United States District Court, W.D. Pennsylvania
For GREGORY TUTTLE, AND, CONNIE TUTTLE, Plaintiffs: Philip A. Fabiano, LEAD ATTORNEY, Philip A. Fabiano, LLC, Pittsburgh, PA.
For TREVOR WINGARD, individually and in his official capacity as Warden of the Allegheny County Jail, ALLEGHENY COUNTY, and, DAN ONORATO, individually and in his capacity as County Executive of Allegheny County, Defendants: J. Deron Gabriel, LEAD ATTORNEY, Allegheny County Law Department, Pittsburgh, PA; Stanley A. Winikoff, LEAD ATTORNEY, Dell, Moser, Lane & Loughney, Pittsburgh, PA.
For DANA PHILLIPS, individually and in her official capacity as as Chief Operating Officer of Allegheny Correctional Health Services, Inc., ALLEGHENY COUNTY HEALTH DEPARTMENT, ALLEGHENY CORRECTIONAL HEALTH SERVICES, INC., Defendants: Stanley A. Winikoff, LEAD ATTORNEY, Dell, Moser, Lane & Loughney, Pittsburgh, PA.
For VIRGINIA COOK, Executrix all the Estate of BRUCE DIXON, M.D., individually, and with respect with BRUCE DIXON'S official capacity as Dir. of the Allegheny County Health Department, Defendant: John K. Heisey, LEAD ATTORNEY, Thomson, Rhodes & Cowie, Pittsburgh, PA; Stanley A. Winikoff, LEAD ATTORNEY, Dell, Moser, Lane & Loughney, Pittsburgh, PA; Lisa R. Whisler, Thomson, Rhodes & Cowie, P.C., Pittsburgh, PA.
ECF Nos. 8, 10, 14
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, United States Magistrate Judge. District Judge Bissoon.
It is respectfully recommended that the Motion to Dismiss at ECF No. 14 filed by Allegheny County, Allegheny Health Department, Dan Onorato and Trevor Wingard be granted in part and denied in part. It should be denied as it relates to the Eighth Amendment claim. It should be granted as it relates to the following: the official and individual capacity claims against Defendants Onorato and Wingard; the claims against the Allegheny Health Department; Fifth Amendment claims, and the state negligence claims against Allegheny County and its officials Wingard and Onorato. It should be granted without prejudice to Plaintiffs filing an amended complaint as to the municipal liability claim. If Plaintiffs fail to amend the municipal liability claim in the time allotted by the District Judge, this Court recommends that the municipal liability claim against Allegheny County be dismissed with prejudice.
It is also recommended that the Motion to Dismiss at ECF No.10 filed by Virginia Cook be granted in its entirety.
Finally, it is recommended that the Motion to Dismiss at ECF No. 8 filed by Allegheny Correctional Health Services, Inc., Dana Phillips, and Bruce Dixon in his capacity as Chair of the Board of Directors of Allegheny Correctional Health Services, Inc. be denied in part and granted in part. The Motion should be denied as it relates to the following: state law negligence claims against ACHS and its officials Phillips and Dixon; § 1983 individual capacity claims against Phillips; and punitive damages. The Motion should be granted as it relates to the following: Fifth Amendment claims; Fourteenth Amendment claims; § 1983 official capacity claims against Phillips and Dixon; § 1983 individual capacity claims against Dixon; and any state medical malpractice claims. The Motion should be granted without prejudice to Plaintiffs filing an amended complaint as to the Monell claim. If Plaintiffs fail to amend the Monell claim in the time allotted by the District Judge, this Court recommends that the Monell claim against ACHS be dismissed with prejudice.
Plaintiffs, Gregory Tuttle (" Plaintiff") and his wife, Connie Tuttle (collectively " Plaintiffs") bring this action pursuant to 42 U.S.C. § 1983. Plaintiffs also include supplemental state law claims, including a loss of consortium claim by wife Connie Tuttle.
In 1994, Plaintiff underwent surgery for a right hip implant. (ECF No. 1-2 at ¶ 37.) In November of 2011, Plaintiff was an inmate at the Allegheny County Jail (" ACJ"). (ECF No. 1-2 at ¶ ¶ 34, 36.) Plaintiff avers that the above-captioned Defendants were aware of his previous hip implant procedure. (ECF No. 1-2 at ¶ 37.)
In November 2011, while working in the jail kitchen, Plaintiff slipped and fell, injuring his right side and hip. (ECF No. 1-2 at ¶ ¶ 35-36.) Plaintiff avers that prior to this slip and fall, he had not experienced any difficulty with his right hip. (ECF No. 1-2 at ¶ 38.)
Plaintiff reported the fall to his direct kitchen supervisor, and completed his shift in the kitchen that day. (ECF No. 1-2 at ¶ 39.) Plaintiff avers that overnight, his pain intensified. (ECF No. 1-2 at ¶ 40.) Plaintiff was seen in the infirmary the next day, prescribed Motrin, and told to stay off his feet. (ECF No. 1-2 at ¶ 40.) In the following days and weeks, Plaintiff's pain " continued to intensify" and he " could hardly walk." (ECF No. 1-2 at ¶ 41.) Plaintiff was physically unable to leave his cell and his meals were brought to him by his cellmate. (ECF No. 1-2 at ¶ 42.)
Plaintiff avers that from this time until the time of his release later that month, he submitted written sick call requests, and verbally requested to guards and medical personnel, including the triage nurse, that he be examined because his condition was worsening. (ECF No. 1-2 at ¶ ¶ 43-44.) In response, Plaintiff was told either that he would be seen, or that he did not need to be seen. (ECF No. 1-2 at ¶ 45.)
Plaintiff alleges that at this time and up to the time he was released from the ACJ, a " lump" the size of an egg developed on his right hip, which he reported to the guards and medical personnel. (ECF No. 1-2 at ¶ 46.) Plaintiff continued to send multiple written requests to see a doctor. (ECF No. 1-2 at ¶ 47.) Plaintiff avers that he learned from a triage nurse that each time he submitted a written request to see a doctor, he would lose his place in line and his request would be placed on the bottom of the list. (ECF No. 1-2 at ¶ 48.) He further avers that sick call requests are routinely left uncollected by medical personnel and that sick call requests are routinely ignored and left undocumented. (ECF No. 1-2 at ¶ ¶ 49-50.) Further, Plaintiff alleges that medical personnel employed a practice of failing to answer the phone in the jail infirmary in an effort to not address inmate medical needs. (ECF No. 1-2 at ¶ 51.)
Plaintiff states that despite his requests and the worsening of his condition, " he was not seen by a medical doctor and when he was seen, he was prescribed ineffective medication[:] Tylenol and a cane." (ECF No. 1-2 at ¶ 55.)
Plaintiff was released from the ACJ on November 22, 2011 and was seen at the Forbes Regional Medical Center on November 24, 2011. (ECF No. 1-2 at ¶ ¶ 56, 58.) On November 25, 2011, Plaintiff underwent surgery and " was diagnosed post operatively with a deep infection, right total hip." (ECF No. 1-2 at ¶ ¶ 58-59.) Plaintiff was treated with intravenous antibiotic therapy with the surgical site left open. (ECF No. 1-2 at ¶ ¶ 60-61.) Thereafter, Plaintiff has had multiple surgical procedures for a " complex reconstruction of his hip following infection." (ECF No. 1-2 at ¶ 62.)
Finally, Plaintiff avers that " in approximately 2010, Defendants, as well as other Allegheny County officials, including auditors from the Allegheny County government, audited the medical records at the Allegheny County jail, specifically with regard to the costs of outside medical trips. These officials concluded that outside trips to medical facilities be reduced for financial reasons." (ECF No. 1-2 at ¶ 29.) Plaintiff also alleges that " Defendants had a policy or custom to deliberately withhold medical attention in an effort to hold down costs occasioned by the need for outside medical attention." (ECF No. 1-2 at ¶ 27.) Specifically, Plaintiff states that " Defendant Phillips instituted a policy requiring her approval for all outside medical care in an effort to implement the policy of the Defendants to hold down medical costs even if physicians employed by Allegheny Correctional Health Services, Inc. would recommend outside evaluation, care and treatment at outside facilities." (ECF No. 1-2 at ¶ 31.) As a consequence, according to Plaintiff, " outside medical trips were substantially decreased which had the effect of discouraging doctors and other employees of Allegheny Correctional Health Services, Inc. from properly evaluating and sending inmates to outside medical facilities for evaluation and treatment." (ECF No. 1-2 at ¶ 32.)
B. LEGAL STANDARD
Recently, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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).
1. Motion to Dismiss filed by Defendants Allegheny County; Allegheny Health Department; Allegheny County Executive, Dan Onorato; and
the Warden of ...