Opinion
2:20-CV-01686-MJH
11-02-2021
CHRISTOPHER FERREIRAS, Plaintiff, v. CHCA NEDRA RICE-GREGO, CHCA STEPHANIE WOOD, SUPT MARK CAPOZZA, CRN K. RANDOLPH, RN BRIAN, RN BRENT, RN DARLA, RN MARK JENKINS, RN BOBECK, RN CARTER, RN SANNER, MEDICAL PROVIDER RACHEL MEDLOCK, CO 1 BURRIE, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, SCI - FAYETTE, MD.PA DOC, ET AL; Defendants,
MARILYN J. HORAN DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION TO DISMISS ECF NO. 41
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons stated below, it is respectfully recommended that the Motion to Dismiss (ECF No. 41) by Medical Defendants Medlock and Cowden be granted in part and denied in part. The Motion as to the claims of state law professional negligence and ADA violations should be granted, and those claims should be dismissed with prejudice. The Motion as to the claims of deliberate indifference under the Eighth Amendment and equal protection should be denied without prejudice to Defendants.
II. REPORT
A. Facts and Procedural Background
Plaintiff Christopher Ferreiras (“Plaintiff”), pro se, brings this action pursuant to 42 U.S.C. 1983. Plaintiff is currently incarcerated at SCI Albion. ECF No. 38, p. 1. The allegations took place when he was incarcerated at SCI Fayette. Id. Plaintiff is a paraplegic, bound to a wheelchair, and must self-catheter several times a day to relieve his bladder. ECF No. 38, p. 15. He is prescribed a set number of catheters every week, which he is supposed to receive at the beginning of the week. Id. p. 14.
Beginning in 2014, Plaintiff was supposed to receive 14 French catheters in Size 14 every week. He was instructed to use each catheter once, as he had to self-catheter four times a day. After he contracted multiple urinary tract infections, he requested to be given more catheters so he would not have to reuse any catheters. Defendant Cowden denied this request for some time, before finally allowing Plaintiff to have 28 Size 14 French catheters every week. Id.
While Plaintiff was in the General Population area of the prison, he would have “on and off” issues with receiving the proper amount or size of catheters when he went to pick them up from the medical supplies department. When the pick-up day fell on a holiday, he would not be able to receive his supplies. When he spent time in the Restricted Housing Unit (“RHU”), not getting enough catheters or not getting the correct size was a weekly issue. Id. This led to Plaintiff having to self-catheter five instead of four times a day, because his bladder has been “thrown off” by the continued use of the wrong-sized catheters which were not emptying his bladder properly. Id; ECF No. 38-2, p.1.
Defendant Cowden was the person who saw Plaintiff every time he submitted a sick call slip about his weekly supplies issue, or when he contracted a urinary tract infection. ECF No. 38, p. 8. Plaintiff states: “Within these interactions, whenever I requested adequate health care, Darla Cowden was always quick on reminding me that I was in prison and that I should not expect adequate health care while I was there.” Id. Plaintiff asserts that he told Cowden in detail that he contracted a urinary tract infection every time he had to re-use a catheter. Cowden responded by telling Plaintiff that she had to re-use catheters for herself in the past and she had had no issues when she cleaned the catheter with soap and water. Plaintiff told her that he “wanted to stop this pattern of contracting U.T.I.'s [sic], paying $5 to $15.00 for sick calls, antibiotics, and fever reducing medication.” Id. Plaintiff also expressed the fear that he would reach a point where antibiotics were no longer effective to treat his infections, and wanted to have his urine checked after treatment to make sure the antibiotics were still effective. Cowden told him that this was unnecessary; that he is simply prone to urinary tract infections because he self-catheters. Id. Plaintiff does not provide a time frame from when these encounters took place.
On August 22, 2017, Plaintiff submitted a grievance complaining of a DOC nurse not bringing him the proper number of catheters, and that he intends to file a Section 1983 Claim. ECF No. 38-3, p. 3.
Plaintiff alleges that Defendant Medlock stocks and stores the medical supplies at SCI-Fayette. ECF No. 38, p. 10. Plaintiff alleges that Medlock knew of his ongoing supply and infection issues because he not only discussed them with her orally, but also submitted multiple request slips about them. Plaintiff states that he told her about delays in getting his supplies, getting the wrong sized or wrong type of catheters, and not getting enough catheters. He was told by one nurse that Defendant Medlock hid his supplies, and that was why he could not bring them to Plaintiff. Id. One of his request slips to Medlock dated May 28, 2017 stated that he was getting the wrong sized catheters and that he needed Size 14 ones. Medlock replied, “[size] 12 Fr caths are in, nursing should bring over this week.” ECF No. 38-1, p. 6. Plaintiff maintains that “her response is literally adding on to my problems, ” and that Medlock refused to help him and did not resolve any of his issues even though they were a part of her job description. ECF No. 38, p. 10. Plaintiff alleges that these issues went on for three and a half years, but does not provide specific dates or time frames. Id. Plaintiff requested multiple times to be placed in the infirmary because of these issues, but was denied. Id. p 18. It is not clear who denied Plaintiff placement in the infirmary. Meanwhile, “there were multiple inmates in similar conditions who were admitted into the infirmary.. .there was not any rational basis for the difference in treatment.” Id. Many inmates who were placed into the infirmary were in disciplinary custody like Plaintiff was, and some were in wheelchairs but not paraplegic like Plaintiff. Id.
Based on these allegations, Plaintiff asserts against Defendants claims of deliberate indifference under the Eighth Amendment, claims of equal protection under the Fourteenth Amendment, state law professional negligence, and ADA violations in the Defendants' official capacity. Plaintiff filed a complaint, signed on September 22, 2020, in the Court of Common Pleas in Fayette County, Pennsylvania. ECF No. 1-1. Defendants removed the case to Federal Court on November 3, 2020.
Defendants' previous Motion to Dismiss at ECF No. 8 was granted but Plaintiff was given leave to amend. Plaintiff filed a proposed Amended Complaint, which was docketed on July 21, 2021. ECF No. 38. Defendants motioned to dismiss again on August 13, 2021. ECF No. 41. Plaintiff filed two Responses in Opposition to the Motion. ECF Nos. 47, 49. The Motion is now ripe for Review.
B. Legal Standard
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.”) (quoting Higgins, 293 F.3d at 688). 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, 2102 (10th Cir. 1996).
C. Discussion
1) Statute of Limitations
In their Brief in Support of their Motion to Dismiss, Defendants assert that Plaintiff's claims against them are time-barred and therefore should be dismissed. ECF No.42, p. 5. Plaintiff alleges that the issues started in 2014, and that both Cowden and Medlock appear to have interacted with him the entire time that these issues were going on, since the duration of the issues was about three and a half years. Id. pp. 5-6. Based on the applicable two-years' statute of limitations period, Defendants assert that any claims taking place before October 16, 2018, are time-barred, because he filed his lawsuit on October 16, 2020, the date the complaint was first filed in Fayette County. Id. p. 7. Furthermore, Defendants maintain, Plaintiff has provided no documentation that would support equitable tolling of the time-period. Nor does the continuing violations doctrine apply, because Plaintiff acknowledges that he knew that his rights were being violated as early as 2014. Id. pp. 7-8.
First, Defendants are incorrect about Plaintiff's filing date. Under the federal prisoner mailbox rule, a document is considered filed on the date it is given to prison officials for mailing. Moody v. Conroy, 762 Fed.Appx. 71, 73 (3d Cir. 2019) (unpublished). See also West v. Lockett, 2009 WL 1270225, at *4 n. 2 (W.D. Pa. May 6, 2009) (stating that “[a]bsent proof of the exact date of delivering the ... petition to the prison authorities, the court will presume the date whereon Plaintiff signed his ... petition is the date he gave the prison authorities his ... petition for mailing.”). Here, we have the date Plaintiff signed his original complaint, September 22, 2020. Thus, the Court will presume this date to be the filing date.
The limitations period for civil actions brought under 42 U.S.C. 1983 is determined by state law. Under Pennsylvania law, the applicable limitations period for civil rights actions asserted under 42 U.S.C. 1983 is two years. See 42 Pa. C.S. 5524. The date when a civil rights action accrues (begins to run), however, is a matter of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007).
A Section 1983 action accrues “when the plaintiff knew or should have known of the injury upon which [his] action is based.” Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) (per curiam) (holding that a federal cause of action accrues when the plaintiff is aware, or should be aware, of the existence of and source of the injury, not when the potential claimant knows or should know that the injury constitutes a legal wrong).
A complaint is subject to dismissal for failure to state a claim on statute of limitations grounds only when the statute of limitations defense is apparent on the face of the complaint. Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (citing Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)). There are two separate issues to be addressed when determining whether Plaintiff's claims are time-barred: 1) whether Plaintiff may apply the doctrine of continuing violations to any of his claims against Defendants, and 2) whether any of the claims have been tolled by Plaintiff's efforts to exhaust his administrative remedies.
a. Continuing Violation Doctrine
Plaintiff's Amended Complaint suggests that he had interactions with Defendant Cowden as early as 2014. See ECF No. 38, p. 14. He states that in 2014 he was prescribed 14 catheters per week; when he requested increasing his weekly catheter supply from 14 to 28, Cowden denied it for some time. Id. Plaintiff appears to suggest that Defendant Medlock's violations also lasted about the same length of time. See Id. p. 10. He states that he discussed his issues with Medlock in great detail as well as submitted multiple request slips to her. Id. Then he states that his bladder has been completely “thrown off” after three and a half years of going through the catheter issues. Id. Alleging that Cowden and Medlock began violating his Eighth Amendment rights in 2014 does not automatically bar Plaintiff from suing, even though the allegations occurred outside the two years before he initiated his lawsuit. The question remains whether he is entitled to the continuing violations doctrine.
In certain cases the continuing violation doctrine applies to determine whether a claim has been time-barred. The Third Circuit sums up the doctrine in this way:
The continuing violations doctrine is an equitable exception to the limitations period, which provides that, “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting Brenner v. Local 514, United Bhd. of Carpenters &Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991)). Three factors guide whether to apply the continuing violations doctrine:
(1) subject matter-whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency-whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence-whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.
Id. As to the third and most important factor, “we must consider the policy rationale behind the statute of limitations. That is, the continuing violations
doctrine should not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing their claims.” Id. at 292, 295.Beckett v. Pennsylvania Dept. of Corr., 597 Fed.Appx. 665, 667-68 (3d Cir. 2015) (unpublished). Defendants do not address these three factors in their opposition to applying the continuing violations doctrine. Plaintiff asserts that he may apply the continuing violations doctrine to his claims because when the issues with the catheter supplies began in 2014, Plaintiff was trying to resolve them via sick call slips, request slips, and verbal conversations with the medical staff. ECF No. 47, p. 2. While some adjustments were made based on his requests, the violations continued throughout the years. Id.
Plaintiff also asserts that he can provide more grievances, request forms, and medical records once he has the funds to pay for copies. ECF No. 38, p. 15; ECF No. 47, p. 4.
Courts in the Third Circuit have been reluctant to allow a prisoner plaintiff to invoke the continuing violations doctrine in the context of a Section 1983 action. Even if the subject matter of the alleged violations is largely consistent, it may not satisfy the first factor needed to invoke the doctrine if different defendants at separate institutions committed the violations. See Woodell v. Wenerowicz, CV 18-1098, 2019 WL 4139264, at *10 (E.D. Pa. Aug. 30, 2019) (finding on a motion to dismiss that plaintiff does not meet the first factor of the continuing violations doctrine when he alleges that different individuals, at separate institutions, denied him medical treatment for various issues (e.g., panic attacks, seizures) over several years).
The issue of alleging separate actions by separate defendants also goes to the frequency analysis. It would be difficult to establish frequency if different individuals were violating a plaintiff's rights. See Woodell at *11. The Third Circuit seems to suggest that several months apart for each alleged violation would not meet the standard. Spencer v. Courtier, 552 Fed.Appx. 121, 123 (3d Cir. 2014) (unpublished) (commenting that the incidents of plaintiff being denied medication in January 2006, and then in April and October 2006, and then in January 2007, are “months apart.”). In the end, what is certain is the Third Circuit's observation that courts have never set a specific standard for determining how close together the acts must occur to amount to a continuing violation. Cowell v. Palmer Tp., 263 F.3d 286, 295 (3d Cir. 2001).
The courts of this jurisdiction agree that the third factor, the degree of permanence, is the most important analysis of this doctrine-whether something triggered the plaintiff's awareness to assert his rights, and whether the consequences would continue even without continuing intent to discriminate.
The Court must consider carefully the distinction between “continuing violations” and “discrete acts.” [citation omitted] If the plaintiff's claims are based on discrete acts which give rise to causes of action that can be brought individually, then the continuing violations doctrine does not serve to extend the applicable statute of limitations periods.Anders v. Bucks County, CIV.A. 13-5517, 2014 WL 1924114, at *4 (E.D. Pa. May 12, 2014). Small differences in similar situations can yield opposite results. When a prisoner brought suit within two years of being released from a seventeen-year period of solitary confinement, the court found this to be a continual unlawful act that warranted tolling. Johnston v. Wetzel, 431 F.Supp.3d 666, 676 (W.D. Pa. 2019). When a prisoner was placed into a special management unit which exacerbated his mental health problems, but did not sue in time, the court found that he should have known at the time he was placed into the unit that his mental illness would be exacerbated. He had shown that he previously known about the conditions that could exacerbate his mental health problems. Spencer at 123.
With these two cases, the timing of the last violation was also crucial. The prisoner who brought suit within two years of being released was allowed to apply the continuing violations doctrine because the final violation occurred within two years of him filing suit. The prisoner whose claim was time-barred did not allege an act that took place within two years of him suing.
Denial of proper medical treatment also falls into discrete acts that carry a degree of permanence which should have triggered a plaintiff's duty to bring a lawsuit within the statute of limitations. When prison officials failed to follow up on medical recommendations for a prisoner's injuries, and thus exacerbated those injuries, their neglect had the degree of urgency, permanence, and importance to place plaintiff prisoner on notice of his duty to promptly assert his rights. Akwei v. Bureau of Prisons, CV 3: 18-189, 2020 WL 1009091, at *9 (W.D. Pa. Jan. 22, 2020), report and recommendation adopted, CV 3:18-189, 2020 WL 996875 (W.D. Pa. Mar. 2, 2020), appeal dismissed sub nom. Akwei v. BOP, CV 20-1604, 2020 WL 8919083 (3d Cir. Oct. 2, 2020). Each time a prisoner was denied treatment for Hepatitis C, it was conduct that had a degree of permanence to trigger his duty to bring the cause of action to court. Runkle v. Pennsylvania, Dept. of Corrections, CIV.A. 13-137, 2013 WL 6485344, at *5 (W.D. Pa. Dec. 10, 2013) (“The fact that Plaintiff was repeatedly denied treatment does not aggregate those discrete acts into a continuing violation.”).
Frequent behavior that qualifies as harassment, on the other hand, has been considered continuous violations that warrant the tolling of the statute of limitations beyond the two years before plaintiff filed suit. Wright v. O'Hara, CIV.A. 00-1557, 2002 WL 1870479 (E.D. Pa. Aug. 14, 2002) (Continuing violations doctrine applied to pro se state prisoner's 1983 claim against corrections officer alleging repeated instances of sexual assault, maltreatment, and threats over two-year period, for statute of limitations purposes). Crucially, the cases in which tolling was allowed involved at least one act which fell within the two-year period before the filing date.
Here, the violations constitute the same type of discrimination. Plaintiff is unequivocal that the issues he experienced all involved not providing him with enough catheters, or the wrong sized catheters, or not enough of them, all such that he contracted a greater number of urinary tract infections than was avoidable.
As to frequency, grievances and request slips provided by Plaintiff range only from 2017 to 2018; but within the approximately one-year timespan, Plaintiff submitted about twelve forms related to his catheter issues, either as grievances or request slips.This would average about one grievance or request form per month, not counting the oral communications Plaintiff had with the prison and medical staff. If such a rate reflects how often Plaintiff had to request more catheters or the correct size of catheters from 2014 to 2016, then the Court considers these violations to have occurred frequently.
Grievance 759196 appears to have been submitted twice with amended contents in the second submission.
Although Plaintiff's allegations show that the violations seemed to have occurred often, one problem with applying the doctrine of continuing violations in this case is that his allegations involve more than one person. The Amended Complaint is unclear as to when each Defendant did what. Plaintiff devotes about one paragraph in the Amended Complaint to Cowden and Medlock each, but the Court is only able to vaguely decern how each is responsible for the apparently frequent violations Plaintiff experienced. What allegations there are lack a specific date or time span-Plaintiff does not state when each of his encounters with Defendants occurred. This weakens the argument that Plaintiff sufficiently pleaded the frequency and subject matter factors in favor of applying the doctrine.
The Court will consider only Defendants Medlock and Cowden for the purposes of this motion, but Plaintiff's Amended Complaint also names DOC Defendants who are alleged to have taken part in denying Plaintiff the catheter supplies he needed and causing his multiple UTIs.
Above all, the essential question is whether any acts since 2014 carried a degree of permanence which would make Plaintiff reasonably believe that such acts or omissions would have lasting consequences. Based on the jurisprudence on this doctrine applied to Section 1983 claims of prisoner plaintiffs, Plaintiff's allegations closer resemble the denial of medical care that courts in this jurisdiction have found to be discrete, isolated acts, rather than a continuous period of violations, which should have put Plaintiff on notice of his rights being violated. Of the documentation Plaintiff provided, the earliest he shows this awareness is in Grievance 1673001, dated August 22, 2017. ECF No. 38-3, p. 3. Plaintiff states that he intends to file a Section 1983 claim. Id. Plaintiff argues that the violations since 2014 should be tolled because he tried to resolve internally the issues with not receiving the correct number or size of catheters. This is more an argument in favor of tolling the statute of limitations while he exhausts administrative remedies, which will be addressed in the following section, infra. This argument may also be more generously interpreted as him not knowing that he had a Section 1983 claim because the series of violations lacked a degree of permanence that put him on notice for having a claim. At certain points in time, those issues were responded to and corrected. At other points in time, the responsibility to provide him with the amount and size of catheters he needed was not fulfilled. It is reasonable for someone in Plaintiff's situation to believe that, since these issues were resolved previously, they would be resolved again if necessary. That said, as Plaintiff has shown that he was aware of a claim as early as three years before the date he filed this action, even the most generous interpretation of the situation would find it hard-pressed to toll the statute of limitations with the continuing violations doctrine. There is also little to show that the allegations against the Defendants occurred within the two-year period before Plaintiff filed suit.The added lack of clarity with which he asserts the allegations against Defendants Cowden and Medlock only compounds the argument against Plaintiff invoking this doctrine.
Grievance 759196 was submitted on and describes events taking place on September 18, 2018, four days before the cut-off date of September 22, 2018. It mentions DOC Defendant Nurse Brian telling Plaintiff that Medlock hid his supplies, and that is why he could not bring Plaintiff his catheters. ECF No. 38-3, p, 34. It is unclear if this is an allegation Plaintiff is making against Defendant Medlock. The only other indication that Medlock allegedly acted in any way to violate Plaintiff's rights within that two-year period is a request form he submitted to the CHCA on October 15, 2018, stating that Medlock told him Medical can no longer provide latex gloves for his cathetering. ECF No. 38-3, p. 1.
As a matter of policy, “[t]he continuing violations doctrine recognizes that there may be situations where the illegality of a defendant's conduct becomes apparent only over a period of time and, in such cases, an otherwise diligent plaintiff should not be penalized for his or her delay in filing suit.” Doe v. City of Wilkes-Barre, CV 3: 19-938, 2021 WL 3674634, at *3 (M.D. Pa. Aug. 19, 2021). Here, Plaintiff's allegations simply do not meet the criteria for invoking this doctrine.
b. Tolling the SOL During Exhaustion
Under the PLRA, Pennsylvania's statute of limitations is tolled while a prisoner exhausts administrative remedies. Pearson v. Sec. Dept. of Corr., 775 F.3d 598, 603 (3d Cir. 2015). A complaint is subject to dismissal for failure to state a claim on statute of limitations grounds only when the statute of limitations defense is apparent on the face of the complaint. Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). Allegations of difficulty with the grievance process, such as failure of officials to respond to grievances, late responses, or extenuating circumstances for appealing a grievance, is generally construed in favor of the plaintiff that it is not apparent on the face of the complaint that the claims are barred by the statute of limitations. See McClain v. Golden, CV 08-1347, 2017 WL 3226471, at *6 (E.D. Pa. July 28, 2017). Simply alleging attempts to exhaust administrative remedies may be enough on the face of the complaint to allow it to survive a motion to dismiss on the basis that the claims are not time-barred. See Buttolph v. PrimeCare Med. Inc., 750 Fed.Appx. 168, 170 (3d Cir. 2018) (unpublished); Jackson v. Rodriguez, 728 Fed.Appx. 78, 79 (3d Cir. 2018) (unpublished) (finding sua sponte dismissal of complaint to be unwarranted because plaintiff's assertions about having filed grievances raised the question of whether statute of limitations was tolled while plaintiff exhausted his administrative remedies).
Plaintiff states in his Amended Complaint that he has further documentation, going back to 2014, having to do with the violations he alleges. ECF No. 38, p. 15. As a result, on the face of the complaint, Plaintiff may be entitled to tolling of the two-year period. Plaintiff should note, however, that if a grievance related to any claims involving Defendants Medlock and Cowden was decided at the final appeal stage before September 22, 2018-those claims will be subject to dismissal for being time-barred. See Lomax v. Tennis, 708 Fed.Appx. 55, 57 (3d Cir. 2017) (unpublished) (finding that it is not obvious plaintiff's complaint was time-barred since it included forms showing that the Department of Corrections rendered final decisions on several of his grievances within two years of the complaint's date). Plaintiff refers to two grievances which were denied at the final appeals stage, one on March 6, 2019, and the other on April 16, 2019. ECF No. 38, p. 15. Any Eighth Amendment claims that can be properly construed against Medlock or Cowden arising out of the allegations described in those grievances will not be time-barred. If any claims accrued before September 22, 2018, then Plaintiff will need to show that he filed suit asserting those claims within two years of that accrual - the date of the final denial of the grievance.
Whether those allegations sufficiently state a claim against either Defendant Medlock or Cowden is a separate question. Defendants, however, do not make any argument on the merits of the claims in their Motion to Dismiss.
Finally, the record shows that Plaintiff filed several request slips to Medlock and Cowden on the catheter issue. This Court previously determined that request slips are not grievances. See Deem v. Beaver County, CV 17-704, 2019 WL 319627, at *5 (W.D. Pa. Jan. 23, 2019) (finding as a matter of law that plaintiff failed to exhaust his administrative remedies when he only sent out request slips and not grievances) (citing Small v. Camden Cnty., 728 F.3d 265, 272 (3d Cir. 2013)). For that reason, any request slips filed by Plaintiff to Medlock or Cowden do not satisfy the exhaustion requirement for claims against Medlock or Cowden. If there are no other grievances about Medlock and Cowden's deliberate indifference toward Plaintiff's catheter supply issues, then those claims are also subject to dismissal for failure to exhaust administrative remedies.
It is thus respectfully recommended that the Motion to Dismiss the Eighth Amendment claims of deliberate indifference against Defendants be denied without prejudice to Defendants raising the statute of limitations defense again on summary judgment.
2) Professional State Law Negligence Claims
The previous Report and Recommendation by this Court (ECF No. 30) and adopted by the District Court (ECF No. 36) noted that it was unclear whether Plaintiff intended to assert a professional negligence claim or a claim of ordinary negligence against Defendants. Id. p. 11. This Court recommended Plaintiff be granted leave to amend, but cautioned that if Plaintiff intends to assert a professional negligence claim, he must file a Certificate of Merit pursuant to Pa. R. Civ P. 1042.3(d). Id.
Plaintiff has not produced a Certificate of Merit with his Amended Complaint. He states in said Complaint: “the seriousness of my medical needs is apparent and obvious to lay people.” ECF No. 38, p. 17. Defendants argue that the professional negligence claims against them should be dismissed as a result of Plaintiff's failure to follow this rule. ECF No. 42, p. 9. Plaintiff's claims require expert testimony of an appropriate licensed professional that Defendants' actions fell outside the standard of care, as well as testimony of the causation of the medical issues that Plaintiff claims results from Defendants' negligence. Id. pp. 11-12.
In his Response in Opposition to the Motion to Dismiss, Plaintiff reiterates that the seriousness of his medical needs is obvious to lay people. ECF No. 47, p. 4. In the alternative, Plaintiff requests the Court to either appoint a medical expert witness under Rule 706 of the Federal Rules of Evidence, or grant him 60 more days to obtain a certificate of merit. Id. p. 6.
If a plaintiff does not comply with Rule 1042.3, the claims will be dismissed and a judgment of non pros entered upon a motion by the defendant according to Pa. R. Civ. P. 1042.6. Perez v. Griffin, 304 Fed.Appx. 72, 74 (3d Cir. 2008). However, the failure to comply with Rule 1042.3 is not fatal to claims of professional liability if the plaintiff can show a “reasonable excuse” for the noncompliance. Id. (citing Womer v. Hilliker, 908 A.2d 269, 279-80 (2006)). Rule 1042.3(d) specifically provides for an unlimited number of extensions of time, so long as the request is filed before the expiration of the prior extension and the plaintiff has shown good cause. Id. at 429 n.2.
Plaintiff was specifically instructed to provide a Certificate of Merit if he intends to assert professional negligence claims against Defendants. He states in his Amended Complaint that he does intend to assert professional as opposed to ordinary negligence claims against Defendants, but he has not provided the COM. He asks for time to obtain one if the Court will not accept his reasonings for not needing one. Even so, Plaintiff had time from when the District Court adopted this Court's Report and Recommendation to obtain the COM, which he has not done. In requesting for an extension of time in the alternative to obtain the COM, Plaintiff has not shown good cause as to why he would need an extension of time now to provide one. Thus, the Court agrees with Defendants that the claims of professional negligence against them should be dismissed with prejudice. See Crawford v. McMillan, 660 Fed.Appx. 113, 116 (3d Cir. 2016) (unpublished) (dismissal was appropriate as plaintiff neither filed a certificate of merit nor did he provide a reasonable excuse for failing to do so).
Specifically, Plaintiff filed the Amended Complaint 22 days after the Court's Report and Recommendation was docketed, misunderstanding that what was due were his objections to the Report and Recommendation. When informed of his misunderstanding, Plaintiff wrote in response stating that he had no objections, and requested that the Amended Complaint he had submitted be accepted as is. ECF No. 35. In light of that response, the proposed Amended Complaint was docketed as the Amended Complaint. In requesting the Amended Complaint to be accepted as is, Plaintiff showed that he had no intention of attempting to obtain a COM unless the Court once more denied his request to proceed on these claims without a COM. Plaintiff cannot have two bites at the apple when he was instructed that he needed to obtain a COM. Especially when he does not provide any good cause for not doing so.
Rule 706 of the Federal Rules of Evidence does not apply to the circumstance at hand.
3) ADA Claims
In its previous Report and Recommendation, this Court recommended dismissing Plaintiff's claims of violations of the Americans with Disabilities Act against Defendants because individuals are not public entities within the meaning of the ADA. ECF No. 30, pp. 6-7. The only change in his Amended Complaint is that Plaintiff now asserts claims of ADA violation against Defendants in their official capacities. ECF No. 38, pp. 8, 10. However, the law is clear that there is no ADA cause of action against the private entity that employs Defendants. Matthews v. Pennsylvania Dept. of Corr., 613 Fed.Appx. 163, 170 (3d Cir. 2015) (unpublished) (affirming dismissal of ADA claims against medical employees of private medical provider, finding that a private corporation is not a public entity just because it contracts with a public entity to provide some service). Thus, the Court again respectfully recommends that the ADA claims against Defendants be dismissed with prejudice.
Defendants do not acknowledge or address these claims in their renewed Motion to Dismiss.
4) Equal Protection Claims
This Court previously recommended that Plaintiff be granted leave to amend his Equal Protection if he can allege facts that show Defendants intentionally treated him differently from others similarly situated and that there was no rational basis for such treatment. ECF No. 30, p. 9. The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. "This is not a command that all persons be treated alike but, rather, 'a direction that all persons similarly situated should be treated alike.' " Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr, 473 U.S. 432, 439 (1985)). See also United States v. Armstrong, 517 U.S. 456 (1996) (Equal Protection Clause prohibits decision to prosecute based on an unjustifiable standard such as race, religion, or other arbitrary classification). To state a claim under this theory, "a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment." Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
Plaintiff alleges in his Amended Complaint that he was denied placement in the infirmary while others similarly situated were placed there, and there was no rational basis for this. Plaintiff's allegations are almost conclusory and barely state an equal protection claim under the “class of one” theory. But as Defendants do not offer any response to this claim in their Motion to Dismiss, Plaintiff should be allowed to develop the facts surrounding this claim. Defendants will not be prejudiced to advance their arguments against this claim on summary judgment.
Thus, the Court recommends that the Motion to Dismiss as to the equal protection claim be denied, and the claim be allowed to remain in the case.
III. CONCLUSION
For the reasons stated above, it is the respectfully recommended that the Motion to Dismiss by Defendants Medlock and Cowden be granted as to the state professional negligence claims and the ADA claims, and that those claims be dismissed with prejudice. The Court further recommends that the Motion to Dismiss be denied as to the deliberate indifference claims and the equal protection claims, and those claims be allowed to go forward.
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.