Dir., State Dep't of Corr.

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Civil No. 3:18-CV-125 (M.D. Pa. Jul. 26, 2018)

Civil No. 3:18-CV-125



(Judge Caputo)


I. Statement of Facts and of The Case

This case comes before the Court for consideration of a second motion to dismiss filed by defendants Henry and Denning, which seeks the dismissal of the amended complaint lodged against the defendants in this case. (Doc. 38.) The plaintiff, Shane Eddowes, is an inmate housed at the State Correctional Institution (SCI) Rockview. In his amended complaint Eddowes names multiple defendants, but the gravamen of Eddowes' amended complaint remains an allegation that his treating physicians have illegally substituted adulterated, experimental, placebo drugs for Eddowes' prescribed anti-seizure medications. Despite the specific nature of these allegations, which call into question the prescribing decisions of his medical doctors, Eddowes' complaint names a host of other defendants in this lawsuit. Many of these defendants played no role in the prescribing or administration of medication to Eddowes.

Included among these defendants are Vanessa Henry and Nicole Denning. Henry and Denning are employed by a private pharmacy company, Diamond Pharmacy. According to Eddowes' initial compliant, Diamond Pharmacy received anti-seizure medication from the manufacturer of these drugs, Sandoz, and then sent it to SCI Rockview when it was prescribed by doctors for inmate-patients. (Doc. 1-3, ¶ 42.) Denning and Henry were mentioned summarily in one paragraph of Eddowes' initial complaint, which alleged in a cursory fashion that they were "responsible" because "they were notified by Michelle Dupree to change" what Eddowes believed to have been "adulterated" medication. (Id.). The reference to Michelle Dupree in this initial complaint was something of a mystery since nothing in Eddowes' pleading explained who this person might be, or what her relevance was to this lawsuit.

Henry and Denning moved to dismiss Eddowes' original complaint, (Doc. 15), arguing that the gist of Eddowes' complaint related to prescribing decisions made by the doctors who were directly treating Eddowes' seizure disorder. While Eddowes' complaint framed the issues in this fashion, focusing on the prescribing decisions of the doctors treating his seizure disorder, with respect to Defendants Henry and Denning aside from his enigmatic reference to an otherwise unknown person, "Michelle Dupree," Eddowes' complaint merely alleged that the pharmacy workers filled prescriptions provided by the doctors treating Eddowes with the prescribed drugs manufactured by Sandoz. Noting that the conduct of these officials was far removed from the gravamen of Eddowes' complaint, these defendants sought dismissal of Eddowes' complaint.

We concluded that Eddowes' complaint failed to state a claim against these defendants upon which relief may be granted and recommended dismissal of this complaint with respect to Defendants Henry and Denning. (Doc. 29.) The district court adopted this recommendation, and also agreed with our recommendation that Eddowes be provided one last opportunity to file a pleading which stated a claim upon which relief could be granted by allowing Eddowes leave to submit an amended complaint. (Doc. 33.)

Eddowes then filed an amended complaint. (Doc.34.) Curiously, this amended complaint now offered a different, but similarly meager, factual recital relating to Defendants Denning and Henry. Gone from Eddowes' factual narrative was any claim that the defendants were "responsible" because "they were notified by Michelle Dupree to change" what Eddowes believes to have been "adulterated" medication. Instead, Eddowes simply alleged that he wrote to the defendants in October of 2017 telling them that the medication manufactured by Sandoz and prescribed and ordered by prison physicians through Diamond Pharmacy was an adulterated placebo. (Doc. 33, p. 9.)

Henry and Denning have now moved to dismiss this amended complaint. (Doc. 38.) After some delays, Eddowes has responded to this motion to dismiss, (Doc. 41), albeit in a fashion which is essentially identical to his earlier response to the defendants' prior motion to dismiss. (Compare Doc. 21 with Doc. 41.) Therefore, this matter is now ripe for resolution.

For the reasons set forth below, we recommend that the motion to dismiss be granted and the amended complaint be dismissed with respect to Defendants Henry and Denning.

II. Discussion

A. Motion to Dismiss Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.

In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the 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). Further, it is not proper to "assume that [the plaintiff] can prove facts that [he] has not alleged . . . ." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

Following the rule announced in Ashcroft v. Iqbal, "a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three step analysis:

First, the court must take 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.

Santiago v. Warminster Twp
., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must "'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

As the court of appeals has 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).

B. Eddowes' Amended Complaint Against Defendants Henry and Denning Still Fails as a Matter of Law.

As we have observed, the gist of Eddowes' complaint, and now his amended complaint, relates to prescribing decisions made by the doctors who are directly treating Eddowes' seizure disorder, and amount either to a dispute between this prisoner and his prescribing medical personnel regarding the most effective medication to treat his seizure disorder, or an allegation that these prescribing officials are for unknown reasons displaying deliberate indifference to his medical needs by substituting adulterated placebos for his medically necessary prescription medications. With Eddowes' complaint framed in this fashion, Eddowes' decision to persist in naming as defendants the pharmacy employees who simply filled these prescriptions, following the doctors' orders, using drugs manufactured by Sandoz, is legally problematic on at least two scores.

First, to the extent that Eddowes wishes to bring a claim against private pharmacy employees pursuant to 42 U.S.C. §1983 he misconstrues the reach of this federal civil rights statute. A plaintiff who wishes to bring a federal claim must utilize 42 U.S.C. § 1983, which is the statutory vehicle for asserting constitutional claims. This federal statute provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

Under this statute, in order to maintain a claim, a plaintiff must plead two elements: (1) deprivation of a constitutional right or violation of federal law, and (2) that the constitutional deprivation was caused by a person acting under the color of state law. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008); see also West v. Atkins, 487 U.S. 42, 47 (1988). The requirement of state action is a "threshold issue" in cases brought under section 1983, Bailey v. Harleysville National Bank & Trust, 188 F. App'x 66, 67 (3d Cir. July 18, 2006), because "there is no liability under § 1983 for those not acting under color of law." Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).

The phrase "under color of law" used in section 1983 is parallel in meaning to "state action" as used in the Fourteenth Amendment. Mark, 51 F.3d at 1141; see also Bailey, 188 F. App'x at 67 ("To show that the defendant acted under color of state law, a litigant must establish that the defendant is a 'state actor' under the Fourteenth Amendment.") (citing Benn v. Universal Health System, Inc., 371 F.3d 165, 169 n.1 (3d Cir. 2004)). Under this standard, the state must be "responsible" for the plaintiff's alleged constitutional injury. Mark, 51 F.3d at 1141-1142. Thus, a plaintiff must show that there is a "sufficiently close nexus between the State and the challenged action . . . so that the action . . . may be fairly treated as that of the State itself." Id. at 1142 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). As a general rule, "[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment." Bailey, 188 F. App'x. at 68 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974)).

Applying these legal guideposts, it has been held that private pharmacy employees typically do not act under color of state law for purposes of §1983. Caldwell v. CVS Corp., 443 F. Supp. 2d 654, 657 (D.N.J. 2006). Thus, where a pharmacy is merely involved with distributing prescriptions to contract physicians who provide health care services to inmates, the necessary element of state action simply is not present. Arnold v. Green, No. CIV.A. 10-5090, 2011 WL 4807918, at *5 (E.D. Pa. Oct. 11, 2011) (citing Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993)). Here the relationship between Diamond, a private party, its employees and the state remains entirely unexplained by Eddowes. Therefore, we are invited to infer state action from the activities of two private pharmacy employees who are simply filling drug orders from prison doctors using medications provided by a licensed pharmaceutical manufacturer. The role of these private persons as intermediaries providing pharmaceuticals to doctors does not, in our view, constitute state action simply because those doctors later prescribe the medication to a particular state inmate. As we have explained to the plaintiff, more is needed to establish action taken under color of state law, an essential element of a §1983 claim. Therefore, in the absence of any well-pleaded allegations demonstrating that the activities of these private pharmacy employees were tantamount to state action, Eddowes' §1983 claim against these defendants fails on state-action grounds.

There is a second, fundamental defect in this claim against these pharmacy employees. At bottom, Eddowes' complaint is that his doctors have violated his rights under the Eighth Amendment to the United States Constitution by displaying "deliberate indifference" to this inmate's medical needs. Eddowes faces an exacting burden in advancing this Eighth Amendment claim against prison officials in their individual capacities. To sustain such a claim, Eddowes must plead facts which:

[M]eet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious;" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation marks and citations omitted). In prison conditions cases, "that state of mind is one of 'deliberate indifference' to inmate health or safety." Id. "Deliberate indifference" is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.

Beers-Capitol v. Whetzel
, 256 F.3d 120, 125 (3d Cir. 2001).

By including a subjective intent component in this Eighth Amendment benchmark, the courts have held that a mere generalized knowledge that prisons are dangerous places does not give rise to an Eighth Amendment claim. See Jones v. Beard, 145 F. App'x 743 (3d Cir. 2005) (finding no Eighth Amendment violation where inmate-plaintiff complained about cellmate who had a history of psychological problems, but where plaintiff failed to articulate a specific threat of harm during the weeks prior to an attack). In short, when "analyzing deliberate indifference, a court must determine whether the prison official 'acted or failed to act despite his knowledge of a substantial risk of serious harm.' A prisoner plaintiff must prove that the prison official 'knows of and disregards an excessive risk to inmate health or safety.'" Garvey v. Martinez, 08-2217, 2010 WL 569852, at *6 (M.D. Pa. Feb. 11, 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 841 (1994)). These principles apply with particular force to Eighth Amendment claims premised upon inadequate medical care. In the medical context, a constitutional violation under the Eighth Amendment occurs only when state officials are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976). To establish a violation of his constitutional right to adequate medical care in accordance with this standard, Eddowes is required to point to evidence that demonstrates (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

Deliberate indifference to a serious medical need involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104. Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of resultant pain and risk of permanent injury," White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106. "Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Such complaints fail as constitutional claims under § 1983 since "the exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) ("[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.")). Applying this exacting standard, courts have frequently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received; see e.g., Ham v. Greer, 269 F. App'x 149 (3d Cir. 2008); James v. Dep't of Corrections, 230 F. App'x 195 (3d. Cir. 2007); Gillespie v. Hogan, 182 F. App'x 103 (3d Cir. 2006); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D. Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F. Supp. 833 (E.D. Pa. 1997), particularly where it can be shown that significant medical services were provided to the inmate but the prisoner is dissatisfied with the outcome of these services.

There is a necessary corollary to this principle, limiting the reach of the Eighth Amendment in a prison medical setting. In a case such as this, where the plaintiff's complaint reflects that an inmate received on-going medical care from physicians, it is also well-established that non-medical staff may not be "considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor." Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). The rationale for this rule has been aptly explained by the United States Court of Appeals for the Third Circuit in the following terms:

If a prisoner is under the care of medical experts . . . , a non-medical . . . official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a non-medical prison official liable in a case where a prisoner was under a physician's care

would strain this division of labor. Moreover, under such a regime, non-medical officials could even have a perverse incentive not to delegate treatment responsibility to the very physicians most likely to be able to help prisoners, for fear of vicarious liability. Accordingly, we conclude that, absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical . . . official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.

Spruill v. Gillis,
372 F.3d 218, 236 (3d Cir. 2004).

Applying this standard, courts have repeatedly held that non-medical staff may not be held personally liable for deferring to doctors on medical matters. See e.g., Spruill v. Gillis, supra; Durmer v. O'Connor, supra. This definition of deliberate indifference, which requires a subjective intent to expose the prisoner to an unreasonable risk of harm and permits non-physician medical workers to defer to the judgment of doctors, has particular relevance in a case such as this where the plaintiff is also suing non-physician pharmacy employees for their roles in dispensing drugs prescribed by doctors for the prisoner. As the Court of Appeals has observed with respect to such claims:

In Spruill, we specifically indicated that a non-medical prison official will not be chargeable with deliberate indifference, "absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner." 372 F.3d at 236. Now confronted with a set of defendants who are not physicians but have some amount of medical training, we clarify that the same division of labor concerns that underlie that rule apply when a [non-physician medical worker] knows that a prisoner is under a physician's care and has no reason to believe that the doctor is mistreating the prisoner. Given that it is the physician with the ultimate authority to diagnose

and prescribe treatment for the prisoner, a [non-physician medical worker] who knows that the prisoner is under a physician's care is certainly "justified in believing that the prisoner is in capable hands," id. so long as the [non-physician medical worker] has no discernable basis to question the physician's medical judgment.

Pearson v. Prison Health Serv.
, 850 F.3d 526, 540 n.4 (3d Cir. 2017). Therefore, in this setting, absent a showing that pharmacy employees knew of some deliberate indifference to Eddowes' medical needs by his treating doctors, something which is not sufficiently alleged here, the pharmacy's role in providing the medications received from the drug manufacturer and prescribed by a physician for the treatment of this inmate simply does not rise to the level of deliberately indifferent conduct. Id. In short, responsibility for an Eighth Amendment medical deliberate indifference claim based upon a doctor's prescribing decision rests with the doctor, and not with some intermediary pharmacy's workers, who simply fill the prescription as ordered by the doctor using pharmaceuticals provided by a licensed drug manufacturer.

In sum, as to these pharmacy employee defendants, Eddowes' amended complaint, like his original complaint, runs afoul of at least two legal obstacles. Therefore, the complaint should be dismissed with respect to these defendants. While we are mindful of the fact that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004), in this case Eddowes has been provided an opportunity to amend his claims with respect to Defendants Denning and Henry, but to no avail. Eddowes' amended complaint still fails to state a claim upon which relief may be granted. Accordingly, it appears that further amendment of this pleading would be futile. Therefore, we recommend that the amended complaint should now be dismissed with prejudice as to Defendants Henry and Denning.

III. Recommendation

For the foregoing reasons, IT IS RECOMMENDED that the defendants' motion to dismiss the amended complaint, (Doc. 38), be GRANTED, and this complaint should be dismissed with respect to defendants Henry and Denning.

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 26th day of July, 2018.

/s/ Martin C . Carlson

Martin C. Carlson

United States Magistrate Judge

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