Petition for Writ of Certiorari — Terrence R. Yoast, Petitioner v. Pottstown Borough, Pennsylvania, et al.

A71

who had sleep apnea but was denied a CPAP machine.!97

However, beyond conclusory allegations that MCCF

consistently refused to provide CPAP machines to pretrial

detainees, Yoast has not alleged that any policymakers

were aware of similar conduct.!98 Therefore, this claim will

be dismissed.

b. Failure to train

As explained above, when municipal liability is

based on a failure to train, “liability under section 1983

requires a showing that the failure amounts to ‘deliberate

indifference’ to the rights of persons with whom those

employees will come into contact.”!99 “[D]eliberate

indifference’ is a stringent standard of fault, requiring

proof that a municipal actor disregarded a known or

obvious consequence of his action.”200

However, Yoast has not “identif[ied] any facts

detailing specific deficiencies in any training programs.”201

Rather, he has merely stated a conclusory allegation that

MCCF failed to train prison guards properly. Moreover,

Yoast “has also failed to allege any facts showing that a

[MCCF] policymaker knew or should have known that the

[MCCF’s] current training policies would” lead to a

197 Doc. No. 90 at 6-7.

198 See Saleem, 2013 WL 5763206, at *2.

199 Thomas, 749 F.3d at 222 (quoting Carter, 181 F.3d at 357).

200 Td. at 224 (quoting Brown, 520 U.S. at 410).

201 Niblack, 2013 WL 4432081, at *9.

A72

violation of Yoast’s rights.2°2 Therefore because Yoast

“made conclusory and general claims of failure to... train,”

this claim will be dismissed.2°3

c. Failure to adopt policies

As explained above, an entity can be liable when a

“policymaker has failed to act affirmatively at all, [though]

the need to take some action to control the agents of the

government is so obvious, and the inadequacy of existing

practice so likely to result in the violation of constitutional

rights, that the policymaker can reasonably be said to have

been deliberately indifferent to the need.”204 “Such failures

to act, however, ‘can ordinarily be considered deliberate

indifference only where the failure has caused a pattern of

violations.” 2%

However, beyond conclusory allegations, Yoast has

failed to sufficiently allege a pattern of violations that

would have made the need to take action obvious.

Moreover, he has also “failed to identify any policymaker or

202 Mitzgerald, 2017 WL 3310676, at *19; see also Robinson v. Fair Acres

Geriatric Ctr., 722 F. App’x 194, 198 (8d Cir. 2018) (“Nor did Hope

allege that her injuries were caused by affirmative actions on the part

of a particular policymaker.”).

203 Wood, 568 F. App’x at 104.

204 Natale, 318 F.3d at 584 (3d Cir. 2003) (citations omitted).

205 Marvel v. Delaware Cty., No. 07-5054, 2009 WL 1544928, at *21

(E.D. Pa. June 2, 2009), aff'd sub nom. Marvel v. Cty. of Delaware, 397

F. App’x 785 (3d Cir. 2010) (quoting Berg v. County of Allegheny, 219

F.3d 261, 276 (8d Cir. 2000)).

A73

decisionmaker responsible for the unlawful conduct

alleged.”26 Therefore, this claim will also be dismissed.

4. PrimeCare

Liberally construing Yoast’s Complaint, he alleges a

failure-to-adopt a policy claim against PrimeCare based on

a single-incident theory.2°7 Although, as explained above,

generally a plaintiff must plead a pattern of violations, “[t]o

find deliberate indifference from a single incident violation,

the risk of [Yoast’s] injury must be a ‘highly predictable

consequence’ of [PrimeCare’s] failure to” adopt a policy.208

The “burden on the plaintiff in such a case is high.”209

Yoast’s claim fails because his allegation that

PrimeCare does not have a policy “to address the medical

needs of inmates with serious medical conditions” is a

conclusory allegation which the Court does not credit.21°

Moreover, to the extent that Yoast alleges that PrimeCare

failed to adopt a policy specifically requiring that CPAP

machines be provided to all prisoners with sleep apnea,

“fijt is not obvious that the existing policies of [PrimeCare]

would have been insufficient to address the serious medical

206 Wood, 568 F. App’x at 104.

207 Doc. No. 90 at 9.

208 Thomas, 749 F.3d at 222 (quoting Connick, 563 U.S. at 64).

209 Berg, 219 F.3d at 276 (citation omitted).

210 Doc. No. 90 at 72.

Aq74

needs of prisoners’ including plaintiff.”2!! Therefore, the

claims against PrimeCare will be dismissed as well.

IV. CONCLUSION

For the foregoing reasons, the Court grants

Defendants Justin O'Donoghue and Wisler

Pearlstine’s Motion to Dismiss, Defendants Edward Forbes

and Jeanne Forbes’s Motion to Dismiss, Defendants

Donald Cheetham and Legal Aid of Southeastern

Pennsylvania’s Motion to Dismiss, the Pottstown

Defendants’ Motion to Dismiss, and Defendants

Montgomery County, Kevin Steele, Timothy Stein, and

Ryan VanDorick’s Motion to Dismiss. The Court grants in

part and denies in part Defendants Anthony Hoch and

PrimeCare Medical’s Motion to Dismiss.

In civil rights cases, “district courts must offer

amendment — irrespective of whether it is requested —

when dismissing a case for failure to state a claim unless

doing so would be inequitable or futile.”?!2 Plaintiff has

already had the opportunity to file an Amended Complaint

in response to the first round of motions to dismiss, and in

the Amended Complaint, Plaintiff has set forth his claims

in exhaustive detail, the Defendants have painstakingly

211 Simonds v. Delaware Cty., No. 13-7565, 2015 WL 1954364, at *5

(E.D. Pa. Apr. 30, 2015) (quoting Dickson v. Cnty. of Gloucester N.J.,

No. 05-1444, 2007 WL 928477, at *5 (D.N.J. Mar. 27, 2007)).

212 Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d

247, 251 (3d Cir. 2007).

A75

responded, and the Court has comprehensively ruled on

each claim. Because Yoast has stated a claim against Hoch

for deliberate indifference to serious medical needs, the

Court will allow him to file a Second Amended Complaint

against VanDorick, Stein, Montgomery County, and

PrimeCare, with regard to the deliberate indifference

claims only, if he is able to do so in accordance with the

Memorandum Opinion. Despite spanning hundreds of

pages, his allegations against the other defendants fail to

state any viable claims stemming from his arrests and

prosecutions. Therefore, the Court determines that

amendment as to the rest of the claims would be futile and

inequitable.

No.

Iu the Supreme Court of the Gunited States

TERRENCE R. YOAST,

Petitioner

Vv.

POTTSTOWN BOROUGH, Et. al.

Respondents

CERTIFICATE OF SERVICE

I, Terrence R. Yoast, Petitioner, hereby certify that (3) copies of the

enclosed Petition for Writ of Certiorari were served upon counsel of record that

appeared for Respondents in the Third Circuit Court of Appeals. Service was

perfected on November 12th, 2023, by way of Federal Express and upon:

Sheryl L. Brown, Esquire

Siana Law

941 Pottstown Pike, Suite 200

Chester Springs, PA 19425

Counsel for the Respondents

(slbrown@sianalaw.com)

Respeetfully submitted,

Tce 5

Terrence R. Yoast, Petitiover

(267) 718-6034, Tyost97@AOL.COM

RECEIVED

NOV 16 2023

OF THE CLERK

GPREME COURT, oe

Dated: November 12+), 2023

No.

In the Supreme Court of the Anited States

TERRENCE R. YOAST,

Petitioner

V.

POTTSTOWN BOROUGH, Et. al.

Respondents

——————————————————————————————————————

CERTIFICATE OF WORD-COUNT LIMITATIONS

Petitioner, Terrence R. Yoast, hereby pledges that the foregoing Petition for

Writ of Certiorari comports to the word-count limitations prescribed and contains

6,506 words, excluding exemptions, as calculated by Microsoft Word software.

Respectfully submitted,

Terrence R. Yoast, Petite

(267) 718-6034, Tyost97@AOL.COM

Dated: November 12¢), 2023