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Robinson v. Kirsch

United States District Court, E.D. Pennsylvania

January 15, 2020

DAVID ROBINSON, Plaintiff,
v.
JESSIE KIRSCH, et al., Defendants.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Pro se Plaintiff David Robinson, a prisoner currently confined at the Berks County Jail, filed an Amended Complaint pursuant to 42 U.S.C. § 1983 alleging that prison officials were deliberately indifferent to his serious medical needs, along with a Motion to Proceed In Forma Pauperis and a Prisoner Trust Fund Account Statement.[1] (ECF Nos. 8, 9 & 10.) For the following reasons, the Court will grant Robinson leave to proceed in forma pauperis and dismiss in part his Amended Complaint.

         I[2]

         Robinson named four Defendants in his pleading, all of whom are identified as PrimeCare employees who work at the Berks County Jail: (1) Jesse Kirsch, identified as “Provider”; (2) Mitzi Montz, identified as Director of the Medical Department; (3) Nurse Leona; and (4) Nurse Anthony. (Am. Compl. ECF No. 8 at 2-3.)[3] Robinson alleges that, prior to his incarceration, he was diagnosed with neuropathy including carpal tunnel syndrome. (Id. at 5.) Exhibits to Robinson's Amended Complaint reflect that in November 2018, he began submitting requests for medical attention for various issues, including a request for medical attention for carpal tunnel syndrome affecting his wrist.[4] (Am. Compl. Attachment A, ECF 8-1 at 6-9.) He claims that on January 23, 2019, Dr. Ken Wloczewski provided him with “ace wraps” until he could be approved for carpal tunnel braces to relieve his pain. (Id. at 10; see also ECF No. 8 at 5.) Robinson alleges that, without braces or surgery, he will suffer further damage to his wrists. (ECF No. 8 at 5.)

         On February 2, 2019, the wraps were taken away from Robinson “because [he] was not wearing them when [he] went down to medical on two different [occasions].” (Am. Compl. Attachment A, ECF 8-1 at 1.) Robinson alleges that this action was taken by Nurse Leona at Kirsch's direction. (Id.) An exhibit attached to the Amended Complaint indicates that Robinson asked Nurse Leona “if she even knew what ‘[neuropathy] was', because she went right along with what [Kirsch] was saying.” (Id. at 14.) Kirsch allegedly told Robinson his doctor stated he did not have carpal tunnel syndrome; Kirsch also allegedly refused to show Robinson the report the doctor sent to the jail about Robinson's condition. (Id.) Robinson contends that his mother called his doctor; the doctor allegedly reported that he did not speak with Kirsch. (Id.)

         Robinson asserts that he filed grievances about this matter and also submitted sick call slips. He alleges that Montz responded to one of his grievances “saying that [he] never mentioned [his] ‘neuropathy' ever to medical.” (Id.) Robinson also alleges that Nurse Anthony signed a sick call slip in which he asked for braces. (Id.) One of the exhibits Robinson attached to the Amended Complaint, which appears to be the relevant document for purposes of this allegation, is an “inmate communication form” dated December 6, 2018 (before Robinson saw the doctor), in which he asks for “a support brace for [his] wrist because [he has] bad [carpel] tunnel, ” to which he received a response that he was scheduled to see the provider.”[5] (Id. at 6.) Robinson also asserts in his Amended Complaint that he has not received any medical treatment for four months.[6] (Id. at 1.)

         As relief, Robinson seeks “proper” medical treatment for his injury and $1.8 million in damages. (ECF No. 8 at 5.) He indicates that he is suing the Defendants in their individual and official capacities.

         II

         The Court will grant Robinson leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this lawsuit.[7] 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 Robinson is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

         III

         “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). For the following reasons, Robinson's claims fail with the exception of his claims against Defendants Kirsch and Nurse Leona in their individual capacities.

         A

         Robinson's claims against the Defendants in their official capacities are essentially claims against PrimeCare, because “[o]fficial-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690, n. 55 (1978)). “[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 liable for a constitutional violation under § 1983, Robinson 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 ...


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