Opinion
Civil Action 2:21-cv-00174
04-18-2022
JAMES J. DULACY, JR., Plaintiff, v. ALLEGHENY COUNTY, et al, Defendants.
Judge David S. Cercone
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS
ECF Nos. 44 and 46
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
For the reasons stated herein, it is respectfully recommended that the Motions to Dismiss Plaintiff's Second Amended Complaint, ECF No. 40, be adjudicated as follows:
1) Motion filed by Defendants Allegheny County Jail, Allegheny County Jail Medical, Warden Orlando Harper, and Deputy Warden/Medical Supervisor Laura Williams (collectively “Corrections Defendants”), at ECF No. 44, to be granted with prejudice as to Defendants Allegheny County Jail and Allegheny County Jail Medical. It is further recommended that the Motion be granted without prejudice as to the Individual Defendants.
2) Motion filed by Defendant Allegheny Health Network (“Medical Defendant”) at ECF No. 46, to be granted without prejudice.
Finally, it is recommended that Plaintiff be given leave to amend, in accordance with the guidance previously provided to him at ECF Nos. 8 and 9, and the further guidance provided herein. Plaintiff's Third Amended Complaint, if any, should be limited to the specific allegations he may make in good faith support of his claim of “deliberate indifference to a serious medical condition” in violation of his Constitutional rights by remaining Defendants and/or other entities or persons identified or yet unknown by name.
See ECF No. 8 at n. 1 (explaining the permissibility of “John/Jane Doe” designations in otherwise factually-specific allegations when Plaintiff does not yet know the name of the person against whom he makes the particularized allegation).
I. Procedural and Factual History
Plaintiff James J. Dulacy, Jr. (“Plaintiff” or “Dulacy”), at all relevant times an inmate of the Allegheny County Jail (“ACJ”), commenced the present pro se prisoner civil rights action, per 18 U.S.C. § 1983, with the filing of a Motion for Leave to Proceed in forma pauperis which was granted in March, 2021. ECF No. 6. Pursuant to the Court's Orders at ECF Nos. 8 and 9, providing guidance regarding the requisite amendment of Plaintiff's Complaint and the Court's Standing Practice for pro se civil rights plaintiffs, Plaintiff's Amended Complaint against the above Defendants was entered at ECF No. 13. Defendants' Motions to Dismiss were filed at ECF Nos. 29 and 31, in response to which Plaintiff further amended his complaint, rendering the motions moot. See Second Amended Complaint, ECF No. 40. Defendants' then filed renewed Motions to Dismiss at ECF Nos. 44 and 46 and Plaintiff Responded at ECF No. 52. The Motions are now ripe for review.
Plaintiff attests that at the time of his incarceration at ACJ and his related “intake medical evaluation”, he made medical staff aware of his history of ear infections and need for ear plugs and ear care. He suffered ear infections throughout the time of his incarceration at ACJ, i.e., approximately November/December 2019 through June 2021, and “could not get adequate treatment”. In particular, Plaintiff attests that he has been in pain from chronic/repeated ear infections, lost “equilibrium”, and suffered hearing loss which he attributes to Defendants' failure to provide him either (a) earplugs and basic ear care materials requested, or (b) “proper” medical care. Plaintiff further assets that (a) he waited seven months to see a doctor (“ENT 1”), and another seven months to see a second doctor (“ENT 2”) pursuant to the first's referral. And he asserts that ENT 2's testing, ordered January, 2021, was not completed in ENT 2's four-week return window, further delaying Plaintiff's second assessment to April, 2021. At that time, ENT 2 advised Plaintiff he could not have ear surgery “due to his circumstances” and recommended he look into obtaining hearing aids. See generally ECF No. 13, ECF No. 40, ECF No. 52.
During these intervals, Plaintiff attests that he was given various explanations, including that external treatment was pending approval and that his paperwork had been lost. Plaintiff neglects to further identify particular individuals, statements or dates.
Plaintiff attests that he also did not receive proper medical care for a left leg/ankle infection which remained open/did not heal and worsened during the same incarceration period. He recounts that he was treated at the wound care clinic, directed to administer self-care with topical ointment provided, but (as somewhat inconsistently alleged) ran out of the medication “several times” and “never got any more.”
The few records attached as Exhibit 1 to Plaintiff's Second Amended Complaint partially support Plaintiff's assertion of ear infections (for which there are seven treatment notes from March 4, 2020 to June 27, 2020). ECF No. 40-1. The records also support Plaintiff's assertion of an unhealing ankle wound during that time, which is attributed to a prior surgical scar that opened due to shackles, dry skin, edema and/or lack of support (for which Plaintiff was also treated on several occasions, including early orders restricting further shackle use and prescribing (a) supportive hose/brace, (b) supportive shoes, and prescription ointment).
The Court notes that the time period corresponds to the beginning of the Covid-19 pandemic. Cf. ECF 40-1 (CRNP note of 3/20/20 that “[w]hen there is movement in the jail, we will bring him up to the clinic to be examined”).
These records indicate that (a) Plaintiff was being repeatedly seen/examined, and prescribed various antibiotics, prednisone and/or ear drops, (b) his prior ENT treatment history at UPMC Ear clinic in 2016 was located and consulted, and (c) his ENT 1 appointment was originally scheduled for May 7 but rescheduled by the ENT for June 30, 2020. ENT 1 then referred Plaintiff to either of two named specialists. ECF No. 40-1.
Plaintiff brings a claim under 18 U.S.C. § 1983 against the named Defendants for violation of his Eighth Amendment right to be free from “cruel and unusual punishment”. His claim is premised on Defendants' alleged deliberate indifference to a serious medical condition, which would amount to a Constitutional violation.
The Court notes as a matter of initial impression on the facts, and for Plaintiff's guidance, that the records in ECF No. 40-1 do not, of themselves, appear to support a plausible Eighth Amendment “deliberate indifference to a serious medical condition” during the time period of February/March through June 30, 2020. The applicable standard is discussed herein.
II. STANDARD OF REVIEW
A. General Standard on Motion to Dismiss; Pro Se Consideration
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6): Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013); Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). When dismissing a claim pursuant to Fed.R.Civ.P. 12(b)(6) in a civil rights case, the Court must sua sponte permit a curative amendment unless it would be inequitable or futile. Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
B. Consideration of Matters Within the Complaint
In ruling on a motion to dismiss, the Court may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” together with any document “integral to or explicitly relied upon in [framing] the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Only if the Court in its discretion considers other matters outside the pleadings, must the motion be converted to a factual challenge akin to a motion for summary judgment, and the parties provided reasonable opportunity to present all material relevant to a summary judgment motion prior to the Court's adjudication. Fed.R.Civ.P. 12(d).
III. ANALYSIS
A. § 1983 Requirement of “ Person Acting Under Color of State Law”
Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. In pertinent part, § 1983 provides as follows:
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....Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). To establish a Section 1983 claim, a plaintiff must show a deprivation of a “right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)).
It is well established in the Third Circuit that a prison is not a “person” subject to suit under federal civil rights laws. See e.g., Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973) (holding prison not a “person” subject to suit under § 1983); Slagle v. Cty of Clarion, 435 F.3d 262, 264 n.3 (3d Cir. 2006); Crawford v. McMillan, 660 Fed.Appx. 113, 116 (3d Cir. 2016) (affirming summary dismissal of claims against Lackawanna County Prison “because the prison is not an entity subject to suit under 42 U.S.C.§ 1983”). See also, e.g., Griffin v. Allegheny County Prison, 2018 WL 6413156, at *3 (W.D. Pa. Nov. 5, 2018); Meyers v. Schuylkill County Prison, No. 04-1123, 2006 WL 559467, at *8 (M.D. Pa. Mar.7, 2006) (holding that correctional facility “has no existence apart from the government and cannot be considered a person for purposes of maintaining a civil rights action”).
The Court notes that a municipality can be held liable under § 1983 based on respondeat superior. Monell v. Dept. of Soc. Serv., 436 U.S. 658, 692 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986). To succeed on that basis, a plaintiff must establish the defendant maintained a policy, procedure or custom which caused his injury in violation of a Constitutionally-protected right. See discussion infra.
The Allegheny County Jail Medical department (“ACJ Medical”) is similarly simply not a “person” subject to suit under § 1983. See e.g., Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973) (concluding that a prison medical department was not a “person” for purposes of § 1983); Bertalan v. SCI Graterford State Prison, No. 18-69, 2018 WL 491007, at *1 (E.D. Pa. Jan. 18, 2018) (noting that a prison's maintenance and medical departments were not “persons” for purposes of § 1983); DiMaio v. George W. Hill Intake Dept., 367 F.Supp.3d 301, 304-05 (E.D. Pa. 2019) (noting that the facility's intake department was not subject to suit under § 1983).
Accordingly, the ACJ and the ACJ Medical Defendants should be dismissed from this action with prejudice. There is no dispute that Individual Defendants Harper and Williamson were acting under color of state law at all times relevant to this litigation.
B. Eighth Amendment Claim: Deliberate Indifference to Serious Medical Need
The Supreme Court has admonished that “[n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny....” Whitney v. Albers, 475 U.S. 312, 319 (1986). “‘After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.'” Id. (quoting Ingraham, 430 U.S. at 670) (ellipsis in original). The Eighth Amendment imposes a duty on prison officials to provide “humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). And under the Eighth Amendment, prison officials are prohibited from exhibiting deliberate indifference to serious medical needs of inmates. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To set forth a cognizable claim for deliberate indifference to a serious medical need, a plaintiff must allege (1) a serious medical need and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Id. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Moreover, “[t]his is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05.
Additionally, “a prisoner has no right to choose a specific form of medical treatment,” so long as the treatment provided is reasonable. Harrison v. Barkley, 219 F.3d 132, 138-40 (2d Cir. 2000). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but has a difference of opinion, such as believing, e.g., that more should be done by way of diagnosis and treatment and maintaining that options available to medical personnel were not pursued on his behalf. Estelle, 429 U.S. at 107; Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“mere disagreement as to the proper medical treatment” is insufficient to state a constitutional violation). Allegations of medical malpractice are also insufficient to establish a Constitutional violation. White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990) (citations omitted); Daniels v. Williams, 474 U.S. 327, 332-34 (1986) (negligence is not compensable as a Constitutional violation).
"When making a determination as to deliberate indifference, the court must focus [on] what a defendant's mental attitude actually was (or is), rather than what it should have been (or should be). Deliberate indifference is a state of mind more blameworthy than negligence." Blackstone v. Thompson, 568 Fed.Appx. 82, 84 (3d Cir. 2014) (internal citations and quotation marks omitted).
With respect to the first requirement, a medical need is “serious,” for Eighth Amendment purposes, if it is “one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)). Whether a medical need is of the serious nature contemplated by the Eighth Amendment “may also be determined by reference to the effect of denying the particular treatment.” Lanzaro, 834 F.2d at 347. Thus, a medical need is similarly “serious” if “unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care,” or if “denial or delay causes an inmate to suffer a life-long handicap or permanent loss.” Id. (citations omitted).
Plaintiff has sufficiently alleged, for purposes of surviving a motion to dismiss, at least one plausible serious medical need, i.e., chronic, acute ear infection medically diagnosed and resulting in permanent loss and/or diminution in hearing.
However, Plaintiff's Second Amended Complaint fails to state an Eighth Amendment claim against any remaining Defendant for the following reasons:
Allegheny Health Network
It is well-established that a private corporation such as Allegheny Health Network (“AHN”), which provides health services to inmates in state prisons, cannot be held liable for the acts of its employees under a theory of respondeat superior or vicarious liability. Natale v. Camden County Correctional Facility, 318 F.3d 575, 583 (3d Cir. 2003) (citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, for AHN to be liable, Plaintiff must establish “that there was a relevant [AHN] policy or custom, and that the policy [or custom] caused the [alleged] constitutional violation .....” Natale, 319 F.3d at 583-84 (citing Bd. of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997)). Plaintiff's Second Amended Complaint fails to set forth any specific allegations of wrongdoing by AHN and fails to identify any particular AHN policy/procedure or custom which caused the alleged violation of Plaintiff's Eighth Amendment protection. It is thus recommended that the claims against AHN be dismissed without prejudice and with leave to amend, subject to the good faith requirements of the Federal Rules of Civil Procedure.
Individual Defendants - Warden Harper and Dept. Warden Williams
With respect to the second requirement set forth by the Supreme Court in Estelle, 429 U.S. at 104, a prison official acts with “deliberate indifference” “if he knows that [an] inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). Deliberate indifference is a subjective standard and one fundamentally different than medical negligence. It requires obduracy and wantonness that constitutes recklessness or a conscious disregard of a serious risk. Rouse, 182 F.3d at 197 (citing Farmer v. Brennan, 511U.S. 825, 842 (1994)). Deliberate indifference to a prisoner-plaintiff's serious medical needs consists of “intentionally denying or delaying access to medical care or interfering with the treatment once prescribed.” Pearson, 850 F.3d at 534 (quoting Estelle, 429 U.S. 104-105). That denial or delay must be motivated by “non-medical factors”. Pearson, 850 F.3d at 537.
Accordingly, courts have found deliberate indifference under the following combined circumstances: (1) prison authorities deny reasonable requests for medical treatment, (2) knowledge of the need for medical care is accompanied by the intentional refusal to provide it, (3) necessary medical treatment is delayed for non-medical reasons, and (4) prison authorities prevent an inmate from receiving recommended treatment for serious medical needs. Lanzaro, 834 F.2d at 347; Pearson at 538; Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). Plaintiff's Second Amended Complaint fails to set forth any specific allegations of any such wrongdoing by either Individual Defendant.
Moreover, prison administrators cannot be found deliberately indifferent “simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated ....” Durmer, 991 F.2d at 69. “If a prisoner is under the care of medical experts . . . a non-medical prisoner official will generally be justified in believing that the prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (discussing Durmer, supra). “[A]bsent 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 requirements of deliberate indifference.” Id. at 236.
Plaintiff has alleged no specific factual personal acts or omissions committed by either named Individual Defendant that indicate deliberate indifference to a serious medical need; nor has he alleged any specific facts in support of a claim that any supervisory/administrative Defendant knew or had reason to know that Plaintiff's serious medical need was being treated with deliberate indifference.
In general, to establish personal liability against a defendant in a Section 1983 action, that defendant must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1976). Accordingly, individual liability can be imposed under section 1983 only if the defendant played an "affirmative part" in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Personal involvement by a defendant can be shown by alleging either personal direction or actual knowledge and acquiescence in a subordinate's actions. Rode, 845 F.2d at 1207. See also Keenan v. Philadelphia, 983 F.2d 459, 466 (3d Cir. 1992); Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Moreover, a supervisory official has no affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates. Notwithstanding, when a supervisory official knowingly permits a continuing custom or policy that results in harm to the plaintiff, 1983 liability may attach. Colburn v. Upper Darby Township, 838 F.2d 663, 673 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1989) (Colburn I). However, at a minimum such liability may be imposed "only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate." Id. (quoting Chinchello, 805 F.2d at 133). See also Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997).
In the absence of any specific factual allegations against them, the Second Amended Complaint fails to state a claim for cruel and unusual punishment in the form of intentional denial of treatment for a serious medical condition against either Individual Defendant. It is thus recommended that the claims against them be dismissed without prejudice and with leave to amend, subject to the good faith requirements of the Federal Rules of Civil Procedure.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Defendants' Motions to Dismiss Plaintiff's Second Amended Complaint, ECF No. 40, be adjudicated as follows:
1) Motion filed by Defendants Allegheny County Jail, Allegheny County Jail Medical, Warden Orlando Harper, and Deputy Warden/Medical Supervisor Laura Williams (collectively “Corrections Defendants”), at ECF No. 44, to be granted with prejudice as to Defendants Allegheny County Jail and Allegheny County Jail Medical. It is further recommended that the Motion be granted without prejudice as to the Individual Defendants.
2) Motion filed by Defendant Allegheny Health Network (“Medical Defendant”) at ECF No. 46, to be granted without prejudice.
Finally, it is recommended that Plaintiff be given leave to amend, in accordance with the guidance previously provided to him at ECF Nos. 8 and 9, and the further guidance provided herein. Plaintiff's Third Amended Complaint, if any, should be limited to the specific allegations he may make in good faith support of his claim of “deliberate indifference to a serious medical condition” in violation of his Constitutional rights by remaining Defendants and/or other entities or persons identified or yet unknown by name.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.