United States District Court, M.D. Pennsylvania
STEPHANIE MOYER, as Administrator of the Estate of VICTORIA JEANNETTE HERR, Plaintiff,
LEBANON COUNTY, et al, Defendants.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE
the Court is a motion to dismiss filed by 23 Defendants
collectively identified as the "County Defendants."
(Doc. 48). Therein, these Defendants 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
SUMMARY OF FACTS
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).
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).
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).
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).
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.
STANDARD OF REVIEW
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 ...