Gannaway v. Prime Care Medical, Inc. (150 F. Supp. 3d 511, 2015)

United States District Court for the Eastern District of Pennsylvania 2015-12-21

The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM

EDUARDO C. ROBRENO, DISTRICT JUDGE. '

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY... 521

II. STANDARD OF REVIEW... 523

III. DISCUSSION...524

A.PrimeCare Medical ‘ Defendants’ Motion for Summary' Judgment (ECF Nos.' 92 & 93)... . 524

1. Eighth Amendment Violation Based on Inadequate' Medical Care Against Defendants' Dillman and Gessner., .525

2. Eighth Aniendment Violation Based on Inadequate Medical Care Against Defendant PrirheCare Medical.. .530

3. State Law Negligence Claim Based on Inadequate Medical Care Against Defendants PrimeCare Medical, Dill-man, and Gessner... 530

B. Defendants ADAPPT, Inc., and William Tillman’s Motion for Summary Judgment (ECF Nos. 97 & 98).. .531 '

C. Defendant Berks County Public Defender’s Office’s Motion for Summary Judgment (EOF No. 99)... 533,

D. Defendant Osmer .Deming’s Motion for Summary Judgment (ECF No. 102)...536

1. Section 1983 Claims Against Défen-dant Deming.. .537

2. Legal Malpractice Claim Against Defendant Deming.. .538

E. Commonwealth Defendants’ Motion for Summary Judgment (ECF Nos. 113 & 114)...539

1. Eighth Amendment Claim Against All Commonwealth Defendants.. .545

2. Violation of the Due Process Clause of the Fourteenth Amendment Claim Against, All Commonwealth Defendants ...549

3., First Amendment Retaliation Claim Against All Commonwealth Defendants ... 552

4. Violation ' of Right of Access ' to Courts Claim Against All Commonwealth Defendants.; .554

IV. PLAINTIFF’S REPEATED REQUESTS FOR COUNSEL... 555

V. REMAINING' DEFENDANTS...556

VI." CONCLUSION...557

Plaintiff Shakur Gannaway, currently an inmate at Pennsylvania State Correctional Institution (“SCI”) at Rockview, brings this pro se civil rights action' under 42 U,S.C. § 1983 against seventy-four defendants, including fifty-four- agencies and employees of the Commonwealth of Pennsylvania, private companies and healthcare' professionals contracted to provide medical services to the state correctional institutions, and other non-state defendants, including his court-appointed attorneys.

Although Plaintiffs Amended Complaint is disorganized, rambling, and often difficult to decipher, the heart of Plaintiffs allegations is that he received inadequate medical treatment throughout his incarcer- ation in 'Violation of the Eighth Amendment to the United States Constitution and state medical malpractice laws. Plaintiff also appears to bring several other constitutional claims under § 1983, including claims concerning First Amendment retaliation, violations of due process, and denial of access to the courts.

The Court ordered Plaintiff to be deposed, and following Plaintiffs deposition on June 19, 2014, Defendants moved for summary judgment, attaching as exhibits Plaintiffs deposition, entire file of medical records, and entire grievance file, among other things. After the Court granted Plaintiff several extensions to respond to these motions, Plaintiff has finally submitted “objections,” which the Court will construe as responses to Defendants’ motions. Accordingly, the five pending summary judgment motions are now ripe for disposition. After an exhaustive review of the record, and for the reasons set forth below, the Court will grant Defendants’ motions for summary judgment as to all claims against all defendants.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is currently in thé custody of the Pennsylvania Department of Corrections. (“DOC”), serving a sentence of fifteen to thirty years for a conviction related to a 2009 armed robbery. Before his criminal trial, Plaintiff was detained at the Berks County Prison to await the disposition of the robbery charges and also pursuant to a probation/parole detainer attached to an 'earlier offense. Still before then, Plaintiff, while on parole for yet another offense, was assigned to a treatment program at ADAPPT House, a residential facility contracted by the DOC.

Because Plaintiff brings claims against a myriad of defendants concerning a legion of events, the .facts pertinent to each claim will be addressed in the discussions of Defendants’ summary judgment- motions below.

Plaintiff initiated this action on March 5, 2012, by filing an application to proceed in forma pauperis. ECF No. 1. On March 29, 2012, the Court granted Plaintiffs application, requiring him ,to pay the full filing fee in installments pursuant to 28 U.S.C. § 1915. ECF No. 4. In the same order, the Court directed Plaintiff to file an Amended. Complaint,, noting that the statute of limitations limited Plaintiff to raising claims that occurred .within the two-year period before March 5, 2012, and directing Plaintiff to describe as clearly, briefly, and legibly as' possible the specific events that violated his constitutional rights, how each defendant was involved in his claims, and the harm he suffered from each violation. Id. at 2. Thereafter, Plaintiff asked the Court for several of extensions of time to file an Amended Complaint, which the Court granted. See ECF Nos. 10, 11, 14. Plaintiff finally filed his Amended Complaint on May -13, 2013. ECF No. 15. In his Amended Complaint, Plaintiff is unclear as to his requested relief. , .

After the U.S. Marshal served the defendants, four motions to dismiss were filed. On April 25, 2014, the Court denied these motions without prejudice, granted Defendants leave to take Plaintiffs deposition so Defendants could respond accurately' to Plaintiffs allegations, and set deadlines for Defendants to file motions for summary judgment and Plaintiff to respond thereto. ECF No. 63. These deadlines were subsequently extended. ECF No. 77.

On May 1, 2014, the Commonwealth Defendants filed a Motion to Dismiss. ECF No. 66. The Court granted the motion in part, dismissing SCI-Camp Hill, SCI-Greene, and SCI-Rockview, .as well as all claims against those Commonwealth Defendants sued in their official capacities. ECF No. 74.

Plaintiffs deposition was taken on June 19, 2014, and various defendants filed motions for summary judgment thereafter. Specifically, summary judgment motions were filed by (1) PrimeCare Medical, Inc., Paula Dillman, and Victoria Gessner, M.D. (collectively, “PrimeCare Medical Defendants”) (ECF Nos. 92 & 93); (2) ADAPPT, Inc., and William Tillman (collectively, the “ADAPPT Defendants”) (ECF Nos; 97 & 98); (3) the Berks County Public Defender’s Office (ECF No. 99 & 138); (4) Osmer Deming (ECF No. 102); and (5) the Commonwealth Defendants (ECF No. 113 & 114).

Plaintiff initially filed two responses to the PrimeCare Medical Defendants’ motion (ECF Nos. 104 & 105) but did not file responses to the others. After the most recent status and scheduling conference held on July 15, 2015, the Court directed the Clerk of Court to serve copies of all of the pending summary judgment motions, together with their supporting documents, to Plaintiff. See ECF No. 128. The Court then gave' Plaintiff until September 14, 2015, to file responses to Defendant’s motions for summary judgment. Id,

Thereafter, Plaintiff submitted a series of requests for extensions of time to respond to Defendants’ pending motions for summary judgment and for appointment of counsel. ECF-Nos. 133, 135, 136. By Order dated October 13, 2015, the Court denied these requests, noting that the Court had previously granted Plaintiff a number of extensions to file his responses to Defendants’ motions for summary judgment and that some of the Defendants’ motions had been pending for nearly one year. ECF No. 141. The Court also explained that it would reassess Plaintiffs request for appointment of counsel after the parties. fully briefed the summary judgment motions. Id. Even after this Order, Plaintiff submitted an additional request for an extension of time and appointment of counsel, purportedly due to mail tampering at SCI-Rockview and his ongoing medical issues. ECF No. 145.

Although Plaintiff requested and the Court denied an extension of time to respond to Defendants’ motion for summary judgment, Plaintiff recently filed several documents which he calls “objections” to Defendants’ summary judgment motions. ECF Nos. 132, 137, 143, 144, 146, 147,148. The Court will treat these documents as Plaintiffs opposition to the pending summary judgment motions. Plaintiff also recently filed a document which he titles “Request for Summary Judgment, Default Against SCI-Rockview Defendants for the Following Reasons,” ECF No. 149, which the Court will construe as an -additional response to the Defendants’ summary judgment motions.

II. STANDARD OF REVIEW

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion for summary judgment -will not be defeated by ‘the mere existence’ of some disputed'facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The Court will view the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving ‘ party’s favor, there is a genuine issue of material fact if a reasonable jury could find' for the nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir.2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must “set forth specific facts shpwing.that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

A document filed pro se is to be “liberally construed” and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Courts are especially “flexible when dealing with imprisoned pro se litigants [who] often lack the resources and freedom necessary to comply, with the technical rules of modern litigation.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir.2013). However, in summary judgment motion practice, “[t]he burden remains on the nonmoving party, not the court, ..to identify sufficient facts from the récord that show the existence of a genuine issue for trial.” St. Louis v. Morris, 573 F.Supp.2d 846, 852 (D.Del.2008) (providing the standard for analyzing a defendant’s motion , for summary judgment against a pro se plaintiff). And “[a]t the end of the day, [imprisoned pro'se litigants] cannot flout procedural rules — they must abide by the same rules that apply' to all other litigants.” Mala, 704 F.3d at 245.

III. DISCUSSION

A. PrimeCare Medical Defendants’ Motion for, Summary Judgment (ECF Nos. 92 & 93)

The Court first addresses the Prime-Care Medical Defendants’ summary judgment motion. ECF Nos. 92 & .93- The facts pertinent to Plaintiffs claims against the PrimeCare Medical Defendants appear to be as follows:

Plaintiff was incarcerated at Berks County Prison from May 25, 2009, to August 24,'2010, while awaiting the disposition of the robbery charges against him and also pursuant to a probation/parole detainer attached to an earlier offense. PrimeCare Defs.’ Mot. Summ. J. Ex. A, Gannaway Dep. at 80:13-16, 108:li — 22, June 19, 2014 [hereinafter '“Gannaway Dep.”]. During all relevant times', the prison contracted a private vendor, Defendant PrimeCare Medical, Inc., to provide medical services to inmates. PrimeCare Defs.’ Statement of Undisputed Facts ¶ 8/ The crux of Plaintiffs claims against the PrimeCare Medical Defendants concerns some sort of “intérrial stitch” or “medical device” allegedly inserted prior to his incarceration at Berks County Prison, which Plaintiff claims requires surgical removal. Am. Compl. ¶¶ 6, 12, 17, 20,! 23, 29, 31-32; Gannaway Dep. at 67:1-20. This stitch or device was purportedly left in Plaintiffs abdomen during a surgery he underwent after he was stabbed with a knife roughly fifteen years ago and has not been removed to date. Gannaway Dep. at 120:22-121:19. Plaintiff alleges that he suffers pain, as well as other symptoms including constipation and difficulty breathing, as a result of this “internal stitch.” Gannáway Dep. at 84:3-17.

During his deposition, Plaintiff testified that he had “a lot of physicals while [he] was at Berks County” and was “seen by a lot of people.” Id. at 85:21-24. Indeed, during his detention at Berks County Prison, which spanned a period of roughly one year and three months, Plaintiff submitted at least thirty-six sick call requests, all of which were addressed in some form by PrimeCare Medical staff. See generally PrimeCare Defs.’ Mot. Summ. J. Ex. C, Sick Call Requests. Specifically, Plaintiff was seen by a medical provider in response ;to at least nine of these requests. See id. Ex. D, Medical Sick Call Notes. During his deposition in another lawsuit that he filed against the Berks County Prison, Plaintiff admitted that he was seen by PrimeCare Medical staff about thirty to forty times during his incarceration at Berks County: Prison, and during certain time periods, he was seen by the médical department on a daily basis. See id. Ex. B, Gannaway Dep. in Action Nos. & 09-2688, at 235:19-24, 265:17-266:1, June 14-15, 2010.

‘While at Berks County Prison, Plaintiff was given laxatives for his complaints of constipation. PrimeCare Defs.’ Mot. Summ. J. Ex. A, Gannaway Dep. at 102:21-22. PrimeCare Medical staff also ordered various medical tests for Plaintiff, including blood tests, urine analysis, analysis of stool samples, and x-rays of Plaintiffs abdomen. Id. at 102:23-103:6. Overall, Plaintiff was prescribed and given medication for his various complaints nearly every day during his incarceration at Berks County Prison. PrimeCare Defs.’ Mot. Summ. J. Ex. F, Medication Admin. R.

At times, Plaintiff was" noncompliánt with treatment prescribed by the Prime-Care Medical staff. For instance, he refused sick appointments or was unavailable when called by medical staff on at least nine occasions. PrimeCare Defs.’ Mot. Summ. J. Ex. E, PrimeCare Med. Chart Notes. Plaintiff also complained of blood in his stool, but consistently refused to provide medical staff with stool samples for analysis. Id.

During his deposition, Plaintiff admitted that he cannot specifically recall the two PrimeCare Medical employees he named in his Amended Complaint, Defendants Dillman and Gessner, and cannot offer any factual evidence that either violated, his constitutional rights. PrimeCare Defs.’ Mot. Summ. J. Ex. A, Gannaway Dep. at 86:10-88:23.

Although less than pellucid from Plaintiffs Amended Complaint, based on these facts, the Court will. construe Plaintiffs claims against the PrimeCare Medical Defendants as (1) a claim for deliberate indifference to Plaintiffs serious medical needs in violation of the Eighth Amendment of the United States Constitution, or in the alternative, (2) state law claims of medical negligence. The PrimeCare Medical Defendants move for summary judgment on both claims. Plaintiff opposes summary judgment, claiming that Defendants Dill-man and Gessner were “in charge” and “failfed] t[o] supervise their staff,” so “Dr[.][sic] Paula Dillman and Dr[J Victoria Gessner should provide or. mention who they instructed on the follow-up [on Plaintiffs internal stitch] if they claim they saw the records and only prescribe medication then they should be accountable of deliberate indifference.” Pl.’s “Objection to the Public Defender’s and the PrimeCare Medical Inc. Summary Judgment Being Granted with the Following Circumstances of Plaintiff Learning the Outcome of Going to the Temple University Hospital at Temple Between 10/1/15 and 10/15/15” ¶2, ECF No. 143 [hereinafter “PL’s Obj.”].

1. Eighth Amendment Violation Based on Inadequate Medical Care ■ Against Defendants Dillman and Gessner

As a threshold matter, it is unclear whether Plaintiff has exhausted administrative procedures as required by the Prison Litigation Reform Act of 1995 (PLRA) with respect' to his claims against the PrimeCare Medical Defendants. The PLRA prohibits an inmate from bringing a civil rights suit alleging specific acts of unconstitutional conduct by prison officials until the inmate has exhausted available administrative remedies. 42 U.S.C. § 1997e(a). The exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered by the administrative procedures.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see also Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir.2000) (explaining that “the PLRA amended § 1997e(a) in such a way as to make exhaustion of all administrative remedies mandatory — whether or not they provide the inmate-plaintiff with the relief he says he desires in his federal action”). During his deposition, Plaintiff claimed that he filed grievances as required by the PLRA, Gannaway Dep. at 52:19-24, but Plaintiff has not put forth any other evidence to establish that he fully exhausted administrative procedures, such as all levels of administrative appeal, with respect to all of his medical care claims. Even though Plaintiff is no longer incarcerated at Berks County Prison and is now held at SCIRockview, in at least one nonprecedential case, “the Third Circuit has found that transfer to another prison facility does not excuse the PLRA’s exhaustion requirement.” In re Bayside Prison Litig., No. 97-5127, 2008 WL 2387324, at *4 (D.N.J. May 19, 2008) (citing Williamson v. Wexford Health Sources, Inc., 131 Fed.Appx. 888, 890 (3d Cir.2005) (nonprecedential)). In their motion for summary judgment, the PrimeCare Medical Defendants have not addressed the issue of exhaustion. Therefore, Plaintiffs Eighth Amendment claims may not be properly before the Court.

However, for the sake of completeness— and because the Third- Circuit -has held that exhaustion under the PLRA is not a jurisdictional requirement, such-that failure to comply with § 1997(e) would deprive the federal courts of- subject matter jurisdiction, Nyhuis, 204 F.3d at 69 n. 4— the Court will consider Plaintiffs Eighth Amendment: Claims on the merits. The Court also notes that 42 U.S.C. § 1997e(c)(2), enacted as part of the PLRA, provides that

[i]n the event that a claim is, on its face, frivolous, malicious, fails to state a claim ■upon which relief can be granted, or sééks monetary relief from a defendant who is immune from such relief, the court may dismiss the underlying claim without "first requiring the exhaustion of administrative remedies.

Plaintiff brings a claim for inadequate medical care in violation of the Eighth - Amendment under 42 U.S.C. § 1983. To prevail on a § 1983 claim, the plaintiff must establish two elements: (1) that the conduct,- complained of was committed by a person acting under color of state law; and (2), that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993). It is well-established that civil rights claims cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Thus, individual liability can be imposed only if the state actor played an “affirmative part” in the alleged misconduct, either through personal direction of or actual knowledge and acquiescence in the deprivation. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.1986) (quoting Rizzo v. Goode, 423 U.S. 362, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). Alleging a mere hypothesis that an individual defendant had personal knowledge of or involvement in depriving the plaintiff of his rights is insufficient'to establish personal involvement. See Rode, 845 F.2d at 1208.

Here, Defendants Dillman and Gessner, although employed by a private healthcare provider, were acting under col- or of state law. In West v. Atkins, the Supreme Court ruled that private physicians contracted to perform services to a state prison within prison confines are acting under color of state law for the purposes of a § 1983 claim. 487 U.S. 42, 57, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The next question is therefore whether Defendants Dillman or Gessner were directly involved in or had actual knowledge and acquiescence in an Eighth Amendment violation.

To establish a violation of the Eighth Amendment’s ban on cruel and unusual punishment based on medical care, a plaintiff must show deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). 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 recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987). To act with deliberate indifference to such a medical need is to recklessly disregard “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 839, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.2009). Deliberate indifference may be shown by “intentionally denying or delaying medical care.” Giles, 571 at 330, (quoting Estelle, 429 U.S. at 104, 97. S.Ct. 285). “The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health.’ ” Id. (quoting Farmer, 511 U.S. at 843, 114 S.Ct. 1970).

The ’ deliberate indifference test “affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients.' Courts'will-‘disavow any attempt to second-guess the propriety or Adequacy of a particular-'course of treat* ment ... [which] remains a question of sound professional judgment.”’ Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977)). Under this test, “courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.” Clark v. Doe, No. 99-5616, 2000 WL 1522855, at *2 (E.D.Pa. Oct. 13, 2000). Accordingly, “mere allegations of- malprActice do not raise issues of constitutional import,” nob does an inmate’s “mere disagreement as to the proper medical treatment.” Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 346.

Here, the record shows that the PrimeCare Medical Defendants consistently provided Plaintiff with medical care throughout his time at Berks County Prison. Plaintiffs treatment included examinations and visits by doctors and other medical staff, blood tests, urine and stool sample analysis, x-rays, and the disbursement of various over-the-counter and prescription medications. During his deposition, Plaintiff "could not recall Defendants Dillman or Gessner, much less point to specific deficiencies or omissions in the treatment these medical professionals provided to him. See Gannaway Dep. at 86:10-15 (“Q: Do you remember Nurse Dillman? A: I only remember her signature. I don’t remember her physical features, no. Q: Would you be able to pick her out of a line up? A: No, I would not.”); id. at 86:22-24 (“Q: Would you be able to pick Dr. Gessner out of a line up? A: No, I would not. Not at all.”). He stated that he named them as Defendants in this case only because their names appeared on some of the medical records he had in his possession. Id. at 86:16-21 (“Q: How is it that you know she ’[Nurse Dill-man] was -involved in--your care? A: I think -it was the. documentation with her signature on it¿. and Victoria Gessner, those was [sic] the individuals’ names that was on some paper I had.”).

Plaintiff seems to allege that Defendants Dillman and Gessner held a supervisory role in the medical department. See Gannaway Dep. at 106:4-11 (“I could say these individuals that' you’re describing, Paula Dillman and Mrs. Victoria Gessner, they like — these individuals is pawns un-dér them. I know they was in charge bécause these individuals came, by on numerous occasions while I was in restricted housing unit and was pleading to say, give him some food, do this, or do that.”); Pl.’s Obj. ¶ 2 (suggesting thAt these individuals were supervisors). However, he has failed to present any evidence raising a genuine dispute of material fact concerning whether they knew of and acquiesced in the deprivation. And Plaintiff has not put forth any evidence to establish that anyone else in the prison medical department, such as an employee who worked under Defendants Dillman and Gessner, was deliberately indifferent to Plaintiffs health concerns.

Further, in his “objections” to the PrimeCare Medical Defendants’ motion, Plaintiff has failed to present any evidence that he suffered from a “serious medical condition” while at Berks County Prison. He claims complications that resulted from an “internal stitch” of some sort, but he does not point to any evidence in the record to help clarify what this “internal stitch” is, how it relates to the symptoms of which he complains, and whether the stitch actually requires surgical removal. Indeed, Plaintiff claims that he - did not even know about the stitch until a doctor at SCI-Rockview pointed it out to him in 2011. PL’s Obj. ¶ 1. The Court will not second guess treatment provided by the prison based on such vague allegations.

Plaintiff also alleges that he lost forty-five pounds while incarcerated at Berks County Prison, because he refused to eat the “food loaf’ provided to him while in the Restrictive Housing Unit (“RHU”). Gann-away Dep. at 87:23-88:21, 91:1-15. Hé therefore suggests that PrimeCare Medical staff should have ordered prison officials to feed him a “shake” or another type of diet. Id. at 91:8-11. However, Prime-Care Medical records show that Plaintiff weighed 176 pounds when he entered Berks County Prison in May 2009, weighed 176 pounds in November 2009, and weighed 174.5 pounds on December 10, 2009 — on which date he complained to medical staff that he had lost thirty pounds. PrimeCare Defs.’ Mot. Summ. J. Ex.- E, PrimeCare Medical Chart Notes at 1, 8. Moreover, Plaintiff has not shown that PrimeCare Medical staff — much less Defendants Dillman and Gessner — had any decisionmaking authority with respect to the food provisions proffered to prisoners in disciplinary confinement, so as to raise an issue .of fact for trial. . ,

For the' above reasons, the PrimeCare Medical Defendant’s motion for summary judgment will be granted as to this claim. Plaintiffs Eighth Amendment claim against Defendants Dillman and Gessner will be dismissed.

2. Eighth Amendment Violation Based on Inadequate Medical Care Against Defendant PrimeCare Medical

The Court next turns to Plaintiffs claims against Defendant PrimeCare Medical and the question whether actions by PrimeCare employees can be attributed to PrimeCare Medical itself. Under § 1983, a private corporation contracted by a prison to provide healthcare for inmates cannot be held liable oh a respondeat superior theory; rather, pursuant to Monell v. Department of Social Services, 436 U.S. 658, 690-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a private corporation can be held liable for constitutional violations only if it has a custom or policy exhibiting deliberate indifference to a prisoner’s serious medical needs. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir.2003); see also Weigher v. Prison Health Servs., 402 Fed.Appx. 668, 669-70 (3d Cir.2010) (nonprecedential) (noting that a private corporation providing medical service at a state correctional facility cannot be held liable under a theory of respondeat superior in a § 1983 suit).

Under the Monell Une of jurisprudence, there are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under § 1983. Natale, 318 F.3d at 584. The first occurs when “the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy.” Id. (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 417, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (Souter, J., dissenting)). The second occurs when “no rule has been announced as policy but federal law has been violated by an act of the policymaker itself.” Id. (quoting Bryan County, 520 U.S. at 417, 117 S.Ct. 1382). Third, a policy or custom may exist where “the policymaker has failed to act affirmatively at all, [though] the need .to take -some action to control the agents of the government ‘is so obvious, and the inadequacy of existing practice so likely to result- in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.”’ Id. (quoting Bryan County, 520 U.S. at 417-18, 117 S.Ct. 1382).

Here, Plaintiff has not pointed to anything in the record to support an allegation of deliberate indifference on the part of the named PrimeCare Medical employees, Defendants Dillman and Gessner. Moreover, Plaintiff makes, no allegations concerning policies or procedures issued by PrimeCare Medical with regard to the provision of medical care at Berks County Prison. Accordingly, Plaintiffs § 1983 claim against PrimeCare Medical fails, and summary judgment will be granted in favor of Defendant PrimeCare Medical.

3. State Law Negligence Claim Based on Inadequate Medical Care Against Defendants PrimeCare Medical, Dillman, and Gessner

The Court will also construe cértain. allegations raised in Plaintiffs Amended Complaint and at his deposition-as a state law claim for medical- negligence against Defendants PrimeCare Medical,’ Dillman, and Gíessner. See, e.g., Am. Compl. ¶ 9; Gann-away Dep. at 147:23-25, 158:3-6 (alleging “negligent” conduct or “negligence” on the part of the PrimeCare Medical Defendants). Plaintiffs negligence claim fails, because he has not filed a Certificate of Merit as required by Pennsylvania'Rule of Civil Procedure 1042.3(a).

The Certificate of Merit is a prerequisite to all Pennsylvania medical malpractice claims, even those brought in the federal courts through diversity or supplemental jurisdiction. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir.2011) (finding that Pennsylvania’s requirement of. a Certificate of Merit in professional negligence claims is substantive law under the Eñe doctrine and therefore must be applied by federal courts).

After previously granting Plaintiff several extensions to obtain the Certificate of Merit, the Court gave Plaintiff a final deadline of January’ 20, 2015, to file a Certificate of Merit or risk the dismissal of all of his medical malpractice claims. See Order dated Nov. 19, 2014, ECF No. 100. Plaintiff has not filed a Certificate of Merit to date, and this lawsuit hap been pending for over three years. Accordingly, the PrimeCare Medical Defendants’ motion for summary judgment will be granted on this issue, and Plaintiffs medical negligence claim will be dismissed as to Defendants PrimeCare Medical, Dillman, and Gessner.

B. Defendants ADAPPT, Inc., and William Tillman’s Motion for Summary Judgment (ECF Nos. 97 & 98)

The Court turns next to the summary judgment motion filed by the ADAPPT Defendants. ECF Nos. 97, 98. The relevant facts are as follows:

ADAPPT is a residential facility contracted by the DOC to provide both chemical dependency treatment and group home services for pre-release and parole candidates. Defendant William Tillman was the Director of ADAPPT at all relevant times.

Plaintiff was assigned to stay at the ADAPPT facility' on two separate time periods, first from December 2005 until some point in 2006 and later from May 17, 2007, to June .5, 2007. Gannaway Dep. at 51:16-19, 55:6-9, 57:2-5;. ADAPPT & Tillman's Mot. Summ. J. Ex. A, Entry & Discharge Papers. Participation in the program was a condition of his parole after serving sentences in Northampton County Prison, because he had a history of drug use. Gann-away Dep. at 65:10-16.

While Plaintiff successfully completed ADAPPT’s treatment program during his first stay, Gannaway Dep. at 50:22-25, he was expelled early during his second stay for “failing to comply with the rules and policies of thé ADAPPT program” arid “continuing] to be defiant regardless of staff direction.” ADAPPT & Tillman’s Mot. Summ. J. Ex. A, Entry & Discharge Papers. Plairitiff acknowledges that his ¿negations against Defendahts ADAPPT and Tillman in the instant matter entirely concern his 2007 stay at the facility. Gannawhy Dep. at 54:14-18,192:10-14;

Plaintiffs claims against ADAPPT and Tillman appear to concern three issues related to medical cáré:

First, Plaintiff alleges that he did not receive adequate care for an injury he obtained while at the facility. While he was opening a window in the basement of the facility, the window slammed on his hand. Gannaway Dep. at 59:2-12.. .Plaintiff alleges that ADAPPT. personnel thought he was trying to escape and- refused to let him go to the hospital or obtain medical treatment,' even though he was bleeding due to a broken fingernail. Id. at 58:8-12, 61:22-62:3. Instead, the staff simply gave him Band-Aids. Id. at 59:18-19. As a result, Plaintiff alleges he suffered permanent injury, specifically a “crooked” pinky finger. Id. at 61:1-2, 20-21. Plaintiff testified that he filed some sort of grievance or complaint after speaking with Defendant Tillman concerning this incident. Id. at 60:8-11.

Second, Plaintiff claims that he complained of pain stemming from .the .“incision” in his stomach -and requested pain medication on multiple occasions during his stay at ADAPPT. Id. at 63:7-11, 64:11-15. Plaintiff alleges that he spoke •with Mr. Tillman, as. well as other staff, about his pain, including constipation and the development of fluid in his .lungs, but they refused to help him. Id. at 65:19-23, 66:10-15. During his deposition, Plaintiff first alleged that Mu. Tillman and unspecified others refused to help, him, id. at. 66:3-6, although he later said they provided “a means of trying to get [a] prescription for pain medication” but Plaintiff did not have the money or insurance coverage :to get it. Id. at 68:3-10. Plaintiff also later admitted that a nurse aide at the facility provided “some painkiller pills” to him, although “[t]hey didn’t do much of anything.” Id. at 69:18-24. He suggests that ADAPPT staff should have “call[ed] the ambulance” or sent him to a “real hospital.” Id. at 69:22-24, 70:2-8.

Finally, Plaintiff alleges that ADAPPT staff did not provide’himwith 'certain medications that he was taking prior to entering the ADAPPT residence. Id. at 193:2-6.

During his deposition, Plaintiff clarified that he is bringing the same claims against ADAPPT and Tillman. Id. at 193:12-15. The Court will construe Plaintiff’s claims as one for deliberate indifference to Plaintiffs medical needs pursuant to 42 U.S.C. §' 1983. Since ADAPPT has a contractual relationship with the Pennsylvania Department of Corrections and Plaintiff participated in ADAPPT’s program while on parole, ADAPPT and Tillman were acting under color of state law in connection with.the events at issue in this case.

In their motion for summary judgment, Defendants ADAPPT and Tillman correctly point out that. Plaintiffs claims against them are time-barred. Claims arising under § 1983 are subject to state statutes of limitations governing personal injury actions. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir.2003). The applicable Pennsylvania statute of limitations' for a personal injury action is two years. 42 Pa. Cons. Stat. Ann. § 5524(7). Although state law determines the duration of the limitations period, federal law determines when the cause of action accrues, thus starting the clock on the statute of limitations. Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir.1998). A § 1983 cause of action begins to accrue when the plaintiff knows, or has reason to know, of the injury on which the action is based. Id.

Here, Plaintiffs claims are barred by the statute of limitations, since Plaintiffs claims arise from his time at ADAPPT’s residential facility from which Plaintiff was discharged on June 5, 2007. Plaintiff initiated the instant case in March 2012 — nearly five years after his discharge from ADAPPT. In granting Plaintiff leave to file the Amended Complaint, the Court specifically explained that Plaintiff was limited to raising claims that occurred within the two-year period before March 5, 2012. See Order dated Mar. 30, 2012, at ¶ 3, ECF No. 4. The record suggests that Plaintiff was immediately aware of the alleged constitutional violations by Defendants ADAPPT and Tillman, because he testified that he made complaints and grievances about these issues during his stay at ADAPPT. Gannaway Dep. at 60:8-11, 70:16-25. In response to Defendant ADAPPT and Tillman’s motion for summary judgment, Plaintiff does not address the statute of limitations, instead saying simply that “they w[]ere mostly worrying about enforcing the rehab drug program 12 steps rules as oppose[d] to[ ] the plaintiff’s] serious medical needs.” PL’s Obj. ¶ 10. Accordingly, the motion for summary judgment by Defendants ADAPPT and Tillman will be granted, and both Defendants will be dismissed from the case.

C. Defendant Berks County Public Defender’s Office’s Motion for Summary Judgment (ECF No. 99)

The Court next considers, the motion for summary judgment filed by the Berks County Public Defender’s Office (“Defender’s Office”), which argues that Plaintiff failed to include any facts to support the inclusion of the Defender’s Office as a defendant. ECF No. 99. In Plaintiffs Amended Complaint, the only mention of the Defender’s Office is as follows:

Defendants Nicholas Stroumbakis, Os-mer Deming, and Williams Bispels under the 13th and 14th Amendment rights, [sic] violated those rights by claiming to represent petitioner to the fullest professional responsibility under his right to ’ confront all witness. Ms. Jane Doe who[ ] is also a part of the Public Defender[’]s Office of Berks County, also violated petitioner's] civil rights. This violation was when Shakur C. Gannaway corresponded to them and they never responded back, about the meritable [sic] issues as well as the miscarriage, of justice the petitioner received. Petitioner would like to confirm all of the correspondence, and that they were part of the corrupt[ ] . actions against people of color with the intent on neglecting their oaths that they took , to uphold their professional responsibility. They were also aware of. the Petitioner’s cry for. medical care, but. -they (The Defendants) biasly [sic] ignored petition-erf’s] (Shakur, C. G,annaway) .Cruel and Unusual punishment plea to Judge James M. Bucci..

Am. Compl. at 25. The Amended Complaint contains no additional factual allegations against the Defender’s Office.

During his deposition, Plaintiff seemed to allege that his claims against the Defender’s Office stem from his arrest and criminal conviction related to the 2009 armed robbery for which he is still serving his sentence. However, the Defender’s Office did not represent Plaintiff during that criminal matter. Plaintiff acknowledged during his deposition that he initially applied for representation by the Public Defender’s Office, but the Defender’s Office withdrew early in the case due to a conflict. Gannaway Dep., at 34:10-25; Defender’s Office’s Mot. Summ. J. Ex. A, Glenn D, Welsh Aff. at ¶8. Thereafter, Plaintiff was represented by several private attorneys who are often appointed by the court to represent indigent persons that the Defender’s Office is unable to represent due to a conflict or for other reasons. Id. at -¶ 7. The private attorneys who represented Plaintiff during the criminal proceedings in connection with the armed robbery and during later post-conviction relief proceedings were Nicholas Stroumbakis, Osmer Deming, and William Bispels — all of whom are named as defendants in this case. Id. The Defender’s Office had no further involvement in Plaintiffs armed robbery case.

Plaintiff continues to maintain that inclusion of the Defender’s Office as a defendant in this matter is proper based on some relationship between the Defender’s Office and court-appointed counsel. Plaintiff testified,

I’m assuming all of them [meaning Bis-pels, Stroumbakis, and Déming] work for the Public Defender’s Office. You’re saying they have their own private practice. To me, 'in my eyes, they [are] still public defenders. That’s how I perceived them. Any time you’re appointed by the Court and I’m not paying you, the individual you represent, that’s what I perceive it as. Where I’m from that’s what we consider a public defender or a legal aide.

Gannaway Dep. at 37:9-19.

Plaintiff also testified that he wrote, to the Defender’s Office regarding the purportedly inadequate care he received while at Berks County Prison, and the Office failed to respond to his letters or take action to help him. Id. at 45:1-12.

Based on these allegations, the Court will construe Plaintiffs claims against the Defender’s Office as various civil rights violations — specifically violations of his Sixth Amendment right to counsel, his Thirteenth Amendment right to be free from involuntary servitude, and his procedural due process rights under the Fourteenth Amendment — pursuant to § 1983. Plaintiffs claims against the Defender’s Office fail for at least three reasons.

First, the Defender’s Office and its employees are not state actors under § 1983, at least with respect to the representation of criminal defendants. As stated above, a § 1983, claim has two essential -elements: (1) the conduct complained of must be committed by a person acting under color of state law; and (2) this conduct must deprive the plaintiff of rights, privileges, or immunities secured by the Constitution or laws-of the United States. Kaucher, 455 F.3d at 423; Kost, 1 F.3d at 184. In Polk County v. Dodson, the Supreme Court held that a public defender’s - representation of ■ an indigent criminal defendant was not under color of state law. 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). The Supreme Court reasoned that although a public defender is employed and paid by the state, when representing a criminal defendant he acts not for the state, but rather as an adversary of .the state. Id. Likewise, he does not act under color of state law, but rather pursuant to the attorney-client relationship, in which he owes undivided loyalty to his client. Id. Similarly, court-appointed attorneys — such as Defendants Stroumbakis, Deming, and Bispels in this case — are not state offíciáls at all, because such attorneys “have control over their own caseloads and representations,” “depend on the State only for a fee,” and have “no real day-to-day involvement” with the state. Id. at 333 n. 4, 102 S.Ct. 445. And finally, “[a]lthough states license lawyers to practice, and although lawyers are deemed ‘officers of the court,’ this is an insufficient basis for concluding that lawyers act under color .of state law for the purposes of [§ 1983].” Henderson v. Fisher, 631 F.2d 1115, 1119 (3d Cir.1980).

Second, Plaintiff has failed to proffer any evidence sufficient to raise a genuine issue of fact as to whether his court-appointed attorneys — Defendants Stroumbakis, Deming, and Bispels — were employed by the Defender’s Office or whether the Defender’s Office maintained any sort of policy or custom applicable to those three attorneys during the relevant time period. “When a suit against a municipality is based on § 1983, the municipality can only be liable when the alleged constitutional transgression implements or executes 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) (citing Monell, 436 U.S. 658, 98 S.Ct. 2018). In other words, a ‘municipality may not be held liable for constitutional torts under § 1983 on a vicarious liability theory rooted in respondeat superior, but “it can be held responsible as an entity when the injury inflicted is permitted under its adopted policy ’ or custom.” Id. There is therefore a “two-path track to municipal liability under § 1983,. depending on whether the allegation is based on municipal policy or custom.” Id. A. “[policy is made when a decisionmaker possessing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990) (alterations in original) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Alternatively, “[a] course of conduct is considered to be a ‘custom’ when, though not authorized by law, such practices of state officials [are] so permanent and well-settled as to virtually constitute law.” Id. (alterations in original) (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018). Custom may also be established “by evidence of knowledge and acquiescence.” Beck, 89 F.3d at 971.

Here, Plaintiffs supposition that a public defender and a court-appointed attorney are one and the same is insufficient to show some connection between the Defender’s Office and these attorneys. Further, Plaintiff has not presented any evidence as to specific deficiencies in his court-appointed . attorneys’ conduct, let alone a policy or custom of the Public Defender’s Office that brought about those deficiencies. And with respect to Plaintiffs claims that he reported the inadequate medical care provided at the Berks County Prison to certain employees of the Defender’s Office, Plaintiff has not shown that his court-appointed attorneys or anyone at the Defender’s Office is responsible for overseeing the provision of medical care at the prison. .

Third, the Berks County Public Defender’s Office is not a suable entity under Pennsylvania law. Under Federal Rule Civil Procedure 17(b), the capacity of an entity to be sued is determined by state law — here, Pennsylvania law. Johnson v. Montgomery Cty. Pub. Def. Office, No. 91-7615, 1992 WL 3593, at *1 (E.D.Pa. Jan. 7, 1992). The Pennsylvania Public Defender Act creates an office or position to be filled by a person for each county of Pennsylvania (with the exception of Philadelphia); it does not create a governmental entity having an existence separate from the person who fills it. 16 Pa. Cons.Stat. § 9960.3; Johnson, 1992 WL 3593, at *1-. Accordingly, the Defender’s Office itself lacks-judicial personality and is not a suable entity, Johnson, 1992 WL 3593, at *1.

- For the' above reasons, the Court will grant Defendant Public Defendér’s Office’s motion for summary judgment and- will dismiss all claims against it.

D. Defendant Osmer Deming’s Motion for Summary Judgment (ECF No. 102) '

Defendant Deming,; Plaintiffs court-appointed attorney in connection with-,his state -post-conviction ■ proceedings,-, also moves for summary judgment. ECF No.-102. The facts relevant to Plaintiffs claims against Defendant Deming are as follows: • . .

On May 26, 2010, following á jury trial in the Court of Common Pleas of- Berks County, during which Plaintiff- was represented by court-appointed attorney Defendant Stroumbakis, Plaintiff was found guilty of robbery, theft, receiving stolen property, terroristic threats, conspiracy to commit robbery, conspiracy to commit theft, conspiracy to receiye stolen property, and conspiracy to • commit terroristic threats. Deming’s Mot. Summ. J. Ex. F,‘ ECF No. 102; Gannaway Dep. at 123:14-20,125:5-8. Plaintiff took.the.stand in his own defense at trial and testified -that he was a hapless bystander who did not participate in the robbery. Id., at 127:6T14. On August 4, 2010, Plaintiff was sentenced to a term of fifteen to thirty years’ imprisonment. Deming’s Mot. Summ,. J. Ex.. F.

Thereafter, Plaintiff, proceeding pro se, filed a petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541-9546, in August 2010. Id. In October 2010, Judge Bucci of the Pennsylvania Court of Common Pleas of Berks County appointed Defendant Deming to represent Plaintiff with respect to his PCRA petition.- 'Deming’s Mot. Summ. J. Ex. A. Judge Bucci orderéd Defendant Deming to file a petition detailing Defendant’s eligibility for relief-or a “no merit” letter requesting to withdraw from representation pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) and Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Deming’s Mot. Summ. J. Ex. A.

On October 7, 2013, Defendant Deming filed a seventeen-page “no merit” letter, together with a. motion to withdraw as counsel, after he reviewed the record of the criminal proceedings and determined that Plaintiffs PCRA petition was merit-less. Deming M,ot. Summ. J. Exs. B, E. Defendant Deming also sent Plaintiff a a letter advising him of his right to continue pursuing post-conviction relief pro. se or with privately-retained counsel. Id. Ex. C. In November 201-3, Plaintiff filed an objection to Defendant Deming’s “no . merit” letter, Gannaway Dep. at 131:20-23. • Later, in December; 2013, Plaintiff filed his own amended.petition for post-conviction relief. Id. at 134:5-8.,- As of November 24,. 2014, when Defendant Deming filed his motion for summary judgment, the Court of Common Pleas had not yet ruled on Plaintiffs PCRA petition or decided Defendant Deming’s motion to withdraw, Deming’s Mot.- - Summ. J. at 3-t4; Ganna-way Dep. at.l28;20-129:L •

In his Amended Complaint, -Plaintiff alleges that Defendant Deming, as well as his other court-appointed attorneys, violated Plaintiffs Thirteenth and" Fourteenth Amendment rights “by claiming to represent' petitioner to the fullest professional responsibility .under his right to confront all witnesses.” Am. Compl. at 20. He further alleges that “[tjhis violation was When [Plaintiff] corresponded to them- and they never responded back,, about the mer-itable [sic], issues as well as the miscarriage of-justice [Plaintiff]. received.” Id. With respect to his court-appointed attorneys, including Defendant Deming, Plaintiff also alleges that he “would like to confirm all correspondence, and that they were a part of the corrupted actions against people of color with the intent [of] neglecting their oaths that they took to uphold their professional responsibility.” Id. Finally, Plaintiff contends that these attorneys “were also aware of [Plaintiffs] cry for medical care, but they ([t]he Defendants) biasly [sic] ignored [Plaintiffs] Cruel and Unusual punishment plea to Judge James M. Bucci.” Id.

During his deposition, Plaintiff further explained, his allegations against Defendant Deming, which appear to stem from two deficiencies.

First, Plaintiff alleges that Defendant Deming’s “no merit” letter was ineffective, because he failed to include a number of meritorious issues in the letter, including the following: the jury at Plaintiffs criminal trial included a woman Plaintiff knew from the community; Plaintiffs DNA was illegally obtained as the result of an earlier conviction and that DNA was planted on him in connection with the instant crime; there were various unspecified instances of prosecutorial misconduct during the trial; defense counsel failed to cross-examine a witness named Rashad Bain, who has since admitted that he committed perjury while testifying against Plaintiff; there were numerous instances of ineffective trial counsel; a certain preliminary hearing was not transcribed; an exculpatory recorded phone conversation was withheld from the jury; and a witness who would have provided testimony favorable to Plaintiff was never located. Gannaway Dep. at 129:5-131:10. During his deposition, Plaintiff acknowledged that he had the opportunity to present all of these issues to the PCRA court in his objections to Defendant Deming’s “no merit” letter, as well as in his amended PCRA petition. Id. at 131:11— 132:9. Still, Plaintiff continues to maintain that Mr. Deming “ignore[d] the facts in-volvefd] [i]n the wrongful criminal conviction” and “ha[d] the nerve to file a [F]in-ley/No Merit letter despite all the civil and constitutional violations.” . PL’s Obj. ¶ 13. As a result, Plaintiff has “been incarcerated nearly 6 and [a] half years on ■ this wrongful conviction.” Id.

Second, Plaintiff testified that he “constantly” wrote to Defendant Deming during the course of their attorney-client relationship and received only four or five letters from Mr. Deming in response. Id. at 133:6-25. In his letters, Plaintiff purportedly disclosed information to Defendant Deming concerning the “inhuman[e] treatment” he received while in prison, and Defendant Deming did nothing. PL’s Obj. ¶11.

Based on the Complaint and Plaintiffs deposition testimony, the Court will construe Plaintiffs claims against Defendant Deming as (1) violations of the Thirteenth and Fourteenth Amendments to the United States Constitution pursuant to § 1983 and (2) a Pennsylvania state law legal malpractice claim.

1. Section 1983 Claim Against Defendant Deming

With respect to Plaintiffs § 1983 claim against Defendant Deming, as explained more fully above, criminal defense attorneys, including, public defenders and those appointed by the court, do not act “under color of state law” and are not liable under § 1983 when performing traditional functions as defense counsel. Polk County, 454 U.S. at 321, 324, 102 S.Ct. 445. Although a court-appointed attorney could be subject to § 1983 liability if he conspired with state officials to deprive his client of federal rights, see Figueroa, 810 F.Supp. at 616, Plaintiff has not alleged facts supporting such a .conspiracy here. He merely says that “all court appointed attorneys insi[s]t upon allowing corruption [to] remain unresolve[d]” and “condon[ed] the acts of.the Berks County court officials of Reading projecting Jim Crow acts.” PL’s Obj. ¶¶ 12, 13. Such vague statements do not raise a genuine issue as to whether Defendant Deming conspired with state actors to violate Plaintiffs constitutional rights. Thus, as a matter of law, Plaintiffs § 1983 claim against Defendant Deming must be dismissed.

Moreover, to the extent Plaintiffs claims against Defendant Deming concern Plaintiffs belief that his criminal conviction should' be overturned, a § 1983 action is not the proper vehicle. In Heck v. Humphrey, the Supreme Court held that a state prisoner could not maintain an action for damages under the civil rights laws if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his- conviction or sentence ... unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Edwards v. Balisok, the Supreme Court extended this principle and found a claim for declaratory relief not cognizable under § 1983 because it would “necessarily imply the invalidity of the punishment imposed.” 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). More recently, the Supreme Court announced that a “state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter-the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed,2d 253 (2005).

2. Legal Malpractice Claim Against Defendant Deming

If the Court were to construe Plaintiffs claim against Defendant Deming as a state-law legal malpractice claim, it too would fail.' As a threshold matter, a plaintiff bringing a professional liability claim against an attorney under Pennsylvania law is required to file a Certificate of Merit, indicating that the “appropriate licensed'professional”—here, an attorney— “has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the ... 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.” Pa. R. Civ. P. 1042.1, 1042.3. Plaintiff has filed no such Certificate of Merit in this case.

Moreover, Plaintiff has not made out a legal malpractice claim. Under Pennsylvania law, the elements of a legal malpractice claim vary based on whether the underlying representation was civil or criminal. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 112 (1993). While the Pennsylvania Supreme Court has not addressed the issue, at least one Pennsylvania intermediate-level appellate court has applied the elements of a legal malpractice action arising out of a criminal matter to a legal malpractice action arising out of a PCRA matter. Slaughter v. Rushing, 453 Pa.Super. 379, 683 A.2d 1234, 1234-36 (1996); see also Williams v. Sturm, 110 F.Supp.2d 353, 358-59 (E.D.Pa.2000) (reviewing Slaughter and explaining the rationale for extending" the legal malpractice standard for criminal matters to habeas corpus petitions).

A plaintiff seeking to bring a professional malpractice claims against an attorney resulting from the representation of the plaintiff in criminal proceedings must establish the following elements:

(1) The employment of the attorney;

(2) Reckless or wanton disregard of the defendant’s interest on the part of the attorney;

(3) The attorney’s culpable conduct was ■the proximate cause of an injury suffered by the defendant/ plaintiff, i.e. “but for” the attorney’s conduct, the defendant/plaintiff would have obtained an acquittal or complete dismissal of the charges;

(4) As the result of the injury, the criminal defendant/plaintiff suffered damages; and

(5) Moreover, a plaintiff will not prevail in an action in criminal malpractice unless and until her has pursued post-trial remedies and obtained relief which was dependent upon attorney error[.]

Slaughter, 683 A.2d 1234, 1235-36 (quoting Bailey, 621 A.2d at 115). To establish the requisite causation for a legal malpractice claim, “a plaintiff must prove ... that he did not commit any unlawful acts with which he was charged as well as any lesser offenses included therein.” Bailey, 621 A.2d at 113. Where a plaintiff fails to show that he is. innocent of all the charges against him, he has not stated a cause of action for legal malpractice in the criminal context under Pennsylvania law. Slaughter, 683 A.2d at 1236.

Here, Plaintiff has not shown that he is innocent of all charges against him. He lists a number of issues that he believes -.Defendant Deming should have raised in a PCRA petition, but he does not establish that “but for” Defendant Deming’s failure to raise these issues, Plaintiff would have obtained any relief pursuant to the PCRA, much less a complete dismissal of all criminal charges. In addition, Plaintiff has not .shown that he has exhausted possible remedies under the PCRA, much less that he. obtained rel