Opinion
Civil Action 21-1853
03-30-2023
JUSTIN LLOYD Plaintiff, v. JOHN E. WETZEL, Secretary of Corrections; and MELINDA ADAMS, Superintendent, JANE DOE Nurse, EDWARD WHITTMEN, GEORGE M. LITTLE Secretary of Corrections, Defendants.
CHRISTY CRISWELL WIEGAND, DISTRICT JUDGE.
REPORT AND RECOMMENDATION
RE: ECF NO. 24
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Plaintiff Justin Lloyd is an inmate currently incarcerated at the State Correctional Institution at Rockview (“SCI-Rockview”). Plaintiff brings this civil rights action against several prison administrators and an unidentified nurse pursuant to 42 U.S.C. § 1983 and asserts claims under the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiff's claims arise out of the alleged violation of his rights during his confinement at the State Correctional Institution at Mercer (“SCI-Mercer”) at the height of the COVID-19 pandemic. ECF No. 16. Defendants John E. Wetzel, Melinda Adams, Edward Whittmen, and George M. Little have filed a Motion to Dismiss for failure to state a claim upon which relief can be granted. ECF No. 24.
For the reasons that follow, it is recommended that the Court grant the Motion to Dismiss.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
During Plaintiff's confinement at SCI - Mercer, prison officials with the Pennsylvania Department of Corrections (“DOC”) adopted measures to contain the spread of the COVID-19. See, e.g., ECF No. 16-1 at 7-8. In the Amended Compliant, Plaintiff asserts claims against state corrections and prison administrators, his housing unit administrator, and an unidentified nurse for the violation of his rights resulting from the implementation of social distancing and disease containment measures. ECF No. 16.
Plaintiff alleges he was housed in Unit HB and assigned to a “cohort” for purposes of controlling the spread of COVID-19. Id. ¶¶ 16-17. On October 26, 2020, eight inmates in his cohort tested negative for the virus. Id. On November 10, 2020, an unidentified Lieutenant entered Plaintiff's cell to conduct a search. His mask was worn improperly and he touched every surface. Id. ¶ 18. After the search was completed, Plaintiff was ordered to return to his cell but he was not provided supplies to clean or sanitize cell surfaces. Four days later, Plaintiff became ill. He alleges the Lieutenant infected him with COVID-19. Id. ¶ 19.
On November 18, 2020, a unit manager denied Plaintiff sanitizer to clean his cell and instructed him to use soap. Id. ¶ 20. Plaintiff did not have soap. On November 30, 2020, he requested soap from CO Trap. Trap told him that soap was distributed once a month “during the pandemic lockdowns.” Plaintiff alleges he last received soap on October 3, 2020. Id. ¶ 21. Plaintiff complained to Captain Coon on December 1, 2020, regarding his failure to receive soap or access to sanitizer. Id. ¶ 22. Captain Coon said he was unaware of the circumstances regarding soap distribution on Plaintiff's housing block and his related grievance. Id. Plaintiff alleges that Defendant Melinda Adams (“Adams”), Superintendent of SCI-Mercer, failed to ensure that Plaintiff had “free access to soap, hand sanitizer, and cleaning supplies,” and that all Defendants failed to ensure that common areas were sanitized between each use. Id. ¶ 23. Plaintiff also alleges that Defendant Edward Whittmen (“Whittmen”) failed to follow the unit cleaning procedures set forth in the 2019 Inmate Handbook. Id. ¶ 29.
Plaintiff next asserts that during the pandemic, he was denied access to the prison law library and could not conduct research in aid of his petition for post-conviction relief. Id. ¶ 26. As a result, the state court dismissed his petition. Id. During this time, Plaintiff also was denied access to a phone and visitation privileges. Id. ¶¶ 35-36. Plaintiff claims that Defendant John Wetzel (“Wetzel”) issued COVID-19 related “Statewide Safety Measures,” but Defendant Adams refused to implement the guidelines. As a result, Plaintiff was permitted out of his cell only for fifteen-minute showers. Id. ¶¶ 28, 33.
Finally, Plaintiff alleges that in November 2021, the DOC suggested that all inmates receive a booster shot to protect themselves from COVID-19. Id. ¶ 37. Plaintiff was given the choice of the Johnson & Johnson and Moderna vaccines. Plaintiff chose to receive the Johnson & Johnson vaccine. Id. ¶ 38. However, on the day the booster shots were administered, nurse Jane Doe gave plaintiff the wrong vaccine. Corrections officials admitted the error in response to Plaintiff's grievance. Id. ¶¶ 39-40.
Plaintiff claims that Defendants' alleged misconduct violated his First, Fifth, Eighth, and Fourteenth Amendment rights. As relief, Plaintiff seeks compensatory and punitive damages, as well as a declaratory judgment, costs, and other relief.
Defendants have filed the pending Motion to Dismiss in response to the Amended Complaint. ECF No. 24. Defendants assert that this action must be dismissed because: (1) Plaintiff failed to exhaust administrative remedies and therefore he administratively defaulted on his claims; (2) Plaintiff fails to allege facts sufficient to establish that Defendant Wetzel or Defendant George M. Little (“Little”) were personally involved or had actual knowledge of and acquiesced to any alleged wrongdoing; (3) Plaintiff's negligence claim is not cognizable under Section 1983; (4) Plaintiff fails to state an Eighth Amendment claim related to the conditions of his confinement arising from COVID-19 containment measures; and (5) Plaintiff fails to state a First Amendment access to court claim. ECF No. 25.
Plaintiff has responded to the Motion to Dismiss with a “Claim for Relief” and a “Brief in Support of Claim for Relief.” ECF Nos. 34, 35.
The Motion to Dismiss is ripe for consideration.
B. STANDARD OF REVIEW
1. Motion to Dismiss
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” “[D]etailed pleading is not generally required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). Rather, the rules require “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconduct....” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, the court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys. v. 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 set forth as factual allegations. Twombly, 550 U.S. at 555. Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice. The complaint therefore “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s of his claim].”). Id. at 233, 234.
2. Pro Se Pleadings and Filings
Plaintiff is proceeding pro se. Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Dep't. of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Even so, there are limits to the court's procedural flexibility - “pro se litigants still must allege sufficient facts in their complaints to support a claim ....they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Exhaustion of Grievance Process
Because Defendants raise exhaustion as a defense to this action, the Court must address it as a threshold matter before reaching the merits of the pending Motion to Dismiss. Small v. Camden Cnty., 728 F.3d 265, 270 (3d Cir. 2013).
a. PLRA requirements
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires that a prisoner exhaust available administrative remedies before filing an action challenging prison conditions. Under the PLRA, “[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.” Id.
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). “This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id. Thus, the benefits of the exhaustion requirement “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Id. at 219.
As the United States Court of Appeals for the Third Circuit has explained:
The PLRA requires inmates to exhaust prison grievance procedures before suing in court. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,' rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)).Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016).
While exhaustion of administrative remedies is mandatory under the PLRA, “[a] prisoner need not exhaust remedies if they are not ‘available'” to the inmate. Ross v. Blake, 578 U.S. 632, 636 (2016). “The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.'” Id. at 648 (quoting § 1997e(a)). In other words, “the exhaustion requirement hinges on the ‘availability' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 642 (cleaned up). “[T]he ordinary meaning of the word ‘available' is ‘capable of use for the accomplishment of a purpose,' and that which ‘is accessible or may be obtained.'” Id. (quoting Booth v. Churner, 532 U.S. 731, 737-38 (2001)). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (quoting Booth, 532 U.S. at 738).
The United States Supreme Court has described three instances in which an administrative remedy is unavailable as a practical matter: “(1) ‘it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates'; (2) it is ‘so opaque that it becomes, practically speaking, incapable of use,' such as when no ordinary prisoner can discern or navigate it; or (3) ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” Shumanis v. Lehigh Cnty., 675 Fed.Appx. 145, 148 (3d Cir. 2017) (quoting Ross, 578 U.S. at 643-44).
“The burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)). “But once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him.” Id. (citing Tuckel v. Grover, 660 F.3d 1249, 1253-54 (10th Cir. 2011)).
b. DC-ADM 804
The Pennsylvania Department of Corrections' administrative remedies for inmate grievances are provided for in DOC Administrative Directive 804 (“DC-ADM 804”). See DOC Policies, DC-ADM 804, Inmate Grievance System Policy. DC-ADM 804 provides a three-step process through which inmates can seek to resolve issues relating to their incarceration. Id. The three steps are: (1) file an initial grievance; (2) appeal to the superintendent; and (3) final appeal to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”). Redshaw v. Pillai, No. 12-190J, 2013 WL 3802464, at *3 (W.D. Pa. July 18, 2013). In accordance with the PLRA, an inmate cannot sustain an action in federal court if he or she has failed to follow each of the steps to properly exhaust administrative remedies. See Spearman v. Morris, 643 Fed.Appx. 82, 85 (3d Cir. 2016) (citing Booth v. Churner, 206 F.3d 289, 299 (3d Cir. 2000) (holding that plaintiff did not take full advantage of the administrative procedures available to him in failing to perfect his appeal for final review and thus failed to exhaust administrative remedies)).
https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx
If an inmate is dissatisfied with the response received from the Facility Grievance Coordinator, an appeal may be submitted in writing to the Facility Manager within fifteen working days. Id. at 20 (DC-ADM 804 § 2.A.1.a). Failure to comply with the listed appeal requirements may result in the appeal being dismissed. Id. (DC-ADM 804 § 2.A.1.e).
Once an appeal is filed, the Facility Manager “will determine whether the appeal in in accordance with the procedures manual.” Id. (DC-ADM 804 § 2.A.2). If the appeal is found to be in accordance with procedures, it will then be entered into the Inmate Grievance Tracking System. Id. Once entered in the system, the Facility Manager or designee must respond in writing within fifteen working days. Id. If the inmate remains dissatisfied following this second level appeal, the inmate must submit an Appeal for Final Review to the SOIGA within fifteen working days, and then the inmate will receive a final determination in writing within thirty days. Id. at 23-28 (DC-ADM 804 § 2.B). The policy provides that an appeal to the Facility Manager must be received by the inmate before the inmate may submit a final appeal. In addition, the appeal must include the grievance number, and contain the reasons for appealing the Facility Manager's decision. Id.
As relevant to the pending Motion to Dismiss, the version of DC-ADM 804 that has been in effect since May 1, 2015, states that “[i]f the inmate desires compensation or other legal relief normally available from a court, the inmate must request the specific relief sought in his/her initial grievance.” DC-ADM 804 § 1.A.11.d. “Courts within the Third Circuit have held that in light of the mandatory nature of the language set forth above at DC-ADM 804 § 1(A)(11)(d) regarding the requesting of ‘compensation or other legal relief normally available from a court,' an inmate procedurally defaults any claim for monetary relief if he did not seek such relief in his grievance.” Newsome v. Teagarden, No. 18-CV-317, 2021 WL 1176102, at *8-9 (W.D. Pa. Mar. 29, 2021) (citing Wright v. Sauers, 729 Fed.Appx. 225, 227 (3d Cir. 2018) (affirming the district court's grant of summary judgment for defendant on plaintiff's excessive force claim because plaintiff failed to request monetary relief in his initial grievance); Taylor v. Chesmer, No. 18-cv-1579, 2020 WL 5366055, at *6-9 (W.D. Pa. 2020) (plaintiff's request for monetary relief barred because he did not request that relief in his grievance); Cunningham v. Zubsic, No. 16-cv-127, 2019 WL 134209, at *5 (W.D. Pa. Jan. 8, 2019) (same); Camacho v. Beers, No. 16-cv-1644, 2018 WL 6618410, at *3 (W.D. Pa. Dec. 18, 2018) (holding that, because “Plaintiff failed to request the specific relief of monetary compensation in the grievances he filed as to the subjects of this lawsuit ... he did not exhaust all administrative remedies with regard to such claims ... [and] may not pursue an action in federal court based on the claims raised in his procedurally defective grievances.”)).
The Third Circuit in Wright explained that in Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), it had “rejected a procedural default claim based on an inmate's failure to specifically request monetary relief on a prior version of DC-ADM 804” that did not require an inmate to seek such relief in a grievance. Wright, 729 Fed.Appx. at 227. It further explained that “[c]rucially ... we also observed that-to the extent [the Prison] was dissatisfied with our ruling-the Prison could ‘alter the grievance system to require more (or less) of inmates by way of exhaustion.'” Id. (quoting Spruill, 372 F.3d at 235). “Subsequently, the Prison amended its policy to include the mandatory language deemed lacking in Spruill.” Id.
As the district court in Wright explained:
a requirement to set forth the compensation or legal relief requested places the agency on notice of the prisoner's demand or valuation of his or her claim, and furthers the PLRA's underlying litigation avoidance goals by supporting early settlement or accommodation. Proper exhaustion, including adherence to a requirement to delineate the relief requested, therefore promotes the efficiency recognized in Woodford, permitting claims to be “resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Woodford at 87, 126 S.Ct. 2378. Given the underlying goals of the PLRA, and the state of the law requiring adherence to clearly stated content requirements, this Court must conclude that the mandatory nature of the language
at issue gives rise to procedural default as a result of Plaintiff's failure to set forth the desired monetary or other legal relief on his initial grievance form.Newsome v. Teagarden, 2021 WL 1176102, at *8-9 (quoting Wright v. Sauers, No. 13-cv-358, 2017 WL 3731957, at *7-8 (W.D. Pa. Aug. 30, 2017), aff'd, 729 Fed.Appx. 225 (3d Cir. 2018)).
c. Plaintiff's failure to exhaust
Defendants argue that the Motion to Dismiss is properly granted because Plaintiff procedurally defaulted on his claims by failing to request monetary damages in any initial grievance submitted by him to prison officials. ECF No. 25 at 3-4.
The United States Court of Appeals for the Third Circuit has held that “[a] plaintiff's failure to exhaust his administrative remedies is an affirmative defense that, in an appropriate case, may be raised in a motion to dismiss.” Talley v. Constanzo, No. 19-2650, 2022 WL 17352167, at *2 (3d Cir. Dec. 1, 2022) (citing Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002)). “When a defendant files such a motion and ‘the exhaustion issue turns on [ ] indisputably authentic documents related to [the inmate's] grievances, [a court] may consider those documents without converting [a motion to dismiss] to a motion for summary judgment.'” Id. (quoting Rinaldi, 904 F.3d at 261 n.1).
In this case, the authenticity and completeness of Plaintiff's grievances related to the claims asserted in this litigation are not in dispute. Thus, the exhibits attached to the Amended Complaint may properly be considered on a Motion to Dismiss. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
The Court has reviewed the initial grievances attached to Plaintiff's Amended Complaint and finds that Plaintiff failed to request monetary relief with regard all claims asserted in this lawsuit. See ECF No. 16-1 at 9 (grievance complaining that masks supplied by the Department of Corrections are inadequate and that inmates have not been provided materials to clean masks for repeated use); Id. at 10 (grievance complaining about temperature taking process, lack of phone access, out of cell exercise, exposure to “corona virus”, and lack of supplies to clean his toilet and cell); Id. at 11 (grievance related to the denial of soap, sanitizer, envelopes, the lack of an alternative way to communicate with family, denial of out of cell recreation, and the denial of an opportunity to pray at a specific time on the day the grievance was submitted); Id. at 12 (grievance alleging the denial of freedom of association, access to courts, and out of cell recreation and exercise); Id. at 13 (grievance related to the search of Plaintiff's cell by a Lieutenant who did not properly place his mask over his mouth and nose and who refused to provide Plaintiff with sanitizer to clean the surfaces that were touched during the search. Plaintiff alleged that an outbreak of the virus in his housing unit occurred four days later that he attributed to staff members failing to properly wear masks). Plaintiff's initial grievance related to the “wrong vaccine” did not include a request for monetary compensation. However, Plaintiff asserted a belated demand for compensation in his Inmate Appeal to Facility Manager. ECF No. 16-2 at 1-3. His request and appeal were denied. Id. at 4.
Plaintiff does not dispute the completeness or authenticity of the grievance records attached to his Amended Complaint, and he does not dispute that apart from his belated request for compensation for receiving the wrong vaccine, he failed to request monetary damages. ECF No. 35 at 4. However, Plaintiff asserts that he “follow[ed] the rules for filing grievances” set forth “in the inmate handbook,” and states that he was never provided a Grievance System Manual or “complete instructions on how to fill out a grievance.” Id. at 4.
The Court has reviewed the portion of the Inmate Handbook referenced by Plaintiff as well as each of Plaintiff's grievances and appeals attached to the Amended Complaint. The attached portion of the handbook does not address grievances. However, each Official Inmate Grievance form submitted by Plaintiff instructs inmates to “[s]tate all relief that you are seeking.” ECF No. 16-1 at 9-13; ECF No. 16-2 at 1.
An administrative remedy can be deemed unavailable when “it is so opaque that it becomes ... incapable of use,” Rinaldi, 904 F.3d at 266-67. That exception does not apply in this instance, given that the grievance form expressly directs inmates to identify all relief sought. Because “compliance is measured by the particular agency's grievance policy, which the Court cannot ignore,” Plaintiff's failure to request monetary damages in his initial grievances renders such relief unexhausted as to all claims pursued in this lawsuit. Wright, 2017 WL 3731957, at *6 (citing Jones, 549 U.S. at 219).
The only other relief Plaintiff seeks is “[a] declaration that the acts and omissions described [in the Amended Complaint] violated plaintiff's rights under the Constitution and the laws of the United States.” ECF No. 16 ¶ 43. However, Plaintiff's claim for injunctive relief is moot because Plaintiff has been transferred from SCI - Mercer (the site of the aggrieved conduct) to SCI - Rockview. Under these circumstances, Plaintiff no longer presents a live case or controversy for injunctive relief regarding the policies or practices at SCI - Mercer “because an injunction where he is no longer imprisoned would not provide him meaningful relief.” Banks v. Sec'y Pennsylvania Dep't of Corr., 601 Fed.Appx. 101, 103 (3d Cir. 2015) (citing Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993)). Thus, dismissal of Plaintiff's claim for injunctive relief is warranted.
In sum, the PLRA requires the Court to apply the prison's administrative exhaustion rules, however stringent, and those rules and the forms that implement them unambiguously direct an inmate who desires compensation to request it in his initial grievance. Plaintiff's failure to do so precludes the grant of relief here. Accordingly, it is recommended that the Motion to Dismiss be granted on the basis of Plaintiff's failure to exhaust available administrative remedies.
2. Personal Involvement
In the alternative, Defendants move to dismiss all claims against Wetzel and Little because Plaintiff fails to allege any facts that demonstrate that either Defendant was personally involved in the alleged misconduct. ECF No. 25 at 4. Plaintiff responds to Defendants' argument by reasserting his claims against Nurse Jane Doe and Defendant Adams and, therefore, he appears to concede that he has failed to sufficiently allege the personal involvement of either Wetzel or Little. ECF No. 35 at 4.
To establish individual liability under section 1983, “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). There are “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2017), rev'd on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015). First, a supervisor may be held liable if he “participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 & n. 5 (3d Cir. 2010) (citing A.M. ex rel. J.M.K. Luzerne Cnty., 372 F.3d 572, 586 (3d Cir. 2004)). Second, a supervisor may be liable if he “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M., 372 F.3d at 586.
Here, the Court agrees that Plaintiff has failed to set forth facts sufficient to plausibly infer the involvement of Wetzel or Little in the alleged violation of his rights. In the Amended Complaint, Plaintiff alleges that Little served as the “Secretary of Corrections at the time of the [incident and] is a Defendant in this complaint.” ECF No. 16 ¶ 41. As to Wetzel, Plaintiff alleges he is the Secretary of Corrections .. [and he] is legally responsible for the overall operation of the Department and each institution under its jurisdiction, including [SCI - Mercer].” Id. ¶ 4. Plaintiff further alleges that on December 10, 2020, Wetzel “issued a memo to all inmates titled “Statewide Safety Measures.” Id. ¶ 27. Plaintiff presents the memo as an exhibit to his Amended Complaint. In the memo, Wetzel explains that “the Commonwealth is experiencing COVID cases much higher than our original peak...” ECF No. 16-1 at 7. As a result, Wetzel directed additional temporary measures to protect the safety of the DOC's prison population. To that end, prison cohorts were reduced, and activity limitations were acknowledged. Wetzel directed that showers, phones, and video visitation measures would continue, as would a cost-free allowance to mail twelve first class letters per month. Wetzel stated that a plan would be implemented to provide “additional activities, in-cell programming, religious services, and educational activities.” Id. Wetzel expressed his optimism at the recent release of a vaccine in United Kingdom and his hope that a vaccine would soon be available in the United States. Plaintiff alleges that despite the directions in this memo, “Defendant Adams refused to implement any of the new guidelines. Only allowing the plaintiff out his cell for fifteen minute showers only.” ECF No. 16 ¶ 28.
Plaintiff's allegations against Wetzel and Little, accepted as true and construed broadly in his favor, do not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Plaintiff alleges no facts permitting an inference that Little had any involvement in the complained of misconduct. As alleged and demonstrated through the exhibits to the Amended Complaint, Wetzel implemented or directed short-term measures to permit video or phone visitation, in-cell programming, and out of cell movement while seeking to prevent the spread of COVID-19 at a time when no vaccine was available. The harm that Plaintiff alleges he suffered resulted not from Wetzel's measures, but from Adams' failure to implement Wetzel's directions. ECF No. 16 ¶ 28. Plaintiff does not allege that Wetzel was aware that his directions were not implemented at SCI - Mercer or that Wetzel acquiesced in the violation of Plaintiff's rights, if any. Under these circumstances, it is recommended that the Court grant Defendants' Motion to Dismiss in the alternative as to Wetzel and Little for failure to state a claim upon which relief may be granted.
3. Eighth Amendment Claims
a. Medical Treatment
Defendants move to dismiss Plaintiff's Eighth Amendment claim arising out of the administration of Plaintiff's booster vaccination because Plaintiff fails to state a claim for relief. ECF No. 25 at 6. Plaintiff responds that he has sufficiently alleged a claim for deliberate indifference to his serious medical needs because he alleges that Nurse Jane Doe administered the wrong vaccine and her “malpractice involved [culpable] recklessness.” ECF No. 35 at 4. Plaintiff supplements the factual allegations in his Amended Complaint and states that, “[t]he nurse had a list of inmates who were supposed to receive certain boosters. She [blatantly] disregarded the list and administered the wrong vaccine to dozens of inmates. This act plainly demonstrates [culpable] recklessness.” Id. at 5. The exhibits to Plaintiff's Amended Complaint include Plaintiff's grievance dated November 17, 2021, complaining that he received the wrong vaccine, and a memo to all inmates from George M. Little dated December 17, 2021, informing inmates that due to “concerns over rare and sometimes fatal blood clots,” the DOC would “immediately stop administering the Johnson and Johnson vaccine to our population.” ECF No. 16-2 at 10. Little stated that “The Department will continue [to] offer the Moderna vaccine to anyone who wishes to receive it, as well as the $25 incentive for receiving the vaccine and booster shot.” Id. Plaintiff does not allege that he suffered any harm from the nurse's error in giving Plaintiff the Moderna vaccine.
At this stage of the litigation, Nurse Jane Doe has not been identified and counsel for Defendants Wetzel, Adams, Whittmen, and Little does not represent her. ECF No. 25 at 6 n.3. Thus, the Motion to Dismiss is asserted only on behalf of the remaining Defendants as nonmedical prison administrators and staff. Id. at 6.
The United States Court of Appeals for the Third Circuit has held that “[p]rison officials ‘violate the Eighth Amendment when they act deliberately indifferent to a prisoner's serious medical needs by intentionally denying or delaying access to medical care or interfering with the treatment once prescribed.'” Coleman v. Stanford, No. 22-1529, 2022 WL 2802403, at *2 (3d Cir. July 18, 2022) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)). See also Durmer v. O'Carroll, 991 F.2d 64, 68 & n.11 (3d Cir. 1993); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (same). Deliberate indifference to serious medical needs is an exacting standard, requiring a showing of “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). Claims sounding in mere medical negligence will not suffice. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
In assessing claims of deliberate indifference, “courts in this Circuit distinguish between non-medical prison officials - typically corrections officers - and medical prison officials - doctors and nurses providing medical care.” Carter v. Baumcratz, No. 18-96, 2021 WL 4443767, at *9 (W.D. Pa. Sept. 28, 2021) (citing Williams v. Doe, 2017 WL 4680636, at *3 (E.D. Pa. Oct. 18, 2017) and citing Spruill v. Gillis, 372 F.3d at 236). Thus,
[i]f a prisoner is under the care of medical experts ... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a nonmedical prison official liable in a case where a prisoner was under a physician's care would strain this division of labor. Moreover, under such a regime, nonmedical officials could even have a perverse incentive not to delegate treatment responsibility to the very physicians most likely to be able to help prisoners, for fear of vicarious liability.Id. Here, Defendants are prison administrators and a corrections officer who are not alleged to have provided medical care. Thus, to state a plausible Eighth Amendment claim of deliberate indifference, Plaintiff must allege facts that would support an inference that they possessed actual knowledge or a reason to believe that Nurse Jane Doe was mistreating him. Carter, 2021 WL 4443767, at *9 (citing Trainor v. Wellpath, 2021 WL 3913970, at *10 (W.D. Pa. Sept. 1, 2021); Spruill, 372 F.3d at 236)).
In this case, Plaintiff does not allege facts that would permit an inference that any moving Defendant knew of and was deliberately indifferent to Plaintiff's medical needs regarding the administration of the COVID-19 booster vaccine. Thus, it is recommended that the Court dismiss Plaintiff's Eighth Amendment medical deliberate indifference claim against Defendants Wetzel, Adams, Whittmen, and Little.
b. Conditions of Confinement During Pandemic
Defendants also move to dismiss Plaintiff's Eight Amendment conditions of claims arising out of the availability of soap, time outside of his cell to exercise, and access to phone and visitation.
To succeed on an Eighth Amendment claim related to the conditions of confinement: (1) the deprivation must be objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities; and (2) the prison official must have been deliberately] indifferen[t] to inmate health or safety.” Porter v. Pa. Dep't of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (alterations in original) (internal quotation marks and citation omitted).
As to the objective element, “the Constitution does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Therefore, conditions of imprisonment violate the Eighth Amendment only if they “alone or in combination . deprive inmates of the minimal civilized measures of life's necessities.” Id. at 347. Such necessities include “adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Thus, “extreme deprivations are required to make out a conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). However, “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372 (3d Cir. 2019) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991) and Rhodes, 452 U.S. at 347). See also Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (identifying the denial of basic human needs as “food, clothing, shelter, sanitation, medical care and personal safety”). In addition, the prisoner must demonstrate that the defendants acted with deliberate indifference, i.e., that prison officials knew of and disregarded a substantial risk of serious harm. Farmer, 511 U.S. at 837.
Plaintiff alleges that Whittmen violated his Eighth Amendment rights when he “refused to supply soap or sanitation products to plaintiff [] to clean his cells or wash his masks,” and that Adams “failed to ensure that plaintiff [had] easy free access to soap, hand sanitizer, and cleaning supplies.” ECF No. 16 ¶ 13, 23. To the extent Plaintiff's claims against Whittmen are not otherwise procedurally defaulted, his allegations permit the Court to infer that Plaintiff was exposed to a substantial risk of serious harm through the deprivation of the materials required to meet a basic human need, and that Whittman was deliberately indifferent to that risk. See e.g., White v. Wetzel, No. 21-2654, 2022 WL 3273807, at *2 (3d Cir. Aug. 11, 2022) (allegations that unit manager and Adams ignored DOC protocols related to COVID-19 protocols after acknowledging that conditions in specific housing unit were dangerous raised an inference of deliberate indifference to a concededly serious risk). However, in this case, Plaintiff does not allege facts that plausibly state that Adams was aware of the deprivation in his unit and failed to act. Thus, should the Court conclude that Plaintiff's Eighth Amendment claim related to the provision of cleaning products is not barred by his failure to exhaust, Defendants' alternative Motion to Dismiss should be granted as to Adams, but denied as to Whittman.
Plaintiff alleges that Adams “refused to implement” Wetzel's COV1D-19 guidelines and as a result, Plaintiff was allowed out of his cell for only fifteen minutes a day to shower. ECF No. 16 ¶ 28. Defendants contend that this allegation fails to state a claim for relief because Plaintiff does not allege the length of time he was subjected to these conditions nor does he allege that he suffered harm as a result.
To determine whether a deprivation of outdoor exercise amounts to a sufficiently serious deprivation under the Eighth Amendment, “courts should consider the totality of the circumstances, including, but not limited to, the length of the deprivation, the availability of recreation within the cell, and whether the inmate suffered any ill health effects as a result of the deprivation.” Barndt v. Wenerowicz, 698 Fed.Appx. 673, 677 (3d Cir. 2017) (citing Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992); Rodgers v. Jabe, 43 F.3d 1082, 1086 (6th Cir. 1995); Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983)). In Brandt, the denial of recreation for twenty-eight days in the absence of facts establishing that the plaintiff suffered ill effects or sought medical care because of his extended confinement did not rise to a substantial deprivation to sustain an Eighth Amendment claim.
Here, Plaintiff fails to alleges facts regarding the length of time he was subjected to incell confinement, the lack of access to in-cell exercise, and any resulting harm. In the absence of factual allegations demonstrating that Plaintiff's in-cell confinement exposed him to a substantial risk of serious harm, Plaintiff fails to raise an inference that the conditions of his confinement violated his rights under the Eighth Amendment. Thus, the Court should grant Defendants' Motion to Dismiss Plaintiff's claim that he was denied time to exercise out of his cell on the alternative grounds that Plaintiff has failed to state a claim upon which relief may be granted. See Chapolini v. City of Philadelphia, No. 22-284, 2022 WL 815444, at *3-4 (E.D. Pa. Mar. 17, 2022) (ordering the preservice dismissal of plaintiff's claim that as a result of prison's COVID-19 response measures, he was confined to his cell for 23 hours and 40 minutes per day and lost access to law library, in-person visitation and out of cell exercise because plaintiff failed to allege how long he was subjected to the challenged conditions) (citing Hope v. Warden York County Prison, 972 F.3d 310, 327 (3d Cir. 2022) (concluding that conditions of confinement during COVID-19 did not amount to unconstitutional punishment)). Finally, Plaintiff pleads neither the length his visitation and phone privileges were denied, nor the harm suffered. Thus, for substantially the same reasons set forth related to the denial of out of cell exercise, Plaintiff's claims regarding denial of visitation and phone access are properly dismissed.
4. First Amendment Access to Courts Claim
To state an access to court claim, a prisoner must establish first, that as a result of a defendant's conduct, he “suffered an actual injury” meaning that he “lost a chance to pursue a ‘nonfrivolous' or ‘arguable' underlying claim.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). Second, a prisoner must show that he has “no other remedy that may be awarded as recompense for the lost claim other than in the present denial of access suit.” Id. (internal quotation marks omitted). Thus, the complaint must “describe the underlying arguable claim well enough to show that it is ‘more than mere hope,' and [ ] describe the ‘lost remedy' in such a way that the defendants are on fair notice of it.” Rivera v. Monko, 37 F.4th 909, 916 (3d Cir. 2022) (quoting Monroe, 536 F.3d at 205-06).
Defendants contend that Plaintiff fails to state a claim upon because he fails to identify any Defendant against whom Plaintiff's claim is lodged. ECF No. 25 at 9. And, as reflected in the Pennsylvania Superior Court decision affirming the denial of Plaintiff's petition for postconviction relief, Plaintiff cannot establish that he possessed a non-frivolous and arguable underlying claim. Id. (citing Commonwealth v. Lloyd, 272 A.3d 464 (Pa. Super. Ct. 2022) (table), 2022 WL 452693 (Pa. Super. Ct. Jan. 10, 2022) (unpublished opinion), appeal denied, 283 A.3d 172 (Pa. 2022)).
The pertinent facts and procedural history may be summarized as follows: On October 3, 2019, Lloyd pled guilty to multiple drug and firearm offenses. On November 12, 2019, the trial court sentenced him to an aggregate term of five to ten years of imprisonment. Lloyd did not file a post-sentence motion or a direct
appeal. On November 18, 2020, he filed a pro se PCRA petition, and the PCRA court appointed counsel. On January 26, 2021, PCRA counsel filed a motion to withdraw and a ‘no-merit' letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On February 3, 2021, the PCRA court issued a Pa. R.A.P. 907 notice of its intent to dismiss Lloyd's PCRA petition without a hearing. The court also granted PCRA counsel's motion to withdraw. Lloyd did not file a response. By order entered April 28, 2021, the PCRA court denied Lloyd's petition. This appeal followed.Commonwealth v. Lloyd, 2022 WL 452693, at *1. Taking into consideration appointed counsel's determination that there was “no merit” to Plaintiff's post-conviction relief petition challenging his guilty plea and conviction, Plaintiff must allege facts demonstrating that a named Defendant's denial of access to the prison law library deprived him of the opportunity to litigate a meritorious claim. He has failed to do so and thus it is recommended that the Court grant Defendants' alternative motion to dismiss Plaintiff' First Amendment access-to-courts claim.
5. Leave to Amend
When a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend within a set period of time, unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Because it is not conclusive that amendment would be futile, it is recommended that the Court grant Plaintiff thirty days to file an amended complaint to the extent Plaintiff is able to cure the deficiencies identified in this Report and Recommendation related to exhaustion of administrative remedies and the merits of his First and Eighth Amendment claims.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant Defendants' Motion to Dismiss as to all claims asserted in Plaintiff's Amended Complaint against Defendants Wetzel, Adams, Whittmen, and Little due to Plaintiff's failure to exhaust administrative remedies.
Should the Court determine that dismissal on the basis of exhaustion in not warranted, then it is recommended that the Court: (1) grant the Motion to Dismiss Defendants Wetzel and Little for failure to allege their personal involvement in the commission of wrongdoing; (2) grant the Motion to Dismiss Plaintiff's Eighth Amendment claim arising out of medical treatment as to Defendants Wetzel, Adams, Whittmen, and Little; (3) deny the Motion to Dismiss Plaintiff's Eighth Amendment conditions of confinement claims arising out of the failure to distribute cleaning supplies asserted against Defendant Whittmen, but grant the Motion to Dismiss as to all remaining conditions of confinement claims asserted against Defendants Wetzel, Adams, Whittmen, and Little; and (4) grant the Motion to Dismiss Plaintiff's First Amendment access to courts claim. It is further recommended that the Court grant Plaintiff leave to file a Second Amended Complaint to the extent he can correct the deficiencies identified in this Report and Recommendation.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections within fourteen days, or seventeen days for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. 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 days thereafter in accordance with Local Civil Rule 72.D.2.