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Smith v. Bolava

United States District Court, E.D. Pennsylvania

May 20, 2015



WILLIAM H. YOHN, District Judge.

Moses Lee Smith, formerly an inmate at Northampton County Prison in Easton, Pennsylvania, filed a pro se second amended complaint against the prison's deputy warden, four members of its medical staff, and the nearby hospital where he was taken for treatment. Read liberally, this third effort by plaintiff to file a meritorious complaint alleges that Smith was deprived of medical care, cared for negligently, poisoned, and wrongly placed on suicide watch. All but one of the defendants filed motions to dismiss, arguing that Smith is barred from raising claims of medical malpractice and that he has failed to state any constitutional claims. I agree, and accordingly I will grant the motions and dismiss plaintiff's claims.


In February 2011, Moses Lee Smith was an inmate at Northampton County Prison ("NCP") when Doctor David Neal gave him a drug that caused him to have an allergic reaction.[2] Second Am. Compl. ("SAC") at 3. For 48 hours thereafter, Smith was denied medical care by Nurse Emilia Caputo. Id. At the time, both Neal and Caputo worked for PrimeCare Medical, the prison's outside medical provider.[3] Id.

Smith further alleges that on March 29, 2013, he was poisoned by the staff at NCP and subsequently taken to St. Luke's Hospital. Id. Through medical neglect by Neal and/or Caputo, Smith contracted lichen planus.[4] Id. Lichen planus is "a condition that forms an itchy rash on the skin or in the mouth." See U.S. National Library of Medicine, Lichen planus, MedlinePlus (Nov. 20, 2012), This condition, in turn, derived from hepatitis caused by the "gross medical practice" of PrimeCare. SAC at 3. Smith alleges that steroids are required to treat his skin condition, but that they have not been administered because they may damage his only remaining kidney. Id. at 4.

At some point thereafter, Smith was placed on suicide watch at the direction of Doctor Kishorkumar Dedania and NCP deputy warden Roger Bolava. Id. at 3. Smith claims he then suffered from cruel and unusual punishment at two other prisons, SCI Graterford and SCI Camp Hill.[5] Id. At the former, Smith was denied access to prescription medicine; at the latter, he was again placed on suicide watch and forced to take unwanted medication. Id.

Smith filed his original complaint and a motion to proceed in forma pauperis on October 10, 2014. The motion was denied on October 14, 2014. Smith then filed a petition to proceed in forma pauperis on October 20, 2014, which I granted on October 28, 2014. Smith filed a first amended complaint on November 5, 2014 and a second amended complaint on December 15, 2014. By order on December 29, 2014, I dismissed as frivolous Smith's claims against SCI Graterford and SCI Camp Hill. Defendant Bolava filed a motion to dismiss under Rule 12(b)(6) on January 9, 2015. Smith responded on January 20, 2015. Defendants Dedania, Neal, Kalteski, and Caputo moved to dismiss on February 27, 2015. Smith responded on March 12, 2015.[6]


In analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). "This plausibility' determination will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The issue is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim." Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (internal quotation marks omitted).

In conducting this review, a court must accept all "well-pleaded" facts in the complaint as true. Fowler, 578 F.3d at 211. This assumption of truth does not, however, apply to legal conclusions couched as factual allegations or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. At the same time, the pleadings of pro se plaintiffs must be "liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).


Smith's allegations focus on four incidents. First, he claims that in February 2011, Neal gave him a drug that caused an allergic reaction, and that Caputo denied him medical care for 48 hours thereafter. Second, he claims that he was poisoned by the staff at NCP on March 29, 2013. Third, he claims he contracted lichen planus, derived from hepatitis, as a result of medical neglect and "gross medical practice." Fourth, he claims that Bolava and Dedania wrongly placed him on suicide watch. Smith does not specify whether these incidents amount to violations of his constitutional rights or medical malpractice. I will therefore discuss each incident in turn and-construing the pleadings liberally-consider the claims that Smith could be raising.[7]

A. Allergic Reaction & Lack of Care

Smith asserts that Neal provided him a drug that caused an allergic reaction in February 2011, and that Caputo subsequently denied him medical care for 48 hours. This allegation can most readily be interpreted as giving rise to a claim of medical malpractice under Pennsylvania law. The state's Rules of Civil Procedure, however, require that a plaintiff claiming medical malpractice "shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit." Pa.R.C.P. No. 1042.3. This requirement is designed "to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly." Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006). The Third Circuit has held, in an unpublished opinion, the reasoning of which I find persuasive, that "Rule 1042.3 is a substantive state law that federal district courts must apply." Perez v. Griffin, 304 F.Appx. 72, 74 (3d Cir. 2008) (per curiam) (nonprecedential). Consequently, "If a plaintiff does not comply with Rule 1042.3, the claims will be dismissed... [unless] the plaintiff can show a reasonable excuse' for the noncompliance." Id. ...

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