Opinion
Civil Action No. 03-4688.
September 22, 2004
MEMORANDUM
Barbara A. Brejcak ("Plaintiff") is the appointed Administratrix of the Estate of Virginia Margaret Brejcak. This is a civil rights action pursuant to 42 U.S.C. § 1983 and arises out of a series of incidents in which the plaintiff's decedent was allegedly denied proper, appropriate, and necessary medical and psychiatric care by the defendants at the Bucks County Correctional Facility ("BCCF"), allegedly resulting in persistent and invasive infection, seizures, and her eventual death. Virginia Brejcak died on December 26, 2001.
Plaintiff filed her Second Amended Complaint on February 27, 2004. (Docket Nos. 31 32.) Diamond Drugs, Inc. and Diamond Pharmacy Services ("Movants") filed their Motion to Dismiss Plaintiff's Second Amended Complaint on June 24, 2004. (Docket No. 39.) Plaintiff filed her response in opposition on July 21, 2004. (Docket Nos. 43 44.) For the reasons which follow, Movants' Motion to Dismiss will be granted, with leave to amend.
I. Jurisdiction and Legal Standard
This Court has jurisdiction over Plaintiff's claims pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343. 42 U.S.C. § 1983 provides, in pertinent 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 redress. . . .42 U.S.C. § 1983. "The purpose of Section 1983 is to provide a civil cause of action to protect persons against the misuse of power possessed by virtue of state law and made possible because the defendant was cloaked with the authority of the state."Douris v. Dougherty, 192 F. Supp. 2d 358, 363 (E.D. Pa. 2002). Venue is appropriate under 28 U.S.C. § 1391(b).
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
II. Factual Background
In January 2000, Plaintiff's decedent was an inmate at BCCF, and record was made of the fact that Virginia Brejcak had a seizure disorder. (Pl.'s Second Am. Compl. ¶ 21.) In July 2000, Virginia Brejcak was again incarcerated at BCCF, during which incarceration BCCF personnel noted that she suffered from bipolar disorder and seizures. (Id. ¶ 22.) During these periods, the decedent was not in a mental health unit, as BCCF had no female mental health unit. (Id. ¶ 23.)
The decedent again was incarcerated at BCCF from July 2001 through December 26, 2001. (Id. ¶ 24.) During this period, the decedent suffered from numerous witnessed seizures, a severe Methicillin-Resistant Staphylococcus Auerus infection, and other numerous illnesses and diseases, including, inter alia, labial cysts, labial boils, and reddened, scabbed, and oozing areas all over her body. (Id. ¶¶ 24, 27-28.)
On or about November 20, 2001, Dr. David Davis issued a prescription for "Naldecon 1 by mouth twice daily." (Id. ¶ 34.) On November 20, 2001, Movants dispensed medication pursuant to Dr. Davis's order, dispensing specifically "Decon Tablet SA," a generic drug, for the decedent. (Id. ¶ 35.) Naldecon, which Dr. Davis prescribed and which prescription Defendants filled, allegedly contains Phenylpropanolamine ("PPA"). (Id. ¶ 36.) One year prior to the decedent's prescription, PPA was the subject of an FDA Public Health Advisory, which strongly recommended that all products containing PPA be removed from the American market, due to the high risk of hemorrhagic stroke in women. (Id.) Physicians at BCCF continued administering Naldecon to the decedent until December 23, 2001. (Id. ¶¶ 37 — 43.)
Dr. Davis is a named defendant in this case, but he is not a party to the pending Motion.
On December 25, 2001, a medical emergency is noted in the decedent's chart, referring to seizure activity and the decedent's failure to respond to verbal stimuli. (Id. ¶ 44.) Paramedics transported the unconscious decedent from BCCF to the emergency room of Doylestown Hospital. (Id. ¶ 45.) The decedent later was transferred to Abington Memorial Hospital, where the principal diagnosis was intracerebral and intraventricular hemorrhage, with secondary diagnoses being mitral regurgitation, cardiomyopathy, seizures, and brain damage. (Id. ¶ 47.) The decedent was pronounced dead at Abington Memorial Hospital on December 26, 2001. (Id. ¶ 48.)
III. Discussion
To state a claim under § 1983, a plaintiff must allege: (1) the violation of a right or privilege secured by the Constitution (2) that was caused by a person acting under color of state law.See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L.Ed. 2d 40 (1988). The sufficiency of Plaintiff's complaint with respect to the first of these requirements is not contested here. Movants ground their motion for dismissal on the second element of a § 1983 claim, arguing that Plaintiff has not alleged — and cannot demonstrate — that Movants qualify as "state actors."
According to Plaintiff's Second Amended Complaint, Defendants violated the decedent's Eighth Amendment rights by "showing deliberate indifference to Virginia Brejcak's health and safety by consciously disregarding the known substantial risk of harm to Virginia Brejcak if she ingested drugs with PPA." (Pl.'s Second Am. Compl. ¶ 52.o.)
As Plaintiff correctly observes in her brief, the government has an "obligation to provide medical care for those whom it is punishing by incarceration," and failure to do so "may actually produce physical torture or lingering death, the evils of most immediate concern to the drafters of the [Eighth] Amendment."Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (internal quotations and citations omitted). Deliberate indifference toward Plaintiff's decedent's serious medical needs, therefore, constitutes the violation of a right or privilege secured by the Constitution, and would be actionable under § 1983. See id. at 104-05.
While there is no uniform test for ascertaining when a person or agency acts under color of state law, the Supreme Court has adopted a number of different approaches whose application depends upon the circumstances.See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982); Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir. 2001). Whether a private party qualifies as a state actor is determined under one of three interrelated theories of government action: (i) the "public function" test, (ii) the "close nexus" test, and (iii) the "symbiotic relationship" test. See Brown, 250 F.3d at 801. A finding of state action under any one of these tests is sufficient to find for Plaintiff. Id.
A. The "Public Function" Standard
Under the "public function" test, a private party acts under color of state law when it "perform[s] a function that has been traditionally the exclusive prerogative of the state." Blum v. Yartesky, 457 U.S. 991, 1011, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982) (internal quotations and citations omitted). The gravamen of the "public function" test is whether the government has effectively used the private party to delegate a constitutional obligation or to engage in activities traditionally reserved to the government. See id.
Movants contend that their actions in filling a mail-order prescription for BCCF — one of its many clients, both public and private — does not constitute action traditionally or exclusively reserved to the state; on the contrary, Movants argue that the provision of pharmacy services is an almost exclusively private action, evidenced by the multitude of independent drugstores and pharmacy counters located throughout the country that serve wholly private interests. Although Plaintiff alleges that Movants acted pursuant to a contract with the state to provide pharmaceutical services for inmates (¶ 16) and under color of state law (¶ 53) when they dispensed medication to inmates at BCCF (¶ 52(n)), there is no allegation that in doing so, Movants perform a function which is exclusively and traditionally a prerogative of the state. The conclusory allegation in ¶ 53 is insufficient. According to Plaintiff's brief, providing drugs and medical care to prisoners is a function exclusively reserved to the state since only the state can deprive inmates of access to medical care through incarceration, and the government has a constitutional duty to provide medical care of its prisoners. However, there are no allegations on this topic in the Second Amended Complaint, and arguments in a brief do not supplantt the defendants' right to appropriate notice pleading.
In West, supra, the Supreme Court held that a physician, contracted part-time by the state to provide medical care to inmates at a state-prison hospital, acted under color of state law when he provided treatment to an inmate. 487 U.S. at 57. The Court reasoned that the state had a constitutional obligation to provide adequate medical care to inmates arising from the fact that "`[a]n inmate must rely [solely] on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.'" Id. at 54 (quoting Estelle, supra note 1, 429 U.S. at 103). An inmate's incarceration denies him an independent venue for obtaining needed medical care. Since an inmate may turn only to physicians authorized by the state to receive medical treatment, any violation of the inmate's rights in the administration of her medical care would, according to the Court, result from the state's exercise of its exclusive right to incarcerate people. See id. at 54-55. The Court continued:
According to the Supreme Court in Estelle, "[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself." 429 U.S. at 104 (quotations omitted).
Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide adequate medical care to [plaintiff]; the State delegated that function to [defendant]; and [defendant] voluntarily assumed that obligation by contract.487 U.S. at 56 (footnote omitted). Accordingly, the Court concluded that the defendant's delivery of medical treatment to plaintiff was action fairly attributable to the state and that the defendant was a state actor for the purposes of § 1983.
Likewise, in McCullum v. City of Philadelphia, No. CIV. A. 98-5858, 1999 WL 493696 (E.D. Pa. July 13, 1999) (Bechtle, J.), the court denied a motion for judgment on the pleadings, and held allegations sufficient that defendant Aramark Services, Inc. ("Aramark"), employed by the city to provide food services to inmates in state prison, acted under color of state law when an Aramark employee assaulted an inmate. Judge Bechtle reasoned that, just as inmates are dependent on prison authorities for the provision of medical care, inmates are dependent on prison authorities for food. Id. at *2-3. Providing food services to inmates is a function traditionally within the exclusive province of the state, and since the state delegated that function to Aramark, the court held that Aramark was a state actor for the purposes of § 1983. Id. at *3.
In the instant case, the Court takes notice that Pennsylvania has an obligation to provide adequate medical treatment to the inmates at BCCF. See Estelle, 429 U.S. at 103-04; 37 PA. CODE § 93.12(a) ("Every institution will establish procedures to permit inmates to have access to health care professionals,prescribed treatment for serious medical needs, appropriate nutrition, exercise and personal hygiene items.") (emphasis added). Although Plaintiff alleges Movants contracted with the state and Movants supplied drugs which were prescribed for Plaintiff, the Amended Complaint contains no other facts to satisfy the requirements of the above-cited cases, and there are no cases holding a mail order pharmacy service to be a state actor. The Court finds, with regard to the protections of § 1983, that providing mail order pharmaceutical supplies is at least one step removed from the provision of food and medical treatment to inmates. Assuming prescription medications play an equally important, and indeed necessary role in the government's fulfillment of its obligation under the Eighth Amendment to provide for the basic needs and medical care of those in its custody, see 37 PA. CODE § 93.12(b) (defining "Medical service" to include both "diagnosis, evaluation, [and] treatment" as well as "prescribing and administering medication"), Plaintiff must plead and prove Movants performed a function that is "traditionally the exclusive prerogative of the State," and therefore qualify as state actors for the purposes of § 1983.
Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir. 1995), relied on by Movants sends a note of caution. In Mark, the Third Circuit surveyed several Supreme Court decisions in which private companies that performed ostensibly public functions were nonetheless held not to have acted under color of state law within the meaning of § 1983. 51 F.3d at 1142. For example, inRendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982), the Court ruled that a private entity engaged in the education of maladjusted high school students did not perform an exclusively public function, even though its income was derived from public funds, because "[the State's] legislative policy choice [to fund the private school] in no way makes these services the exclusive province of the State." While the Court recognized that educating maladjusted high school students is a public function, it explained that "the relevant inquiry is not simply whether the private group is serving a `public function' . . . [but] whether the function performed has been `traditionally the exclusive prerogative of the state.'" Id. Since education is not an exclusive government function, the private school could not be characterized as a state actor for the purposes of § 1983. See generally Huff v. Notre Dame High School, 456 F. Supp. 1145, 1148 (D. Conn. 1978) (holding that "financial assistance to a private university or professional school, without more, does not render the actions of the educational institution state action for purposes of § 1983"). Similarly, in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974), the Court held that a privately-owned Pennsylvania utility company was not a state actor in part because Pennsylvania state courts had "rejected the contention that the furnishing of utility services is either a state function or a municipal duty."
The Supreme Court's holdings in Rendell-Baker and Jackson led the Third Circuit in Mark to comment that the "public function" test "rarely could be satisfied" given the Supreme Court's emphasis on the requirement of "exclusivity." Mark, 51 F.3d at 1142. However, that the "public function" test sets a "rigorous standard" is not an argument against its application in cases where the exclusivity requirement has been alleged. See, e.g., id. at 1147 (finding that district court erred in holding that a privately-owned fire company, under contract with the Borough of Hatboro to provide fire protection services, was not a state actor for the purposes of § 1983). In Pennsylvania, education and utility services (the "public functions" at issue in Rendell-Baker and Jackson), are provided both by public and private institutions and are not "traditionally the exclusive prerogative of the state." Incarceration, however, is concededly a function "traditionally associated with sovereignty," Jackson, 419 U.S. at 353. Although the provision of medical care to incarcerated prisoners is the traditional and exclusive prerogative of the government.see, e.g., West, 487 U.S. at 54-55; Estelle, 429 U.S. at 103-05; 37 PA. CODE §§ 93.12(a-b), no case has yet held mail order pharmaceutical services also meet this test, and when Plaintiff has not made the necessary allegations, this Court cannot so hold.
As the Supreme Court explained in West, it is the agency's "function while working for the State, not the amount of time [it] spends in performance of those duties or the fact that [it] may be employed by others to perform similar duties, that determines whether [it] is acting under color of state law." 487 U.S. at 57.
B. The "Close Nexus" Standard
Here, the relevant inquiry is "`whether there is a sufficiently close nexus between the State and the challenged action [of the private party] so that the action of the latter may be fairly treated as that of the State itself.'" Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993) (quoting Jackson, 419 U.S. at 351).
In Kost, federal pretrial detainees brought a § 1983 action against a pharmacy, alleging that the pharmacy had supplied them with lice medication while they were detained at the Allegheny County Jail ("ACJ"). Id. at 180-81. According to the plaintiffs' complaint, the pharmacy was under contract to provide medical services for the inmate population at ACJ, and it bore a duty to the inmates with respect to their medical care and welfare. Id. at 180. In Kost, however, the pharmacy had contracted for its services through a third-party intermediary; it was not under a direct contract with Allegheny County or with the prison itself, and it "had no contact with any prisoners in the ACJ." Id. at 184. Thus, the Third Circuit affirmed summary judgment for one defendant and held that the plaintiffs had failed to establish the requisite nexus between the pharmacy and the state to make out a showing of state action and affirmed the district court's entry of summary judgment in favor of the pharmacy on the plaintiffs' § 1983 claim. See id.
The Third Circuit stated, however, that "[h]ad [the pharmacy] contracted directly with the ACJ or Allegheny County to provide off-site prescription filling services, an inference might have arisen that a sufficient connection existed between a state actor and [the pharmacy] to create a genuine issue of material fact on the element of state action." Id. However, because the pharmacy had contracted with a "private, intermediary third party" and had "no contact whatsoever with a state actor" the Third Circuit affirmed summary judgment. Id. Here, although Plaintiff has alleged that Defendants, "pursuant to a Vendor Pharmacy Service Contract with the Pennsylvania Department of Corrections, provide pharmaceutical services for inmates in the Commonwealth of Pennsylvania, including those incarcerated at the Bucks County Correctional Facility," (Pl.'s Second Am. Compl. ¶ 16), Plaintiff's complaint goes no further to plead the "close nexus" required to withstand a motion to dismiss.
Movants correctly argue that the mere presence of a contract between the BCCF defendants and them does not automatically render Movants state actors. According to the Third Circuit, "a state contractor and its employees are not state actors simply because they are carrying out a state sponsored program and the contractor is being compensated therefor by the state." Black v. Indiana Sch. Dist., 985 F.2d 707, 710 (3d Cir. 1993). However, the court continued, "[f]or the nature of the contractor's activity to make a difference, the function must have been `traditionally theexclusive prerogative of the state.'" Id. (quotingRendell-Baker, 457 U.S. at 842). As discussed above, Plaintiff has not alleged Movants perform a function that is the traditional and exclusive prerogative of the government. See supra Part III.A. Thus, under the "close nexus" standard set forth in Kost, Movants may not at this point be characterized as state actors under the allegations, for the purposes of § 1983.
In Black, students brought a § 1983 claim against their bus driver and the bus company, alleging that the driver had molested them at various times going to and from school. 985 F.2d at 708. Relying on the Supreme Court's opinion inRendell-Baker, supra, the Third Circuit held that neither the bus company nor the driver could be classified as state actors, since the function of transporting students to and from school is not a function that is "traditionally the exclusive prerogative of the state." Id. at 710-11.
C. The "Symbiotic Relationship" Standard
Finally, Plaintiff urges the Court to apply the so-called "symbiotic relationship" test announced in Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), in ascertaining whether Defendants qualify as a state actor. As noted above, however, Plaintiff need only make a showing of state action under any one of the three tests to demonstrate that her decedent's violation was caused by a person acting under color of state law. See, e.g., Brown, 250 F.3d at 801. A finding that Defendants cannot fairly be characterized as a state actor under the "symbiotic relationship" test would not, in itself, be grounds to dismiss Plaintiff's complaint.See id.
In Burton, the state of Delaware created a parking facility with ground-level retail space that it leased to various private businesses. 365 U.S. at 718-19. When a restaurant located in the facility refused to serve a customer because of his race, the customer brought a § 1983 action against the restaurant. Id. at 716. Stressing numerous mutual benefits conferred between the restaurant and the parking facility — including that the restaurant was located on public property and that rent from the restaurant helped finance the parking garage — the Court held that discrimination by the restaurant constituted state action.Id. at 723-24. The Court accepted the restaurant's allegation that "for it to serve Negroes would injure its business," and thus found that "profits earned by discrimination not only contribute[d] to, but also [were] indispensable elements in, the financial success of a governmental agency." Id. at 724. While the Court in Burton did not characterize the association between the restaurant and the parking garage as a "symbiotic relationship," it held that the state had "so far insinuated itself into a position of interdependence with [the restaurant] that it must be recognized as a joint participant in the challenged activity. . . ." Id. at 725.
That characterization of Burton first appeared in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175, 92 S. Ct. 1965, 32 L.Ed. 2d 627 (1972).
The reasoning of Burton has since been called into doubt.See, e.g., Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999) (reversing Third Circuit's finding that certain private insurance companies were to be regarded as state actors under Burton, explaining that "Burton was one of our early cases dealing with `state action' under the Fourteenth Amendment, and later cases have refined the vague `joint participation' test embodied in that case"). While Burton remains good law, the Third Circuit has significantly narrowed its interpretation of the case in light of the Supreme Court's decision in Sullivan, later holding that Burton "was crafted for the unique set of facts presented, and [that the Third Circuit] will not expand its reach beyond facts that replicate what was before the Court inBurton." Crissman v. Dover Downs Entm't, Inc., 289 F.3d 231, 242 (3d Cir. 2002).
The facts alleged in this case do not support a finding that Movants were state actors under the Burton test. Plaintiff alleges the sale of prescription drugs from Movants to BCCF. Assuming the state had an obligation to provide such medication to its inmates, the financial stability of the prison clearly was not dependent on the success of Movants' prescription drug business. Even when all inferences are drawn in favor of Plaintiff, the facts alleged do not support a conclusion that the state had "so far insinuated itself into a position of interdependence" with Defendants that the conduct of the latter must be regarded as state action. Cf. Krynicky v. Univ. of Pittsburgh, 742 F.2d 94, 102 (3d Cir. 1984) (finding a "symbiotic relationship" between Pennsylvania and the University of Pittsburgh, where the Commonwealth had taken the affirmative step of "statutorily accepting responsibility" for the institution). Accordingly, Movants cannot be characterized as state actors under the "symbiotic relationship" test.
IV. Conclusion
Because Plaintiff's claims against Movants are novel, the Court will allow Plaintiff one more opportunity to plead facts sufficient to allege that Movants are state actors under ¶ 1983.
An appropriate Order follows.
ORDER
AND NOW, this 22nd day of September, 2004, upon consideration of the Motion of Defendants Diamond Drugs, Inc. and Diamond Pharmacy Service ("Movants") to Dismiss Plaintiff's Second Amended Complaint Pursuant to Rule 12(b)(6), and any response thereto, it is hereby ORDERED as follows:1. Movants' Motion is GRANTED.
2. Counts I, II, III and IV of Plaintiff's Second Amended Complaint are DISMISSED without prejudice with respect to Movants.
3. Counts V, VI and VII of Plaintiff's Second Amended Complaint are DISMISSED without prejudice with respect to Movants to the extent they allege constitutional violations or make a claim under 42 U.S.C. ¶ 1983 et. seq.
4. Plaintiff may file a Third Amended Complaint against Movants only, within twenty (20) days.