United States District Court, E.D. Pennsylvania
HARVEY M. SHANER, JR., Plaintiff,
PRIMECARE MEDICAL, INC., et al, Defendants.
R. PADOVA, J.
se Plaintiff Harvey M. Shaner, Jr., a prisoner currently
confined at Lehigh County Jail, has filed a Complaint
pursuant to 42 U.S.C. § 1983 alleging constitutional
claims. He has also filed a Motion to Proceed In Forma
Pauperis. Because it appears that Shaner is unable to
afford to pay the filing fee, the Court will grant him leave
to proceed in forma pauperis. For the following
reasons, the Complaint will be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Shaner
will be granted leave to file an amended complaint if he can
cure the defects identified in his claims.
Complaint is quite brief. He names as Defendants PrimeCare
Medical, Inc. and Amanda Benner. Shaner alleges that he was
diagnosed with cancer prior to his incarceration, that he has
provided Lehigh County Jail with his medical records, but
that Defendants have refused to treat his illness. He alleges
he is being treated only with Tylenol for his pain and he has
not received a needed operation. He also alleges he has not
been treated for his post-traumatic stress disorder.
STANDARD OF REVIEW
Court will grant Shaner leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fees to commence this civil action. Accordingly,
28 U.S.C. § 1915(e)(2)(B) requires the Court to dismiss
the Complaint if, among other things, it fails to state a
claim. Whether a complaint fails to state a claim under
§ 1915(e)(2)(B)(ii) is governed by the same standard
applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), see Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains "sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
Conclusory allegations do not suffice. Id. As Shaner
is proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
8(a) of the Federal Rules of Civil Procedure requires a
complaint to contain "a short a plain statement of the
claim showing that the pleader is entitled to relief." A
district court may sua sponte dismiss a complaint
that does not comply with Rule 8 if "the complaint is so
confused, ambiguous, vague, or otherwise unintelligible that
its true substance, if any, is well disguised."
Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)
(quotations omitted). This Court has noted that Rule 8
"requires that pleadings provide enough information to
put a defendant on sufficient notice to prepare their defense
and also ensure that the Court is sufficiently informed to
determine the issue." Fabian v. St. Mary's Med.
Ctr., No. Civ. A. 16-4741, 2017 WL 3494219, at *3 (E.D.
Pa. Aug. 11, 2017) (quotations omitted).
1983 of Title 42 of the United States Code provides in part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. "To state a claim under §
1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a
person acting under color of state law." West v.
Atkins, 487 U.S. 42, 48 (1988).
state a constitutional claim based on the failure to provide
medical treatment, a prisoner must allege facts indicating
that prison officials were deliberately indifferent to his
serious medical needs. See Farmer v. Brennan, 511
U.S. 825, 835 (1994). A prison official is not deliberately
indifferent "unless the official knows of and disregards
an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference." Id. at 837.
"A medical need is serious, ... if it 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."
Monmouth Cty. Corr. Institutional Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal
quotations omitted). Deliberate indifference is properly
alleged "where the prison official (1) knows of a
prisoner's need for medical treatment but intentionally
refuses to provide it; (2) delays necessary medical treatment
based on a non-medical reason; or (3) prevents a prisoner
from receiving needed or recommended medical treatment."
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Allegations of medical malpractice and mere disagreement
regarding proper medical treatment are insufficient to
establish a constitutional violation. See Spruill v.
Gillis, 372 F.3d 218, 235 (3d Cir. 2004). Furthermore,
"[a] defendant in a civil rights action must have
personal involvement in the alleged wrongs" to be
liable. See Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988).
Third Circuit Court of Appeals has held that "a private
health company providing services to inmates 'cannot be
held responsible for the acts of its employees under a theory
of respondeat superior or vicarious liability.'"
Sims v. Wexford Health Sources, 635 Fed.Appx. 16, 20
(3d Cir. 2015) (per curiam) (quoting Natale v. Camden
County Corr. Facility, 318 F.3d 575, 583 (3d Cir.
2003)). Rather, in order to hold a private health care
company like PrimeCare Medical, Inc. liable for a
constitutional violation under § 1983, Shaner must
allege the provider had "a relevant... policy or custom,
and that the policy caused the constitutional violation [he]
allege[s]." Natale, 318 F.3d at 583-84 (citing
Bd. of the County Comm 'rs of Bryan County, Oklahoma
v. Brown, 520 U.S. 397, 404 (1997)); see also Lomax
v. City of Philadelphia, Civ. A. No. 13-1078, 2017 WL
1177095, at *3 (E.D. Pa. Mar. 29, 2017) ("Because
[defendant] is a private company contracted by a prison to
provide health care for inmates, ... it can only be held
liable for constitutional violations if it has a custom or
policy exhibiting deliberate indifference to a prisoner's
serious medical needs.") (citations and quotations
Complaint fails to allege that PrimeCare Medical Inc. had a
policy or custom to deny cancer treatment to inmates who had
been so diagnosed. Accordingly, his claim against PrimeCare
Medical Inc. is not plausible as alleged and must be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). In
addition, while Shaner names Amanda Benner as a Defendant, he
makes no allegation against her other than to assert that she
is a health service administrator. He does not allege that
she knew of and disregarded an excessive risk to his health
or safety, or any other personal involvement she may have ...