Opinion
No. 2:19-cv-1443
04-27-2021
DANIEL RUSSELL ANDREWS, SR., Plaintiff, v. JOHN WETZEL, et al., Defendants.
Judge J. Nicholas Ranjan
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the Court grant in part and deny in part the Motion to Dismiss (ECF No. 89) filed by the Pennsylvania Department of Corrections ("DOC") defendants, and deny the Motion to Dismiss (ECF No. 86) filed by Correct Care Solutions ("CCS") (now known as Wellpath) and Traci Parkes. It is further recommended that the Court dismiss CCS from the lawsuit pursuant to the screening provisions set forth in 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff misspelled Traci Parkes' name in the Amended Complaint. The correct spelling is used herein.
II. Report
A. Relevant Procedural Background
Plaintiff Daniel Russell Andrews, Sr. is a state prisoner in the custody of the DOC who is currently housed at SCI Forest. He brings constitutional tort claims under 42 U.S.C. § 1983 against numerous defendants. The events in question stem from an incident that occurred on November 17, 2017 when Plaintiff was housed at SCI Pine Grove and allegedly assaulted by his cellmate, Troy Nelson. The Office of Prison Management ("OPM") subsequently issued a separation transfer with respect to Plaintiff and he was transferred to SCI Huntingdon, where he claims he did not receive constitutionally adequate medical treatment for the injuries he sustained in the assault.
Plaintiff is proceeding pro se. He commenced this action in November 2019 when he was housed at SCI Huntingdon. He filed a motion for leave to proceed in forma pauperis, which the Court granted, and his Complaint (ECF No. 5) was docketed. In relevant part, he named as defendants numerous DOC officials and employees, as well as CCS.
The defendants named in the original complaint moved to dismiss it under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 27, 36.) Plaintiff then moved for leave to file an amended complaint, which the Court granted. (ECF Nos. 40, 44, 56.) Plaintiff filed the Amended Complaint (ECF No. 74), which is the operative pleading, in September 2020. Thereafter, the Court dismissed as moot the motions seeking dismissal of the original complaint. (ECF No. 75.)
Plaintiff names as defendants in the Amended Complaint the following thirteen officials and employees with the DOC, who are referred to collectively as the "DOC Defendants": (1) John Wetzel, the Secretary of the DOC; (2) Eric P. Bush, the Superintendent of SCI Pine Grove; (3) Behr, the Unit Manager of SCI Pine Grove's B-Block, where Plaintiff and Nelson's cell was located; (4) Corrections Officer ("CO") Pelus; (5) CO Rosas; (6) CO Clawson; (7) Sgt. Reid (8) Sgt. Hetrick; (9) Lt. Thomas; (10) Lt. Lipenfield; (11) Capt. Sheeder; (12) Deputy Hiede, a member of the Program Review Committee ("PRC"); and (13) Paula Price, a health care administrator at SCI Huntingdon. Plaintiff also names as defendants in the Amended Complaint CCS and Traci Parkes, who is another health care administrator at SCI Huntingdon.
The DOC Defendants have filed a Motion to Dismiss (ECF No. 89) the Amended Complaint pursuant to Rule 12(b)(6). Plaintiff filed a brief in opposition to their motion (ECF No. 93), which he later supplemented (ECF No. 96). CCS and Parkes also have filed a Motion to Dismiss (ECF No. 86) the Amended Complaint pursuant to Rule 12(b)(6), and Plaintiff has filed a brief in opposition to their motion (ECF No. 92) to which CCS and Parkes filed a reply (ECF No. 94.)
In reviewing a motion to dismiss, the court may consider exhibits attached to the complaint. See, e.g., Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Plaintiff attached to his original complaint a declaration by Theodore Hamilton (ECF No. 9), who is an inmate who was housed on B-Bock of SCI Pine Grove when Plaintiff and Nelson shared a cell there. Plaintiff asks that the Court consider Hamilton's declaration in evaluating the DOC Defendants' motions to dismiss. Before Plaintiff filed the Amended Complaint, the Court expressly advised him that it would completely replace the original complaint and that it should not refer back to the original complaint. (ECF No. 48.) Therefore, Plaintiff should have attached Hamilton's declaration to the Amended Complaint but did not do so. It makes no difference, however, whether the Court considers Hamilton's declaration because Hamilton does not make any averments that Plaintiff has not also made in the Amended Complaint based upon his personal knowledge.
B. Standard of Review
At the pleading stage, Rule 8 requires a "short plain statement" of facts, not legal conclusions, "showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The Supreme Court held that, pertaining to Rule 12(b)(6)'s standard of review, a complaint must include factual allegations that "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).
In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;" "labels and conclusions;" and "'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citations omitted). Mere "possibilities" of misconduct are insufficient. Id. at 679.
The Court of Appeals has summarized this inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Third, "whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
"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 (2007) (internal citation and quotation marks omitted); see also Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) ("The obligation to liberally construe a pro se litigant's pleadings is well-established.").
C. Facts Alleged in Amended Complaint
1. The November 17, 2017 assault and the events that preceded it
In October 2017, Nelson became Plaintiff's cellmate on SCI Pine Grove's B-Block. Plaintiff alleges that Nelson had been moved out of another inmate's cell because he had had physical altercations with that inmate. He further alleges that Nelson has "a violent history and/or a background of not getting along with his cellmates." (ECF No. 74 at p. 3, ¶ 1.)
Plaintiff soon began having problems with Nelson, who was "aggressive" with him. Plaintiff spoke to CO Pelus about the problems he was having with Nelson and Plaintiff requested a cell change. Plaintiff alleges that CO Pelus did nothing to address the matter. (Id. at p. 3, ¶ 2.)
Plaintiff then submitted to Unit Manager Behr two cell agreement forms requesting that he be housed with another inmate (Kenyatta Johnson). (Id. at p. 3, ¶ 3.) One of Unit Manager Behr's duties is to process institutional matters and deal with issues involving the inmates assigned to his block. Plaintiff avers that Behr took no action on his cell agreement requests. (Id. at p. 2, ¶ 6; id. at p. 3, ¶ 3.) Therefore, Plaintiff requested to speak with him "personally about the issues that were going on with inmate Nelson" and the cell agreements he submitted. (Id. at p. 3, ¶ 3.)
In early November 2017, Nelson became agitated with Plaintiff and bullied and harassed him. Plaintiff spoke with CO Brandon, who is not a defendant in this case, about the issues he was having with Nelson. She hand delivered a third cell agreement request submitted by Plaintiff. (Id. at pp. 4-5, ¶¶ 4-6.) The Amended Complaint does not indicate to whom CO Brandon delivered this cell agreement request.
On November 16, 2017, Nelson threatened to harm Plaintiff. That same day, Plaintiff informed CO Rosas of the threat, and CO Rosas then notified Sgt. Reid that Plaintiff needed to speak with him and that the matter was urgent. (Id. at p. 4, ¶ 7.) Plaintiff talked with Sgt. Reid for about 15-20 minutes. During their discussion, Plaintiff "requested an emergency cell movement due to threats made by inmate Nelson and because [Plaintiff] now feared for [his] safety." (Id. at p. 4, ¶ 8.) Plaintiff avers that Sgt. Reid told him that there were no open cells available and, therefore, Plaintiff and Nelson could not be separated at that time. Later that day, Sgt. Reid spoke with Plaintiff and Nelson together and instructed them to get along until Unit Manager Behr returned from his vacation and could consider whether to separate them. (Id.)
Plaintiff avers that Nelson violently attacked him the following day, on November 17, 2017. He alleges that he suffered multiple injuries, including to his head and back, during the attack. (Id. at pp. 4-5, ¶¶ 9-10; id. at p. 7.) Plaintiff received medical treatment for those injuries when he was at SCI Pine Grove. He does not allege that the medical care he received at SCI Pine Grove was inadequate. (Id. at pp. 4-5, ¶ 10; id. at pp. 6-7.)
A security lieutenant placed Plaintiff and Nelson in the RHU pending an investigation of the November 17, 2017 incident. Nelson was subsequently cleared to return to the general population following the security team's investigation. No disciplinary action was taking against Nelson. (Id. at pp. 4-5, ¶¶ 10-11.)
2. The November 29, 2017 incident
Plaintiff filed grievance #707466 and grievance #707469 regarding Nelson's assault. (Id.) He alleges that on November 29, 2017, Lt. Thomas coerced him into withdrawing one of those grievances (#707469) while he was not of sound mind due to medication he was taking. Plaintiff alleges that after he received sufficient rest he rescinded the withdrawal of grievance #707469. He further avers that he filed at least one other grievance pertaining to the same issues he had raised in grievance #707469 and also filed two other grievances. (Id. at p. 5, ¶¶ 11-12) (citing grievances #719614, #720118 and #721143).
In the Amended Complaint, Plaintiff references exhibits which he indicates are grievances he filed pertaining to the incidents at issue in this civil action. Plaintiff did not actually attach any exhibits to the Amended Complaint, however. Nor did he attach any exhibits to the original complaint aside from Hamilton's declaration.
3. Plaintiff's privileges are limited while he awaited a separation transfer
Plaintiff met with the PRC in mid-December 2017 and the PRC placed him on administrative custody in the RHU under DC-ADM 802 IBIF while the OPM considered a separation transfer. (Id. at p. 5, ¶¶ 13-14.) Deputy Hiede is a member of the PRC and Plaintiff alleges that as part of her job duties she decides what was expected of inmates in the RHU and where they should be placed after they left the RHU. (Id. at p. 3, ¶ 15.)
According to the allegations of the Amended Complaint, due to the PRC's custody classification of him at this time, Plaintiff had limited privileges while he awaited a decision from the OPM. Plaintiff alleges that he requested that certain privileges be made available to him and that PRC staff denied that request. (Id. at p. 5, ¶¶ 13-14.) Plaintiff filed grievance #714751 challenging the PRC's decision on January 5, 2018. (Id. at p. 5, ¶ 14.)
Plaintiff alleges that on January 11, 2018, Deputy Hiede informed him that the OPM denied his separation transfer. Plaintiff avers that the PRC was responsible for the denial because it did not provide sufficient information to the OPM. (Id.) The OPM eventually granted Plaintiff a separation transfer, but he alleges that its decision was unnecessarily delayed due to the actions of the PRC. In all, he contends that he remained in the RHU for approximately 100 days. (Id. at 5-6, pp. ¶¶ 14, 16.)
4. The first February 13, 2018 incident
Plaintiff alleges that on February 13, 2018, Capt. Sheeder threatened him by telling him that if he did not withdraw grievance #715904 he would have to stay in the RHU longer. The Amended Complaint does not indicate when or why Plaintiff filed grievance #715904. Plaintiff refused to withdraw grievance # 715904. (Id. at p. 6, ¶ 15.)
Plaintiff filed grievance #721353 in response to Capt. Sheeder's alleged threat. Major Fogle (who is not a defendant) responded to this grievance and informed Plaintiff that Capt. Sheeder was trying to help him resolve his transfer issue with the OPM. Plaintiff alleges that Major Fogle's response was "false." (Id.)
5. The second February 13, 2018 incident
Plaintiff alleges that on February 13, 2018, CO Clawson and Sgt. Hetrick attempted to place another inmate into his cell. (Id. at p. 6, ¶¶ 16-17.) Plaintiff refused to share his cell with this inmate because there were rumors going around SCI Pine Grove that he was a snitch. (Id.; see also id. at p. 5, ¶ 13.) CO Clawson and Sgt. Hetrick reported the incident to Lt. Lipenfield, who then ordered that Plaintiff be issued a misconduct for disobeying an order. Plaintiff avers that there were other cells available and he should not have been required to share a cell with another inmate. (Id. at p. 6, ¶¶ 16-17.)
6. Denial of Medical Treatment at SCI Huntingdon
Plaintiff was eventually transferred to SCI Huntingdon, where Price and Parkes are health care administrators. Plaintiff alleges that they supervise the medical staff and are responsible for the overall management of SCI Huntingdon's medial operations. (Id. at p. 3, ¶ 16.)
On August 25, 2018, a physician assistant evaluated Plaintiff because he submitted a sick call request to address ongoing head and neck pain he was experiencing from the injuries he sustained during Nelson's assault. The physician assistant ordered further evaluation by a doctor, therapy, an MRI and CAT scan. A doctor subsequently evaluated Plaintiff and also ordered an MRI and a CAT scan. (Id. at pp. 6-7.)
Plaintiff alleges that Price and Parkes refused to follow the orders of the physician assistant and the doctor and denied him an MRI and a CAT scan. He avers they had "no good reason" for their decisions. Plaintiff further alleges that as a result of these decisions, he did not receive the medical treatment he required for the head and back injuries he sustained in the assault. As a result, he continued to experience pain from those injuries and was unable to participate in recreation activities or qualify for certain prison jobs. (Id. at pp. 6-7.)
7. Plaintiff's Claims
In the "Legal Claims" section of the Amended Complaint, Plaintiff stated that he is bringing Eighth Amendment failure-to-protect and denial-of-medical-care claims and First Amendment retaliation claims. (Id. at p. 8, ¶ 21.) In his briefs in opposition to the motions to dismiss, Plaintiff clarifies that he is bringing:
• failure-to-protect claims against Unit Manager Behr, CO Pelus, CO Rosas and Sgt Reid;
• retaliation claims against Lt. Thomas, Deputy Hiede, CO Sheeder, Lt. Lipenfield, CO Clawson and Sgt. Hetrick; and,
• denial-of-medical-care claims against Parkes and Price.
Plaintiff seeks compensatory and punitive damages against each defendant. He also seeks declaratory relief and an injunction "ordering defendant CCS/Well Path medical to follow upon the injuries" that he sustained as a result of the attack. (Id. at p. 8, ¶¶ 23-26.)
D. Discussion
Plaintiff brings Eighth Amendment claims and First Amendment retaliation claims under 42 U.S.C. § 1983, which "provides a cause of action against state actors who violate an individual's rights under federal law." Filarsky v. Delia, 566 U.S. 377, 380 (2012). Section 1983 does not create substantive rights but instead "provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
Importantly, a plaintiff must plead a defendant's personal involvement in the alleged deprivation of his constitutional right. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). That is because, as stated in the text of § 1983 itself, only a person who "subjects, or causes to be subjected" another person to a civil rights violation can be held liable under § 1983. Thus, each defendant can be held liable only for his or her own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes v. First Correctional Medical, 766 F.3d 307, 316 (3d Cir. 2014) (rev'd sub. nom. on other grounds 575 U.S. 822 (2015)); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) ("To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.") (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)).
The doctrine of respondeat superior, which makes an employer automatically responsible for the wrongdoing of employees, does not apply under § 1983. Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); see, e.g. Rode, 845 F.2d at 1207. Therefore, supervisor-defendants (like Secretary Wetzel and Superintendent Bush) cannot be held liable for every illegal act that takes place in a correctional facility. Rather, they can be held liable only for their own conduct.
The Court of Appeals has identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if the supervisor, "with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm." A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, "a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced" in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). "Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Rode, 845 F.2d at 1208.
1. Plaintiff's claims against Secretary Wetzel and Superintendent Bush
The DOC Defendants move to dismiss Secretary Wetzel and Superintendent Bush because the allegations of the Amended Complaint fail to state a plausible claim against them. They point out that, although Plaintiff names Secretary Wetzel and Superintendent Bush as defendants (ECF No.74 at p. 2, ¶¶ 4-5), he does not allege that they had any role in the circumstances giving rise to his claims and he does not even mention them in the "Facts" section of the Amended Complaint (id. at 3-8). Further, Plaintiff does not mention Secretary Wetzel or Superintendent Bush in his brief in opposition (ECF No. 93) to the DOC Defendants' motion to dismiss. Therefore, he appears to acknowledge that he failed to state a claim against them and that they should be dismissed from this action.
In any event, the DOC Defendants are correct that, to the extent that Plaintiff is bringing a claim against either Secretary Wetzel or Superintendent Bush, he is attempting to impute liability upon them based solely on their position of authority over the other defendants. (ECF No. 74 at p. 2, ¶¶ 4-5 (describing their general supervisory responsibilities)). As set forth above, only a person who "subjects or causes to be subjected" a plaintiff to a deprivation of rights can be held liable under § 1983 and the doctrine of respondeat superior does not apply under § 1983.
Accordingly, Plaintiff has failed to state a plausible claim against Secretary Wetzel and Superintendent Bush. Therefore, the Court should grant the DOC Defendants' motion to dismiss as it relates to Secretary Wetzel and Superintendent Bush.
2. Plaintiff's claim that Unit Manager Behr, CO Pelus, CO Rosas and Sgt. Reid failed to protect him against Nelson's assault
"To state a claim for damages against a prison official for failure to protect from inmate violence, an inmate must plead facts that show (1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to his health and safety, and (3) the official's deliberate indifference caused him harm." Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (abrogated on other grounds by Bistrian v. Levi, 912 F.3d 79, 84 (3d Cir. 2018)) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997)).
The first element sets out an objective inquiry: that the official "knowingly and unreasonably disregarded an objectively intolerable risk of harm." Beers-Capitol v. Whetzel, 256 F.3d 120, 132 (3d Cir. 2001). The second element, "deliberate indifference," is a subjective standard: "'the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.'" Bistrian, 696 F.3d at 367 (quoting Beers-Capitol, 256 F.3d at 125). That is because "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; 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, 511 U.S. at 837. The plaintiff "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842. "Deliberate indifference is a subjective state of mind that can, like any other form of scienter, be proven through circumstantial evidence and witness testimony." Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017); see also Bristrian, 696 F.3d at 367.
Plaintiff alleges in the Amended Complaint that Nelson had a violent history and a pattern of not getting along with his cellmates. (ECF No. 74 at p. 3, ¶ 1.) He avers that he notified CO Pelus as soon as Nelson began to exhibit aggressive behavior towards him and informed CO Pelus that he needed a cell change, but CO Pelus did nothing to address the issue. (Id. at p. 4, ¶ 2.) Plaintiff also informed Sgt. Reid the day before Nelson assaulted him that he feared for his safety and that he required an emergency cell change due to the threats that Nelson made towards him. Instead of dealing with the "urgent matter," Plaintiff alleges, Sgt. Reid advised Plaintiff and Nelson that the matter could not be dealt with until Unit Manager Behr returned from vacation. The very next day Nelson violently attached Plaintiff. (Id. at p. 4, ¶¶ 7-9.) These allegations plausibly allege that Nelson presented a substantial risk of serious harm to Plaintiff, that CO Pelus and Sgt. Reid were aware of the risk to his safety prior to the assault and were deliberately indifferent to that risk, and that Plaintiff suffered harm as a result of their deliberate indifference.
The same conclusion should be reached as to Unit Manager Behr. Reading the allegations in the light most favorable to Plaintiff, as the Court must at this stage of the litigation, Plaintiff submitted at least two cell agreement requests to Behr. (Id. at p. 3, ¶ 3.) While that allegation on its own may not be sufficient to state a claim against Behr, the Amended Complaint could be read to aver that Plaintiff had at least one discussion with Unit Manager Behr about the problems he was having with Nelson. (Id.) Since Plaintiff had notified other correctional officers around this same time that Nelson posed a threat to his safety, which is why he required a cell or cellmate change, it is reasonable to infer from the facts alleged in the Amended Complaint that Plaintiff notified Behr of the same. Additionally, according to Plaintiff's allegations, Behr did not address the matter and Sgt. Reid would not or could not address it while Behr was on vacation. Under these circumstances, Plaintiff has plausibly alleged a failure-to-protect claim against Behr as well.
A different conclusion should be reached with respect to CO Rosas. The Amended Complaint makes only one allegation regarding CO Rosas: that when Plaintiff informed him the day before the attack that he needed to speak with a sergeant, CO Rosas "informed Sgt. Reid that [P]laintiff urgently needed to speak with him." (ECF No. 74 at p. 4, ¶ 7.) Sgt. Reid spoke to Plaintiff and Nelson that very same day. (Id.) There are no allegations in the Amended Complaint of any wrongdoing on the part of CO Rosas.
In his opposition brief, Plaintiff appears to concede that he did not plead sufficient facts that CO Rosas failed to protect him from Nelson's assault. Plaintiff indicates that he has other information about CO Rosas's involvement that he did not include in the Amended Complaint. (ECF No. 93 at 3.) Plaintiff cannot defeat a motion to dismiss by relying upon facts that he did not include in the Amended Complaint, however. He has had two opportunities (in his original and amended complaints) to set forth allegations of wrongdoing on the part of CO Rosas and he failed to do so. Additionally, "[i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal marks and citation omitted); Bracken v. Cty. of Allegheny, No. 2:16-cv-171, 2017 WL 5593451, at *2 (W.D. Pa. Nov. 21, 2017) ("A pleading may not be amended by a brief in opposition to a motion to dismiss.")
Based upon the foregoing, Plaintiff plausibly alleges a failure-to-protect claim against CO Pelus, Sgt. Reid and Unit Manager Behr. Therefore, the Court should deny the DOC Defendants' motion to dismiss with respect to these defendants.
It is further recommended that the Court grant the DOC's motion with respect to CO Rosas because Plaintiff has not alleged any wrongdoing on his part.
3. Retaliation Claims
To state a claim for retaliation, a prisoner must allege that: (1) he was engaged in constitutionally protected conduct; (2) the defendant at issue took adverse action against him; (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take that adverse action. See, e.g., Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Plaintiff must do more than assert threadbare allegations that the each defendant's conduct was "retaliatory" or was part of "patterns of retaliation," since such allegations are mere legal conclusions that do not satisfy the pleading requirements of Rule 8. Thus, the Court must examine Plaintiff's claim of retaliation against each defendant to determine if he has stated a claim against him or her.
a. Lt. Thomas and Capt. Sheeder
Plaintiff alleges that he filed grievance #707469 after Nelson attacked him and that Lt. Thomas coerced him to withdraw that grievance. (ECF No. 74, at pp. 4-5, ¶¶ 10-12.) He further alleges that Capt. Sheeder made threats against him in an unsuccessful attempt to get him to withdraw grievance #715904. (Id. at p. 6, ¶ 15.) Plaintiff's filing of grievances #707469 and #715904 were activities protected by the First Amendment. See, e.g., Fantone v. Lantini, 780 F.3d 184, 192 n.8 (3d Cir. 2015). Thus, Plaintiff's allegations against Lt. Thomas and Capt. Sheeder satisfy the first element of a retaliation claim.
Plaintiff's retaliation claims against these two defendants fail, however, because he does not adequately plead that he suffered an adverse action. An "adverse action" is one that would "deter a person of ordinary firmness" from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). Plaintiff avers that although Lt. Thomas coerced him into withdrawing grievance #707469, he subsequently rescinded his withdrawal, filed another grievance pertaining to the same issue, and then filed two other grievances following his interaction with Lt. Thomas. (ECF No. 74 at p. 5, ¶ 12.) Thus, Plaintiff has not sufficiently alleged that he was adversely affected by the initial withdrawal of grievance #707469, or that he was deterred from filing other grievances due to his interaction with Lt. Thomas.
Lt. Thomas's actions may be relevant to a potential affirmative defense of non-exhaustion, but the fact that he allegedly coerced Plaintiff to withdraw grievance #707469 does not in itself give rise to a retaliation claim under the facts as alleged in the Amended Complaint.
Similarly, Plaintiff alleges that Capt. Sheeder threatened him in an attempt to get him to withdraw grievance #715904, but that he refused to do so and then filed a grievance against Capt. Sheeder. (Id. at p. 6, ¶ 15.) Thus, Plaintiff's allegations do not establish that he suffered any adverse action as a consequence of Capt. Sheeder's threat, or that he was deterred from filing future grievances after he was subjected to that threat.
Additionally, verbal threats alone typically do not constitute adverse action for the purposes of establishing a prima facie retaliation claim. See, e.g., Chruby v. Kowaleski, 534 F. App'x 156, 161 (3d Cir. 2013); see also Dunbar v. Barone, 487 Fed. App'x 721, 723 (3d Cir. 2012) (finding no adverse action based on allegation that defendants called plaintiff a "marked man" and threatened that his "days were numbered"); Mears v. Kauffman, No. 3:17-cv-1463, 2018 WL 3585081, *5 (M.D. Pa July 26, 2018) (verbal threat to place plaintiff in segregation did not amount to an adverse action). The only retaliatory act alleged against Capt. Sheeder in the Amended Complaint is that he threatened Plaintiff. In the absence of any other allegations, Capt. Sheeder's threat simply does not rise to the level of an adverse action.
Based upon the foregoing, Plaintiff has failed to state a retaliation claim against Lt. Thomas or Capt. Sheeder. Therefore, the Court should grant the DOC Defendants' motion to dismiss to the extent that it seeks dismissal of Lt. Thomas and Capt. Sheeder from this lawsuit.
b. CO Clawson, Sgt. Hetrick and Lt. Lipenfield
Plaintiff alleges that on February 13, 2018 he refused to permit CO Clawson and Sgt. Hetrick to place another inmate in his cell, and that as a result, and upon the directive of Lt. Lipenfield, he received a misconduct for disobeying an order. (ECF No. 74 at p. 6, ¶¶ 16-17.) These allegations do not state a plausible claim for retaliation.
Plaintiff does not allege that these defendants were aware that he had recently filed grievances against other SCI Pine Grove officials or why they would care if they did know. In any event, Plaintiff's allegations do not establish a causal connection between the filing of any grievance and the misconduct that he received on February 13, 2018. By Plaintiff's own admission, he received the misconduct because he disobeyed an order when he refused to accept a cellmate. Thus, he does not plausibly allege any connection between the filing of any grievance and the issuance of the February 13, 2018 misconduct.
Accordingly, Plaintiff has failed to state a retaliation claim against CO Clawson, Sgt. Hetrick and Lt. Lipenfield. The Court should grant the DOC Defendants' motion to dismiss to the extent that it seeks dismissal of CO Clawson, Sgt. Hetrick and Lt. Lipenfield from this lawsuit.
c. Deputy Hiede
Plaintiff alleges the PRC placed him on administrative custody status under DC-ADM 802 IBIF while he awaited a decision from the OPM on his separation transfer. He further alleges that he was denied certain privileges during this time, and that on January 5, 2018, after the PRC staff denied his request for certain privileges, he filed grievance #714751. Approximately six days later, Deputy Heide informed him that the OPM denied him a separation transfer. (ECF No. 74 at p. 5, ¶¶ 13-14.)
Taking Plaintiff's allegations as true and construing them liberally, he has stated a claim of retaliation against Deputy Hiede. She is PRC panel member and Plaintiff filed a grievance challenging decisions made by the PRC on January 5, 2018. (Id.) Thus, Plaintiff's allegations have met the first element of retaliation claim. As to the second element, Plaintiff has plausibly alleged that he suffered an adverse action after he filed the grievance challenging the PRC's decision. Specifically, he avers that PRC staff initially failed to provide the OPM with the information the OPM required for it to grant him a separation transfer. (Id.) As a result, he remained in SCI Pine Grove's RHU on administrative custody status with limited privileges for and "unnecessary amount of time" and longer than he otherwise would have had to but for the PRC staff's alleged failure. (Id. at pp. 5- 6, ¶¶ 15-16.)
Finally, Plaintiff has alleged the requisite casual connection between the filing of a grievance against the PRC and the adverse action he experienced. He avers that six days after he filed grievance #714751, Deputy Hiede advised him that the OPM denied him a transfer. (Id. at p. 5, ¶ 14.) Once again, taking Plaintiff's allegations as true and construing them liberally, he adequately alleges that Deputy Heide, who decided what was expected of inmates in the RHU and where they should be placed after they left the RHU (id. at p. 3, ¶ 15), was responsible for the OPM's initial decision to deny him a separation transfer.
Based upon the foregoing, it is recommended that the Court deny the DOC Defendants' motion to dismiss with respect to the retaliation claim Plaintiff brings against Deputy Heide.
4. Denial-of-Medical-Care Claim against Price and Parkes
Parkes submitted a declaration in support of her motion to dismiss, but the Court cannot consider it at this stage of the litigation. Additionally, one of her arguments is that Plaintiff failed to exhaust his administrative remedies with respect to the claims he brings against her. Plaintiff did not attach grievances to either his original or amended complaints. Thus, the Court cannot evaluate Parkes' exhaustion defense at this stage of the litigation.
Plaintiff claims that when he was housed at SCI Huntingdon, Price and Parkes denied him medical testing and/or treatment ordered by a physician assistant and a doctor. To state an Eighth Amendment claims against these two defendants, Plaintiff must plead facts that plausibly suggest "deliberate indifference to serious medical needs." See, e.g., Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). As previously discussed, the state of mind reflecting deliberate indifference can be proven by circumstantial evidence. See e.g., Pearson, 850 F.3d at 535. It has been found "in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Rouse, 182 F.3d at 197 (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), which cited Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987)).
The defendants do not contest that the head and back injuries and pain suffered by Plaintiff as a result of Nelson's assault were a serious medical need. Therefore, it is uncontroverted that Plaintiff has sufficiently pleaded that he had a serious medical need.
In support of their motions to dismiss Plaintiff's claims against them, Price and Parkes cite cases that address a different, and more typical, scenario that arises when a plaintiff challenges a decision made by health care administrators. That is, prisoners often challenge a prison administrator's failure to, or decision not to, interfere with the medical decisions that a medical professional has made regarding the plaintiff's medical care. See, e.g., Roberts v. Pennsylvania Dep't of Corrections, No. 1:15-cv-2456, 2016 WL 4379031, *3 (W.D. Pa. Aug. 17, 2016) (dismissing plaintiff's claim against health care administrator when his sole alleged involvement was that he did not investigate the plaintiff's claims that the medical professionals were not providing him with adequate treatment); Roberts v. Tretnick, No. 2:13-cv-45, 2014 WL 4218249 *4-5 (W.D. Pa. Aug. 25, 2014) (dismissing plaintiff's deliberate indifference claim against health care administrator when plaintiff was receiving medical treatment from medical professionals at the prison). Under the scenario presented in that type of case, the prison administrator is entitled to rely upon the expertise of the medical professional who evaluated the prisoner. See, e.g., Durmer, 991 F.2d at 69 (affirming summary judgment in favor of two non-medical prison officials on the basis that "[n]either of these defendants...is a physician, and neither can be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor."). That is because "[i]f a prisoner is under the care of medical experts..., a non-medical prison official will generally be justified in believing that the prisoner is in capable hands." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
In this case, however, Plaintiff avers that Price and Parkes blocked his ability to receive the diagnostic testing and treatment ordered by the physician assistant and the doctor who evaluated him. (ECF No. 74 at p. 7.) He further avers that, due to Price's and Parkes' actions, he did not receive the treatment he required and suffered from ongoing head and back pain. (Id.) Thus, Plaintiff has stated a claim upon which relief may be granted against Price and Parkes. See, e.g., Johnson v. Wright, 412 F.3d 398, 406 (2d Cir. 2005) (explaining that "a deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians.").
Accordingly, the Court should deny Parkes' motion to dismiss. It should also deny the DOC Defendants' motion to dismiss to the extent it seeks dismissal of the claim Plaintiff brings against Price.
5. CCS
CCS asserts that Plaintiff did not name it as a defendant in the Amended Complaint. Therefore, it did not expressly move for its dismissal in the motion it filed along with Parkes. (See ECF No. 86). Although it is true that Plaintiff does not assert any wrongdoing on the part of CCS in the body of the Amended Complaint, he does name it as a defendant in the caption and also seeks injunctive relief against it. Therefore, CCS is a defendant. Nevertheless, the Court should dismiss CCS under the screening provisions set forth in § 1915(e)(2)(B)(ii).
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"), courts are required to screen complaints at any time where, as is the case here, the plaintiff has been granted leave to proceed in forma pauperis. 28 U.S.C. § 1915(e)(2)(B)(ii). It requires the Court to dismiss a complaint that, among other things, fails to state a claim on which relief may be granted. The legal standard for dismissing a complaint under the PLRA for failure to state a claim is identical to the legal standard used when ruling on a motion to dismiss under Rule 12(b)(6). Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
As set forth above, Plaintiff does not allege any wrongdoing on the part of CCS. It appears that he named CCS as a defendant in the Amended Complaint because it is Parkes' employer. The Court of Appeals has held that "a private health company providing services to inmates 'cannot be held responsible for the acts of its employees under a theory of respondeat superior or vicarious liability.'" Sims v. Wexford Health Sources, 635 F. App'x 16, 20 (3d Cir. 2015) (quoting Natale v. Camden County Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003)). Rather, in order to hold a private health care company like CCS liable for a constitutional violation under § 1983, Plaintiff must allege that it had "a relevant...policy or custom, and that the policy caused the constitutional violation [he] allege[s]." Natale, 318 F.3d at 584 (citing Board of the Cty. Comm'rs of Bryan Cty., Oklahoma v. Brown, 520 U.S. 397, 404 (1997)); see also Lomax v. City of Philadelphia, No. 13-cv-1078, 2017 WL 1177095, *3 (E.D. Pa. Mar. 29, 2017) ("Because [defendant] is a private company contracted by a prison to provide health care for inmates,...it can only be held liable for constitutional violations if it has a custom or policy exhibiting deliberate indifference to a prisoner's serious medical needs.") (citations and quotations omitted). To assert a plausible claim under § 1983 against this type of entity, the plaintiff "must identify [the] custom or policy, and specify what exactly that custom or policy was" to satisfy the pleading standard. McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009) (citation omitted).
Plaintiff fails to allege any facts demonstrating that any perceived deficiency in the medical treatment he received while at SCI Huntingdon resulted from CCS's policies, practices, or customs. He has not tied any of the conduct or conditions of which he complains to a custom or policy of CCS, and has not alleged that CCS failed to supervise or train Parkes (or Price, to the extent it had any supervisory authority over her).
Additionally, the only request for injunctive relief that Plaintiff makes in the Amended Complaint is that the Court order "CCS/Wellpath medical to follow up on the injuries of plaintiff." (ECF No. 74 at p. 8, ¶ 24.) Since Plaintiff is no longer housed at SCI Huntingdon, which is where he allegedly received inadequate medical care, Plaintiff's request for injunctive relief is moot. See, e.g., Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) ("An inmate's transfer from the facility complained of generally moots the equitable and declaratory claims."); Johnson v. Wenerowicz, 440 F. App'x 60, 62 (3d Cir. 2011) ("As the District Court correctly determined, Johnson's requests for injunctive and declaratory relief against the named DOC defendants were rendered moot by his transfer to SCI-Fayette[.]"); Santiago v. Sherman, No. 05-cv-153, 2007 WL 217353, *3 (W.D. Pa. Jan. 25, 2007) ("In the prison context, the transfer of an inmate from the facility complained of moots claims for injunctive relief involving that facility.").
Accordingly, based upon all of the foregoing, Plaintiff has not stated a plausible claim against CCS, and his request for injunctive relief is moot. For these reasons, the Court should dismiss CCS from this lawsuit.
E. Leave to Amend
When dismissing a civil rights case for failure to state a claim, a court must give a plaintiff the opportunity to amend a deficient complaint, irrespective of whether it is requested, unless doing so would be "inequitable or futile." Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). "An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted." Alston v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Under the circumstances presented here, allowing Plaintiff an opportunity to file a second amended complaint would be futile. He did not challenge the dismissal of Secretary Wetzel, Superintendent Bush, or CCS from this lawsuit. Additionally, Plaintiff did not allege in the Amended Complaint any wrongdoing on the part of CO Rosas despite it being his second opportunity to state a claim against him. Furthermore, there is no indication that Plaintiff could cure the deficiencies in the retaliation claims he brings against CO Clawson, Sgt. Hetrick, Lt. Lipenfield, Lt. Thomas or Capt. Sheeder by filing another amended complaint.
III. Conclusion
Based upon the foregoing, it is respectfully recommended that the Court grant in part and deny in part the Motion to Dismiss (ECF No. 89) filed by the DOC Defendants, deny the Motion to Dismiss (ECF No. 86) filed by CCS and Traci Parkes, but dismiss CCS from this action pursuant to the screening provisions set forth in 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, it is recommended that the Court:
1. grant the DOC Defendants' motion to the extent that they seek dismissal of Secretary Wetzel, Superintendent Bush, CO Rosas, CO Clawson, Sgt. Hetrick, Lt. Thomas, Lt. Lipenfield and CO Sheeder from this lawsuit with prejudice;
2. deny the DOC Defendants' motion to the extent they seek dismissal of Plaintiff's Eighth Amendment failure-to-protect claim against Unit Manager Behr, CO Pelus and Sgt. Reid;
3. deny the DOC Defendants' motion to the extent they seek dismissal of the denial-of-medical-care claim against Price;
4. deny CCS and Parkes' motion to the extent that they seek dismissal of the denial-of-medical-care claim against Parkes; and,
5. dismiss Plaintiff's claims with prejudice against CCS for failure to state a claim under § 1915(e)(2)(B)(ii) and because his request for injunctive relief against it is moot.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Dated: April 27, 2021
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge