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Roth v. PrimeCare

United States District Court, E.D. Pennsylvania

June 27, 2019

DAVID ROBERT ROTH
v.
PRIMECARE, et al

          MEMORANDUM

          KEARNEY, J.

         Prisoner David Robert Roth alleges the medical care provided to him by PrimeCare Medical, Inc. and several of its employees while incarcerated at the Montgomery County Correctional Facility and Berks County prison falls below his required needs and thus violates the Eighth Amendment. He fails to allege personal involvement or a policy allowing him to proceed into discovery. The PrimeCare defendants move to dismiss the complaint with prejudice. In the accompanying Order we grant PrimeCare's motion to dismiss without prejudice to allow Mr. Roth to amend his complaint consistent with this opinion.

         I. Alleged pro se facts[1]

         At some time before his incarceration in the Montgomery County Correctional Facility ("Montgomery County prison"), Mr. Roth underwent two prostate surgeries under the care of his physician Dr. Steven Sterious at Einstein Hospital in Philadelphia.[2] At some point after the second surgery, medical staff trained Mr. Roth to catheterize himself.[3]

         As a result of the surgery, Mr. Roth had an "open wound" and a catheter inserted into his bladder. These conditions persisted after his incarceration at the Montgomery County prison.[4]While in the Montgomery County prison between August 2016 to June 2017, either Mr. Roth's wound or the catheter became infected causing him to suffer from multiple urinary tract infections.[5] Someone prescribed him antibiotics for the infections, but the medication "did not work."[6] Mr. Roth alleges the "prison doctor and nurses" refused to follow his urologist's orders, denied him medication, pulled out his catheter, attempted to reinsert the catheter and, while doing so, punctured his bladder.[7] Mr. Roth's severe pain resulted in his transfer to a hospital emergency room.[8] Mr. Roth alleges "after so many deliberate mistakes by PrimeCare Inc. staff, the doctors refused to see [him]" and, as a result, he "still cannot get corrective surgery and still suffer from [urinary tract infections]."[9]

         After being transferred to the Berks County prison in June 2017, PrimeCare continued to deny him medical attention, medication, and prolonged his pain and injury by refusing to properly treat his catheter wound.[10] Mr. Roth attaches sick call requests from August 2017 to July 2018 complaining primarily of continued pain from urinary tract infections and requesting different antibiotics to treat the infection.[11]

         II. Analysis

         We construe Mr. Roth's complaint under 42 U.S.C. § 1983 as alleging Defendants' deliberate indifference to his serious medical needs in violation of the Eighth Amendment.[12] The PrimeCare Defendants[13] move to dismiss Mr. Roth's complaint with prejudice arguing (1) he cannot demonstrate deliberate indifference to a serious medical condition and, even if he has a claim for medical malpractice, negligence is not actionable under the Eighth Amendment;[14] (2) he fails to allege personal involvement of each defendant sufficient for their liability under § 1983; and (3) he fails to state a claim against Prime Care Medical, Inc.[15] Mr. Roth did not respond to the PrimeCare Defendants' motion to dismiss.

         Prison officials violate the Eighth Amendment "when they act deliberately indifferent to a prisoner's serious medical needs by 'intentionally denying or delaying access to medical care or interfering with the treatment once prescribed.'"[16] To state an Eighth Amendment claim for the denial of medical care under 42 U.S.C. § 1983, Mr. Roth must allege (1) a serious medical need and (2) prison officials were deliberately indifferent to the need.[17]

         A "serious" medical need is '"one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.'"[18] "The seriousness of an inmate's medical need may also be determined by reference to the effect of denying the particular treatment" for example, where '"unnecessary or wanton infliction of pain' ... results as a consequence of denial or delay in the provision of adequate medical care" or "where denial or delay causes an inmate to suffer a life-long handicap or permanent loss."[19]

         Deliberate indifference to a serious medical need is shown "where (1) prison authorities deny reasonable requests for medical treatment, (2) knowledge of the need for medical care is accompanied by the intentional refusal to provide it, (3) necessary medical treatment is delayed for non-medical reasons, and (4) prison authorities prevent an inmate from receiving recommended treatment for serious medical needs."[20] "A prison official is deliberately indifferent if he disregards a known excessive risk to the inmate's health and safety."[21] However, medical malpractice does not give rise to an Eighth Amendment violation.[22]

         A. Mr. Roth fails to plead deliberate indifference to a serious medical need.

         To proceed on an Eighth Amendment claim, Mr. Roth must allege (1) a serious medical need and (2) deliberate indifference of prison officials to the serious medical needs. The PrimeCare Defendants do not challenge the allegations of a serious medical need; they argue Mr. Roth fails to allege deliberate indifference to his serious medical needs.

         The PrimeCare Defendants cite Mr. Roth alleging he received medical treatment for his condition and no allegation of a denial of medication or treatment.[23] They cite documents attached to the complaint showing Mr. Roth received extensive medical treatment at both prisons. These documents, according to the PrimeCare Defendants, show Mr. Roth simply disagreed with the treatment provided. For example, Mr. Roth refused an appointment with a prison arranged urologist because "it[']s not my urologist."[24] At best, argue the PrimeCare Defendants, Mr. Roth's complaint may state a negligence claim which does not, as a matter of law, rise to a deliberate indifference to a serious medical condition required to establish an Eighth Amendment violation. The PrimeCare Defendants ask we dismiss Mr. Roth's Eighth Amendment claim with prejudice.

         As presently plead, we cannot determine facts sufficient to support a deliberate indifference to a serious medical need. We understand Mr. Roth's complaints to center on recurrent urinary tract infections for which he contends the proper antibiotics were not prescribed and the botched re-catheterization by Dr. Sestito and Nurse Mcllhone, as outlined below. We also understand a complaint regarding the denial of a mattress by Physician Assistant Kirsch resulting in Mr. Roth sleeping on a rusty metal cot despite his catheter and open wound. But these appear to be grounded in either a disagreement with the medical protocol as determined by PrimeCare or negligence in a re-catheterization procedure. We similarly cannot find the use of a cot absent more specific facts violates the Eighth Amendment. These allegations do not amount to an Eighth Amendment violation.

         The PrimeCare Defendants additionally seek dismissal of claims against individual defendants Dr. Sestito, Nurses Judy Mcllhone, Mitzi Montz, and Samantha Kline, and Physician Assistant Jesse Kirsch because the complaint fails to allege personal involvement. Individual defendants must have personal involvement in the alleged wrongs to be held liable. "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence" and such allegations "must be made with appropriate particularity."[25]

         We need not reach this argument because we cannot determine facts sufficient to support a deliberate indifference to a serious medical need. If Mr. Roth choses to pursue claims against individuals through an amended complaint, he must plead facts sufficient to establish personal involvement in the alleged constitutional violation. We dismiss Mr. Roth's claim with leave to amend his ...


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