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Peter D'agostino v. Montgomery County

February 9, 2012


The opinion of the court was delivered by: Rufe, J.


Plaintiff, Peter D'Agostino, brings the instant action against Defendants Montgomery County ("the County"), Dr. Margaret Carrillo, unidentified Physician Assistant(s) "Doe(s)," unidentified nurse(s) "Roe(s)," and Correctional Medical Care, Inc. ("CMC"), a privately-owned company which provides health care services to inmates at the Montgomery County Correctional Facility ("MCCF") pursuant to a contract with the County. Plaintiff alleges that the individuals charged with providing him with medical care as an inmate at MCCF were deliberately indifferent to his serious medical needs, violating his right under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment. In addition, Plaintiff asserts that the County and CMC are liable for the actions of the individual defendants. Finally, Plaintiff alleges state law negligence claims (professional malpractice) against CMC and the individual defendants. Before the Court is Defendants' Motion to Dismiss all counts.


The facts alleged in the Complaint are assumed to be true for the purposes of the Motion to Dismiss, and any inferences drawn therefrom are viewed in the light most favorable to Plaintiff as the non-moving party.

Plaintiff's Illness

In February 2010, while incarcerated at MCCF, Plaintiff developed severe, radiating lower back pain and fever. On February 10, 2010, he was examined by a CMC Physician's Assistant ("PA"), who noted that Plaintiff had back, arm, and leg pain, a 104 degree fever, and an elevated pulse. The PA preliminarily diagnosed Plaintiff with a urinary tract infection, ordered a test to confirm the diagnosis, and prescribed antibiotics and acetaminophen.

On February 13, 2010, Plaintiff was seen by Dr. Carrillo, who noted that laboratory tests had come back negative for urinary tract infection. From February 10 through February 19, Plaintiff's symptoms became worse. His white blood cell count was rising, indicating that Plaintiff had an infection which was not responding to the antibiotic treatment. On February 17, Dr. Carrillo examined Plaintiff again. By that time, Plaintiff was confined to a wheelchair, unable to lift his legs. Nevertheless, Dr. Carrillo did not change the treatment plan developed on February 10, nor did she order additional diagnostic tests.

On February 19, 2010, Dr. Carrillo referred Plaintiff to the emergency room at Mercy Suburban Hospital for further evaluation and treatment. An MRI revealed that Plaintiff had a spinal abscess. Plaintiff was transferred to Temple University Hospital for surgery to drain the abscess. Plaintiff was hospitalized at Temple from February 19, 2010 through March 9, 2010, and then entered Moss Rehabilitation where he remained an inpatient until March 25, 2010. After his discharge, he received outpatient treatment at Moss through September 2010. Plaintiff continues to suffer serious physical problems as a result of his spinal cord injury, including limited mobility, severe pain, and the need to catheterize himself to void his bladder.

CMC's Contract with the County

Defendant CMC had a contract with Montgomery County to provide medical services to inmates at MCCF from 2007 through 2010. For the year 2010, the contract provided that the County would pay CMC more than $4 million to provide medical services to MCCF inmates. CMC agreed to cover the costs of any outside medical services inmates required, including hospitalizations. Thus, referring inmates for medical services outside of MCCF would decrease CMC's annual profit. Dr. Carrillo, as CMC's medical director, had sole discretion to determine whether inmates would be referred for outside medical services.


To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" *fn1 and "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element" of a claim. *fn2 Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." *fn3 The question is not whether the plaintiff ultimately will prevail but whether the complaint is "sufficient to cross the federal court's threshold." *fn4

In evaluating a challenged complaint, a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." *fn5 Although the

Court must draw all reasonable inferences from the allegations in favor of the plaintiff, *fn6 it need not accept as true "unsupported conclusions and unwarranted inferences," *fn7 or the ...

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