United States District Court, M.D. Pennsylvania
KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE
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.
Background and Procedural History
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).
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).
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).
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).
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
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).
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).
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
[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 § 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