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Yocum v. Hermick

United States District Court, Third Circuit

September 30, 2013

SEAN YOCUM, surviving brother of LANCE A. YOCUM as Trustee Ad Litem and as Administrator of the Estate of LANCE A. YOCUM, Deceased, Plaintiff,


TERRENCE F. McVERRY, District Judge.

On May 17, 2013, United States Magistrate Judge Cynthia Reed Eddy issued a Report and Recommendation which recommended that three pending Motions to Dismiss Plaintiff's Amended Complaint (ECF Nos. 21, 23 and 39) be granted in part and denied in part. After careful consideration of Defendants' Objections to the Report and Recommendation and Responses to Objections, the Court will accept the Magistrate Judge's recommendation and adopt the Report and Recommendation as the Opinion of the Court, except as noted.

The Amended Complaint (ECF No. 16)

As set forth in greater detail in the Report and Recommendation, on April 29, 2011, Lance Yocum was involuntarily admitted to "Friendship Ridge, " a public-run, long term structured residence facility that provided mental health treatment in Beaver County, Pennsylvania, pursuant to section 304(c) of the Pennsylvania Mental Health Procedures Act, as amended, 50 Pa. Stat. Ann. § 7304(b) (court-ordered, involuntary treatment not to exceed ninety days). The following day, Lance Yocum died, allegedly as a result of his reaction to medication improperly administered to him at the facility.

Sean Yocum is the surviving brother of Lance, and is Trustee Ad Litem and Administrator of his Estate. The Complaint, filed in state court, [1] raises wrongful death and survival claims under Pennsylvania statutes, 42 Pa.C.S. §§ 8301 and 8302, respectively, as well as federal civil rights and other claims pursuant to 42 U.S.C. § 1983, and names the "County of Beaver, d/b/a Friendship Ridge" ("County" or "Friendship Ridge, " depending on context), Premiere Health Services, Inc., and six individual medical/mental health providers, as Defendants.[2] Friendship Ridge is owned by Beaver County.

When the individual Defendants filed their Notice of Removal, to which County and Premiere consented, removing Defendants neglected to attach all state court pleadings, as required by the Removal Statute, 28 U.S.C. § 1446(a) (notice of removal must contain "a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants" in state court). On October 29, 2012, the County filed a Motion to Dismiss Cross-Claim By Premier Healthcare Resources, Inc. (ECF No. 8), in which it seeks to dismiss Premier's cross-claim for indemnity, based on a management agreement to provide medical services at Friendship Ridge, that had been filed in the Court of Common Pleas of Beaver County. Attached to that motion is Premier's Answer, New Matter and Cross-Claim Pursuant to Pa.R.C.P. 1031.1 (ECF No. 8-2) filed in the state court. On November 6, 2012, the removing individual Defendants filed a "Supplemental Exhibit to Notice of Removal, " acknowledging their inadvertent failure "to include as an exhibit the previously filed Answer, New Matter and Cross-claim Pursuant to Pa.R.C.P. 1031.1 filed on behalf of Defendant Premiere Healthcare Resources, Inc. in the Court of Common Pleas of Beaver County, Pennsylvania." (ECF No. 15).

The County also filed a motion to dismiss Plaintiff's complaint (ECF No. 6), as did the individual Defendants. (ECF No. 13). While the three motions were pending, Plaintiff filed an Amended Complaint (ECF No. 16). On November 21, 2013, the Magistrate Judge entered a Text Order denying the pending motions as moot. No appeal was taken from that Order.

The Amended Complaint alleges that Lance Yocum was administered prescription medications intended for another resident at the facility, and that none of the defendants took any emergency measures to save him after obvious life-threatening side effects became apparent, and that all Defendants participated in a cover-up to hide their mistakes and the cause of death. Amended Complaint (ECF No. 16, ¶¶ 17-54). Mr. Yocum died on April 30, 2011 due to the alleged "erroneous ingestion of medications meant for another patient, " id. at ¶ 53, and defendants' gross negligence and deliberate indifference in failing to treat Mr. Yocum following the erroneously administered medication and the life-threatening side effects resulting therefrom.

The Amended Complaint asserts that Defendants are bound by the 1987 Omnibus Reconciliation Act and the Federal Nursing Home Reform Act ("FNHRA"), 42 U.S.C. § 1395i-3, and implementing regulations, and by the Pennsylvania counterpart statutes and regulations, and that Defendants' deliberate, reckless and/or gross deviation from those standards, their conscience-shocking conduct and their deliberate indifference to Lance Yocum's health and safety, violated Lance Yocum's rights guaranteed by the Constitution and laws of the United States, in violation of 42 U.S.C. § 1983. Amended Complaint, (ECF No. 16, ¶¶ 58-69). The Amended Complaint makes the same allegations against each individual Defendant (ECF No. 16, Counts I through VIII, ¶¶ 71-134), by raising several theories and causes of action: deprivation of rights secured by section 1983 and the Fourteenth Amendment; by 42 U.S.C. § 1395i-3, 35 P.S. §§ 448.101 et seq., and federal and state implementing regulations; and deprivation of Lance Yocum's "right to life" as secured by the United States Crimes Code, 18 U.S.C. § 1112 (proscribing Involuntary Manslaughter). The amended Counts against Friendship Ridge and Premier add the standard Monell language[3] regarding their respective failures to train, supervise or discipline their employees, servants, agents, etc., and the Amended Complaint eliminates the "right to life" - involuntary manslaughter theory of liability against these Defendants.

The Motions to Dismiss and Magistrate Judge's Analysis

Separate Motions to Dismiss the Amended Complaint were filed on behalf of: individual Defendants Rhonda Hermick, R.N., Stephanie Somogie, L.P.N., Casey Jennings, Sean Shirley, Joan Bell and Albert Fay (ECF No. 21); County of Beaver d/b/a Friendship Ridge (ECF No. 23); and individual Defendants Gervais Hannon and Trina Hall (who had been added by the Amended Complaint) (ECF No. 39).

The Magistrate Judge recommended denial of the motions to dismiss claims of deliberate indifference to medical needs under the Eight Amendment and Gamble v. Estelle, 439 U.S. 897 (1978), by finding that "Plaintiff has set forth more than sufficient facts to support his claim of deliberate indifference to his medical emergency under the foregoing substantive and pleading standards. Accordingly, defendants' arguments to the contrary are without merit, and Plaintiff's claims of deliberate indifference to medical needs under the Eight Amendment and section 1983 should survive the motions to dismiss." Report and Recommendation (ECF No. 41), at 10-11.

Regarding Plaintiff's claims that Defendants deprived him of "rights" secured under the involuntary manslaughter statute of the United States Crimes Code, the Magistrate Judge stated that it "requires little discussion to dismiss Plaintiff's claims predicated on a violation of any rights due him by the federal criminalization of involuntary manslaughter, 18 U.S.C. § 1112. This statute is found in Title 18 of the United States Code, Crimes and Criminal Procedure. As a rule, criminal actions may only be brought by the state and not by individuals." Report and Recommendation (ECF No. 41), at 11. As Plaintiff has no private right of action under 18 U.S.C. § 1112, the Magistrate Judge recommended that the motions to dismiss Plaintiff's section 1983 claim predicated on violation of the Crimes Code should be granted and the claims dismissed.

The Magistrate Judge also agreed with Defendants that punitive damages are not available in a section 1983 civil rights suit against governmental entities or against an officer acting in his or her official capacity, Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988), but may be considered against individual defendants with regard to conduct performed in their individual capacities. Thus the Magistrate Judge recommended that the claims for punitive damages against the County of Beaver and its officials, employees and ...

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