Lee Crawford v. Robert McMillan

CLD-012 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3412
___________
LEE E. CRAWFORD,
Appellant
v.
WARDEN ROBERT MCMILLAN; EDWARD ZALOGA, D.O.;
CORRECTIONAL CARE, INC.; ANTHONY IANNUZZI;
KEN MCCAWLEY, Nursing Supervisor;
LACKAWANNA COUNTY PRISON,
Individually and in their official capacities;
CHRIS KANE, Federal Marshall; SERGEANT KENNEDY;
DENTIST AT LACKAWANNA COUNTY CORRECTIONAL;
PSYCHOLOGIST OF LACKWANNA COUNTY PRISON
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-14-cv-01936)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 13, 2016
Before: FISHER, SHWARTZ and BARRY, Circuit Judges
(Opinion filed: October 21, 2016)
_________
OPINION*
_________
PER CURIAM
Lee Crawford appeals the District Court’s dismissal of his complaint. We will
summarily affirm.
In October 2014, Crawford, a federal pretrial detainee confined at Lackawanna
County Prison, filed a complaint in the Middle District of Pennsylvania, alleging
inadequate medical care and deliberate indifference to his medical conditions in violation
of his Eighth and Fourteenth Amendment rights, as well as state medical
malpractice/professional negligence claims. Crawford contended that he was not
properly tested and treated for sexually transmitted diseases, kidney disease, hepatitis C,
diabetes, and depression. Amongst the relief sought, Crawford requested an injunction
ordering defendants to correct the “gross systemic deficiencies” in the prison’s healthcare
and to provide Crawford with an immediate blood test concerning his possible exposure
to syphilis.1 Crawford named defendants: Robert McMillan, Warden of Lackawanna
County Prison and Lackawanna County Prison (“prison defendants”); Edward J. Zaloga,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Crawford claims that he complained to his girlfriend after she began visiting him at
Lackawanna County Prison that he suffered from excruciating abdominal pain. His
girlfriend allegedly informed him that she was diagnosed with secondary syphilis and
provided him with a medical treatment note which listed that condition as one of her
problems as of July 9, 2013.
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D.O., Correctional Care, Inc.; Anythony Iannuzzi, Certified Registered Nurse
Practitioner; and Ken McCawley, Nursing Supervisor (“medical defendants”).
In March 2015, the prison defendants filed an answer, which set forth several
affirmative defenses, including failure to state a claim upon which relief could be
granted. The medical defendants filed a notice of their intention to file a motion to
dismiss Crawford’s complaint for failure to file a certificate of merit. By order entered
on October 26, 2015, the District Court directed the medical defendants to file a
responsive pleading to Crawford’s complaint or risk default, dismissed the claims against
Lackawanna County Prison for failure to state a claim upon which relief could be granted
pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2)(B)(ii), and
dismissed Crawford’s claims for declaratory and injunctive relief as moot.2
In November 2015, the medical defendants filed a motion to dismiss for failure to
state a claim. By order entered on December 22, 2015, the District Court directed
Crawford to file a brief in opposition to the medical defendants’ motion to dismiss. On
June 7, 2016, the District Court issued an order granting the medical defendants’ motion
to dismiss as it related to Crawford’s medical malpractice claims, and determined that
pursuant to the PLRA, Crawford had failed to state a claim of deliberate indifference
under the Due Process Clause of the Fourteenth Amendment against all defendants.
2
The request for declaratory and injunctive relief was summarily dismissed because
Crawford was no longer incarcerated at Lackawanna County Prison. See Abdul-Akbar v.
Watson, 4 F.3d 195, 206-07 (3d Cir. 1993) (finding prisoner’s transfer or release from
prison moots claims for injunctive or declaratory relief as prisoner no longer subject to
allegedly unconstitutional conditions).
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However, the District Court gave Crawford an opportunity to file an amended complaint,
relating solely to his claim of deliberate indifference under the Due Process Clause
against the medical defendants and Warden McMillan.
In July 2016, Crawford filed an amended complaint which failed to cure the
deficiencies of the original complaint, reasserted claims that were previously dismissed
against the Lackawanna County Prison, and raised claims against defendants not named
in the original complaint. The new defendants included: Chris Kane, a United States
Marshal; Sergeant Kennedy, a correctional officer; an unnamed dentist at Lackawanna
Prison; and an unnamed psychologist at Lackawanna Prison. Shortly thereafter, the
medical defendants filed a motion to dismiss the amended complaint. On July 26, 2016,
the District Court granted the motion to dismiss as to the original medical and prison
defendants. The claims against the new defendants, which were not authorized by the
District Court’s June 7, 2016 order, were dismissed without prejudice to any right to file
a new complaint.
Crawford appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because
Crawford has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we
review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We
may summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks
substantial merit. We exercise plenary review of the District Court's order dismissing
Crawford’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. See Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir.
4
2011). In reviewing the dismissal under Rule 12(b)(6), “we accept all factual allegations
as true [and] construe the complaint in the light most favorable to the plaintiff.” Warren
Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche
Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). A court may grant a motion to
dismiss under Rule 12(b)(6) “only if, accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, [it] finds
that [the] plaintiff's claims lack facial plausibility.” Id. (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007)). Pro se pleadings, “however inartfully
pleaded,” must be held to “less stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). However, “pro se litigants still
must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
We agree with the determination of the District Court that Crawford’s claims
against Lackawanna County Prison must be summarily dismissed because the prison is
not an entity subject to suit under 42 U.S.C.§ 1983. See Fischer v. Cahill, 474 F.2d 991,
992 (3d Cir. 1973) (holding prison not a “person” subject to suit under § 1983).
We further conclude that dismissal was proper with regard to Crawford’s claims
against the medical defendants alleging malpractice/professional negligence and
deliberate indifference to his medical condition. Taking all of Crawford’s allegations as
true, we agree with the District Court that his failure to comply with Rule 1042.3 of the
Pennsylvania Rules of Civil Procedure is fatal to his claims of malpractice and
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professional negligence. Rule 1042.3 requires a plaintiff to file a certificate of merit
within sixty days after filing a professional negligence complaint. The certificate must be
signed by the attorney or party and certify that either
(1) an appropriate licensed professional has supplied a written statement
that there exists a reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional standards and that
such conduct was a cause in bringing about the harm, or
...
(3) expert testimony of an appropriate licensed professional is unnecessary
for prosecution of the claim.
Pa. R. Civ. P. 1042.3(a)(1) & (3). Rule 1042.3 is a substantive law that must be applied
by federal courts. Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir.
2011). Here, Crawford neither filed a certificate of merit nor did he provide a reasonable
excuse for failing to do so. Thus, dismissal was appropriate as to these claims.
The requirement to file a certificate of merit, however, does not apply to
Crawford’s claim of deliberate indifference to a serious medical condition. Because
Crawford is a pretrial detainee, his constitutional claim for inadequate medical care
would typically be adjudicated under the Due Process Clause of the Fourteenth
Amendment. See Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005). However, “we
determined that pretrial detainees are entitled to at least as much protection as convicted
prisoners and that decisions interpreting the Eighth Amendment serve as ‘useful
analogies.’” Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987) (quoting Hampton
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v. Holmesburg Prison Officials, 546 F.2d 1077, 1080 (3d Cir. 1976); see also Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (finding “no reason to
apply a different standard than that set forth in Estelle (pertaining to prisoners’ claims of
inadequate medical care under the Eighth Amendment)”); In Inmates of Allegheny Cty.
Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (concluding that “at a minimum, the
‘deliberate indifference’ standard of Estelle v. Gamble, must be met” at an institution
housing pretrial detainees).
The standard established in Estelle v. Gamble, 429 U.S. 97, 106 (1976), requires
that a prisoner plead facts that demonstrate “deliberate indifference to serious medical
needs.” In order to find deliberate indifference, “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 v. Brennan, 511 U.S. 825, 837 (1994).
However, “[w]here 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 judgments and to constitutionalize claims which sound in state tort law.” United
States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal
quotations and citation omitted); see also Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.
2004).
Here, Crawford contends that he was not properly tested for sexually transmitted
diseases and other chronic diseases that he suffered from, including kidney disease,
hepatitis C, and diabetes. However, as the District Court properly concluded, Crawford
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failed to provide factual support that he suffered from or was diagnosed with any of these
alleged ailments or suffered physical injuries as a result of the defendants’ actions. For
example, Crawford did not allege that he was experiencing any of the common symptoms
of syphilis or that he was ultimately tested and found positive for syphilis and that the
delay in testing resulted in medical complications or injury. Moreover, as the District
Court aptly noted, Crawford’s allegations make it clear that he received some medical
treatment, including tuberculosis testing and an examination. Crawford alleges that after
he received notification of his girlfriend’s test results, he wrote to McCawley and Zaloga
who forwarded his request for testing to the medical department. In July 2013, Crawford
alleges that in response to his request, he was called to sick-call and evaluated by
Iannuzzi. When Crawford requested testing for sexually transmitted diseases, defendant
Iannuzzi informed him that he would send to a prior state prison for Crawford’s medical
records because he did not want to perform testing that had already occurred. An exhibit
attached to Crawford’s brief in opposition to the medical defendant’s motion to dismiss
shows that in April 2014, Crawford was evaluated and given medication. Crawford
alleges in an April 2014 Grievance Form attached to his complaint that “Doctor Zaloga
choos[es] the ‘easier [and] less efficacious treatment.” All of this indicates that
Crawford was indeed treated by the prison medical staff but that he disagreed with this
treatment.
Neither Crawford’s disagreement with this treatment nor its alleged inadequacy
raises an inference of deliberate indifference. See, e.g., Estelle, 429 U.S. at 107
8
(explaining that “[a] medical decision not to order [a diagnostic test] does not represent
cruel and unusual punishment” because, at most, it -constitutes malpractice). Crawford
has not alleged sufficient facts that defendants intentionally refused to provide needed
treatment, delayed necessary treatment for a non-medical reason, prevented Crawford
from receiving needed or recommended treatment, or persisted in a particular course of
treatment “in the face of resultant pain and risk of permanent injury.” Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999) (quoting White v. Napoleon, 897 F.2d 103, 109-11 (3d
Cir. 1990)). Accordingly, the District Court properly dismissed Crawford’s claims
against the medical defendants.
We further agree with the District Court that Crawford’s deliberate indifference
claim against Warden McMillan, based on the theory of respondeat superior, must fail.
See Capone v. Marinelli, 868 F.2d 102, 106 (3d Cir. 1989) (finding liability may not be
imposed under § 1983 on principle of respondeat superior); Hampton v. Holmesburg
Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976) (same). Moreover, as the District
Court properly concluded, as a non-medical personnel, Warden McMillan is entitled to
presume the competence of medical staff in treating a prisoner, meaning that his conduct
cannot, without much more, amount to “deliberate indifference.” See Sprulli, 372 F.3d at
236 (3d Cir. 2004). Accordingly, the District Court properly dismissed his claim against
Warden McMillan.
With regard to the claims against the newly-named defendants, which were not
authorized by the District Court’s June 7, 2016 order, we conclude that they were
9
appropriately dismissed by the District Court without prejudice to any right to file a new
complaint.
For the foregoing reasons, we conclude that there is no substantial question
presented by this appeal, and will thus summarily affirm the District Court’s orders
dismissing Crawford’s complaint. Crawford’s motion for appointment of counsel is
denied.
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