Opinion
CIVIL NO. 3:CV-05-0514.
August 9, 2006
REPORT AND RECOMMENDATION
I. Background and Procedural History.
The plaintiff, a state prisoner proceeding pro se, commenced this 42 U.S.C. § 1983 action by filing a complaint on March 14, 2005. On May 2, 2005, the plaintiff filed an amended complaint.
The plaintiff names the following individuals as defendants in the amended complaint: 1) Dr. William Young, a doctor at the State Correctional Institution at Camp Hill (SCI-Camp Hill); 2) Dr. Martin Lasky, the Medical Director at SCI-Camp Hill; 3) Colleen Newfield, a physician's assistant at SCI-Camp Hill; 4) Donald Kelchner, the Superintendent at SCI-Camp Hill; 5) Ian Taggart, the Assistant to the Superintendent at SCI-Camp Hill; and 6) Sharon Burks, the Chief Grievance Coordinator at SCI-Camp Hill. The defendants are sued in both their individual and official capacities.
The plaintiff's claims in his amended complaint concern the medical treatment he has received at SCI-Camp Hill.
The plaintiff alleges that he displays the classic symptoms of laryngeal cancer including hoarseness/cough, difficulty swallowing, pain in his ears, blood in his sinuses, chronic blocked sinuses, and blood in his saliva. Amended Complaint at ¶ 3. He alleges that laryngeal cancer can result in surgical removal of the larynx and trachea or in death. Id. at ¶ 7. The plaintiff alleges that beginning in October of 2004 he made the defendants aware of his ongoing difficulty with throat pain/swallowing and painful lymphnodes in his neck. Id. at ¶ 1. He alleges that the defendants made only perfunctory examinations of his throat and that they deliberately stated that nothing was wrong when, in fact, there was something wrong. Id. He alleges that the defendants did not prescribe needed medication and tests and that they refused to refer him to an Ear, Nose and Throat (ENT) specialist. Id. at ¶ 2. He alleges that the defendants acted with the intent to save the prison money. Id. at ¶ 2.
The plaintiff alleges that on February 16, 2005, he was seen by a dentist for pain in his jaw, that the dentist diagnosed an infection in his gums and prescribed penicillin, that the dentist instructed him to sign up for sick call for further evaluation, and that the dentist told him that his condition could trigger a heart attack. Id. at ¶ 4. The plaintiff alleges that he signed up for sick call and made requests to be seen by an ENT specialist but that defendant Newfield, for no important penological or medical reason, refused to prescribe the needed medication or refer him to a specialist. Id. at ¶ 5. The plaintiff alleges that his condition is chronic and unresponsive to antibiotics. Id. at ¶ 6.
The plaintiff also alleges that he suffers from chronic arthritis in his back, neck, shoulders and hips. Id. at ¶ 8. He alleges that defendants Young, Lasky and Newfield have acted in a retaliatory fashion by refusing to prescribe Prednisone, which is a medication known and documented in his medical records to relieve his pain. Id. He alleges that these defendants continue to prescribe medication that they know does not work to relieve his pain and that they take the position that the Prednisone pills are too expensive and that he must live with his pain. Id. at ¶ 9.
The plaintiff also alleges that he has a tear in the ligament or tendon of his right knee. Id. at ¶ 10. He alleges that he was scheduled to see an orthopedic doctor on January 19, 2005, for an evaluation for surgery but that for an unknown reason he was not seen. Id. Subsequently, on March 16, 2005, the plaintiff was seen by the orthopedic doctor and given a cortisone injection in his knee. Id. He alleges, however, that defendant Newfield refused to note for that consultation that he had also requested treatment of his arthritis and that, as a result of defendant Newfield's refusal, the orthopedic doctor said that he could not address the plaintiff's arthritis at that time. Id. The plaintiff alleges that the two-month delay in seeing the orthopedic doctor for his knee and the ongoing delay caused by the need to reschedule another consultation with the orthopedic doctor for his arthritis has caused him to suffer unnecessary pain and resulted from an act of retaliation. Id.
The plaintiff also alleges that he suffers from dermatitis and that on February 28, 2005, he made defendant Newfield aware of his condition. Id. at ¶ 11. He alleges that defendant Newfield stated that she could not find his medical records and therefore could not treat his problem but that she would return the next day. Id. He alleges that defendant Newfield did not return and that she did not come to his cell to see him in response to sick call slips he submitted on March 1st, 2nd and 3rd. Id. at ¶ 12. The plaintiff sought emergency medical attention for his skin condition on March 4, 2005, and a nurse applied antibacterial cream and bandages to his sores and signed him up for sick call. Id. at ¶ 13. The plaintiff alleges that defendant Newfield's delay in treatment was intentional and that defendant Newfield acted with the intent to retaliate against him for complaining about her misconduct. Id. at ¶¶ 12 14.
The plaintiff alleges that on March 11, 2005, he saw defendant Newfield for sick call and that in response to his request to see an ENT specialist defendant Newfield informed him that he was scheduled for a complete physical and that a blood test would show any white cell abnormalities indicative of cancer. Id. at ¶ 15. He alleges that he got everything but the blood test and that his symptoms got worse. Id.
The plaintiff alleges that he has swelling and hardening of the arteries in his temples and pressure headaches, which he contends are symptoms of an aneurysm. Id. at ¶ 16. He alleges that defendant Newfield has refused his requests to see a doctor. Id. He alleges that, as a physician's assistant, defendant Newfield does not have the authority to deny his requests to see a doctor. Id. at ¶ 17. The plaintiff alleges that on April 5, 2005, defendant Newfield examined his ears and neck and stated that there is a problem but not a major one. Id. at ¶ 18. He alleges that defendant Newfield did not order any medication for the ringing in his ears or his sore/swollen lymphnodes. Id.
The plaintiff also alleges that he asked defendant Newfield to increase his morning dose of Elavil. Id. at ¶ 19. Defendant Newfield responded that she would not increase the dose. Id. She further stated that the plaintiff could either have his Elavil renewed at its current dose and not see a doctor or he could see a doctor in which case she would not renew his prescription but would let the doctor decide whether to renew it and increase it. Id. The plaintiff characterizes the choice given him by defendant Newfield as a choice between suffering pain until seen by the doctor or taking the current dosage which was inadequate to relieve his pain. Id. at ¶ 20. The plaintiff alleges that he chose to see a doctor and that he suffered ten days of unnecessary pain before he received the medication. Id. at ¶ 20.
The plaintiff alleges that defendant Newfield has tampered with his medical records. Id. at ¶ 21.
The plaintiff also alleges that defendant Newfield retaliated against him for exercising his right to seek medical treatment by charging him for chronic medication, which she knows she is not authorized to do. Id. at ¶ 23.
The plaintiff alleges that defendants Young, Newfield and Lasky acted with deliberate indifference to his serious medical needs. Id. at ¶¶ 2 24. He also alleges that the actions of defendants Young, Newfield and Lasky were in retaliation against him for filing a prior lawsuit against them. Id. at ¶ 27. He alleges that the conduct of defendants Young, Newfield and Lasky presents a substantial risk of harm, including death, to him. Id.
The plaintiff alleges that defendants Kelchner and Burks obstructed his appeals to them regarding grievances relating to the misconduct of defendants Newfield, Young and Lasky. Id. at ¶ 25. He alleges that defendants Kelchner and Burks have the authority to correct the situation but with deliberate indifference have refused to do so and have thereby subjected him to imminent danger of death or serious medical injuries. Id.
The plaintiff alleges that defendant Taggart acted with deliberate indifference by ignoring his complaints about defendants Young, Newfield and Lasky's refusal to provide adequate and proper medical treatment to him. Id. at ¶ 26. He alleges that defendant Taggart condoned the mistreatment by defendants Young, Newfield and Lasky. Id.
The plaintiff also alleges that, although aware of his deteriorating condition, the defendants knowingly, willfully and wantonly refused to procure readily-available medical treatment which would have relieved his acute pain. Id. at ¶ 29. The plaintiff further alleges that the defendants engaged in racial discrimination in that they refused blood tests for him but provided blood tests to a white inmate. Id. at ¶ 28. He alleges that as a result of the defendants' intentional and negligent acts he suffered unnecessary bodily pain and mental distress. Id. at ¶ 31.
The plaintiff claims that the defendants denied him his rights under the First and Eighth Amendments to the United States Constitution and under Article 1, Section 13 of the Pennsylvania Constitution. Id. at ¶ 30. He also claims that the defendants were negligent. Id. at ¶ 31. The plaintiff is seeking declaratory and injunctive relief as well as compensatory and punitive damages. Id. at ¶¶ 30, 32 33.
By a Report and Recommendation dated July 28, 2005, it was recommended that the motion for a temporary restraining order which had been filed by the plaintiff be denied and that the case be remanded to undersigned for further proceedings. By an Order dated July 24, 2006, Judge Caputo adopted the Report and Recommendation and remanded the case to the undersigned.
There were a number of motions pending when the case was remanded to the undersigned. This Report and Recommendation addresses two of those motions: 1) a motion to dismiss the amended complaint filed by defendants Lasky, Young and Newfield, and 2) a motion to dismiss the amended complaint filed by defendants Burks, Kelchner and Taggart. Other pending motions have been addressed by a separate order.
We note that on August 7, 2006, the plaintiff filed a motion for reconsideration of the Order of July 24, 2006. Since that motion seeks reconsideration of an Order entered by Judge Caputo, we will assume, unless instructed otherwise, that Judge Caputo will address that motion.
II. Motion to Dismiss Standard.
A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of the plaintiff's complaint; the court must decide whether, even if the plaintiff were able to prove all of his allegations, he would be unable to prevail. Mortensen v. First Fed. Sav. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In connection with a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the burden is on the moving party to show that there is no actionable claim. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). When deciding a motion to dismiss, the court must accept all material allegations of the complaint as true and draw all inferences in the light most favorable to the plaintiff. Pennsylvania House, Inc. v. Barrett, 760 F. Supp. 439, 449 (M.D. Pa. 1991). However, "conclusory allegations of law, unsupported conclusions and unwarranted inferences need not be accepted as true." Id. at 449-50. A complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). Furthermore, pro se civil rights complaints are to be construed liberally. Haines v. Kerner, 404 U.S. 519 (1972).
Federal Rule of Civil Procedure 8(a)(2) requires no more than that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." "Complaints 'need not plead law or match facts to every element of a legal theory.'" Weston v. Pennsylvania, 251 F.3d 420, 429 (3d Cir. 2001) (quoting Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000)). "[A] plaintiff generally need not explicitly allege the existence of every element in a cause of action if fair notice of the transaction is given and the complaint sets forth the material points necessary to sustain recovery." Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113, 124 (3d Cir. 1998). The statement required by Rule 8(a)(2) "must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. The notice pleading standard applies to 42 U.S.C. § 1983 cases. Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004) (holding that civil rights complaints are not required to meet a heightened pleading standard but are subject to the liberal standards of notice pleading).
III. Motion to Dismiss filed by Defendants Lasky, Young and Newfield.
On August 3, 2005, defendants Lasky, Young, and Newfield filed a motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and a brief in support of that motion.
The plaintiff did not file a timely brief in opposition to the motion to dismiss filed by defendants Lasky, Young, and Newfield. On September 1, 2005, defendants Lasky, Young and Newfield requested that the court deem their motion to dismiss to be unopposed and that the court grant their motion.
On November 4, 2005, the plaintiff filed a brief in opposition to the motion to dismiss filed by defendants Lasky, Young and Newfield. Although the plaintiff's brief in opposition was untimely, the plaintiff did file a brief in opposition and there is no basis to conclude that the plaintiff's delay in filing his brief in opposition in any way prejudiced the defendants. Furthermore, the court can not grant a motion to dismiss as unopposed based on a local rule requiring a brief in opposition without any analysis of whether the complaint fails to state a claim upon which relief can be granted. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991). Accordingly, we will consider the plaintiff's brief in opposition to the motion to dismiss filed by defendants Lasky, Young, and Newfield.
On November 10, 2005, defendants Lasky, Young and Newfield filed a reply brief in support of their motion to dismiss. On December 2, 2005, the plaintiff filed a document entitled "Plaintiff's Supplemental Argument in Support of his Reply Brief" and a document entitled "Plaintiff's Declaration in Support of his Reply Brief." Pursuant to Local Rule 7.7, no further briefs beyond a reply brief may be filed without leave of court. The plaintiff did not seek leave of court to file the documents he filed on December 2, 2005, and, therefore, we will not consider those documents.
Defendants Lasky, Young and Newfield argue that the amended complaint fails to state an Eighth Amendment claim upon which relief can be granted.
In order for the plaintiff to state a viable Eighth Amendment medical claim he must allege that the defendants acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976).
Defendants Lasky, Young and Newfield argue that the plaintiff has not alleged that he suffers from a serious medical need.
The concept of serious medical need has two components, one relating to the consequences of a failure to treat and the other relating to the obviousness of those consequences. Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). The condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury or death. Id. Also, the condition must be one that has been diagnosed by a doctor as requiring treatment or one that is so obvious that a lay person would easily recognize the need for a doctor's attention. Id.
The plaintiff alleges that he displays the classic symptoms of laryngeal cancer including hoarseness/cough, difficulty swallowing, pain in his ears, blood in his sinuses, chronic blocked sinuses, and blood in his saliva. Amended Complaint at ¶ 3. He alleges that laryngeal cancer can result in surgical removal of the larynx and trachea or in death. Id. at ¶ 7. The plaintiff further alleges that defendants Young and Newfield's refusals to prescribe needed medication and diagnostic tests were done with deliberate indifference to his serious medical needs. Id. at ¶ 2. He alleges that the conduct of defendants Lasky, Young and Newfield present a substantial risk to him of harm or death and that the defendants' action have caused him unnecessary pain. Id. at ¶¶ 27 31.
Defendants Lasky, Young and Newfield argue that although the plaintiff alleges that he suffers from symptoms which he believes point to cancer of the larynx he has not alleged that he has been diagnosed with cancer. The defendants contend that because there has been no diagnosis supporting the plaintiff's lay opinion that he has laryngeal cancer the plaintiff has failed to allege that he suffers from a serious medical need.
It may be that the plaintiff will not be able to establish that he suffers or suffered from a serious medical need. However, accepting the allegations of the complaint as true and drawing all inferences in the light most favorable to the plaintiff, as we must when deciding a motion to dismiss, we can not say that the plaintiff has failed to allege that he had a serious medical need.
Defendants Lasky, Young and Newfield argue that the amended complaint fails to state an Eighth Amendment claim upon which relief can be granted because the plaintiff has not alleged that they knew their conduct presented a substantial risk of serious harm to the plaintiff and because the plaintiff's allegations indicate merely that he disagrees with the care he has received.
Mere medical malpractice does not give rise to a violation of the Eighth Amendment. White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990). "While the distinction between deliberate indifference and malpractice can be subtle, it is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). The Third Circuit has "found 'deliberate indifference' 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 v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). The Third Circuit has also "found 'deliberate indifference' to exist when the prison official persists in a particular course of treatment 'in the face of resultant pain and risk of permanent injury.'" Id. (quoting White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990)). Prison medical authorities are given considerable latitude in the diagnosis and treatment of medical problems of inmates and courts will "disavow any attempt to second guess the propriety or adequacy of a particular course of treatment . . . which remains a question of sound professional judgment." Little v. Lycoming County, 912 F.Supp. 809, 815 (M.D.Pa. 1996) (quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). Mere disagreement as to the proper medical treatment does not support an Eighth Amendment claim. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) ("Courts, determining what constitutes deliberate indifference, have consistently held that mere allegations of malpractice do not raise issues of constitutional import. . . . Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation."); White, supra, 897 F.2d at 110 (mere disagreement over proper treatment does not state a claim upon which relief can be granted).
The plaintiff alleges that defendants Young, Newfield and Lasky acted with deliberate indifference to his serious medical needs. Id. at ¶¶ 2 24. He alleges that the defendants made only perfunctory examinations of his throat and that they deliberately stated that nothing was wrong when, in fact, there was something wrong. Id. at ¶ 1. He alleges that the defendants did not prescribe needed medication and tests and that they refused to refer him to an ENT specialist. Id. at ¶ 2. He alleges that the defendants acted with the intent to save the prison money. Id. at ¶ 2. He alleges that defendant Newfield, for no important penological or medical reason, refused to prescribe needed medication or refer him to a specialist. Id. at ¶ 5. He alleges that defendants Young, Lasky and Newfield have acted in a retaliatory fashion by refusing to prescribe Prednisone, which is a medication known and documented in his medical records to relieve his arthritis pain. Id. He alleges that the defendants continue to prescribe medication that they know does not work to relieve his arthritis pain, and that they take the position that the Prednisone pills are too expensive and that the plaintiff must live with his pain. Id. at ¶ 9. The plaintiff alleges that defendant Newfield's delay in treatment was intentional and that defendant Newfield acted with the intent to retaliate against him for complaining about her misconduct. Id. at ¶¶ 12 14. The plaintiff also alleges that, although aware of his deteriorating condition, the defendants knowingly, willfully and wantonly refused to procure readily-available medical treatment which would have relieved his acute pain. Id. at ¶ 29.
Accepting the plaintiff's allegations as true, we conclude that the plaintiff has alleged more than mere disagreement with the treatment he received and that the plaintiff has made allegations from which it may reasonably be inferred that defendants Lasky, Young and Newfield knew that their conduct presented a substantial risk of serious harm to the plaintiff. The plaintiff has stated an Eighth Amendment claim upon which relief can be granted against defendants Lasky, Young and Newfield.
IV. Motion to Dismiss filed by Defendants Burks, Kelchner and Taggart.
On August 16, 2005, defendants Burks, Kelchner and Taggart filed a motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and a brief in support of that motion. The plaintiff has not filed a brief in opposition to that motion. Nevertheless, pursuant to Stackhouse, supra, the court can not grant the motion to dismiss as unopposed simply because the plaintiff has failed to file a brief in opposition to the motion as required by the local rules of court.
Generally, in a case where a pro se plaintiff has failed to file a brief in opposition to either a motion to dismiss or a motion for summary judgment, we order the plaintiff to file a brief in opposition to the motion and warn the plaintiff that failure to do so may result in a recommendation that the case be dismissed. In this case, however, since the motion to dismiss has been pending since August 16, 2005, we elect simply to address the motion to dismiss without further delay.
A. Processing Grievances.
Defendants Burks, Kelchner and Taggart argue that the plaintiff's claim against them is that they did not properly process his grievances and that a failure of a prison official to properly process an inmate's grievances is not a constitutional violation.
Inmates do not have a constitutionally-protected right to a grievance procedure and a state grievance procedure does not confer any substantive constitutional right upon prison inmates. Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Hoover v. Watson, 886 F.Supp. 410, 418 (D.Del. 1995), aff'd, 74 F.3d 1226 (3d Cir. 1995). Thus, "[i]f the state elects to provide a grievance mechanism, violations of its procedures do not deprive prisoners of federal constitutional rights." Spencer v. Moore, 638 F. Supp. 315, 316 (E.D.Mo. 1986).
The plaintiff fails to state a claim upon which relief can be granted against defendants Burks, Kelchner and Taggart based on the processing of his grievances. Accordingly, it will be recommended that the claim against defendants Burks, Kelchner and Taggart based on the processing of the plaintiff's grievances be dismissed.
B. Eighth Amendment.
Although we conclude that the plaintiff fails to state a claim upon which relief can be granted against defendants Burks, Kelchner and Taggart based on the processing of his grievances, we read the amended complaint as also raising a claim that defendants Burks, Kelchner and Taggart violated the Eighth Amendment by failing to ensure that he received appropriate medical care.
As indicated before, in order for the plaintiff to state a viable Eighth Amendment medical claim he must allege that the defendants acted with deliberate indifference to his serious medical needs. Estelle, supra, 429 U.S. at 106.
A prison official is not deliberately indifferent simply because he or she failed to respond to a prisoner's medical complaints when the prisoner was already being treated by a prison doctor. Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). "Absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
The plaintiff alleges that defendants Kelchner and Burks have the authority to correct the situation regarding the lack of care provided by defendants Lasky, Young and Newfield but with deliberate indifference have refused to do so and have thereby subjected him to imminent danger of death or serious medical injuries. Amended Complaint at ¶ 25. He alleges that defendant Taggart acted with deliberate indifference by ignoring his complaints about defendants Young, Newfield and Lasky's refusal to provide adequate and proper medical treatment to him. Id. at ¶ 26. He alleges that defendant Taggart condoned the mistreatment by defendants Young, Newfield and Lasky. Id. The plaintiff also alleges that although aware of his deteriorating condition, the defendants knowingly, willfully and wantonly refused to procure readily-available medical treatment which would have relieved his acute pain. Id. at ¶ 29. The plaintiff further alleges that as a result of the defendants' intentional and negligent acts he suffered unnecessary bodily pain and mental distress. Id. at ¶ 31.
A reasonable inference from the plaintiff's allegations regarding defendants Burks, Kelchner and Taggart is that these defendants had a reason to believe that the medical defendants were mistreating or not treating the plaintiff's alleged serious medical needs. Accordingly, the plaintiff has adequately alleged deliberate indifference on the part of defendants Burks, Kelchner and Taggart to his serious medical needs. Therefore, we conclude that the amended complaint states an Eighth Amendment claim against defendants Burks, Kelchner and Taggart upon which relief can be granted.
C. Eleventh Amendment.
Defendants Burks, Kelchner and Taggart contend that they are entitled to Eleventh Amendment immunity from the plaintiff's claims against them in their official capacities.
Claims against state officials in their official capacities for damages are treated as suits against the state and are barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Pennhurst State School Hospital v. Halderman, 465 U.S. 89 (1984).
The plaintiff's claims for monetary damages against defendants Burks, Kelchner and Taggart in their official capacities are barred by the Eleventh Amendment. Claims against these defendants in their official capacities for prospective injunctive relief and claims against these defendants in their individual capacities for monetary damages are not barred by the Eleventh Amendment.
D. Sovereign Immunity.
Defendants Burks, Kelchner and Taggart argue that they are immune from the plaintiff's negligence claim under Pennsylvania's Sovereign Immunity Act.
The Commonwealth of Pennsylvania is immune from suit except to the extent the General Assembly has waived that immunity. 1 Pa.C.S.A. § 2310. The sovereign immunity bar extends to Commonwealth employees acting within the scope of their duties. Shoop v. Dauphin County, 766 F. Supp. 1327, 1333-34 (M.D. Pa. 1991), aff'd, 945 F.2d 396 (3d Cir. 1991). The exceptions to sovereign immunity are set forth in 42 Pa.C.S.A. § 8522(b). The plaintiff's negligence claim does not fall within any of the exceptions to sovereign immunity. Accordingly, it will be recommended that the plaintiff's negligence claim against defendants Burks, Kelchner and Taggart be dismissed.
V. Recommendations.
Based on the foregoing, it is recommended that the motion (doc. 34) to dismiss the amended complaint filed by defendants Lasky, Young and Newfield be denied. It is also recommended that the motion (doc. 39) to dismiss the amended complaint filed by defendants Burks, Kelchner and Taggart be granted in part and denied in part. It is recommended that the claim against defendants Burks, Kelchner and Taggart based on the processing of the plaintiff's grievances be dismissed, that the plaintiff's claims for monetary damages against defendants Burks, Kelchner and Taggart in their official capacities be dismissed, and that the negligence claim against defendants Burks, Kelchner and Taggart be dismissed. It is recommended that the Eighth Amendment claim against defendants Burks, Kelchner and Taggart not be dismissed. Finally, it is recommended that the case be remanded to the undersigned for further proceedings.