Opinion
Case No. 1:19-cv-000276
04-15-2020
LAMONT CAESAR, Plaintiff v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, CORRECT CARE SOLUTIONS, LLC, KIM SMITH (CCS), NURSE MARLOWE (CCS) Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (ECF NO. 23; ECF NO. 29) I. Recommendation
It is respectfully recommended that:
A. Defendants Pennsylvania Department of Corrections and Kim Smith's Motion to Dismiss (ECF No. 29) be GRANTED and that the Court dismiss the claims against these defendants with prejudice;II. Report
B. Defendants Correct Care Solutions and Nurse Marlowe's Motion to Dismiss (ECF No.23) be GRANTED, in part, and that the Court dismiss Plaintiff's Eighth Amendment claims against these defendants with prejudice; and
C. The Court decline to exercise supplemental jurisdiction of Plaintiff's state law professional negligence claim against Defendant Marlowe and REMAND this claim to the Court of Common Pleas for the 37th Judicial District of the Commonwealth of Pennsylvania, Forest County Branch.
A. Background
Plaintiff Lamont Caesar (Caesar) commenced this action in the Court of Common Pleas for the 37th Judicial District of the Commonwealth of Pennsylvania, Forest County Branch, against the Pennsylvania Department of Corrections (DOC), Kim Smith (Smith), Correct Care Solutions, LLC (Correct Care), and Nurse Marlowe (Marlowe). See ECF No. 1-2 (Complaint). Correct Care and Marlowe removed the action to this Court pursuant to 28 U.S.C. §1331, §1441 and §1446 on September 23, 2019. ECF No. 1. Correct Care and Marlowe moved to dismiss the claims against them on November 26, 2019. ECF No. 23. The DOC and Smith filed a separate Motion to Dismiss on December 13, 2019. ECF No. 29. On December 23, 2019, John F. Mizner, Esq., entered an appearance on Caesar's behalf. ECF No. 33. Counsel then filed a Response in Opposition to Correct Care and Marlowe's motion on December 30, 2019. ECF No. 37. Caesar did not respond to the DOC and Smith's motion.
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 Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 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 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, 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. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. 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 set forth 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. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). See also 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.").
Expounding on the Twombly/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 v. 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 "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. Finally, it is important to note that on a Rule 12(b)(6) motion to dismiss, a court may take into consideration an affirmative defense if such a defense "presents an insuperable barrier to recovery." Flight Sys. v. Elec. Data Sys. Corp., 112 F.3d 124, 127 (3d Cir. 1997). This defect in the plaintiff's claim, however, must appear on the face of the pleading. Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127, 130 (3d Cir. 2018). Axiomatically, as an affirmative defense, and on a motion to dismiss, it is the defendant's burden to demonstrate that a plaintiff has failed to state claim. Lupian, 905 F.3d at 130.
C. Analysis and Discussion — Motion to Dismiss Filed by the DOC and Smith ECF No. 29
Caesar's Complaint asserts Eighth Amendment deliberate indifference claims against the DOC and Smith based on allegedly inadequate medical treatment Caesar received for an injury he sustained to his left eye while playing basketball on May 15, 2017. ECF No. 1-2 at ¶¶ 14-15. Following his injury, Caesar was taken to the prison's medical department where he received three stitches. Id. at ¶ 18. Two of those stitches were removed a week later, but when his eye continued to bother him, Caesar noticed that a third stitch had not been removed. Id. at ¶¶ 19-20. He notified the Medical Department that his eye was still bothering him but was not seen by anyone until October 8, 2017. Id. at ¶¶ 30-25. By this point, Caesar's eye was swollen, infected, and was causing him headaches, vision problems, and dizziness. Id. at ¶¶ 29-30. The remaining stitch was ultimately removed, and Caesar was prescribed antibiotics for the infection. Id. at ¶ 36-37.
The DOC and Smith's motion raises several grounds for dismissal of Caesar's claims against them. Caesar has not filed a response in opposition to their motion.
1. Failure to Exhaust Administrative Remedies
The DOC and Smith first contend that Caesar's Complaint must be dismissed because he failed to exhaust his administrative remedies. ECF No. 30, p. 4. These Defendants have not attached evidence—neither affidavits nor the grievance record—to their motion. Instead, they summarily conclude that
Plaintiff failed to exhaust all of the legal claims he now seeks to raise. He fails to cite to a specific grievance where he raised the claims he now presents in this action. His failure to utilize the grievance process, as he is required to do under the PLRA necessitates that his claims be dismissed with prejudice.Id. at 5.
The Defendants are correct that the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), requires a prisoner to exhaust his administrative remedies before filing a lawsuit based upon prison conditions. The Act expressly provides that "no action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available are exhausted." Id. Administrative exhaustion must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). This requirement applies to all inmate suits regarding prison life, including those that involve general conditions or discrete events or acts of misconduct. Porter v. Nussle, 534 U.S. 516 (2002); Conception v. Morton, 306 F.3d 1347 (3d Cir. 2002). The exhaustion requirement is not a mere technicality; rather it is a mandate of federal law that federal district courts must follow. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (by using language "no action shall be brought," Congress has "clearly required exhaustion").
"Failure to exhaust[, however,] is an affirmative defense the defendant must plead and prove..." Small v. Camden Cty., 728 F.3d 265, 268-69 (3d Cir. 2013) (citing Jones v. Bock, 549 U.S. 199, 212, 216-17 (2007)). On a Rule 12(b)(6) motion to dismiss, a district court may consider an affirmative defense if such a defense "presents an insuperable barrier to recovery." Flight Sys. v. Elec. Data Sys. Corp., 112 F.3d 124, 127 (3d Cir. 1997). But this defect in the plaintiff's claim must appear on the face of the pleading. Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127, 130 (3d Cir. 2018). As an affirmative defense, it is the Defendants' burden, not Caesar's, to demonstrate that a plaintiff has failed to exhaust. Lupian, 905 F.3d at 130. That is, Caesar's failure to allege facts or produce evidence on the issue of exhaustion is not a basis for a motion to dismiss, as plaintiffs "are not required to ... demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216. Rather, it is the defendants' burden to demonstrate the plaintiff's failure to exhaust.
As noted above, the DOC and Smith have not attached any evidence, beyond their own assertions, from which the Court can determine that Caesar failed to exhaust. Thus, they have failed to meet their burden. Accordingly, the DOC and Smith's motion to dismiss should be denied to the extent it is based on the affirmative defense of failure to exhaust administrative remedies. However, as discussed below, other grounds exist to grant DOC and Smith's motion.
2. Section 1983 and Eleventh Amendment Immunity
First, the DOC correctly assert that it is not amenable to suit under 42 U.S.C. § 1983. It is well-settled that neither a state nor its agencies are considered a "person" as that term is defined under § 1983 and, therefore, they are not subject to a § 1983 suit. Hafer v. Melo, 502 U.S. 21, 25-27, (1991). Consequently, Caesar's § 1983 claims against the DOC fail because it is not a person within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that a state may not be sued in federal court pursuant to § 1983 and is not a "person" for purposes of that provision). Additionally, the DOC also correctly raises its Eleventh Amendment immunity as a bar to Caesar's claims against it. See Lavia v. Pa. Dep't of Corrs., 224 F.3d 190, 195 (3d Cir. 2000) (finding that the Pennsylvania Department of Corrections "shares in the Commonwealth's Eleventh Amendment immunity"). Because Caesar has failed to state a § 1983 claim against the DOC upon which relief can be granted and because it would be immune from such a claim in any event, the Court should dismiss the § 1983 claims raised against it, with prejudice.
3. Defendant Smith's Motion to Dismiss Should Be Granted.
Caesar's Complaint identified Smith as "the primary representative of Correct Care Solutions (CCS) for SCI-Forest and therefore so [sic] responsible for all CCS employees act[ing] under her supervision." ECF No. 1-2, ¶ 11. The Complaint further alleges that she was a "responsible official" who had knowledge of the requests he made for medical treatment and that she supervised Marlowe. Id. at ¶¶ 48, 51. Smith argues that Caesar's Complaint fails to allege her personal involvement in the treatment upon which he bases his claims. ECF No. 30, p. 7. More generally, she contends that Caesar has filed to state an Eighth Amendment claim. Id. at p. 8. The Court should grant her Motion to Dismiss on both grounds.
a. Lack of Personal Involvement
A prison official is not deliberately indifferent "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Caesar identifies Smith as a "CHCA" — a Chief Health Care Administrator. ECF No. 1-2, ¶ 11. As such, Caesar contends that she works for Correct Care and oversees its employees. Id. Defendants maintain that this is factually incorrect, apparently because Smith is a prison official, not an employee of Correct Care. Case law supports that contention. See, e.g., Washington v. Gilmore, 2019 WL 6255033 *1 n.2 (W.D. Pa. Nov. 22, 2019) (identifying CHCA as a 'correctional defendant').
First, apart from naming Smith as a defendant in this case, Caesar does not allege any specific wrongdoing on her part. While acknowledging that Smith "wasn't directly involved," Caesar argues that she is nonetheless liable because she supervised Marlowe. ECF No. 1-2, ¶ 51. This allegation is insufficient to establish personal involvement in the constitutional harm Caesar alleges to have suffered.
To establish personal liability against a defendant in a § 1983 action, that defendant "must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode, 845 F.2d at 1207. There are no allegations in the Complaint that Smith personally responded to Caesar's medical complaints or had any personal involvement in the treatment, or lack thereof, of those complaints. Thus, her Motion to Dismiss should be granted on that basis. See, e.g., Miller v. Price, 2016 WL 1089155, *9 (M.D. Pa. Mar. 21, 2016).
Further, assuming as the Court must that the allegations in the Complaint are true, a CHCA cannot be liable simply because he or she oversees the "vendors" who provide medical care to prisoners, See, e.g., Washington, 2019 WL 6255033 *6.
b. Caesar has failed to allege an Eighth Amendment Claim.
Caesar has also failed to allege facts to support an Eighth Amendment violation against Smith. The case law is clear that health care administrators (CHCAs) are "undisputedly administrators, not doctors ...," Thomas v. Dragovich, 142 Fed. Appx. 33, 39 (3d Cir. 2005), who are "not charged with prescribing medication or providing [an inmate] medical care" and "lack[ ] any medical authority to dictate the course of [an inmate's] treatment." Ascenzi v. Diaz, 2007 WL 1031516, at *5 (M.D. Pa. Mar. 30, 2007). The Third Circuit has held that prison officials who are not physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor. Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). The Third Circuit expanded upon its reasoning in Durmer, as follows:
Absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Here, Caesar acknowledges that he received medical treatment. Although he obviously had problems with the treatment he was receiving, there are no allegations indicating that Smith knew or had a reason to believe that medical staff were mistreating him or not treating him at all. Because the Complaint does not allege facts to support a plausible inference that Smith acted with deliberate indifference to Caesar's medical needs, Caesar's Eighth Amendment claim should be dismissed. See also Simmons v. Wetzel. 2018 WL 10230019, *5 (W.D. Pa. Aug. 10, 2018); Spencer v. Beard, 2010 WL 608276, at *4 n.5 (W.D. Pa. Feb. 17, 2010) (citing Hull v. Dotter, 1997 WL 327551, *4 (E.D. Pa. June 12, 1997); Freed v. Horn, 1995 WL 710529, *3-4 (E.D. Pa. Dec. 1, 1995)).
Caesar's bald assertion in the Complaint that Smith "knew about it" is not a sufficient basis for liability. See ECF No. 1-2, ¶ 48. In determining the sufficiency of a pro se complaint, the Court construes the facts stated in the complaint liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519 (1972). The Court "accept[s] as true all of the [factual] allegations in the complaint and reasonable inferences that can be drawn therefrom, and view[s] them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997). While a court will accept well-pled allegations as true, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Id. A court may dismiss a complaint if it appears that a plaintiff has not pled "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Here, Caesar pleads nothing beyond this allegation, which the Court should not accept as true for the purpose of deciding Smith's motion to dismiss. See Viera v. Williams, 2015 WL 5923193 *5 (M.D. Pa. Oct. 10, 2015).
D. Analysis and Discussion — Motion to Dismiss Filed by Correct Care and Marlowe. ECF No. 23
Caesar's Complaint claimed that Correct Care and Marlowe violated his rights under the Eighth Amendment to the Constitution as a result of their deliberate indifference to his serious medical need. They moved to dismiss these claims. See ECF No. 24, pp. 4-14. Caesar indicated in his Response to their motion that he does not object to the dismissal of these claims. ECF No. 37, ¶ 3. He further requested that the Court decline to exercise supplemental jurisdiction over his remaining professional negligence claim against Marlowe and remand that claim to state court. Id. at ¶ 4.
Based on Caesar's non-opposition, it is recommended that the Court grant Correct Care and Marlowe's motion to dismiss Caesar's Eighth Amendment claims against them and dismiss those claims with prejudice. Given the foregoing recommendations that all federal law claims be dismissed from this action, it is further recommended that the Court decline to exercise supplemental jurisdiction over Caesar's state law professional negligence claim against Marlowe and instead remand that claim to the Court of Common Pleas for the 37th Judicial District of the Commonwealth of Pennsylvania, Forest County Branch. IV. Conclusion
Given the foregoing, it is respectfully recommended as follows:
A. Defendants Pennsylvania Department of Corrections and Kim Smith's Motion to Dismiss (ECF No. 29) be GRANTED and that the claims against them be dismissed with prejudice as any amendment would be futile.V. Notice
B. Defendants Correct Care Solutions and Nurse Marlowe's Motion to Dismiss (ECF No. 23) be GRANTED, as unopposed, on the Eighth Amendment Claim. This dismissal should be with prejudice as any amendment would be futile.
C. The Court should decline to exercise supplemental jurisdiction over Plaintiff's remaining state law professional negligence claim against Defendant Marlowe and remand that claim to the state court.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are hereby given notice that they have fourteen (14) days to file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See EEOG v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (standard of appellate review when no timely and specific objections are filed).
Entered this 15th day of April, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge