Opinion
Civil No. 1:18-CV-1523
03-06-2019
SHAWN MOORE, Plaintiff, v. JOHN E. WETZEL, et al. Defendants.
(Judge Rambo)
( ) REPORT AND RECOMMENDATION
I. Introduction
Care for a chronically ill and aging inmate population presents a conundrum for inmates, correctional officials and the courts. This case, which comes before us for consideration of two motions to dismiss, and a motion to strike filed by the defendants, aptly illustrates the legal and medical challenges which institutional health care for a chronically ill inmate population presents.
This is an action filed by the pro se prisoner plaintiff, Shawn Moore, who is currently incarcerated by the Pennsylvania Department of Corrections ("DOC"). Moore alleges that he suffers from a chronic and serious medical condition, a Hepatitis C infection, and brings claims pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his Eighth and Fourteenth Amendment rights, and acted negligently, when they denied him adequate treatment for his Hepatitis C.
For the reasons that follow, we will recommend that the defendants' motions be granted in part and denied in part.
II. Background
The factual background of this case is taken from the well-pleaded facts set forth by the plaintiff in his complaint, which we must accept as true for purposes of evaluating the motions to dismiss filed by the defendants. Those well-pleaded facts recite that Shawn Moore is a state prisoner who suffers from chronic Hepatitis C. (Doc. 1-1, ¶4.) Moore explains that Hepatitis C is a virus which infects the liver. Untreated, Hepatitis C can result in liver inflammation, scarring, cirrhosis, cancer and death. (Id., ¶¶13-23.) By 2013 new anti-viral drugs had been developed which revolutionized the treatment of Hepatitis C. These new anti-viral treatments are now recognized in the medical community as the benchmark medical standards for treatment of this condition regardless of the stage of the disease in particular patients, or whether the infected person is asymptomatic. (Id., ¶¶24-29.)
Notwithstanding these medical advances, Moore alleges that the Department of Corrections adopted a treatment protocol for Hepatitis C treatment of inmates which limited use of anti-viral drugs to those prisoners who were actively suffering from cirrhosis. The upshot of this treatment protocol, according to Moore, was that many asymptomatic or mildly symptomatic prisoners like the plaintiff were denied treatment for a known, and potentially deadly, condition until the disease progressed to one of its more severe forms. (Id., ¶¶30-46.) The policy was allegedly dictated not by medical necessity but by cost considerations. (Id.)
Moore has been incarcerated in the state prison system since 2015. (Id., ¶47.) Moore claims that he repeatedly requested testing, liver biopsies, and anti-viral medications, and filed several grievances about his treatment, but was denied these treatments in accordance with this treatment protocol. (Id.,¶¶48-85.)
On the basis of these factual averments, Moore has filed a six count civil complaint against the Department of Corrections, and those correctional official responsible for this treatment protocol. Moore has also sued the corporate health care provider for the Department of Corrections, Correct Care Solutions, Inc. (CCS), and several of CCS's senior medical staff, alleging that these institutional and individual defendants actively assisted in the implementation of this unconstitutional health care policy. (Id.) Having named these institutional and individual defendants, Moore's complaint brings a number of constitutional and common law claims against the defendants. First, at the heart of Moore's complaint is an allegation that this treatment protocol developed by the Department of Corrections and actively implemented by CCS violated the Eighth Amendment's prohibition on cruel and unusual punishment in that it reflected deliberate indifference to his medical needs. Moore has sought both prospective injunctive and declaratory relief, along with compensatory and punitive damages on this Eighth Amendment claim. Moore 's complaint also asserts that the conduct of the defendants violated provisions of the Pennsylvania constitution, as well as the equal protection and due process provisions of the Fourteenth Amendment. Finally, Moore brings state tort law negligence claims asserting that the conduct of the defendants rose to the level of negligence and gross negligence under Pennsylvania law. (Doc. 1-1, Counts I-VI.)
With Moore's claims framed in this fashion, the defendants have moved to dismiss many of Moore's claims on a variety of grounds. (Docs. 4 and 22.) The corporate health care provider, CCS, has also moved to strike a certificate of merit filed by Moore in support of his state law medical negligence claim, (Doc. 24) arguing that this certificate of merit is legally insufficient.
We note one minor mystery with respect to the current posture of this lawsuit. One of the last pleadings in this case, a reply brief filed by CCS, attaches correspondence from Moore which suggests that Moore and the Commonwealth have reached a settlement of this dispute. (Doc. 43-1.) This purported settlement, however, is not reflected in any filing by the alleged settling parties, Moore and the Commonwealth defendants. Therefore, we will treat all of these pending motions as live motions warranting action by the court.
These motions are fully briefed by the parties and are, therefore, ripe for resolution. For the reasons set forth below, it is recommended that the motions should be granted, in part, and denied, in part as follows: First, Counts I and VI of the complaint which allege Eighth Amendment violations but separately seek prospective relief and damages should be consolidated for further proceedings. Second, the motion to dismiss the institutional Eighth Amendment claims lodged against Correct Care Solutions, Inc. should be denied without prejudice. Third, the plaintiff's claims for damages under the Pennsylvania constitution should be dismissed, but the plaintiff should be permitted to continue to seek declaratory and injunctive relief on these state constitutional claims. Fourth, the plaintiff's Fourteenth Amendment due process and equal protection claims should be dismissed. Fifth, the motions to dismiss Moore's pendent state law medical negligence claims should be denied. Sixth, the motion to strike Moore's certificate of merit in support of this state law medical negligence claim should be denied.
III. Discussion
A. Standard of Review - Motion to Dismiss
The defendants have moved to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "failure to state a claim upon which relief can be granted." With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S. Ct. 1937 (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 Cir. 2009).
In 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, Inc., 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." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action 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 actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court 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." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
Two years after Fowler, the Third Circuit further observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. (1955)). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops
short of the line between possibility and plausibility of 'entitlement of relief.'"Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id.Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8(a).
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
B. Moore's Eighth Amendment Claims Should be Consolidated and But the Claim Against CCS is Not Subject to Dismissal on the Pleadings.
Moore's primary legal claim is brought against the defendants under the Eighth Amendment to the United States Constitution as a claim of deliberate indifference to Moore's medical needs for a failure to treat his Hepatitis C. Moore alleges that the DOC and CCS had a policy of "monitoring" inmates, rather than treating them, unless their symptoms presented as severe. He claims that the DOC's reason for doing so was because of the cost of the anti-viral drugs used to treat inmates with Hepatitis C.
For their part, the defendants prudently do not directly attack this Eighth Amendment claim. Instead, the correctional defendants assert that Counts I and VI of the complaint, which both allege Eighth Amendment violations, are duplicative of one another. For its part, CCS argues that it may not be held liable for Eighth Amendment claims arising from this Hepatitis C treatment protocol since the Department of Corrections developed the protocol, and it simply treated patients pursuant to that protocol. Thus, CCS argues that the policy regarding the treatment of inmates with Hepatitis C was a DOC policy, and it was simply a contractor treating patients in accordance with this policy.
The defendants wisely refrain from directly challenging this Eighth Amendment claim on its merits. It is a stark medical reality of life in prison that ailments like Hepatitis C are chronic and endemic in certain components of the inmate population. This prison medical fact of life, in turn, inspires a legal truth: When considering Eighth Amendment claims, like those advanced by Moore, based upon an alleged failure to treat an inmate's Hepatitis C, we do not write upon a blank slate. Quite the contrary, numerous courts have considered the application of the Eighth Amendment in this specific legal-medical context.
Several guiding principles emerge from these cases. First, as a medical matter:
Hepatitis C is one of six identified hepatitis viruses-the others are A, B, D, E and G. All cause the liver to become inflamed, which interferes with its ability to function. Hepatitis C is generally considered to be among the most serious of these viruses. Over time, a hepatitis C infection, can lead to liver cancer, liver failure or cirrhosis, an irreversible and potentially fatal scarring of the liver.Lee v. Beard, No. 03-1026, 2008 WL 744736, *3 (M.D. Pa. March 18, 2008). Given the severity of its symptoms, and its potential for serious and fatal injuries to those afflicted by this disease, it is clear that Hepatitis C constitutes the type of "serious medical need" which triggers Eighth Amendment scrutiny in a corrections context. See, e.g., Henry v. Maue, No. 06-1439, 2008 WL 5188834, *3 (W.D. Pa, Dec. 10, 2008) (Hepatitis C constitutes a serious medical need); Henry v. Wilson, No. 06-1439, 2008 WL 131164, *4 (W.D. Pa. Jan. 9, 2008) (same); Christy v. Robinson, 216 F.Supp.2d 398, 413 (D.N.J. 2002) (same). Because Hepatitis C is a grave medical concern, and constitutes a serious medical need, it follows that a complaint which adequately alleges deliberate indifference by prison medical staff to an inmate's Hepatitis C cannot be summarily dismissed at the outset of a lawsuit. See Henry v. Wilson, 2008 WL 131164 (denying Rule 12(b)(6) motion relating to Eighth Amendment deliberate indifference claim concerning Hepatitis C treatment); Thomas v. Arias, No. 06-291, 2007 WL 210097 (E.D. Pa. Jan. 23, 2007) (same).
While some courts have, in the past, at summary judgment considered compliance with the DOC's Hepatitis C treatment protocol as a potential defense to any Eighth Amendment claim, an intervening legal development now casts doubt upon the degree of reliance which can be placed upon this protocol as a complete defense to federal civil rights liability. In Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL 4574646, at *13-14 (M.D. Pa. Aug. 31, 2016), this court indicated that the interim Hepatitis C treatment protocol adopted by the DOC violated the Eighth Amendment, stating that:
[T]here is a sufficient basis in the record to find that DOC's current protocol may well constitute deliberate indifference in that, by its own terms, it delays treatment until an inmate's liver is sufficiently cirrhotic that a gastroenterologist determines, at the end of a lengthy, multi-step evaluation procedure taking place over a long
period of time, that inmate has esophageal varices. In the words of Dr. Noel, DOC's Chief of Clinical Services, the presence of these esophageal varices signifies that inmates have "pass[ed] ... into advanced disease, and ... are at risk for the varices rupturing and having a severe and critical bleed, because they're [sic] platelet counts are low, so they don't clot very well, and you could have a catastrophe." (Findings of Fact, supra, ¶ 52; Noel Test., Dec. 23, 2015, at 112:10-23). In the Court's view, the effect of the protocol is to delay administration of DAA medications until the inmate faces the imminent prospect of "catastrophic" rupture and bleeding out of the esophageal vessels. Additionally, by denying treatment until inmates have "advanced disease" as marked by esophageal varices, the interim protocol prolongs the suffering of those who have been diagnosed with chronic Hepatitis C and allows the progression of the disease to accelerate so that it presents a greater threat of cirrhosis, hepatocellular carcinoma, and death of the inmate with such disease.
The protocol put forth by the Hepatitis C Treatment Review Committee exposes inmates in the care of DOC to these risks, despite knowing that the standard of care is to treat patients with chronic Hepatitis C with DAA medications such as Harvoni or Sovaldi, regardless of the stage of disease. The DOC Defendants' own expert, Dr. Jay Cowan, acknowledges that the standard of care is to treat every patient for whom treatment with direct-acting antiviral medications is not medically contraindicated, regardless of disease progression or status as an incarcerated person. (See Findings of Fact, supra, at ¶¶ 18-21). The interim protocol does not do that; instead it opts for a desultory monitoring of patients who are afflicted with chronic hepatitis C, with active treatment, as indicated above, being delayed until the disease has progressed to the point that scarring of the liver has turned to cirrhosis and liver malfunction. Given that the DOC Defendants' expert Dr. Cowan acknowledges that "[v]ery often, you can't predict the rate of progression" of the disease, (Findings of Fact, supra, ¶ 9; Cowan Test., Dec.
22, 2015 at 208:15-20), this monitoring approach leaves inmates vulnerable to a "substantial risk of deteriorating health and death." B.E. v. Teeter, No. C16-227-JCC, 2016 WL 3033500, at *5 (W.D. Wash. May 27, 2016).Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL 4574646, at *13-14 (M.D. Pa. Aug. 31, 2016) (footnote omitted).
In light of these legal developments, neither defendant has launched a direct frontal attack upon the legal sufficiency of Moore's Eighth Amendment claims in this case. Instead, for its part, the Commonwealth defendants argue that Count I which seeks injunctive relief for these alleged Eighth Amendment violations, and Count VI which seeks damages for the same Eighth Amendment violations, are duplicative of one another. For his part Moore has responded to this argument in a commonsense fashion stating: "These counts were separated for clarity. If it makes the defendants feel better I have no problem combing the 1st and 6th counts as long as it remains clear that defendants are sued in the personal and official capacities for damages and injunctive relief." (Doc. 114, p.13.) Given this concession by Moore it is recommended that Counts I and VI be consolidated for further proceedings, as they arise out of a common nucleus of operative fact and involve the same legal claims.
In their motion to dismiss, Correct Care Solutions adopts a somewhat different tact with regard to this Eighth Amendment claim. CCS does not challenge the viability of Moore's Eighth Amendment claim as a general matter, but simply alleges that as a corporate defendant it may not be held liable because it did not develop the Hepatitis C treatment protocol. Instead, it merely complied with that treatment protocol as a corporate contractor.
To be sure, in the final analysis Moore faces an exacting burden of proof and persuasion on any institutional liability claims leveled against CCS. In this setting:
A[n] [institution] is liable under § 1983 when a plaintiff can demonstrate that the [institution] itself, through the implementation of a . . . policy or custom, causes a constitutional violation. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978). Liability will be imposed when the policy or custom itself violates the Constitution or when the policy or custom, while not unconstitutional itself, is the "moving force" behind the constitutional tort of one of its employees. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed. 2d 509 (1981). Liability cannot be predicated, however, on a theory of respondeat superior or vicarious liability. Monell, 436 U.S. at 693-94, 98 S.Ct. 2018. A plaintiff can establish causation by "demonstrating the municipal action was taken with 'deliberate indifference' as to its known or obvious consequences." Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed. 2d 626 (1997). 2122232425"[T]he standard for personal liability under section 1983 is the same as that for municipal liability." Carter v. City of Philadelphia, 181 F.3d 339, 356 (3d Cir. 1999). "[W]hen execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts and acts may fairly be said to represent official policy, inflicts the injury...the government as an entity is responsible under § 1983." Id.Carroll v. Lancaster Cty., 301 F. Supp. 3d 486, 504 (E.D. Pa. 2018). Likewise, " '[a] private corporation contracted by a prison to provide health care for inmates cannot be held liable on a respondeat superior theory; rather, 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.' Henry v. Buskirk, 2011 U.S. Dist. LEXIS 18644 (E.D.Pa. 2011) (citing Natale, 318 F.3d at 583-84 and Monell, 436 U.S.at 691-94, 98 S.Ct. 2018)." Carroll v. Lancaster Cty., 301 F. Supp. 3d 486, 509 (E.D. Pa. 2018).
Accordingly, a Monell claim seeks to impose organizational liability for a constitutional injury that was causally connected to a policy, custom, or practice. See id.; see also Carreno v. City of Newark, 834 F. Supp. 2d 217, 231 (D.N.J. 2011). "Under Monell, a[n entity] cannot be subjected to liability solely because injuries were inflicted by its agents or employees." Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Instead, "it is when execution of a . . . 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 . . . entity is responsible under § 1983." Id. (quoting Monell, 436 U.S. at 694). It is, therefore, essential to a Monell claim that there be a "direct causal link between a . . . policy or custom and the alleged constitutional deprivation" in order to establish liability. City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Guided by these threshold principles, the Third Circuit Court of Appeals has explained that there are "three situations where acts of a[n] employee may be deemed to be the result of a policy or custom of the . . . entity for whom the employee works, thereby rendering the entity liable under § 1983:
The first is where the appropriate office/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 the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (internal quotation marks and citations omitted)(emphasis added). Subsequently, the appeals court provided further guidance regarding the ways in which a policy or custom may be established:
We have also observed that a . . . policy or custom can be established in two ways. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990). The Plaintiffs may establish a government policy by showing that a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issued an official statement of policy. Pembaur v. City of
Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Plaintiffs may establish that a course of conduct constitutes a "custom" when, though not authorized by law, "such practices of state officials [are] so permanent and well settled" that they operate as law. Monell, 436 U.S. at 690, 98 S.Ct. 2018. In either instance, the Plaintiffs have the burden of showing that a . . . policymaker is responsible by action or acquiescence for the policy or custom. Andrews, 895 F.2d at 1480. We have also held that, at a minimum, the government must act with deliberate indifference to the purported constitutional deprivation in order to ground liability. San Filippo v. Bongiovanni, 30 F.3d 424, 445 (3d Cir.1994).Jiminez, 503 F.3d at 250 (emphasis added). To sustain such a claim, therefore, a plaintiff must "identify a . . . 'policy' or 'custom' that caused the plaintiff's injury." Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). This custom must be "so widespread as to have the force of law." Id. at 404; see also Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official proclamation or edict of a municipality, while a custom is a practice that is "so permanent and well settled as to virtually constitute law") (quoting Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted). The plaintiff must further "allege that a 'policy or custom' of [the defendants] was the 'moving force' behind the [constitutional] violation." Grayson v. Mayview State Hosp., 293 F.3d 103, 107 (3d Cir. 2002) (citing Brown, 520 U.S. at 404).
Here, with our review limited to the pleadings alone, we find that Moore has adequately alleged the existence of an unconstitutional policy; that is, an alleged policy to deny and defer medically recommended treatment to a class of inmates based upon non-medical cost considerations. Moore also alleges facts which indicate that CCS played an active role in the implementation of this policy. Thus, while CCS argues that it did not promulgate the policy, the complaint alleges that CCS through its senior officers actively assisted in implementing this policy. Since liability can rest upon institutional acquiescence in an unlawful policy; institutional implementation of a facially unconstitutional policy promulgated by others, or an institutional failure to act affirmatively at all, when the need to take some action is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the institution can reasonably be said to have been deliberately indifferent to the need, we find that these allegations are sufficient at the pleading stage of this litigation to state an institutional liability claim against CCS notwithstanding CCS's claim that it did not develop this policy in the first instance.
In reaching this conclusion with respect to the institutional liability claims leveled against CCS we emphasize that the litigative posture of this case defines the scope of our review. This matter comes before us on a motion to dismiss, where our review is cabined and confined by the pleadings. On this score we note that CCS argues that it is entitled to a judgment in its favor as a matter of law on these claims, but generally relies upon cases which resolved this issue on a motion for summary judgment, where the court was able to consider undisputed facts beyond the pleadings. See Forshey v. Huntingdon Cty., No. 1:13-CV-00285, 2016 WL 7743050, at *8 (M.D. Pa. Dec. 9, 2016), report and recommendation adopted, No. 1:13-CV-0285, 2017 WL 118371 (M.D. Pa. Jan. 12, 2017); Freeman v. Northumberland Cty., No. 3:10-CV-2502, 2014 WL 4447587, at *4 (M.D. Pa. Sept. 10, 2014). Here unresolved factual issues remain regarding the respective roles of the Commonwealth and CCS in the development and implementation of this policy. While these issues may ultimately be resolved on a motion for summary judgment, they cannot be definitively addressed through a motion to dismiss. Thus, we do not opine on whether this claim can ultimately survive a motion for summary judgment. Instead, we simply recommend that the district court find that Moore has sufficiently pleaded his claim against this institutional defendant. Likewise, we do not opine on whether qualified immunity or other similar legal defenses may be available in this case as these questions are not presently before us.
C. Moore May Not Maintain a Claim for Damages Under the Pennsylvania Constitution But May Pursue Prospective Relief
We also note that Moore's complaint appears to bring claims for damages and injunctive relief under various provisions of the Pennsylvania state constitution. With respect to these pendent state constitutional claims, it is well-settled that:
"The prevailing view is that Pennsylvania does not recognize a private right of action for damages in a suit alleging violation of the Pennsylvania Constitution." Gary v. Braddock Cemetery, 517 F.3d 195, 207 n. 4 (3d Cir. 2008). However, "[a]lthough monetary relief is
barred for claims under the Pennsylvania Constitution, equitable remedies are available." Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 Fed.Appx. 681, 688 (3d Cir. 2011). See also Gary v. Pennsylvania Dep't of Labor & Indus., 2014 WL 2720805, at *10 (M.D. Pa. June 13, 2014) ("Although monetary relief is unavailable, 'other remedies, such as declaratory or injunctive relief ... are ... remedies under the Pennsylvania Constitution.' ") (citing Jones v. City of Philadelphia, 890 A.2d 1188, 1215-16 (Pa. Commw. Ct. 2006) ). The state constitutional claim is therefore viable because "it is well settled that individual plaintiffs may bring suit for injunctive relief under the Pennsylvania Constitution." Moeller v. Bradford Cty., 444 F.Supp.2d 316, 320 (M.D. Pa. 2006).Pomicter v. Luzerne Cty. Convention Ctr. Auth., 322 F. Supp. 3d 558, 567 (M.D. Pa. 2018). See Smith v. Susquehanna Univ., No. 4:14-CV-116, 2015 WL 12791753, at *3 (M.D. Pa. Mar. 4, 2015), report and recommendation adopted, No. 4:14-CV-0116, 2015 WL 12791752 (M.D. Pa. Apr. 3, 2015).
Applying these familiar legal principles, to the extent that Moore's complaint seeks damages for alleged violations of the Pennsylvania constitution such claims are foreclosed as a matter of law and should be dismissed. "Yet while damages are not available to [the plaintiff] on the pendent state constitutional claim, '[o]ther remedies, such as declaratory or prospective injunctive relief, could provide a remedy. While such remedies might not provide ... "complete relief" see Bush, 462 U.S. at 388, 103 S.Ct. 2404, they are, nonetheless, remedies under the Pennsylvania Constitution.' Jones v. City of Philadelphia, 890 A.2d 1188, 1216 (Pa. Commw. Ct. 2006)." Smith v. Susquehanna Univ., No. 4:14-CV-116, 2015 WL 12791753, at *3 (M.D. Pa. Mar. 4, 2015), report and recommendation adopted, No. 4:14-CV-0116, 2015 WL 12791752 (M.D. Pa. Apr. 3, 2015). Therefore, Moore's requests for injunctive or declaratory relief under the Pennsylvania constitution remain viable legal claims.
D. Moore's Fourteenth Amendment Due Process and Equal Protection Claims Fail as a Matter of Law
In his complaint, Moore also lodges Fourteenth Amendment due process and Equal Protection claims against the defendants arising out of what he alleges was inadequate health care. Unlike his other claims, which are thoroughly described in the complaint, these due process and equal protection claims are advanced in a spare and summary fashion. Therefore, as presently pleaded these claims fail to state a claim upon which relief may be granted and should be dismissed.
Turning first to Moore's due process claim, Count II of his complaint, (Doc. 1-1), Moore's pleading simply parrots the elements of a constitutional claim, stating that "[t]he defendants' conduct violated plaintiff's right to due process." (Id., ¶118.) More is needed here to state a claim. While it is unclear from this pleading what the legal foundation of Moore's due process claim might be, in a custodial setting, case law draws a dichotomy between Eighth Amendment claims of medical deliberate indifference, and Fourteenth Amendment due process claims of a similar stripe. While the substantive benchmarks applied to both types of claims are essentially identical, the Eighth Amendment extends to claims brought by convicted prisoners while the Fourteenth Amendment's due process provisions only afford protections to pre-trial detainees. Palakovic v. Wetzel, 854 F.3d 209, 222 (3d Cir. 2017). In this case, it is undisputed that Moore is a convicted felon serving a prison term in the Department of Corrections. Therefore, his medical indifference claims are properly brought under the Eighth Amendment and Moore's Fourteenth Amendment substantive due process claims fail as a matter of law in this particular factual context.
Likewise, Moore's equal protection claim fails, as pleaded. Like his due process claim, Moore's equal protection claim is pleaded in a cursory fashion which merely asserts without supporting facts that the defendants' conduct violated equal protection principles. (Doc. 1-1, ¶¶122-25.) This summary style of pleading simply does not satisfy the standards required to state a constitutional equal protection claim in federal court. On this score, it is well-settled that the touchstone to any equal protection claim is disparate treatment of similarly-situated persons. Thus, the Equal Protection Clause requires that all people similarly situated be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). "[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (quotations omitted). Claims for equal protection violations are subject to differing levels of scrutiny depending on the status of the claimant. Statutes or actions that substantially burden a fundamental right or target a suspect class must be reviewed under "strict scrutiny," which means that in order to be valid, they must be narrowly tailored to serve a compelling governmental interest. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir.2000). In contrast, if state action neither burdens a fundamental right nor targets a suspect class, it does not violate the Fourteenth Amendment's Equal Protection clause, so long as the state action bears a rational relationship to some legitimate end. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Abdul-Akbar, 239 F.3d at 317.
While the legal grounds for Moore's equal protection claim remain somewhat murky, it is well settled that prisoners do not constitute a suspect class for Fourteenth Amendment purposes, and thus Moore's equal protection claim is governed by rational-basis review. See Myrie v. Comm'r, N.J. Dep't of Corr., 267 F.3d 251, 263 (3d Cir.2001); Abdul-Akbar, 239 F.3d at 317. Accordingly, to sustain his Equal Protection claim, Moore bears the burden of showing that he has been arbitrarily treated differently from similarly situated inmates, that the defendants did so intentionally, and that this difference in treatment bears no rational relation to any legitimate penological interest. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). See McKeithan v. Kerestes, No. 1:11-CV-1441, 2014 WL 3734569, at *9-10 (M.D. Pa. July 28, 2014).
In this case, Moore has failed to allege facts which would sustain this substantial burden. Indeed, the gist of Moore's complaint is not an allegation of disparate treatment of similarly situated inmates. Rather, at its heart, this complaint alleges that similarly situated inmates, namely asymptomatic prisoners diagnosed with Hepatitis C, were treated in a similar fashion, in that they were all denied a full scope of treatment for their condition in ways which offended the Eighth Amendment. Thus, while Moore's complaint may allege constitutional infractions, we do not read it as stating that he was treated differently from other similarly situated prisoners. Rather, we understand Moore to be alleging that all inmates in his situation were treated unfairly. Such allegations may state a constitutional claim under the Eighth Amendment, but they do not describe the type of disparate conduct condemned by the Equal Protection clause.
E. Moore's Medical Negligence Claims Are Not Subject to Dismissal on the Pleadings Alone ands Moore's Certificate of Merit Should Not Be Stricken
The defendants have also moved to dismiss Moore's medical negligence claims, launching a multi-facetted attack upon these pendent state law tort claims. At the outset, the defendants contend that Moore's complaint, which accuses the defendants of "gross negligence" fails to state a claim under Pennsylvania law, since Pennsylvania does not recognize "gross negligence" as a form of civil culpability separate and part from negligence itself. In fact "there is no separate cause of action under Pennsylvania law for gross negligence." Spence v. ESAB Group, Inc., 623 F.3d 212, 215 n. 2 (3d Cir.2010) (citing Hunter v. Squirrel Hill Assocs., LP, 413 F.Supp.2d 517, 520 n. 2 (E.D.Pa.2005) ("While Pennsylvania courts acknowledge differing standards of care, they do not recognize degrees of negligence as separate causes of action.")). See also Floyd v. Brown & Williamson Tobacco Corp., 159 F.Supp.2d 823, 828 (E.D.Pa.2001) (dismissing plaintiff's separately pleaded claim for gross negligence after concluding that under Pennsylvania law " 'gross negligence' refers to a standard of care, rather than to a separate claim"). Yet, while it is not acknowledged as a separate cause of action, gross negligence has been recognized by Pennsylvania and federal courts interpreting Pennsylvania law as "a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference." Legion Indem. Co. v. Carestate Ambulance, Inc., 152 F.Supp.2d 707 (E.D.Pa.2001) (citing Albright v. Abington Memorial Hosp., 548 Pa. 268, 696 A.2d 1159 (Pa.1997)). Thus, Pennsylvania law acknowledges differing standards of care, but does not recognize degrees of negligence as separate causes of action. See Hunter, 413 F.Supp.2d at 520 n. 2 (citations omitted); see also Jordan v. City of Phila., 66 F.Supp.2d 638, 644 (E.D.Pa.1999) (the term "gross negligence refers only to a heightened standard of care, not to a cause of action distinct from ordinary negligence.").
In this case, as we construe it, Moore has not endeavored to plead a separate cause of action for gross negligence, but has instead merely included "gross negligence" as part of his negligence claim set forth in Count IV. Therefore, we find it unnecessary to dismiss this entire count simply because Plaintiff has alleged that the defendants were grossly negligent in his medical care. Instead, we conclude that it is more appropriate to "allow Plaintiff [ ] to retain the pertinent allegation[s] ... to support [his] claim for punitive damages." Fiorentino v. Cabot Oil & Gas Corp., 750 F.Supp.2d 506, 514 (M.D.Pa.2010); see also Shouey ex rel. Litz v. Duck Head Apparel Co., 49 F.Supp.2d 413, 418 (M.D.Pa.1999) (treating a separate count alleging gross negligence as simply a claim of ordinary negligence); cf. Watts v. Hollock, NO. 3:10-CV-92, 2011 WL 6003922, at M.D. Pa.2011) ("[C]laims asserting a breach of a reckless standard and claims asserting a breach of a negligence standard both allege the tort of negligence."). See Daly v. New Century Trans, Inc., No. 1:11-CV-2037, 2012 WL 4060687, at *3-4 (M.D. Pa. Sept. 14, 2012).
The Commonwealth defendants also assert that general claims of negligence against the Commonwealth and its officers and employees are barred by the doctrine of sovereign immunity. The Commonwealth defendants are entitled to raise the bar of sovereign immunity as a defense to a number of these state law claims since it is beyond dispute that, "[t]he Department of Corrections is an agency of the Commonwealth and the defendants, as employees of an agency of the Commonwealth, are entitled to the protection afforded by sovereign immunity." McGrath v. Johnson, 67 F. Supp. 2d 499, 511 (E.D. Pa. 1999) (citing Maute v. Frank, 441 Pa. Super. 401, 402, 657 A.2d 985, 986 (1995) (state prison officials enjoy sovereign immunity); Robles v. Pennsylvania Dep't of Corrections, 718 A.2d 882, 884 (Pa. Commw. Ct. 1998) (same)), aff'd, 35 F. App'x 357 (3d Cir. 2002). However, assertion of sovereign immunity in this case merely narrows, but does not eliminate, this negligence claim, since the Commonwealth of Pennsylvania has waived its sovereign immunity in nine carefully defined circumstances which include medical-professional liability. 42 Pa.C.S. § 8522(b). As we construe it, Moore's complaint alleges medical-professional liability claims. Therefore, these medical negligence claims would survive the Commonwealth's assertion of sovereign immunity.
Construing Moore's state law tort claim as a claim which is essentially grounded in assertions of medical malpractice the defendants assert one final obstacle to Moore's pursuit of this claim. As to this claim, in order to present a prima facie case of medical malpractice under Pennsylvania law, "as a general rule, a plaintiff has the burden of presenting expert opinions that the alleged act or omission of the defendant physician or hospital personnel fell below the appropriate standard of care in the community, and that the negligent conduct caused the injuries for which recovery is sought." Simpson v. Bureau of Prisons, No. 02-2213, 2005 WL 2387631, at *5 (M.D. Pa. Sept. 28, 2005) This requirement is imposed upon malpractice plaintiffs like Cash by Pennsylvania Rule of Civil Procedure 1042.3, which requires the filing a valid certificate of merit along with this malpractice claim or medical negligence claim.
Pennsylvania Rule of Civil Procedure 1042.3 ("Rule 1042.3") provides in pertinent part:
Rule 1042.3. Certificate of Merit
(a) In any action based upon an allegation that a licensed professionals deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
The requirements of Rule 1042.3 are deemed substantive in nature and, therefore, federal courts in Pennsylvania will apply these prerequisites of Pennsylvania law when assessing the merits of a medical malpractice claim. Liggon-Reading v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011); Iwanejko v. Cohen & Grigsby, P.C., 249 Fed.Appx. 938, 944 (3d Cir. 2007); Ramos v. Quien, 631 F. Supp. 2d 601, 611 (E.D. Pa. 2008); Stroud v. Abington Memorial Hosp., 546 F.Supp.2d 238, 248 (E.D. Pa. 2008) (noting that Pennsylvania federal courts "have uniformly held that the COM requirement is a substantive rule of law that applies in professional liability actions proceeding in federal court"). This requirement of state law applies with equal force to counseled complaints, and to pro se medical malpractice actions brought under state law. See Hodge v. Dep't of Justice, 372 Fed. App'x 264, 267 (3d Cir. 2010) (affirming district court's dismissal of medical negligence claim for failure to file COM); Iwanejko, 249 F. App'x at 944; Levi v. Lappin, No. 07-1839, 2009 WL 1770146 (M.D. Pa. June 22, 2009). Therefore, Moore's status as a pro se litigant cannot excuse him from compliance with the substantive state law when bringing this state law claim of malpractice. Id.
A certificate of merit must affirmatively demonstrate "either that (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or ... (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim." Bresnahan v. Schenker, 498 F. Supp. 2d 758, 761-62 (E.D. Pa. 2007). Therefore, where a purported certificate of merit merely recites that the plaintiff possesses knowledge of his case, that filing does not comply with Rule 1042.3, and the plaintiff's malpractice claim may be subject to dismissal. Id. Similarly, a plaintiff may not satisfy Rule 1042.3 by merely acknowledging the requirement of the rule and promising to comply at some future time. Donnelly v. O'Malley & Langan, P.C., 3:CV-08-1945, 2009 WL 3241662 (M.D. Pa. Oct. 2, 2009) aff'd as modified sub nom. Donnelly v. O'Malley & Langan, PC, 370 F. App'x 347 (3d Cir. 2010). Furthermore, a pleading which simply parrots the language of Rule 1042.3 without any further substantive content is inadequate, and cannot save a malpractice claim from dismissal. Rodriguez v. Smith, CIV.A.03-3675, 2005 WL 1484591 (E.D. Pa. June 21, 2005) (dismissal without prejudice where Plaintiff files certificate that parrots Rule 1042.3 and concedes in the certificate that a licensed professional has not yet supplied the written statement required under Rule 1042.3(a)(1)).
In this case, however, Moore has complied with Rule 1042.3, albeit in what may ultimately be a potentially problematic fashion, by attesting that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. Pa. R. Civ. P. 1042.3(a)(3). The course charted by Moore through this declaration that no expert testimony is needed to prove this medical malpractice claim is legally perilous for the plaintiff in several respects. First, this course may ultimately prove to be wrong. Under Pennsylvania law expert testimony is typically required to establish the elements of a tort claim unless the matter "is so simple or the lack of skill or care is so obvious as to be within the range of experience and comprehension of even non-professional persons." Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997). Likewise, expert testimony is typically needed to prove causation of a medical condition. Feit v. Great West Life and Annuity Insurance Company, 271 F. App'x 246, 252 (3d Cir. 2008). Given that such tort claims often require expert testimonial proof, an improvident declaration that no expert testimony is needed can have dire consequences. Once a plaintiff certifies that he requires no expert proof for a tort claim he is bound by that certification and absent exceptional circumstances is precluded from introducing the expert testimony he needs on the standard of care and causation. See Rodriguez v. United States, No. CV 3:14-1149, 2016 WL 4480761, at *4 (M.D. Pa. Aug. 23, 2016) (quoting Pa. R. Civ. P. 1042.3(a)(3)), aff'd, No. 16-3913, 2017 WL 2438205 (3d Cir. June 6, 2017).
This course is particularly perilous for Moore since his response to these motions to dismiss suggests that he intends to rely upon expert testimony in other prison Hepatitis C cases to establish the elements of this claim. Moore should recognize that, given his certification that no expert testimony is needed to advance this claim, he may be precluded from endeavoring to rely upon this evidence.
Yet, while this choice may ultimately be fatal to a medical malpractice claim, we conclude that it is not fatal at this stage of the proceedings, where we are not presented with a fully-developed factual record concerning the need for expert testimony. On this score we are guided by Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011), a case involving another pro se plaintiff, advancing medical negligence claims. In Liggon-Reading, the Court of Appeals provided us with specific guidance regarding the course we should follow when considering a pro se filing in response to a notice under Rule 1042.3, which stated pursuant to Rule 1042.3(a)(3) that expert testimony was not required to prove the plaintiff's claim. In terns that are equally applicable here, the appellate court observed that:
Pro se filings, . . ., must be liberally construed. See Hartmann v. Carroll, 492 F.3d 478, 482 n. 8 (3d Cir. 2007). [Here, the plaintiff] filed two documents within the time period permitted by the District Court. These filings unambiguously stated that [the plaintiff] was proceeding under Pennsylvania Rule 1042.3(a)(3) by asserting that no expert testimony was needed to advance her claims. The District Court did not address [this] point and, instead, characterized her statements as an argument that [the plaintiff] need not file a certificate of merit under Pa. R. Civ.
P. 1042.3(a)(1). The District Court concluded that [the] claims would need expert testimony and rejected the position it ascribed to [the plaintiff and dismissed the claim]. In doing so, the District Court abused its discretion.Liggon-Redding, 659 F.3d at 265.
There is no basis in Pennsylvania law that would permit a district court to reject a filing under Rule 1042.3(a)(3) in favor of one filed under Rule 1042.3(a)(1). Pennsylvania law expressly allows a plaintiff to proceed on the basis of a certification that expert testimony will not be required to prove her claim. Of course, the consequence of such a filing is a prohibition against offering expert testimony later in the litigation, absent "exceptional circumstances." Pa. R. Civ. P. 1042.3(a)(3), Note. A filing under this rule allows the case to proceed to discovery, leaving the consequence of [the plaintiff's] decision to be dealt with at a later stage of the litigation, such as summary judgment or trial.
This is the course we will follow in the instant case. Recognizing that Moore has filed pleadings which are tantamount to certifications under Rule 1042.3(a)(3) that expert testimony is unnecessary to prosecute his case, we will decline to dismiss this claim for non-compliance with the rule. Instead, we will hold Moore to the election he has made, an election whose consequences may include a prohibition against offering expert testimony later in the litigation, absent "exceptional circumstances," Pa. R. Civ. P. 1042.3(a)(3) (Note), but an election which allows the case to proceed to discovery, leaving the consequence of Moore's decision to be dealt with at a later stage of the litigation, such as summary judgment or trial. Liggon-Redding, 659 F.3d at 265; see Bennett v. PrimeCare Med. Inc., No. 3:18- CV-517, 2018 WL 6072126, at *11 (M.D. Pa. Sept. 14, 2018), report and recommendation adopted, No. 3:18-CV-00517, 2018 WL 6062306 (M.D. Pa. Nov. 20, 2018).
This recommendation, in turn, guides us in the resolution of CCS's motion to strike Moore's Certificate of Merit. (Doc. 24.) While Moore may ultimately be acting at his great legal peril in attesting that his medical negligence claim requires no expert proof, this assertion, standing alone, does not provide grounds to strike the certificate of merit. Rule 12(f) of the Federal Rules of Civil Procedure governs motions to strike pleadings and provides, in part, that:
(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.Fed. R.Civ. P. 12(f).
While rulings on motions to strike rest in the sound discretion of the court, Von Bulow v. Von Bulow, 657 F.Supp. 1134, 1146 (S.D.N.Y. 1987), that discretion is guided by certain basic principles. Because striking a pleading is viewed as a drastic remedy, such motions are "generally disfavored." Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982). As one court has aptly observed: "striking a party's pleadings is an extreme measure, and, as a result, . . . '[m]otions to strike under Fed .R.Civ.P. 12(f) are viewed with disfavor and are infrequently granted.' Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977) (citing 5 Wright & Miller, Federal Practice and Procedure. Civil § 1380 at 783 (1969)). See also Resolution Trust Corp. v. Gibson, 829 F.Supp. 1103, 1106 (W.D.Mo.1993); 2 James Wm. Moore et al., Moore's Federal Practice § 12.37[1] (3d ed. 2000)." Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000). In practice, courts should exercise this discretion and strike pleadings only when those pleadings are both "redundant, immaterial, impertinent, or scandalous" and prejudicial to the opposing party. Ruby v. Davis Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001).
In this case, Moore's certificate of merit may ultimately be found to be wrong, in that expert testimony may be needed to sustain his claim. If Moore is incorrect in the assertion he has made, this claim will fail at a later stage of these proceedings. We cannot, however, at this time conclude that his certificate of merit is both "redundant, immaterial, impertinent, or scandalous" and prejudicial to the opposing party. Ruby v. Davis Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001). Therefore, this motion to strike should be denied, but Moore should recognize that he will be held to the election he has made in this certificate of merit to proceed without the benefit of any expert opinion when advancing this medical negligence claim.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motions to dismiss the plaintiff's complaint (Docs. 4 and 22) be GRANTED IN PART AND DENIED IN PART as follows:
First, Counts I and VI of the complaint which allege Eighth Amendment violations but separately seek prospective relief and damages should be consolidated for further proceedings.
Second, the motion to dismiss the institutional Eighth Amendment claims lodged against Correct Care Solutions, Inc. should be denied without prejudice.
Third, the plaintiff's claims for damages under the Pennsylvania constitution should be dismissed, but the plaintiff should be permitted to continue to seek declaratory and injunctive relief on these claims.
Fourth, the plaintiff's Fourteenth Amendment due process and equal protection claims should be dismissed.
Fifth, the motions to dismiss Moore's pendent state law medical negligence claims should be denied.
Sixth, the motion to strike Moore's certificate of merit in support of this state law medical negligence claim (Doc. 24) should be denied.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 6th day of March 2019.
S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge