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ROBERT LINDSAY, Plaintiff, v. WALTER P. DUNLEAVY, WARDEN
OF
PHILADELPHIA COUNTY PRISON KNOWN AS CFCF; PHILADELPHIA
COUNTY; and DOCTOR ERIC AMOH, EMPLOYED BY THE CFCF,
Defendants.
CIVIL ACTION 00-1532
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
177 F. Supp. 2d 398
December 20, 2001, Filed
MEMORANDUM AND ORDER
JOYNER, J.
Presently
before the Court is the Motion to Dismiss and/or for Summary Judgment of
Defendants, Warden Walter P. Dunleavy ("Warden Dunleavy"),
Philadelphia County (the "County") and Eric Amoh, [*400]
P.A. n1 ("Amoh"). Plaintiff, Robert Lindsay
("Lindsay" or "Plaintiff"), filed his initial complaint in
this action on March 24, 2000. However, in the initial complaint, Plaintiff did
not specifically name Defendants Warden Dunleavy and Amoh, so he filed an amended complaint on February 5,
2001 to name them. n2 Plaintiff's amended complaint alleges the following claims: a § 1983 claim against Amoh for
failing to provide adequate medical treatment; a § 1983 claim against Warden
Dunleavy and the County for failing to adequately train, supervise and/or
discipline Amoh; and state law claims against all of the Defendants for
"official oppression," reckless endangerment of another person,
simple assault, aggravated assault, negligence, intentional infliction of
emotional distress, and negligent infliction of emotional distress.
All
Defendants seek to dismiss each of the claims against them. For the following
reasons, the § 1983 claims against Amoh, Warden Dunleavy, and the County are
dismissed. Further, the Court will not exercise pendent jurisdiction over the
state law claims. Rather, the Court will dismiss those claims without prejudice
to allow Plaintiff the opportunity to re-file those claims in state court if he
so chooses.
BACKGROUND
The facts, taken from Plaintiff's complaints and taken in the
light most favorable to Plaintiff, are as follows. Plaintiff was incarcerated
at the Philadelphia County Prison ("CFCF") on February 18, 1999.
While at CFCF, Plaintiff was assigned a job serving food to the other inmates
and cleaning up after them.
On April
13, 1999, while Plaintiff was working, he was punched in the jaw by another
inmate. Plaintiff alleges that soon after the incident he was taken to the
medical facility at CFCF for treatment due to the pain he was experiencing in
his jaw. Plaintiff was treated by Amoh who examined Plaintiff's mouth. Amoh allegedly
gave Plaintiff cotton to bite on to stop the bleeding and gave him some pain
medication. Amoh allegedly told Plaintiff his jaw was "alright" and
that it would take time to heal.
On April
14, 1999, Plaintiff alleges that he went to see Amoh again because he was still
experiencing bleeding and pain in his jaw. Plaintiff alleges that Amoh again
examined him and increased the pain medication.
On April 15, 1999, Plaintiff
alleges that he again went to see Amoh and explained to Amoh that he was in
extreme pain and that his jaw was swollen and his face was numb. Plaintiff
requested that Amoh order an x-ray because Plaintiff thought his jaw was
broken. Plaintiff alleges that Amoh did not
order x-rays, but rather told Plaintiff that the jaw would take time to
heal.
On April
16, 1999, Plaintiff alleges that he went to see Amoh again with the same
complaints as on the 15th. Plaintiff alleges that Amoh again told Plaintiff
that his jaw would take time to heal.
On April 18, 1999, Plaintiff
alleges that he again saw Amoh with the same complaints. [*401]
Plaintiff alleges that Amoh told him that if his jaw was broken he would
not be able to talk.
On April 20, 1999, Plaintiff
was transferred to the State Correctional Institution at Graterford
("Graterford"). Upon arrival at Graterford, Plaintiff told the
medical department what had happened to
his jaw and that he was in extreme pain.
On April 21, 1999, the
medical department at Graterford x- rayed Plaintiff's jaw and found that his
jaw was broken. On April 27, 1999, Plaintiff alleges that he was transferred to
an outside hospital where his jaw was wired shut.
DISCUSSION
I. Legal Standard
When deciding a 12(b)(6) motion, a court must view all facts,
and reasonable inferences drawn therefrom, in the light most favorable to the
non-movant. Fed. R. Civ. P. 12(b)(6); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.
1990). Dismissal is appropriate only "if it is clear that no relief could
be granted under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct.
2229, 81 L. Ed. 2d 59 (1984). Further, because Plaintiff is proceeding pro se,
the Court will construe his complaint liberally and hold it to a less stringent
standard than a pleading drafted by an attorney. See Estelle v. Gamble, 429
U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976); Haines v. Kerner,
404 U.S. 519, 521, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972).
II. Exhaustion of Administrative Remedies
Defendants first argue that Plaintiff's complaint must be
dismissed because he has not alleged that he exhausted all administrative
remedies as required by the Prison Litigation Reform Act ("PLRA"). n3
Plaintiff responds that he has exhausted his administrative remedies, but he
does not have access to the prison's files which would demonstrate exhaustion.
The PLRA
requires a prisoner to exhaust all administrative remedies before bringing a
suit regarding prison conditions. See 42 U.S.C.A. § 1997e(a); see also
Nyphius v. Reno, 204 F.3d 65, (3d Cir. 2000)(holding that exhaustion of
available remedies is condition precedent to filing a law suit). Specifically, section 1997e(a) provides that
"no action shall be brought with respect to prison conditions . . . by a
prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted."
In the
instant case, Defendants argue that Plaintiff did not exhaust the
administrative remedies available at CFCF. Defendants attach the affidavit of
Warden Dunleavy, the Warden of CFCF, to attest that Plaintiff did not exhaust
the remedies available to him at CFCF. However, by the time Plaintiff learned that
his jaw was broken, Plaintiff had already been transferred to Graterford.
Defendants do not provide the Court with any information concerning what sort
of administrative remedies were available at either institution, but
particularly what sort of administrative remedies are available at Graterford
for an inmate complaining of conduct that occurred at a different facility.
[*402]
Because there remain
questions of fact regarding 1) whether Plaintiff exhausted the available
administrative remedies and 2) whether there were any administrative remedies
available to exhaust, the Court will deny the Motion to Dismiss on this basis. See 42 U.S.C.A. § 1997e(a)(must
exhaust "available" administrative remedies).
III. § 1983 Claims Against
Eric Amoh, P.A.
In Estelle v. Gamble, the Supreme Court determined that
"deliberate indifference to the serious medical needs of prisoners
constitutes the 'unnecessary and wanton infliction of pain.'" 429 U.S. 97,
104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). In Farmer v. Brennan, the
Court clarified the state of mind required to show deliberate indifference by
holding that a prison official cannot be found liable under the Eighth
Amendment . . . unless the official knows of and disregards an excessive risk
to inmate health and safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
exists and he must also draw the inference.
511 U.S. 825, 837, 114 S.
Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994).
A
prisoner's claims of negligent diagnosis or treatment, do not rise to the level
of deliberate indifference. Estelle, 429 U.S. at 105-06, 107 (finding that
"in the medical context, . . . a complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment"); see also
Wilson v. Seiter, 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed. 2d 271
(1991)("allegations of 'inadvertent failure to provide adequate medical
care' or of 'negligent . . . diagnosis' fail to establish the requisite
culpable state of mind")(internal citations omitted); Parham v. Johnson,
126 F.3d 454, 458 n.7 (3d Cir. 1997) (recognizing "well-established law in
this and virtually every circuit that actions characterizable as medical
malpractice do not rise to the level of 'deliberate indifference'").
Further, a doctor's decision
not to order specific forms of diagnostic treatment, an x-ray for example,
constitutes medical judgment, which is not
actionable. Estelle, 429 U.S. at
107. The Third Circuit has stated that "'where a prisoner has received
some medical attention and the dispute is over the adequacy of the treatment,
federal courts are generally reluctant to second guess medical judgment and to
constitutionalize claims which sound in state tort law.'" United States ex rel. Walker v. Fayette
County, Pennsylvania, 599 F.2d 573, 575 n.2 (3d Cir. 1979)(quoting Westlake v.
Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). Moreover, a disagreement between
the doctor and the plaintiff as to the medical diagnosis and treatment does not
constitute deliberate indifference. Douglas v. Hill, 1996 U.S. Dist. Lexis
18057, CIV.A. No. 95-6497, 1996 WL 716278, *7 (E.D. Pa. Dec. 6, 1996)(citing
Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987)).
In the instant case,
Plaintiff alleges that Amoh's failure to diagnose his broken jaw and failure to
order an x-ray, from which he could have diagnosed the fracture and which
Plaintiff requested, constitutes deliberate indifference.
In response, Amoh does not argue that Plaintiff's medical needs
were not "serious." Instead, Amoh argues that Plaintiff has not
sufficiently pled that he acted with deliberate indifference. We agree.
Viewing the
evidence in the light most favorable to Plaintiff, Plaintiff has failed to
plead any allegations from which deliberate
[*403] indifference could be
inferred. For example, Plaintiff has not pled that Amoh recognized Plaintiff's
need for an x-ray and then refused to
order it. Nor has Plaintiff made any other allegations which demonstrate, or
from which it could be inferred, that Amoh possessed the requisite mental
intent to sustain a deliberate indifference claim. See, e.g., Wilson, 501 U.S. at 297 (allegations of
inadvertent failure to provide adequate medical care or negligent diagnosis do
not establish requisite mental intent); Thomas v. Zinkel, 155 F. Supp. 2d 408,
412 (E.D. Pa. 2001) (granting medical defendants' motion to dismiss prisoner's
§ 1983 claim); Muhammad v. Schwartz, 1997 U.S. Dist. Lexis 935, No.
CIV.A.96-6027, 1997 WL 43015, * 4-5 (E.D. Pa. Jan. 27, 1997)(same).
Absent allegations that Amoh
possessed the requisite intent to establish deliberate indifference, Plaintiff
has not properly pled a § 1983 action against Amoh. See Farmer, 511 U.S. at 837, 114 S. Ct. at
1979; Wilson, 501 U.S. at 297. Therefore, Plaintiff's § 1983 claims against
Amoh will be dismissed. n4
IV. § 1983 Claims Against
Warden Dunleavy and the County
Plaintiff argues that Warden Dunleavy and the County were
deliberately indifferent to his medical needs by failing to adequately train,
supervise, and/or discipline Amoh.
A. § 1983 Claims Against
Warden Dunleavy
"A defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior. Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence."
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)(internal citations
omitted). To maintain a failure to supervise claim, a plaintiff must "(1)
identify with particularity what the supervisory official failed to do that
demonstrates his deliberate indifference, and (2) demonstrate a close causal
relationship between the identified deficiency and the ultimate injury."
Kis v. County of Schuylkill, 866 F. Supp. 1462, 1474 (E.D. Pa. 1994)(citing
Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). In order to establish
deliberate indifference, plaintiff must demonstrate that the "official
knows of and disregards an excessive risk to inmate health and safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists and he must also draw the
inference." Farmer, 511 U.S. at 837, 114 S. Ct. at 1979.
Plaintiff
has not sufficiently pled a failure to supervise claim against Warden Dunleavy.
Plaintiff has not alleged that Warden Dunleavy knew of and disregarded an
excessive risk to Plaintiff's safety. Further, Plaintiff has not alleged
any facts regarding Warden Dunleavy from which personal involvement can be
inferred. In fact, Plaintiff has not made any factual allegations at all
regarding Warden Dunleavy. n5 Therefore, Plaintiff's § 1983 [*404]
claims against Warden Dunleavy will be dismissed. n6 See, e.g., Cropps
v. Chester County Prison, 2001 U.S. Dist. Lexis 357, CIV.A. No. 00-182, 2001 WL
45762, *3 (E.D. Pa. Jan. 19, 2001)(dismissing a prisoner's § 1983 claim against
a warden for failure to plead sufficient facts), compare with Nami v. Fauver, 82 F.3d 63, 67 (3d Cir.
1996)(prisoner plaintiff sufficiently pled § 1983 against prison officials where Plaintiff pled that he had
written letters to the administration concerning all of the matters set forth
in the complaint and that his requests for relief were refused).
B. § 1983 Claims Against the County
A municipality cannot be held liable on the basis of respondeat
superior. See Monell v. Dep't. of Social Services, 436 U.S. 658, 694, 98 S. Ct.
2018, 2036-38, 56 L. Ed. 2d 611 (1978). In order to sustain a claim against a
municipality, a plaintiff must demonstrate that the constitutional violation at
issue was caused by "a policy, regulation, or decision officially adopted
by the governing body or informally adopted by custom." Beck v. City of
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996); see also Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397,
403-04, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)(plaintiff must identify
municipal policy or custom to impose liability on municipality).
Plaintiff has not sufficiently pled a § 1983 violation against
the County. Plaintiff has not made any factual allegations regarding the County much less allegations regarding
any customs or policies of the County. Therefore, Plaintiff's § 1983 claims
against the County are dismissed. See Brown, 520 U.S. at 403-04.
IV. State Law Claims
Because we will dismiss all of the federal claims against the
Defendants, we must decide whether to exercise supplemental jurisdiction over
Plaintiff's state law claims. A court may "decline to exercise supplemental
jurisdiction [over state law claims] if . . . the district court has dismissed
all claims over which it has original jurisdiction." 28 U.S.C. §
1367(c)(3). We decline to exercise supplemental jurisdiction over Plaintiff's
potential state law claims against the Defendants. Plaintiff may re-file those
claims in the appropriate state court if he so chooses. See Muhammad, 1997 U.S. Dist. Lexis 935, 1997
WL 43015 at *6. We do not express any opinion as to the outcome of these state
law claims.
An appropriate Order follows.
ORDER
AND NOW, this day of December, 2001, upon consideration of Defendants' Motion to Dismiss and/or for Summary Judgment (Documents No. 25 and 32) and Plaintiff's response thereto (Document No. 31), it is hereby ORDERED, in accordance with the foregoing Memorandum, as follows:
1) Plaintiff's § 1983 claims
against Eric Amoh, P.A., Warden Walter P. Dunleavy, and Philadelphia County are
DISMISSED and
2) Plaintiff's state law
claims asserted against all Defendants are DISMISSED WITHOUT PREJUDICE.
BY THE COURT:
J.
CURTIS JOYNER, J.
Footnotes:
n1 Plaintiff refers to Amoh as Dr. Amoh.
However, Amoh represents that he is not a physician but a physician's
assistant.
n2 Plaintiff filed a second amended complaint
on August 20, 2001. However, the second amended complaint does not change the
facts alleged or the relief requested in the original or first amended
complaints. Rather, Plaintiff's second amended complaint discusses the problems
Plaintiff had with his "jailhouse" lawyer and indicates that if
Plaintiff's other complaints were deficient it was solely due to the bad advice
of the "jailhouse" lawyer.
n3 The Third Circuit has not addressed
whether the exhaustion requirement of the PLRA must be pled in the Complaint or
raised as an affirmative defense. See, e.g., Gregory v. PHS, Inc., 2001 U.S.
Dist. Lexis 15765, CIV.A. No. 00-467- SLR, * 7 (D. Del. Sept. 21, 2001).
n4 In addition to the Eighth Amendment
claims, Plaintiff purports to bring claims for violations of his Fourth, Fifth,
and Ninth Amendment rights. However, there are no allegations in the complaint
that even remotely support violations of those Amendments. Therefore, to the
extent Plaintiff attempts to bring a claim under those Amendments under the
facts alleged, those claims are dismissed.
n5 In Plaintiff's Brief in Opposition to
Defendants' Motion to Dismiss and/or Summary Judgment, Plaintiff states that
"Plaintiff has made Walter Dunleavy well apprised of need for medical
treatment by view of his medical staff." [sic] See Plaintiff's Brief in
Opposition to Defendants' Motion to Dismiss and/or Summary Judgment at P21. In
this statement, Plaintiff appears to be attempting to hold Warden Dunleavy
liable on the basis of respondeat superior, which is insufficient. See Rode, 845 F.2d at 1207. Further, other than
this conclusory statement, Plaintiff has not made any factual allegations to
suggest that Warden Dunleavy was aware of Plaintiff's jaw pain. Id. (must
allege personal involvement with sufficient particularity). Finally, Plaintiff
has not made this allegation or any other allegations even remotely similar in
his original complaint or in either of his amended complaints.
n6 Defendants also assert that Plaintiff's
complaint should be dismissed because they are entitled to immunity. Given our
disposition of the case, we do not
reach the immunity issue.
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