MAUREEN P. KELLY, Chief Magistrate Judge.
John and Stephanie Petrosky (collectively, "Plaintiffs") bring this action pursuant to 42 U.S.C. § 1983 against Allegheny County and Orlando Harper ("Warden Harper") (collectively, "the County Defendants") as the result of serious injuries allegedly caused by their deliberate indifference to Mr. Petrosky's serious medical condition, endocarditis. Plaintiffs contend that the County Defendants violated constitutional provisions by not providing adequate medical care to Mr. Petrosky when he was a pretrial detainee at the Allegheny County Jail ("ACJ") from March 6, 2014, to September 14, 2014. Plaintiffs also bring state law negligence claims against Corizon Health, Inc., Corizon Inc., Sarah A. Patterson, as administratrix of the Estate of Dr. Michael D. Patterson ("Dr. Patterson"), Danielle Litzinger, CRNP ("CRNP Litzinger"), and David Druskin, PA-C ("PA-C Druskin") (collectively, "the Corizon Defendants"). Specifically, Plaintiffs allege that the Corizon Defendants provided negligent medical care to Mr. Petrosky while he was incarcerated in ACJ. Mrs. Petrosky also brings a loss of consortium claim against the Corizon Defendants.
Currently pending before the Court is the County Defendants' Rule 12(b)(6) Motion to Dismiss Counts I and II. ECF No. 19. For the following reasons, the Motion to Dismiss will be granted.
In the operative Amended Complaint, Plaintiffs make the following detailed factual allegations. Mr. Petrosky, age 43, arrived at ACJ on March 6, 2014. ECF No. 14 ¶ 1. Upon arrival, he complained of chest pain at the infirmary. Id. The ACJ infirmary was operated and staffed by Corizon Health and Corizon Inc.
On May 15, 2014, a medical evaluation noted that Mr. Petrosky's body temperature was 102.2 degrees Fahrenheit and his pulse at 114 beats per minute.
During a June 27, 2014, medical examination, it was noted that Mr. Petrosky had lost twenty-nine pounds since his incarceration.
From June 27, 2014, to September 14, 2014, Corizon employees CRNP Litzinger and PA-C Druskin repeatedly evaluated Mr. Petrosky and entered numerous orders.
At some point between the date of his incarceration at ACJ on March 6, 2014, and September 14, 2014, Mr. Petrosky lost the ability to walk.
On September 14, 2014, immediately upon transfer to the Westmoreland County Jail, Mr. Petrosky's serious medical condition was recognized.
Due to the seriousness of Mr. Petrosky's cardiac condition, he was transferred from Westmoreland Regional Hospital to Allegheny General Hospital ("AGH") where he was diagnosed with endocarditis, a life-threatening bacterial infection affecting his heart and its valves.
In January of 2015, due to damage to his spleen caused by the delay in treatment, Mr. Petrosky had his spleen removed.
In May 2015, Mr. Petrosky's endocarditis recurred.
Plaintiffs initiated this action by filing their Complaint in the Court of Common Pleas of Allegheny County on January 4, 2017.
The County Defendants removed Plaintiffs' action to this Court on February 1, 2017. ECF No. 1. On February 6, 2017, the Corizon Defendants filed an Answer and Affirmative Defenses. ECF No. 3. On February 22, 2017, the County Defendants filed a Motion to Dismiss and Brief in Support. ECF Nos. 4, 5. On March 16, 2017, Plaintiffs filed a Brief in Opposition. ECF No. 11. Therein, Plaintiffs withdrew Count II, Count III, Count IV and Count VI.
On May 10, 2017, this Court granted the Motion to Dismiss as to Count I and Count V without prejudice to Plaintiffs' ability to file, on or before June 9, 2017, an Amended Complaint curing the defects identified in the Opinion. ECF No. 13. This Court further granted the Motion to Dismiss prejudice as to Count XII against Allegheny County, Allegheny County Jail and Orlando Harper and as to all claims brought against Orlando Harper in his official capacity.
On June 9, 2017, Plaintiff filed the operative Amended Complaint. ECF No. 14. Therein, Plaintiffs raised eight counts: (1) Count I: Section 1983 claim against Allegheny County; (2) Count II: Section 1983 claim against Warden Harper; (3) Count III: Negligence against Corizon Health, Inc.; (4) Count IV: Negligence against Corizon, Inc.; (5) Count V: Negligence against Dr. Patterson; (6) Count X: Negligence against CRNP Litzinger; (7) Count VII: Negligence against PA-C Druskin; and (8) Count VIII: Loss of Consortium against the Corizon Defendants.
On June 16, 2017, the Corizon Defendants filed an Answer. ECF No. 15. On July 7, 2017, the County Defendants filed the instant Motion to Dismiss and a Brief in support. ECF Nos. 19-20. On July 28, 2017, Plaintiff filed a Brief in opposition. ECF No. 23. On August 11, 2017, the County Defendants filed a Reply Brief. ECF No. 24. The instant Motion to Dismiss is ripe for consideration. The Motion to Dismiss relates only to Counts I and II.
As the United States Supreme Court explained in
At Count I of their Complaint, Plaintiffs bring a Section 1983 claim of Allegheny County's deliberate indifference to Mr. Petrosky's serious medical needs based solely on a violation of Eighth Amendment standards arising under the Fourteenth Amendment.
In order to succeed on a Section 1983 claim, a claimant must show: (1) the conduct complained of was performed by a person acting under color of state law; and (2) this conduct deprived the claimant of rights, privileges, or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983;
Prisoners have a constitutional right to receive adequate medical care.
The County Defendants argue that Allegheny County cannot be held liable on this claim because Plaintiffs have failed to allege an Allegheny County policy or custom that denied Mr. Petrosky's appropriate medical assessment and treatment. ECF No. 20 at 13-16. Instead, they argue, Allegheny County provided Mr. Petrosky with medical care through the medical professional of Corizon.
Indeed, a municipality may only be liable for its own illegal acts or if a plaintiff identifies a municipal "policy" or "custom" that caused a constitutional violation.
In opposing the previous Motion to Dismiss as to Count I, Plaintiffs cited Mr. Petrosky's rapid weight loss, eventual inability to walk and repeated requests for medical care, and argued that they "should be given the opportunity to prove that Allegheny County allowed a policy to exist where medical care of such obviously ill patients was not reviewed, and requests for care not addressed." ECF No. 11 at 16. This Court found that, even assuming the truth of the cited allegations, the allegations were insufficient to establish a plausible claim that that a policy or custom existed that deprived Mr. Petrosky of his constitutional rights. ECF No. 13 at 7. Nonetheless, the Court permitted Plaintiffs to file an Amended Complaint specifically identifying the policies and/or customs upon which Plaintiffs based their deliberate indifference claim in Count I.
In opposing the instant Motion to Dismiss as to Count I, Plaintiffs rely on four facts: (1) Mr. Petrosky's loss of the ability to walk; (2) Mr. Petrosky's loss of almost 30 pounds in less than four months; (3) Mr. Petrosky's repeated requests for medical care; and (4) the immediate recognition by the Westmoreland County Jail of Mr. Petrosky's condition. ECF No. 23 at 12-13. As the County Defendants point out, ECF No. 24 at 2, none of these facts are new to the Amended Complaint. Indeed, in their Amended Complaint, Plaintiffs do not identify any additional facts as to Count I.
At Count II, Plaintiffs raise a Section 1983 claim of supervisor liability on the part of Warden Harper, in his individual capacity, for deliberate indifference to Mr. Petrosky's serious medical needs. ECF No. 14 ¶¶ 29-37; ECF No. 23 at 15-19.
Under Section 1983, a supervisor may be liable if he or she, "with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused the constitutional harm."
In support of the Motion to Dismiss, the County Defendants argue that Plaintiffs have failed to allege sufficient facts in the Amended Complaint to support a claim of supervisory liability on the part of Warden Harper. ECF No. 20 at 10-11. In opposition to this Motion to Dismiss, as they did in opposition to the previous Motion to Dismiss, ECF No. 11 at 14, Plaintiffs assert that Warden Harper is liable because he "was deliberately indifferent to whether the medical needs of Petrosky, or other obviously ill inmates, were being addressed by the medical provider." ECF No. 23 at 19. However, as this Court found in its opinion addressing the previous Motion to Dismiss, Plaintiffs' allegations are not sufficient for the Court to infer that Warden Harper was deliberately indifferent to Mr. Petrosky's medical needs.
Although Plaintiffs now allege that Warden Harper "knew that Mr. Petrosky was seriously ill, in need of medical attention, and that his constitutional rights to adequate medical care were being violated;" Plaintiffs further allege that this "knowledge" on the part of Warden Harper came "(t]hrough [Mr. Petrosky's] rapid weight loss while at ACJ, his development of an inability to walk and repeatedly [sic] requests for care." ECF No. 14 ¶ 31. While part of this allegation appears to implicate Warden Harper's direct knowledge of violations of Mr. Petrosky's rights, the remainder of the allegation reveals that the factual basis for Warden Harper's knowledge is based solely on his position as warden. As the County Defendants point out, Plaintiff are merely asserting respondeat superior liability, which is not cognizable in a Section 1983 action. ECF No. 24 at 4 (citing
For the foregoing reasons, the County Defendants' Motion to Dismiss, ECF No. 19, will be granted. The federal claims at Counts I and II will be dismissed and the County Defendants will be dismissed from the case. Further, because the remaining claims in this case are state law claims and the Court lacks diversity jurisdiction over them, the case will be dismissed pursuant to Federal Rule of Civil Procedure 12(h)(3) and remanded to the Court of Common Pleas of Allegheny County for all further proceedings.
AND NOW, this 15th day of December, 2017, IT IS HEREBY ORDERED that the Motion to Dismiss, ECF No. 19, is GRANTED. Count I and Count II are dismissed with prejudice.
IT IS FURTHERED ORDERED that Defendants Allegheny County and Orlando Harper are dismissed from the case.
IT IS FURTHER ORDERED that this case is dismissed pursuant to Federal Rule of Civil Procedure 12(h)(3). The Clerk of Court shall remand this case to the Court of Common Pleas of Allegheny County.