Opinion
1:22-CV-00078-SPB
12-21-2022
RON ALLEN HUNTER JR., Plaintiff v. DR. BARRETT, PHYSICIAN; DR. KANG, PHYSICIAN; AND Z. WAGGONER, C.O., Defendants
REPORT AND RECOMMENDATION ON DEFENDANT WAGGONER'S MOTION TO DISMISS
IN RE: ECF NO. 22
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
Defendant Z. Waggoner, C.O. (“Waggoner”) has filed a motion to dismiss the Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(6). See ECF No. 22. The motion has been referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). It is respectfully recommended that Waggoner's motion be GRANTED in part and DENIED in part.
I. Factual and Procedural Background
At the time of the events alleged in the Complaint, Plaintiff Ron Allen Hunter Jr. (“Hunter”) was a pre-trial detainee housed at the Erie County Prison. His pro se civil rights Complaint was docketed on April 1,2022. ECF No. 8. He identifies the following individuals as defendants: “Dr. Barrett, Physician,” “Dr. Kang, Physician,” “Z. Waggoner, C.O.” Id., pp. 2-3.
According to the docket of the Erie County Court of Common Pleas, Hunter was found guilty of his underlying state court criminal charges on November 10,2022. See Common Pleas Court Docket No. CP-25-CR-000437-2022 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet7docket NumberdP-25-CR-0000437-2022&dnh=eV2YlhMzSwTPkCn4qFh%2F0w%3D%3D) (last accessed 11/14/2022).
Defendants Bessetti-Barrett and Kang Li have also moved to dismiss the claims against them. Their motion will be addressed by separate Report and Recommendation.
Hunter's Complaint alleges that during intake on January 11, 2022, he told prison officials that “the emergency room said no lifting” because he had hernias and fractured ribs. Id. p. 4. Hunter alleges prison officials laughed at him despite his hernias and forced him to lift himself onto a top bunk bed. Id. He further alleges that prison officials gave him ibuprofen in response to his medical complaints but did not change his assignment from a top bunk to a bottom bunk. Id. See also id. at p. 5. He faults prison officials generally for ignoring his health concerns.
Hunter also alleges that Waggoner “knew about my health problems at the time yet he still mased (sic) me knowing I got heart problems, breathing problems, and 2 hurnias (sic).” Id. at p. 13. Hunter relates that he “even has liver problems” and that he does not “feel safe here.” Id. He says that on February 16, 2022, “I found 2 new hurnias (sic) and now have 4 hurnias because the jail dr. will not do her job.” Id. Approximately five days after his complaint was filed, Hunter submitted a document he labeled “affidavit.” See ECF No. 10. This document, Hunter contended, was drafted “in compliance with Federal Rule of Civil Procedure 5.” See ECF No. 5, p. 1. It is unsworn and therefore not an affidavit. Because it was filed before the motions to dismiss, the Court will instead consider it as a supplement to the complaint. See Fed.R.Civ.P. 15. See also Korb v. Haystings, 260 Fed.Appx. 222, 226 (3d Cir. June 8, 2021) (pre-motion-to-dismiss filings should be treated as supplements to the complaint). This supplement adds the following additional factual background:
On 1-11-22,1 came to Erie County Prison after being at Saint Vincent Hospital because my ribbs (sic) were fractured because a state trooper Christopher Weber. It even shows in my affidavit of probable cause that I was at the hospital and I have hospital records of two hurnias (sic) from Saint Vincent. So C.O. Waggoner knew I was not allowed to lift anything.
Dr. Kang and Dr. Barrett stated that there is no record of my ribbs (sic) being fractured. But my affidavit shows me being at Saint Vincent Hospital for my ribbs (sic) and records of my hurnias (sic).ECF No. 10. p. 1.
More than a year later, Hunter filed additional documents he labeled as requests for an unspecified “writ.” See ECF Nos. 43, 46, 47, and 48. These filings primarily concerned Hunter's requests for relief and events that occurred after the filing of the Complaint. Therefore, the Court construed them as further supplements to Hunter's Complaint and caused them to be re-docketed as such. See Fed.R.Civ.P. 15(d); Korb, 860 Fed.Appx. at 226. The supplements provide very little additional information about the actions of Waggoner, however. For example, at ECF No. 43, Hunter states only that he wants “to be clear on the relief I am asking.” He then specifies various types and amounts of damages he is seeking but does not mention Waggoner. At ECF No. 46, Hunter reports that he was seen by a doctor on August 9, 2022. ECF No, 46, p. 1. This supplement does mention Waggoner, but only in connection with his lawyer subpoenaing Hunter's medical records. Id.. Hunter filed ECF No. 47 to “better describe (sic) my claim.” ECF No. 47, p. 1. He alleges that cameras “will show staff laughing making fun of me while I'm asking to see the doctor and when I asked to be seen about my hurnias (sic) and ribbs (sic) I was ignored.” Id. Hunter states that “Waggoner knew - there were witnesses I was in to[o] much pain to defend myself even if I wanted to. He knew yet c.o. Zach Waggoner still assaulted me.” Id. Hunter's last supplement alleges that:
This supplement does include the bald assertion that “the drs lieing (sic) and c.o. Waggoner wanting to hurt me intentionally. ECF No. 46, p. 1. This allegation is disconnected from any factual averment.
Doctors Kang - Dr. Barrett did not care about my health or see me and when Waggoner knew and even admitted to me - He carried my things because my ribbs (sic) are fractured yet C.O. Waggoner still mased (sic) me assaulted me knowing I could barely move. I was [in] pain and even though he knew this he tried to force me to carry my stuff a few week[s] later to a top bunk upstairs knowing and aware I can barely carry anything.”ECF No. 48.
On June 21, 2022, Waggoner filed a motion to dismiss Hunter's Complaint pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 22. Hunter was ordered to file a response in opposition to the motion or an amended complaint. See ECF No. 24. Instead, on June 29, 2022, he filed a “notification” stating his desire to “proceed with legal action -1 do not want this case dismissed. I do want to continue my lawsuit and civil case.” ECF No. 27. The Court notified Hunter that this filing, construed as his response to the motion to dismiss, lacked “any factual background, legal argument, and/or citation to proper legal authority” and afforded him additional time to file a proper response to the motion or an amended complaint. ECF No. 28, pp. 1-2. Thereafter, he filed two supplemental responses: ECF No. 30 on July 11, 2022; and ECF No. 37 on July 15, 2022. Waggoner's motion is now ripe for disposition.
Waggoner did not respond specifically to Hunter's supplements. Nevertheless, because they do not add any material factual allegations to his claims, they do not alter the Court's analysis of the issues raised in Waggoner's motion to dismiss.
II. Standard of Decision
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In deciding a motion to dismiss, 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 Atlantic 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 Ashcroft v. Iqbal, 556 U.S. 662 (2009). A complaint should only be dismissed pursuant to Rule 12 (b)(6) 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 (1957)). In making this determination, the court must view the well-pleaded factual allegations in the complaint in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. 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 set forth in the complaint. See California Pub. Employee 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. Twombly, 550 U.S. at 555. See also 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 Twombly/Iqbal line of cases, the Court of Appeals for the Third Circuit has articulated the following 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. With these standards in mind, the Court now turns to a review of Hunter's complaint, the claims raised therein, and a resolution of the pending motion to dismiss.
III. Discussion and Analysis
A. Exhaustion of Administrative Remedies
Waggoner first argues that any claims purportedly asserted against him are administratively unexhausted. See ECF No. 23, p. 10. The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 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); see Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”). The PLRA requires “proper exhaustion,” meaning exhaustion of those administrative remedies that are “available.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). Because an inmate's failure to exhaust under PLRA is an affirmative defense, the inmate is not required to specially plead or demonstrate exhaustion in his complaint. Jones v. Bock, 549 U.S. 199 (2007); West v. Emig, 787 Fed.Appx. 812, 814 (3d Cir. 2019); see also Small v. Camden Cty., 728 F.3d 265,268 (3d Cir. 2013) (“Failure to exhaust is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff”). Finally, this Court has explained that “it is always the defendant's burden to demonstrate the absence of any genuine dispute as to any material fact and the defendant's entitlement to judgment as a matter of law” on the issue of exhaustion. Doe v. Pa. Dept. Corr., 2021 WL 1583556, at *6 n.4 (W.D. Pa. Feb. 19, 2021). See also Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
The Medical Defendants' pending motion does not raise failure to exhaust as a basis for dismissal at this stage of the case. See, generally, ECF Nos. 20, 21.
Waggoner's argument is twofold: first, he argues that the complaint is devoid of any facts from which the court can infer that Hunter attempted to initiate the grievance process; and second, even if he had, Hunter averred that he was “still fighting about his medical issues” and “trying for an administrative grievance.” ECF No. 8, p. 7. But these arguments are misplaced. Hunter's failure to allege facts or produce evidence on the issue of exhaustion cannot be a basis for granting a motion to dismiss, as plaintiffs “are not required to ... demonstrate exhaustion in their complaints.” Caesar v. Pa. Dept. Corr., 2020 WL 2092420, at *3 (W.D. Pa. Apr. 15, 2020) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)).
Regarding his attempts to engage in the grievance process, Hunter alleges as follows:
1. “2-20-22 is when I asked them for a grievance.” ECF No. 8, p. 4;
2. “They denied and ignored me forever, grievance procedure; the counselor Stewart told me no an administration [illegible].” Id. p. 6;
3. [In response to question “what steps did you take to appeal that decision?” on the form complaint] “The grievance process. Now I am asking for a administration grievance.” Id. p. 7.
4. [In response to question “Set forth any additional information that is relevant to the exhaustion of your administrative remedies”] “I waiting for my last step and that will be administration grievance. Id. p. 8.
5. “I asked to be seen about my hurnias (sic) and ribbs (sic) so I put a grievance in. Then I was denied the grievance process and procedure.” ECF No. 47, p. 1.
Taken together, these allegations describe Hunter's attempts to access the grievance process, his limited success in doing so, and the denial of one of his grievances. But these allegations cannot be construed as an admission that Hunter has not exhausted grievances concerning the claims in this action. The Court presently lacks a record upon which it can determine the “availability” of Hunter's administrative remedies or the extent to which he did or did not exhaust those remedies. See, e.g., Fatir v. Russell, 2021 WL 395810, at *2 (D. Del. Feb. 4, 2021) (defendant did not meet his burden where he failed to provide any support documentation and relied instead only on argument); Caesar, 2020 WL 2092420, at *3. Accordingly, Waggoner's motion to dismiss all claims based on an asserted failure to exhaust administrative remedies should be denied. However, as explained below, other grounds exist to grant Waggoner's motion as to certain of Hunter's claims.
For example, a simple affidavit with supporting documentation from a prison grievance records custodian would likely have sufficed. See Rinaldi v. United States, 904 F.3d at n.l (“[W]here a defendant moves to dismiss based on a failure-to-exhaust defense and the exhaustion issue turns on [ ] indisputably authentic documents related to [the inmate's] grievances, we may consider those documents without converting [a motion to dismiss] to a motion for summary judgment.”) (internal quotation marks and citations omitted) (brackets in original).
B. The Complaint violates the pleading requirements of Rule 8 and fails to allege facts to support a failure to protect, defamation of character, assault and battery, and retaliation claims against Waggoner.
Despite his use of the standard form complaint, Hunter's pleading and the supplements thereto are disorganized, confusing, repetitive, and often disjointed. However, upon review, the undersigned has distilled several potential claims against Waggoner. Each will be discussed in turn.
Hunter asserts claims against Waggoner pursuant to 42 U.S.C. § 1983 and Pennsylvania state law. Section 1983 provides a means to redress violations of federal law committed by state actors and provides in pertinent part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....42 U.S.C. § 1983. “Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of federal law.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002). See also Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a Section 1983 claim, a plaintiff must show a deprivation of a “right secured by the Constitution and the laws of the United States ... by a person acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137,1141 (3d Cir. 1995)). See also Whitney v. Posika, 2022 WL 4104274, at *4-6 (W.D. Pa. Sept. 8, 2022).
Hunter invokes the terms “failure to protect,” “defamation of character,” “assault and battery,” and “retaliation” in his complaint and supplements. See, e.g, ECF No. 8, pp. 3,12 (“failure to protect” and “retaliation”); ECF No. 43, p. 1 (“defamation of character” and “assault and battery”). Construing this language as Hunter's attempts to raise such claims, the Court should dismiss them as violative of Fed.R.Civ.P. 8 and pursuant to Fed.R.Civ.P. 12(b)(6). To conform to this rule, “each averment must be simple, concise and direct” and Hunter must show that he “is entitled to relief. Travaline v. U.S. Supreme Court, 424 Fed.Appx. 78, 79 (3d Cir. 2011) (quoting Fed.R.Civ.P. 8(d)(1)). A complaint that is “so vague or ambiguous that a defendant cannot reasonably be expected to respond to it will not satisfy Rule 8.” Garrett v. Wexford Health, 938 F.3d 69, 93 (3d Cir. 2019). Dismissals under Rule 8 are “‘reserved for those cases in which the complaint so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'” Garrett, 938 F.3d at 94 (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).
Even the most generous reading of Hunter's complaint does not bring it within the requirements of Rule 8. Indeed, his allegations regarding “failure to protect,” “defamation of character,” “assault and battery,” and “retaliation” are nothing more than a recitation of random legal terms. Hunter fails to identify a defendant against whom he asserts any of these claims or to allege facts to support any ofthem. See, e.g., Scotto v. Credit Suisse, 2022 WL 1320391, at *3 (E.D. Pa. May 3, 2022). it is recommended that Hunter's “failure to protect,” “defamation of character,” “assault and battery,” and “retaliation” claims be dismissed because they are devoid of supporting factual allegations and fail to comply with Rule 8.
C. Waggoner's motion to dismiss Hunter's excessive force claim should be denied.
Hunter's allegations that Waggoner “mased” him appear to raise a claim of excessive force. As previously noted, at the time of this alleged incident, Hunter was a pretrial detainee.
The Court assumes that Hunter is referring to the use of oleoresin capsicum spray, more commonly referred to as “OC spray” or “pepper spray.” See, e.g., Spada v. Houghton, 2022 WL 4280519, at *1 (W.D. Pa. July 22, 2022), report and recommendation adopted sub nom. Spada v. Sutter, 2022 WL 4280342 (W.D. Pa. Sept. 15, 2022). This Report and Recommendation will use the term “OC spray.”
In Kingsley v. Hendrickson, the United States Supreme Court held that to prove an excessive force claim under the Fourteenth Amendment, a pretrial detainee must only show that the officers' use of that force was objectively unreasonable rather than show that the officers were subjectively aware that their use of force was unreasonable. 576 U.S. 389, 392 (2015). The Supreme Court concluded that the objectively unreasonable standard applied because precedent, most notably Bell v. Wolfish, allows a detainee to show that they are unconstitutionally “punished” within the meaning the Fourteenth Amendment “by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. at 398. See also Andrews v. Harper, 576 F.Supp.3d 305, 313 (W.D. Pa. 2021); Robison v. Testa, 2021 WL 577021, at *4 (W.D. Pa. Dec. 6, 2021). Thus, to state an excessive force claim, Hunter “must show only that the force purposely or knowingly used against him was objectively unreasonable.” Drayton v. Monmouth Cty. Corr. Inst., 2022 WL 657637, at *2 (D.N.J. Mar. 4, 2022) (citing Kingsley, 576 U.S. at 396-97). See also Jacobs v. Cumberland Cty., 8 F.4th 187, 194 (3d Cir. 2021). This includes a showing that the defendant's actions “were not rationally related to a legitimate nonpunitive governmental purpose.” Kingsley, 576 U.S. at 396-97. “[O]bjective reasonableness ‘turns on the facts and circumstances of each case.'” Id. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Furthermore,
This has been called a “lower standard,” which is appropriate “because pretrial detainees are entitled to greater constitutional protection that provided by the Eighth Amendment.” See, e.g., Drayton, 2022 WL 657637, at *3; Hubbardv. Taylor, 399 F.3d 150, 167 n. 2 (3d Cir. 2005).
[a] court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight. A court must also account for the “legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that
in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.”Id. Put differently, when brought by a pretrial detainee, an excessive force claim, at a minimum, requires a plaintiff to allege sufficient facts and circumstances surrounding the incident so that the court can determine whether the force in question was objectively reasonable. See, e.g., Lombardo v. City of St. Louis, Mo., - U.S. -, 141 S.Ct. 2239 (2021).
In Kingsley, the Supreme Court cautioned that this standard cannot be applied “mechanically” and that “objective reasonableness turns on the facts and circumstances of each particular case.” 576 U.S. at 397 (internal quotation marks omitted). However, the following six non-exhaustive factors “bear on the reasonableness or unreasonableness of the force used: [(1)] the relationship between the need for the use of force and the amount of force used; [(2)] the extent of the plaintiffs injury; [(3)] any effort made by the officer to temper or to limit the amount of force; [(4)] the severity of the security problem at issue; [(5)] the threat reasonably perceived by the officer; [(6)] and whether the plaintiff was actively resisting.” Id.
Hunter's allegations relevant to his excessive force claim are that on “1-24-22 or 1-25-22 ... Waggoner mased (sic) me” (ECF No. 8), that Waggoner “assaulted me” (ECF No. 47, p. 1), and that Waggoner “still mased (sic) knowin I could barrely (sic) move I was in pain ... he forced me to carry my stuff a few week (sic) later to a top bunk upstairs knowing and aware I can barely carry anything or move or lift anything yet he mased (sic) me” (ECF No. 48, p. 1). Hunter additionally alleges: “C.O. Waggoner knew about my health problems at the time yet he still mased (sic) me knowing I got heart problems, breathing problems, and 2 hurnias (sic).” ECF No. 8, p. 13. These allegations plausibly support a finding that Waggoner's conduct was objectively unreasonable.
Hunter has alleged that Waggoner knew of his medical conditions, including difficulties with breathing, and sprayed him anyway. His allegation that he was in such pain as to be unable to move belies a finding that he was resisting or aggressing towards Waggoner. Thus, he has alleged that Waggoner's use of force was deliberate and unnecessary. See Kingsley, 576 U.S. at 396 (“[I]f the use of force is deliberate, i.e., purposeful or knowing, the pretrial detainee's claim may proceed.”). He alleges that Waggoner utilized the spray because he could not get onto the top bunk on account of his medical condition, not because there was a security issue or other threat. See, e.g., Taylor v. Quayyum, 2021 WL 6065743, at *5 (S.D.N.Y. Dec. 21, 2021). Thus, Hunter has alleged that his conduct did not reasonably require the use of OC spray and that Waggoner had no objectively reasonable basis to use force against him in response to Hunter's refusal to carry his property box or his failure to climb onto the top bunk. Although the complaint fails to allege any direct injury caused by the OC spray, Hunter does allege that Waggoner's conduct caused more damage to his preexisting injuries, which courts have found to be sufficient to state a claim. See, e.g., Knighten v. Tulsa Cty. Sherriff's Office, 2022 WL 3569001, at *5 (N.D. Okla. Aug. 18, 2022). Hunter also alleges that “I was in to[o] much pain to defend myself even if I wanted to, he knew yet C.O. Zach Waggoner still assaulted me.” ECF No. 47, p. 1. Taken together and examined according to the applicable standard of review, Hunter's allegations state a claim for excessive force under the Fourteenth Amendment. Accordingly, Waggoner's motion as to this claim should be denied.
D. Any Eighth Amendment deliberate indifference to medical needs claim against Waggoner should be dismissed.
At times, the Complaint conflates the actions of Waggoner with those of the Medical Defendants. For example, Hunter alleges that “They ignored my health problems. Now they are wors (sic). C.O. Waggoner knew about my health problems at the time yet he still mased me knowing I got heart problems, breathing problems and 2 hurnias (sic).” ECF No. 8, p. 13. He further pleads that “they disregard my life threatening health problems.” Id. He again alleges that Waggoner “knew I was in pain.” Id. While these allegations may form a part of his excessive force claim, they are insufficient to support a neglect of medical needs claim against Waggoner.
Because Hunter was a detainee, and not a convicted prisoner, the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment, is the source of his constitutional rights in this action. Natale v. Camden Cty. Corr. Fac., 318 F.3d 575, 581 (3d Cir. 2003). As a pretrial detainee, the Fourteenth Amendment protects Hunter from “any and all punishment.” Montgomery v. Aparatis Dist. Co., 607 Fed.Appx. 184,187 (3d Cir. 2015). And “due process rights of [detainees] are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). As this Court recently explained,
While the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner, the proper standard for examining such claims is the standard set forth in Bell v. Wolfish, i.e., whether the conditions of confinement (or here inadequate medical treatment) amounted to punishment prior to an adjudication of guilt.Young v. Kubrin, 2022 WL 16637729, at *4 (W.D. Pa. Nov. 2, 2022) (citations omitted).
Here, however, Hunter identifies Waggoner as a corrections officer and acknowledges that he is not a member of the medical staff. See id., p. 3. Asa general rule, “non-medical prison officials are not deliberately indifferent under the Eighth Amendment [or, in this case, under the Fourteenth Amendment] simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by prison medical personnel or because they deferred to the judgment of the medical staff treating the inmate.” Dunyan v. Pa. Dept. Corr., 2017 WL 3509243, at *7 (M.D. Pa. Aug. 16, 2017) (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). See also Butler v. Sissem, 2022 WL 504941, at *5 (W.D. Pa. Feb. 18, 2022). This is because, “[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 or deliberate indifference.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Because Hunter admits to receiving treatment from the prison's medical staff (see ECF No. 8, p. 4; ECF No. 46, p. 1), he cannot sustain a deliberate indifferent claim against non-medical personnel such as Hunter. See, e.g., In re Wetzel, 2016 WL 4945315, at *3 (W.D. Pa. Sept. 16, 2016) (rejecting claim of deliberate indifference against a non-medical defendant because the plaintiff acknowledged that he had received treatment from prison physician). Waggoner's use of OC spray against Hunter despite his alleged knowledge of Hunter's heart problems and his requiring Hunter to climb into a top bunk despite his alleged knowledge of Hunter's lifting restriction may support Hunter's excessive force claim or one based on conditions of confinement, but they do not convert such a claim to one for neglect of a medical need.
Accordingly, it is recommended that, to the extent one is raised, Hunter's inadequate medical care claim against Waggoner be dismissed.
IV. Conclusion
In light of the foregoing, it is respectfully recommended that Waggoner's motion to dismiss be granted in part and denied in part. Specifically, the motion should be denied as to Hunter's excessive force claim but granted in all other aspects.
V. Further Amendment
A court typically grants a plaintiff leave to amend, provided that fatal deficiencies in his claim or claims potentially may be cured through an amended pleading. See Shave v. Fauver, 213 F.3d 113,116 (3d Cir. 2000). Here, Hunter has repeatedly filed supplements to his complaint in an effort to support his Fourteenth Amendment inadequate medical care claim against Waggoner as well as his failure to protect, defamation of character, assault and battery, and retaliation claims. Given the implausibility of these claims based on the facts alleged and Hunter's repeated failure to allege any facts to support them, further amendment would be futile and, therefore, leave to amend as to these claims against Waggoner should be denied.
VI. Notice Regarding Objections
In accordance with the applicable provisions of the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of this Court, the Parties have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. The failure to file timely objections will constitute a waiver of their appellate rights.