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April 19, 2004.

MARC SMITH, et al., Plaintiffs,
COUNTY OF BUCKS, et al., Defendants

The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge


Plaintiffs Marc Smith and Jolanthe Roscoe bring this civil rights action against the County of Bucks and various county personnel for damages related to health care that Plaintiff Smith received while incarcerated in the Bucks County Correctional Facility ("BCCF"). Presently before the Court is a motion to dismiss filed by the County of Bucks, the Director of the Bucks County Department of Corrections Harris Gubernick, and BCCF Warden Willis Morton (collectively the "County Defendants"), and a motion to dismiss or in the alternative for summary judgment filed by the Medical Director of the Department of Health Lewis Polk and the Director of the Department of Health Gordon Ehrlacher (collectively the "Medical Defendants"). For the reasons set out below, the Court grants in part and denies in part the County Defendants' motion to dismiss and grants in part and denies in part the Medical Defendants' motion for summary judgment.


  For the purposes of the instant motions, the following facts are set out in a light most favorable to Plaintiffs. At some point during 2001, Plaintiff Smith was examined by a private physician who recommended that Smith have a biopsy of a mole on his chest. (Compl. ¶ 17.) In October of that year, prior to any biopsy being conducted, Smith was incarcerated in BCCF. (Id. ¶ 15.) In January 2002,*fn1 he informed the medical personnel in the BCCF infirmary-who are unserved John and Jane Doe defendants in this case-that he was concerned about the mole and that his physician had previously recommended a biopsy. (Id. ¶ 17.) The medical personnel, without conducting any tests, told Smith that the mole was not cancerous and treated him by placing a bandage over it. (Id. ¶ 18.) Between January and May 2002, Smith repeatedly complained to the infirmary staff that the mole had grown and was bleeding, but they did not permit him to receive a biopsy. (Id. ¶ 19-22.) Also during this time, Smith contacted his mother, Plaintiff Roscoe, who attempted to obtain permission from "all prison supervisory personnel, including the defendant warden" for her son to receive a biopsy. (Id. ¶ 23.) Roscoe's attempts were unsuccessful until she contacted an acquaintance who is or was a Bucks County official. (Id. ¶ 24.) This official placed a call to Defendant Morton on Roscoe's behalf, and Morton then allowed Smith to be transported to the hospital. (Id.) By this time, the mole had reached the size of a golf ball, and the hospital quickly confirmed that it was cancerous. (Id. ¶¶ 25-26.) Smith received this diagnosis in late May or early June 2002, and was paroled soon thereafter. (Id. ¶¶ 26-27.) Although Smith was treated for cancer throughout the next year, this treatment was ultimately unsuccessful. (Id. ¶¶ 29-36.) Smith died on January 11, 2004, approximately two months after he and Roscoe filed the instant suit.

  Plaintiffs' suit presents four claims: Count I, brought pursuant to 42 U.S.C. § 1983, asserts that Defendants violated Smith's Eighth Amendment right to be free from cruel and unusual punishment; Count II alleges unspecified violations of the Pennsylvania Constitution; Count III is a state-law claim for intentional infliction of emotional distress; and Count IV is a claim brought by Plaintiff Roscoe for loss of her son's consortium. Both groups of moving Defendants seek to dismiss all four of these Counts as well as Plaintiffs' demand for punitive damages.


  A. Standard of Review

  When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court may look only to the facts alleged in the complaint and its attachments. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The court must accept as true all of the factual allegations pleaded in the complaint and draw all reasonable inferences in favor of the non-moving party. See Bd. of Trs. of Bricklayers & Allied Craftsmen Local 6 of N.J. Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir. 2001). A motion to dismiss will only be granted if it is clear that relief cannot be granted to the plaintiff under any set of facts that could be proven consistent with the complaint's allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).*fn2

  B. Discussion

  1. Count I: Violation of the Eighth Amendment Plaintiffs' § 1983 claim alleges that Defendants violated the Eighth Amendment prohibition on cruel and unusual punishment by failing to allow Smith to receive a biopsy between January and May of 2002. In order to show liability pursuant to § 1983, Plaintiffs must demonstrate that Smith's constitutional rights were violated by persons acting under color of state law. 42 U.S.C. § 1983. As Defendants do not contest that the state action requirement is satisfied, the question at issue is whether Plaintiff has properly alleged an Eighth Amendment violation.

  An Eighth Amendment violation occurs when state actors act with "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that plaintiff's allegation that prison doctors should have performed certain diagnostic tests instead of the tests actually performed did not state claim under § 1983).*fn3 "In order to establish a violation of [a prisoner's] constitutional right to adequate medical care, evidence must show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). The inquiry into whether the prisoner had a serious medical need is objective; the deliberate indifference inquiry is subjective. Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). A serious medical need is one that "has been diagnosed by a physician as requiring treatment or . . . is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (collecting cases). In order to make out a case of deliberate indifference, the plaintiff is required to show that the defendant "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety." Natale, 318 F.3d at 582 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). However, "in the medical context, [neither] an inadvertent failure to provide adequate medical care [nor] . . . negligen[ce] in diagnosing or treating a medical condition" state a cause of action. Estelle, 429 U.S. at 105-06. Thus, the Third Circuit has found deliberate indifference "in situations where `necessary medical treatment is delayed for non-medical reasons.'" Natale, 318 F.3d at 582 (quoting Monmouth County, 834 F.2d at 347).

  The County Defendants move to dismiss Plaintiffs' § 1983 claim on the grounds that: (a) there was no underlying violation of Smith's constitutional rights; (b) individual defendants Gubernick and Morton are not alleged to have taken any actions that would subject them to personal liability; (c) Gubernick and Morton are entitled to qualified immunity; and (d) Plaintiffs cannot make out a case of municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).

  Regarding the underlying constitutional violation, accepting Plaintiffs' allegations as true and drawing all factual inferences therefrom in their favor, the Complaint properly alleges an Eighth Amendment violation. Specifically, Plaintiffs allege that Smith informed the prison medical staff about his painful, bleeding, and growing skin problem, and Roscoe contacted all of the prison supervisors with the same information, yet Smith was consistently denied the minimal medical treatment that might have saved his life. (Compl. ¶¶ 19-24.) From these allegations alone, a reasonable factfinder could infer both an objectively serious medical condition and deliberate indifference to that condition, thus meeting the Third Circuit's standard for pleading Eighth Amendment medical violations. See, e.g., Natale, 318 F.3d at 582-83 (holding that standard was satisfied where diabetic prisoner informed nurse of his need for insulin but was not given it for 21 hours); Montgomery, 294 F.3d at 500-501 (reversing magistrate judge's determination that HIV-positive prisoner's allegation that prison staff failed to give him proper tests and treatment was without merit). In addition, Plaintiffs allege that Morton's refusal to allow treatment was not grounded in any medical consideration but was instead entirely capricious, as evidenced by his acquiescence upon being contacted by a Bucks County official. This allegation is also sufficient to make out a claim of deliberate indifference to Smith's health. See Natale, 318 F.3d at 582 (noting that allegation that "necessary medical treatment [was] delayed for non-medical reasons" states claim under § 1983). These allegations therefore satisfy the pleading requirements for Eighth Amendment claims, and County Defendants' motion to dismiss the § 1983 claim for lack of an underlying constitutional violation is accordingly denied.

  Second, County Defendants argue that Gubernick and Morton are not alleged to have taken any actions that would subject them to personal liability under § 1983. In order to state a cause of action against these Defendants in their individual capacities, Plaintiffs must allege that Gubernick and Morton either directed the constitutional violation to occur or knew that it was occurring and acquiesced thereto. Baker v. Monroe Township, 50 F.3d 1186, 1200 (3d Cir. 1995) (setting out Third Circuit's "well established standard for individual liability" under § 1983). Plaintiffs have met their burden by alleging that Roscoe contacted "all prison supervisory personnel, including the defendant warden" regarding her son's medical condition. (Compl. ¶ 23.) If this allegation is true, meaning that Gubernick and Morton were apprised of Smith's condition by Roscoe and still refused to allow a biopsy, Plaintiffs could meet their burden of demonstrating these Defendants' direction of — and/or acquiesence to — actions ...

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