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Whitenight v. Elbel

United States District Court, W.D. Pennsylvania, Pittsburgh.

December 5, 2017





         Presently before the court are the following:

(1) Defendants Jill Clark and Prime Medical Care's motion to dismiss [ECF No. 44];
(2) Defendant Susan Rossino's motion to dismiss [ECF No. 46];
(3) Defendant Thomas Elbel's motion to dismiss [ECF No. 48]; and
(4) Defendants Terri Calvert and Jenipher Purce's motion to dismiss [ECF No. 85].

         The motions are fully briefed and ripe for disposition. See ECF Nos. 44, 45, 46, 47, 48, 49, 57, 58, 60, 65, 71-7, 85, 86, 90 and 92. For the reasons that follow, the motions are granted in part and denied in part.

         II. BACKGROUND[2]

         Plaintiff initiated the present civil rights action for alleged conduct while he was incarcerated as a pre-trial detainee in the Jefferson County Jail (“JCJ”). Plaintiff names the following individuals: Thomas Elbel, the Warden of JCJ (“Warden Elbel”); Prime Care Medical, the medical provider at JCJ; Susan Rossino, M.D. (“Dr. Rossino”); Terri Calvert, M.D. (“Dr. Calvert”); Jill Clark, PA-C (“PA-C Clark”); and Jenipher Purce, L.P.N. (“L.P.N. Purce”).

         According to Plaintiff's complaint, Plaintiff was incarcerated at JCJ from December 17, 2013 to June 3, 2014. He generally alleges that he was not given adequate medical care and placed in solitary confinement in violation of his constitutional rights.

         Prior to Plaintiff's incarceration, he was involved in a motor vehicle accident in 2002 which resulted in injury to his spine. In October 2011, Plaintiff broke his T-10 disc in his spine. Plaintiff underwent physical therapy for his T-10 injury. Thereafter, Plaintiff was diagnosed with ankylosing spondylitis and Plaintiff's physician recommended that Plaintiff receive “trigger point injections” or see a Rheumatologist. See Exhibit O to Declaration of Shawn Lee Whitenight [ECF No. 58-5 at 2]. Another physician discounted Plaintiff's diagnosis of ankylosing spondylitis and diagnosed Plaintiff with chronic myofascial pain syndrome and prescribed Plaintiff pain medication, which Plaintiff took for a period of two years. A few weeks prior to Plaintiff's arrest and incarceration in 2013, he was approved to receive injections of Enbrel, but never began that treatment. On December 5, 2013, Plaintiff was experiencing pain in his back and numbness in his hands and feet and an MRI was taken which showed a bulging disc in his cervical spine at the C-4 disc, and the treating physician recommended that Plaintiff follow up with a surgeon.

         On or about December 17, 2013, Plaintiff attempted to surrender himself to the Brooksville Police Station and alleges that he suffered injuries due to excessive force and “retaliatory action.” Third Am. Compl. [ECF No. 41] at ¶ 10. Plaintiff does not specify what those injuries were or what excessive force or retaliatory actions were taken against him. However, it is immaterial what transpired at Plaintiff's surrender, because no officers or entities related to the Brooksville Police Station are part of this action. Plaintiff was then transferred to Jefferson County Jail as a pretrial detainee and was held there from December 17, 2013 to June 3, 2014.

         Plaintiff's allegations encompass two separate events: first, Plaintiff alleges that he requested outside medical testing for his prior spinal injuries and waited six months in order to receive an MRI scan. Plaintiff received an MRI and was referred to a neurosurgeon, however before Plaintiff was able to see the neurosurgeon, he was transferred from JCJ to SCI Pittsburgh. Plaintiff alleges that he was transferred because JCJ did not want to incur the cost of his medical care; second, Plaintiff alleges that he was placed in solitary confinement on two occasions which included “suicide protocol.” Third Am. Compl. [ECF No. 41] at ¶ 14. It is unclear from the complaint what “suicide protocol” entails. Each incident will be detailed separately.

         a. Plaintiff's Medical Care

         Plaintiff alleges that he submitted several sick calls with the medical department for his medical issues during his incarceration at JCJ and generally alleges that the medical department would not “send him out” to be reexamined and delayed his requests for an MRI.

         Plaintiff was scheduled for outside medical testing including an MRI scan at Brookville Hospital on May 12, 2014. However, Plaintiff was concurrently scheduled for jury selection in his criminal trial and could not attend the scheduled MRI. Two days later, on May 14, 2014, Plaintiff was transported to Brookville Hospital and underwent an MRI scan. Plaintiff alleges that the MRI results showed that he had the following injuries: “cervical level 3/4 paracentral disc protrusion impressing upon the cervical spinal chord[sic] and a lumbar level 4/5 mild diffuse disc bulge with a [illegible] central disc protrusion slightly narrowing the spinal chord[sic].” Third Am. Compl. [ECF No. 41] at ¶ 24.

         Plaintiff sent a copy of the May 14, 2014 MRI results to a third party medical institute for a “second opinion” of his injuries. Sometime thereafter, the JCJ received a pre-examination form from a neurosurgeon at University of Pittsburgh Medical Center (“UPMC”) and on May 19, 2014, Plaintiff completed the form for the consultation with the UPMC neurosurgeon. Plaintiff alleges that an appointment was scheduled with the UPMC neurosurgeon between May 22 and May 23, 2014. Plaintiff also alleges that the JCJ medical staff had to submit a request to Warden Elbel to approve Plaintiff's transport, and he alleges that he was “denied attendance” to the May 22 or 23, 2014 neurosurgeon appointment. Plaintiff's neurosurgeon appointment was rescheduled for June 3, 2014. However, instead of transporting Plaintiff to his neurosurgeon appointment, he was transported to SCI Pittsburgh who then took custody of him. Plaintiff alleges that upon entering SCI Pittsburgh, the intake officers told Plaintiff that he was not on the schedule to enter state custody as of that date and there was no prior notification from JCJ of Plaintiff's change of custody.

         Plaintiff was subsequently transferred to SCI Greene and received medical treatment. He alleges that he was diagnosed with “permanent nerve damage causing pain and head/scalp numbness that is caused by the failure of treatment within 60 days from when the symptoms started.” Third Am. Compl. [ECF No. 41] at ¶ 49.

         b. Solitary Confinement

         The first instance in which Plaintiff was placed into solitary confinement, he alleges that it was a result of a misinterpretation of his answer to the question of whether he was a danger to himself. Plaintiff responded “I just submitted to medical to receive Vitamin D pills because my levels are low, I don't think so.” Third Am. Compl. [ECF No. 41] at ¶ 14. Plaintiff alleges that within ten minutes of answering this question, prison officials placed him in suicide protocol. Plaintiff does not provide any insight as to what “suicide protocol” entails, but the court can infer that suicide protocol at least involved placing Plaintiff into solitary confinement or some sort of restrictive housing. On the second occasion, Plaintiff informed L.P.N. Purce that he was initiating law suits against the JCJ medical professionals and filing complaints with the Pennsylvania medical licensing board to have their licenses removed for denying him medical treatment. He alleges that ten minutes after he made these comments, prison officials came to remove Plaintiff and placed him in “suicide protocol” again. Plaintiff claims that when he was being transported into solitary confinement, a corrections officer advised him that Warden Elbel ordered the action to place him in solitary confinement.

         While Plaintiff does not specifically enumerate his causes of action, because of the leniency afforded to pro se litigants, the court will read his Third Amended Complaint as asserting the following claims:

(1) A Fourteenth Amendment claim[3] pursuant to 42 U.S.C. § 1983 against the individual defendants Warden Elbel, Dr. Rossino, Dr. Calvert, PA-C Clark and L.P.N. Purce for their alleged deliberate indifference to Plaintiff's serious medical needs;
(2) A Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983 against the individual defendants Warden Elbel, Dr. Rossino, Dr. Calvert, PA-C Clark and L.P.N. Purce for placing Plaintiff in solitary confinement/suicide protocol;
(3) A First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 against the individual defendants Warden Elbel, Dr. Rossino, Dr. Calvert, PA-C Clark and L.P.N. Purce for their alleged retaliation for placing Plaintiff into solitary confinement after he complained about not receiving medical care;
(4) A Monell v. Dept. of Soc. Services of City of New York, 436 U.S. 658 (1978) municipal liability claim pursuant to 42 U.S.C. § 1983 against Prime Care for allegedly having a policy, practice or custom of denying or delaying medical treatment to pretrial detainees;
(5) A 42 U.S.C. § 1983 conspiracy claim against each Defendant for failing to provide him with adequate medical care;
(6) A state law claim for intentional infliction of emotional distress against each Defendant;
(7) A state law claim for negligent infliction of emotional distress against each Defendant;
(8) A state law claim for medical negligence against Dr. Rossino, Dr. Calvert, PA-C Clark and L.P.N. Purce; and
(9) A state law claim for corporate negligence against Defendant Prime Care.

         Plaintiff seeks a declaration that the Defendants' acts and omissions violated his constitutional rights, a preliminary and permanent injunction ordering Defendants to cease all “administrative schemes” which relate to the denial of medical care, and for this court to send “all information” to the Pennsylvania medical licensing board and state and federal authorities for investigations, sanctions and contract terminations, nominal and compensatory damages and punitive damages in the amount of one million dollars.


         a. Pro Se Litigants

         Pro se pleadings are held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). As such, a pro se complaint pursuant to 42 U.S.C. § 1983 must be construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). In other words, if the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.

         b. Prison Litigation Reform Act (“PLRA”)

         Plaintiff's Third Amended Complaint must be reviewed in accordance with the amendments promulgated in the PLRA. In the PLRA, Congress adopted major changes affecting civil rights actions brought by prisoners in an effort to curb the increasing number of frivolous and harassing law suits brought by persons in custody. See Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). The PLRA permits courts to screen complaints filed by prisoners and dismiss them sua sponte at any time if the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e).

         c. Motion to Dismiss Pursuant to Rule 12(b)(6)

         The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage, ' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Nevertheless, the court need not accept as true “unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

         When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's ...

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