Kennedy v. Primecare Medical, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SHANE KENNEDY,

Plaintiff, CIVIL ACTION NO. 1:24-cv-00841

v. (SAPORITO, J.)

PRIMECARE, INC., .,

Defendants.

MEMORANDUM

Plaintiff Shane Kennedy, presently incarcerated at SCI-Chester,

has filed an amended complaint (Doc. 25) against ten defendants

affiliated with the York County Prison regarding their treatment of his

broken foot and other injuries. The Court will permit Kennedy to proceed

on certain ordinary negligence and Fourteenth Amendment claims, and

claims for declaratory relief under the Pennsylvania Constitution, but

dismiss all other claims.

I. BACKGROUND

Upon screening of Kennedy’s original complaint pursuant to 28

U.S.C. § 1915A, the Court found that it stated viable claims against only

one defendant, an unidentified nurse. The Court permitted Kennedy to

seek discovery from the Warden of the York County Prison to identify the

relevant individual(s) and file this amended complaint. (Docs. 13, 14).

The amended complaint alleges as follows: On December 10, 2022,

before his incarceration, Kennedy suffered a work accident that left him

with a broken foot, concussion, lacerations to his head and ribs, and a

sprained and bruised back. On January 17, 2023, he was arrested and

taken to the York County Prison. During the intake process, he told Anita

Wolf-Folk, a nurse from PrimeCare Medical, Inc. (“PrimeCare”), the

prison medical provider, about his injuries. However, Wolf-Folk “released

[Kennedy] to General Population with no medical restrictions,” despite

[Kennedy] complaining about his various injuries and “serious pain.” A

scheduled follow-up with an orthopedist1 on January 23, 2023, was

“ignored” by unnamed medical staff.

For intermittent periods between February and March 2023,

Kennedy was assigned to sleep on a top bunk. There was no ladder on the

bed, so Kennedy repeatedly had to jump “approximately 5 feet” from the

bed to the concrete floor, which caused him pain and “further injur[ed]”

his broken foot. Kennedy alleges that he “made all of the defendants

1 It is unclear whether Kennedy is referring to an outside

appointment arranged prior to his arrest, or an appointment arranged by

the prison medical staff after intake.

aware of his broken foot and other injuries” and the lack of a ladder on

the top bunk. Specifically, he alleges that he “informed the Medical

Department about his broken foot,” “told many C/Os about his foot,” and

“physically show[ed] York County Officials his broken foot, along with

[Wolf-Folk].” These individuals “completely ignored his

complaints/pleas.”

On February 8, 2023, he told Lt. Jensing and Medical Assistant

Laura Foust that he had a broken foot and “can’t be housed on the top

bunk,” removing his sock to show that his foot was “clearly noticeably

broken.” However, both “ignored” the injury, and Foust assigned him to

the top bunk and top tier of the prison.

On February 9, during a strip search, Kennedy complained to C.O.

Mink about his foot. Mink “look[ed] down at [Kennedy’s] foot and sa[id]

all he see[s] are black toes and a crooked toe,” laughed, and then said

there was nothing he could do because he was “not in charge of the

moves.”

On February 24, he complained to unnamed correctional officers

about his foot and his placement within the prison, but these officers “told

him that they have nothing to do with the moves or restrictions and that

it is Medical and Classification who does that.” “[A] few” officers,

including C.O.s Easton and Figbore, “said that they called medical

informing them” that Kennedy had “what appears to be a broken foot.” A

different, unnamed officer told him that “if he didn’t take [the top] bunk

he would go to the [Behavioral Adjustment Unit] to get re-classified and

that would take up to five (5) days.”

On March 12, 2023, Kennedy “had an incident where his back gave

out on him,” which he attributes to jumping from the top bunk. He

suffered back spasms “to the point where [his] body was shaking

uncontrollably,” and had no feeling in his legs. A medical emergency was

called, and Kennedy was “yanked out of his bed” by two officers and

placed in a wheelchair. He was taken to medical segregation until March

16, 2023, and then returned to the general population. When he returned,

Kennedy “asked[] and was denied a walking instrument,” although he

was still having back spasms and numbness in his legs.

On March 27, 2023, during a strip search, Kennedy showed Lt.

Koch his foot and “explain[ed] that he can’t be housed on the top tier or

top bunk.” Koch “totally ignored [Kennedy] and ordered [him] to reside

on the top tier-top bunk.” At some point after that date, C.O. Sassani

approached Kennedy’s bunk to ask Kennedy to “sign some papers.”

Kennedy was hesitant to descend from the top bunk because of his

injuries. Sassani “started threatening [Kennedy,] calling him a liar”

about his medical complaints. Kennedy and Sassani began arguing, and

Sassani “ordered [Kennedy] to sign the papers or [Sassani] was coming

into [Kennedy’s] cell to him.” Kennedy ultimately jumped from the top

bunk, which caused him to “fall into the wall” and aggravate his injuries.

“Days later,” Sassani allegedly apologized to Kennedy for verbally

“assaulting” him.

On March 30, 2023, Kennedy was finally moved to a bottom bunk

on a lower tier of the prison. However, he complains of an apparently

unrelated incident on April 14, 2023. Between 6:15 and 6:45 p.m., he told

C.O. Smith that he was passing blood for the second time in 24 hours.

Smith “said that he called Medical twice and was waiting for them to call

back.” A nurse arrived between 9:45 and 10:15 p.m. The nurse asked the

sergeant on duty, Sgt. Sell, if he had called Medical. Sell responded that

he had called Medical around 7:15 p.m.2 Based on the timing of his

2 Kennedy’s description of this event is unclear, but he seems to

allege that Sell was on duty during the entire incident and therefore

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complaint to Smith, Kennedy infers that Sell was aware of his complaints

at 6:40 p.m. and deliberately delayed seeking medical help for 35

minutes.

Kennedy alleges that because of inadequate medical care, his foot

“heal[e]d wrong and is now deformed,” and he suffers “severe pain and

arthritis,” along with “continuous numbness.” An X-ray was performed

on or around May 26, 2023. An unidentified PrimeCare nurse allegedly

said: “I[’]m so sorry that we are just getting to this. I apologize for my co-

workers that we just getting to this. This should have been done.”

Kennedy seeks declaratory and monetary relief, and names ten

defendants: PrimeCare, Sassani, Wolf-Folk, Foust, Jenseng, Koch, Mink,

Easton, Figbore, and the “Deputy Warden” (presumably of the York

County Prison). Construed broadly3, Kennedy asserts the following

responsible for following up on Smith’s call to Medical. Between 9:10 and

9:25 p.m., Kennedy yelled to Sell during his rounds about this medical

issue. Sell replied: “[W]hat do you want me to do about it[?]”

3 Several of Kennedy’s claims are internally contradictory or

premised on unrelated legal theories. See, e.g., (Doc. 25 at 20) (PrimeCare

“committed negligence under the common law doctrine of respondeat

superior. [PrimeCare’s] involvement in this case amounts to a 1983

violation under a failure to train theory . . .”). The Court interprets

Kennedy’s claims broadly in accordance with the requirement that pro se

(continued on next page)

claims: (1) an excessive force claim against Sassani based on their

confrontation in his cell; (2) claims of deliberate indifference to a serious

medical need against Foust and Wolf-Folk; (3) state law negligence

claims against Wolf-Folk and PrimeCare; (4) “failure to train” claims

against an unspecified number of defendants; and (5) violations of the

Pennsylvania Constitution’s cruel and unusual punishment clause by all

defendants.

II. LEGAL STANDARDS

Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil

complaint in which a prisoner seeks redress from a governmental entity

or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a);

, 230 Fed. App’x 195, 197 (3d Cir. 2007). The

Court must dismiss the complaint if it is “frivolous” or “fails to state a

claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). The

Court has a similar obligation with respect to actions brought

and actions concerning prison conditions. 28 U.S.C. §

1915(e)(2)(B)(i); . § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1);

filings be liberally construed. See Estelle v. Gamble, 429 U.S. 97, 106

(1976).

, 568 F. Supp. 2d 579, 587–89 (W.D.

Pa. 2008) (summarizing prisoner litigation screening procedures and

standards).

The legal standard for dismissing a complaint for failure to state a

claim under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c) is the same as

that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. , 481 Fed. App’x 705, 706

(3d Cir. 2012) (per curiam); , 696 F. Supp. 2d 454, 471

(M.D. Pa. 2010); , 568 F. Supp. 2d at 588. “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff's claims lack facial

plausibility.” , 643 F.3d 77, 84 (3d Cir.

2011) (citing , 550 U.S. 544, 555–56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” , 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” , 719 F.3d 160, 165 (3d Cir. 2013) (quoting

, 481 F.3d 187, 195 (3d Cir. 2007)).

Kennedy brings this action for damages under 42 U.S.C. § 1983.

Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C. § 1983. To establish a Section 1983 claim, a plaintiff must

establish that the defendants, acting under color of state law, deprived

the plaintiff of a right secured by the United States Constitution.

, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid

dismissal for failure to state a claim, a civil rights complaint must state

the conduct, time, place, and persons responsible for the alleged

violations. , 423 F.3d 347, 353 (3d Cir. 2005). Further,

“[c]ivil rights claims cannot be premised on a theory of

. Rather, each named defendant must be shown . . . to have been

personally involved in the events or occurrences which underlie a claim.”

, 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014)

(citation omitted). As explained by the Third Circuit Court of Appeals:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs . . . . [P]ersonal

involvement can be shown through allegations of

personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual

knowledge and acquiescence, however, must be made

with appropriate particularity.

, 845 F.2d 1195, 1207 (3d Cir. 1988).

III. DISCUSSION

A. Excessive Force

Kennedy asserts that Sassani violated the Fourteenth Amendment

“when he used excessive force on [Kennedy] by forcing himself into

[Kennedy] and verbally assaulting him.” Because the complaint indicates

that Kennedy was a pretrial detainee at the time, Kennedy’s right to be

free from excessive force was guaranteed by the Fourteenth Amendment.

, 8 F.4th 187, 194 (3d Cir. 2021). To state

a claim for excessive force, “[a] pretrial detainee must show [] that the

force purposely or knowingly used against him was objectively

unreasonable.” (citing , 576 U.S. 389, 396-97

(2015)).

As explained in the Court’s prior memorandum, “verbal harassment

and threats,” although unpleasant, do not amount to a Fourteenth

Amendment violation. (Doc. 13 at 10); , No. 4:17-

CV-01742, 2018 WL 3596861, at *9 (M.D. Pa. July 6, 2018), report and

recommendation adopted, 2018 WL 3584687 (M.D. Pa. July 26, 2018).

Kennedy’s claim is unclear, but he seems to assert that Sassani, by

entering his cell and ordering him to dismount from the bed, effectively

used “force” that caused him to jump from the bed and aggravate his pre-

existing injury. Even accepting such an expansive definition of force, that

would not be “excessive” force. , No. 23-CV-4386,

2024 WL 4905200, at *5 (E.D. Pa. Nov. 27, 2024) ( force does

not violate the Fourteenth Amendment).

Further, Sassani’s order to descend was not “objectively

unreasonable” under the circumstances described here. The complaint

does not suggest that Sassani sought to impose punishment; to the

contrary, Kennedy claims that Sassani asked him to descend for the

purpose of signing paperwork, and later apologized because “he thought

[Kennedy] was making his injuries and restrictions up.” Given that

Kennedy was located on (and assigned to) the top bunk at the time of this

incident, Sassani’s assumption that he could safely descend would have

been entirely reasonable. 576 U.S. 389, 399

(2015) (“A court must judge the reasonableness of the force used from the

perspective and with the knowledge of the defendant officer.”).

B. Deliberate Indifference

Next, Kennedy asserts deliberate indifference claims against Foust

and Wolf-Folk, the two nurses who allegedly “ignored” his broken foot. A

pretrial detainee can state a claim under the Fourteenth Amendment by

alleging (1) “a serious medical need” and (2) “acts or omissions by

[individuals] that indicate a deliberate indifference to that need.”

, 88 F.4th 275, 281 (3d Cir. 2023) (citations

omitted). Deliberate indifference “requires both that an individual be

aware of facts from which the inference could be drawn of a substantial

risk and that the individual actually draws that inference.” .

Kennedy has plausibly alleged that Foust and Wolf-Folk4 showed

4 Although most of Kennedy’s discussion of “Deliberate

Indifference” claim is directed to Foust, he alleges within the same count

that Wolf-Folk’s “standard of care . . . constituted ‘reckless and callous

indifference’ . . . which is basically the same standard of showing

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deliberate indifference to a serious medical need, either by failing to

provide or arrange for medical treatment or failing to reevaluate

Kennedy when he continued to complain of pain. ,

182 F.3d 192, 197 (3d Cir. 1999) (“We have found ‘deliberate indifference’

. . . where the prison official [] knows of a prisoner’s need for medical

treatment but intentionally refuses to provide it . . . [or] persists in a

particular course of treatment in the face of resultant pain and risk of

permanent injury.”) (quotations and citations omitted).5

C. Negligence

The scope and intended defendants of Kennedy’s negligence claims

deliberate indifference.” (Doc. 25 at 17). Upon review, the Court

construes Kennedy as asserting deliberate indifference claims against

both nurses.

5 Kennedy does not directly assert deliberate indifference claims

against any other defendants, but to the extent they were intended, he

fails to state a claim for the reasons explained in the prior memorandum.

See (Doc. 13 at 12-14). In brief, prison officers were not deliberately

indifferent for failing to intervene in Kennedy’s medical care or declining

to override the judgment of the medical staff as to where he should be

placed within the prison. See , 88 F.4th at 285; ,

372 F.3d 218, 236 (3d Cir. 2004). Nor does the complaint support an

inference that Sgt. Sell intentionally delayed seeking medical care when

Kennedy was passing blood, or that any “brief delay” in seeking care

amounted to deliberate indifference. See Joh v. Suhey, 709 F. App’x 729,

730-31 (3d Cir. 2017).

are unclear. To the extent he asserts medical negligence claims against

any defendant, those claims will be dismissed. As described in the prior

memorandum, any claim of medical negligence or medical malpractice

would require Kennedy to file a Certificate of Merit within 60 days of the

original complaint, which was filed on May 21, 2024. (Doc. 13 at 15-

16); Pa. R. Civ. P. 1042.3. That time has already elapsed and is not reset

by an amended complaint. , 546 F.

Supp. 2d 238, 255 (E.D. Pa. 2008) (listing cases). Further, a court can only

extend the deadline for a maximum of 60 days, Pa. R. Civ. P.

1042.3(d), and that period has also elapsed.

Kennedy separately asserts a negligence claim against Wolf-Folk

based on her failure to properly screen him during jail intake. In certain

circumstances, courts have recognized a claim for ordinary negligence

when a medical provider breaches a duty that does not involve an issue

of medical judgment. , No. 4:22-CV-487, 2024

WL 2094014, at *2 (M.D. Pa. May 9, 2024) (listing cases). The plaintiff

must establish a breach of the duty of care, causing harm to the patient,

and damages suffered from that harm. See Ortiz v. United States, No.

1:23-cv-00203, 2024 WL 1620790, at *19 (M.D. Pa. Apr. 15, 2024) (citing

Mitchell v. Shikora, 209 A.3d 307, 314 (Pa. 2019)).

Here, Kennedy alleges that he informed Wolf-Folk of his injuries

during the “intake process,” but Wolf-Folk “ignored” and “failed to attend”

to these injuries. This could be construed as a breach of duty premised on

outright failure to screen Kennedy, rather than improper medical

judgment. , No. 1:15-CV-1261, 2016 WL

3913575, at *7 (M.D. Pa. Apr. 6, 2016) (allegations of “administrative

negligence in the screening and placement of inmates” sounded in

ordinary negligence), report and recommendation adopted, 2016 WL

3908400 (M.D. Pa. July 19, 2016). Noting the requirement of liberal

construction at the pleading stage, the Court will permit Kennedy to

proceed on a claim of ordinary negligence against Wolf-Folk. Because

Wolf-Folk was allegedly a PrimeCare employee, Kennedy may also

proceed on a negligence claim against PrimeCare on a theory of

. , , , No. 3:11-CV-

00413, 2015 WL 5123635, at *15 (M.D. Pa. Aug. 31, 2015);

, No. CIV.A. 04-1039, 2006 WL 1490145, at *3 (E.D. Pa.

May 24, 2006).

D. Failure to Train/Municipal Liability

Kennedy asserts a Section 1983 claim against PrimeCare under a

“failure to train” theory. A plaintiff can assert a claim against a private

prison medical provider by showing that “a custom or policy” caused the

alleged constitutional violation.

, 318 F.3d 575, 583-84 (3d Cir. 2003). However, Kennedy alleges

no facts indicating that PrimeCare failed to train any of its employees.

He concludes from the allegedly deficient performance of Wolf-Folk and

Foust that it is “evident” PrimeCare failed to train them, but the

complaint lacks any allegations about their training or the way in which

it was supposedly deficient. Nor does he allege any other PrimeCare

policy or custom that caused the violations: to the contrary, he alleges

that PrimeCare policy requires giving “patients access to care . . . to meet

their serious medical, dental, and mental health needs,” and that this

“policy was not followed by either nurse.” (Doc. 25 at 21). Essentially, this

is an attempt to assert liability, which although

permissible for Kennedy’s negligence claim, is not permitted for a Section

1983 claim. , 318 F.3d at 583.

Kennedy also asserts liability for the York County Prison and an

unspecified number of municipal officials and entities6, for some

combination of Sassani’s allegedly excessive force, the nurses’ failure to

treat his broken foot, and non-medical officers’ response to his

complaints. Any such claim fails because these entities were not listed as

defendants, a prison is not a “person” subject to suit under Section 1983

( , 528 F. App’x 111, 114 (3d Cir. 2013)), and

no facts show that any alleged violations were the result of municipal

policies or practices.

E. Pennsylvania Constitution

Finally, Kennedy asserts in a separate count that “all defendants

violated . . . the Pennsylvania Constitution’s Cruel Punishment Clause.”

“[T]he rights secured by the Pennsylvania [Constitution’s] prohibition

against ‘cruel punishments’ are coextensive with those secured by the

Eighth and Fourteenth Amendments,” meaning that it does not offer any

greater protection than the federal equivalent.

, 500 Pa. 16, 73-74 (1982). Pennsylvania does not provide a

private right of action for monetary damages based on violations of its

6 Any claim intended against prison administrators, including the

Warden and Deputy Warden, separately fails for Kennedy’s failure to

allege their personal involvement. , 845 F.2d at 1207.

Constitution, but a plaintiff may seek declaratory relief.

, No. 1:23-CV-01756, 2024 WL 5239879, at *5-6 (M.D. Pa. Dec.

27, 2024); , No. 1:22-CV-00618, 2023

WL 2390676, at *10 (M.D. Pa. Mar. 7, 2023) (listing cases). Thus,

Kennedy may proceed on claims for declaratory relief under the

Pennsylvania Constitution against Foust and Wolf-Folk, the two

individuals against whom he has stated Fourteenth Amendment

deliberate indifference claims.

IV. CONCLUSION

For the reasons described above, Kennedy will be permitted to

proceed on ordinary negligence claims against Wolf-Folk and PrimeCare,

Fourteenth Amendment deliberate indifference claims against Foust and

Wolf-Folk, and claims for declaratory relief under Article I, Section 13 of

the Pennsylvania Constitution against Foust and Wolf-Folk. An

appropriate order follows.

Dated: March 28, 2025

JOSEPH F. SAPORITO, JR.

United States District Judge