Opinion
1:22-CV-00039-SPB
03-13-2023
WILLIAM PLUMMER, Plaintiff, v. WELLPATH, CORRECT CARE SOLUTIONS, DR. ROBERT MAXA, CHCA KIM SMITH, RNS GARY PRINKEY, DR BARRY EISENBERG, CRNP ANDREW LESLIE, RN ESSONNO, DR. DANIEL WECHT, DR. RICHARD WILLIAMSON, SUPERINTENDENT OVERMEYER, DORINA VARNER, ASSISANT KERI MOORE, JOSEPH SILVA, DIRECTOR OF HEALTH SERVICE; CRNP WILLIAM SUTHERLAND, SUPERINTENDANT DEREK OBERLANDER, Defendants,
OMNIBUS REPORT AND RECOMMENDATION ON DEFENDANTS' PENDING MOTIONS TO DISMISS/SUMMARY JUDGMENT ECF NOS. 84, 105, 109, 121, 143
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Introduction and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the pending motions to dismiss and for summary judgment were referred to the undersigned for a Report and Recommendation by the Honorable Susan Paradise Baxter. Upon review, it is respectfully recommended that the Defendants' motions to dismiss be GRANTED. It is further recommended that the federal claim be dismissed, with prejudice, and that the Court decline to exercise supplemental jurisdiction over the state-law claim, dismissing that claim without prejudice to it being refiled in the appropriate state court. Defendant Wecht's motion for summary judgment on the state-law claim should then be dismissed as moot.
II. Factual Allegations and Relevant Procedural History
Plaintiff William Plummer (“Plummer”) commenced this action on February 10, 2022, asserting federal civil rights claims under 42 U.S.C. § 1983, and state law against fourteen individual defendants and two corporate defendants. See ECF Nos. 1, 7. The individual defendants include employees of the Pennsylvania Department of Corrections (“DOC”), employees of the DOC's medical services contractor, and two independent Pennsylvania physicians. Plummer broadly alleges that all Defendants acted with deliberate indifference to his medical needs, thereby subjecting him to cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution.
In response to several motions to dismiss, Plummer filed an Amended Complaint, his operative pleading, on March 16, 2022. See ECF No. 68 (Amended Complaint). Plummer later moved to file a Second Amended Complaint. See ECF No. 119. That motion was denied, but Plummer's proposed amended pleading was docketed as a supplement to the operative complaint. See ECF No. 120 (Order); ECF No. 145 (Supplement). The Amended Complaint, and its supplement, are lengthy and set out the extensive medical care Plummer has received. These factual averments must be accepted as true for purpose of deciding the pending motions. See, e.g., Gaglialdi v. Fisher, 513 F.Supp.2d 457, 463 (W.D. Pa. 2007).
Plummer is currently incarcerated at SCI-Coal Township, but the events giving rise to this action occurred while he was housed at SCI-Forest. He suffers from “osteoarthritis, degenerative disc disease, two herniated disc[s], and spinal stenosis.” ECF No. 68, ¶ 2. Plummer alleges a “long history” of back pain, which he traces to a 2006 injury he sustained while exercising. Id., ¶ 23. Plummer contends that while incarcerated at SCI-Green, “he felt something slip in his lower back.” Id. On February 8, 2010, Plummer had an MRI, which revealed a “small diffuse disc bulge with a rightward predominance, mild facet arthrosis and moderate to severe right forminal encroachment at ¶ 3-L4. At ¶ 4-L5, [he] had mild bilateral facet osteophyte complex contributing to minimal central stenosis with mild bilateral forminal narrowing.” Id. at ¶ 25.
Plummer was released from SCI-Green in July of 2010. Id. at ¶ 57. While at liberty, he sought treatment for his back at the Albert Einstein Medical Center. Id. He received treatment for his back pain from physicians at that institution. Id. at ¶ 59. On October 15, 2013, Plummer was again arrested. Id. at ¶ 60. He began to seek treatment for his condition upon his reincarceration at SCI-Forest in 2015. Id. at ¶ 61. Indeed, Plummer acknowledges that he has “been seeking treatment for his chronic condition for (7) years, resulting in countless visits to the medical department at SCI Forest.” Id. at ¶ 69. The Amended Complaint relates years of medical history, which has been organized graphically in this chart:
(Image Omitted)
(Image Omitted)
(Image Omitted)
Based on this medical history, Plummer now brings claims alleging violations of the Eighth Amendment (Count I) and for “malpractice-negligence” under state law (Count II). See ECF No. 68, ¶¶ 148-156. He identified the following individuals and entities as defendants: Correct Care Solutions, WellPath, Barry Eisenberg, Andrew Leslie, Robert Maxa, and William Sutherland (collectively, “Medical Defendants”; Jeanne Essono, Keri Moore, Derek Oberlander, Overmeyer, Gary Prinkey, Joseph Silva, Kim Smith, and Dorina Varner (collectively, “DOC Defendants”); Daniel Wecht (“Wecht”) and Richard Williamson (“Williamson”). See ECF No. 68, ¶¶ 7-22. All Defendants have filed motions to dismiss. ECF No. 84 (Wecht); ECF No. 105 (Williamson); ECF No. 109 (Medical Defendants); ECF No. 121 (Medical Defendants). Defendant Wecht has also filed a motion for summary judgment premised on Plummer's failure to file a certificate of merit, as required by Pennsylvania law. ECF No. 143.
Plummer opposes the motions. He has filed numerous documents in opposition. These include ECF Nos. 100,101, 102, and 103 in opposition to Defendant Wechf s motion to dismiss; ECF Nos. 153, 154, 156, and 157 in opposition to the DOC Defendants' motion to dismiss; and ECF No. 163 in opposition to the Medical Defendants' motion to dismiss. Additionally, Plummer filed ECF No. 164, which he entitled a “Rebuttal Motion to Defendants Motion for Partial Summary Judgment.” In actuality, this is a response in opposition to Defendant Wecht's motion for summary judgment on the state-law claims. Plummer did not respond to Defendant Williamson's motion to dismiss.
At ECF No. 163, Plummer filed a “Response to Defendants' Answer and Affirmative Defenses ... to the First Amended Complaint,” which addresses several of the arguments raised by the Medical Defendants in their motion to dismiss. A “Response” to an answer and/or affirmative defenses is untethered from the docket because the Medical Defendants have not filed an Answer, opting instead to move for dismissal. However, because this documents addresses several arguments propounded by the Medical Defendants in their motion to dismiss, the undersigned has construed and considered it as a response in opposition to the Medical Defendants' motion. The Court notes Plummer's additional filing of a “Response to Wellpath Defendants' Reply in Support of Motion to Dismiss.” See ECF No. 169.
On November 4,2022, the undersigned granted Plummer's motion for an extension of time to secure a certificate of merit in support of his state law claims of medical malpractice and negligence. See ECF No. 151. On November 30, 2022, Plummer filed several documents purporting to be certificates of merit. See ECF No. 165-1-8. His request for additional time to secure further certificates of merit was denied. See ECF No. 166 (motion); ECF No. 167 (Order).
III. Standards of Decision
A. Motions to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12 (b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[ ] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12 (b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
Although a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. At 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret Sys. v. The Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' 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.'Burtch v. Milb erg Factors, Inc., 662 F.3d212, 221 (3d Cir. 2011) (emphasis added) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). See also Ceasar v. Varner, 2022 WL 9491877, at *2 (W.D. Pa. Oct. 14,2022). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Plummer is proceeding pro se, the allegations in the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). See also Sause v. Bauer, 585 U.S. ___, 138 S.Ct. 2561, 2563 (2018). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
B. Motions for Summary Judgment
As noted above, Defendant Wecht has moved for summary judgment. The standard for resolving such motions is well-known. Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283,1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartier, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
IV. Discussion and Analysis: the Federal Claims
Plummer brings and Eighth Amendment claims pursuant to 42 U.S.C. § 1983 and a state law medical negligence claim. The federal claim will be reviewed first. Count I of the Amended Complaint broadly alleges that all Defendants violated his rights under the Eighth Amendment to be free from cruel and unusual punishment through their deliberate indifference to his serious medical needs. See ECF No. 68, ¶¶ 148-150. He seeks redress of this violation under § 1983. “Section 1983 is not a source of substantive rights,” but is merely a means through which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)).
“Section 1983 imposes civil liability upon any person who, acting under color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005). Thus, a plaintiff asserting a claim under § 1983 must allege facts to show two fundamental elements: (1) a deprivation of a federally protected right that was (2) committed by a person acting under color of state law. See Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). In addition, a plaintiff must plead the personal involvement of each individual defendant because “individual liability [under § 1983] can be imposed only if the state actor played an ‘affirmative part' in the alleged misconduct, either through personal direction of or actual knowledge and acquiescence in the deprivation.” Monche v. Grill, 2022 WL 15523082, at * 11 (M.D. Pa. Oct. 27, 2022) (citation omitted). A plaintiffs “mere hypothesis that an individual defendant had personal knowledge of or involvement in depriving the plaintiff of his rights” does not establish that defendant's personal involvement. Id.
Eighth Amendment deliberate indifference to medical care claims brought under § 1983 have their own unique elements that must be supported by the facts alleged in the complaint. For the delay or denial of medical care to rise to a violation of the Eighth Amendment's prohibition against cruel and unusual punishment, the facts must demonstrate “(1) that defendants were deliberately indifferent to [the inmate's] medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate indifference requires proof that the official “knows of and disregards an excessive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference has been found where a prison official: “(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed or recommended treatment.” Rouse, 182 F.3d at 197.
However, deference is given to prison medical authorities in the diagnosis and treatment of patients, and courts “disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment... (which) remains a question of sound professional judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). That is to say, mere disagreements as to the proper medical treatment do not support a claim of deliberate indifference under the Eighth Amendment. Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d. 326, 346 (3d Cir. 1987). Similarly, allegations of negligent treatment or medical malpractice do not trigger constitutional protections. Estelle v. Gamble, 429 U.S. (1976); see also Pierce v. Pitkins, 520 Fed.Appx. 64, 66 (3d Cir. 2013). Deliberate indifference can also be found “where the prison official persists in a course of treatment in the face of resultant pain and risk of permanent injury.” See McCluskey v. Vincent, 505 Fed.Appx. 199, 202 (3d Cir. 2012) (internal quotation marks and citation omitted). “A medical need is serious if it ‘has been diagnosed by a physician as requiring treatment,' or if it ‘is so obvious that a lay person would easily recognize the necessity for a doctor's attention.'” See Mitchell v. Beard, 492 Fed.Appx. 230, 236 (3d Cir. 2012) (quoting Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (additional citation omitted).
The seriousness of Plummer's condition is assumed. It is generally recognized that back pain can be particularly painful, debilitating, and pernicious to resolve. However, the averments contained in Plummer's Amended Complaint and its supplement reveal that he received significant medical care for his condition. Thus, the question before the Court is whether that care, to the varying extent provided by each Defendant, exhibited deliberate indifference to his serious medical condition.
A. The DOC Defendants' Motion to Dismiss should be granted and Plummer's claims against those defendants should be dismissed with prejudice.
The DOC Defendants raise arguments that are specific to each DOC Defendant in support of their motion to dismiss at ECF No. 127.
1. Plummer fails to state a claim against Defendant Silva.
In his Amended Complaint, Plummer identifies “Director of Health Services Joseph Silva” as a Defendant. See ECF No. 68, p. 1. Silva is listed in the caption of the Amended Complaint and mentioned again in its “Prayer for Relief, (id., pp. 1,19, ¶ 2), but nowhere else. The same is true in Plummer's Supplement: Silva is mentioned in the caption and again in connection to the relief sought but nowhere else in the document. See ECF No. 147, p 1; p. 21, ¶ 2. Because a named defendant must be shown through the complaint's allegations to have been personally involved in the events or occurrences on which a plaintiff s claims are based, and because Plummer's pleadings lack any averments of fact concerning Defendant Silva, he is entitled to dismissal. See, e.g., Ortiz v. Alexander, 2021 WL 1093633, at *7 (M.D. Pa. Mar. 22, 2021); Atanacio-Reyes v. Durand, 2021 WL 799423, at *4 (W.D. Pa. Feb. 8, 2021).
2. Plummer fails to state a claim against Defendants Overmeyer, Oberlander, Varner, and Moore.
Next, Plummer attempts to bring claims against three Defendants based on their involvement in the DOC's grievance process. Plummer identifies Overmeyer as “the Superintendent of SCI Forest who responded to several inmate grievances submitted by Mr. Plummer between 2015 and 2020” and Oberlander as “the current Superintendent at SCI Forest who replaced Supt. Overmeyer and who responded to several inmate grievances submitted by Mr. Plummer.” ECF No. 68, ¶¶ 18-19. He alleges that Varner “is the Chief Grievance Officer who oversees all final grievances” Id., ¶ 20. According to the Amended Complaint, Moore is “an assistant for the Chief Grievance officer who oversaw and signed off on several final grievances.” Id., ¶ 21. No other allegations are made against these Defendants.
Thus, Plummer's claims against these four Defendants are based solely on their participation in the DOC's grievance process. Such claims are not viable because “participation in the grievance process does not, without more, establish involvement in the underlying constitutional violation.” Pumba v. Miller, 2022 WL 11804036, at *6 (E.D. Pa. Oct. 20, 2022) (citing Curtis v. Wetzel, 763 Fed.Appx. 259, 263 (3d Cir. 2019) (“The District Court properly determined that Defendants ... who participated only in the denial of [the plaintiff s] grievances-lacked the requisite personal involvement [in the conduct at issue].”). Therefore, the claims against Overmeyer, Oberlander, Varner, and Moore should be dismissed.
3. Plummer fails to state a claim against Defendant Essono.
According to Plummer, Essono is “a nurse at SCI Forest who participated in the assessment of Mr. Plummer.” ECF No. 68, ¶ 17. Essono is not mentioned in the remainder of the Amended Complaint. Plummer's Supplement, however, states additional allegations against her:
On November 26, 2021, the plaintiff was seen by CRNP Jean Essono, at a sick call appointment for the severe pain in Mr. Plummer's lower back. CRNP Essono, also an employee at SCI Forest medical department was in possession of the plaintiffs medical records and knew that Mr. Plummer suffered from osteoarthritis, degenerative disc disease, two herniated discs, spinal
stenosis and various diagnosis of nerve root compression and instead of CRNP Essono putting in a consult for Mr. Plummer to see a different Neurosurgeon or an Orthopedic surgeon, due to the contradiction in Dr. Wecht's finding of “no evidence of new root compression” when the MRI report from 1/24/2020, clearly states that the L3-L4, nerve root compression, CRNP Essono, intentionally ignored clinical signs of Mr. Plummer's sufferings.ECF No. 147, ¶ 140. In essence, Plummer claims that upon assessing his condition, Essono was deliberately indifferent in failing to refer him to an outside neurologist or orthopedist. This allegation is insufficient to state a constitutional claim.
The Court of Appeals recently explained that:
to succeed on an Eighth Amendment claim for inadequate medical care, “a plaintiff must make (1) a subjective showing that ‘the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that ‘those needs were serious.'” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Prison officials can “act deliberately indifferent to a prisoner's serious medical needs by ‘intentionally denying or delaying access to medical care or interfering with the treatment once prescribed.'” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). However, “mere disagreement as to the proper medical treatment” is insufficient to support an Eighth Amendment claim. Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).Williams v. Clark, 2022 WL 1402052, at *2 (3d Cir. May 4, 2022). Here, Plummer asserts only his disagreement with Essono's decision not to provide a referral to another physician, despite her awareness of his condition. That is not an allegation of deliberate indifference. See Pearson, 850 F.3d at 535 (“[M]ere disagreement as to the proper medical treatment does not support a claim of an eighth amendment violation.”) (quoting Monmouth Cty. Corr. Inst., 834 F.2d at 346). “[T]here is a critical difference between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.” United States ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979). Additionally, although deliberate indifference can be demonstrated by a defendant's intentional delay or denial of access to medical care for non-medical reasons, Plummer has not made any allegation that Essono declined or delayed referring him to an outside specialist for non-medical reasons. See Estelle, 429 U.S. at 103-105; Pearson, 850 F.3d at 537. The allegation that Essono “assessed” Plummer during a “sick call” appointment is one of responsiveness to Plummer's medical needs, not an denial or delay thereof. See, e.g., Robinson v. Corizon Health, Inc., 2019 WL 448900, *9 (E.D. Pa. Feb. 5, 2019) (allegations of denial of medical care were actually indications of defendant's responsiveness to medical concerns).
Accordingly, Plummer's deliberate indifference claims against Essono should be dismissed.
4. Plummer's claims against Defendants Smith and Prinkey should be dismissed.
Plummer's Amended Complaint alleges that Smith “is the Correctional Health Care Administrator at SCI Forest.” ECF No. 68, ¶ 11. Prinkey is identified as “the Registered Nurse Supervisor at SCI Forest.” Id., ¶ 12. Specific allegations against these two defendants are sparse and require some sorting.
Starting with Smith, the Court observes that, although identified as a defendant, neither the Amended Complaint nor its Supplement states any factual allegations against her beyond noting her position as “Correctional Health Care Administrator.” Id., ¶ 11; see also ECF No. 147, ¶ 11. This failure to allege sufficient facts, to state plausible claims, and/or to identify specific constitutional violations leaves Smith with no meaningful information as to the nature of Plummer's claims against her and violates Federal Rule of Civil Procedure 8. See, e.g., Garrett v. Wexford Health, 938 F.3d 69, 91 (3d Cir. 2019) (noting that under Rule 8, a pleading cannot be “so vague or ambiguous that a defendant cannot reasonably be expected to respond.”). Identifying Smith's position or title is insufficient to support her personal involvement in the alleged wrongs Plummer alleges in his pleadings. As noted, a defendant in a § 1983 action “must have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Saisi v. Murray, 822 Fed.Appx. 47, 48 (3d Cir. 2020) (quoting Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations removed)). It is Plummer's burden to “show that each and every defendant was ‘personally] involve[d]' in depriving him of his rights.” Kirkv. Roan, 2006 WL 2645154, at *3 (M.D. Pa. Sept. 14, 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). Allegations that broadly implicate a defendant without delineating individual conduct are legally insufficient. See Van Tassel v. Piccione, 608 Fed.Appx. 66, 6970 (3d Cir. 2015). See also Trainor v Wellpath, 2021 WL 3913970, at *7 (W.D. Pa. Sept. 1, 2021).
As to Prinkey, Plummer's Amended Complaint does contain a bit more. Prinkey is identified as the “Registered Nurse Supervisor” at SCI-Forest. ECF No. 68, ¶ 12. He alleges, for example, that Prinkey responded to Plummer's “complaints that he was not receiving adequate medical attention.” Id. ¶ 81. Plummer further pleads that “On 12-3-2015 ... Prinkey advised Plummer to purchase Ibuprofen, Actaminphenl (“Tylenol”), or muscle rub from the prison's commissary.” ECF No. 68. ¶ 71. Then, on June 23, 2016, Plummer alleges that Prinkey stated “the MRI of the lumber (sic) spine of February 2010, showed minimal central stenosis at ¶ 3-L4 of the spine, but because the osteophytes (bone spurs) at this level predominate on the right side, a moderate to severe right foraminal encroachment on the spinal nerves exists, resulting in numbness and tingling and some weakness in the lower extremities.” Id., ¶ 81. Plummer then claims that, together with Defendant Maxa, Prinkey determined “there is no indication further testing or consultation is needed.” Id., ¶ 87.
Two claims can be inferred from these allegations. First, Plummer's reference to Prinkey's responding to his “complaints” constitutes an attempt to impose liability based on Prinkey's involvement in responding to Plummer's grievances. Such a claim fails because “the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Trainor v. Wellpath, 2021 WL 3913970, at *9 (W.D. Pa. Sept. 1, 2021); see also Stuart v. Lisiak, 645 Fed.Appx. 197, 200 (3d Cir. 2016) (holding that a prison nurse lacked personal involvement when she declined to intervene in an inmate's treatment, despite receiving the inmate's grievance claiming that the treatment was deficient); Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”). Courts have routinely dismissed civil rights claims under § 1983 against prison officials whose only knowledge of the alleged violation stemmed from their participation in the grievance process. See, e.g., Hoopsick v. Oberlander, 2020 WL 5798044, at *2 (W.D. Pa. Sept. 29, 2020) (defendant upholding denial of plaintiffs grievance); Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (senior prison officials' participation in administrative appeal process); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (no personal involvement under § 1983 “[i]f a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred.”). Likewise, in this case, Plummer's claim against Prinkey fails to the extent it is based on the Prinkey's involvement in the grievance process.
Second, Plummer's allegation that Prinkey determined no “further testing or consultation is needed” could be interpreted as a claim of deliberate indifference under the Eighth Amendment. Again, as pleaded, this claim fails. Although not entirely clear, Plummer appears to allege that his medical care should have been handled differently. See, e.g., Liz v. Pa. Dept. Corr., 2022 WL 4120264, at *7 (E.D. Pa. Sept. 9, 2022) (plaintiffs complaint appears to allege his different opinion as to his medical care). However, a difference of opinion as to the proper medical care does not constitute deliberate indifference. See Lenhart v. Pennsylvania, 528 Fed.Appx. Ill. 115 (3d Cir. 2013) (stating that mere disagreement as to proper medical care do not raise a constitutional claim). That is, when a prisoner receives some medical care and a dispute arises about the adequacy of such treatment, “district courts should not second guess medical judgments and ... constitutionalize claims which sound in tort law.” U.S. ex rel. Walker v. Fayette Cty. Pa., 599 F.2d 573, 575 n.2 (3d Cir. 1979) (citation omitted). And particularly on point for Plummer's allegations against this Defendant, “the question whether ‘additional diagnostic techniques or forms of treatment... [are necessary] is a classic example of a matter for medical judgment... and does not represent cruel and unusual punishment' under the Eighth Amendment. Liz, 2022 WL 4120264 at *7 (quoting McCluskey v. Vincent, 505 Fed.Appx. 199, 203 (3d Cir. 2012) (internal quotation marks omitted). Accordingly Plummer's purported Eighth Amendment claim against Prinkey should be dismissed.
B. The Medical Defendants Motion to Dismiss should be granted and Plummer's claims against those Defendants should be dismissed with prejudice.
The Medical Defendants have moved to dismiss Plummer's claims against them or in the alternative, for summary judgment. See ECF No. 109. They raise several grounds for relief, including that many of Plummer's claims are barred by the statute of limitations, that he has failed to allege facts sufficient to state a claim under the Eighth Amendment, that he failed to allege facts to support a Monell claim against Wellpath/Correct Care, and that Plummer has failed to exhaust his administrative remedies as to any claim against Eisenberg. See ECF No. 110, generally.
1. Plummer fails to allege facts to support a Monell claim against Corporate Defendants Wellpath and Correct Care.
Plummer attempts to state Monell claim against Wellpath and Correct Care. That is, he seeks to hold these corporate organizations liable for civil rights violations. See, e.g., Dixon v. Pennsylvania Dep7 Corr., 2022 WL 3330142, at *7 (M.D. Pa. Aug. 11, 2022). The standards for doing so are “both exacting and well-settled.” Id. In Monell v. Dep 7 of Social Services, the Supreme Court held that a municipality could be liable under Section 1983 “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts many fairly be said to represent official policy, inflicts injury that the government as an entity is responsible ....” 436 U.S. 658, 694 (1978).
Private corporations like Wellpath and Correct Care, which provide medical services under a contract with the DOC, may also be found liable under Section 1983. See, e.g., Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 n.4, 583 (3d Cir. 2003) (“Monell applies to other private organizations faced with liability under § 1983.”). But such private corporations may only be liable under Monell if they had a policy or custom causing its agents to deprive care to the level of a constitutional violation. Johnson v. City of Philadelphia, 975 F.3d 394, 403 (3d Cir. 2020) (citation omitted). Thus, there are two ways Plummer could hold Wellpath and Correct Care liable: he must allege either that these Defendants maintained a policy or custom which led to his constitutional injury, or that they failed to train, supervise, or discipline their employees “reflect[ing] a deliberate or conscious choice” that caused his constitutional injury. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citations omitted). Plummer's Amended Complaint fails to allege facts to support either theory.
The Amended Complaint alleges that medical treatment was “withheld ... for nonmedical reasons, such as to evade cost associated with providing adequate treatment.” ECF No. 68, ¶ 70. In support, he alleges that Defendant Eisenberg told him that the medical department at SCI-Forest “will do all they can to avoid paying for surgery.” Id., ¶ 79. Plummer claims that Wellpath and Correct care had a policy of managing his pain in a manner that is “noneffective” and designed to favor the “least costly course of treatment.” Id., ¶ 137.
Under the first theory, Plummer must allege an “official proclamation, policy or edict by a decision maker possessing final authority to establish municipal policy” or any “given course of conduct so well-settled and permanent as to virtually constitute law.” Forrest, 930 F.3d at 105-106. The second theory requires Plummer to allege that Wellpath and Correct Care's “failure or inadequacy” amounted to deliberate indifference under the Eighth Amendment. Id. at 106. Both of these theories require the identification of a final policy maker. See Presbury v. Correct Care Solutions, Inc., 2022 WL 1787333, at *6 (E.D. Pa. May 31, 2022). Here, Plummer's Amended Complaint fails to identify any final policy maker, let alone any policy, that directly caused his harm. His conclusory and unsupported allegations that these corporate defendants had a policy of “cost savings” or “cost containment,” without more, are insufficient to state a claim for Monell liability. Thus, to the extent Plummer's Amended Complaint asserts a Monell claim, it is recommend that such a claim be dismissed.
2. The claims against Medical Defendants Maxa, Eisenberg, Leslie, and Sutherland should be dismissed as barred by the applicable statute of limitations.
The Medical Defendants next argue that Plummer's claims should be dismissed because they are facially barred by the statute of limitations. See ECF No. 110, pp. 15-18. The statute of limitations is typically an affirmative defense raised in an answer to a complaint, not in a motion to dismiss. See Federal Rule of Civil Procedure 8(c)(1). In this Circuit, however, a statute of limitations defense can be raised in a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6) if on the face of the complaint the claims have not been brought within the appropriate period of time. See Silla v. Holdings Acquisition Co. LP, 2021 WL 4206169, at *1 (3d Cir. 2021) (quoting Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)). Claims brought pursuant to 42 U.S.C. § 1983 are subject to the most analogous state statute of limitations, which in Pennsylvania is the two-year statute of limitations for personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 266-67 (1985); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 457 n. 9 (3d Cir. 1996) (citing 42 Pa. C.S. § 5524). See also Wallace v. Kato, 549 U.S. 384 (2007) (for § 1983 claims, “the length of the statute of limitations ... is that which the State provides for personal-injury torts.”) (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989) (in each state, § 1983 claims are governed by the state's “general or residual statute for personal injury actions”)). A cause of action accrues for statute of limitations purposes when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp, of Delaware. Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also Nelson v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995). “The determination of the time at which a claim accrues is an objective inquiry,” concerned with “what a reasonable person should have known.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). According to the prison mailbox rule, Plummer's original Complaint was filed on February 2, 2022, the date he signed it. See ECF No. 7; see also Roten v. Klemm, 2022 WL 2073044, at *3 (W.D. Pa. June 9, 2022) (applying prisoner mailbox rule). Given this, the two-year statute of limitations bars any claims relating to events that predate February 2, 2020.
Plummer's Amended Complaint is replete with allegations of tortious conduct that occurred more than two years before he commenced this action. For example, Plummer's claims against Defendant Eisenberg are based on treatment he received in 2016. See ECF No. 68, ¶¶ 73-79. Defendant Maxa, according to the Amended Complaint, also treated Plummer in 2016, as well as in 2017 and between March of 2019, and January of 2020. Id., ¶¶ 82, 85-87; 106, 129. Plummer makes allegations against Defendant Leslie that are premised on an interaction the two had in March of 2018 and against Defendant Sutherland from October of 2018. Id., ¶¶ 111, 113. Thus Plummer did not commence his action within the two year limitations period applicable to his claims against the Medical Defendants. But this does not end the Court's inquiry
The statute of limitations for § 1983 actions is tolled while the prisoner exhausts the administrative remedies available to him because such exhaustion is mandatory under the Prison Litigation Reform Act. Wisniewski v. Fisher, 857 F.3d 152,158 (3d Cir. 2017) (citing Pearson v. Sec 'y Dep't of Corr., 115 F.3d 598, 603 (3d Cir. 2015)). A plaintiff is not deemed to have exhausted his administrative remedies until a final appeal decision on his grievance. See Fennell v. Cambria Cty. Prison, 607 Fed.Appx. 145, 149 (3d Cir. 2015) (“proper exhaustion” means a prisoner's completion of the administrative review process). Thus, the statute of limitations on Plummer's claims was tolled until any appeal taken from the denial of his grievance was concluded. See Major v. Halligan, 2021 WL 6283944, at *6 (W.D. Pa. Nov. 17, 2021). Plummer avers that he “has exhausted the inmate grievance system regarding the above mentioned matters ...” Id., ¶ 147.
The Medical Defendants have attached Plummer's grievance record to their motion. See ECF No. 110-1. A review of Plummer's grievance history informs this analysis and is summarized as follows:
(Image Omitted)
Demonstrably, several of these grievances fail to implicate any Medical Defendant. For example, although mentioned in grievances, McKeel, Marlowe, List, Lameroux, Federko, and Dellefiore Orthopedic are not defendants in this case. Thus, the pendency of those grievances do not toll the statute of limitations for claims against the Medical Defendants.
However, several of the grievances do implicate certain Defendants. The statute of limitations for any claim against Medical Defendant Maxa related to the events described in Grievance 635648 was tolled for 343 days. Accounting for this and assuming not time accrued on Plummer's claim against Maxa before he filed his grievance, the statute of limitations on that claim expired on January 10, 2018. Maxa is also identified in Grievance 792813. The statute of limitations for claims stemming from that grievance was tolled for 163 days, meaning any lawsuit based on those events needed to be filed by February 9, 2020. Claims against Medical Defendant Sutherland related to the events set out in Grievance 679745 were tolled for 105 days. Accordingly, Plummer had to file any claims against Sutherland by December 22, 2017. Similarly, claims against Defendant Leslie should have been filed either by May 3, 2020, (relating to Grievance 790330) or by January 28, 2022 (relating to Grievance 921481). As noted above, Plummer filed his complaint against these Defendants on February 2, 2022. See ECF No. 7. Thus, his claims against Medical Defendants Maxa, Leslie, and Sutherland are barred by the two-year statute of limitations and should be dismissed.
This leaves Defendant Eisenberg. Upon review of the grievance record, it appears that Plummer did not grieve any actions or omissions relating to this Defendant. The Amended Complaint avers that Eisenberg denied Plummer's request for an MRI as being “too expensive” on February 11, 2016. See ECF No. 68, ¶¶ 73-74. Also, in March of 2016, Plummer faults Eisenberg for not permitting him to be seen by a neurologist or neurosurgeon. Id., ¶¶ 75-76. And finally, Plummer charges that in June of 2016, Eisenberg directed him to purchase ibuprofen for his back pain and told Plummer that SCI-Forest would do all they could to avoid paying for surgery. Id., ¶¶ 77-79. Nothing in the grievance record tolls Plummer's claims against Eisenberg. Therefore, he would have had to file an action against this defendant by June of 2018, at the latest. Given that his Complaint was not filed for another four years, any claims against Eisenberg are barred by the statute of limitations and should be dismissed.
Plummer argues in opposition that he did not know of his injury until he received some of his medical records on February 25, 2021. ECF No. 156, p. 8. Thus, he invokes the “discovery rule” to further toll his claims and contends the statute of limitations began to run on that date. Id. This argument is misplaced. As noted previously, the statute of limitations for actions brought under 42 U.S.C. § 1983 is governed by the personal injury tort law of the state where the cause of action arose-in this case, Pennsylvania. Kach, 589 F.3d at 634. Under Pennsylvania law, a plaintiff must bring a § 1983 claim within two years of when that claim accrued. 42 Pa. Cons. Stat. § 5524(2). A §1983 claim accrues, and such a claim accrues “when the plaintiff knew or should have known of the injury upon which its action is based.” Kach, 589 F.3d at 634 (quoting Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir.1998)). More generally, a cause of action has accrued when “the last event necessary to complete the tort” takes place, “usually at the time the plaintiff suffers an injury.” Id. Once an injury occurs and its cause is known (or is reasonably knowable), a cause of action accrues even if “the full extent of the injury is not known or predictable.” Id. at 634-35; see also Brown v. Beard, 2014 WL 176579, at *1 (E.D. Pa. Jan. 16, 2014). Although the medical records may have provided more information as to the “full extent of the injury,” Plummer acknowledges in his Amended Complaint that he began complaining about his medical treatment for that injury back in 2015, if not earlier. See, e.g., ECF No. 68, ¶71. Thus, it is not disputed that Plummer knew he was injured and knew the cause of his injury even though the full extent of his injuries “may not have been known or predictable at that time.” Brown, 2014 WL 176579, at *1 (quoting Karch, 589 F.3d at 634035)). Because Plummer's filing of multiple grievances concerning the treatment he was receiving for his back condition confirms that he knew of his injury and believed it was caused or aggravated by the acts or omissions of medical personnel, his deliberate indifference claims against the Medical Defendants accrued before February 2, 2020, and Plummer did not file this action until February 2, 2022, this claim against them is barred by the statute of limitations.
For example, a grievance provided by Plummer indicates that he complained of the treatment he was receiving for his back pain as far back as November 23, 2015. See ECF No. 156-3, p. 1. There, Plummer complained about the treatment he was receiving for his “bulging disc” and about “pain in my back, legs, and feet.” Id. He stated that “this pain is getting to where every step I take I feel pain.” Id. By way of relief, Plummer asked for “proper medical treatment,” “surgery,” and “thicker insoles or special sneakers to help with cushion.” Id. The complaints contained in his 2015 grievance are similar, if not identical, to those he now raises in this action.
3. The Continuing Violation Doctrine is inapplicable.
Plummer's Amended Complaint recounts in detail his continuing back pain and related problems; a condition that has persisted over many years. He argues that the “continuing violation doctrine”-a narrow and equitable exception to the statute of limitations-should apply here, thereby permitting Plummer to yet recover on these otherwise time-barred actions. See, e.g., ECF No. 163, p. 2. The doctrine provides that “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Loc. 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991). Here, this doctrine is potentially applicable because the claims against one Medical Defendant-Leslie-occurred within the two-year limitations period. See ECF No. 147, ¶ 139 (allegations against Leslie, dated March 20, 2021).
Courts apply a three-factor analysis to assess the application of the continuing violation doctrine to a defendant's alleged conduct:
(1) subject matter jurisdiction-whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency-whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence-whether the act had a degree of permanence which should trigger the plaintiffs awareness of and duty to assert his/her rights ....”Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). Additionally, the Court of Appeals for the Third Circuit has held that “in order to benefit from the doctrine, a plaintiff must establish that the defendant's conduct is ‘more than the occurrence of isolated or sporadic acts.'” Id. (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995)). That is, the distinction between “continuing violations” and “discrete acts” must be carefully considered. See O 'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006). If a plaintiff s claims are based on discrete acts which give rise to causes of action that can be brought individually, then the continuing violations doctrine does not serve to extend the applicable statute of limitations periods. Id. at 128-29. “[T]ime-barred claims cannot be resurrected by being aggregated and labeled continuing violations.” O'Connor, 44 F.3d at 129. See also Anders v. Bucks Cnty., 2014 WL 1924114, at *4 (E.D. Pa. May 12, 2014). Thus, the continuing violations doctrine applies when a defendant's actions are not individually actionable, but “only the cumulative effect of those acts creates a cause of action.” Id. In applying the doctrine to a § 1983 claim, the Supreme Court
established a bright-line distinction between discrete acts, which are actionable, and acts which are not individually actionable but may be aggregated to make out a ... claim. The former must be raised within the applicable limitations period or they will not support a lawsuit. The latter can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period.O'Connor, 440 F.3d at 127 (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002)).
“It is thus a doctrine not about a continuing, but about a cumulative, violation. A typical case is workplace harassment on grounds of sex. The first instance of a coworker's offensive words or actions may be too trivial to count as an actionable harassment, but if they continue they may eventually reach that level and then the entire series is actionable. If each harassing act had to be considered in isolation, there would be no claim even when by virtue of the cumulative effect of the acts it was plain that the plaintiff had suffered actionable harassment.” 3 Sheldon H. Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 § 9:31 (2013). See also Anders, 2014 WL 1924114, at *4 n.4.
Here, Plummer's § 1983 claim against the Medical Defendants could be considered an aggregation of the following actions: (1) Eisenberg's failure in 2016 to order an MRI and refusal to send Plummer to an outside specialist because it was “too expensive;” (2) Eisenberg's prescription of “over the counter” pain medication to treat Plummer's symptoms; (3) Maxa's determination that Plummer was showing “no signs of acute injury;” (4) Maxa's refusal to provide Plummer with a wheelchair in 2017; (5) Leslie's prescription of gabapentin in 2018; (6) Sutherland's prescription of prednisone in 2018; (7) Leslie's 2021 notice to Plummer that he would not be seen by an “arthritis expert” as recommended by Dr. Wecht; and (8) Essono's failure to act on Plummer's request to be seen by a neurosurgeon. See ECF No. 68, generally.
So aggregated, however, these amount to discrete, isolated events by separate defendants which are “not appropriately linked to some larger scheme to deny [Plummer] medical care.” See Ozoroski v. Maue, 460 Fed.Appx. 94, 97 (3d Cir. Jan. 4, 2012). Put another way, Plummer's allegations concern sporadic, episodic, and varied treatment rendered periodically by various Medical Defendants. For example, Plummer's claim against Maxa is based on a consultation in July of 2016, wherein Plummer could not identify the “exact location of his pain,” and a consultation a year later after Plummer fell. See ECF No. 68, ¶¶ 82, 86, 106. Further, Plummer filed grievances against Maxa in February of 2016. Maxa's conduct was thus “sufficiently permanent to trigger [Plummer's] awareness of and duty to assert his ... rights.” Ozoroski, 460 Fed.Appx. at 97 (citing Cowell, 263 F.3d at 292). Nevertheless, Plummer waited until 2022 to bring suit again Maxa.
Plummer's allegations against Defendant Eisenberg implicate treatment sessions that occurred in February, March, and June of 2016. Id., ¶¶ 74, 76, and 77. No grievances were filed against Eisenberg and Plummer waited until 2022 to sue this Defendant. Leslie and Sutherland's involvement was also discrete, not occurring until years later-2018-and then, only on two distinct occasions. See id., ¶¶ 111,113. Plummer appears not to have grieved the actions or inactions of these Defendants. Instead, he waited four years to file suit against them. Thus, Plummer's allegations against the Medical Defendants cannot be saved by the continuing violation doctrine and should be dismissed as untimely.
One lone allegation against Defendant Leslie falls within the applicable statute of limitations. Plummer contends that on March 20, 2021, he saw Leslie and that during the consultation, Leslie informed Plummer of the decision not to follow through with the recommendations made by Dr. Wecht. See ECF No. 147, ¶ 139. Although filed within the requisite two-year period, any Eighth Amendment claim based on this allegation fails. Plummer's allegation against Leslie amounts to nothing more than a difference of medical opinion, which is not actionable under the Eighth Amendment. Prisoners do not have the right to choose their medical treatment and their disagreement with a prison medical professional's judgment or a difference of medical opinion between two physicians does not amount to an Eighth Amendment violation because “there may ... be several acceptable ways to treat an illness.” See Lasko v. Watts, 373 Fed.Appx. 196,203 (3d Cir. 2010); White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
3. Alternatively, Plummer's allegations against the Medical Defendants fail to state a claim under the Eighth Amendment.
Alternatively, even if the Court were to conclude that Plummer's claims are not time barred, they fail to state a claim under the Eighth Amendment. As set out previously, Plummer received years of care, going back to February of 2016, when he saw Eisenberg for the first time. By Plummer's own admission, he was seen by the Medical Defendants, prescribed treatment and medication (both over-the-counter and prescription), given physical therapy, and referred to out-of-facility physicians. The years of medical history recounted in the Amended Complaint demonstrates substantial care. Where “a prisoner has received some amount of medical treatment, it is difficult to establish deliberate indifference, because prison officials are afforded considerable latitude in the diagnosis and treatment of prisoners.” Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (citing Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993)). And Plummer's allegations that the Medical Defendants failed to follow the recommendations likewise does not state a claim of deliberate indifference. A prisoner's disagreement with the medical staff's professional judgment, or a difference of medical opinion between two physicians, does not state an Eighth Amendment claim. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
Thus, Plummer's claims against the Medical Defendants fail to state a violation of the Eighth Amendment and should be dismissed.
C. Section 1983 Claims Against Individual Defendants Wecht and Williamson
Doctors Wecht and Williamson have each moved to dismiss Plummer's claims against them. See ECF Nos. 84 (Wecht) and 105 (Williamson). Plummer identifies Williamson as “a Neurosurgeon who has several offices, including one located in Grove City and another in Mercer County, Pennsylvania. He participated in the assessment of Mr. Plummer.” ECF No., 68, ¶ 15. Wecht is alleged to be a “Neurosurgeon who works for UPMC-Pittsburgh” who also assessed Plummer. Id., ¶ 16. For the reasons stated below, these motions should be granted the claims against these Defendants should be dismissed.
1. The Eighth Amendment claims against Wecht and Williamson fail because neither is alleged to be a state actor, as required by Section 1983.
Only state actors can be subject to Section 1983 liability. See 42 U.S.C. § 1983; Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Wecht and Williamson, as averred in the Amended Complaint, are private physicians; not employees of the DOC, Wellpath, or Correct Care.
Plummer alleges that he was seen at Williamson's Grove City, Pennsylvania, office; not at the prison. See ECF No. 68, ¶ 95. Plummer further pleads that Williamson acted more as an outside, consultative physician who produced “reports” to the prison medical department. See, e.g., id. at ¶¶ 109, 118, 120, and 123. Thus, Williamson cannot be considered a state actor. Additionally, Plummer has not filed a response in opposition to Williamson's motion and, thus, the motion is unopposed. See, e.g., Robison v. Sutter, 2022 WL 2656793, at *2 (W.D. Pa. June 6, 2022), report and recommendation adopted, 2022 WL 2657214 (W.D. Pa. July 8, 2022); see also Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1992) (explaining that if a party represented by counsel fails to oppose a motion to dismiss, the district court may treat the motion as unopposed and subject to dismissal without a merits analysis). Accordingly, Williamson's motion to dismiss is meritorious and apparently uncontested.
As to Wecht, the Amended Complaint specifically identifies him as an employee of UPMC-Pittsburgh; not the DOC or Wellpath/Correct Care. Thus, Plummer fails to allege any facts to support that Wecht is a state actor or that the private medical care he provided could be considered state action. See Kach, 589 F.3d at 646; Gotell v. Clarke, 2021 WL 9037643, at *3 (W.D. Pa. July 26, 2021), report and recommendation adopted as modified, 2022 WL 1768945 (W.D. Pa. June 1, 2022). “Action taken by private entities with the mere approval or acquiescence of the State is not state action.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) (citation omitted). Because Wecht is not alleged to be a state actor, any constitutional claims asserted against him must be dismissed. See, e.g., Ollie v. Lubahn, 2018 WL 10245776, at *2 (W.D. Pa. Nov. 9, 2018) (dismissing Eighth and Eleventh Amendment claims against UPMC and St. Vincent Hospital physicians because neither doctor is a state actor); Massey v. Crady, 2018 WL 4328002, at *6 (W.D. Pa. Aug. 8, 2018).
In this response to Defendant Wecht's motion to dismiss (ECF No. 100), Plummer argues that Wecht “is in contract with the Pennsylvania Department of Corrections to provide medical service to prisoners housed in the Pennsylvania Department of Corrections.” ECF No. 100, p. 1, ¶ 4. As noted above, neither the Amended Complaint nor the supplement filed months later, contain this new allegation. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). Nevertheless, the Court of Appeals for the Third Circuit has emphasized that a pro se filing, including a complaint, “may not be amended by briefs in opposition to a motion to dismiss.” Com. Of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.3d 173, 181 (3d Cir. 1988); see also Mala v. Crown Bay Marina Inc., 704 F.3d 239, 244 (3d Cir. 2013) (recognizing that although district courts must be “flexible when dealing with imprisoned pro se litigants,” “[a]t the end of the day, they cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.”). Here, an earlier iteration of t Wecht's motion to dismiss raised the state actor argument. See ECF No. 40; ECF No. 41, p. 3. Plummer was afforded an opportunity to file an Amended Complaint after reviewing Wecht's motion and did so. See ECF No. 68. His amended pleading makes no mention of this alleged “contract” and he only mentions in it response to a renewed motion to dismiss by Wecht. Thus, this allegation, which Plummer raises only in his brief, will not be considered.
2. Plummer fails to state a conspiracy claim against Dr. Williamson.
One paragraph of the Amended Complaint appear to level a conspiracy allegation against Williamson. Plummer alleges that
Defendant Dr. Williamson intentionally ignored clinical signs that Mr. Plummer was suffering from nerve root compression in a concerted effort to provide his expert opinion in conformity with the final goals of the defendant employed at SCI-Forest.ECF No. 68, ¶ 118. He also contends that Williamson intentionally omitted medical findings from his report to benefit “Wellpath and the defendants employed at SCI Forest by avoiding a doctor's recommendation for surgery.” Id., ¶ 127. But Plummer has failed to plead any facts from which the existence of a conspiracy between Dr. Williamson and the other Defendants might be inferred.
Generally, in order “to properly plead an unconstitutional conspiracy, a plaintiff must assert facts [alleging] a conspiratorial agreement” between the non-state actors and the government. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). Bare allegations that “[d]efendants engaged in a concerted action of a kind not likely to occur in the absence of agreement” are insufficient. Id. Here, Plummer's allegations of a conspiracy are both conclusory and, as discussed above, fail to implicate a state actor. Accordingly, this claim fails.
D. The Court should dismiss all claims with prejudice as further amendment would be futile.
In a civil rights case, when the Court grants a motion to dismiss for a failure to state a claim, the Court must offer the plaintiff leave to amend even if it was not requested by the plaintiff, “unless doing so would be inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 246 (3d Cir. 2008); Andrew v. Highmark Health, 2022 WL 14672734, at *2 (W.D. Pa. Oct. 25, 2022) (citing Phillips'). Beginning with the claims asserted against the DOC Defendants, it is recommended that Plummer not be given another opportunity to amend his claims. In addition to his original Complaint (ECF No. 7) and his Amended Complaint, Plummer has filed a lengthy supplement (ECF No. 145). Thus, he has had ample opportunity to augment his factual allegations to support his Eighth Amendment claim, but has repeatedly failed to do so. In addition, the extent of the care that Plummer acknowledges in his pleadings makes such a claim facially implausible. Thus, further amendment should not be permitted and the claims against the DOC Defendants should be dismissed with prejudice. See, e.g., Woods v. Morris, 2022 WL 11962108, at *6 (W.D. Pa. Oct. 20, 2022).
The claims against the Medical Defendants should likewise be dismissed with prejudice. Plummer's own recitation of his medical history demonstrates that his claims are barred by the applicable statute of limitations and thus, the lateness of these claims cannot be cured by further amendment. See, e.g., Davis v. Allegheny Cnty. Court of Common Pleas, 2022 WL 169504087, at *2 (W.D. Pa. Nov. 15, 2022).
Finally, the federal claims brought against Wecht and Williamson should also be dismissed with prejudice as any further attempt at amendment is futile. By Plummer's own acknowledgement, neither of these defendants are state actors and having so averred, any attempt to cure this defect would be futile. See, e.g., Miller v. Man, 2022 WL 2082998, at *2 (E.D. Pa. Aug. 3, 2022).
V. Discussion and Analysis: the State Law Claims
In Count II of the Amended Complaint, Plummer raises a medical malpractice claim against all of the Defendants. See ECF No. 68, ¶¶ 151-156. Ele alleges that the Defendants “acted with negligence in repeatedly misdiagnosing Mr. Plummer and subsequently not treating or accommodating Mr. Plummer's nerve root compression appropriately.” Id., ¶ 152. This claim is brought under state law because negligence is not a federal constitutional standard. See, e.g., Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding that official's mere negligence is not actionable under § 1983 because “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property”). Although the Court may exercise supplemental jurisdiction over such state claims, see 28 U.S.C. § 1331; § 1367(c)(3), it is recommended that the Court decline to exercise that authority.
In an action that includes both federal and state law claims, and the federal claims have all been dismissed, Courts may decline to exercise supplemental jurisdiction. See, e.g., Lundgren v. Ameristar Credit Solutions, Inc., 40 F.Supp.3d 543, 551-52 (W.D. Pa. 2014) (declining to exercise supplemental jurisdiction over state-law claims after granting summary judgment on federal claims); Moore v. Dep't of Corr., 2022 WL 2240086, at *6 (E.D. Pa. June 22, 2022). Whether to exercise supplemental jurisdiction is within a federal court's discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). The decision is based on “the values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). When all federal claims have been dismissed, leaving only state-law claims for consideration, “the balance of these factors indicates that these remaining claims properly belong in state court.” Id., 484 U.S. at 350.
Nothing in this case warrants the Court's exercise of jurisdiction over state law claims routinely addressed by state courts. Thus, the balance of the factors “point[s] toward declining to exercise jurisdiction over the remaining state law claims.” Id., at 350 n.7. Accordingly, it is recommended that the remaining state law medical malpractice/negligence claims be dismissed without prejudice. See 28 U.S.C. § 1367(c)(3). Plummer may refile his state law claims in the appropriate state court if he chooses to do so. See, e.g., Williams v. City of Johnstown, 2016 WL 1069100, at *7 (W.D. Pa. Mar. 17, 2016) (where federal claims have been dismissed, federal court declined to exercise supplemental jurisdiction over state-law claims and dismissed without prejudice to plaintiff refiling those claims in state court); see also Hailey v. Wetzel, 2021 WL 60514446, at *14 (W.D. Pa. Dec. 20, 2021) (citing Williams').
Finally, and given this recommendation, the motion for summary judgment on the state-law claims filed by Defendant Wecht should be dismissed as moot. See ECF No. 143.
VI. Conclusion
In summary, it is respectfully recommended as follows:
1. Defendant Wecht's motion to dismiss at ECF No. 84 be GRANTED and the claims against him be dismissed with prejudice.
2. Defendant Williamson's motion to dismiss at ECF No. 105 be GRANTED and the claims against him be dismissed with prejudice.
3. The Medical Defendants' motion to dismiss at ECF No. 109 be GRANTED and the claims against those Defendants be dismissed with prejudice.
4. The DOC Defendants' motion to dismiss at ECF No. 121 be GRANTED and the claims against those Defendants be dismissed with prejudice.
5. The Court decline to exercise supplemental jurisdiction over the state-law negligence/malpractice claims and dismiss those claims against all Defendants without prejudice to Plummer refiling those claims in state court.
6. Defendant Wecht's motion for summary judgment on the state-law claim be dismissed as moot.
VII. Notice Regarding Objection to this Report
In accordance with 28 U.S.C. §636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187,193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).