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.

Cowher v. Pike County Correctional Facility

United States District Court, M.D. Pennsylvania

June 6, 2018

MYRON COWHER, Plaintiff,



         Before the Court are two motions to dismiss, filed by four of the remaining Defendants to this § 1983 action. The Plaintiff, Myron Cowher, currently an inmate at SCI-Mahoney, seeks damages for deliberate indifference to serious medical needs, negligence, and intentional infliction of emotional distress due to the Defendants' failure to obtain “critical” surgery for Cowher. (Doc. 29). For the reasons contained in this Memorandum, the motion to dismiss filed by Defendant Correct Care Solutions is GRANTED IN PART and DENIED IN PART. The motion to dismiss filed by Defendants Delbalso, Hardy, and the Pennsylvania Department of Corrections is GRANTED.

         I. Background and Procedural History

         On May 23, 2016, Plaintiff Myron Cowher began a period of incarceration at Pike County Correctional Facility; serving a sentence for criminal convictions. (Doc. 29, ¶ 25). Prior to his incarceration, Cowher “suffered serious and debilitating injuries which rendered him nearly unable to walk as a result of the pain he suffered.” (Doc. 29, ¶ 26). The injuries included disc herniations at ¶ 6-C7 and C4-C5, a bulging disc at ¶ 5-S1, spinal cord distortion, and severe narrowing of the spinal column, and required adjournment of Cowher's criminal trial for a medical consultation. (Doc. 29, ¶¶ 27-28).

         Dr. Juan K. Radjoub recommended an immediate cervical discectomy and cervical fusion and a pre-surgical consult was scheduled for May 31, 2016. (Doc. 29, ¶¶ 29-30). Due to a fear of attempted escape, Pike County personnel told Cowher that he could not attend his appointment. (Doc. 29, ¶¶ 32-33). Pike County and PrimeCare Medical personnel then discontinued administering prescribed medication from the treatment regimen and reduced dosages of two others. (Doc. 29, ¶¶ 35). Pike County officials continued to refuse surgery, even after a second consult with Dr. Radjoub in October 2016 wherein Dr. Radjoub reiterated that immediate surgery was necessary and expanded the target of surgical intervention to include Cowher's C4-C5. (Doc. 29, ¶¶ 36).

         Subsequent transfers to SCI-Camp Hill and SCI-Mahoney have not resulted in Cowher receiving the surgery, nor has the treatment plan implemented prior to Cowher's incarceration been followed. (Doc. 29, ¶ 44). On November 10, 2016, Cowher filed suit against ten Defendants; individuals and entities he alleges improperly denied his access to medical care. The currently operative, second-amended complaint requests monetary damages from 17 Defendants: Pike County; Warden Craig A. Lowe; Pike County Correctional Facility; Assistant Warden Jonathan J. Romance; Assistant Warden Robert E. McLaughlin; PrimeCare Medical, Inc.; RN Kendle Jeminola; RN Denise Jeminola; Thomas J. Weber; RN Todd W. Haskins; the Pennsylvania Department of Corrections; SCI-Mahoney Superintendent Theresa Delbalso; Laurel Hardy of SCI-Camp Hill; and Correct Care Solutions. (Doc. 29).

         On September 1, 2017, Defendant Correct Care Solutions (“Correct Care”) filed a motion to dismiss. (Doc. 42). In support, it argues that Cowher fails to properly state a claim for § 1983 liability under Monell v. Dep't. of Soc. Serv's. of N.Y.C., 436 U.S. 658 (1978). (Doc. 43, at 4). Correct Care continues that Cowher has also failed to state a claim for intentional infliction of emotional distress (“IIED”) or negligence. (Doc. 43, at 7-9). Cowher responds that his claim for IIED and negligence claims are adequately pled, and any questions presented by the claims as stated are only issues reserved for a jury. (Doc. 47, at 3-5). Additionally, Cowher states that his Monell claim is likewise sufficient to survive a motion to dismiss, and leave to amend should be given should the Court find in favor of the Defendant. (Doc. 47, at 5-6). Lastly, Cowher requested leave to add four Correct Care employees as Defendants. (Doc. 47, at 7). In response, Correct Care reiterates its prior argument and states that a brief in opposition is not the proper vehicle to request leave to file an amended complaint. (Doc. 52).

         On September 11, 2017, Defendants Theresa Delbalso, Laurel Hardy, and the Pennsylvania Department of Corrections also filed a motion to dismiss. (Doc. 44). These Defendants argue that Eleventh Amendment sovereign immunity bars liability based on the facts presented, and in any event Cowher has failed to plead facts establishing personal involvement. (Doc. 45, at 4-6). On November 1, 2017, Cowher agreed that Defendants Delbalso, Hardy, and the Pennsylvania Department of Corrections should be dismissed. (Doc. 48). Both motions having been fully briefed, the Court finds each ripe for review. II. Standard of 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:

[s]tandards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atl. 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 Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

         In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Assoc'd. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). A plaintiff must provide some factual grounds for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court of the United States held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         III. Discussion

         As stated above, Defendant Correct Care Solutions (“CCS”) argues that it should be dismissed because Cowher fails to show a policy or custom implemented by CCS caused any deprivation of medical care and that Cowher's complaint is predicated upon a theory of respondeat superior inadequate for liability under § 1983. (Doc. 43, at 4-7). Further, it argues that Cowher has failed to state a claim for intentional infliction of emotional distress or professional negligence against CCS. (Doc. 43, at 7-11).

         A. Monell Liability

         In Monell v. Dep't. of Soc. Serv's. of City of New York, the Supreme Court determined that, while municipal bodies may not be sued solely for violations perpetrated by its employees or agents, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 U.S. 658, 694 (1978). A private corporation, though not a municipal body, is subject to the same considerations when contracted by a government to provide healthcare services to incarcerated individuals. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003). In Natale, the Third Circuit held that:

[t]here are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under ยง 1983. The first is where the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy. . . . The second occurs where no rule has been announced as policy but federal law has been violated by an act of the policymaker itself. . . . Finally, a policy or custom may also exist where the policymaker has failed to act affirmatively at all, [though] the need to take some action to control the agents of the government is so obvious, and ...

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.