United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM OPINION 
CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE.
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.
(3) Defendant Thomas Elbel's motion to dismiss [ECF No.
(4) Defendants Terri Calvert and Jenipher Purce's motion
to dismiss [ECF No. 85].
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.
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”).
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
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.
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.
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
Plaintiff's Medical Care
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.
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 ¶
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.
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.
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
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 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
(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
(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
(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.
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
STANDARD OF REVIEW
Pro Se Litigants
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.
Prison Litigation Reform Act (“PLRA”)
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. §
Motion to Dismiss Pursuant to Rule 12(b)(6)
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).
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