insert, and assistance
with daily tasks. It also appears that he was scheduled for physical therapy before and after his
surgery.’
Courts have consistently held that regular assessment, treatment, and care like that
provided to Jackson in this case belies an inference of deliberate indifference within the
meaning of the Eighth Amendment. See, e.g., Payo v. Stechschulte, 2022 WL 912588, at *7
(W.D. Pa. Mar. 29, 2022) (finding no deliberate indifference where “Plaintiff was seen,
evaluated and treated on a regular basis and was prescribed medication as medically needed”’);
Gause, 339 Fed. Appx. at 135 (holding that the deliberate indifference standard was unmet

’ The Complaint does include a vague allegation that the Defendants did not adhere to Dr. Smith’s “post-operative
treatment” order for “physical therapy” and “follow-ups . . . to monitor [his] rehabilitation,” but Jackson alleges no
facts to support that any Defendant materially deviated from Dr. Smith’s post-operative instructions.
14

where “[Plaintiff’'s] medical records show that he was seen many times by the prison medical
staff and received medicine, physical therapy, and even treatment outside of the prison,”
establishing that “[Plaintiff] received medical care’).
Jackson contends that SCI-Forest medical staff subjected him to unnecessary pain and
suffering because they did not consistently prescribe him pain medication. The Complaint lacks
factual allegations sufficient to support an inference of deliberate indifference regarding the
prescription or administration of his pain medication or Sharp, Strick, or Leslie’s personal
involvement in any failure to provide such medication. See Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988) (noting that constitutional tort liability arises only upon a showing of
“personal involvement” in the alleged wrongful conduct). Indeed, Jackson does not specify who
stopped, limited, or changed his medication, which medication was involved, or the duration of
any lapse or delay in his receiving medication. His allegations are too conclusory to infer that
any Defendant denied or delayed his medication for nonmedical reasons or otherwise in
deliberate indifference to his serious medical needs. To the extent Jackson challenges the
judgment of medical personnel concerning the prescription or administration of medication, this
type of “disagreement over the exact contours of [his] medical treatment” does not support an
Eighth Amendment claim. See Tillery, 2018 WL 3521212, at *5.
Jackson next claims that Strick and Sharp manifested deliberate indifference because they
did not heed Dr. Smith’s post-operative instructions regarding physical therapy and follow-up
appointments and, as a result, Sharp took an inordinate amount of time to diagnose his leg-length
discrepancy. This bare allegation also does not support a claim of deliberate indifference.
Jackson alleges only one instance when he was not taken to a post-operative appointment. Nor
does he fault Sharp or Strick for this missed appointment. Jackson also fails to allege facts to

15

support a connection between Sharp’s diagnosis and his post-surgery care. Moreover, any delay
in Sharp’s diagnosis would amount, at best, to “negligent treatment,” which is not actionable as
an Eighth Amendment claim because “medical malpractice standing alone is not a constitutional
violation.” Tillery, 2018 WL 3521212, at *5 (quoting Estelle, 429 U.S. at 106).
Jacksons also avers that “[u]pon information and belief, all of the Defendants actively
and intentionally delayed Mr. Jackson’s second surgery until the time of which [he] was
expected to be paroled to avoid the costs associated with providing a second surgery.” ECF No.
6, § 39. The Complaint alleges no facts to support such an inference. Jackson’s claim that Sharp
intentionally misrepresented the severity of his condition to delay his medical treatment is also
conclusory and unsupported by his factual allegations. Defendants’ alleged inquiry regarding
Jackson’s parole date does not imply a motivation or intent to delay his care beyond his release
from DOC custody. And Jackson fails to allege facts to support that Defendants’ decision to
treat his leg length discrepancy with a shoe insert rather than surgery was anything other than an
exercise of medical judgment or that this choice “resulted in any life-threatening medical
problem or serious injury.” Ball v. Famiglio, 2011 WL 1304614, at *8 (M.D. Pa. Mar. 31,
2011). His subjective belief that corrective surgery was the proper or preferred treatment for his
post-operative complications does not support a claim. Although Jackson may disagree with the
course of treatment he received from Sharp and Strick, he fails to establish that their conduct
amounted to a constitutional violation. See, e.g., Payo, 2022 WL 912588, at *8 (holding that
‘‘(w]ithout more, [an inmate’s] disagreement [with his medical providers’ treatment decisions]
does not support an Eighth Amendment claim or demonstrate deliberate indifference to his
serious medical needs”); Young v. Quinlan, 960 F.2d 351, 358 n.18 (3d Cir. 1992) (explaining
that “an inmate’s disagreement with prison personnel over the exercise of medical judgment does

16

not state a claim for relief’). As such, the deliberate indifference claims against Sharp and Strick
should be dismissed.
b. The Eighth Amendment claim against Dr. Smith should be
dismissed because he is a private actor.
Jackson’s Eighth Amendment claim against Dr. Smith should be dismissed because the
facts alleged in the Complaint do not support a finding that he acted under color of state law. To
state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege facts to show that each
defendant, acting under color of state law, deprived him of a right secured by the Constitution or
laws of the United States. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
In other words, a plaintiff cannot proceed under § 1983 against a defendant unless he alleges
facts to show that the defendant acted under color of state law—i.e., was a “state actor” —and
participated in the deprivation of a federal constitutional or statutory right. Kach v. Hose, 589
F.3d 626, 646 (3d Cir. 2009) (emphasis added). Private actors, on the other hand, “do not act
under color of state law” and thus “are not liable under Section 1983.”8 Gerhart v. Energy
Transfer Partners, L.P.,2018 WL 6589586, at *9 (M.D. Pa. Dec. 14, 2018) (quoting Luck v.
Mount Airy #1, LLC, 901 F.Supp.2d 547, 560 (M.D. Pa. 2012)).
The Complaint identifies Dr. Smith as the surgeon who operated on Jackson’s hip at
Clarion Hospital. A private physician who had “contracted to perform services on a part-time
basis to a state prison within the prison confines [has been found to have] acted under of color of
state law for purposes of a § 1983 claim.” Hernandez v. Palakovich, 2010 WL 4683822, at *7

8 A non-state actor can be liable under § 1983 if he conspires with a state actor. See Abbott v. Latshaw, 164 F.3d 141,
147-48 (3d Cir. 1998) (“Although not an agent of the state, a private party who willfully participates in a joint
conspiracy with state officials to deprive a person of a constitutional right acts under color of state law for purposes
of § 1983.” (internal quotation marks omitted)). But Jackson has not asserted a conspiracy claim or alleged any facts
to support such a claim in this case.

17

(M.D. Pa. Nov. 10, 2010) (emphasis supplied) (citing West v. Atkins, 487 U.S. 42, 56-57 (1988)
(physician was a state actor where he was in “the State’s employ,” and “worked as a physician at
the prison hospital fully vested with state authority to fulfill essential aspects of the duty, placed
on the State by the Eighth Amendment and state law, to provide essential medical care to those
the State had incarcerated”). In this case, there are no allegations to suggest that Dr. Smith had a
contractual relationship with SCI-Forest or functioned as anything other than a private physician
at a public facility to which Jackson was taken for a surgical procedure that could not be
performed within the prison. According to the Complaint, Jackson only met with Dr. Smith at
Clarion Hospital and solely for his hip surgery and follow-up appointment. There is no basis to
infer that any type of relationship existed between the State of Pennsylvania and Dr. Smith. See
id. Because the facts alleged belie that Dr. Smith was a state actor, he is not amenable to suit
under § 1983.? Accordingly, the Eighth Amendment claim against Dr. Smith should be
dismissed.
c. The Complaint fails to state a Monell claim against Wellpath.
Jackson claims that Wellpath, as a matter of policy or custom, prioritized cost savings
over care and thereby caused its employees to provide inadequate medical care and less
efficacious treatment to inmates, including Jackson. In Monell v. Department of Social Services,
436 U.S. 658 (1978), the United States Supreme Court held that “a municipality may be liable
under § 1983 ‘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
injury that the government as an entity is responsible.’” Curran v. Venango County, 2023 WL
8439274, at *4 (W.D. Pa. Nov. 2, 2023) (quoting Monell, 436 U.S. at 694). This rule also

° Even if Dr. Smith was a state actor, the allegations regarding medical care and treatment amount at most to medical
malpractice, not deliberate indifference.
18

“extends to private corporations, like [Wellpath] ... that provide services pursuant to a
government contract.” /d. (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d
Cir. 2003)).
To state a claim against “‘a municipality or a private corporation performing the functions
of a governmental body,” the plaintiff must allege that a policymaker, “with deliberate
indifference to the consequences, established and maintained a policy, practice or custom which
directly caused [the plaintiff's] constitutional harm.” /d. (quoting source omitted). It is the
plaintiff's burden “to show that a policymaker is responsible either for the policy or, through
acquiescence, for the custom.” B.S. v. Somerset Cty., 704 F.3d 250, 274-75 (3d Cir. 2013)
(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). A policymaker
is an official with “final, unreviewable discretion to make a decision or take an action.” Andrews,
895 F.2d at 1481 (discussing City of St. Louis v. Praprotnik, 485 U.S. 112, 139-40 (1988)).
To hold Wellpath liable for deliberate indifference, Jackson must plead facts sufficient to
show “that there was a relevant [Wellpath] policy or custom, and that the policy caused the
constitutional violation [he] allege[s].” /d. at 584 (citing Bd. of County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997)). See Sims v. Wexford Health Sources,
635 Fed. Appx. 16, 20 (3d Cir. 2015). Company policy is created “when a ‘decisionmaker
possess[ing] final authority to establish a municipal policy with respect to the action’ issues an
official proclamation, policy, or edict.”, McTernan v. City of York, PA, 564 F.3d at 658 (3d Cir.
2009) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). This
“decisionmaker” must have ‘‘‘final, unreviewable discretion to make a decision or take an
action,’ and who is or is not a policymaker is determined by reference to state law.” Ginyard v.
Del-Prete, 2021 WL 3476601, at *5 (W.D. Pa. July 9, 2021) (quoting Andrews, 895 F.2d at

19

1481), report and recommendation adopted, 2021 WL 3472150 (W.D. Pa. Aug. 6, 2021). When
conduct cannot be attributed to company policy, it can “become[] corporate custom when it is ‘so
widespread as to have the force of law.’” Jd. (quoting Bd. of County Comm'rs of Bryan County,
520 U.S. at 404).
Jackson contends that Wellpath’s “policies and practices” require its employees “to
provide the most cost-efficient alternative treatments available,” and “avoid costly treatments
(such as surgery) if possible,” which “cause[d] the [D]efendants to resort to an easier course of
treatment known to be ineffective.” ECF No. 6, §§ 46,47. Jackson has not, however, alleged
any facts to support any such conclusion. See Ginyard, 2021 WL 3476601, at *5. Jackson’s
conclusory allegation is insufficient to support a § 1983 based on a Monell theory of liability.
See McCloskey, 803 Fed. Appx. at 583 (3d Cir. 2020); Perez v. Larson, 2020 WL 5507227, at *3
(M.D. Pa. Sept. 11, 2020) (quoting Berg v. County of Allegheny, 219 F.3d 261, 275-76 (3d Cir.
2000) (“Once a § 1983 plaintiff identifies a municipal policy or custom, he must ‘demonstrate
that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury
alleged.’”)). Nor can Jackson assert a § 1983 claim against Wellpath “under a theory of
respondeat superior or vicarious liability.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,
583 (3d Cir. 2003) (citing Monell, 436 U.S. at 691). Accordingly, the Court also recommends
that Jackson’s deliberate indifference claim against Wellpath be dismissed.
In summary, Jackson’s Eighth Amendment claim based on deliberate indifference to his
serious medical needs fails and should be dismissed as to all Defendants, except Leslie.

20

d. To the extent the Complaint asserts a medical malpractice claim
against the Wellpath Defendants, that claims should be dismissed
based on Jackson’s failure to submit a Certificate of Merit.
Jackson lastly asserts a medical malpractice claim based upon the medical treatment and
care he received for his left hip. Although it appears that Jackson only asserts his medical
malpractice claim against Dr. Smith, the Wellpath Defendants have raised his failure to submit a
Certificate of Merit (“COM”) as required by Rule 1042.3 of the Pennsylvania Rules of Civil
Procedure regarding any Defendant. As such, and in keeping with the Court’s duty to liberally
construe a pro se litigant’s Complaint, the undersigned will treat this claim as asserted against all
individual Defendants.'°
To support such a claim, Jackson must establish the following elements:
(1) the [medical professional] owed a duty to the patient; (2)
the [medical professional] breached the duty; (3) the breach of
duty was the proximate cause of, or a substantial factor in,
bringing about the harm suffered by the patient; and (4) the
damages suffered by the patient were a direct result of that
harm.
Grant v. Pennsylvania Dep't of Corr., 2021 WL 4312451, at *12 (W.D. Pa. Aug. 6, 2021)
(quoting Doe v. Hosp. of Univ. of Pa., 546 F. Supp. 3d 336 (E.D. Pa. 2021)), report and
recommendation adopted, 2021 WL 3828146 (W.D. Pa. Aug. 27, 2021).
Rule 1042.3 of the Pennsylvania Rules of Civil Procedure generally requires a plaintiff
asserting a medical or professional malpractice claim to file a Certificate of Merit (“COM”) for
each defendant who is the subject of the claim either with the complaint or within 60 days

'© Because no counsel has entered an appearance for Dr. Smith, counsel for the Wellpath Defendants lack standing to
raise the absence of a COM on his behalf. Furthermore, because this defense requires a Defendant to give notice
before a claim may be dismissed based on the absence of a COM, the Court may not rely on the absence of a COM to
dismiss the claim based on its screening authority.
21

thereafter. See 231 Pa. Code Rule 1042.3(a).'' The COM must attest that there is a reasonable
probability that the medical or other professional care described in the complaint fell outside of
acceptable professional standards. The Third Circuit has held that Rule 1042.3 is substantive law
that applies to professional malpractice claims based on Pennsylvania law that are asserted in
federal court. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 262-64 (3d Cir. 2011)
(citing Erie R.R. v. Thompkins, 304 U.S. 64 (1983)). Thus, for purposes of a motion to dismiss
or motion for summary judgment, Rule 1042.3 is applied as “controlling, substantive state law.”
Scaramuzza v. Sciolla, 345 F. Supp. 2d 508, 509-10 (E.D. Pa. 2004). “[A] plaintiff's failure to
comply with Rule 1042.3 requires dismissal of any malpractice claim.” Bennett v. PrimeCare
Medical, Inc., 2018 WL 6072126, at *10 (M.D. Pa. Sept. 14, 2018). While the Court recognizes
the difficulties inmates face in obtaining a COM, they are not excused from the requirements of
Rule 1042.3.
However, “Pennsylvania practice expressly provides plaintiffs with notice of Rule
1042.3’s requirements and an opportunity to cure any failure to file a certificate of merit before a

Rule 1042.3(a) of the Pennsylvania Rules of Civil Procedure states:
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable
professional standard . . . the plaintiff if not represented, shall file with the complaint or within
sixty days after the filing of the complaint, a certificate of merit signed by the . . . party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a
reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the complaint, fell outside acceptable professional standards
and that such conduct was a cause in bringing about the harm, or...
(2) the claim that the defendant deviated from an acceptable professional standard is based solely
on allegations that other licensed professionals for whom this defendant is responsible deviated
from an acceptable professional standard, or...
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the
claim.
231 Pa. Code Rule 1042.3(a).
22

matter is dismissed.” TranSystems Corp. v. Hughes Associates, Inc., 2014 WL 6674421, at *5
(M.D. Pa. Nov. 24, 2014). Rule 1042.6 of the Pennsylvania Rules of Civil Procedure states:
(a) ... a defendant seeking to enter a judgment of non pros under
Rule 1042.7(a) shall file a written notice of intention to file the
praecipe and serve it on the party's attorney of record or on the
party if unrepresented, no sooner than the thirty-first day after the
filing of the complaint.
Pa. R. Civ. P. 1042.6(a). Under this rule, no judgment may be entered against a plaintiff for
failure to timely file a COM unless the defendant has complied with its notice requirements.
Schmigel v. Uchal, 800 F.3d 113, 124 (3d Cir. 2015) (‘The condition of thirty days’ notice prior
to seeking dismissal of an action for failure to comply with the COM regime is substantive and
must be applied in federal court.’’).
Here, the Wellpath Defendants provided Jackson with the requisite notice of their
intention to seek dismissal on February 9, 2024. ECF No. 11. To date, Jackson has failed to
provide a COM as to CRNP Strick, CRNP Sharp, or CRNP Leslie. This failure is fatal to any
medical malpractice claim Jackson may be asserting against these Wellpath Defendants.'? As
such, the medical malpractice claim the Wellpath Defendants should be dismissed, without
prejudice.
E. Leave to Amend
If a complaint is vulnerable to dismissal for failure to state a claim, the Court should
permit a curative amendment unless an amendment would be inequitable or futile. Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend

'2 The Wellpath Defendants argue that Jackson’s failure to file a COM is also fatal to his Eighth Amendment
deliberate indifference claim because his allegations are merely an ‘attempt to constitutionalize tort law.” ECF No.
31, p. 1. However, a COM is not required for an Eighth Amendment deliberate indifference to medical needs claim
and therefore the absence of one provides no basis for dismissing such a claim. See, e.g., Crawford v. McMillan,
660 Fed. Appx. 113, 116 (3d Cir. 2016). Nevertheless, for the other reasons discussed above, the deliberate
indifference claim should be dismissed as to all Defendants except Leslie.
23

where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis,
371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within
the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any
Justifying reason appearing for the denial.” /d These instructions are equally applicable to pro
se litigants and those represented by counsel. A/ston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004).
In this case, it would be futile for Jackson to amend his Eighth Amendment claim against
Dr. Smith and so this claim should be dismissed with prejudice. But Jackson may be able to cure
the deficiencies of his Complaint to allege viable Eighth Amendment and medical malpractice
claims against one or more of the Wellpath Defendants. Accordingly, these claims should be
dismissed without prejudice and with leave granted to Jackson to file an amended complaint
within twenty days or such other time as the Court deems appropriate following adoption of this
Report and Recommendation. If Jackson fails to file an amended complaint within the specified
time, the Court should enter an order dismissing with prejudice all claims in this action except
the Eighth Amendment claim against Leslie and the medical malpractice claim against Dr.
Smith.
F. Conclusion
For the forgoing reasons, it is respectfully recommended that the Wellpath Defendants’
motion to dismiss the Complaint for failure to state a claim (ECF No. 16) be DENIED as to the
Eighth Amendment deliberate indifference claim against Leslie and GRANTED as to the Eighth
Amendment claim against Sharp and Wellpath and as to the medical malpractice claim against

24

all Wellpath Defendants. It is further recommended that the Eighth Amendment claim against
Dr. Smith and Strick be dismissed pursuant to the Court’s screening authority. It is further
recommended that the Eighth Amendment claim against Dr. Smith be dismissed with prejudice!?
and that all other claims recommended for dismissal herein be dismissed without prejudice and
with leave to amend.
Ill. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek
review by the district court by filing Objections to the Report and Recommendation within
fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the
objections shall have fourteen (14) days from the date of service of objections to respond thereto.
See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive appellate rights. See
Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d
Cir. 2007).

DATED this 7th day of August, 2024.

BY THE COURT:

CHIEF UNITED STATES MAGISTRATE JUDGE

3 The medical malpractice claim against Dr. Smith is unaffected by this Report and Recommendation.
25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765401. Public record. Not legal advice.