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dismissing claim against CCS based on failure to allege a policy or practice evincing deliberate indifference
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Case Number 1:18-cv-0025
10-31-2018
DANIEL A. KLOSS, Plaintiff v. CORRECT CARE SOLUTIONS, et al. Defendants
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER
REPORT AND RECOMMENDATION
I. Recommendation
It is recommended that Defendants' Motions to Dismiss [ECF No. 22, ECF No. 25] be GRANTED and that Plaintiff's Complaint [ECF No. 3] be DISMISSED.
II. Report
A. Relevant Factual and Procedural Background
Plaintiff Daniel Anthony Kloss ("Plaintiff" or "Kloss") was formerly incarcerated at the State Correctional Institution at Albion (SCI-Albion). He instituted this pro se prisoner action with the filing of a Motion for Leave to Proceed in forma pauperis on January 19, 2018 [ECF No. 1] and his Complaint was docketed on January 23, 2018 [ECF No. 3]. Kloss has sued several officials at SCI-Albion ("Correctional Defendants"), as well as numerous medical professionals who work at the prison ("Medical Defendants"). Kloss' complaint alleges violations of the Eighth Amendment, retaliation for the exercise of Kloss' rights under the First Amendment, and violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. He asks for monetary and injunctive relief. The allegations of his complaint concern medical care and treatment Kloss received while an inmate at SCI-Albion. ECF No. 3, at 3-5.
Both the Correctional Defendants and the Medical Defendants have filed Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 22, ECF No. 25. Both sets of Defendants also filed memoranda in support of their motions. ECF No. 23, ECF No. 26. Kloss filed a memorandum in opposition. ECF No. 30. On September 19, 2018, this matter was reassigned from United States District Judge Nora Barry Fischer to United States District Judge Susan Paradise Baxter. ECF No. 31. The matter was then referred by Judge Baxter to the undersigned on September 28, 2018. ECF No. 33.
Federal Rule of Civil Procedure 12(b)(6) provides a complaint may be dismissed for a "failure to state a claim upon which relief can be granted."
The Defendants' Motions to Dismiss are now ripe for recommendation and subsequent disposition.
III. Legal Standards Governing Motions to Dismiss
In deciding whether to grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must take as true all of the well-pleaded facts in the complaint and determine whether these facts raise a reasonable expectation that discovery will reveal the evidence necessary to prove each element of plaintiff's claims. Fowler v. UPMC Shadyside, 578 F.3d 201, 211 (3d Cir. 2009); Thompson v. Real Estate Mortgage Network, 748 F.3d 142, 147 (3d Cir. 2014). A motion to dismiss filed pursuant Rule 12(b)(6) challenges the legal sufficiently of the complaint. When reviewing a motion to dismiss, the Court must accept all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Burtch v. Milberg Factors, Inc., 62 F.3d 212, 220 (3d Cir. 2011), cert. denied, -- U.S. --, 131 S. Ct. 1861 (2012) (citing In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)). But the Supreme Court of the United States made clear that such "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly 550 U.S. 554, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that, while the Complaint need not contain detailed factual allegations, it must contain more than a "formulaic recitation of the elements" of a constitutional claim and must state a claim that is plausible on its face).
So then, to determine the legal sufficiency of Kloss' complaint after Twombly and Iqbal, the United States Court of Appeals for the Third Circuit instructs the Court to undertake a three-step approach when presented with a motion to dismiss for failure to state a claim. Santiago v. Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the process as a "two-pronged approach," it views the case as outlining three steps) (citing Iqbal, 556 U.S. at 675). First, "the court must 'tak[e] note of the elements a plaintiff must plead to state a claim." Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, a court "should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.'" Id. (quoting Iqbal, 556 U.S. at 679). Third, "'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.'" Id. (quoting Iqbal, 556 U.S. at 679).
Moreover, the Court of Appeals has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Finally, a court must employ less stringent standard when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). This means that when presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dlunos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
IV. The Complaint
With these standards in mind, the Court accepts as true the facts as they appear in Kloss' complaint and draws all possible inferences from those facts in his favor. Kloss initiated this action by filing a publicly-available form complaint against the Defendants that included additional attached pages. ECF No. 3. The allegations in the Complaint are based on disputes Kloss had with prison officials and health care providers going back more than a year. Id.
A. Claims Against the Medical Defendants
Kloss' Complaint brings claims against the following Medical Defendants: Marcy Duddy, Rekha Halligan, M.D., Robert Maxa, D.O., and Jackie Hester. ECF No. 3, at 1-2. The Complaint also names Correct Care Solutions, LLC as a defendant. According to the Complaint, Defendant Halligan took Kloss' wheelchair from him, placed him in the infirmary, took away Kloss' handicapped-accessible cell, failed to give him a prescribed Toradol and testosterone injection, took his cane from him, and denied him the services of an aide. ECF No. 3, at 3-4, 11. Kloss further blames Halligan for a disciplinary action he received for not standing during prisoner count. Id. at 4.
Kloss avers that his wheelchair, cane, and other "mobility devices" were still denied him after a meeting with Medical Defendants Halligan and Duddy. Id. at 5. He blames several falls on not having these devices available. Id. Kloss states that Halligan rejected his need for assistance "as a handicapped person." Id. 11, ¶ 12. The Complaint also faults Halligan and Correctional Defendant Smock for attempting to place Kloss in the infirmary, which he claims is a violation of Title II of the ADA. Id. Unnamed individuals are charged with improperly removing a plastic chair from Kloss' cell. Id. Kloss' requests for meetings with Medical Defendants Maxa and Halligan went unanswered, as did his request for physical therapy. Id. at 12, ¶ 15. He was told to purchase Tylenol from the commissary for any pain he was experiencing. Id. at 11, ¶ 16. Defendant Halligan also failed to make an appointment for Kloss with a "thorasic stomach surgeon," Dr. Ryan Levy. Id. at 14, ¶ 27. These averments, Kloss contends, state claims for violations of Title II of the ADA, the Eighth Amendment, and retaliation for exercising his rights under the First Amendment.
B. Department of Corrections Defendants
Kloss also brings various charges against employees of the Pennsylvania Department of Corrections. Named as Defendants on the form complaint are: J. Smock, Sgt. O'Brien, Melanie Kosinski, Superintendent Michael Clark, and Joseph Silva. Id. at 1-2. He charges Defendant O'Brien with sexual harassment. O'Brien used "bad language" on six occasions, calling Kloss a "motherfuc***" and threatening to shove Kloss' "faggot head through the wall." Id. According to Kloss, O'Brien also denied him access to medication. Id. Kloss was given a misconduct for not standing during a prisoner count, which he believes was retaliation for filing a complaint against Defendant O'Brien. Id. He also claims this misconduct charge violated the ADA. Id. at 16, ¶ 35. Kloss was later given a fourteen-day cell restriction for not standing during prisoner count. Id.
Kloss' motion to remove Superintendent Clark from his lawsuit was granted on April 18, 2018. ECF No. 17, ECF No. 18.
His claims against the remaining Correctional Defendants are less clear. For example, Kloss states that he asked to be taken to a pain center for treatment, but that request was rejected by Defendant Joseph Silva. Id. 12, ¶ 15. This, the Complaint alleges, puts Correctional Defendant Silva "at the forefront of this deliberate medical indifference." Id. at 15, ¶ 30. Kloss next faults Correctional Defendant Smock for placing him in the infirmary, an action he labels a violation of Title II of the ADA. Id. at 11, ¶ 12. And Kloss states that Correctional Defendant Hester violated Title II of the ADA by failing to prevent "violations" to "a disabled/Handicapped person" after being notified of such actions by Kloss and Kloss' sister. Id. at 13, ¶ 23.
Lastly, the Complaint brings claims against Correctional Defendant Kosinski. Here, the Complaint states that Kosinski would not permit other inmates to assist Kloss by carrying either his cane or his commissary purchases (it is unclear) back to his cell. Id. at 13, ¶ 21-22. Kloss states that other inmates were threatened with disciplinary action if they assisted him, but he does not state who made that threat. Id. at 13, ¶ 22. The Complaint also claims Correctional Defendant Kosinski put Kloss' "life in dangerous actions by removing my aide, cleaner for my cell." Id. at 16, ¶ 35. Kosinski disciplined Kloss for his failure to stand during prisoner count, which the Complaint identified as a violation of Title II of the ADA. Id. And, the Complaint accuses Kosinski of failing "to have [Kloss'] well being in mind," and of calling Kloss "a liar." Id. Kloss maintains that all of these allegations state causes of action for violations of his rights under the Eighth Amendment and Title II of the ADA.
He also alleges a First Amendment retaliation claim against Correctional Defendant O'Brien.
V. Motions to Dismiss
Both the Medical Defendants and the Correctional Defendants filed motions to dismiss, arguing that Kloss' Complaint should be dismissed for a failure to state a claim. ECF No. 22, ECF No. 25. See also Fed. R. Civ. P. 12(b)(6). The Court agrees and recommends that Kloss' Complaint be dismissed. Each motion will be discussed in turn.
A. Claims Against the Medical Defendants
1. Violations of Title II of the Americans with Disabilities Act
The Court will start with the ADA claims against the Medical Defendants. To bring a claim under Title II of the ADA, Kloss must establish: "(1) he is a qualified individual; (2) with a disability; (3) who was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity; (4) by reason of his disability." Geness v. Cox, 902 F.3d 344, 361 (3d Cir. 2018) (quoting Haberle v. Troxell, 885 F.3d 170, 178-79 (3d Cir. 2018)) (brackets omitted). See also 42 U.S.C. § 12132. The provisions of the ADA are applicable to prisoners confined in state correctional institutions. See Pa. Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998). But the statute's reach is limited. Individuals are not liable under Title II of the ADA. See Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002); Koslow v. Commonwealth of Pa., 302 F.3d 161, 178 (3d Cir. 2002; Hampton v. Wetzel, 2017 WL 954050 * 10 (M.D. Pa. March 10, 2017). See also Issa v. Delaware State University, 2014 WL 3974535 *4 (D. Del Aug. 11, 2014) (individual liability not available for ADA claims). Given that Kloss has raised ADA claims against Medical Defendants Duddy, Halligan, Maxa, and Hester individually, the Complaint does not state a claim against them under the statute. Therefore, these individuals are not properly named defendants for the purposes of a Title II ADA claim and the Court should grant their Motion to Dismiss [ECF No. 25] on that basis alone, with prejudice.
No defendant appears to dispute that Kloss was disabled under the ADA's definition. Accordingly, and for purposes of recommending a disposition on these motions to dismiss, the Court will accept as true the assertion that Kloss was a qualifying individual with a disability.
The nature of Kloss' claims against the Medical Defendants provides the Court with an alternative basis for dismissal. Fatal to these claims are Kloss' allegations of the denial of proper medical treatment for his disability. He claims, for example, that Defendant Halligan "took my private wheelchair away," "placed me in Infirmary for a month for no illness reason," "my handicapped cell #32 was taken away," "no testosterone shot was given," "my Toridol [sic] shot was stopped by Dr. Halligan M.D.," "Dr. Halligan took my cane away from me," and "Dr. Halligan has denied me any aide helper to clean my cell and make my bed." ECF No. 3, at 3-4. The Complaint further indicates that Kloss fell after a snowfall because of the lack of his cane. Id. at 12, ¶ 18. Further, Kloss alleges that Medical Defendant Halligan, along with Correctional Defendant Smock violated Title II of the ADA by "not having any Aid live-in or not live-in." Id. at 11, ¶ 12. He faults Defendants Halligan and Smock for placing him in the infirmary, and claims Defendant Halligan violated the ADA by not approving the placement of a plastic chair in his cell. Id. at 11-12, ¶ 12. Kloss also alleges ADA violations against Defendant Halligan for not agreeing to Kloss' request to be taken to a "Thoracic Stomach Surgeon, Dr. Ryan Levy M.D." for a medical procedure. Id. at 14, ¶ 27. This procedure was necessary, he alleges, because Defendant Halligan prescribed Kloss "Mobic medications" which he believed caused stomach bleeding. Id.
All of these claims directly relate to the medical treatment given Kloss while he was incarcerated. The failure to attend to the medical needs of an inmate is not actionable under Title II of the ADA. See Thompson v. Pennsylvania Dept. of Corr., 615 F. Supp.2d 411, 426-27 (W.D. Pa. May 12, 2009) (citing Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996). See also Iseley v. Beard, 200 Fed. Appx. 137, *4 (3d Cir. 2006) (citing Bryant). The Medical Defendants' Motion to Dismiss [ECF No. 25] may be dismissed on this basis as well.
Denying access to medications is not, however, a medical judgment or medical negligence, and such claims can be actionable under the ADA. McKissick v. Cnty. of York, 2010 WL 1930132 at *7 (M.D. Pa. Mar. 19, 2010) (citing Kiman v. New Hampshire Dept. of Corr., 451 F.3d 224, 286-87 (1st Cir. 2006) ("Access to prescription medication is part of a prison's medical services and thus is one of the 'services, programs, or activities covered by the ADA.'") (citation omitted). Kloss' Complaint does mention two prescription medications: Toradol (identified by Kloss as "Toridol"), and testosterone. See ECF No. 3, at 3, 12, ¶ 14. The Complaint does not claim Kloss was denied access to these medications, but rather that the Toradol was "stopped" and "removed and discontinued as Dr. Halligan's order." Id. The only mention of the testosterone injection states that it was not given because the "jail was on lock down." ECF No. 3, at 3. Therefore, those allegations relate to a medical treatment and a medical decision to stop a treatment, which is not actionable under the statute. See, e.g., Wishnefsky v. Salameh, et al., 2016 WL 11480717 (Nov. 18, 2016) (citing Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) ("[P]urely medical decisions . . . do not ordinarily fall within the scope of the ADA . . ."); Thomas v. Pa. Dep't of Corr., 615 F. Supp. 2d. 411, 429 (W.D. Pa. 2009) (denying request for a handicap cell based on a medical determination does not support a claim for discriminatory treatment in violation of Title II of the ADA).
To the extent Kloss brings a claim against Correct Care Solutions, LLC under the ADA, such a claim also fails. Private corporations do not constitute "public entities" as contemplated by Title II of the ADA. Ackerman v. Beth Israel Cemetery Ass'n of Woodbridge, NJ, 2010 WL 2651299, *6 (D.N.J. June 25, 2010). This claim should be dismissed with prejudice.
2. Eighth Amendment Violations
The Complaint also attempts to state an Eighth Amendment deliberate indifference claim against Medical Defendants Maxa and Halligan (as well as Correctional Defendant Silva) for their failing to take Kloss to a "pain center" and for an unnamed person directing him to purchase Tylenol from the prison commissary instead. ECF. No. 3, at 12, ¶ 15-16, 15, ¶ 9. Deliberate indifference is also alleged against Medical Defendant Correct Care Solutions, LLC. ECF No. 3, at 15, ¶ 29 ("This clearly places Correct Care Solutions LLC and there [sic] employees responsible for medical deliberate indifference."). The Court takes up the claim against the corporate defendant first.
Aside from listing Correct Care Solutions as a Defendant [ECF No. 3, at 1, 9], this is the only reference to the corporate entity in the Complaint. Here too, Kloss fails to state a claim. Correct Care argues that Kloss' claim should be dismissed for failure to state a claim because Kloss' complaint fails to adequately allege a policy, custom, or practice of deliberate indifference to his serious medical needs. The Court agrees. "[A]lthough a private corporation offering medical services cannot be held liable for an alleged § 1983 violation under a theory of respondeat superior, it can be held liable for a policy or custom that demonstrates deliberate indifference." Francis v. Carroll, 659 F. Supp. 2d 619, 625-26 (D. Del. 2009) (internal quotation marks omitted). See generally Monell v. Dep't of Social Servs. of N.Y., 436 U.S. 658 (1978) (subjecting municipalities to liability for policies or customs that cause constitutional deprivations); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (applying Monell to a private company providing medical services to inmates). To prevail on his § 1983 claims against Correct Care, Kloss must show that there was a relevant Correct Care policy or custom, and that this policy or custom caused the constitutional violation for which he seeks relief. See Natale, 318 F.3d at 583-84. "Even in the absence of formal policymaking activity, an 'official policy' may be inferred from informal acts or omissions of supervisory . . . officials . . . ." Colburn v. Upper Darby Twp., 838 F.2d 663, 671 (3d Cir. 1988) (citations and internal quotation marks omitted). Kloss's Complaint does not allege any such policy or custom with respect to Correct Care. Instead, he alleges only that Correct Care was deliberately indifferent to his medical complaints and failed to provide him treatment. Without facts establishing that the alleged deliberate indifference stems from a specific policy, Kloss cannot proceed on this claim. Accordingly, the deliberate indifference claim against Medical Defendant Correct Care Solutions LLC, should be dismissed without prejudice.
To the extent Kloss raises an Eighth Amendment deliberate indifference claim against Medical Defendants Maxa and Halligan, it fares no better than the one brought against their corporate employer. ECF No. 3, at 12, ¶ 15-16. The Eighth Amendment to the Constitution protects prisoners against prison official conduct that evidences "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim for deliberate indifference, a prisoner must make "(1) a subjective showing that the defendants were deliberately indifferent to [his or her] medical needs and (2) an objective showing that those needs were serious." Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (internal quotation marks omitted). Though prison medical staff are usually afforded "considerable latitude in the diagnosis and treatment of prisoners," no such deference attaches when the medical staff has intentionally refused to provide care to a prisoner. Palakovic v. Wetzel, 854 F.3d 209, 227-28 (3d Cir. 2017).
Here, Kloss has alleged facts that fall short of a constitutional violation. He merely claims that Maxa and Halligan did not take him to an unnamed private pain center, and that he was told (the Court assumes by Maxa and Halligan), to take Tylenol for his pain. ECF No. 3, at 12, ¶ 15-16. Although Kloss finds fault with these medical decisions, he has not pleaded that Maxa and Halligan possessed the requisite culpable mental state necessary for liability to attach under the Eighth Amendment. See, e.g., Estien v. Showalter, 2017 WL 4310188 (Sept. 28, 2017). Furthermore, deliberate indifference is generally not found when some level of medical care has been offered to the inmate. See Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000) ("[C]ourts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care"). There is necessarily a distinction between a case in which the prisoner claims a complete denial of medical treatment and one where the prisoner has received some medical attention and the dispute is over the adequacy of the treatment. United States ex rel. Walker v. Fayette County, 599 F.2d 533, 575 n.2 (3d Cir. 1979). Here, Kloss disagrees with the medical treatment given to him by Defendants Maxa and Halligan. ECF No. 3, at 12, ¶ 15-16. This disagreement does not rise to the level of an Eighth Amendment violation. See James v. Sauers, 2018 WL 1175114 (W.D. Pa. Jan. 30, 2018) (citation omitted). Thus, the deliberate indifference claims against Medical Defendants Maxa and Halligan should be dismissed, with prejudice.
3. First Amendment Retaliation Claim
The Complaint appears to generally allege a First Amendment retaliation claim against the Medical Defendants. ECF No. 3, at 3. To the extent he attempted to raise such a claim, it fails against any of the Medical Defendants. In order to plead retaliation under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). See also Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). Kloss' Complaint fails to meet these pleading requirements.
The claim should be dismissed because it does not identify the protected speech giving rise to his claim. Indeed, scant mention is made of any Medical Defendant in connection to a protected activity. First, where the form complaint asks, "What federal law do you claim was violated," Kloss indicated "retaliatory action for PREA filing/Retaliation for 1st law suit filed." ECF No. 3, at 3. Then, at another point, Kloss avers that he was given a misconduct for not standing for prisoner count. Id. at 5. He contends the misconduct was in retaliation for filing a "PREA Complaint against Sgt. O'Brien." Id. He then states that "Retaliation continues also for filing 1st Federal Civil Rights Case." Id. These vague statements are not sufficient to identify a protected exercise of free speech by Kloss that could serve as a basis for any retaliation from the Medical Defendants. Although he does state that he was given a misconduct in retaliation for filing a grievance against a Correctional Defendant [Id.], the Complaint makes no such claim against any Medical Defendant. Therefore, Kloss has failed to state a First Amendment retaliation claim against the Medical Defendants and those claims should be dismissed, without prejudice.
4. Summary
To summarize, Kloss' Complaint fails to state a claim under Title II of the ADA against Medical Defendants Duddy, Halligan, Maxa, and Hester. Those claims should be dismissed with prejudice because individuals cannot be liable under the statute. See Koslow, supra. The Eighth Amendment deliberate indifference claim against Maxa and Halligan should also be dismissed with prejudice because disagreements over medical treatment do not rise to the level of a constitutional violation. The deliberate indifference claim against Correct Care Solutions should be dismissed because Kloss has not identified a specific policy, custom or custom of the company's which caused the alleged constitutional violation. This claim should be dismissed without prejudice to Kloss identifying such a policy in an amended complaint. The First Amendment retaliation claim against Medical Defendants Maxa, Hester, Halligan, and Duddy, as well against the corporate Medical Defendant Correct Care Solutions, LLC, should also be dismissed without prejudice.
B. Claims Against the Correctional Defendants
The Court now turns to the claims brought against the Correctional Defendants. Kloss brings deliberate indifference claims against Correctional Defendants O'Brien, Smock, Kosinski and Silva, as well as claims against Kosinski and O'Brien for violations of Title II of the ADA, and a retaliation claim against O'Brien. The Court will begin with the Eighth Amendment claim.
1. Eighth Amendment Deliberate Indifference Claims
The Eighth Amendment protection against cruel and unusual punishment extends to the prisoner's right to medical care. Estelle v. Gamble, 429 U.S. 97, 102, 103 (1976) (internal citations omitted). Failure to provide adequate medical care violates a prisoner's right to be free from cruel and unusual punishment when it results from "deliberate indifference to a prisoner's serious illness or injury." Id. at 104-05. To state an Eighth Amendment claim arising out of the failure to treat his medical condition, Kloss must plead sufficient facts that, if proven, would establish two elements: (1) he had a serious medical need; and (2) prison officials were deliberately indifferent to that need. Spruill v. Gillis, 372 F.3d 218, 235-36 (3d Cir. 2004). Further, "a defendant's § 1983 liability must be predicated on his direct and personal involvement in the alleged violation"). Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 284 (3d Cir. 2018).
Out of the gate, Kloss' deliberate indifference claim against Correctional Defendant Joseph Silva fails. The Complaint fails to allege any particularized facts that would show Silva's direct involvement in the violations Kloss asserts, instead merely stating that Silva, along with "all Pa. D.O.C. employees," was in the "forefront of this deliberate indifference as nothing has or is getting corrected." ECF No. 3, at 15, ¶ 30. This sparse and confusing allegation appears to assign liability to Silva for the actions of "all Pa. D.O.C. employees" Id. This claim is therefore based on a theory of respondeat superior, and as such, must fail. Crawford v. McMillan, 660 Fed. Appx. 113 (3d Cir. 2016) (citing Capone v. Marinelli, 868 F.2d 102, 106 (3d Cir. 1989) (finding liability may not be imposed under § 1983 on principle of respondeat superior); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976) (same)).
The Complaint also makes a vague reference to Correctional Defendant Silva in paragraph 15, which appears to claim that Silva "indicated through letters" that Pennsylvania inmates can be "taken out to a pain center which is considered a private vendor . . .." ECF No. 3, at 12, ¶ 15. To the extent Kloss believes this statement states a claim of Eighth Amendment deliberate indifference against Silva, he is mistaken. This averment is too vague and unspecified, and does not provide any underlying facts to support such a claim. See, e.g., Jackson v. Armel, 2018 WL 3660093, *4 (W.D. Pa. Aug. 2, 2018); Peraza v. Helton, 2016 WL 6442254 (M.D. Pa. Nov. 1, 2016).
Kloss has likewise failed to adequately raise Eighth Amendment deliberate indifference claims against the remaining Correctional Defendants. The sole assertion against the Correctional Defendants is that they were deliberately indifferent for not overriding the decisions made by the Medical Defendants concerning his treatment. For example, the Complaint claims that Correctional Defendant Smock did nothing to override the determination that he did not need a personal aide in his cell. ECF No. 3, at 11, ¶ 12. Indeed, he labels that particular averment, "My medical concerns." Id. The Complaint also faults Smock for not getting him a wheelchair after Medical Defendants Halligan and Duddy determined he did not need one. Id. at 5. Kloss points to Correctional Defendants O'Brien, Smock, Kosinski, and Silva as being at "the forefront of this deliberate medical indifference as nothing gets corrected." Id. at 15, ¶ 30. The matters he wants corrected, however, are decisions made by medical personnel concerning the use of a wheelchair, a personal aide in his cell and to help him carry items from the commissary, and a plastic chair in his cell. See id. at 5, 11, ¶ 12, 13, ¶ ¶ 20-22, 16, ¶ 35. Because Kloss was being treated by medical personnel, the Correctional Defendants cannot be deliberately indifferent for failing to intervene in the treatment and decision made by those professionals. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (explaining that prison administrators cannot be deliberately indifferent "simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor"). And, "[p]rison officials who are not physicians are entitled to defer to the medical judgment of staff physicians . . . and an administrator does not become responsible for the inmate's medical treatment simply by virtue of reviewing an inmate grievance." Smith v. O'Boyle, 251 Fed. Appx. 87, 89 (3d Cir. 2007). Kloss' claims against the Correctional Defendants are based on their alleged failure to accommodate his medical requests, contrary to the prescriptions of medical personnel, and should be dismissed. See Pearson v. Prison Health Service, 850 F.3d 526, 543 (3d Cir. 2017) (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).
2. Violations of Title II of the Americans with Disabilities Act
Next, Kloss' Complaint attempts to plead a claim that Correctional Defendants Kosinski and O'Brien violated Title II of the ADA by forcing him to stand during a prisoner count, denying him a wheelchair, denying him a personal aide in his cell, and denying him assistance with carrying his commissary purchases. ECF No. 3, at 16, ¶ 35. It is less clear to the Court that Kloss brings the same claim against Correctional Defendants Silva and Smock, but giving his pleading an expansive reading, it will assume he attempts to raise such a claim against those Defendants as well. Id. He asks for injunctive relief and monetary damages. Id. at 4, 17.
Kloss' own Complaint reveals that he no longer resides at SCI-Albion. See ECF No. 14. The Court agrees then with the Correctional Defendants—Kloss' request for injunctive relief is moot because he was released from the Department's custody. Id. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (citing Abdul-Akbar v. Watson, 4 F.3d 195, 197 (3d Cir. 1993)) (an inmate's transfer from the facility complained of generally moots the equitable and declaratory claims). Kloss therefore cannot receive injunctive relief. And, because individuals cannot be held liable for damages under the ADA, his claims seeking monetary damages for perceived violations of that statute against Correctional Defendants Smock, O'Brien, Kosinski, and Silva should also be dismissed, with prejudice. Zamichieli v. Penna. Dept. Corr., 2018 WL 2688504 (W.D. Pa. June 5, 2018).
3. Sexual Harassment Claim
Kloss' Complaint also contains a claim of sexual harassment against Correctional Defendants O'Brien and Kosinski. ECF No. 3, at 5, 16 ¶ 35. This claim too should be dismissed. Kloss claims O'Brien harassed him with "very bad language," and threatened him with violence. Id. at 5. He accuses Kosinski of making "threats to me." Id. at 16, ¶ 35. "Verbal harassment does not give rise to a constitutional violation enforceable under § 1983." Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993). "It is well-settled that the use of words, no matter how violent, is not actionable under § 1983." Moore v. Adams, 2013 WL 3972447, at *6 (W.D. Pa. July 30, 2013); see also Jacobs v. Bayha, 2010 WL 3895768 (W.D. Pa. Sept. 30, 2010) (listing cases). O'Brien directed numerous unprofessional and derogatory remarks toward Kloss, but such verbal harassment does not give rise to a violation under the Eighth Amendment or any constitutional provision. Kloss' attempt to state an Eighth Amendment claim on the basis of O'Brien's verbal harassment should be dismissed with prejudice. The similar claim against Kosinski is too vague to raise a constitutional claim and should likewise be dismissed.
4. First Amendment Retaliation Claim
The last of Kloss' claims attempts to raise unconstitutional retaliation against Correctional Defendant O'Brien. Kloss contends that O'Brien retaliated against him for not standing for a prisoner count and because he filed a complaint against O'Brien under the Prison Rape Elimination Act of 2003 ("PREA")—a federal law dealing with the sexual assault of prisoners. ECF No. 3, at 5. Kloss maintains that a misconduct charge he received was in retaliation for those actions. Id. See also 34 U.S.C. § 30302(1).
The Correctional Defendants' Motions to Dismiss included numerous attached exhibits. ECF No. 22. These exhibits consisted of Department of Corrections Form DC-141 (an inmate misconduct form) and six official inmate grievance forms (DC-804) completed by Kloss. See ECF No. 22-2, ECF No. 22-3, ECF No. 22-4, ECF No. 22-5, ECF No. 22-6, ECF No. 22-7, and ECF No. 22-8. These documents may be considered in determining the viability of Kloss' claim, as they are indisputably authentic prison documents, with one exception authored by Kloss himself, and on which Kloss bases his retaliation claim. Pension Ben. Guar. Corp., 998 F.2d 1192, 1196 (3d Cir. 1993) (holding courts may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion ... if the plaintiff's claims are based on the [attached] documents"); see also, Miller v. Clinton County, 544 F.3d 542, 550 (3d Cir. 2008). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).
Although the Court advised Kloss that Defendants' Motions to Dismiss could be converted to Motions for Summary Judgment [ECF No. 24, ECF No. 27] pursuant to Renchenski v. Williams, 622 F.3d 315, 340 (3d Cir. 2010), it is not necessary to do so here to resolve his retaliation claim.
Kloss' Complaint states that "Then, on November 28, 2017, I was wrote for a misconduct charge for not standing for count time even after I fell trying to get up and turn the light on. This was clearly retaliation for writing a PREA Complaint against Sgt. O'Brien." ECF No. 3, at 5. In order to state a prima facie case of First Amendment retaliation, a prisoner must plausibly allege that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was "a substantial or motivating factor" for the adverse action. See Rauser, 241 F.3d at 333.
Kloss' allegation that he was retaliated against because he filed a PREA complaint implicates conduct protected by the First Amendment sufficient to satisfy the first prong of the Rauser test. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Kloss further asserts that he suffered adverse action by being confined to his cell for fourteen days. This restriction could deter a reasonably firm prisoner from exercising his First Amendment rights and is adequate for purposes of the de minimis showing required to demonstrate adverse action. See Rosa-Diaz v. Overymeyer, 2018 WL 3850732, at *6 (W.D. Pa. July 20, 2018). Thus, Kloss has satisfied the second Rauser prong.
His claim unravels, however, at the third prong which requires that there be a causal connection between the exercise of the constitutional right and the adverse action. See Rauser, 241 F.3d at 333. Put differently, Kloss' complaint must show that the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. The misconduct report Kloss claims was given to him as retaliation was not issued and signed by Correctional Defendant O'Brien, but instead by a correctional officer named Doxey. ECF No. 22-3, at 1. That is not necessarily fatal to Kloss' claim because he does not allege that O'Brien actually wrote the report. See ECF No. 3, at 5. But this claim should still be dismissed because Kloss failed to allege any connection between Doxey and O'Brien. For example, he does not plead that Doxey knew or was otherwise aware that Kloss filed a PREA claim against O'Brien. See, e.g., Graham v. Monmouth County Buildings, 2018 WL 4491175 at *2 (D. N. J. Sept. 19, 2018). Thus, he has not pleaded a causal connection between Doxey issuing the misconduct report and his filing a PREA complaint against O'Brien. Kloss' retaliation complaint should, therefore, be dismissed against Correctional Defendant O'Brien.
This claim was also based on Kloss' not standing for prisoner count. Even assuming that Kloss has stated a prima facie case for retaliation here, the claim should be dismissed because the prison staff's conduct was reasonably related to a legitimate penological interest. "[O]nce a prisoner demonstrates that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision, the prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Rauser, 241 F.3d at 334. Here, the misconduct issued to Kloss was based the legitimate penological interest in maintaining order in the prison. See, e.g., J.B. ex rel. Benjamin v. Fassnacht, 801 F.3d 336, 344 (3d Cir. 2015). Kloss had been given direct orders to stand for the count seven times over a ten-day period, and each time he refused. ECF No. 22-2, at 1. And, Kloss acknowledged that Medical Defendant Halligan told him he could stand. ECF No. 22-2, at 4. Given that there was a legitimate penological reason for the misconduct citation, Kloss' claim fails. The retaliation claim based on this conduct should be dismissed with prejudice.
5. Summary
The Eighth Amendment deliberate indifference claim against Correctional Defendant Silva should be dismissed with prejudice. The Eighth Amendment claims against Correctional Defendants O'Brien, Smock and Kosinski should also be dismissed with prejudice. The ADA claim against Correctional Defendants Kosinski and O'Brien should be dismissed with prejudice. The sexual harassment claim against Correctional Defendants O'Brien and Kosinski should be dismissed with prejudice. Finally, the First Amendment retaliation claim against Correctional Defendant O'Brien should be dismissed with prejudice.
VI. Conclusion
For the foregoing reasons, it is recommended as follows:
1. The Correctional Defendants' Motion to Dismiss [ECF No. 22] be GRANTED as follows:
a. The Eighth Amendment deliberate indifference claim against Correctional Defendant Silva should be dismissed with prejudice.
b. The Eighth Amendment claims against Correctional Defendants O'Brien, Smock and Kosinski should also be dismissed with prejudice.
c. The ADA claim against Correctional Defendants Kosinski and O'Brien should be dismissed with prejudice.
d. The sexual harassment claims against Correctional Defendants O'Brien and Kosinski should be dismissed with prejudice.
e. The First Amendment retaliation claim against Correctional Defendant O'Brien should be dismissed with prejudice.
2. It is further recommended that the Medical Defendants' Motion to Dismiss [ECF No. 25] be GRANTED as follows:
a. The ADA claims against Medical Defendants Duddy, Halligan, Maxa and Hester should be dismissed with prejudice.
b. The Eighth Amendment deliberate indifference claim against Medical Defendant Correct Care Solutions LLC, should be dismissed, without prejudice.
c. The Eighth Amendment Claim against Medical Defendants Maxa and Halligan should be dismissed without prejudice to the Plaintiff filing an amended complaint to cure any deficiencies noted in this Report.
d. The First Amendment retaliation claim against Medical Defendants Maxa, Halligan, Hester and Duddy, as well as against Correct Care Solutions, should be dismissed without prejudice.
VII. Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).
s/Richard A. Lanzillo
THE HONORABLE RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
Date: October 31, 2018
c: Hon. Susan Paradise Baxter
United States District Judge