Opinion
Case No. 2:19-cv-1207
04-20-2020
JOHN DALE PREACHER, Plaintiff v. CORRECT CARE SERVICES et al., Defendants
CATHY BISSOON UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION O ON DEFENDANT SANTOS' MOTION TO DISMISS [ECF NO. 75] I. Recommendation
It is respectfully recommended that Defendant Arthur Santos' Motion to Dismiss [ECF No. 75] be GRANTED and that Plaintiff's due process claim against Santos be dismissed, without prejudice, and Plaintiff's Eighth Amendment deliberate indifference claim against Santos be dismissed with prejudice. II. Introduction
Plaintiff John Dale Preacher (Preacher), a prisoner in the custody of the Pennsylvania Department of Corrections, acting pro se, commenced this civil rights action on September 20, 2019, by filing a motion for in forma pauperis status and a three hundred ninety-seven-page Complaint against one institutional defendant, Correct Care Services, and thirty individual defendants who work for the Pennsylvania Department of Corrections or Correct Care Services. Preacher's Complaint asserts claims pursuant to 42 U.S.C. §1983 for violations of Preacher's rights under the First, Eighth, and Fourteenth Amendments as well as claims under Pennsylvania state law. See ECF No. 1; ECF No. 5. One defendant, Dr. Arthur Santos (Santos), has moved to dismiss all claims against him. ECF No. 75. In response, Preacher has filed a "motion in opposition," a brief in support of that motion, and a supplemental brief in opposition. See ECF No. 82; ECF No. 83; ECF No. 85. Santos has filed a response to Preacher's motion and a reply brief. See ECF No. 84; ECF No. 86. Santos' motion has been fully briefed and is ready for disposition. III. Legal Standards
The following defendants were listed in the caption of Preacher's Complaint: Correct Care Services, Brian Hyde, Dr. Kaufnan, Dr. Kross, Joey Spicher, C.O. Palauzzo, Dan Caro, Eric Tice, John Wetzel, Robert Gilmore, Michael Zaken, Wallace Leggett, Deputy Wadsworth, Melissa R. Hainsworth, Kevin Turner, C.O. Dowd, Hearing Examiner Wiggins, Allen Joseph, Major Buzas, Sgt. Gagnon, Anthony Gumarevic, C.O. W. J. Sanders, Lieutenant Abbott, C.O. Widner, C.O. Kuzma, C.O. Philips, C.O. McDowell, and Captain Brothers. ECF No. 5, p. 5. The caption of the Complaint did not list Santos as a defendant but included allegations, albeit scant, against him in the body of Complaint.
A. Motions to Dismiss
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). In deciding a motion to dismiss, the court is not opining on whether a plaintiff is likely to prevail on the merits; instead, 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, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (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, 127 S. Ct. 1955 (rejecting the traditional Rule 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. 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, 127 S. Ct. 1955. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L.Ed.2d 209 (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, 127 S. Ct. 1955. 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 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, 129 S. Ct. 1937.
B. Pro Se Pleadings
For purposes of a motion to dismiss, a court must employ less stringent standards in considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). 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. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must "apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution."). Despite 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, 1202 (10th Cir. 1996). Finally, the United States Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a District Court is dismissing a claim pursuant to Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would be inequitable or futile." 515 F.3d 224, 245 (3d Cir. 2008).
With these standards in mind, the Court turns to a review of Preacher's claims against Santos. IV. The Complaint
Although the caption of Preacher's Complaint does not list Santos as a defendant, the body of the Complaint identifies him as "the physician employed at SCI-Greene" and recites that "[h]e is sued in his official and individual capacities." ECF No. 5, ¶ 17. The Complaint includes a single factual allegation against Santos: "After meeting with Dr. Mohatta a psychotropic medication by (sic) Dr. Santos without Plaintiff's knowledge prescribed 'Cymbalta' in violation of Due Process of Law no DC-500 sick-calls were submitted for the psychotropic medication." Id. at ¶ 30, p. 14. Other than the foregoing reference to "due process," the Complaint does not assert any cause of action against Santos. (Id. at pp. 61-220). The Complaint also does not include a prayer for relief against Santos. Id. at p. 221. VI. Discussion
Several of the paragraphs of the Complaint are out of sequence. For ease of reference, the Court has included the ECF system-generated page number where needed.
A list of the causes of action asserted in the Complaint is appended to this Report and Recommendation.
A. The Complaint fails to state a due process claim against Santos.
Before discussing the substance of the claim against Santos, it is necessary to address a procedural issue. Santos correctly points out that Preacher's Complaint fails to comply with Federal Rule of Civil Procedure 10(a)'s requirement that the caption of a complaint name all parties to the action. Fed. R. Civ. P. 10(a). However, "a defective caption is not fatal when the court can ascertain the proper party from the body of the complaint." Murphy v. Mid E. Oil Co., 2007 WL 527715, at *8 (W.D. Pa. Feb. 14, 2007) (citations omitted). Indeed, the purpose of Rule 10(a) is "to clearly identify for the Court and the public the parties to an action and to provide clear notice to recipients of the complaint of their role, if any, in the action." Id. (quoting Thompson v. Kramer, 1994 WL 702927, *11 (E.D. Pa., Dec.13, 1994)). Here, the Complaint sufficiently identifies Santos as a defendant, despite the absence of his name in the caption. See ECF No. 5, ¶ 17. Accordingly, the Court should not dismiss the claim against Santos based solely on Preacher's failure to name him in the caption of his Complaint. See, e.g., Sloan v. Chambers, 2016 WL 4245550, at *14 (M.D. Pa. Aug. 11, 2016). As discussed below, however, the claim against Santos nevertheless should be dismissed based on its failure to allege facts to support recovery under a due process or other theory of liability.
The Complaint's only factual allegation against Santos is that he prescribed Cymbalta without Preacher's knowledge and without any DC-500 sick-calls for psychotropic medications having been submitted. ECF No. 5, ¶ 30, p. 14. The Complaint asserts that Santos' actions violated his due process rights. Giving Preacher every benefit of the doubt based on his pro se status, the most reasonable interpretation of Preacher's claim is one asserting a violation of his liberty interest in freedom from unwanted administration of antipsychotic drugs. See Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 108 L. Ed.2d 178 (1990). Unfortunately, neither Santos nor Preacher have meaningfully addressed this issue in their submissions to the Court. Indeed, as to the claim against Santos, Preacher's Complaint falls far short of Rule 8's modest requirement that it include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This pleading deficiency is the thrust of Santos' motion and likely explanation for his failure to address the substance of Preacher's due process claim. Although the undersigned agrees that Preacher's Complaint fails to allege facts "to raise a right to relief [against Santos] above the speculative level," Twombly, 550 U.S. at 556, his pro se status warrants a discussion of the theory of liability potentially implicated by his allegations.
The Complaint's reference to "DC-500 sick-calls" is apparently to the DC-500 form approved by the Pennsylvania Department of Corrections for an inmate to use to request medical attention. See https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/13.02.01%20Access%20to%20Health%20Care.pdf.
In Harper, the Supreme Court addressed the constitutionality of a policy established by the Washington Department of Corrections regarding the involuntary treatment of inmates with serious mental disorders. See Harper, 494 U.S. at 222. The policy authorized the Department of Corrections, upon a psychiatrist's determination that an inmate should be treated with antipsychotic drugs, to subject that inmate to involuntary administration of such drugs without consent only if the inmate (1) suffers from a "mental disorder" and (2) is "gravely disabled" or poses a "likelihood of serious harm" to himself, others, or their property. An inmate who refused to take the medication voluntarily was entided to a hearing before a special committee consisting of a psychiatrist, a psychologist, and the associate superintendent of the corrections center, none of whom were permitted to be, at the time of the hearing, involved in the inmate's treatment or diagnosis. If the committee determined by a majority vote that the inmate suffers from a mental disorder and is gravely disabled or dangerous, the policy permitted the inmate to be medicated against his will, provided the psychiatrist was in the majority. Harper, 494 U.S. at 215. Procedures under the policy entitled the inmate to notice of the hearing, the right to attend, present evidence, and cross-examine witnesses, the right to representation by a disinterested lay adviser versed in the psychological issues, the right to appeal to the correction center's superintendent, and the right to periodic review of any involuntary medication ordered. In addition, state law provided him the right to state-court review of the committee's decision. Id.
Harper argued that he had a liberty interest in being free from state administered antipsychotic drugs and that the state could override that interest only if he consented to such treatment or if he were found to be incompetent. The Court agreed that involuntary administration of drugs implicated a liberty interest protected under the Fourteenth Amendment but noted that the extent of a prisoner's right to avoid the unwanted administration of antipsychotic drugs must be defined in the context of the inmate's confinement. Harper, 494 U.S. at 222. The Court went on to find that the policy, which required that the medication first be approved by a psychiatrist and then approved by a reviewing committee ensured that the treatment in question would be ordered only when it was in the prisoner's medical interests given the legitimate needs of the institution. Thus, the Court held that the policy met the substantive standards of the Due Process Clause. Id.
Next, the Court applied the balancing factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) to determine whether the procedures under the policy satisfied the procedural protections of the Due Process Clause. In holding that they did, the Court noted that the policy required that the decision to involuntarily medicate an inmate be made by a hearing committee composed of a psychiatrist, a psychologist, and the correction center's associate superintendent and that none of the committee members could be involved in the inmate's treatment or diagnosis at the time of the hearing. The Court further noted that the committee's decision was subject to review by the superintendent and the inmate could seek judicial review of the decision in state court. Harper, 494 U.S. at 229. See also, Riggins v. Nevada, 504 U.S. 127, 134, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (addressing due process rights of criminal defendant with respect to forced administration of an antipsychotic drug to make him competent to stand trial); Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (allowing the forcible medication of an inmate "solely for trial competence purposes" in certain "rare" instances where the government demonstrated specific facts and circumstances); United States v. Grape, 549 F.3d 591, 598-599 (3d Cir.2008) (citing United States v. Gomes, 387 F.3d 157, 159 (2d Cir.2004) (requiring the government to meet the "clear and convincing evidence" standard previously articulated in Riggins when applying certain factors identified in Sell).
Applying the foregoing principles to Preacher's claim against Santos is difficult due to the Complaint's dearth of factual allegations. Preacher appears to allege that he did not know that Santos had prescribed Cymbalta for him. Thus, the Complaint plausibly infers that Santos did not confer with Preacher before prescribing the drug and that he therefore could not have consented to the prescription. The Complaint, however, supports nothing more. Most significant is the absence of any allegation that Santos personally participated in any actionable conduct. The allegation that Santos "prescribed" Cymbalta without his consent, standing alone, does not cross any constitutional lines. Harper and its progeny impose due process restrictions on the involuntary or forced administration of drugs to individuals in the custody of the state. See Harper, at 221 (inmate has a "significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment."). Here, the Complaint supports only that Santos prescribed a certain medication for Preacher. Nothing in the Complaint supports an inference that Santos forced or assisted others in forcing Preacher to take Cymbalta. See Riley v. Butts, 2016 WL 7405623, *3 (S.D. Ind. Dec. 22, 2016) (plaintiff's allegations dismissed for failure to allege he had been forced to take unwanted drugs). Compare, e.g., Brandt v. Feibusch, 2011 WL 1256631, at *10 (D.N.J. Mar. 29, 2011) ("Plaintiff's claim that Nurse I and Nurse II forcibly medicated him with antipsychotic drugs... without consulting with a psychiatrist and for their own convenience, is sufficient to avoid dismissal at this preliminary stage of the proceeding."); Knowles v. Napa State Hospital, 2019 WL 1440911, *1 (N.D. Cal. Apr. 1, 2019) (plaintiff alleges he does not suffer from mental illness and was forced to take psychotropic drugs); Taylor v. McDonald, 2018 WL 10501648, *1 (N.D. Tex. Sept. 4, 2018) (plaintiff brought claim of forced psychotropic medications).
In order to advance a § 1983 claim against an individual, an inmate must show, via the Complaint's allegations, that the defendant was personally involved in the events or occurrences that underlie the claim. Rizzo v. Goode, 423 U.S. 362, 375, 96 S. Ct. 598, 606, 46 L. Ed. 2d 561 (1976); Zerbe v. Karnes, 2008 WL 220414 at *4 (M.D. Pa. Jan. 25, 2008). Personal involvement can be shown through allegations of personal direction or actual knowledge and acquiescence. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Allegations of participation or acquiescence, however, must be made with appropriate particularity. Davis v. Samuels, 608 F. App'x 46, 49 (3d Cir. 2015) (affirming dismissal because prisoner "made no attempt to allege particular facts leading to the conclusion that [defendant] personally knew of or acquiesced in any of the challenged conduct of subordinates"); Arroyo v. Li, 2014 WL 4294506, at *3 (M.D. Pa. Aug. 28, 2014) (explaining that each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrence that underlie a claim).
In addition to its failure to allege any conduct on the part of Santos beyond his prescribing Cymbalta, the Complaint also does not allege that Santos took the drug. Further, the Complaint includes no information concerning the condition for which Cymbalta was prescribed and is vague regarding the nature of the drug itself, although Preacher does indicate that be believes it to be a "psychotropic" drug.
The Court may take judicial notice of certain background facts pursuant to F.R.E. 201(b)(2) where they are "not subject to reasonable dispute [and are] capable of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned." See, e.g., Rankins v. Washington, 2017 WL 4364060, at *3 (W.D. Mich. Sep. 29, 2017) (taking judicial notice of facts presented on the Mayo Clinic's website). For example, the Court may take judicial notice that Cymbalta is a brand name for duloxetine, a drug "used to treat depression and anxiety" as well as "pain caused by nerve damage associated with diabetes (diabetic peripheral neuropathy)" and "fibromyalgia (muscle pain and stiffness) and chronic (long-lasting) pain that is related to muscles and bones." See https://www.m ayoclinic.org/drugs-supplements/duloxetine-oral-route/side-effects/drg-20067247?p=1. Duloxetine belongs to a group of medicines known as selective serotonin and norepinephrine reuptake inhibitors (SSNRIs). Id. These medicines are thought to work by increasing the activity of chemicals called serotonin and norepinephrine in the brain. Id.
In sum, Preacher's Complaint falls far short of alleging a viable due process claim against Santos. Because it is possible that Preacher may be able to amend to cure the deficiencies of his due process claim against Santos, however, it is recommended that the Court dismiss this claim without prejudice and with leave to file an amended complaint.
b. The Complaint fails to state an Eighth Amendment claim against Santos.
The Court could also construe Preacher's Complaint as attempting to state an Eighth Amendment deliberate indifference claim against Santos. Construed as such, Preacher's Complaint must show "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003); see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A prison official acts with deliberate indifference to an inmate's serious medical needs when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). While Preacher alleges that Santos prescribed him medication without his knowledge, he does not allege that Santos denied him necessary medical care or that he suffered any harm as a result any acts or omissions by Santos. Accordingly, to the extent Preacher's Complaint can be construed as asserting an Eighth Amendment claim against Santos, the Court should dismiss this claim based upon the absence of allegations to support any of its elements. Further, because any attempt to amend this claim would be futile, it is recommended that it be dismissed with prejudice.
The Supreme Court has instructed federal courts to, whenever possible, analyze constitutional claims using an "explicit textual source of constitutional protection," such as the Eighth Amendment, rather than "the more generalized notion of 'substantive due process'" under the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989). See also Washington v. Hanshaw, 552 Fed. Appx. 169, 178 (3d Cir. 2014); Talley v. Wetzel, 2018 WL 6198364, *4 (W.D. Pa. Nov. 28, 2018). Forceable administration of medication to a prisoner may also give rise to a viable Eighth Amendment "cruel and unusual punishment" claim when it is done for penological purposes. See, e.g., Knecht v. Gillman, 488 F.2d 1136, 1139 (8th Cir. 1973). Preacher did not, however, allege that Santos medicated him as a form of punishment. See, e.g., Wilkerson v. Peters, 2019 WL 4246686, at *3 (D. Or. Sept. 6, 2019).
Regarding futility, Preacher acknowledged at the hearing on his motion for preliminary injunction that his claim against Santos is limited to his prescribing of Cymbalta without his knowledge:
The Court: Let me ask the broader question since we're here on the record. Are you asserting any claim for deliberate indifference or other actionable conduct against Dr. Santos or is he simply part of the narrative in this case, the background, Mr. Preacher?ECF No. 56, p. 33. When asked by the Court whether he is claiming that the prescription of Cymbalta caused him any harm, Preacher answered "... in all actuality, no sir, it didn't cause harm." Id. The Court followed up:
Preacher: With respect to Dr. Santos, it was prescribed at Cymbalta without my knowledge, I'm going to say without my knowledge, medicine prescribed. I didn't understand what it was prescribed for. He never told me he was going to prescribe it. But with respect to this motion, no, sir.
The Court: Listen to me carefully. Are you alleging anything against Dr. Santos other than that he prescribed Cymbalta for you without your knowledge?
Preacher: Yes.Id. at pp. 33-34.
The Court: What else are you alleging against Dr. Santos?
Preacher: That's basically it, Your Honor. That's the only — the Cymbalta.
The Court: That's it? Again, I just want to make sure it's clear on the record, that's the extent of your allegation claim against Dr. Santos, is that he prescribed Cymbalta without your knowledge back in 2017?
Preacher: Yes, sir.
By Preacher's own admission then, he suffered no harm or damage as a result of Santos' prescription of Cymbalta. To plead a violation of the Eighth Amendment, a prisoner needs to "allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed.2d 251 (1976) (emphasis added). Preacher has unambiguously disclaimed that he suffered harm. Accordingly, it appears that any amendment to his Eighth Amendment claim against Santos would be futile. See, e.g., Williams v. Lanigan, 2018 WL 5630762 (D.N.J. Oct 29, 2018). VII. Conclusion
In light of the foregoing, it is respectfully recommended that Defendant Santos' Motion to Dismiss [ECF No. 75] be GRANTED. It is further recommended that Preacher's Eighth Amendment claim against him be dismissed with prejudice. As to Preacher's due process claim, however, it is recommended that dismissal be without prejudice and with leave to file an amended complaint limited to this claim. VIII. Notice to Parties
In support of his motion, Santos attached several exhibits to his briefs. The undersigned did not consider or rely upon these exhibits for this Report and Recommendation. Further, the undersigned considered Preacher's testimony at the preliminary injunction hearing solely for purposes of assessing whether amendment of his Eighth Amendment claim would be futile. Accordingly, it is not recommended that Santos' motion be converted to one for summary judgment based upon his submission of materials outside of the Complaint.
The parties are referred to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72(C)(2) for the appropriate procedure if any party desires to file objections to these findings and recommendations. Objections must be in writing and must be filed within fourteen days of this date. Failure to file timely objections may constitute a waiver of appellate rights. Angle v. Murin, 2013 WL 5888272, *1 (W.D. Pa. Oct. 31, 2013).
Entered this 20th day of April, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge
Appendix A.
Count Number Statement of Claim Raised against Defendant(s) ECF No. 5 at paragraphs __________ I Excessive force Palauzzo 122-130 II Negligent handling of Commonwealth property Palauzzo 131-139 III First Amendment Retaliation Palauzzo 140-151 IV Deliberate indifference to serious medical need Kaufnan 152-162 V Delayed treatment for non-medical need Hyde 163-187 VI Deliberate indifference to serious medical need Hyde 188-193 VII Retaliation for protected conduct Hyde 194-206 VIII Deliberate indifference to serious medical need Caro 207-217 IX First Amendment retaliation Caro 218-231 X Due Process violations Caro 232-243 XI Deliberate indifference to serious medical need Tice 244-252 XII First Amendment retaliation Tice 253-257 XIII Due Process violations Tice 258-266 XIV Denial of adequate medical care Kaufnan 267-274 XV Eighth Amendment denial of medical care Hyde 275-280 XVI Deliberate indifference to serious medical need Hainsworth 281-287 XVII First Amendment retaliation Hainsworth 288-290 XVIII Conditions of confinement Hainsworth 291-302 XIX Failure to protect Hainsworth 303-314 XX Deliberate indifference to serious medical need Pa. Contracted Medical Provider and its Agents or Employees 315-338 XXI Negligence Pa. Contracted Medical Provider and its Agents 339-362 XXII First Amendment retaliation Pa. Contracted Medical Provider and its Agents 363-373 XXIII Deliberate indifference to serious medical need Turner 374-381 XXIV Failure to protect Turner 382-390 XXV First Amendment retaliation Turner 391-411 XXVI First Amendment retaliation Turner 412-419 15 Count Number Statement of Claim Raised against Defendant(s) ECF No. 5 at paragraphs __________ XXVII Failure to protect Abbott 420-430 XXVIII First Amendment retaliation Abbott 431-436 XXIX Deliberate indifference to serious medical need Spicher 437-441 XXX Failure to protect Brothers 442-451 XXXI Failure to intervene Brothers 452-458 XXXII Deliberate indifference to serious medical need Wadsworth 459-464 XXXIII Failure to protect Wadsworth 465-471 XXXIV First Amendment retaliation Wadsworth 472-478 XXXV Cruel & unusual punishment, sexual harassment, conditions of confinement/assault Dowd 479-486 XXXVI First Amendment retaliation Dowd 487-492 XXXVII Due process, cruel & unusual punishment, conditions of confinement, sexual assault, harassment Wiggins 493-525 XXXVIII Conspiracy to violate civil rights Zaken, Caro, Leggett, Stella, Hainsworth, McClelland, Brothers 526-533 XXXIX First Amendment retaliation Joseph 534-541 XL Negligent infliction of emotional distress Hyde, Kaufnan, Spicher, Palauzzo, Dowd, Wiggins XLI Assault and battery Palauzzo 542-548 XLII Due process (14th Amendment) violation Wetzel 548 (sic) - 562 XLIII Denial of adequate medical care Correct Care 549 (sic) - 556 XLIV Conditions of confinement/Sexual harassment/Retaliation Saunders 557-571 XLV First Amendment retaliation/Failure to Protect Gagnon 572-587 XLVI Failure to Protect Howells 588-597 XLVII Excessive Force/First Amendment retaliation McConnell 598-609 XLVIII Conspiracy to violate civil rights Caro, Tice, Turner, Wetzel 610-617 XLVIX Denial of adequate medical care Kross 618-624 L Delayed treatment for non-medical care Kross 625-635 LI Deliberate indifference to serious medical need Kross 636-634 (sic) LII First Amendment retaliation Kross 641-647 16 Count Number Statement of Claim Raised against Defendant(s) ECF No. 5 at paragraphs __________ LIII Due Process (5th and 14th) Gilmore 648-658 LIV First Amendment retaliation Kuzma 659-670 LV Failure to Intervene/Act Phillips 671-680 LVI Assault & Battery, Negligent Handling of Commonwealth Property McConnell 681-696 LVII Failure to act to prevent negligent handling of Commonwealth property Widmer 697-706 LVIII First Amendment retaliation Widmer 707-713 LVIX Conspiracy to violate civil rights Gumbarevic, Hyde, Saunders, Gagnon, McConnell, Widmer, Kuzma, Phillips 714-724 LX First Amendment retaliation Gumbarevic 725-734 LXI Failure to protect Gumbarevic 735-746 LXII First Amendment retaliation Gumbarevic 747-755 LXIII Failure to Protect/Act Gilmore 756-766 LXIV Failure to Protect/Act Leggett 767-776 LXV Failure to Protect/Act Buzas 777-786 LXVI Failure to Protect/Act Wetzel 787-797 LXVII First Amendment retaliation Leggett 798-805 LXVIII Sexual harassment/Abuse Wiggins 806-814 LXIX Negligent infliction of emotional distress Wiggins 815-821 LXX Failure to Act/Protect Zaken 822-831 LXXI Failure to Protect Trout 832-846 LXXII Failure to Protect Phillips 847-856 LXXIII First Amendment retaliation Leggett 857-865 LXXIV First Amendment retaliation Zaken 866-875 LXXV Delayed medical treatment for nonmedical reasons Correct Care 876-891 LXXVI First Amendment retaliation Prokop 892-898 LXXVII Failure to Act/Protect Prokop 899-907- LXXVIII Intentional refusal to provide prescribed medical treatment Correct Care 908-920