PITTSBURGH – The widow of a man incarcerated at the Allegheny County Jail and who passed away from COVID-19 two years ago, a plaintiff who contended that institutional failures on the part of the jail and its officials directly contributed to his death, is now trying to refute an attempt to dismiss her case.
Sheila Harper (as administrator of the Estate of Robert Edward Henry Harper) first filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 10 versus Allegheny County, Allegheny County Jail Warden Orlando Harper (in his individual capacity) and John/Jane Doe(s) Nos. 1 and 2 (in their individual capacities).
“On or about Aug. 10, 2021, decedent tested positive COVID-19 while in the care and custody of defendant County’s Allegheny County Jail. At that time, decedent was housed at defendant County’s Allegheny County Jail as a pre-trial detainee. Upon information and belief, defendants County, Harper, Doe(s) 1 and/or Doe(s) 2 were informed of decedent’s diabetes diagnosis upon his intake into Allegheny County Jail. As a result of the decedent’s positive COVID-19 test, defendants Doe(s) 1 and/or Doe(s) 2 separated the decedent from Allegheny County Jail’s general population and placed him into quarantine,” the suit said.
“Thereafter, decedent’s condition worsened, and he experienced serious symptoms including, but not limited to, an inability to stand and/or move. Despite the clear deterioration of decedent’s health, and the defendants’ actual knowledge of his prior diabetes diagnosis, decedent was not transferred to a medical facility for observation and/or treatment. Plaintiff believes, and therefore avers, that defendants Doe(s) 1 and/or Doe(s) 2 did not take steps that were reasonable and necessary in order to treat decedent’s serious medical needs, as described hereinbefore above. Therefore, defendants Doe(s) 1 and/or Doe(s) 2 were deliberately indifferent to decedent’s serious medical needs, despite knowledge of the same. Furthermore, defendants Doe(s) 1 and Doe(s) 2 refused to enter decedent’s cell to provide him with any meals for multiple days during the pendency of his illness, despite their actual knowledge of decedent’s diabetes diagnosis. Plaintiff believes, and therefore avers, that the actions of defendants Doe(s) 1 and and/or Doe(s) in refusing to provide the decedent with meals for multiple days during his illness contributed to his failing health.”
The suit added that the plaintiff also believes that the Doe defendants “did not take steps that were reasonable and necessary in order to treat decedent’s serious medical needs, and thus, “were deliberately indifferent to the decedent’s serious medical needs, despite knowledge of the same.”
“On or about Aug. 19, 2021, approximately nine days after decedent tested positive for COVID-19, decedent was transported to Allegheny General Hospital for treatment. Decedent died in the hospital as result of complications associated with COVID-19 on or about Sept. 12, 2021. During decedent’s confinement in Allegheny County Jail until his death, decedent’s medical condition progressively worsened due to defendant County’s failure to provide adequate medical care. Despite defendants County’s, Harper’s, Doe(s) 1’s and/or Doe(s) 2’s actual knowledge of decedent’s worsening medical condition, as described hereinbefore above, the defendants, and each of them, took no legitimate action to treat his medical needs prior to his death. Accordingly, defendants County, Harper, Doe(s) 1 and/or Doe(s) 2 were deliberately indifferent to decedent’s serious medical needs, despite knowledge of the same,” the suit stated.
“Decedent was unable to access defendant County’s administrative remedy process and/or defendant County’s administrative remedy process was unavailable to him due to decedent’s worsening health, as more fully described hereinbefore above. Plaintiff believes, and therefore avers, that defendants’ aforementioned illegal conduct is part of a policy, practice, or custom of providing inadequate treatment to inmates experiencing COVID-19 symptoms and/or inmates with other serious medical needs. As a result of defendant County’s aforementioned policy, practice, or custom, decedent experienced a violation of his rights under the Fourteenth Amendment, undue pain, suffering and death. Plaintiff also believes, and therefore avers, that defendant County failed to properly train its staff in treating inmates experiencing COVID-19 symptoms and/or inmates with other serious medical needs. This practice created an unreasonable risk of serious injury or death to inmates with serious medical needs.”
The suit concluded that Harper, as the Warden of the Allegheny County Jail and a decision-maker “was aware of and/or acquiesced in the aforementioned illegal actions, customs and policies of defendant County…and/or otherwise ratified the illegal conduct of the individual defendants” – and that as a result, the “decedent experienced a violation of his rights under the Fourteenth Amendment, undue pain, suffering and death.”
The defendants answered the complaint on Dec. 15, charging that they were not responsible for the decedent’s passing and that the plaintiff had failed to state claims upon which relief could be granted.
“Plaintiff’s decedent was at material times a pretrial detainee at the Allegheny County Jail (ACJ). Prior to Aug. 10, 2021, the decedent was diagnosed with diabetes. Upon information and belief ACJ Warden Orlando Harper was informed of decedent’s diabetes diagnosis upon intake to the ACJ. Decedent was diagnosed with COVID-19 on Aug. 10, 2021. Following decedent’s COVID-19 diagnosis he was removed from general population and moved to quarantine status. After he was moved to quarantine his condition deteriorated,” the answer stated.
“The symptoms associated with his deterioration are not specified except that decedent could not ‘stand and/or move.’ The date this deterioration occurred is not stated. It is alleged that the Doe defendants 1 and 2 did not provide him with meals for multiple days during his illness. On Aug. 19, 2021, decedent was transferred to Allegheny General Hospital where he died on Sept. 12, 2021, from complications of COVID-19. The amended complaint also makes many conclusory claims that are not detailed here, but they may be summarized as general allegations about the sufficiency of ACJ medical policies and practices.”
The answer continued that the complaint further fails to state a cause of action against Orlando Harper in his individual capacity, because he did not participate in nor interfere with the decedent’s medical care and for which he claims qualified immunity.
“The Allegheny County Jail’s policy and practices were not deliberately indifferent to the decedent’s right to appropriate medical care. Count III makes a claim for wrongful death damages for persons who are not parties and whose have no standing to make a claim under 42 U.S.C. 1983, because their rights were not violated by the defendants,” the answer added.
UPDATE
On Jan. 30, the plaintiff responded to the answer and in a reply brief, asserting that the defendants’ arguments “lack merit.”
“Plaintiff has set forth plausible claims for relief in her amended complaint that would allow this Court to draw the reasonable inference that the defendants are liable for the misconduct alleged. More specifically, plaintiff pled that the decedent, her husband, Robert Edward Henry Harper, tested positive for COVID-19 on or about Aug. 10, 2021, while in the care and custody of defendant County while he was housed at Allegheny County Jail as a pre-trial detainee. Thereafter, decedent’s condition continued to worsen and he became increasingly and observably ill, while he experienced symptoms that included, but were not limited to, an inability to stand and/or move, pain and trouble breathing. Despite these symptoms, decedent was not transferred to a medical facility for observation and/or treatment,” the reply brief stated.
“Plaintiff also pled that defendants County and Harper were aware that decedent was extremely ill and experiencing serious symptoms but took no legitimate action to treat his medical needs during the pendency of his illness. On or about Aug. 19, 2021, approximately nine days after decedent tested positive for COVID-19, decedent was transported to Allegheny General Hospital for treatment. Decedent died in the hospital as result of complications associated with COVID-19 on or about Sept. 12, 2021. Although defendants argue ‘that decedent ultimately died is not a material fact,’ this fact, along with those detailed more fully hereinbefore above, establish plaintiff’s claims under federal and state law. Therefore…plaintiff respectfully requests that this Honorable Court deny defendants’ motion to dismiss plaintiff’s amended complaint in its entirety.”
For counts of failure to provide adequate medical care, failure to train and wrongful death in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution, the plaintiff is seeking compensatory general damages against the defendants, and each of them, jointly and severally, in the amount proven at trial; compensatory special damages including, but not limited to, costs of suit; reasonable attorney’s fees as permitted by law; pre- and post-judgment interest as permitted by law; punitive damages against the individual defendants; damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration; and such other relief, including injunctive and/or declaratory relief, as this Court may deem proper.
The plaintiff is represented by Joel S. Sansone, Elizabeth Tuttle and Massimo A. Terzigni of the Law Offices of Joel Sansone, in Pittsburgh.
The defendants are represented by John A. Bacharach of the Allegheny County Law Department, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01433
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com