IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DARREL FITE, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-14-781

:

PRIMECARE MEDICAL, ET AL., : (Judge Brann)

:

Defendants :

MEMORANDUM

July 24, 2015

Background

 This pro se civil rights action pursuant to 42 U.S.C. § 1983 was filed by

Darrel Fite who is presently confined at the State Correctional Institution, Coal

Township, Pennsylvania (SCI-Coal Twp.). Service of the Complaint was

previously ordered. 

Named as Defendants are the Centre County Correctional Facility,

Bellefonte, Pennsylvania and PrimeCare Medical Inc. (“PrimeCare”).1

 Plaintiff

states that he entered the Centre County Correctional facility on January 16, 2014. 

1 PrimeCare is a private corporation which has been contracted by the Centre

County Correctional Facility to provide health care for its inmates.

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He initially asserts that while confined at the prison on February 25, 2014, L.P.N.

Goodman, a non-defendant, told him he had to take his 4:00 p.m. medication at

12:00 p.m.2

 See Doc. 1, ¶ IV(1). The medication at issue was purportedly

prescribed by his treating psychologist. Dr. Terri Calvert, who has also not been

named as a defendant in this action.3

When Plaintiff explained to Goodman that to do so would be contrary to Dr.

Calvert’s prescription, the LPN allegedly told the inmate that if he did not take the

medication now he “would not receive his 4:00 p.m. dose and would go without.” 

Id. Although Fite took the medication, he submitted a complaint to Dr. Calvert’s

attention regarding the incident that same day. The next day, Fite states that he

received a response from Thomas Tobin, L.P.N. stating that the change “should

have no effect on you medically this is protocol to increase nurse efficiency.” Id.

at (2).

On March 1, 2014, L.P.N. Walls, also a non-defendant, was distributing

medications. It is alleged that as Plaintiff approached the medication cart, Walls

2

 Presumably, Licensed Practical Nurse (LPN). 

3 An exhibit attached to the Complaint indicates that Fite was taking multiple

psychotropic medications including, Vistarol, Zoloft, Lamictal, Neurontin, Remeron

as well as Naproxen for pain prior to his admission to the prison. Thereafter, Dr.

Calvert and Plaintiff agreed on February 7, 2014 that Vistarol, Zoloft, and Remeron

should be discontinued.

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purportedly “started crying and removed herself from the housing unit.” Id. at (3). 

She later returned but refused to give Plaintiff his dose of Neurontin which he is

supposed to receive three (3) times daily. 

Plaintiff next contends that he was denied an evening dose of medication on

March 8, 2014 by L.P.N. Johnston, a non-defendant, on the basis that it was her

understanding that Fite was only to be given the medication twice a day (morning

and afternoon). The Complaint next contends that Plaintiff met with Dr. Calvert

on March 14, 2014 and discussed the above described incidents. Calvert allegedly

replied that “there was not to be a removal of my medication (3x’s daily) when the

C.C.C.F. informed her that they were going to being [sic] transitioning [sic] to

that of (2 medication passes a day).” Id. at p. 3. Calvert than made a computer

entry and noted that Fite would receive his medication three times daily as

prescribed. 

Later that same day, L.P.N. Walls allegedly refused to give Plaintiff his

afternoon medication without offering any explanation. On March 18, 2014, as

Walls was distributing morning medications, Plaintiff states that he allowed older

prisoners to go ahead of him and he moved to the rear of the medication line. 

After the older prisoners received their medication, Walls began to leave when

Fite approached the medication cart and refused to provide Plaintiff with his

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morning medication, informing the prisoner that he had not been in the medication

line. An administrative grievance which Fite filed regarding this incident was

denied. Finally, on April 8, 2014, Plaintiff claims that his morning medication

was not distributed until 1:00 p.m. and he was not given his afternoon dose. He

was told only that it was “the jail’s fault this time.” Id. at p. 4. The Complaint

seeks an award of monetary damages and injunctive relief.

Presently pending is Defendant PrimeCare’s motion to dismiss. See Doc.

18. The opposed motion is ripe for consideration.

Discussion

Defendant PrimeCare asserts that it cannot be held liable for any actions

attributed to its employees under a theory of respondeat superior. See Doc. 18, ¶

11. Moreover, since there is no indication that Plaintiff was harmed as the result of

any unconstitutional PrimeCare policy, procedure, or custom, said Defendant is

entitled to entry of dismissal. See id. at ¶ 12. It is also argued that the actions

attributed to Prime Care did not constitute deliberate indifference.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of

complaints that fail to state a claim upon which relief can be granted. When ruling

on a motion to dismiss under Rule 12(b)(6), the court must “accept as true all

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factual allegations in the complaint and all reasonable inferences that can be

drawn therefrom, and view them in the light most favorable to the plaintiff.” 

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher,

423 F.3d 347, 350 (3d Cir. 2005)). A plaintiff must present facts that, if true,

demonstrate a plausible right to relief. See Fed. R. Civ. P. 8(a)(stating that the

complaint should include “a short and plain statement of the claim showing that

the pleader is entitled to relief”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). This requirement “calls for enough facts to raise a reasonable expectation

that discovery will reveal evidence of” the necessary elements of the plaintiff’s

cause of action. Id. at 556. A complaint must contain “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662

, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements do not suffice.” Id. Legal conclusions must be

supported by factual allegations and the complaint must state a plausible claim for

relief. See id. at 679. 

“Factual allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are

true (even if doubtful in fact).” Twombly, at 555. The reviewing court must

determine whether the complaint “contain[s] either direct or inferential allegations

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respecting all the material elements necessary to sustain recovery under some

viable legal theory.” Id. at 562; see also Phillips v. County of Allegheny, 515 F.3d

224, 234 (3d Cir. 2008)(in order to survive a motion to dismiss, a plaintiff must

allege in his complaint “enough facts to raise a reasonable expectation that

discovery will reveal evidence of the necessary element[s]” of a particular cause of

action). Additionally, pro se pleadings are to be construed liberally, Haines v.

Kerner, 404 U.S. 519, 520 (1972).

Mootness

Fite’s Complaint in part seeks an award of injunctive relief. See Doc. 1 ¶ V. 

Specifically, he requests that Centre County terminate its contract with PrimeCare

and that proper medical care be provided to the inmate population.

Federal courts can only resolve actual cases or controversies, U.S. Const.,

Art. III, § 2, and this limitation subsists “through all stages of federal judicial

proceedings. . . .” Id. see also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (the

adjudicatory power of a federal court depends upon "the continuing existence of a

live and acute controversy)" (emphasis in original). An actual controversy must

be extant at all stages of review, not merely at the time the complaint is filed." Id.

at n.10 (citations omitted). "Past exposure to illegal conduct is insufficient to

sustain a present case or controversy . . . if unaccompanied by continuing, present

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adverse effects." Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y. 1985)

(citing O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)); see also Gaeta v.

Gerlinski, Civil No. 3:CV-02-465, slip op. at p. 2 (M.D. Pa. May 17, 2002)

(Vanaskie, C.J.).

Furthermore, an inmate's claim for injunctive and declaratory relief fails to

present a case or controversy once the inmate has been transferred. Wahl v.

McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (citation omitted); see also Carter v.

Thompson, 808 F. Supp. 1548, 1555 (M.D. Fla. 1992).

 When this matter was initiated, the Plaintiff was confined at a correctional

facility in Wernersville, Pennsylvania.4

 See Doc. 1, p. 1. Thereafter, he was

transferred to SCI-Coal Twp. See Doc. 8. There is no indication that Fite will be

returned to the Centre County Correctional Facility in the foreseeable future. 

Accordingly, Plaintiff’s action to the extent that it seeks injunctive relief based

upon actions which occurred during his prior confinement at the Centre County

Correctional Facility is subject to dismissal on the basis of mootness.

Personal Involvement

A plaintiff, in order to state an actionable civil rights claim, must plead two

4 The Centre County Correctional Facility is located in Bellefonte,

Pennsylvania.

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essential elements: (1) that the conduct complained of was committed by a person

acting under color of law, and (2) that said conduct deprived the plaintiff of a

right, privilege, or immunity secured by the Constitution or laws of the United

States. See Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995);

Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990).

Furthermore, federal civil rights claims brought under § 1983 cannot be

premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown, via the

complaint's allegations, to have been personally involved in the events or

occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976);

Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As

explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs. . . . [P]ersonal involvement

can be shown through allegations of personal direction or of

actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity. 

Rode, 845 F.2d at 1207.

Based on the nature of Fite’s allegations, it is apparent that he may, at least

in part, be attempting to establish liability against PrimeCare on the basis that it

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employs members of the Centre County Prison medical staff. Under the

standards developed in Rode, this Court agrees that any such assertions are

insufficient for purposes of establishing liability under § 1983.

In order to establish a viable § 1983 claim against a private corporate entity

such as PrimeCare, it must be asserted that said defendant had a policy, practice,

or custom which caused injury to the plaintiff. See Adonai-Adoni v. King, 2009

WL 890683 * 2 (E.D. Pa. March 31, 2009) (a private health care provider can only

be liable under § 1983 if claim rests upon some policy, practice or custom); see

also Riddick v. Modery, 250 Fed. Appx. 482, 483-84 (3d Cir. 2007); Carpenter v.

Kloptoski, 2010 WL 891825 * 8 (M.D. Pa. March 10, 2010)(§ 1983 claim against

private medical service solely on the basis that it was responsible for providing

health care is subject to dismissal). 

Fite’s pro se complaint includes a claim that Plaintiff was denied 

medication in the manner prescribed because there was a change in medication

distribution protocol within the prison for the purpose of increasing nurse

efficiency. This alleged policy reduced the distribution of medications at the

prison. However, there is no specific allegation that this change was the result of 

a PrimeCare policy, practice or custom.

The complaint asserts that Dr. Calvert indicated that she had been informed

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by prison officials that they were going to be switching to two medication passes a

day. See Doc. 1, p. 3. There is no assertion that the policy was formulated by

PrimeCare. Furthermore, in an exhibit attached to the complaint dated March 9,

2014 (over a week after Tobin allegedly informed Fite of the new protocol), 

Plaintiff admits that PrimeCare staff “are still conducting 7:00 am 12:00 pm 4:00

pm and 7:00 pm medication passes.” Id. at p. 5.

Based upon the Plaintiff’s own admission that PrimeCare was still having

four daily distributions of medications as of March 9, 2014, there is no basis for a

claim that a PrimeCare distribution reduction policy change resulted in denial of

medication to Plaintiff on March 1, 2014 and March 8, 2014. Moreover, the

purported denial of medication to Fite on March 18, 2014 was due to a perception

by nursing staff member that the inmate had not been standing in the medication

line as required and was not related to any reduction in medication distribution

procedures. Finally, Plaintiff’s contention that his morning medication on April 8,

2014 was delivered late and he was not given an afternoon dose does not support a

claim of an unconstitutional policy change by PrimeCare.

In conclusion, given Plaintiff’s admission that PrimeCare was still

conducting four distributions of medications daily there is no factual support for a

claim based upon any PrimeCare policy change reducing the number of daily

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medication distributions. 

Deliberate Indifference

PrimeCare also asserts that the Complaint fails to allege any facts which

could support a claim that it acted with deliberate indifference to Plaintiff’s

medical needs. 

The Eighth Amendment “requires prison officials to provide basic medical

treatment to those whom it has incarcerated.” Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). In order to

establish an Eighth Amendment medical claim, an inmate must allege acts or

omissions by prison officials sufficiently harmful to evidence deliberate

indifference to a serious medical need. See Spruill v. Gillis, 372 F.3d 218, 235 -

36 (3d Cir. 2004); Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582

(3d Cir. 2003). In the context of medical care, the relevant inquiry is whether the

defendant was: (1) deliberately indifferent (the subjective component) to (2) the

plaintiff’s serious medical needs (the objective component). Monmouth Cty. Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West v. Keve, 571

F.2d 158, 161 (3d Cir. 1979). 

A serious medical need is “one that has been diagnosed by a physician as

requiring treatment or one that is so obvious that a lay person would easily

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recognize the necessity for a doctor’s attention.” Mines v. Levi, 2009 WL 839011

*7 (E.D. Pa. March 26, 2009)(quoting Colburn, 946 F.2d at 1023); Monmouth

Cty. Corr. Inst. Inmates, 834 F.2d at 347. “[I]f unnecessary and wanton infliction

of pain results as a consequence of denial or delay in the provision of adequate

medical care, the medical need is of the serious nature contemplated by the Eighth

Amendment.” Young v. Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir.

2008)(quoting Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347). 

The Supreme Court has established that the proper analysis for deliberate

indifference is whether a prison official “acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S.

825, 841 (1994). A complaint that a physician or a medical department “has been

negligent in diagnosing or treating a medical condition does not state a valid claim

of medical mistreatment under the Eighth Amendment [as] medical malpractice

does not become a constitutional violation merely because the victim is a

prisoner.” Estelle, 429 U.S. at 106. When a prisoner has actually been provided

with medical treatment, one cannot always conclude that, if such treatment was

inadequate, it was no more than mere negligence. See Durmer v. O'Carroll, 991

F.2d 64, 69 (3d Cir. 1993). It is true, however, that if inadequate treatment results

simply from an error in medical judgment, there is no constitutional violation. See

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id. However, where a failure or delay in providing prescribed treatment is

deliberate and motivated by non-medical factors, a constitutional claim may be

presented. See id.; Ordonez v. Yost, 289 Fed. Appx. 553, 555 (3d Cir. 2008)

(“deliberate indifference is proven if necessary medical treatment is delayed for

non-medical reasons.”).

Plaintiff contention that he was suffering from mental health issues which

required treatment with multiple daily medications sufficiently satisfies the serious

medical need prong of Estelle at this juncture in the proceedings. However, with

respect to the subjective deliberate indifference component, this Court agrees that

there are no allegations that any Defendant was responsible for any denial or delay

in any medical treatment which Plaintiff required. On the contrary, Fite

acknowledges being provided with regular care by Dr. Calvert and there is no

assertion that he had a medical problem which went untreated. Plaintiff also

admits that the exact medication prescribed by Dr. Calvert was provided. The

Plaintiff also clearly admits that PrimeCare is “still conducting 7:00a.m., 12:00

p.m., 4:00 p.m. and 7:00 p.m. medication passes.” (emphasis added) Doc. 1, p. 5. 

As such, there is no basis for a deliberate indifference claim against Defendant

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PrimeCare.5

Centre County Correctional Facility

With respect to the Remaining Defendant, Centre County Correctional

Facility, 28 U.S.C. § 1915 (e)(2)(B)(I) permits a court to dismiss a claim at any

time if it determines that the claim is frivolous or malicious. 

The United States Supreme Court has ruled that a § 1983 action brought

against a "State and its Board of Corrections is barred by the Eleventh Amendment

unless [the State] has consented to the filing of such a suit." Alabama v. Pugh, 438

U.S. 781, 782 (1978). The United States Court of Appeals for the Third Circuit

has likewise concluded that the Pennsylvania Board of Probation and Parole could

not be sued because "it is not a 'person' within the meaning of Section 1983." 

Thompson v. Burke, 556 F.2d 231, 232 (3d Cir. 1977).

Similarly, a prison or correctional facility is not a person within the meaning

of § 1983. See Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973); Philogene v.

Adams County Prison, Civ. No. 97-0043, slip op. at p. 4 (M.D. Pa. Jan. 30, 1997)

(Rambo, C.J.); Sponsler v. Berks County Prison, Civ. A. 95-1136, 1995 WL

92370, at *1 (E.D. Pa. Feb. 28, 1995). Pursuant to the above standards, the Centre

5 The Court offers no opinion as to whether a viable claim has been stated

against any individuals not named as defendants in this matter.

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County Correctional Facility is clearly not a person and may not be sued under §

1983. See Thompkins v. Doe, No. 99-3941, slip op. at 3 (3d Cir. March 16, 2000).

Since Remaining Defendant Centre County Correctional Facility is not a

properly named defendant, the claims against it are "based on an indisputably

meritless legal theory." Accordingly, the Remaining Defendant is entitled to entry

of sua sponte dismissal without prejudice in its favor. See Wilson v. Rackmill,

878 F.2d 772, 774 (3d Cir. 1989). An appropriate Order will enter. 

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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