Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moyer v. Lebanon County

United States District Court, M.D. Pennsylvania

December 28, 2017

STEPHANIE MOYER, as Administrator of the Estate of VICTORIA JEANNETTE HERR, Plaintiff,
LEBANON COUNTY, et al, Defendants.

          MARIANI, JUDGE.



         Before the Court is a motion to dismiss filed by 23 Defendants collectively identified as the "County Defendants." (Doc. 48). Therein, these Defendants[1] assert that four claims identified in the amended complaint filed by Plaintiff Stephanie Moyer must be dismissed. (Doc. 49). Upon briefing, the parties narrowed the disputed claims to just two: deliberate indifference to serious medical needs on the part of Defendant Gerstner; and intentional infliction of emotional distress suffered by Moyer personally. The Court recommends that the County Defendants' motion to dismiss be DENIED.


         On March 27, 2015, decedent Victoria Jeannette Herr ("Herr") entered Lebanon County Correctional Facility, having been arrested during the execution of a search warrant upon discovery of controlled substances. (Doc. 45, ¶¶ 2; 47). At intake, Herr informed Defendant Gerstner that she would experience withdrawal from heroin. (Doc. 45, ¶ 48). The next morning, Defendant Bomzer conducted a medical examination, at which time Herr stated she had begun to experience symptoms of withdrawal. (Doc. 45, ¶¶ 51-52). This examination did not contain notation of Herr's vital signs or withdrawal symptoms. (Doc. 45, ¶ 54).

         Defendant Bomzer placed Herr on "withdrawal protocol, " requiring periodic checks on Herr's health. (Doc. 45, ¶ 57). Herr went unchecked for four days despite "a rapid and severe decline in her health." (Doc. 45, ¶61). During this period, Herr experienced "repeated bouts of vomiting and near constant diarrhea, " which required adult diapers. (Doc. 45, ¶¶ 62-64). Herr did not eat, ingested only limited fluids, suffered from hallucinations, and could not stand, walk, or sit up without assistance. (Doc. 45, ¶¶ 65-67). Other inmates informed staff of Herr's symptoms, and correctional staff observed her symptoms directly, but staff did not act upon observance or information. (Doc. 45, ¶¶ 69-75). In fact, once Plaintiff Moyer learned of Herr's condition, she attempted to visit Herr at the facility, but staff denied Moyer entry and informed her that Herr was "fine" despite knowing otherwise. (Doc. 45, ¶ 79-82).

         In the afternoon of March 31, 2015, Herr was taken to the medical unit to see Defendant McHale, unable to walk on her own. (Doc. 45, ¶¶ 84-85). Despite signs of withdrawal, no medical treatment was offered, aside from provision of a nutritional supplement and water. (Doc. 45, ¶¶ 86-90). Later that evening, staff returned to take Herr back to the medical unit, however Herr again could not walk on her own. (Doc. 45, ¶¶ 92-93). Herr was roughly transported, accused of faking her condition, not given an examination, and again only provided with a nutritional supplement and water. (Doc. 45, ¶¶ 94-99). Upon return to her cell, "Herr collapsed[] and brown fluid started to pour from her mouth and nose. (Doc. 45, ¶ 104). Herr stopped breathing and had no pulse. (Doc. 45, ¶ 104). Correctional officers ("c/o's") did not intervene, nor did they permit inmates to assist Herr. (Doc. 45, ¶¶ 106-07). After several minutes, medical staff was summoned and managed to revive Herr; however Herr suffered brain damage in the interim and never regained consciousness. (Doc. 45, ¶¶ 108-11). Herr was transferred to intensive care and on April 5, 2015, she died. (Doc. 45, ¶ 118).


         Moyer initiated the present suit by the filing of a civil complaint for wrongful death, seeking damages for violations of Herr's constitutional rights. (Doc. 1). Upon review of the County Defendants' motion to dismiss dated September 12, 2016 (Doc. 18), the Court recommended partial dismissal of Moyer's complaint, including claims of deliberate indifference by Defendant Gerstner and intentional infliction of emotional distress against Defendants Karnes and Gerstner. (Doc. 35). The District Court adopted the undersigned's report and recommendation on July 13, 2017. (Doc. 38).

         Moyer filed an amended complaint on August 4, 2017. (Doc. 45). The amended complaint attempts to correct the pleading deficiencies against Karnes and Gerstner by amended the underlying conduct by Gerstner in the revised claim for deliberate indifference, as well as the capacity in which Moyer asserts claims against Karnes and Gerstner for intentional infliction of emotional distress. The County Defendants filed the instant motion to dismiss on August 24, 2017, along with their brief in support the same day. (Doc. 48; Doc. 49). Moyer filed her brief in opposition on September 18, 2017 (Doc. 63), and the County Defendants' filed their reply brief on September 26, 2017. (Doc. 66). The motion is now ripe for review.


         Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in BellAtl. Corp. v. Twombly,550 U.S. 544 (2007), continuing with our opinion in Phillips [v. Cnty. of Allegheny,515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroji v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.