TOMPKINS v. PRIMECARE MEDICAL INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TRENT JOHN TOMPKINS, )

)

) 2:19-CV-1089

Plaintiff, )

)

v. )

)

PRIMECARE MEDICAL INC.; et al., )

)

)

Defendants. )

MEMORANDUM ORDER

This pro se prisoner civil-rights case was referred to Magistrate Judge

Maureen P. Kelly for proceedings in accordance with the Magistrates Act, 28 U.S.C.

§ 636(b)(1), and the Local Rules of Court applicable to Magistrate Judges.

Mr. Tompkins filed a Fifth Amended Complaint on January 4, 2022, asserting

eight claims for relief: (1) Count I, excessive force in violation of the Fourteen

Amendment against Kenneth Rodgers, C.O. Sherman, C.O. Peters, C.O. Cochran,

C.O. Vasconi, C.O. Gioan, and C.O. John Doe; (2) Count II, failure to train against

the Mercer County Jail, Erna Craig, and Mac McDuffie; (3) Count III, intentional

discrimination under the ADA against the Mercer County Jail; (4) Count IV,

intentional discrimination under the Rehabilitation Act against the Mercer County

Jail; (5) Count V, deliberate indifference to inhumane conditions of confinement

against the Mercer County Jail and Erna Craig; (6) Count VI, unconstitutional

pretrial punishment without due process of law; (7) Count VII, battery against

Kenneth Rodgers, C.O. Sherman, C.O. Peters, C.O. Cochran, C.O. Vasconi, C.O.

Gioan, and C.O. John Doe; and (8) Count VIII, assault against Kenneth Rodgers, C.O.

Sherman, C.O. Peters, C.O. Cochran, C.O. Vasconi, C.O. Gioan, and C.O. John Doe.

ECF 144. Defendants then answered the Fifth Amended Complaint. ECF 149.

After discovery, Defendants filed a motion for summary judgment as to all of

Mr. Tompkins’s claims. ECF 200; ECF 201. Currently before the Court is ECF 211,

a Report & Recommendation filed by Judge Kelly, recommending that the Court

grant in part and deny in part Defendants’ motion for summary judgment. Judge

Kelly recommends that the Court: (1) grant the motion on Mr. Tompkins’s “claims for

excessive force (Count I), assault (Count VII), and battery (Count VIII)” in favor of

Defendants Vasconi and Cochran, but deny the motion on those counts as to

Defendants Gioan, Sherman, Peters, and Rodgers; (2) “grant the [m]otion for

[s]ummary [j]udgment as to [Mr. Tompkins’s] claims for failure to train (Count II),

discrimination in violation of the ADA (Count III) and in violation of the

Rehabilitation Act (Count IV), inhumane conditions of confinement (Count V), and

the violation of his rights to procedural due process (Count VI)”; and (3) dismiss

Defendant C.O. John Doe from the case. ECF 211.

The parties were notified that, pursuant to 28 U.S.C. § 636(b)(1), objections to

the Report & Recommendation were due within fourteen days, or seventeen days for

unregistered ECF users. Mr. Tompkins filed a request for an extension of time to file

objections, which was granted. ECF 212; ECF 213. Mr. Tompkins then filed

objections, objecting to Judge Kelly’s recommendation “on the issues of the Americans

with Disabilities/Rehabilitation Act (Count III and Count IV), Failure to Train and

Supervise (Count II) and Conditions of Confinement (Count V).” ECF 214.

To begin with, the Court has reviewed Judge Kelly’s recommendations as to

Counts I, VI, VII, and VIII, to which Mr. Tompkins did not object, for clear error. Tice

v. Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006) (Ambrose, J.), aff’d, 276 F. App’x

125 (3d Cir. 2008). Finding no clear error, the Court adopts those recommendations.

As to Judge Kelly’s recommendations as to Counts II, III, IV, and V, to which

Mr. Tompkins objected, the Court reviews those recommendations de novo. 28 U.S.C.

§ 636(b)(1). In his objections, Mr. Tompkins argues that (1) the ADA and

Rehabilitation Act apply to day-to-day jail operations; (2) his conditions-of-

confinement claim includes more than the so-called “cell-illumination issue;” and (3)

because the corrections officers were following “a custom,” that is sufficient for his

failure-to-train claim to survive summary judgment. ECF 214.

After careful review, the Court overrules Mr. Tompkins’s objections and adopts

Judge Kelly’s recommendations.

ADA and Rehabilitation Act claims.

Mr. Tompkins first objects to Judge Kelly’s finding that he failed “to establish

that he was denied the opportunity to participate in or benefit from the programs,

services or activities of a public entity[.]” ECF 214, p. 1. Judge Kelly was correct in

her finding.

Initially, no one disputes that the ADA and Rehabilitation Act apply to inmates

in state prisons, including the Mercer County Jail. Pennsylvania Dep’t of Corr. v.

Yeskey, 524 U.S. 206, 209, (1998); Furgess v. Pennsylvania Dep’t of Corr., 933 F.3d

285, 291 (3d Cir. 2019). And, as Judge Kelly observed, there doesn’t appear to be a

dispute over whether Mr. Tompkins is a qualified individual with a disability. ECF

211, p. 29.

The main problem with Mr. Tompkins’s ADA and Rehabilitation Act claims is

that Mr. Tomkins’s theory of liability doesn’t work, at least based on the facts

presented. To bring ADA and RA claims, Mr. Tompkins must show that he was

denied a service or program, or was discriminated or disciplined differently because

of his disability. Durham v. Kelley, 82 F.4th 217, 225 (3d Cir. 2023) (“to state a claim

under Title II of the ADA, plaintiffs must demonstrate that: (1) they are qualified

individuals; (2) with a disability; and (3) they were excluded from participation in or

denied the benefits of the services, programs, or activities of a public entity, or were

subjected to discrimination by any such entity; (4) by reason of their disability.”). He

has simply failed to do so. Indeed, the record reflects that Mr. Tompkins received

specialized treatment for his disability, including ongoing care by medical and mental

health professionals, medication to treat his condition (which he refused), and

eventual transfer to a psychiatric treatment facility. See ECF 203-4; ECF 203-6; ECF

No. 203-8. While Mr. Tompkins argues that he was discriminated against due to his

mental illness when officers used force against him, he has no facts to support this.

ECF 207, pp. 5-7.

The reality is that the record here demonstrates that the discipline meted out

was due to alleged misconduct, not disability. And Mr. Tomkins’s challenges to the

appropriateness of that force is, of course, captured by Counts I, VII, and VIII, which

have survived summary judgment. But as to specific claims based on the ADA and

RA, those claims have no support, and so must be dismissed. Scherer v. Pennsylvania

Dep’t of Corr., No. 04-191, 2007 WL 4111412, at *44 (W.D. Pa. Nov. 16, 2007) (Gibson,

J.) (holding that there was no discrimination under the ADA when a prisoner was

kept in the RHU based on misconduct, not his mental illness).

The Court therefore overrules Mr. Tompkins’s objection to Judge Kelly’s

recommendation as to the ADA and Rehabilitation Act claims.

Conditions-of-confinement claim. Mr. Tompkins argues that his

conditions-of-confinement claim is not only challenging the use of lighting, but also

“issues of abuse and improper confinement.” ECF 214, p. 3. Mr. Tompkins’s

argument also seems to indicate that he is challenging the level of medical care and

treatment that he received at the Mercer County Jail. Id. at 4.

Mr. Tompkins’s Fifth Amended Complaint (which was drafted by counsel

before Mr. Tompkins elected to proceed pro se) only includes the lighting issue as part

of the conditions-of-confinement claim. ECF 144, ¶¶ 130-138.

In response to this, Mr. Tompkins relies on paragraph 130, which is an

incorporation paragraph stating that “Plaintiff incorporates all previous paragraphs

of this Fifth Amended Complaint as if fully stated here[,]” as support for his

expansion of his conditions-of-confinement claim. Id. at ¶ 30; ECF 214, pp. 3-4.

“[W]hile a complaint may incorporate by reference any prior paragraphs that

are necessary to pleading a plausible cause of action, it may not use the improper

expedient of simply incorporating by reference all prior paragraphs, be they

supportive or relevant to the cause of action or not, since such a practice does not

provide adequate notice for purposes of Rule 8.” Fuhrman v. Mawyer, No. 21-2024,

2023 WL 5672314, at *15 (M.D. Pa. Sept. 1, 2023) (cleaned up) (emphasis original).

And Mr. Tompkins may not constructively amend his complaint through his response

to Defendants’ summary-judgment motion. Pinson v. United States, 826 F. App’x 237,

241, n.10 (3d Cir. 2020). As such, his conditions-of-confinement claim is limited to

Mercer County Jail’s policy of keeping the lights on during all hours of the night.

Mr. Tompkins’s objection to this claim focuses on issues other than the lighting

and does not address Judge Kelly’s recommendation as to that specific claim. ECF

214, pp. 3-4. And on a de novo review of the record, the parties’ briefing, Judge Kelly’s

recommendation, and the applicable law, the Court can identify no error with Judge

Kelly’s recommendation as to the lighting issue.

The Court therefore overrules Mr. Tompkins’s objection to Judge Kelly’s

recommendation as to the conditions-of-confinement claim.1

Failure-to-train claim. Mr. Tompkins argues that the conduct of the jail

guards meets the standard of a “custom” such that his failure-to-train claim should

survive summary judgment. ECF 214, pp. 4-6.

“Establishing municipal liability on a failure to train claim under § 1983 is

difficult” because a plaintiff “must identify a failure to provide specific training that

1 While courts “should freely give leave when justice so requires[,]” (Fed. R. Civ. P. 15

(2)) granting Mr. Tompkins leave to amend here would prejudice Defendants because

discovery is closed and Mr. Tompkins has had ample opportunity to refine his

complaint at this point in the case.

has a causal nexus with their injuries and must demonstrate that the absence of that

specific training can reasonably be said to reflect a deliberate indifference to whether

the alleged constitutional deprivations occurred.” Reitz v. Cnty. of Bucks, 125 F.3d

139, 145 (3d Cir. 1997). “To survive summary judgment on a failure to train theory,

[a plaintiff] must present evidence that the need for more or different training was so

obvious and so likely to lead to the violation of constitutional rights that the

policymaker’s failure to respond amounts to deliberate indifference.” Brown v.

Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001).

Here, the only evidence in the record related to training is in Defendants’

responses to Mr. Tompkins’s interrogatories, where they assert that “Mercer County

Jail officials are trained as to the policies and procedures of the jail in accordance

with state law and regulations.” ECF 203-11, p. 3. Mr. Tompkins argued in his brief

in opposition to Defendants’ motion for summary judgment that this response was

“stonewalling” by Defendants. ECF 207, p. 7. But based on the Court’s review of the

record, Mr. Tompkins never moved to compel any additional responses. See ECF 211,

p. 26. At the summary-judgment stage, Mr. Tompkins is required to come forward

with sufficient admissible evidence to establish each element of his claim. Even

drawing all inferences in Mr. Tompkins’s favor as the Court is required to do at

summary judgment, there is no evidence in the record to support Mr. Tompkins’s

claim that the Mercer County Jail failed to train its employees in such a way that

amounted to reflect deliberate indifference, as Judge Kelly properly recognized in her

recommendation.

The Court therefore overrules Mr. Tompkins’s objection to Judge Kelly’s

recommendation as to the failure to train claim.

AND NOW, this 14th day of February, 2025, it is hereby ORDERED that

Defendants’ motion for summary judgment (ECF 200) is GRANTED IN PART and

DENIED IN PART as follows:

(1) Defendants’ motion for summary judgment as to Mr. Tompkins’s claims

for excessive force (Count I), assault (Count VII), and battery (Count

VIII) is GRANTED in favor of Defendants Vasconi and Cochran, but

DENIED as to Defendants Gioan, Sherman, Peters, and Rodgers;

(2) Defendants’ motion for summary judgment is GRANTED as to Mr.

Tompkins’s claims for failure to train (Count II), discrimination in

violation of the ADA (Count III) and in violation of the Rehabilitation

Act (Count IV), inhumane conditions of confinement (Count V), and the

violation of his rights to procedural due process (Count VI).

It is FURTHER ORDERED Defendant C.O. John Doe is DISMISSED from

the case.

It is FURTHER ORDERED that Judge Kelly’s Report & Recommendation

(ECF 211) is ADOPTED as the opinion of the Court, subject to the additional

discussion in this order.

Dated: February 14, 2025 BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

cc:

Trent John Tompkins

510 Main Street

Prospect, PA 16052