Opinion
1:20-cv-00338 (Erie)
08-06-2021
DENISE L. GRANT, as Administratrix, Of the Estate of Khynesha E. Grant, Plaintiff v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, RONALD MERINO, MD, PHYSICIAN ASSISTANT JOHN OGE, PHYSICIAN ASSISTANT MATTHEW RILEY, PHYISICAN ASSISTANT DEANNA SHROUT, ASHLEY CHIOCCO, RN, BRENDA CHIZMAR, RN, DAVID MCPHILOMY, RN, JEFFREY MOLES, RN, WENDY PAYNE, RN, WELLPATH, Defendants
REPORT AND RECOMMENDATION ON CORRECTIONS DEFENDANTS' MOTION TO DISMISS
ECF NO. 36
HON. RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the pending Motion to Dismiss the Plaintiff's Amended Complaint filed by Defendants Ashley Chiocco, Brenda Chizmar, David McPhilomy, Jeffrey Moles, Wendy Payne, and the Pennsylvania Department of Corrections (“DOC”) (ECF No. 36) be GRANTED in part and DENIED in part. Specifically, the motion should be GRANTED as to Count I (Federal Constitutional Claims), but only to the extent Count I asserts claims against Defendants Chizmar and McPhilomy. The motion should be DENIED as to Count I to the extent it asserts a claim against Defendants Chiocco, Moles, and Payne. The motion also should be GRANTED as to Count III (State Law Negligence), but only to the extent it asserts claims against Defendants McPhilomy and the DOC. In all other respects, the motion should be DENIED.
II. Introduction
Denise L. Grant (Grant), mother of Khynesha Grant (Khynesha), brings this civil rights action against eleven Defendants based on their involvement in Khynesha's medical care while she was incarcerated at the State Correctional Institution at Cambridge Springs (SCI-Cambridge Springs). The Defendants include the DOC and five registered nurses employed by the DOC, Ashley Chiocco (Chiocco), Brenda Chizmar (Chizmar), David McPhilomy (McPhilomy), Jeffrey Moles (Moles), and Wendy Payne (Payne) (collectively, “DOC Defendants”). The other Defendants are Wellpath, the entity with which the DOC contracted to provide medical services at SCI-Cambridge Springs, a Wellpath-employed physician, Dr. Ronald Merino (Dr. Merino), and four Wellpath-employed physician assistants, John Oge (Oge), Matthew Riley (Riley), and Deanna Shrout (Shrout). Only the DOC Defendants have moved to dismiss the claims against them. Wellpath and the Wellpath-employed Defendants have filed an Answer to the Amended Complaint.
III. Factual Background as Alleged in the Amended Complaint
The factual allegations of the Amended Complaint, which the Court takes as true for purposes of the pending motion, detail a timeline of events that tragically ended in Khynesha's death. In the fall of 2017, while incarcerated at SCI-Cambridge Springs, Khynesha began to experience severe and debilitating headaches. ECF 23, ¶27. She first reported her symptoms to prison medical personnel in October and was sent to a neurologist outside the prison. Id., ¶28. On October 12, 2017, a neurologist diagnosed Khynesha with greater occipital neuralgia Id., ¶29. Khynesha was given an injection of pain medication and prescribed continued use of other appropriate medication to address her headache symptoms. Id., ¶29. Although this treatment initially relieved her symptoms, they returned approximately five months later. Id., ¶30-31. On March 19, 2018, Khynesha again saw a neurologist and received another injection and pain medication prescription. Id., ¶31-32. This time the treatment only alleviated Khynesha's symptoms for two months and she returned to see another neurologist on May 11, 2018. Id., ¶32. She received additional injections and medications. Id., ¶32. Khynesha did not complain of symptoms again until December of 2018. She met with another neurologist on December 14, 2018. Id., ¶33. Once again, Khynesha received an injection and medication and was sent back to SCI-Cambridge Springs. Id., ¶34.
Occipital neuralgia is a condition in which the occipital nerves, the nerves that run through the scalp, are injured or inflamed. This causes headaches that feel like severe piercing, throbbing or shock-like pain in the upper neck, back of the head, or behind the ears. See Julie G. Pilitsis, Occipital Neuralgia, Am. Ass'n of Neurological Surgeons, https://www.aans.org/en/Patients/Neurosurgical-Conditions-and-Treatments/Occipital-Neuralgia#:~:text=Occipital%20Neuralgia%20is%20a%20condition, head%20or%20behind%20the%20ears (July 1, 2021). Khynesha's condition specifically affected her greater occipital nerve which runs backward between the C1 and C2 vertebrae and traverses between the inferior capitis oblique and semispinalis capitis muscles from underneath the suboccipital triangle. See, e.g., Megan Yu & Shu-Min Wang, Anatomy, Head and Neck, Occipital Nerves, Nat'l Inst. of Health (Nov. 20, 2020), https://www.ncbi.nlm.nih.gov/books/NBK542213/.
The Amended Complaint does not identify by name the medications administered or prescribed.
Approximately two weeks later, Khynesha again complained of the same symptoms, this time stressing their increased severity. Id., ¶36. On the morning of December 27, 2018, Khynesha saw Defendant McPhilomy. She told him that she had a severe, throbbing headache and described the pain as a level eight out of ten. Id., ¶37. Later that same morning, Khynesha saw Defendant Riley. Id., ¶38. Despite the report of these symptoms, and that they had returned so soon after her visit with a neurologist, Riley did not conduct a physical examination or a neurological examination. Id., ¶38. After Khynesha saw Riley, her symptoms persisted, and she asked to be seen again by a medical provider. Id., ¶39. Later that same day, Khynesha saw Defendant Oge. Id., ¶40. She told Oge that the medication she had been given was not working. Id. Oge told Khynesha that she should increase the amount of the medication she was taking. Id. He did not, however, conduct any physical or neurological examinations of Khynesha despite the increasing severity of her symptoms and the proximity of those complaints to her last visit with the neurologist. Id.
Two days later, on December 29, 2018, Khynesha's headache had still not subsided. By now, it had become so severe that she was unable to move. Id., ¶41. She also reported that she was nauseous and sensitive to light. Id. That afternoon, she saw Defendant Chiocco, who wrote in Khynesha's medical chart: “Medical Emergency due to ‘unable to move.'” Id., ¶42. Chiocco conducted a limited neurological examination, but she did not refer Khynesha to a physician. Id., ¶43. Instead, she told Khynesha to use ice and rest. Id. That evening, with her symptoms persisting, Khynesha returned to the prison medical department and was seen by Payne. Id., ¶44. Payne did not conduct a neurological examination. Id., ¶45. Instead, she stated that the medical unit would “monitor” Khynesha and that she would see a physician assistant or a doctor. Id.
The next morning, December 30, 2018, correctional staff reported a medical emergency- Khynesha was now unresponsive. Id., ¶46. Khynesha was seen by Defendant Moles, who recorded that Khynesha had throbbing pain all over her head that only resolved when she stayed away from light. Id., ¶47. Her pulse was also elevated even though she was lying in bed. Id. She had difficulty walking. Id. Moles noted in Khynesha's medical record that she had numerous emergency room visits, had the ability to move her extremities, and that she refused to get out of bed. Id., ¶ 47(a)-(c). Later that afternoon, Khynesha was seen by Defendant Shrout. Id., ¶49. Shrout documented Khynesha's complaints of pain in her head with nausea, vomiting, and pressure behind her eyes. Id. ¶50. Khynesha stated that she felt like her headaches were stemming from spasms in her neck. Id. She stated that nothing improved her symptoms and that all she could do was try to find the most comfortable position. Id. Khynesha also informed Shrout that, in her past visits to a neurologist, the injections she received had resolved her symptoms, but, after the last visit on December 14, 2018, she did not experience any relief. Id. ¶ 51. Shrout documented her observations of Khynesha's abnormal symptoms-including that Khynesha was in a wheelchair with her head cocked to the right side during the entire encounter-and that she had an observable spasm in her neck. Id. ¶52. Shrout did not conduct a physical or neurological examination of Khynesha; nor did she assess Khynesha's vital signs. Id. ¶54. Shrout told Khynesha to take two medications, one for neck spasms and one for headaches. Id. ¶55. She also indicated her belief that Khynesha “may benefit from a head CT [scan].” Id. But Shrout did not actually order the scan. Id. ¶56.
Again, the Amended Complaint does not identify these medications by name.
On January 8, 2019, Khynesha saw Defendant Oge again. Id. ¶57. Oge did not conduct either a physical or neurological examination, nor did he take any action on the suggestion from Defendant Shrout to order a CT scan. Id. Instead, he ordered an increase in Khynesha's medication and gave her authorization to receive an ice pack for use throughout the night. Id.
On January 16, 2019, Khynesha again saw Defendant Oge. Id. ¶58. Khynesha told Oge that she was dizzy, had severe pain in her head, and that her vision had changed. Id. Oge noted that she had an elevated heart rate and tenderness in her neck. Id. Still, he noted that Khynesha did not show any signs of acute distress. Id. Oge conducted no neurological exam and instead told Khynesha to keep taking her medication. Id.
On January 22, 2019, Khynesha saw Defendant Moles and reported that her headache pain was so severe that she could not sit down, and if she did sit down, she would feel faint and that her pain level would increase. Id. ¶59. She reported that she was nauseous and dizzy and that her vision had changed. Id. She complained that she had experienced these symptoms for a very long time and asked for an X-ray. Id. Moles made a notation in Khynesha's medical chart that he would request Khynesha be seen by Defendant Dr. Merino, but Merino did not see Khynesha at any time on January 22, 2019. Id. ¶¶ 60-61. Instead, Khynesha was sent back to her housing unit. Id. ¶ 62.
The next morning, January 23, 2019, Khynesha saw Defendant Oge again and told him that she had a serious headache, neck pain, tingling in her right hand, pressure in her head and eyes, and that she was feeling faint. Id. ¶63. She was not able to sit on the exam table as doing so increased her pain. Id. Oge told Khynesha to take her medication and he ordered an X-ray to assess her neck pain and directed that the X-ray be completed within three weeks. Id.
Later that day, January 23, 2019, Khynesha was in her cell. Id. ¶64. She stood up and felt what she described as seizure like symptoms. Id. ¶ 64. She lost control of her bladder and urinated in her clothing. Id. A medical emergency was called, and Defendant Moles went to Khynesha's housing area. Id. ¶65. Moles did not note any seizure or tremor activity upon his arrival; stated that Khynesha's clothing was dry on visual inspection; and that Khynesha was able to walk down three flights of stairs to the medical unit. Id. ¶65. Moles consulted with Defendants Chizmar and Merino, and they decided to place Khynesha in the infirmary so that she could be observed for the next 23 hours. Id. ¶66. While she was in the infirmary, Khynesha got up to go to the bathroom and she passed out and wet herself. Id. ¶67. She said that any time she moved her head, she felt like she would pass out again. Id. Merino directed that Khynesha stay in the infirmary. Id. ¶69. At 7:05 p.m. on January 23, 2019, medical staff were called to Khynesha's bedside. Id. ¶70. Khynesha was unresponsive, had urinated in her bed, demonstrated a rapid heart rate, and was gasping for breath. Id.
Medical staff contacted emergency medical personnel who arrived at the prison and then took Khynesha to the emergency room. Id. ¶71. Khynesha was first taken to Meadville Medical Center and was later transferred to the University of Pittsburgh Medical Center-Hamot in Erie, Pennsylvania. Id., ¶72. A CT scan of her head revealed that Khynesha had a massive growth in her brain, which, at that point, had shut down her bodily functions and was inoperable. Id. ¶73. Khynesha's family traveled from their home near Philadelphia and, after consultation with medical staff, agreed to withdraw further care for Khynesha. Id. ¶74.
In a note written the next day, January 24, 2019, Merino reported that he was aware of Khynesha's loss of consciousness. Id. ¶68. But Merino noted that “[t]here were no witnesses to any seizure activity;” and “[s]he was not in any acute distress.” Id. Khynesha died that same day.
IV. Procedural History
Grant, as Administratrix of Khynesha's Estate, initiated this action on December 1, 2020. See ECF 1. She invokes this Court's federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331 based on her claims asserted under 42 U.S.C. §1983. Grant's standing to pursue claims on behalf of Khynesha and beneficiaries of her estate is based on the Pennsylvania Wrongful Death Act, 42 Pa. C.S. § 8301, and the Pennsylvania Survival Statute, 42 Pa. C.S. § 8302. As Defendants, Grant initially named the DOC Defendants, Merino, Oge, Riley, and Shrout. Id. On January 21, 2021, Grant filed an Amended Complaint, which included an additional cause of action and added Wellpath, the employer of Merino, Oge, Riley, and Shrout, as a Defendant. ECF No. 23. Wellpath, Merino, Oge, Riley, and Shrout filed an Answer to the Amended Complaint on February 4, 2021. ECF No. 32. On February 12, 2021, the DOC Defendants moved to dismiss the Amended Complaint for a failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and a brief in support of the motion. ECF No. 36, 37. Grant filed a brief in opposition on March 4, 2021. ECF No. 39. The DOC Defendants filed a Reply to Grant's brief in opposition. ECF No. 40. The motion is ripe for disposition.
“Pennsylvania's wrongful death and survival statutes do not create independent causes of action; rather, they are derivative in the sense that the substance of the claim derives from the injury to the decedent.” McCracken v. Fulton Cty., 2020 WL 2767577, at *10 (M.D. Pa. May 28, 2020) (citing Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. Ct. 2013)); see also Nelson v. Am. Honda Motor Co., 2021 WL 2877919, at *15 (W.D. Pa. May 17, 2021), report and recommendation adopted, 2021 WL 2646840 (W.D. Pa. June 28, 2021); Sullivan v. Warminster Twp., 765 F.Supp.2d 687, 707 (E.D. Pa. 2011) (“wrongful death and survival actions are not substantive causes of action; rather they provide a vehicle through which plaintiffs can recover for unlawful conduct that results in death”). Therefore, to the extent claims against any of the DOC Defendants survive the pending motion to dismiss, they also will remain viable as derivative claims under the wrongful death and survival statutes. See, e.g., Riley v. Clark, 2020 WL 8173093, at *22 (M.D. Pa. Dec. 21, 2020).
V. The Amended Complaint
Grant's Amended Complaint includes three counts. Count I asserts Eighth and Fourteenth Amendment claims against Merino, Oge, Riley, Shrout, Chiocco, Chizmar, McPhilomy, Moles, and Payne based on allegations that each acted with deliberate indifference to Khynesha's serious medical needs. ECF No. 23, ¶95. Count II raises Eighth and Fourteenth Amendment claims against Wellpath based on similar allegations of deliberate indifference and allegations that it failed to establish policies, practices, and procedures and/or failed to properly train, supervise and discipline its employees regarding prisoners with serious medical needs. Id. ¶96. Count III asserts state law negligence/medical malpractice claims against all Defendants. Id. ¶97-101. The DOC Defendants have moved for dismissal of Counts I and III, as alleged against them.
VI. Standard of Decision
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 is 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. In making this determination, a 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. 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 when evaluating a complaint under Rule 12(b)(6):
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.
VII. Discussion and Analysis
A. The Federal Claims
1. The Court Should Dismiss Grant's Fourteenth Amendment Claim Against the DOC Nurse Defendants Under the More Specific Provision Rule.
Count I of the Amended Complaint alleges violations of both Khynesha's Eighth and Fourteenth Amendment rights. But the Supreme Court has explained: “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim should be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.17 (1997); see also Tingey v. Gardner, 827 Fed.Appx. 195 (3d Cir. 2020) (quoting Lanier). Here, Grant's allegations of deliberate indifference to Khynesha's serious medical needs fall squarely within the specific protections of the Eighth Amendment. Thus, Grant's attempt to assert those same allegations as substantive due process claims under the Fourteenth Amendment are precluded by the more-specific-provision rule. Tingey, 827 Fed.Appx. at 198 (holding that a substantive due process claim crashes into the more-specific-provision rule). Accordingly, Grant's Fourteenth Amendment claims must be dismissed. See, e.g., Seldon v. Wetzel, No. 2020 WL 929950, at *5 (W.D. Pa. Feb. 6, 2020), report and recommendation adopted, 2020 WL 924046 (W.D. Pa. Feb. 26, 2020).
2. The DOC Nurse Defendants Are Not Entitled to Dismissal of Grant's Eighth Amendment Claim Based Solely on Their Status as Nurses.
The DOC Defendants first argue that because Khynesha was under the care of a physician, Chiocco, Chizmar, McPhilomy, Moles, and Payne, as nurses, cannot be liable under the Eighth Amendment as a matter of law unless they had reason to question the physician's treatment of Khynesha. See ECF No. 37. In support of their position, the DOC Defendants rely on the Court of Appeal's decision in Pearson v. Prison Health Service, 850 F.3d 526 (3d Cir. 2017). In Pearson, the Court held that because “it is the physician [who has] the ultimate authority to diagnose and prescribe treatment for the prisoner, ” a nurse who knows that the prisoner is under a physician's care is certainly “justified in believing that the prisoner is in capable hands, so long as the nurse has no discernable basis to question the physician's medical judgment.” 850 F.3d at 540 n.4. The DOC Defendants read this language as creating a blanket exemption from constitutional liability for a nurse any time a prisoner has seen a physician or physician assistant. That reading paints Pearson with too broad a brush.
The key inquiry is whether, and to what extent, the prisoner was “under a physician's care.” Id. That is to say, Pearson does not preclude a finding of deliberate indifference by a prison nurse if a prisoner is not presently under the care of a physician or the nurse's treatment of the inmate involves medical decisions not encompassed within the care provided by the physician. Lee v. Corizon Health, Inc., 2020 WL 4005638, at *10 (M.D. Pa. Jan. 14, 2020), report and recommendation adopted, 2020 WL 4003603 (M.D. Pa. July 15, 2020) (citing Pearson, 850 F.3d at 537)). Here, the Amended Complaint mentions two physicians: an unnamed neurologist and Dr. Merino. See ECF No. 23, ¶¶ 10, 29. Three physician assistants are also identified. See id., ¶¶ 11, 12, 13.
The DOC Defendants point to Khynesha's treatment by an outside neurologist as evidence that she was under a physician's care. However, Grant's pleading does not allege that Khynesha was under the continued care of that specialist. Instead, at this early stage of litigation, a fair reading of the Amended Complaint is that her interactions with that specialist were on an “as needed” basis, with Khynesha returning only for additional medication when her symptoms worsened. See, e.g., id., ¶¶ 31, 34. Further, the Amended Complaint does not allege that the neurologist prescribed any particular course of treatment that prison nurses were to follow. See, e.g., Eddowes v. Director, State Dep't Corr., 2018 WL 2248751, at *8 (M.D. Pa. Apr. 9, 2018). Instead, Grant alleges that the DOC Defendant nurses made their own treatment decisions for Khynesha without direction from a doctor or physician's assistant. For example, Chiocco prescribed “ice and rest” for Khynesha's symptoms. ECF No. 23, ¶ 43. Payne, despite Khynesha's report of persisting symptoms, elected to “monitor” her and did not consult a physician or physician's assistant. Id., ¶ 45. Moles is alleged to have done nothing to treat Khynesha's medical complaints, which inaction itself represented an independent treatment decision. Id., ¶ 47. Compare Eddowes, 2018 WL 3947014, at *6 (no liability for pharmacy workers where they were merely following a treating physician's orders in providing prisoner with prescribed medication).
The DOC Defendants cannot point to Dr. Merino as a treating physician prior to his involvement with Khynesha's case on January 23, 2019 because the Amended Complaint includes no allegation that he treated her prior to that date.
Additionally, Pearson premised a nurse's protection from liability upon treatment by a “prison doctor, ” who, unlike the outside specialist who saw Khynesha on an as-needed basis, was in a position to evaluate and supervise the inmate's condition and care on an ongoing basis. Indeed, the nurses in Pearson were basing their treatment decisions on directions from a prison doctor, not the outside physician who operated on the prisoner and returned him to the correctional institution. See Pearson, 850 F.3d 540 n.4 (citing Spruill, 372 F.3d at 236 (“... absent a reason to believe ... that a prison doctor ... is mistreating (or not treating) a prisoner.”)). In Pearson, the defendant physician was an in-house “medical contractor who examined [the prisoner] when he complained of bleeding after his first surgery.” Id. at 531. The prison doctor examined Pearson and ordered a course of treatment. Id., at 532. See also Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (non-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”). That is not the situation Khynesha is alleged to have faced. Here, the Amended Complaint relates only that visits to the neurologist were for occasional injections on an “as needed” basis. The Amended Complaint does not state that the neurologist required scheduled follow-up appointments, additional testing, or a prescribed course of treatment for prison nurses to follow.
And, even if they were, the outside surgeon who performed Pearson's appendectomy sent him back to the prison with specific orders that he “be scheduled for a follow-up examination in one week, ” thus indicating some continuing involvement from that physician. In contrast, the Amended Complaint in this case does not allege continuing, scheduled treatment by a neurologist. See Pearson, 850 F.3d at 532.
Based on the allegations of the Amended Complaint, the Court cannot accept the DOC Defendants' contention that Khynesha was under a physician's care at the time they made their treatment decisions. If appropriate after further development of the record, the DOC Defendants may renew this argument on summary judgment. See Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (noting the “vastly different” standards applicable to motions to dismiss and motions for summary judgment); McFadden v. Dalmasi, 837 Fed.Appx. 135, 138 n.8 (3d Cir. Dec. 9, 2020); Green v. Maxa, 2020 WL 1249205, at *4 (W.D. Pa. Mar. 16, 2020) (defendants pointed to no evidence in summary judgment record that plaintiff was being treated by a physician during the period in question); Robinson v. Corizon Health Inc., 2019 WL 448900, at *10 (E.D. Pa. Feb. 5, 2019); Smith v. Snyder Cty. Prison, 2017 WL 9485537, at *11 (M.D. Pa. July 17, 2017), report and recommendation adopted, 2017 WL 3310699 (M.D. Pa. Aug. 3, 2017).
In summary, because Pearson does not offer the blanket protection the DOC Defendants assert and the Amended Complaint does not establish that Khynesha was under the care of a physician at the time the DOC nurse Defendants treated her, their status as nurses does not support the dismissal of Grant's Eighth Amendment claim against them. Therefore, the Court must examine the allegations against each of the DOC nurse Defendants individually and determine whether they support a plausible inference of deliberate indifference.
3. The DOC Defendants' Motion Should Be Granted as to Grant's Eighth Amendment Claims Against McPhilomy and Chizmar and Denied as to Her Eighth Amendment claims Against Chiocco, Moles, and Payne.
The Eighth Amendment, through its prohibition on cruel and unusual punishment, prohibits the imposition of “unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” Helling v. McKinney, 509 U.S. 25, 32 (1993). In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that prison officials violate the Eighth Amendment when they are deliberately indifferent to a prisoner's serious medical needs by “intentionally denying or delaying access to medical care or interfering with the treatment once prescribed.” Id. at 104-05. Under that standard, Grant must show that the DOC Defendants acted with “deliberate indifference” to Khynesha's “serious medical needs.” Willis v. Gilmore, 2020 WL 5078808, at *2 (W.D. Pa. May 15, 2020), report and recommendation adopted, 2020 WL 5077612 (W.D. Pa. Aug. 26, 2020) (citing Gamble v. Estelle, 439 U.S. 897 (1978)).
When evaluating a deliberate indifference to medical needs claim, it is important to distinguish between allegations of a denial of care vs. allegations of inadequate care. While each is potentially actionable under the Eighth Amendment, each involves different considerations. See, e.g., Haynes v. Wetzel, 2020 WL 7075600, at *7 (M.D. Pa. Sept. 1, 2020), report and recommendation adopted, 2020 WL 6074370 (M.D. Pa. Oct. 15, 2020) (quotation omitted). Based on Grant's allegations, this case presents an inadequacy of care, deliberate indifference claim. The Amended Complaint alleges facts to support that although Khynesha received some medical treatment, it was nonetheless inadequate. See ECF No. 23, generally. The Amended Complaint acknowledges, for example, that Khynesha was seen by a neurologist, physician assistants, and a prison doctor. Id., ¶¶ 29, 47, 52, 58, 69. But, as the Court of Appeals for the Third Circuit has made clear, the fact that prison medical personnel have provided some medical care to an inmate does not preclude a finding of deliberate indifference:
[T]here are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements. For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for “an easier and less efficacious treatment” of the inmate's condition. West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). Nor may “prison authorities deny reasonable requests for medical treatment ... [when] such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.'” Monmouth County Corr. Inst. Inmates, 834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)).Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017).
Grant complains that the treatment Khynesha received from the DOC Defendants was so inadequate as to represent their deliberate indifference to her serious medical needs. Id. at ¶¶ 37, 42, 45, 59. To plead deliberate indifference based on denial or inadequacy of care, the plaintiff must allege facts to show, as a threshold matter, that her medical needs were objectively serious. Haynes v. Wetzel, 2020 WL 7075600, at *7 (M.D. Pa. Sept. 1, 2020), report and recommendation adopted, 2020 WL 14 6074370 (M.D. Pa. Oct. 15, 2020z) (citing Lanzaro, 834 F.3d at 347). A medical need is serious 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.” Rodriguez v. Smith, 2005 WL 1484591, at *4 (E.D. Pa. June 21, 2005) (citing Woloszyn v. County of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005)). “Conditions which have been held to meet the constitutional standard of serious medical need include a brain tumor ....” Id. (quoting Smith v. Montefiore Med. Ctr.-Health Servs. Div., 22 F.Supp.2d 275, 280 (S.D.N.Y.1998) (citation omitted)). The allegations of the Amended Complaint clearly demonstrate the serious nature of Khynesha's medical needs, and the DOC Defendants do not dispute this.
Having made this threshold showing, Grant must also allege facts to demonstrate two additional elements to support an inadequacy of care claim under the Eighth Amendment:(1) the objective inadequacy of the medical care each Defendant provided to Khynesha, and (2) the subjective state of mind (deliberate indifference) of each Defendant. Pearson, 850 F.3d at 536. At this stage of the proceedings, the allegations of the Amended Complaint are also sufficient to satisfy the objective inadequacy of medical care element of Grant's Eighth Amendment claim. These allegations support an inference that the treatment each DOC nurse Defendant provided to Khynesha was inadequate considering her ongoing and worsening array of neurological symptoms and pain and the progressive inefficacy of the treatment and medication provided to address her symptoms and pain.
Regarding the subjective element of the claim, a prison official acts with deliberate indifference where he “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.” Gerholt v. Wetzel, 2021 WL 2135950, at *3 (3d Cir. May 26, 2021) (citing Farmer v. Brennan, 511 U.S. 825, 835-37 (1994)). The mere receipt of inadequate medical care does not itself amount to deliberate indifference-the defendant must also act with the requisite state of mind when providing that inadequate care. See, e.g., Durmer, 991 F.2d at 69 n.13. Likewise, mere errors in medical judgment or other negligent behaviors do not meet the subjective mens rea requirement. Hart v. City of Philadelphia, 779 Fed.Appx. 121, 126-27 (3d Cir. 2019); see also Estelle, 429 U.S. at 106-07; White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990) (“Mere medical malpractice cannot give rise to a violation of the Eighth Amendment.”). Deliberate indifference is a subjective state of mind that can, like any other form of scienter, be proven through circumstantial evidence and witness testimony. See, e.g., id. (noting that, when “intent becomes critical, ” it is “important that the trier of fact hear” the defendant's “testimony in order to assess his credibility”); Campbell v. Sikes, 169 F.3d 1353, 1372 (11th Cir. 1999) (“[P]laintiffs necessarily must use circumstantial evidence to establish subjective mental intent.”); In re Kauffman, 675 F.2d 127, 128 (7th Cir. 1981) (“Intent ... must be gleaned from inferences drawn from a course of conduct.” (internal quotation marks omitted)). With these principles in mind, the allegations of deliberate indifference will be examined as to each individual DOC Defendant.
a. Defendant McPhilomy
The Amended Complaint includes an Eighth Amendment deliberate indifference claim and a state law negligence against McPhilomy. Grant does not oppose dismissal of both claims against McPhilomy. See ECF No. 39, p. 2. n.1. Accordingly, the claims against McPhilomy should be dismissed with prejudice.
b. Defendant Chiocco
The Amended Complaint mentions Chiocco only in connection with events on December 29, 2018. Grant alleges that, on that day, Khynesha's headache continued, and that it had become so severe that she was unable to move. ECF No. 23, ¶ 41. Khynesha also reported that she was nauseous and sensitive to light. Id. The Amended Complaint supports a plausible inference that Chiocco recognized the seriousness of these symptoms as she noted in Khynesha's medical chart that she presented with a “Medical Emergency due to ‘unable to move.'” Id., ¶ 42. Despite this assessment, Chiocco did not refer Khynesha to a physician. According to the Amended Complaint, Chiocco instead “conducted a limited neurological examination” and told Khynesha to “use ice and rest.” Id., ¶ 43. Id., ¶ 43.
While Grant's allegations acknowledge that Chiocco provided some medical attention to Khynesha on December 29, 2018, it is far from clear that this care was even remotely proportionate or appropriate to the seriousness of the medical emergency that Chiocco perceived. The DOC Defendants assert that Chiocco included quotation marks around the words “unable to move” simply to reflect that she was repeating Khynesha's exact words in her note, and not as an adoption of, or expression of skepticism regarding Khynesha's words. Even if accurate, this assertion does not preclude a reasonable inference that Chiocco understood the potential seriousness of Khynesha's condition and, despite that understanding, responded with treatment that was wholly inadequate. These facts and plausible inferences preclude dismissal of the claim against Chiocco. See Gaines v. Busnardo, 735 Fed.Appx. 799, 803 (3d Cir. 2018) (per curium) (vacating entry of summary judgment for nurse on deliberate indifference claim where she “surely [had] enough information ... to draw an inference that [inmate] was in earnest need of medical help-for example, an appointment with the doctor-and not simply an ACE bandage or a directive to ice his ankle”) (citing Pearson, 850 F.3d at 540; Farmer v. Brennan, 511 U.S. 825, 843 n.8, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)) (“[A]n official may not escape liability by declin[ing] to confirm strong inferences of risk that he strongly suspect[s] to exist.”) Accordingly, the DOC Defendants' motion to dismiss Grant's Eighth Amendment claim against Chiocco should be denied.
Curiously, it is Grant who contends that the use of quotation marks may reflect that Chiocco was skeptical of Khynesha's reported symptoms. If this interpretation is correct, it potentially undermines, rather than supports, her claim because a medical professional's honest belief that a patient is malingering does not constitute deliberate indifference. See Todd v. Walters, 166 Fed.Appx. 590, 592 (3d Cir. 2006); Perez v. Chester CI, 2020 WL 7384888, at *5 (E.D. Pa. Dec. 16, 2020); see also Rega v. Beard, 2011 WL 7094571, at *6 (W.D. Pa. Dec. 13, 2011), report and recommendation adopted as modified, 2012 WL 224894 (W.D. Pa. Jan. 25, 2012); Price v. Cooper, 1996 WL 467242, at *3 (N.D. Ill. Aug. 12, 1996) (“If medical personnel do not respond to complaints of pain, they are not liable if they honestly believed the inmate was malingering.”) (citing Ammons v. Altergot, 968 F.2d 1218 (Table), 1992 WL 157551, at *3 (7th Cir. July 8, 1992) (holding nurse's belief that inmate was malingering, if honest but erroneous, . . . would not amount to the deliberate or even reckless infliction of punishment and so would not be actionable under the Constitution.”) (some internal quotations omitted)).
c. Defendant Payne
The only mention of Payne in the Amended Complaint is her interaction with Khynesha on December 29, 2018, when Khynesha returned to the medical unit in the evening following her earlier consultation with Chiocco and reported that her symptoms persisted. Despite the persistence, seriousness, and history of Khynesha's symptoms, Payne did not conduct a neurological examination. Instead, Payne stated that the medical unit would “monitor” Khynesha and that she would see a physician assistant or a doctor. As with Chiocco, whether Payne's recognition of the seriousness of Khynesha's condition and her decision merely to “monitor” her condition, rather than immediately refer her to a higher level of care, represent deliberate indifference cannot be resolved on a motion to dismiss. While “monitoring” of an inmate's non-emergency condition is frequently sufficient to overcome a claim of deliberate indifference, see, e.g., Bush v. Doe, 2021 WL 2328347, at *2 (3d Cir. June 8, 2021) (monitoring an inmate's Hepatitis C constituted treatment), any “treatment, ” including “monitoring, ” must be evaluated against the seriousness and emergent nature of the condition the inmate presents to the medical defendant. Palakovic, 854 F.3d at 228 (prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for “an easier and less efficacious treatment” of the inmate's condition or deny reasonable requests for medical treatment when such denial exposes the inmate to undue suffering or the threat of tangible residual injury). Further, it is far from clear that Payne, in fact, monitored Khynesha's condition as it was corrections staff, rather than medical personnel, who discovered Khynesha unconscious the following morning. Put another way, Grant's allegation that Payne did not monitor Khynesha's symptoms despite making the treatment decision to do so makes it plausible to conclude that Payne delayed or denied Khynesha care for non-medical reasons. Therefore, the Court should deny the motion to dismiss the Eighth Amendment deliberate indifference claim against Payne.
It is not determinative at this early stage of the litigation that Grant has not identified a specific non-medical reason for the delay. Grant's burden is not “so high at the early stages of this proceeding, especially without the benefit of discovery.” Baker v. Heeter, 2021 WL 2685743, at *1 (W.D. Pa. June 30, 2021) (citing Thomas v. Varano, 532 Fed.Appx. 142 (3d Cir. 2013).
d. Defendant Moles
The Amended Complaint impugns the constitutional sufficiency of the treatment Moles provided to Khynesha on three separate days. First, on the morning of December 30, 2018, correctional staff reported a medical emergency, stating that Khynesha was unresponsive. Khynesha was then seen by Moles, who recorded that she had throbbing pain all over her head that only resolved when she avoided light; her pulse was also elevated even while lying in bed; and Khynesha had difficulty walking. The Amended Complaint next indicates that Moles referred Khynesha to Physician Assistant Shrout later in the day. Id., ¶ 49 (“Later in the afternoon of December 30, 2018, [Khynesha] was seen by Defendant Shrout.”). Thus, the Amended Complaint alleges that Moles' treatment of Khynesha on December 30, 2018 consisted of consulting with Khynesha, recording her symptoms, and possibly referring her to Physician Assistant Shrout.
Grant maintains that Moles' notes revealed his significant doubts regarding Khynesha's credibility. For example, Grant pleads that Moles' also reported that Khynesha had been the subject of emergency complaints for the past two days; that Khynesha would move her extremities on command but would “drop her arms” when he was attempting to take her blood pressure; and that Khynesha “refused” to get out of bed. See ECF No. 23, ¶ 48(a)-(c). To the extent Moles reasonably and in good faith questioned the veracity of Khynesha's description of her symptoms, this would not support a finding of deliberate indifference. The Court of Appeals had held, for example, that a medical professional's honest belief that a patient is malingering does not constitute deliberate indifference. Todd v. Walters, 166 Fed.Appx. 590, 592 (3d Cir. 2006).
The Amended Complaint alleges that Moles next encountered Khynesha approximately three weeks later, on January 22, 2019. Id. ¶ 59. On that date, Khynesha reported that her headache pain was so severe that she could not sit down, and, if she did sit down, she would feel faint and an increase in pain. She was nauseous and dizzy, and her vision had changed. She complained that she had experienced these symptoms for a very long time and that she needed an x-ray. Moles recorded her symptoms and noted that he would request that Khynesha be seen by Dr. Merino. Moles also recorded that Merino saw Khynesha later that same day. Grant maintains this notation was false and that Merino did not see Khynesha at any time on January 22, 2019. Instead, Khynesha was sent back to her housing unit.
The next day, January 23, 2019, while Khynesha was eating lunch in her cell, she stood up and felt what she described as seizure-like symptoms. She lost control of her bladder and urinated in her clothing. A medical emergency was called, and Moles went to Khynesha's housing area. Despite Khynesha's alleged distress, Moles did not note any seizure or tremor activity. He indicated instead that Khynesha's clothing was dry on visual inspection and that Khynesha was able to walk down three flights of stairs to the medical unit. Moles then consulted with Chizmar and Merino, and they collectively decided to place Khynesha in the infirmary so that she could be observed for the next 23 hours. The Amended Complaint alleges no further interaction between Khynesha and Moles.
Based on the foregoing allegations, the viability of Grant's deliberate indifference claim against Moles is somewhat tenuous. Grant acknowledge that Moles, in consultation with Chizmar and Dr. Merino, placed Khynesha in the infirmary for a 23-hour observation on January 23, 2019. This allegation indicates that, as of that date, Khynesha was under the care of a doctor (Merino) and that Moles actively engaged and took direction from that doctor. If Moles' concurrence in the decision to place Khynesha in a 23-hour observation were his only involvement in Khynesha's care, the Court would find that Grant's claim against Moles represents only a disagreement in judgment concerning Khynesha's treatment, which is not actionable. See, e.g. Duganne v. Giroux, 2014 WL 4626692, at *6 (M.D. Pa. Sept. 15, 2014) (finding no deliberate indifference where plaintiff was placed on 23-hour observation). Other allegations, however, make the Amended Complaint minimally sufficient to state an Eighth Amendment claim against Moles. Specifically, while Moles recorded that he responded to Khynesha's persistent and troubling symptoms by referring her to Dr. Merino, and that she in fact was seen by him, the Amended Complaint alleges that this never occurred. The Amended Complaint infers that Moles recorded this information with knowledge that Khynesha had not been seen by Dr. Merino. Generally, an allegation that medical personnel falsified a medical record does not support a finding of deliberate indifference. See Lanza v. Moclock, 2018 WL 3060030, at *11 (M.D. Pa. June 20, 2018) (citing Moore v. Casselberry, 584 F.Supp.2d 580, 582 (S.D.N.Y. 2008) (holding conclusory statement that defendant nurse filed a false medical report does not state a federal constitutional violation)). Here, however, it is not the alleged falsification of the medical record upon which Grant bases her claim against Moles. Rather, Grant's claim appears to be premised on an allegation that Moles recognized Khynesha's serious need for a doctor's attention as reflected in his note but did not follow-through with that referral, or at least did not confirm that Khynesha was seen by the doctor. Discovery may well disclose that Khynesha was seen by Dr. Merino as Moles recorded, or that Moles reasonably believed that Dr. Merino had attended to her. But, the allegations of relatively minimal treatment offered by Moles in response to Khynesha's presentation of symptoms and her long history of neurologic symptoms, which was presumably known to Moles, precludes dismissal of Grant's Eighth Amendment claim against him at this early stage of the case. Accordingly, it is recommended that the Court deny the DOC Defendants' motion to dismiss Count I against Moles.
e. Defendant Chizmar
The Amended Complaint's allegations against Nurse Chizmar, are sparse. All that is alleged is that Moles consulted with Dr. Merino and Chizmar on January 23, 2019 regarding how to handle Khynesha's report of seizure-like symptoms and that they decided to place her in the infirmary so that she could be observed for the next 23 hours. ECF No. 23, ¶ 66. This lone allegation against Chizmar is not sufficient to raise a plausible inference of deliberate indifference on the part of Chizmar. Unlike the other DOC nurse Defendants, Chizmar is not alleged to have had multiple or ongoing interactions with Khynesha. She is not alleged to have failed to follow-though with treatment that she subjectively believed was necessary. To the extent Grant challenges the reasonableness of her concurrence in the decision to place Khynesha under a 23-hour observation rather than refer her to a higher level of care, this decision was made in consultation with a doctor and, standing alone, represents a disagreement in judgment concerning Khynesha's treatment, which is not actionable. See, e.g. Duganne v. Giroux, 2014 WL 4626692, at *6 (M.D. Pa. Sept. 15, 2014) (finding no deliberate indifference where plaintiff was placed on 23-hour observation). Thus, the allegations against Chizmar do not include a quality or frequency of interaction sufficient to support a plausible inference of deliberate indifference on her part. Therefore, it is recommended that the Eighth Amended deliberate indifference claim against Chizmar be dismissed.
B. The State Law Claims
1. Supplemental Jurisdiction
Count II of the Amended Complaint asserts a state law negligence claim against all Defendants, including the DOC and the individual DOC Defendants. ECF No. 23. ¶¶ 97-101. Federal courts have jurisdiction over state claims that are related to the federal claims and arise from a common nucleus of operative facts. See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); Aldinger v. Howard, 427 U.S. 1, 9 (1976). But the court may decline supplemental jurisdiction over a claim when the court has dismissed all claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3) (1997). Here, because an Eighth Amendment claim remains against several of the DOC Defendants and the state law negligence claim against all DOC Defendants arises from the same nucleus of operative facts, it is recommended that this Court exercise supplemental jurisdiction over the state law claim against all DOC Defendants. See, e.g., KBS Pharmacy, Inc. v. Patel, 2021 WL 2351961, at *4 (E.D. Pa. June 9, 2021).
2. State Law Negligence/Medical Malpractice
Although labeled as a “negligence” claim, Count II is more specifically characterized as a medical malpractice claim because all Defendants to that claim, except the DOC, are medical professionals who are alleged to have deviated from applicable professional standards of care in their respective treatment of Khynesha. See ECF No. 23, ¶ 97 (DOC Defendants “had a duty to comply with generally accepted medical standards of care in their medical treatment of [Khynesha].”). See also Doe v. Hosp. of Univ. of Pa., --- F.Supp.3d ---, 2021 WL 2661501, at *4 (W.D. Pa. June 29, 2021). To state a claim for medical malpractice, Grant must plead facts to support that “(1) the [medical professional] owed a duty to the patient; (2) the [medical professional] breached the duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm.” Id. (quoting Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1030 (Pa. Super. Ct. 2001)). Also, a plaintiff in a professional malpractice case must file a Certificate of Merit (COM) as to each professional defendant as specified in Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. Pa. R. Civ. P. 1042.3.; Smith v. United States, 498 Fed.Appx. 120, 122 (3d Cir. 2012); Smith v. Friends Hosp., 928 A.2d 1072, 1074-75 (Pa. Super. Ct. 2007). Rule 1042.3 is substantive law that must be applied by federal courts under Erie R.R. v. Thompkins, 304 U.S. 64 (1983). See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 262-64 (3d Cir. 2011).
The Pennsylvania courts distinguish a medical malpractice claim from an ordinary negligence claim based on two defining characteristics of the former. “First, medical malpractice can occur only within the course of a professional relationship. Second, claims of medical malpractice necessarily raise questions involving medical judgment. Claims of ordinary negligence, by contrast, raise issues that are within the common knowledge and experience of the [fact-finder].” Ditch v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa. Super Ct. 2007). Thus, “a complaint ‘sounds in malpractice' where [as here] ‘the conduct at issue constituted an integral part of the process of rendering medical treatment.'” See Iwanejko v. Cohen & Grigsby, 249 Fed.Appx. 938, 944 (3d Cir. Oct. 11, 2007) (quoting Ditch, 917 A.2d at 323).
3. The Amended Complaint States a Medical Malpractice Claim Against All DOC Defendants except McPhilomy and the DOC. .
As noted, because Grant does not oppose dismissal of either the federal claim or state claim against McPhilomy, it is recommended that both be dismissed with prejudice.
The facts alleged in the Amended Complaint state a medical malpractice claim against Chiocco, Chizmar, Moles, and Payne under Pennsylvania law. The conduct of these Defendants is alleged to have arisen within the course of a professional relationship and “constituted an integral part of the process of rendering medical treatment.” Iwanejko, 249 Fed.Appx. at 944 (quoting Ditch, 917 A.2d at 323). The facts alleged also support an inference that the care provided by each nurse deviated from the standard of care applicable to the nursing profession. Each is alleged to have been presented with a patient who displayed a history of ongoing and increasingly severe head pain, neurological deficits, and other symptoms that medical prudence required investigation or a higher level of care. The facts alleged also support an inference that each of the individual DOC Defendants failed to respond appropriately to Khynesha's history and symptoms. Thus, Grant has stated a claim of medical malpractice under state law. Grant has also filed a COM as to each of the individual DOC Defendants. See ECF No. 10 (Chiocco); ECF No. 11 (Chizmar); ECF No. 13 (Moles); and 14 (Payne). The COM for each individual Defendant attests that an “appropriate licensed professional has supplied a written statement ... that there is a reasonable probability that the care, skill or knowledge exercised” by each DOC Defendant “fell outside acceptable professional standards.” See ECF No. 14. Thus, Grant has both alleged facts sufficient to state a medical malpractice claim against each of the individual DOC Defendants, and she has satisfied the COM requirement as to each. Accordingly, the DOC Defendants' motion to dismiss Count III should be denied as to Defendants Chiocco, Chizmar, Moles, and Payne.
Nurses “owe[] a duty of care to conduct [themselves] as a reasonably prudent nurse would act under the circumstances.” Short v. Adams, 2019 WL 331679, at *8 (E.D. Pa. Jan. 25, 2019) (quoting Navarro v. George, 615 A.2d 890, 892 (Pa. Cmwlth. 1992)).
4. Grant's Negligence Claim Against the DOC Is Barred by Eleventh Amendment Sovereign Immunity and Pennsylvania's Sovereign Immunity Statute.
The Amended Complaint's sole cause of action against the DOC is the state law negligence claim asserted at Count III. This claim should be dismissed because it is barred by both Eleventh Amendment sovereign immunity and Pennsylvania's sovereign immunity statute.
Regarding Eleventh Amendment immunity, a suit against the DOC is considered a suit against the Commonwealth of Pennsylvania. See, e.g., Jordan v. SCI Houtzdale Med. Dep't, 2015 WL 871779, at *3 (M.D. Pa. Feb. 27, 2015) (citing Everett v. Schramm, 772 F.2d. 1114, 1118 (3d Cir. 1985) (holding that where a state agency or department is named as a defendant, it is considered a suit against a state for purposes of Eleventh Amendment). The Eleventh Amendment bars suits in federal court for damages or injunctive relief against a state unless the state consents. Schutzeus v. Pennsylvania Bd. of Prob. & Parole, 2020 WL 1911463, at *9 (W.D. Pa. Apr. 20, 2020) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). “This is true whether suit is brought under federal law or state law. Id. (citing Pennhurst, 465 U.S. at 117. Thus, “the Eleventh Amendment strictly bars suits in federal court against state agencies or state officials for violations of state law[.]” Larsen v. State Emps.' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008) (citing Pennhurst, 465 U.S. at 105-06). Accordingly, the Eleventh Amendment precludes Grant from bringing her negligence claim against the DOC in this federal court.
The DOC is also immune from suit on a state law claim of negligence based on medical malpractice. under Pennsylvania's sovereign immunity statute. 1 Pa. Cons.Stat. Ann. § 2310. (“the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.”) The General Assembly specifically waived sovereign immunity in nine areas, including “acts of health care employees of Commonwealth agency medical facilities or institutions.” See 42 Pa. Cons.Stat. Ann. § 8522.6. However, it is well-settled that immunity is waived only for claims asserted against health care employees, and not against individuals who are not medical professionals. McCool v. Dep't of Corr., 984 A.2d 565, 570 (Pa. Cmwlth.2009) (interpreting 42 Pa. Cons.Stat. Ann. § 8522(b)(2)). Because the DOC itself is not a health care employee, it does not fall within the meaning of the medical profession liability exception to Pennsylvania sovereign immunity. Green v. Fisher, 2013 WL 664677, at *6 (M.D. Pa. Feb. 22, 2013) (interpreting 42 Pa. Cons. Stat. Ann. § 8522(b)(2)). See also Glenn v. Mataloni, 2020 WL 7027597, at *9 (M.D. Pa. Nov. 30, 2020). Accordingly, Grant's state law negligence claim against the DOC should be dismissed.
VIII. Leave to Amend
Whether a plaintiff is counseled or acting pro se, if the Court determines that civil rights claims of a complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6), the Court must provide the plaintiff an opportunity to amend the complaint, even if not requested, unless such amendment involves bad faith, would cause undue delay or prejudice, or would be futile. Ferreiras v. CHCA Rice-Grego, et al., 2021 WL 3056812, at *1 (W.D. Pa. June 7, 2021), report and recommendation adopted sub nom. Ferreiras v. Rice-Grego, No. 2:20-CV-1686, 2021 WL 3056206 (W.D. Pa. July 20, 2021) (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (prisoner civil rights case). In this case, leave to amend should be denied as to the dismissed claims against DOC Defendants McPhilomy and the DOC because any attempt to cure the defects in these claims would be futile. However, Grant should be granted leave to file a second amended complaint as to Count I (Federal Constitutional Claims) against DOC Defendant Chizmar because amendment to cure the deficiencies of Count I against Chizmar may not be futile.
IX. Conclusion
In summary, it is respectfully recommended that the DOC Defendants' Motion to Dismiss the Amended Complaint be GRANTED in part and DENIED in part, as follows:
A. GRANTED as to Count I (Federal Constitutional Claims) to the extent this Count purports to assert a Fourteenth Amendment claim against any Defendant and to the extent it is asserted against DOC Defendants Chizmar and McPhilomy;
B. DENIED as to Count I (Federal Constitutional Claims) to the extent this Count is asserted against DOC Defendants Chiocco, Moles, and Payne;
C. GRANTED as to Count III (Negligence/Medical Malpractice) to the extent this Count is asserted against DOC Defendants McPhilomy and the DOC; and
D. DENIED as to Count III (Negligence/Medical Malpractice) to the extent this Count is asserted against DOC Defendants Chiocco, Chizmar, Moles, and Payne.
It is further recommended that the claims against DOC Defendants McPhilomy and the DOC be DISMISSED, with prejudice, but that the dismissal of Count I against DOC Defendant Chizmar be without prejudice and with Plaintiff being granted leave to file a second amended complaint as to this claim. Finally, it is recommended that the Clerk of Court be directed to terminate McPhilomy and the DOC as Defendants in this action.
X. Notification to the Parties
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, the Parties have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. The failure to file timely objections will constitute a waiver of his appellate rights.