Opinion
1:20-CV-00305-SPB-RAL
08-14-2023
VARIAN C. CALLAHAN, Plaintiff v. MICHAEL CLARK, SUPERINTENDENT, SCI ALBION; JERI SMOCK, CORRECTIONAL HEALTH CARE ADMINISTRATOR, SCI ALBION; REKHA HALLIGAN, MEDICAL DIRECTOR, SCI ALBION; MORGAN OLIVER, SECRETARY, CORRECTCARE SOLUTIONS; MICHAEL RILEY, PHYSICIAN ASSISTANT, SCI ALBION; JANE DOE, OPTOMETRIST, SCI ALBION; WELLPATH LLC, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOSEPH SILVA, RUTH WISNIEWSKI, Defendants
SUSAN PARADISE BAXTER United States District Judge.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS THE FIRST AMENDED COMPLAINT ECF NOS. 67, 72
RICHARD A. LANZILLO Chief United States Magistrate Judge.
I. Recommendation
Two motions to dismiss Plaintiff's Amended Complaint are pending before the Court, one on behalf of the Pennsylvania Department of Corrections (DOC) and four DOC employees (“DOC Defendants”), and the other on behalf of Wellpath LLC f/k/a Correct Care Solutions, LLC (“Wellpath”), a private entity with which the DOC contracted to provide healthcare services at its correctional institutions, and three Wellpath employees (“Medical Defendants”). See ECF Nos. 72, 67. Both motions are before the undersigned for Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1). For the following reasons, it is respectfully recommended that the motions be granted in part and denied in part.
The individual DOC Defendants are Joseph Silva, Director of the Bureau of Health Care Services, Michael Clark, SCI-Albion Superintendent and Facility Manager, Jeri Smock, SCI-Albion Chief Healthcare Administrator (“CHCA”), and Ruth Wisniewski, SCI-Albion Licensed Practical Nurse.
The individual Wellpath Defendants are Morgan Oliver, Dr. Rekha Halligan, and Physician Assistant (“PA”) Matthew Riley.
IL Report
A. Introduction and Procedural History
Plaintiff Varian C. Callahan, an individual previously in the custody of the DOC, brings this action against the DOC Defendants, the Wellpath Defendants, and an unnamed optometrist designated as “Jane Doe.” Callahan asserts claims for violations of his rights under the First and Eighth Amendments to the U.S. Constitution pursuant to 42 U.S.C. § 1983, as well as violations of the Americans with Disabilities Act (“ADA”), 42 U.S. Code §§ 12101 - 12213, and Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S. Code § 794. All claims are based on the medical care and treatment Callahan received while he was incarcerated at the State Correctional Institution at Albion (“SCI-Albion”). Callahan sues each individual DOC and Wellpath Defendant in his or her individual and official capacities and Jane Doe in her individual capacity. Callahan seeks compensatory and punitive damages as well as declaratory relief.
Callahan's Amended Complaint is the operative pleading before the Court. See ECF No. 55. The Medical Defendants have moved to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 67). In addition to a supporting brief (ECF No. 68), the Medical Defendants have also filed several exhibits in support of their motion. ECF Nos. 67-2, 67-3. The DOC Defendants have filed a partial motion to dismiss pursuant to Rule 12(b)(6) and a brief in support of their motion. ECF Nos. 72, 73. Callahan has filed a separate brief in opposition to each motion. ECF Nos. 76 (Medical Defendants), 77 (DOC Defendants). The motions are ripe for decision.
This case was administratively closed on three occasions, first to resolve deficiencies relating to Callahan's motion to proceed in forma pauperis (ECF No. 4); later, to solicit volunteer counsel to represent Callahan (ECF No. 40); and finally, to enable counsel to review Callahan's records and prepare the Amended Complaint (ECF No. 49). The case was last re-opened on September 26, 2022. ECF No. 53.
Medical Defendants attached these exhibits to their Motion: Grievance 725934 and related documents (ECF No. 67-3, pp. 1-12, 40-41); Grievance 832777 and related documents (id, pp. 21-29); Grievance 836205 and related documents (id., pp. 34-36); Grievance 836867 and related documents (id, pp. 48-53); several inmate requests to staff (id, pp. 13-17,32); a property inventory sheet (id, p. 33); medical progress notes (id, pp. 37-39); commissary receipts (id., pp. 42-47); and a Certificate of Conferral certifying the parties attempt to confer with Plaintiffs counsel to determine whether their Motion may be cured by a second amended complaint (ECF No. 67-2).
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell All. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should be dismissed pursuant to Rule 12(b)(6) only if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Emp. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Expounding on the Twomblyllqbal line of cases, the Third Circuit has articulated this three-step approach:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where 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.”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
C. Factual Allegations
“On or about August 17, 2017, Mr. Callahan began experiencing blurred vision, accompanied by irritation and a burning sensation in and around his eyes.” ECF No. 55, ¶ 20. His eyes began to swell soon thereafter. On September 1, 2017, he submitted to CHCA Smock an “informal grievance” requesting urgent medical care for his “swollen and painful” eyes. Id., ¶ 21. When Callahan had not received medical attention or a response by September 24, he sent a sick call request and another “informal grievance addressed to Medical/Supv” repeating his symptoms, noting he had yet to be seen by medical, and again requesting care. Id., ¶ 24. Thereafter, “Corrections Officer Bill Schwab called the medical unit and requested that Mr. Callahan receive a medical exam addressing his eye complaints.” Id., ¶ 26. In response, medical staff explained that they could only see inmates listed on the medical call-out sheet, which did not include Callahan. “Based on this phone call, Mr. Callahan submitted another sick-call slip requesting care for his eyes and labeled it ‘EMERGENCY!'” Id., ¶ 27. When he had not received a response or treatment by November 25, 2017, he “submitted a third informal grievance, addressed to ‘Medical Dept Supervisor,' again requesting medical care for his swollen eyes and complaining that he had not been seen yet.” Id., ¶ 28.
Callahan had his first medical appointment for his eye condition with PA Riley on December 13, 2017. By then, he had begun “experiencing progressive intermittent vision loss,” and the swelling, pain, burning, and irritation of his eyes had increased. Id., ¶ 29. After examining his eyes, Riley arranged for an optometrist appointment that same day “as a measure of importance.” Id., ¶ 44. At his appointment with Optometrist Jane Doe, he “reported experiencing headaches, episodes of total vision loss, and hazy vision.” Id., ¶ 45. Doe observed that Callahan had “swollen eyes and 20/60 vision” and “[d]iagnosed [him] with a swollen optic nerve.” Id., ¶¶ 46,47. She then “told Mr. Callahan that she was unable to treat his condition and . .. recommended that [he] be referred to an outside ophthalmologist” because “he needed to be seen by an eye surgeon.” AZ.,¶ 49. Riley also attended this appointment. Afterward, Riley “documented the optometry visit and Mr. Callahan's ‘transient vision loss' in Mr. Callahan's chart.” Id., ¶ 54. Nurse Wisniewski and Dr. Halligan reviewed and signed Callahan's medical chart later that day.
Callahan's appearance prompted a corrections officer to bring Callahan “back to medical on an emergency basis” on January 18, 2018. Id., ¶ 79. At this impromptu appointment, “Riley told Mr. Callahan he was looking up the status of the ophthalmology referral from the previous month on his computer and then stated the referral had been canceled.” Id., ¶ 80. Riley then directed Callahan to submit another sick call request.
Callahan heeded Riley's instruction and received an appointment with PA Stroup four days later. At this January 22, 2018, appointment, “Callahan reported increased pain in his eyeballs, increased photosensitivity, and increased migraines. He also reiterated that he was experiencing ‘visual loss like [a] curtain falling,' and ‘darkness[] increasing in duration never totally clearing.'” Id., ¶ 82. Callahan's examination prompted Stroup to get an ophthalmology appointment “scheduled for later that day at UPMC Mercy.” Id., ¶ 83. The “UPMC ophthalmologist confirmed the optometrist's diagnosis of a swollen optic nerve, noting that it was ‘moderately severe' and accompanied by ‘profound vision loss' in both eyes.” Id., ¶ 85. The ophthalmologist then ordered an MRI, which “revealed that Mr. Callahan had a meningioma, or brain tumor.” Id., ¶ 87. Two days later, on January 24, 2018, Callahan underwent the first of three emergency surgeries. The second surgery was performed the next day, January 25, and the third on March 7, 2018. Id., ¶ 87.
Upon discharge from UPMC on January 29, 2018, Callahan returned to SCI-Albion with “limited vision in his right eye and no vision or light perception in his left eye.” Id., ¶ 90. On February 6, “UPMC providers assessed his visual acuity and found that he had no vision in his left eye and only 20/200 vision in his right eye.” Id., ¶ 92. Although “Halligan reviewed and signed off on these findings and prognosis,” she repeatedly wrote in his “chart in February and March 2018 that his vision was restored to 20/25 in his right eye and 20/60 or 20/65 in his left eye,” “indicated that [his] vision had never gotten worse than 20/60 before his emergency surgeries,” and informed “Clark and Smock that Mr. Callahan was ‘faking' blindness.” Id., ¶¶ 93, 96. Halligan also told Callahan that “his vision had improved and would return to normal,” and “threatened to kick [him] out of the infirmary while he was recovering from emergency surgery because there was nothing wrong with him.” Id., ¶¶ 94, 95.
While still in the infirmary, Callahan asked Halligan if she would issue him a single cell upon his discharge “so he could learn to navigate his surroundings without worrying about inconsistency or conflict that might be introduced by a cellmate.” Id., ¶ 106. Halligan denied this request and instead, on February 12, 2018, assigned him “to a bottom bunk in a generalpopulation double cell.” Id., ¶ 107. On March 8, Callahan renewed his request for a single cell. Halligan again denied the request because “he was not blind, even though she knew at the time he had no vision in his left eye and only 20/200 vision in his right eye.” Id., ¶ 111. Callahan grieved Halligan's refusal to assign him to a single cell four days later. At a medical appointment with an unidentified provider on March 15, 2018, Callahan again requested a single cell assignment, but the unidentified provider denied the request.
On April 10, 2018, Callahan's UPMC ophthalmologist concluded that Callahan had become permanently blind due to “optic nerve atrophy,” and “indicated that Mr. Callahan ‘need[ed] blind training,' a ‘low vision evaluation,' and a ‘safe appropriate environment for blindness.'” Id., ¶ 98. A week later, a UPMC oncologist informed Callahan of this diagnosis and that “his vision would not return,” and Stroup documented this information in his medical chart. Id., ¶ 99. The oncologist also “recommended that [Callahan] try again to request a [single cell] because it was a medically necessary accommodation for his blindness.” Id., ¶ 115.
Callahan asked “Smock and Defendant Halligan's replacement, Anthony Letizio, MD,” for a single cell once more on April 20, 2018. Id., ¶ 116. In response, “Dr. Letizio stated he would consider a single cell but would not immediately grant it because Mr. Callahan ‘exaggerates his symptomatology' and ‘refuses to acknowledge the fact that his vision can and may improve.'” Id., ¶ 117. Before the end of April, Callahan was assigned to a single cell, but his cell “was not safe for him to navigate or equipped for his blindness.” Id., ¶ 120. The shower facilities were inaccessible as well, and thus placed Callahan “at risk of serious injury each time he used them.” Id., ¶ 121.
By January 2018, “all corrections officers and medical staff who came into contact with Mr. Callahan were aware that he” needed assistance to perform daily tasks and participate in activities; however, Callahan struggled to obtain personal assistance and visual aids. Id.,¶ 124. In mid-February 2018, after his return to general population, Callahan asked Smock for a personal aide. Smock refused his request because Dr. Halligan told her he was faking his blindness. He then asked Clark. Clark also refused, stating: “I've spoken with the medical department and was told you could see, so no!” Id., ¶ 131. He then turned to Oliver, who said in response, “fk no!” Id., ¶ 134 (profanity edited). Callahan did eventually receive an aide; however, “the resource was not consistently or readily available to him.” Id., ¶ 135.
Callahan also struggled to obtain “specialized sunglasses to help alleviate” the symptoms of his photosensitivity, which included “eye irritation, eye pain, eye swelling, worsening vision, and severe headaches.” Id., ¶¶ 143, 140. Callahan began complaining of his photosensitivity and associated symptoms while in the infirmary in February 2018. He also “reported his photosensitivity and headaches to Defendant Riley and other medical staff on February 8, February 22, March 15, and April 4, 2018,” and asked for special glasses at two of these appointments. Id., ¶ 143. “[N]one were ordered.” Id. On April 10, 2018, Callahan's ophthalmologist recommended that Callahan “receive specialized tinted lenses,” as did his oncologist a week later, and “a low vision evaluation.” Id., ¶¶ 144. Dr. Letizio did not order the tinted glasses but did order the evaluation. Callahan also asked Smock for the glasses. She declined his request “because they were not ‘ordered,' just recommended.” Id., ¶ 146.
Vision screener Alice Leszek conducted Callahan's low vision evaluation about five months later, on September 26, 2018. She also “recommended he receive tinted glasses ... to alleviate his severe photophobia symptoms and make him more comfortable.” Id., ¶ 148. Medical again declined to order them “because they were ‘not prescribed,' just recommended ‘for comfort.'” Id., ¶ 149. Oliver also told Callahan that the glasses had not been ordered “because there [wa]s nothing wrong with [him].” Id., ¶ 150 (internal quotations omitted). Callahan finally received tinted lenses in January 2019, six weeks after his oncologist clarified “that specialized tinted lenses with side shields were medically necessary to alleviate Mr. Callahan's photophobia and headaches,” and almost a year after he first requested them on February 8, 2018. Id., ¶ 151.
Callahan had issues with his cane as well. He first received an engraved cane for vision assistance in the spring of 2018. In February 2019, Callahan received “a new cane that was the wrong height for him and was not engraved.” Id., ¶ 155. Medical staff noted the problems with this cane in July and August of that year but did not replace it until November. His new cane was the correct height; it was also not engraved.
Callahan also claims that certain Defendants failed to provide him with an audio cassette player to accommodate his religious practice. Before his vision deteriorated, Callahan, a practicing Muslim, read scripture every day. “At some point in 2018, Mr. Callahan was issued a talking book machine with a limited catalog of titles” that “did not include titles related to [his] religion.” Id., ¶ 161. On July 11 and August 22, 2019, he asked Smock for “an audio cassette player... so that he could access religious literature and other library materials independently from his cell.” AZ,¶ 167. Smock did not respond. He learned later that Silva had denied his request, “at the recommendation of Defendant Clark and Defendant Smock, on the basis that he had already received an audio player-namely, the talking book that was not capable of playing literature associated with Mr. Callahan's religion.” Id., ¶ 169.
Lastly, Callahan avers that “email exchanges between Defendants Halligan, Riley, Wisniewski, Oliver, and Doe about [his] medical conditions, treatment, and disability accommodations were deleted because of' a document retention policy Wellpath implemented in February 2019 “in part out of concern that discovery into staff emails could lead to liability in some cases.” Id., ¶¶ 182, 181.
D. The Amended Complaint's Legal Claims
The Amended Complaint organizes Callahan's legal claims into four counts. Each count includes related claims as follows:
• Count I asserts an Eighth Amendment deliberate indifference to serious medical needs claim “against Defendants Clark and Smock in their individual capacities; Defendant Correct Care Solutions; and Defendants Halligan, Riley, Wisniewski, and Oliver in their individual and official capacities” based on
the alleged delays in Callahan's medical appointments and receipt of tinted glasses to treat his photosensitivity. Id., ¶ 184.
• Count II asserts a First Amendment access to courts claim “against Defendant [Wellpath] and Defendants Smock, Halligan, Riley, Oliver, and Doe in their individual capacities” based on the deleted ophthalmologist referral and deleted email exchanges between individual Medical Defendants. Id., ¶ 191.
• Count III asserts a First Amendment free speech and free exercise of religion claim “against Defendants Clark, Smock, and Silva in their individual capacities” based on his alleged inability to obtain an audio cassette player that played his religious titles. Id., ¶ 201.
• Count IV asserts an ADA claim and Rehab Act claim against “the Pennsylvania DOC and Defendants Clark, Smock, and Silva in their official capacities” based on the alleged “failure to provide Mr. Callahan with safe and accessible housing, personal aide, appropriate glasses, an appropriate cane, and an audio cassette player.” Id., ¶¶ 209, 212.
E. Discussion
Both the Medical Defendants and the DOC Defendants argue that the statute of limitations bars Callahan's claims to the extent they are based on acts and omissions that occurred prior to October 2018. The Medical Defendants also contend that Callahan has not alleged facts to support a Monell liability claim against Wellpath. The DOC Defendants argue that the Amended Complaint fails to support Smock, Clark, and Wisniewski's personal involvement in the alleged Eighth Amendment violations or Smock and Clark's deliberate indifference to Callahan's medical needs. Both the Medical Defendants and the DOC Defendants assert that Callahan's access to courts claim fails as a matter of law. Finally, the DOC Defendants also argue that Callahan's ADA/Rehab Act claims against Clark, Smock, and Silva in their official capacities must be dismissed because Callahan's release from prison renders his request for declaratory relief moot. The undersigned will address each argument in turn.
1. Whether Callahan's Eighth Amendment claim and ADA/Rehab Act claims are time-barred cannot be determined on the face of the Amended Complaint.
a. Each of Callahan's claims is subject to a two-year statute of limitations.
The expiration of the statute of limitations is an affirmative defense that the defendant must plead and prove. See Fed.R.Civ.P. 8(c)(1); Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989). “Technically, the Federal Rules of Civil Procedure require that affirmative defenses be pleaded in the answer.” Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). However, the “Third Circuit Rule” allows “a limitations defense to be raised by a motion under Rule 12(b)(6), but only if ‘the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'” Id. (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)) (footnote omitted). As such, “[i]f the bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).” Id. (quoting Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)). “‘The face of the complaint' has, in turn, been interpreted to mean the allegations contained in the complaint, matters of public record, ‘materials embraced by the complaint, and materials attached to the complaint.'” Houser v. Feldman, 600 F.Supp.3d 550, 563 (E.D. Pa. 2022) (citing Hoffman v. Nordic Naturals, Inc., 837 F.3d 272, 280 n.52 (3d Cir. 2016).
The parties agree that the two-year statute of limitations borrowed from Pennsylvania personal injury law applies to Counts I-III, which Callahan brings pursuant to § 1983, as well as Count IV, which asserts the ADA and Rehab Act claims. See Urrutia v. Harrisburg County Police Dept., 91 F.3d 451,457 n.9 (3d Cir. 1996) (citing 42 Pa. C.S. § 5524). See also Disabled in Action v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008)) (“[T]he statute of limitations applicable to claims under Title II of the ADA and Section 504 of the RA is the statute of limitations for personal injury actions in the state in which the trial court sits.”). Pursuant to the prison mailbox rule, Callahan's Complaint is treated as filed on October 4, 2020, the day he signed his Complaint. ECF No. 14, p. 11; Galtoghab v. Doe, 2016 WL 757739, at *3 (W.D. Pa. 2016) (Pennsylvania applies the prison mailbox rule, which provides that the “date of delivery of [the pleading] by the [inmate] to the proper prison authority or to a prison mailbox is considered the date of filing of the [pleading]”) (quoting Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. Ct. 1998)). Absent tolling, the statute of limitations thus bars Callahan's claims that accrued earlier than October 4, 2018, two years before he signed his original complaint. Defendants argue that this bar extends to his claims that (1) Wisniewski, Halligan, Riley, and Wellpath failed to provide Callahan with timely medical treatment from September 2017 to January 2018;
The DOC Defendants identify September 30, 2020, as the filing date because Callahan verified the Complaint on that date. See ECF No. 1, p. 5; ECF No. 77, p. 4. However, the prison mailbox rule supports the October 4 date as the proper filing date. In any event, the difference in dates does not materially affect the outcome of the issue.
(2) Clark, Smock, and Halligan failed to provide Callahan with a single cell between February and April of 2018; (3) Clark, Smock, Halligan, Riley, and Oliver failed to grant his requests for tinted glasses between February and September 2018; and (4) Clark, Smock, and Oliver failed to obtain a personal aide for Callahan from February to April 2018. Callahan responds that the limitations period for his claims of deliberate indifference were tolled while he exhausted the administrative grievance process, and the “violations of the ADA and Rehabilitation Act. . . continued until his release in 2021.” ECF No. 78, p. 12.
b. Callahan's claims accrued at different times for purposes of the statute of limitations.
Federal law determines the date of accrual of a claim and, thus, when the statute of limitations period begins to run. See Montanez v. Sec 'y Pennsylvania Dep't of Corr., 773 F.3d 472, 480 (3d Cir. 2014). A § 1983 claim accrues “when the plaintiff has ‘a complete and present cause of action,'” or in other words, “when the wrongful act or omission results in damages.” Dique v. New Jersey State Police, 603 F.3d 181, 185-86 (3d Cir. 2010) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)). Pennsylvania's discovery rule also applies to Callahan's § 1983 claim and tolls the statute of limitations until “the plaintiff knows, or reasonably should know, (1) that [the plaintiff] has been injured, and (2) that [his or her] injury has been caused by another party's conduct.” Bohus v. Beloff 950 F.2d 919, 924 (3d Cir. 1991) (quoting Cathcart v. Keene Indus. Insulation, 324 Pa. Super. Ct. 123, 471 A.2d 493 (Pa. Super. Ct. 1984)). See also Montanez, 773 F.3d at 480 (quoting Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)) (“Under federal law, a cause of action accrues ‘when the plaintiff knew or should have known of the injury upon which the action is based.'”) (further internal citation omitted). But “[a] plaintiffs ignorance regarding the full extent of his injury is irrelevant to the discovery rule's application, so long as the plaintiff discovers or should have discovered that he was injured.” Stephens v. Clash, 796 F.3d 281, 288 (3d Cir. 2015).
c. Callahan's Eighth Amendment claim accrued no later than February 6, 2018.
“A claim alleging deliberate indifference to serious medical needs accrues when the plaintiff knows or has reason to know that deliberate indifference is displayed.” Matos-Ramirez v. Northampton Cnty. Jail Med. Expert, 2021 WL 3722262, at *4 (E.D. Pa. Aug. 23, 2021) (citing Smith v. Municipality of Lycoming Cty., 335 Fed.Appx. 147, 149 (3d Cir. 2009) (per curiam) (prisoner alleging deliberate indifference to medical needs “knew, or had reason to know, of his alleged mistreatment when it occurred”). See Green v. Philadelphia Cty. Prisons, 2006 WL 2869527, at *6 (E.D. Pa. Oct. 4, 2006) (plaintiff's injuries and his § 1983 Eighth Amendment cause of action accrued when the defendants “displayed deliberate indifference to his medical needs” because “on those days [plaintiff] should have known he was injured under the Eighth Amendment”). Stated differently, “[a] deliberate indifference claim will ... accrue, and the statute of limitations for that claim will begin to run, when Plaintiff became aware of the fact that he wasn't receiving appropriate treatment.” Campbell v. Doe, 2017 WL 349289, at *3 (D.N.J. Jan. 24, 2017) (citing Hughes v. Kniebhlher, 341 Fed.Appx. 749, 751-52 (3d Cir. 2009); Baker v. Barnes, 2012 WL 95363, at *4 (D.N.J. Jan. 12, 2012)). However, “the exact timing of any delay in providing medical treatment may not present a bright line of demarcation” for purposes of the statute of limitations. Houser v. Folino, 2014 WL 3696130, at *24 (W.D. Pa. July 23, 2014) (adopting Report and Recommendation). Ultimately, “the determination of the time at which a claim accrues is an objective inquiry” concerned with “what a reasonable person should have known.” Kach, 589 F.3d at 634.
In Williams v. Prison Health Sys., 470 Fed.Appx. 59 (3d Cir. 2012), the Court of Appeals evaluated a statute of limitations defense in a case involving an Eighth Amendment claim factually analogous to Callahan's claim. Like the present case, Williams involved a deliberate indifference claim based on prison medical personnel's failure to timely treat the plaintiffs eye condition. In or about July 2006, the plaintiff complained to prison medical staff about a “sandy feeling” in his eye but did not receive immediate treatment. Soon thereafter, the plaintiffs eye began leaking fluid and he was taken to the hospital where he underwent an operation to repair a detached retina. The plaintiff further alleged that upon his return to the prison, medical staff failed to comply with the surgeon's post-operative instructions and, as a result, he lost sight in his eye in or about December 2006. Id. at 60. The plaintiff did not file his complaint in the district court until November 2010. The district court dismissed his eye injury claim based on the two-year statute of limitations. The Court of Appeals affirmed. It agreed with the district court that the plaintiffs deliberate indifference claim based on delayed treatment of his eye condition accrued when he “knew of the injury to his eye in or around December 2006-the date that he became blind.” Id.
Although the Defendants do not cite to Williams or discuss what Callahan knew or should have known concerning their alleged neglect in treating his eye condition or his resulting injuries, the allegations of the Amended Complaint demonstrate that Callahan knew enough to commence the running of the statute of limitations on his claim no later than when he learned of his loss of vision following the removal of his tumor. This occurred immediately upon or shortly after his eye surgery on January 29, 2018. Callahan acknowledges that on February 6, 2018, “UPMC providers assessed his visual acuity and found that he had no vision in his left eye and only 20/200 vision in his right eye.” ECF No. 55, ¶ 92. Thus, even reading the Amended Complaint in a light most favorable to Callahan, the latest date upon which his deliberate indifference to medical needs claim accrued is February 6, 2018.
d. The date of accrual of Callahan's ADA/Rehab Act claims based on the failures to accommodate his visual impairment is unclear from the Amended Complaint.
Unlike Callahan's allegations regarding his Eighth Amendment claim, the allegations supporting his ADA/Rehab Act claims are not sufficient to allow the Court to determine a specific or latest possible accrual date for these claims or assess whether the continuing violation doctrine applies to the claims. Callahan's ADA/Rehab Act claims have multiple components, including denial of a single cell assignment, denial of tinted glasses, and denial of an aide. Halligan initially denied Callahan's request for a single cell shortly before his release from the infirmary, and consistent with this denial, she assigned him to a cell with a cellmate, but with a bottom bunk restriction, upon his discharge from the infirmary on February 12, 2018. Later, Callahan was assigned to a single cell, but even this cell allegedly failed to accommodate his visual disability. If the Court were to read this claim narrowly as relating solely to the denial of a single cell assignment, the claim could be regarded as accruing no later than February 12, 2018. This, however, would not be a fair reading of the Amended Complaint. Instead, the Amended Complaint alleges facts that plausibly support an ongoing failure to accommodate Callahan's visual impairment. This also includes Callahan's allegations regarding the denial of tinted glasses to address his photophobia as well as the initial denial of an aide followed by inconsistent provision of aide services after one was made available. Indeed, Callahan argues that the failures to accommodate his visual impairment continued after he filed his original Complaint on October 4, 2020.
In his Amended Complaint, Callahan asserts that Riley and other staff declined to order him tinted glasses to alleviate his photosensitivity and related symptoms in February, March, and April of 2018. He then asserts that “Smock declined his request for” the glasses because his oncologist and ophthalmologist had “not ‘ordered,' just recommended” them. ECF No. 55, ¶ 146. The Medical Department again denied Callahan's request for glasses after his appointment with vision screener Alice Leszek on September 26, 2018, because she also only recommended, as opposed to prescribed, the glasses. Callahan did ultimately receive these glasses in January 2019, after his “oncologist clarified on November 29, 2018, that specialized tinted lenses with side shields were medically necessary to alleviate Mr. Callahan's photophobia and headaches.” Id., ¶ 151. Callahan avers that Smock denied his first request for an aide in February 2018 because “Dr. Halligan told us you are faking.” Id., ¶ 129. Thereafter, Clark and Oliver allegedly denied him an aide for the same reason, but Callahan does not provide a date for their alleged denials. The Amended Complaint further states that, “(f]rom January 2018 to his release in September 2021 ... SCI Albion failed to provide Mr. Callahan with consistent access to an aide.” Id., ¶ 124.
“The continuing violation doctrine, where applicable, provides an ‘exception to the normal knew-or-should-have-known accrual date.'” Powell v. Wetzel, 2016 WL 8731445, at *9 (M.D. Pa. Sept. 13, 2016), report and recommendation adopted, 2016 WL 8710470 (M.D. Pa. Sept. 30, 2016) (quoting Gonzales v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (quoting Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999))). A “continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.” Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981), abrogated on other grounds by Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997)). “This doctrine operates as a type of tolling and is often applied to address injuries that are the ‘collective result of many non-actionable' slights.” Patterson v. Strippoli, 639 Fed.Appx. 137, 141 (3d Cir. 2016) (quoting Major Tours, Inc. v. Colorel, 799 F.Supp.2d 376, 387 n.3 (D.N.J. 2011)). See O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006) (noting that the doctrine applies to hostile-environment claims, which are “designed explicitly to address situations in which the plaintiffs claim is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the defendant”). “Discrete acts that are individually actionable, however, constitute separate unlawful practices and cannot be aggregated into a hostile-environment claim.” Powell, 2016 WL 8731445, at *9 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-114 (2002)). And “the continuing violation doctrine does not apply when the plaintiff ‘is aware of the injury at the time it occurred.'” Montanez, 773 F.3d at 481 (3d Cir. 2014) (quoting Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C, 331 F.3d 406, 417 n.6 (3d Cir. 2003)).
Based on Callahan's allegations, it cannot be said as a matter of law that any of the conduct upon which he bases his ADA/Rehab Act claims constituted discrete acts rather than being part of a continuing violation. And any further exploration of the issue by the Court at this stage of the proceedings is inappropriate because neither party has provided any meaningful discussion or citation to authority concerning the issue. See Powell, 2016 WL 8731445, at *10 (“Here, because the parties have not briefed the issue of the applicability of the continuing-violation doctrine, because a conclusion on the applicability of the doctrine is not necessary at this time given that, as discussed above, administrative tolling may apply, and because further factual development may assist the court in the analysis of whether the doctrine applies, we do not make a determination on this issue at this time.”).
Based on the inadequacy of the existing record, the statute of limitations analysis can go no further as to Callahan's ADA/Rehab Act claims. See McPhee v. DePuy Orthopedics, Inc., 989 F.Supp.2d 451, 465 (W.D. Pa. 2012) (whether the statute of limitations barred certain claims was “not apparent from the face of the Complaint” because the court could not “determine[e] the date on which the cause of action accrued,” and so could not “calculate the expiration of the ... statute of limitations period.”). It is therefore recommended that Defendants' motions to dismiss be denied to the extent they seek dismissal of Callahan's ADA/Rehab Act claims based on the statute of limitations.
e. The statute of limitations on all claims was tolled until Callahan exhausted his prison administrative remedies.
Once the accrual date of a claim is determined, it is often a matter of simple arithmetic to determine the expiration of the statute of limitations. Absent tolling, the date by which Callahan needed to commence his Eighth Amendment claim was February 6, 2020, two years following the date he knew the Defendants' alleged neglect caused his blindness. As noted, Callahan's Complaint is treated as filed on October 4, 2020, the day he signed his complaint. This analysis would place Callahan's Eighth Amendment claim beyond the expiration of the statute of limitations. But this is far from the end of the analysis in this case.
Under the federal Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, a prisoner is required to exhaust available prison administrative remedies before commencing a lawsuit asserting claims based on his or her conditions of confinement. While the prisoner exhausts such administrative remedies, the statute of limitations is tolled. Wisniewski v. Fischer, 857 F.3d 152, 158 (3d Cir. 2017). See also Carter v. Pennsylvania Dept, of Corrections, 2008 WL 5250433, at * 11 (E.D. Pa. Dec. 17, 2008) (“[T]he statute of limitations begins to run only when [a] plaintiff has exhausted his administrative remedies under the PLRA.”).
In his Amended Complaint, Callahan claims that he “diligently pursued his claims through the prison administrative process and exhausted administrative remedies on October 22, 2018.” ECF No. 55, ¶ 177. In his opposition brief, he specifies that this date pertains to his deliberate indifference claim. See ECF No. 76, p. 9. The grievance record provided by the Medical Defendants reveals that, on March 12, 2018, Callahan filed Grievance 725934 regarding the Defendants' alleged untimely medical intervention and their failure to authorize a single cell. On April 16, 2018, Callahan received an Initial Review Response (“IRR”) upholding his single cell claim and denying his untimely medical intervention claim. He then appealed the latter through final review and received the final decision of the Secretary's Office of Inmate Grievances & Appeals (“SOIGA”) upholding the IRR on October 22, 2018. See ECF No. 67-3, pp. 1-12. Equitable tolling therefore applies to these claims, but whether tolling saves his deliberate indifference claim depends on the length of the tolling period-specifically, when tolling commenced and when it ended.
The parties do not address when tolling began. There are two possibilities. First, the tolling period could be deemed to have commenced when Callahan's cause of action accrued (i.e., no later than February 6, 2018). This is the date when Callahan's statutory obligation to exhaust his administrative remedies arose. Second, the tolling period could be deemed to have commenced when Callahan submitted Grievance 725934. The issue is far from academic in this case because, as discussed below, if the former tolling commencement date applies, Callahan's deliberate indifference claim was timely filed, but if the latter date applies, the claim is barred by the statute of limitations. Thirty-four (34) days elapsed between February 6, 2018, the claim accrual date, and March 12, 2018, the date Callahan filed Grievance 725934. If the 34 days are subtracted from the tolling period, Callahan will have missed his limitations deadline by approximately 17 days.
While the Court of Appeals for the Third Circuit has not squarely addressed the issue, its decision in Pearson v. Sec 'y Dep't of Corr., 775 F.3d 598 (3d Cir. 2015) clearly contemplates tolling to include the period between accrual of the prisoner's cause of action and the filing of his grievance. In Pearson, the Court of Appeals explained:
As [plaintiffs] § 1983 claims arise in Pennsylvania, we must apply Pennsylvania's statute of limitations. Under Pennsylvania law, personal injury claims must be brought within two years of the accrual of the claim. 42 Pa. Cons.Stat. § 5524(7). Pennsylvania law also provides that “[w]here the commencement of a civil action or proceeding has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action or proceeding must be commenced.” 42 Pa. Cons.Stat. § 5535(b) (emphasis added). The PLRA states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).Id. at 602 (emphasis in original). The Court of Appeals went on to hold that the PLRA created a “statutory prohibition” on a prisoner's commencement of an action that tolls the statute of limitations under Pennsylvania law. Id. at 602-04. Because this prohibition includes the period between the accrual of the prisoner's cause of action and the submission of his grievance, it logically follows that the tolling of the statute of limitations also includes this period.
The District Court for the Middle District of Pennsylvania reached a contrary conclusion in Robbins v. Wetzel, 2023 WL 3901806, at *1 (M.D. Pa. June 8, 2023), holding that tolling did not include the 22 days between Plaintiff's injury and the date he submitted his grievance because “tolling pauses a limitations period,” it “does not restart the limitations period.” However, the court did not address the statutory prohibition on the commencement of suit recognized by the Court of Appeals in Pearson and thus did not account for its effect on the tolling analysis. Furthermore, following its decision in Pearson, the Court of Appeals has repeatedly indicated that the two-year statute of limitations should be calculated from the date the prisoner fully exhausts his administrative remedies. See Bullock v. Buck, 611 Fed.Appx. 744, 746 (3d Cir. 2015) (“We recently held” in Pearson, 775 F.3d at 603 “that the statute of limitations is tolled while an inmate exhausts administrative remedies. The two-year statute of limitations for [Plaintiffs] claim thus began to run on the date he exhausted those remedies.”); Lomax v. Tennis, 708 Fed.Appx. 55, 57 (3d Cir. 2017) (citing Pearson, 775 F.3d at 598) (“Clearly, some of the allegations in the complaint pertain to incidents that occurred more than two years before the complaint was filed on December 15, 2016. But the District Court did not consider that Lomax's claims were tolled while he exhausted his administrative remedies through the prison grievance system. Notably, his complaint included forms indicating that the Department of Corrections rendered final decisions on several of his grievances within two years of the complaint's date.”) (internal citation omitted); Paluch v. Sec'y Pennsylvania Dep't Corr., 442 Fed.Appx. 690, 694 (3d Cir. 2011) (“Paluch attempted to seek relief through the administrative process from September 10, 2004, through January 24, 2005, when his final appeal to the Secretary's Office of Inmate Grievances and Appeals was denied .. . Thus, the statute of limitations applicable to Counts 1 through 3 did not begin to run until January 2005.”) (internal citation omitted). Finally, independent of PLRA tolling, Callahan's claim may be subject to general equitable tolling based on his medical condition and other circumstances concerning which the record is undeveloped. See Pace v. DiGuglielmo, 544 U.S. 408,418 (2005).
Having resolved when tolling commences, the Court must now determine the date on which Callahan should be deemed to have exhausted his administrative remedies and, thus, when equitable tolling of the statute of limitations ended. The parties disagree on this issue. Defendants argue that Callahan completely exhausted all claims when he received the IRR because prison officials failed to issue the IRR within 15 days after he submitted his appeal, as required by DOC policy. See DC ADM 804, § 1(C)(5)(g). According to Defendants, the DOC's failure to follow DC ADM 804 resulted in Callahan's grievance being deemed exhausted. As support for their position, Defendants cite to the Third Circuit's holding in Shifflett v. Korszniak that “as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits proscribed by its own policies, it has made its administrative remedies unavailable, and the prisoner has fully discharged the PLRA exhaustion requirements.” ECF No. 68, p. 16 (citing 934 F.3d 356 (3d Cir. 2019)). Defendants' reliance on Shifflett is misplaced. Shifflett stands for the proposition that a prison's failure to adhere to its own policies can render an unexhausted claim exhausted when the failure prevents the prisoner from completing the process. Shiffert does not imply that a prison's failure to adhere to its own policies can render exhaustion complete for purposes of administrative tolling. Indeed, “[n]othing in the text or design of the PLRA suggests that it lets prison officials dodge accountability by running out the clock.” Jones v. Unknown D.O.C. Bus Driver & Transportation Crew, 944 F.3d 478, 482 (3d Cir. 2019). While Callahan arguably could have treated the grievance process as exhausted based prison officials' failure to issue the IRR within 15 days, he did not. Instead, he waived any objection to timeliness in favor of allowing the grievance process to continue to a conclusion. Accordingly, the statute of limitations on Callahan's Eighth Amendment claim was tolled until October 22, 2018, the date SOIGA decided Callahan's final appeal on Grievance 725934.
As discussed, the accrual date on Callahan's ADA/Rehab Act claims and the potential application of the continuing violation doctrine cannot be determined based on the face of the Amended Complaint. Although this lack of clarity arguably makes a discussion of tolling unnecessary as to these claims, the Court will address Defendants' argument that tolling of any claim based on denial of a single cell ended on April 16, 2017, the date the IRR upheld the portion of Grievance 725934 relating to this claim. In all respects other than the single cell assignment claim, the IRR affirmed the denial of Grievance 725934. This required Callahan to appeal the unsuccessful claims to SOIGA to exhaust his administrative remedies. Thus, while Callahan's grievance was partially successful as of April 16, 2017, it was not fully exhausted until SOIGA decided his appeal on October 22, 2018. See Hankins v. Wolf, 2015 WL 1842915, at *6 (W.D. Pa. Apr. 22, 2015) (holding that plaintiffs grievance “was not fully exhausted until he received the final grievance review response” even though the IRR he received months earlier upheld the grievance). “[A] grievance is not properly exhausted until it is appealed through final review, even if further appeal may be considered futile....” Id. at *5. See also Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that inmate was required to exhaust all administrative remedies available to him prior to filing action with federal court “even though the Commonwealth of Pennsylvania's inmate grievance process could not provide [him] with the money damages he sought”); Williamson v. Wexford Health Sources, Inc., 131 Fed.Appx. 888 (3d Cir. 2005) (upholding dismissal of plaintiffs failure to exhaust administrative remedies despite plaintiffs contention that further administrative exhaustion would have been futile because he had received all the relief he requested in his grievance). Defendants' “partial success” argument, if adopted, would result in multiple end dates for equitable tolling of related claims presented in a single grievance. Such an outcome would create unnecessary uncertainty for litigants and the Court in determining when statutes of limitations recommence following the grievance process. Therefore, the claims upheld in the IRR to Grievance 725934 cannot be considered to have been fully exhausted until October 22, 2018, when SOIGA issued its decision on the remaining claims of that grievance.
Citing Diaz v. Palakovich, 448 Fed.Appx. 211, 216 (3d Cir. 2011), Defendants also note that “[a]n inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative remedies.” (citing Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010)). Defendants' reliance on Diaz is also misplaced. Although a prisoner is not obligated to appeal a grievance decision with which he is satisfied, Callahan did, in fact, appeal the aspects of his grievance with which he was unsatisfied. In addition, Diaz did not discuss what effect, if any, upholding of a grievance has on equitable tolling.
Callahan had two years from this date to file his lawsuit raising his Eighth Amendment deliberate indifference claim. He did so on October 4, 2020. Thus, the face of the Amended Complaint does not permit dismissal of his claim based on the statute of limitations. This holding, however, does not preclude Defendants from raising their statute of limitations affirmative defense at a later stage of this case based on a more complete record.
2. The Amended Complaint states an Eighth Amendment claim against Smock but fails to state a claim against Wisniewski and Clark.
To establish a violation of his constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). The DOC Defendants do not directly challenge the sufficiency of the facts alleged in the Amended Complaint to support an Eighth Amendment claim based on deliberate indifference to Callahan's serious medical needs. Instead, they argue that the facts alleged are insufficient to support the personal involvement of Smock, Clark, and Wisniewski in the conduct upon which this claim is based. See ECF No. 73, p. 6 (Callahan “has largely failed to adequately allege the personal involvement of [Smock, Clark, and Wisniewski] in the alleged violations of his Eighth Amendment rights”) (emphasis added). The DOC Defendants are correct that each defendant must have had “personal involvement” in the deprivation of a constitutional right before he or she faces liability under § 1983. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21, 2013). This means that each defendant must have played an “affirmative part” in the complained-of misconduct, and liability “cannot be predicated solely on the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1998)); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). A defendant's personal involvement can be shown by alleging their “participat [ion] in violating the plaintiffs rights, direct[ing] others to violate them, or, as the person in charge, ha[ving] knowledge of and acquiesce[ing]” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
The alleged omissions of Smock and Clark also raise issues of potential supervisory or policymaker liability. Like that of any defendant, a supervisor's liability must be based on “personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998). While “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates,” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986), a supervisor, like any other official, faces liability if he or she participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K., 372 F.3d at 586 (citation omitted). Liability may also attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Ld. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013). The Court will analyze whether the facts alleged support the personal involvement of Smock, Clark, and Wisniewski in turn.
The Amended Complaint also alleges in conclusory terms that Smock, Clark, and Wisniewski were among the individuals who “destroyed” or otherwise failed to preserve medical records relating to Callahan and other inmates. See e.g., ECF No. 55, ¶ 185. The Amended Complaint also alleges that any loss of documents occurred pursuant to a Correct Care records retention policy and alleges no facts to support a plausible inference that Smock, Clark, or Wisniewski participated in a knowing destruction of Callahan's records. Therefore, Callahan's conclusory allegations cannot serve as a basis for finding that any of these three Defendants was personally involved in actionable conduct. Finally, and most importantly, although Callahan attempts to assert an “access to courts” claim based on these conclusory allegations, they are, at best, allegations of spoliation of evidence and, for the reasons discussed infra. Callahan's access to courts claim fails as a matter of law.
a. The facts alleged support Smock's personal involvement in an Eighth Amendment violation.
Smock was employed by the DOC as the Corrections Health Care Administrator (CHCA) at SCI-Albion. ECF No. 55, ¶ 7. The Amended Complaint does not allege that Smock had any direct role in Callahan's care. Instead, Callahan acknowledges that her role was purely administrative and supervisory. Id. (“Defendant Smock was responsible for ensuring health care staff complied with DOC policies...”). This is consistent with the role of a CHCA, which is “a purely administrative role” and does not involve providing “direct medical treatment to inmates.” Fantone v. Herbik, 528 Fed.Appx. 123, 128 n.6 (3d Cir. 2013).
Smock's first alleged involvement in any matter related to Callahan's care occurred on September 1, 2017, when Callahan submitted “an informal grievance form addressed to Defendant Smock requesting medical care because his eyes were swollen and painful.” Id., ¶ 21. Although Callahan's grievance stated, “this is urgent,” Smock did not respond. Id. ¶¶ 21-22. On September 24, 2017, Callahan submitted a sick call slip to the medical department and another informal grievance to Smock regarding his need for medical attention for his eyes. See id., ¶ 24. Again, he received no response. See id. By November 25, 2017, Callahan was describing his condition as an “emergency” in sick call requests to the medical department and he submitted yet another informal grievance that was reviewed by Smock. See id., ¶¶ 27-28. Despite his repeated pleas for medical attention, he was not taken to the medical department for his eyes until December 13, 2017. See id., ¶ 30. Smock's administrative responsibilities included ensuring that prisoners were seen for sick call. See id., ¶ 34. These factual allegations are sufficient to support a finding that Smock was personally involved in conduct that forms at least part of the basis for Callahan's Eighth Amendment claim.
“[A]bsent 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). Here, the facts alleged support a plausible inference that Smock knew Callahan was not receiving care for a serious and urgent medical need and that, despite her responsibility for ensuring that prisoners were seen for sick call, she did little or nothing to see that he received care. The facts alleged also support a plausible inference that Smock knowingly acquiesced in the neglect of Callahan committed by individuals within her supervisory responsibility. While Smock may not have had any responsibility for supervising or directing specific care for Callahan, the facts alleged support that she did have responsibility to see that prisoners with urgent medical needs were seen by appropriate medical personnel.
b. The facts alleged do not support Wisniewski's personal involvement in an Eighth Amendment violation.
Wisniewski is a licensed practical nurse who was employed by Correct Care in December 2017. See ECF No. 55, ¶ 12. Callahan alleges that she was one of the medical personnel who reviewed Callahan's medical chart in December 2017 and was thereby made aware of Callahan's serious symptoms and his need to be seen by an ophthalmologist. See id, ¶¶ 51-55. Although the Amended Complaint includes an allegation that Wisniewski was one of several medical personnel who had the power to make a referral to an ophthalmologist, it alleges no facts to support that Wisniewski was responsible for scheduling Callahan for an ophthalmology appointment. The forgoing allegations are insufficient to support Wisniewski's personal involvement in conduct that forms the basis for Callahan's Eighth Amendment claim. This claim should be dismissed.
c. The facts alleged do not support Clark's personal involvement in an Eighth Amendment violation.
Clark was employed by the DOC as the Superintendent and Facility Manager at SCI Albion from about March 2016 until about July 2021. He was not involved in Callahan's medical care. The Amended Complaint nevertheless alleges he was one of the individuals who, along with Wellpath/Correct Care, “caused the prolonged denial of access to medical care by maintaining a policy and custom of intentionally understaffmg SCI Albion's medical department.” Id., ¶ 39. The Amended Complaint also alleges, “[u]pon information and belief, Defendant Clark and Correct Care Solutions shared the responsibility for providing doctors, nurses, and clerical staff to SCI Albion and for determining the level of staffing that would be provided.” Id., ¶ 40. Similarly, the Amended Complaint alleges, “[u]pon information and belief, Defendant Clark and Correct Care Solutions knew SCI Albion did not have enough staff to realistically retrieve, triage, and respond to sick calls in a timely manner.” Id., ¶ 41. As they relate to Clark, these allegations are inherently conclusory and unsupported by factual allegations. As such, they cannot support a plausible inference that Clark adopted or ratified a policy or custom that directly resulted in Callahan's constitutional injury. See Payne v. Butts, 2022 WL 16916347, at * 1 (3d Cir. 2022) (conclusory allegations that individual played a role in constitutional violation without support facts are insufficient to state a claim); Rulli v. City of Pittsburgh, 2021 WL 1391761 at *2 (W.D. Pa. Mar. 23, 2021) (dismissing the supervisory liability claim against the mayor because the conclusory allegations that he “ordered, authorized and/or acquiesced in the violation of Plaintiffs' rights” was merely a recital of the elements of a supervisory liability theory that was not entitled to the assumption of truth); Yoast v. Pottstown Borough, 437 F.Supp.3d 403, 431 (E.D. Pa. 2020) (dismissing the failure-to-train claims against the police supervisors because there were no allegations of a pattern of constitutional violations or sufficient facts to establish their deliberate indifference or personal involvement, only conclusory allegations).
The Amended Complaint recites that based on “information and belief,” Clark had shared responsibility for determining staffing in the medical department, but it includes no factual allegations to support such an inference. Beyond speculation based on Clark's position as Superintendent and Facility Manager, nothing in the Amended Complaint supports that he had any role in determining medical staffing or directing medical personnel, or that he knew of and acquiesced in any persistent understaffmg in the medical department. Furthermore, to the extent the Amended Complaint generally alleges that Clark failed to properly supervise other prison personnel, these allegations are likewise insufficient. See Chinchello, 805 F.2d at 133 (holding that supervisory officials have no “affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates”). As conclusory allegations are the only basis for the Eighth Amendment claim against Clark, they fail to support his personal involvement in the conduct upon which Callahan bases his claim. The Eighth Amendment claim against him should therefore be dismissed.
3. The Complaint is minimally sufficient to state a Monell Claim against Wellpath.
Callahan also asserts a claim against Wellpath based on an assertion that it maintained a policy or custom of understaffmg the medical department at SCI-Albion that resulted in his constitutional injury. Wellpath is a private corporation that provides healthcare services to Pennsylvania state inmates under a contract with the DOC. See ECF No. 55, ¶ 9. Unlike the supervisory liability claim against Clark, the Monell claim against Wellpath is minimally sufficient to survive the Medical Defendants' motion to dismiss.
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), the Supreme Court held that a municipality may be held liable under § 1983 for a constitutional injury that directly resulted from its policy, custom, or practice. Id. at 695. “Under Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees.” Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Instead, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. (quoting Monell, 436 U.S. at 694). Thus, it is essential to a Monell claim that there be a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation” to establish municipal liability. City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Private corporations that contract with the state to provide services typically provided by the state are also subject to potential liability based on the principles established by Monell, but like municipal entities, private corporations are not liable under § 1983 based on a theory of respondeat superior. See Natale v. Camden County Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). Instead, a private corporation performing a government function is liable under § 1983 only if it had a policy, custom, or practice that caused the plaintiffs constitutional injury-in this context, a policy, custom, or practice exhibiting deliberate indifference to a prisoner's serious medical needs. See id., at 584 (applying requirements of Monell to a private company providing medical services to inmates). See also Weigher v. Prison Health Servs., 402 Fed.Appx. 668, 669-70 (3d Cir. 2010) (noting that a private corporation providing medical service at a state prison cannot be held liable under a theory of respondeat superior in a § 1983 suit). Thus, to prevail on his § 1983 claim against Wellpath, Callahan must establish that “there was a relevant [Wellpath] policy or custom, and that the policy caused the constitutional violation” for which he seeks relief. See Natale, 318 F.3d at 583-84.
“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 Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481(1986)), superseded in part by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072, § 102. A course of conduct not expressly authorized by law becomes a “custom” when the challenged “practices of state officials [are] so permanent and well settled” as to virtually constitute law. Monell, 436 U.S. at 690. To establish Wellpath's liability under § 1983, “it is incumbent upon [Callahan] to show that a policymaker is responsible either for the policy or, through acquiescence, for the custom.” Andrews, 895 F.2d at 1480 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). The “policymaker” is the person who “has final, unreviewable discretion to make a decision or take an action,” and who is or is not a policymaker is determined by reference to state law. Andrews, 895 F.2d at 1481; Perez v. Larson, 2020 WL 5507227, at *2 (M.D. Pa. Sept. 11, 2020).
Callahan claims that, as the provider of healthcare services to the inmates, Wellpath implemented policies or customs that were deliberately indifferent to the serious medical needs of inmates and that directly caused him to receive deficient medical care. The Medical Defendants first argue that the allegations fail to identify “a specific custom or policy of deliberate indifference to [Callahan's] medical needs beyond mere speculation that one existed.” ECF No. 68, p. 23. For pleading purposes, however, Callahan adequately identifies the alleged policies or customs upon which he bases his claim. See Connelly v. Lane Const. Corp, 809 F.3d 780, 790 (3d Cir. 2016).
Callahan first alleges that Wellpath had a custom of understaffmg of the medical department at SCI-Albion that delayed treatment of his eye condition from September to December 2017. Callahan alleges that Wellpath was responsible “for . . . determining the level of' “doctors, nurses, and clerical staff' at SCI-Albion, and refused to provide “enough staff to realistically retrieve, triage, and respond to sick calls in a timely manner.” Id., ¶ 40. Unlike the allegations against Clark, a nonmedical prison official, the Amended Complaint plausibly supports that Wellpath had a direct role in determining staffing and allocating resources in the medical department. Callahan adds that Wellpath knew understaffmg SCI-Albion's medical department posed substantial risks to his health and safety because “it has observed these outcomes firsthand in other correctional facilities nationwide, where prisoners have died because its understaffed medical departments did not respond to their sick call requests.” Id., ¶ 43 (citing U.S. Dep't of Justice, Investigation of the Hampton Roads Regional Jail (Portsmouth, Virginia), 1 at 6, 10-13, 15-16 and Fulton County Notice of Suspension of Work and Intent to Terminate for Failure to Cure Defaults, 2 at 2-3 (noting government's intent to terminate Correct Care Solutions' contract because of persistent understaffmg and rising deaths in the jail population)). Callahan's Amended Complaint is somewhat thin in certain areas. For example, it does not allege specific facts regarding Wellpath's staffing levels in SCI-Albion's medical department or that the alleged understaffmg resulted in deficient care of prisoners before the delays in Callahan's treatment. This level of detail, however, is not required at the pleading stage of the case. “A plaintiff is not obligated to plead with special particularity the exact policies and practices that were in place, prior to taking any discovery into the alleged policies, and explain exactly how these precisely alleged policies caused or contributed to plaintiffs injuries.” Rodriguez v. City of Phila., 2015 WL 4461785, at *4 (E.D. Pa. July 21, 2015) (citations omitted).
Callahan also alleges that Wellpath's employees delayed his necessary ophthalmologist appointment pursuant to a policy or custom of “cost containment” that capped “annual spending on hospital care at a predetermined amount and disfavor[ed] or prohibit[ed] hospital visits for prisoners except in life-threatening medical emergencies.” ECF No. 55, ¶ 72. Callahan posits that Wellpath knew this policy or custom posed “an obvious and substantial risk of serious harm” to inmates “because it required or pressured providers not to transfer prisoners to hospitals except in a narrow set of circumstances.” Id., ¶ 74. Callahan further infers that this policy or custom prompted the Medical Defendants to ignore or cancel his initial ophthalmological referral and that Halligan failed to re-issue the referral or “direct her staff to do so” pursuant to the custom or policy. Id., ¶ 65. These allegations are also sufficient at this stage of the case.
Medical Defendants next argue that “many of the allegations regarding Wellpath's alleged staffing and budgeting are directly rebutted by the allegations of the Amended Complaint.” ECF No. 68, p. 25. In support of this argument, the Medical Defendants note Stroup's ophthalmologist referral in late January 2018. They assert that this successful referral “belies any allegation that Wellpath maintained a policy for cost-saving that allegedly resulted in a denial of a referral for an ophthalmologic consult.” Id., p. 25. They ignore, however, the allegations that Callahan's symptoms had significantly worsened by the time Stroup made the referral, and that Defendants knew that such a referral was medically necessary well before January but delayed it based on the alleged cost-containment policy. Thus, the allegations support a plausible inference that Stroup's medically necessary referral of Callahan to an ophthalmologist was materially delayed for nonmedical reasons, i.e., the cost-containment policy.
In sum, the Amended Complaint is adequate to state a Monell claim against Wellpath, and the Medical Defendants' motion to dismiss this claim should be denied.
4. The Amended Complaint fails to state a First Amendment Access to Courts Claim against any Defendant.
Defendants also challenge Callahan's First Amendment access to courts claim, which he asserts against Smock, Halligan, Riley, Oliver, Doe, and Wellpath based on the alleged destruction of the ophthalmologist referral and alleged deletion of emails pursuant to a document retention policy adopted by Wellpath in 2019. As explained below, this claim fails as a matter of law because Callahan has not lost or been prevented from asserting any claim against any Defendant. Indeed, he is currently prosecuting the very action that is the subject of his access to courts claim. Rather, he is alleging the loss or spoliation of evidence that he contends would further support his claims in this case. While Callahan may very well have a remedy for such conduct, it is not in the form of an access to courts claim.
Prisoners have a fundamental right to access the courts. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). To state an access to courts claim, plaintiffs must allege facts to show: (1) “that they suffered an ‘actual injury' in that they lost a chance to pursue a ‘nonfrivolous' or ‘arguable' underlying claim”; and (2) that they have “no other ‘remedy that may be awarded as recompense' for the lost claim other than in the present denial of access suit.” Id. at 205-06 (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). The complaint must “describe the underlying arguable claim well enough to show that it is ‘more than mere hope,' and it must describe the Tost remedy.'” Id. (quoting Christopher, 536 U.S. at 416-17). The plaintiff must also demonstrate that the denial of access caused the alleged injury to occur. Tinsley v. Gloria, 369 Fed.Appx. 378, 381 (3d Cir. 2010) (citing Lewis, 518 U.S. at 352-54). Significantly, the facts alleged must demonstrate that “the plaintiff cannot obtain relief by pursuing the underlying claim in another lawsuit.” See v. Fink, 2009 WL 648936, at *4 (M.D. Pa. Mar. 10, 2009).
Callahan first claims that the individual Defendants “destroyed evidence that Mr. Callahan's ophthalmology referral was intentionally canceled.” ECF No. 55, ¶ 194. Callahan explains that “this referral necessarily identified Mr. Callahan's dire need for emergent care related to his vision loss” and avers that Defendants' intentional cancellation of this referral violated his Eighth Amendment rights. He then argues that “[t]he destruction of this evidence denied [him] his right of access to the courts because it prejudices his Eighth Amendment claim of deliberate indifference by making direct evidence of intentional mistreatment and medical delay unavailable.” Id., ¶ 196. Callahan also asserts an access to courts claim against Wellpath based on allegations that Wellpath implemented a new document retention policy in February 2019 “automatically and permanently eras[ing] all emails that are more than one year old and all emails of former employees who have not worked for [Wellpath] for more than one year....” ECF No. 55, ¶ 180. Callahan alleges that Wellpath adopted this “policy in part out of concern that discovery into staff emails could lead to liability in some cases,” id., ¶ 181, and that because of the policy, Wellpath has destroyed “email exchanges between Defendants Halligan, Riley, Wisniewski, Oliver, and Doe about Mr. Callahan's medical conditions, treatment, and disability accommodations” and emails evidencing Defendants “degree of knowledge” and “state of mind.” Id.,¶¶ 182, 197.
Both claims fail because the facts alleged do not support that the loss of evidence has rendered him unable to pursue a meritorious claim in this case. Indeed, Callahan is actively pursuing his claims in this very action. An access to courts claim assumes the prior loss of a meritorious claim, not alleged impairment of one that the plaintiff is actively pursuing. See Green v. Ferdarko, 2017 WL 9285187, at *12 (W.D. Pa. Dec. 6, 2017), report and recommendation adopted, 2018 WL 2009087 (W.D. Pa. Apr. 30, 2018); See v. Fink, 2009 WL 648936, at *4.
What Callahan is really complaining about is potential spoliation of evidence, which, if established, the Court can address at an appropriate time through an adverse inference charge or other action. See Green, 2017 WL 9285187, at *12. But such alleged spoliation cannot support an independent access to courts claim in a lawsuit where Callahan is prosecuting the very claim that he asserts was lost or damaged. Id. Because Callahan cannot allege facts to support an injury cognizable in an access to courts case, this claim should be dismissed with prejudice.
5. The ADA/Rehab Act claims against Clark, Smock, and Silva in their official capacities should be dismissed.
At Count II of the Amended Complaint, Callahan asserts claims for violation of Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131-12165) and Section 504 of the Rehabilitation Act (29 U.S.C. §§ 701 et seq.) against Clark, Smock, and Silva in their official capacities as well as against the DOC itself. The DOC Defendants argue that Callahan's official capacity claims against Clark, Smock, and Silva should be dismissed. They are correct. The only relief Callahan could obtain against the individual DOC employees in their official capacities is injunctive or declaratory relief. Callahan has been released from the custody of the DOC. Thus, to the extent any official capacity claims would lie against Clark, Smock, or Silva under either the ADA or the Rehabilitation Act, they would be for injunctive or prospective relief, which have been rendered moot by Callahan's release from custody. See Harris v. Giroux, 2019 WL 330459, *2 (W.D.Pa. 2019) (observing that former inmate's “ADA and Rehabilitation Act claims for prospective injunctive relief should be dismissed as moot based upon his release from incarceration”). Accordingly, Callahan's ADA/Rehab Act claims against the individual DOC Defendants in their official capacities should be dismissed.
Of course, the mootness of Callahan's official capacity ADA/Rehab Act claims does not affect his claim for money damages against the DOC.
F. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. In this case, Callahan may be able to cure the deficiencies in his Eighth Amendment claim against Clark and Wisniewski. Accordingly, this claim should be dismissed without prejudice as to these two Defendants and Callahan should be granted leave to file a second amended complaint within twenty days. Callahan's access to courts claim and ADA/Rehab Act claim against Smock, Clark, and Silva in their official capacities suffer from legal deficiencies that make any attempt to cure by amendment futile. Accordingly, these claims should be dismissed with prejudice.
G. Conclusion
For the foregoing reasons, it is respectfully recommended that the DOC Defendants' motion to dismiss (ECF No.72) and Medical Defendants' motion to dismiss (ECF No. 67) be granted in part and denied in part. With respect to the DOC Defendants' motion to dismiss, Callahan's Eighth Amendment claim against Wisniewski and Clark should be dismissed without prejudice, and his access to courts claim against Smock and ADA/Rehab Act claims against Clark, Smock, and Silva in their official capacities should be dismissed with prejudice. In all other respects, the DOC Defendants' motion should be denied. The Medical Defendants' motion to dismiss should be denied in all respects except for Callahan's access to courts claim, which should be dismissed with prejudice.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).