Opinion
Case No. 1:19-cv-90 Erie
02-06-2020
TERRENCE SELDON, Plaintiff v. JOHN E. WETZEL, et al., Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS [ECF Nos. 29, 43] MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. Recommendation
It is respectfully recommended that the partial motions to dismiss filed by the Corrections Defendants [ECF No. 43] and the Medical Defendants [ECF No. 29] each be granted. II. Report
A. Procedural Background
Plaintiff Terrence Seldon, acting pro se, initiated this civil rights action pursuant to 42 U.S.C. § 1983 by filing a motion for leave to proceed in forma pauperis on March 29, 2019. ECF No. 1. The Court granted Seldon's motion and docketed his complaint on April 2, 2019. In his complaint, Seldon, a prisoner currently incarcerated at the State Correctional Institution at Forest (SCI-Forest), contends that prison officials violated his civil rights as secured by the Eighth Amendment to the United States Constitution by: (1) exposing him to environmental tobacco smoke ("ETS") with deliberate indifference to his health; and (2) failing to provide him with adequate medical treatment for his asthma. Seldon has named a host of state and SCI- Forest prison officials and employees as Defendants in this action, including: John Wetzel, the Secretary of Corrections for the Pennsylvania Department of Corrections (DOC); Michael D. Overmyer, Superintendent of SCI-Forest; Derek Oberlander, Deputy Superintendent at SCI-Forest; Joseph J. Silva, Director of the Bureau of Health Care Services; Dr. Robert Maxa, Medical Director at SCI-Forest; Corrections Health Care Administrator Kim Smith; Health Services Administrator Lisa Lemoreaux; Dr. Sutherland; Nurse Jamie Ferdarko; Unit Managers Miller and Lee; and Correctional Officers Milly and Mahany. ECF No. 3 ¶¶ 4-16. Plaintiff seeks monetary and injunctive relief pursuant to 42 U.S.C. § 1983.
The Court has jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
Presently pending before the Court are partial motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Lemoreaux, Maxa and Sutherland (collectively, the "Medical Defendants") [ECF No. 29], and by Defendants Ferdarko, Lee, Mahany, Miller, Milly, Oberlander, Overmyer, Silva, Smith and Wetzel (collectively, the "Corrections Defendants") [ECF No. 43]. Seldon has responded to each motion. See ECF Nos. 34, 47, 48. This matter is ripe for disposition.
B. Factual Background
Seldon's claims arise entirely from his exposure to ETS while incarcerated at SCI-Forest. At all relevant times, Seldon, an asthma sufferer, had z-code (single cell) status "because he did not get along with cellmates, and he did not smoke." ECF No. 2 ¶ 19. Upon transferring to SCI-Forest, however, the DOC placed Seldon in a cell with a smoker. Id. ¶¶ 22-23. Seldon filed medical sick call requests on five occasions between February 27, 2017, and March 10, 2018, complaining of asthma and breathing problems due to ETC. Id. ¶¶ 23-27. Medical staff ignored each of his sick call requests. Id.
On or about June 15, 2017, Seldon passed Dr. Sutherland in the hall and "told him about his asthma acting up whenever the use of tobacco smoke is around." Id. ¶ 25. Dr. Sutherland ignored him. Id. ¶ 32.
Between March 30 and December 4, 2017, Seldon sent five separate requests to be housed with a particular inmate who did not smoke. Id. ¶ 39. Milly, Miller, Best, Mahany and Lee denied his requests. Id.
On April 25, 2018, Seldon sent inmate request forms to Miller, Smith, and Oberlander complaining of smoking in cells. Id. ¶ 29. Miller told Seldon to write to medical. Id. Smith advised him that SCI-Forest "allows smoking, and she's unable to do anything about that [but] the housing units are designated as smoke free." Id. ¶ 30. Oberlander replied that SCI-Forest "is a smoke free facility in all buildings." Id. ¶ 31.
At some point between "May and July of 2018," Milly and another officer placed "inmate Diaz," a smoker, in Seldon's cell. Id. ¶ 40. Milly told Seldon to accept Diaz as a cellmate or go the Restricted Housing Unit (RHU). Id.
Throughout 2018, Seldon sought medical treatment from Smith, Maxa, Lamoreaux and Sutherland for his asthma. Id. ¶¶ 34, 47-52. Seldon's requests for treatment were ignored. Id. Seldon also made several unsuccessful attempts to obtain a transfer to a non-smoking institution. Id. ¶¶ 32, 35, 45-48, 55.
C. Standards of Review
1. Pro se Litigants
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (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); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Dep't of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, 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). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
2. Motion 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 the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (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. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). 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.
D. Analysis
In their motion to dismiss, the Corrections Defendants maintain that: (1) the doctrine of sovereign immunity insulates them for liability for monetary claims against them in their official capacities; (2) Seldon has failed to plead the personal involvement of several of the Corrections Defendants with sufficient particularity; and (3) Seldon cannot sustain a claim for deliberate indifference to his medical needs against the Corrections Defendants because he was under the care of medical staff at SCI-Forest at all relevant times. The Medical Defendants contend that: (1) Lamoreaux should be dismissed from this action for lack of personal involvement and failure to state a claim; and (2) Seldon's Fourteenth Amendment due process claim, to the extent that one is asserted, must be dismissed for failure to state a claim. Each of these arguments will be addressed in turn.
1. Official Capacity Claims
Seldon has sued each of the named Defendants in his or her official capacity. ECF No. 7 ¶¶ 3-17. However, it is well-settled that "the Eleventh Amendment proscribes actions in the federal courts against states, their agencies, and state officials acting within their official capacities." See, e.g., O'Donnell v. Pennsylvania Dept. of Corrections, 790 F.Supp.2d 289, 305 (M.D. Pa. 2011) (citing Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996)). "Because the Pennsylvania DOC is a part of the executive department of the Commonwealth of Pennsylvania, its employees share in the Commonwealth's Eleventh Amendment immunity to the extent that they were sued in their official capacities." Johnson v. Wenerowicz, 440 Fed. Appx. 60, 62 (3d Cir. 2011). Consequently, the Corrections Defendants - each of whom is an official, officer, or employee of the Commonwealth of Pennsylvania - are entitled to immunity from any monetary claims against them in their official capacities.
Unlike claims for monetary damages, Eleventh Amendment immunity does not apply to claims for injunctive relief against state officials to enjoin conduct alleged to be an ongoing violation of federal law or the Constitution. Defendants have not addressed Seldon's claims for injunctive relief against them in their official capacities.
2. Personal Involvement
In a Section 1983 action, "a plaintiff must show that each and every defendant was 'personal[ly] involve[d]' in depriving him of his rights." Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). Where the defendants are supervising prison officials, liability "cannot be predicated solely on the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Nor is "the filing of a grievance . . . sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct." Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Jefferson v. Wolfe, 2006 WL 1947721, at *17 (W.D. Pa. July 11, 2006) (allegation that a prison official denied a grievance was insufficient to establish personal involvement); Watkins v. Horn, 1997 WL 566080, at *4 (E.D. Pa. Sept. 5, 1997) (concurrence in an administrative appeal process is not sufficient to establish personal involvement). Rather, a supervisor-defendant may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm; or (2) participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
Here, Seldon's allegations against Wetzel, Overmyer, Oberlander, Silva, Smith, and Ferdarko are based entirely on their responses to inmate grievances, administrative appeals, or other communications. Courts have routinely dismissed civil rights allegations against prison officials whose only knowledge of the alleged violation stemmed from their participation in the grievance process. See, e.g., Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (dismissing claims against senior prison officials because the only allegations against them arose in the context of their participation in an administrative appeal process); Mearin, 951 F.Supp. 2d at 782 (same); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) ("If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official."). The claims against Wetzel, Overmyer, Oberlander, Silva, Smith and Ferdarko should be dismissed and each of those Defendants should be terminated from this action on this basis.
3. Deliberate indifference by non-medical Defendants
Seldon's assertion that he received inadequate medical treatment for his asthma appears to be directed at both the Medical and Corrections Defendants. As courts have frequently noted, however, non-medical prison officials cannot be "considered 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." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (quoting Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993)). This is because, "[a]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official will not be chargeable with the Eighth Amendment scienter requirement or deliberate indifference." Id. Thus, "[i]f a prisoner is under the care of medical experts, a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands" absent "a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner." Id.
In the instant case, Seldon acknowledges in his complaint that he sought and occasionally received treatment from the medical staff at SCI-Forest. To the extent that this treatment was inadequate or that medical personnel completely refused to treat him, Seldon has asserted a facially viable deliberate indifference claim against those medical defendants. He cannot, however, maintain such a claim against non-medical personnel in the absence of facts suggesting "knowledge of 'malicious' and 'sadistic' medical mistreatment." Henderson v. Bussanich, 2006 WL 3761998, at *1 (M.D. Pa June 20, 2006). See also, e.g., Pearson v. Prison Health Serv., 850 F.3d 526, 543 (3d Cir. 2017) (non-medical staff was not deliberately indifferent "for failing to second-guess the medical staff's appraisal of the situation"); In re Wetzel, 2016 WL 4945315, at *3 (W.D. Pa. Sep. 16, 2016) (rejecting a claim of deliberate indifference against a non-medical defendant because the plaintiff acknowledged that he had received treatment from prison physicians). Since no such facts are presented, Seldon's deliberate indifference claim against the Corrections Defendants must be dismissed.
The same is true of Lamoreaux, a Health Services Administrator at SCI-Forest. Because an HSA does not provide clinical care, a "Health Services Administrator . . . is not deliberately indifferent if she failed to respond to Plaintiff's medical complaints while he was under the care of medical professionals." Josey v. Beard, 2009 WL 1858250, at *23 (W.D. Pa. June 29, 2009) (citing Spruill, 37 F.3d at 256).
4. Due Process
Finally, in the section of his complaint in which he lists his legal claims, Seldon makes a passing reference to a "due process violation." ECF No. 3 ¶ 68. Seldon has not articulated any facts to support such a claim. Moreover, to the extent that Plaintiff is attempting to attack the adequacy of his medical care under both the Eighth and Fourteenth amendments, the Fourteenth Amendment claim must be dismissed pursuant to the more-specific-provision rule.
As explained by the United States Supreme Court in United States v. Lanier, the more-specific-provision rule provides that, "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." 520 U.S. 259, 272 n.7 (1997). See also Albright v. Oliver, 510 U.S. 266, 273 (1994) ("Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims."). Pursuant to this principle, allegations of inadequate medical care in the prison context must be analyzed "under the more specific Eighth Amendment standards set forth in Estelle v. Gamble, 429 U.S. 97, 104 (1976)," rather than the more general standards applicable to Fourteenth Amendment claims. Classen v. Nutter, 2017 WL 6017341, at *7 (E.D. Pa. Dec. 4, 2017). Because Seldon's due process claim is based on the same conduct underlying his Eighth Amendment claims, the due process claim must be dismissed. See, e.g., Davis v. Pennsylvania Dept. of Corr., 2016 WL 1072911, at *7 (W.D. Pa. Mar. 18, 2016) (dismissing substantive due process claims regarding plaintiff's medical care because such claims "are more appropriately analyzed under the more specific Eighth Amendment provision than under the more general and open-ended standard of substantive due process"). III. Conclusion
For the reasons stated herein, it is respectfully recommended that the partial motions to dismiss filed by the Corrections Defendants [ECF No. 43] and the Medical Defendants [ECF No. 29] each be granted. The following claims should be dismissed, with prejudice:
1) Seldon's claims for monetary damages against the Corrections Defendants in their official capacities;
2) Seldon's claims against Wetzel, Overmyer, Oberlander, Silva, Smith, Ferdarko and Lamoreaux for lack of personal involvement;
3) Seldon's medical indifference claims against the Corrections Defendants; and
4) Seldon's due process claim.
It is further recommended that Wetzel, Overmyer, Oberlander, Silva, Smith, Ferdarko and Lamoreaux each be dismissed from this action, with prejudice, for lack of personal involvement in the deprivation of a constitutional right.
The following claims were not challenged in Defendants' motions to dismiss and should be permitted to proceed to discovery:
1) Seldon's failure to protect claim against Miller, Milly, Mahany, and Lee; andIV. Notice
2) Seldon's deliberate indifference claim against Maxa and Sutherland.
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: February 6, 2020