Opinion
2:20-CV-00794-SPB-RAL
02-02-2023
CHARLES WILLIAMS, Plaintiff v. THE PA. DEPT. OF CORRECTIONS, JOHN WETZEL, J. S. JOHNSON, MARK CAPOZZA, DEPUTY SUPT. NICKELSON, DEPUTY SUPT. ERIC ARMEL, DEBRA HAWKINBERRY, RHONDA HOUSE, SHELLEY MANKEY, JOSEPH TREMPUS, CAPT. TIFT, LT. FISHER, LT. WOODS, MR. BYERS, MR. RIDDLE, MS. NAGY, MR. KNEPPER, MR. ERICKSON, CARRIE HAWKLUSTER, C.O. 1 MINNIE, C.O.1 BAGAN, NEDRA RICE, DR. BYUNGHAK JIN, MR. CASPER, MS. KACZMARK, MS. GIBSON, MS. BROWN, MS. SCHWARTZ, C.O.1 FETSKO, SGT. KOWALL, Defendants
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT ECF NOS. 95,99
RICHARD A. LANZILLO, Chief United States Magistrate Judge
I. Recommendation
Two motions to dismiss Plaintiff Charles Williams' second amended complaint are pending before the Court-one on behalf of twenty-eight current or former employees of the Pennsylvania Department of Corrections (“DOC Defendants”) and the other on behalf of Dr. Byunghak Jin (“Dr. Jin”). ECF Nos. 95, 99. Both motions have been referred to the undersigned for Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1). It is respectfully recommended that the DOC Defendants' motion be GRANTED in part and DENIED in part and that Dr. Jin's motion be GRANTED.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343.
II. Report
A. Introduction and Procedural History
Plaintiff Charles Williams, an inmate currently incarcerated at the State Correctional Institution (“SCI”) at Coal Township, initiated this pro se civil rights action by filing a motion for leave to proceed in forma pauperis. ECF 1. His complaint was docketed on April 30, 2021, and asserted claims based on events that occurred during his prior incarceration at SCI-Fayette. See ECF No. 20. Before Defendants responded to the complaint, Williams filed an amended complaint asserting violations of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution, as well as a variety of state law claims. See ECF No. 33. Williams' amended complaint named the Pennsylvania Department of Corrections (DOC), the DOC Defendants, and Dr. Jin, a physician who provided medical services at SCI-Fayette, as Defendants. Dr. Jin moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 41. Thereafter, the DOC Defendants also moved to dismiss the amended complaint. ECF No. 47.
On April 5, 2022, the undersigned issued a Report and Recommendation recommending that both motions to dismiss be granted. ECF No. 81. The Honorable Susan Paradise Baxter subsequently adopted the Report and Recommendation and dismissed all claims against the DOC and all official capacity claims for money damages against each individual Defendant with prejudice, and all remaining claims without prejudice and with leave to file a second amended complaint.. ECF No. 91.
Williams was further advised that any second amended complaint would comply with applicable rules only if it: (1) specified the Defendant(s) against whom each claim is asserted; (2) provided a short and plain statement of the facts in accordance with Rule 8 of the Federal Rules of Civil Procedure; (3) identified what each Defendant did or did not do, including when and for how long, and if the violation of rights is ongoing; (4) explained Plaintiffs actual injuries, other than a simple statement that his civil rights were violated; and (5) stated the relief Plaintiff is seeking.
On July 5, 2022, Williams filed a Second Amended Complaint (SAC)-the operative complaint before the Court-asserting First and Eighth Amendment violations, a civil rights conspiracy claim, a Pennsylvania defamation (libel and slander) claim, and a claim for conduct “unbecoming an officer.” As Defendants, the SAC again named Dr. Jin and the same twentyeight DOC Defendants named in the amended complaint: former DOC Secretary Wetzel; Wetzel's Assistant, Johnson; former SCI-Fayette Superintendent Capozza; former SCI-Fayette Deputy Superintendent and current Superintendent Armel; SCI-Fayette Deputy Superintendent Nickelson; SCI-Fayette Corrections Classification and Program Manager (“CCPM”) Hawkinberry; SCI-Fayette Chief Healthcare Administrator (“CHCA”) Rice; SCI-Fayette Grievance Coordinator House; Major Mankey; Major and current Deputy Superintendent at SCI-Fayette Trempus; Captain Tift; Lieutenant Woods; Lieutenant Fisher; Sergeant Kowall; Unit Manager (“UM”) Byers; UM Riddle; UM Erickson; UM Hawk-Luster; Counselor Nagy; Counselor Knepper; Guard Minnie; Guard Bagan; Guard Fetsko; Kitchen Steward Casper; Kitchen Steward Kaczmark; Psychologist Gibson; Psychologist Brown; Psychologist Schwartz.
Unless otherwise indicated, all DOC Defendants were employed at SCI-Fayette. The Court has utilized the rank, job title, or designation assigned to each DOC Defendant in the SAC. See ECF No 94, ¶ ¶ 4-32.
On July 19, 2022, the DOC Defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the Second Amended Complaint for failure to state a claim. ECF Nos. 95, 96. Thereafter, Dr. Jin also moved to dismiss pursuant to Rule 12(b)(6). ECF Nos. 99, 100. Williams subsequently filed what have been construed as briefs in opposition to the motions, and Dr. Jin filed a reply in response. ECF Nos. 104, 105, 106, 107, 108. Williams then filed what have been construed as supplements to his responsive briefs. ECF Nos. 110, 111.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12 (b)(6) motion to dismiss, 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. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider [s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12 (b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See 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 explained 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. See Twombly, 550 U.S. at 555; 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.”).
Finally, because Plaintiff is proceeding pro se, the allegations in the complaint 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 a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See 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”).
C. Material Facts
The SAC's allegations fall into the following three categories: (1) coal ash and water contamination at SCI-Fayette (see ECF No. 94, ¶¶ 34-147); (2) Coronavirus concerns (see id, ¶¶ 148-168); and (3) alleged retaliatory or otherwise wrongful acts of certain DOC Defendants. The factual allegations of the SAC are accepted as true for purposes of the pending motions to dismiss. See Victor v. Overmyer, 2020 WL 2220541, at *2 (W.D. Pa. Mar. 16, 2020), report and recommendation adopted, 2020 WL 2220128 (W.D. Pa. May 7, 2020) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
1. Coal Ash and Contaminated Water
The events concerning which Williams bases his coal ash and contaminated water-related claims occurred between August 2017 and October 2020. Shortly after being transferred from SCI-Forest to SCI-Fayette in August 2017, Williams was outside in the yard when he observed particles in the air. “The particles flew in [Williams'] eyes, mouth, nose and on his skin,” and caused “[him] and a number of other inmates to cough and gag.” ECF No. 94, ¶¶ 39, 38. “As time moved on the particles (coal ash). .. began to bum [his] eyes and cause [d] him to have a difficult time breathing out of his nose.” Id., ¶ 41. On around August 21,2019, Williams spoke with Knepper about these particles, and Knepper told him the particles were coal ash. Id., ¶ 75.
Williams then submitted a request to staff form to Cappozza, Hawkinberry, Byers, Riddle, Nagy, Rice, “and a number of other individuals” complaining that these particles were making him feel ill. Id., ¶ 42. They responded by “mak[ing] it appear as though [he] was pretending that his eyes and nose were affected by the coal ash.” Id., ¶ 43. He also submitted a sick call slip to “the staff in SCI-Fayette's Medical Dept,” but “[a] number of the individuals who examined [him] tried to cover up the fact that the coal ash ... had an affect on [his] eyes and his nose.” Id., ¶ 44.
Nevertheless, a doctor at SCI-Fayette prescribed Visine eye drops to relieve the burning in his eyes. When these did not work, he was prescribed another medicated eye drop; these also did not alleviate the burning. Williams then purchased a third type of eye drop from the commissary-these also ineffective. Williams' eyes are still burning today.
Williams also informed Capozza, Hawkinberry, Byers, Riddle, Nagy, Rice, Bagan, an SCI-Fayette doctor, “and a number of other individuals about the fact that he was having a difficult time breathing out of his nose after he was exposed to the particles (coal ash) that flew on him while he was in SCI-Fayette's main yard.” Id., ¶ 52. However, he was never prescribed anything to alleviate his breathing troubles, so he decided to buy Saline nasal spray. This spray “helped a little,” but to this day “[he] is still having a difficult time breathing out of his nose.” Id., ¶ 54.
Ten months into his time at SCI-Fayette, he realized that the drinking water “had a foul smell to it and it had a greyish looking color to it that turned brown on a number of occasions.” Id., ¶ 57. Thereafter, he “develop[ed] a foul smell in his mouth,” light and dark spots and light and dark dots on his body, and problems with his throat, teeth, and urinal track. Id., ¶ 58. He also noticed that he had lost “a substantial amount of weight despite the fact that he wasn't doing anything that would cause him to lose weight.” Id., ¶¶ 55. “[Williams] informed the staff about the affect [sic] that the particles [coal ash] was [sic] having on him,” and alleges that “a number of them tried to make it seem as though [he] was imagining that he was getting ill from the coal ash.” Id., ¶ 61.
Dr. Jin examined Williams on or about May 9, 2019. Dr. Jin told Williams that his breathing did not appear problematic, his eyes were red but not infected, and “light spots, dark spots, light dots and dark dots normally appear on everyone after they turn 50 years old.” Id., ¶ 68. Ultimately, Dr. Jin concluded that Williams' symptoms were unrelated to the water and coal ash. Williams contends that this conclusion was “to cover up the fact that the water that the staff at the PA DOC were forcing [him] to drink ... was causing [him] to get ill.” Id., ¶ 63.
Thereafter, Williams wrote a letter to Wetzel “regarding that matter,” and “instead of John Wetzel remedying that matter when he had the opportunity to do so, he had” his assistant “Johnson send [Williams] a response.” Id., ¶ ¶ 70, 71. The SAC does not discuss the contents of this response.
Williams also submitted an inmate request to staff form to Moore, Cappozza, House, Rice, Dr. Jin, Byers, Nagy, Riddle, Bagan, “and a number of other individuals.” Id., ¶ 72. But “none of those individuals remedied that matter” either. Id.
Williams then decided to research whether SCI-Fayette had a history of coal ash and contaminated water. His research uncovered several newspaper articles discussing the adverse effects coal ash and contaminated water had had on SCI-Fayette inmates and residents of the surrounding town, as well as civil complaints filed by town residents and a University of Pennsylvania Law Review article on prisons built upon toxic dumping grounds.
Williams also learned that “the staff at the PA DOC were aware of the fact that SCI-Fayette had a problem with their water supply system” and “that the coal ash that was flying around SCI-Fayette was seeping into the pipes at SCI-Fayette before the staff at the PA DOC decided to transfer [him] to SCI-Fayette in August 2017.” Id., ¶¶ 85, 86. He further learned that “the staff at the PA DOC entered into a contract with the guards' union to supply the guards who work at SCI-Fayette with bottled drinking water.” Id., ¶ 88. Williams notes that “the staff at SCI-Fayette only supplied [him] with bottled drinking water on one (1) occasion.” Id., ¶ 89.
On June 15, 2018, Williams sent a letter to Wetzel and submitted separate inmate request to staff forms to Capozza, House, Byers, Rice, Bagan, and Nagy “about the fact that the particles that flew on him while he was in SCI-Fayette's main yard affected his eyes, nose, and his throat.” Id., ¶¶ 90-98, 102-105. Williams alleges that “instead of [the Defendants] resolving that matter after” receiving the letter and forms, each Defendant “tried to cover up the fact that the coal ash that was flying around SCI-Fayette was affecting [Williams'] eyes, nose and his throat.” Id. On June 18, 2018, Williams “filed a grievance about that matter” and “exhausted his administrative remedies.” Id., ¶¶ 110, 111.
On March 18, 2020, Williams again sent “Wetzel a letter in which he informed John Wetzel about the fact that he was being affected by the coal ash that was flying around SCI-Fayette.” Id., ¶ 112. But “[i]nstead of John Wetzel contacting whoever he needed to contact to get [Williams] an emergency transfer out of SCI-Fayette before his health got worse, John Wetzel forced [him] to remain at SCI-Fayette.” Id., ¶ 113. A few weeks later, Williams sent Wetzel a request to staff form asking him why he did not respond to his March 18th letter. Wetzel did not respond.
Williams sent Wetzel a fifth letter on May 12, 2020, asking “Wetzel a number of questions” and again telling him “about the fact that the coal ash that was flying around SCI-Fayette was causing [him] to get ill.” Id., ¶ 116. Nevertheless, “Wetzel never addressed the questions that the Plaintiff asked him” and “never contacted whoever he needed to contact to get [Williams] an emergency transfer out of SCI-Fayette.” Id., ¶ 117.
On June 3, 2020, Williams submitted an inmate request to staff form to Wetzel wherein he wrote “that he wanted to receive an emergency transfer out of SCI-Fayette because the water that the staff at the PA DOC were forcing [him] to drink at SCI-Fayette was causing him to get sick and the coal ash that was flying around SCI-Fayette was causing [him] to get ill.” Id., ¶ 118. Again, Williams submits that instead of Wetzel contacting the proper officials to get Williams' the transfer he desired, “Wetzel forced [Williams] to remain at SCI-Fayette under those conditions.” Id., ¶ 119.
Williams submitted a request to staff form to Capozza on March 25, 2020, asking him questions as well “about the coal ash that was flying around SCI-Fayette” and informing him that these conditions were making him ill. Id., ¶ 120. Capozza also allegedly responded by trying to cover up the situation. Williams submitted another request to staff form asking questions and sharing this same information to Capozza on June 3, 2020. Williams alleges that like Wetzel, Capozza forced him to stay at SCI-Fayette instead of contacting whomever he needed to contact to transfer Williams out of SCI-Fayette. He sent a third version of this inmate request to staff form to Capozza on October 2, 2020, but “Capozza refused to answer the questions” therein. Id., ¶124.
On June 7, 2020, Williams submitted a version of this request to staff form to Rice. Rice also “never addressed the questions” and “failed to contact who she needed to contact to get [Williams] an emergency transfer out of SCI-Fayette after she found out that the coal ash that was flying around SCI-Fayette and the water that he was being forced to drink at SCI-Fayette was causing him to get ill.” Id., ¶¶ 125-126.
On June 3, 2020, Williams submitted an inmate request to staff form to House and Armel telling them too that he wanted an emergency transfer because of the adverse effects the coal ash and water were having on his health and asking questions about the situation. Neither answered his questions nor contacted the proper people to initiate a transfer.
He submitted an inmate request to staff form to Knepper, Dr. Jin, Rice, Erickson, Byers, and Schwartz on June 1, 2020; Woods, Fisher, Tift, Gibson, Hawk-Luster, Rice again, and Fetsko on June 3, 2020; and Nagy, Riddle, Brown, Hawk-Luster again, and Fetsko again on June 5, 2020. These forms “told them that he wanted to receive an emergency transfer out of SCI-Fayette because the coal ash that was flying around SCI-Fayette was causing him to get ill, and the water that they were forcing him to drink at SCI-Fayette was causing him to get sick.” Id., ¶¶ 132, 134, 136. Williams then states that these Defendants “forced [him] to remain at SCI-Fayette even though they were aware of the fact that the coal ash that was flying around SCI-Fayette and the water that they were forcing the plaintiff to drink at SCI-Fayette was causing him to get ill.” Id., ¶¶ 133, 135, 137. On June 11, 2020, he submitted a grievance “about that matter” to the grievance coordinator and exhausted his remedies. Id., ¶¶ 138, 139.
On October 10, 2020, he submitted another inmate request to staff form to Armel wherein he asked “a number of questions about the coal ash he was being exposed to,” but “Armel refused to answer the[se] questions.” Id., ¶¶ 131.
In further support of his coal ash and contaminated water related claims, Williams' supplements to his briefs ask that the Court take judicial notice of Citizens Coal Council v. Canestrale Contracting Inc., 51 F.Supp.3d 593 (W.D. Pa. Sept. 30, 2014) (ECF No. 110), and Uniontown Newspapers, Inc. v. Pennsylvania Dep't of Corr., 185 A.3d 1161 (Pa. Commw. Ct. 2018), affd, 243 A.3d 19 (Pa. 2020). See ECF Nos. 110, 111. To the extent these cases are cited for propositions of law, the Court will consider them without invoking judicial notice. See Doe v. Manor Coll., 2022 WL 523561, at *3 (E.D. Pa. Feb. 22,2022) (holding that ‘“judicial notice' applies to facts, not laws”), affd, 2023 WL 33329 (3d Cir. Jan. 4, 2023). Williams also filed an affidavit in which he attests that coal ash and contaminated water are also present at SCI-Coal Township, where he is presently incarcerated, that these conditions have made him sick, and that Nurse McMillen, who examined him, “tried to cover up” the ill effects he has experienced due to the coal ash and contaminated water. ECF 109, ¶ 2, 11. Because the affidavit raises allegations against individuals who are not defendants in this action and concern events that occurred at a different prison and after the events alleged in the SAC, the Court will not consider it here.
2. Coronavirus
These allegations pertain to SCI-Fayette's alleged Coronavirus practices and policies and the alleged inadequate response of certain Defendants to Williams' Coronavirus concerns in April and May 2020. Williams avers that “the only thing that the staff at the PA DOC gave [him] to protect himself from the Coronavirus was a cheap face mask that covered his nose and his mouth.” Id., ¶ 59. He had a number of questions about the Coronavirus, including its symptoms and SCI-Fayette's protective measures, and asked these questions in a request to staff form submitted to Woods on June 6, 2020; a request to staff form submitted to Rice, Dr. Jin, Casper, Kaczmark, Gibson, Brown, Schwartz, Nagy, Riddle, Erickson, Knepper, Hawk-Luster, Mankey, Trempus, Hawkinberry, Nickelson, Armel, and Capozza on June 8, 2020; a letter sent to Wetzel on April 23, 2020; and letters sent to Johnson on April 20 and May 4, 2020. Only Johnson responded and he only answered some of Williams' questions. On May 3, 2020, Williams submitted another inmate request to staff form to the same eighteen SCI-Fayette personnel asking them why they had not responded to his June 8, 2020 request form. These Defendants “tried to make it seem as if they never received the request to staff form that [he] formulated and forwarded to them on 04-08-20.” Id., ¶ 157.
On April 28, 2020, he asked to get tested for the Coronavirus in an inmate request to staff form he submitted to Rice and Dr. Jin. Williams avers that “neither of them ever contacted whoever they needed to contact to get [him] tested to find out whether he contracted the Coronavirus.” Id., ¶ 156. To this day, Williams does not know whether he ever contracted the Coronavirus, but asserts that he “had a number of the symptoms that were associated with” the virus. Id., ¶ 168.
3. Other Alleged Wrongful Acts of Certain DOC Defendants
These allegations assert that a conspiracy existed among Defendants Fetsko, Minnie, Kowall, Hawk-Luster, and other prison officials to carry out acts of retaliation against Williams for the lawsuits and grievances he filed from December 2018 to July 2019.
The other prison officials mentioned in the SAC are not named as defendants in this action.
In December 2018, Williams had a filing deadline in Civil Action No. 18-170 - a civil rights action he had initiated based on other events that had allegedly occurred at SCI-Fayette.
Williams claims that the Defendants in that action carried out a series of retaliatory acts against him to hinder his chances of successfully prosecuting his case. One such act was convincing another inmate to file a false Prison Rape Elimination Act (“PREA”) complaint against Williams, which resulted in Williams' placement in the Restricted Housing Unit (“RHU”) from December 2018 to March 2019. He ultimately submitted a grievance to House about these alleged retaliatory acts, but claims that House, Capozza, and three other prison officials, none of whom is named as a defendant in this action, “failed to remedy that matter after they gained knowledge of it.” Id., ¶ 173.
Although the SAC details these alleged retaliatory acts, they concern Williams' other civil suit and were allegedly perpetrated by defendants in that suit; thus, the details are immaterial to the instant action.
After his release from the RHU in March 2019, Williams was housed on H Block - the assigned block of SCI-Fayette Corrections Officers Minnie and Fetsko, Sergeant Kowall, and Unit Manager Hawk-Luster. Williams alleges that, upon arriving at H-Block, Fetsko asked him why he had been placed in the RHU and “why he was wasting his time litigating Civil Action No. 18-170 Erie when he knew that he was going to lose that case.” Id., ¶ 176. He asserts that soon after, inmates housed on H-Block began asking him for legal assistance and advice. But, once Fetsko, Minnie, Kowall, Hawk-Luster and another official learned of this, they began telling the H-Block inmates that Williams was “gay and a snitch” to “discourage them from talking to [him].” Id., ¶ 178.
On July 9, 2019, Williams submitted an inmate request to staff form to Fetsko, Minnie, Kowall, and Hawk-Luster asking them if they were in fact telling H-Block inmates that he was gay and a snitch. They did not respond. Williams then wrote about these guards allegedly telling H-Block inmates that he was gay and a snitch in an inmate request to staff form he submitted to Capozza on July 9, 2019, and a letter he sent to Wetzel on July 21, 2019. Neither Capozza nor Wetzel responded. Williams claims that he later obtained “a number of affidavits that were signed and dated by a number of inmates who admitted to the fact that C.O. I Fetsko, C.O. I Minnie, Sgt. Kowall and/or Mrs. Carrie Hawk-Luster told them that [Williams] was gay and a snitch,” and that he sent these affidavits to the Clerk of Court and the Defendants' attorney. Id., ¶ 185.
These affidavits are not a part of the record in this action.
According to Williams, these Defendants ultimately “realized that the tactic that they were using didn't work,” and so they next “tried to persuade a number of inmates who were housed on H-Block to file false PREA complaints against the Plaintiff' even though they knew of no facts that would substantiate such complaints. Id., ¶ 186. After this tactic failed as well, Minnie, Fetsko, Hawk-Luster, and Kowall next “conspired with the guard who worked the 10 P.M. to 6 A.M. shift on H Block on or about 07-29-19 to come on the intercom that was in [Williams'] cell at around 5 A.M. on 07-30-19 and tell [him] that he was scheduled to go to work in SCI-Fayette's kitchen” even though Williams was not supposed to work in the kitchen that day. Id., ¶ 187. These officers also told the night guard to open Williams' cell door on July 30, 2019 at 5 A.M. to tell him he had to work in the kitchen. Williams asserts that “[w]hen that didn't work,” Minnie, Fetsko, Hawk-Luster, and Kowall “tried to force an inmate name [sic] Noah Hazy to file a false PREA complaint against [Williams'].” Id., ¶ 189 (internal parenthetical omitted). However, Hazy allegedly refused, and so these Defendants “persuaded Noah Hazy's cellmate to file a false PREA complaint against [Williams] on or about August 16, 2019.” Id., ¶ 178 (internal parenthetical omitted).
On August 22, 2019, Williams submitted an inmate request to staff form to Fetsko, Minnie, Hawk-Luster, and Kowall “about that matter;” they did not respond. Id., ¶ 191. He also filed a grievance; the grievance “was never resolved during the grievance process.” Id., ¶¶ 194, 195. Additionally, Williams contends that he submitted “a number of affidavits regarding that matter including an affidavit from Noah Hazy” to the Clerk of Courts and Defendants' attorney.
These affidavits are not a part of the record in this action.
D. The SAC's Legal Claims
The SAC divides Williams' legal claims into three counts corresponding to the three categories of factual allegations set forth above. Beneath each count the SAC lists the claims asserted against different groups of Defendants. The Court has construed these claims as follows.
Count One asserts Eighth Amendment failure to protect and deliberate indifference to unhealthy conditions of confinement claims and a First Amendment retaliation claim based on Williams' exposure to coal ash and contaminated water at SCI-Fayette. Specifically, Williams avers that Armel, Brown, Byers, Capozza, Casper, Erickson, Fetsko, Fisher, Gibson, HawkLuster, House, Johnson, Kaczmark, Knepper, Nagy, Mankey, Rice, Riddle, Schwartz, Tift, Trempus, Wetzel, Woods, and Dr. Jin failed to protect him, subjected him to inhumane conditions of confinement, and “showed deliberate indifference when they forced [him] to remain at SCI-Fayette after they found out that the coal ash that was flying around SCI-Fayette was causing [him] to get ill and the water that they were forcing [him] to drink at SCI-Fayette was causing him to get sick;” and “forced him to stay at SCI-Fayette as retaliation for the grievance and lawsuit he filed.” ECF No. 94, ¶¶ 141-144. Count One seeks compensatory and punitive damages “individually and/or severally” from each of the named Defendants. ECF No. 94, ¶ 147.
Count Two asserts Eighth Amendment failure to protect and deliberate indifference claims and a First Amendment retaliation claim based on events pertaining to the Coronavirus pandemic. The claims are asserted against Defendants as follows:
• Armel, Brown, Capozza, Casper, Erickson, Gibson, Hawkinberry, Hawk-Luster, House, Johnson, Kaczmark, Knepper, Nagy, Nickelson, Mankey, Rice, Riddle, Schwartz, Trempus, Wetzel, and Dr. Jin “failed to protect [Williams] from the Coronavirus that entered SCI-Fayette when they only provided [him] with a cheap face mask that covered his nose and his mouth” and “failed to provide [him] with the vital information that he asked them to give to him so that he would have been able to understand what the symptoms were that came along with a person contracting the Coronavirus.” ECF No. 94, ¶¶ 163, 164.
• Armel, Brown, Capozza, Casper, Erickson, Gibson, Hawkinberry, Hawk-Luster, House, Johnson, Kaczmark, Knepper, Nagy, Mankey, Rice, Riddle, Schwartz, Trempus, Wetzel, and Dr. Jin decided to “give [Williams] a cheap face mask and not give him the valuable information that he asked them to give to him regarding the Coronavirus” as “retaliation for [Williams] filing the grievances and the lawsuits that he filed.” ECF No. 94, ¶ 167.
• Rice and Dr. Jin acted with deliberate indifference and “reckless disregard for [Williams'] life “when they refused to contact whoever they needed to contact to get [him] tested for the Coronavirus after [he] informed them that he wanted to get tested to find out whether he contracted the Coronavirus.” ECF No. 94, ¶¶ 165, 166.
Count Two requests compensatory and punitive damages “individually and/or severally” from each of the foregoing Defendants as well as Woods and except for Hawkinberry. ECF No. 94, ¶ 168.
Count Two concludes by seeking judgment against and damages from: Armel, Brown, Capozza, Casper, Erickson, Gibson, Hawk-Luster, House, Johnson, Kaczmark, Knepper, Nagy, Nickelson, Mankey, Rice, Riddle, Schwartz, Trempus, Wetzel, Woods, and Dr. Jin.
Count Three seeks compensatory and punitive damages against Defendants Kowall, Minnie, Hawk-Luster, Fetsko, Wetzel, Capozza, and House “individually and/or severally.” ECF No. 94, ¶ 203. The SAC asserts an Eighth Amendment cruel and unusual punishment claim, First Amendment retaliation claim, and civil rights conspiracy claim against Kowall, Minnie, Hawk-Luster, and Fetsko for their alleged attempts to get inmates to file false PREA claims against Williams. Count Three also asserts an Eighth Amendment failure to protect claim, a libel and slander defamation claim under Pennsylvania law, and a claim for conduct “unbecoming of a prison official” against Ko wall, Minnie, Hawk-Luster, and Fetsko for allegedly telling inmates that Williams was “gay and a snitch.” ECF No. 94, ¶¶ 200-202.
The Court knows of no such basis for relief for conduct “unbecoming a prison official,” and so will not discuss its viability.
E. Analysis
The DOC Defendants and Dr. Jin seek dismissal of all claims of the SAC. In support of their motion, the DOC Defendants argue that Williams has failed to establish the personal involvement of any DOC Defendant and, alternatively, that the facts alleged are insufficient to state valid Eighth Amendment and First Amendment claims. ECF No. 96. Dr. Jin similarly argues that the claims against him should be dismissed because Williams' allegations do not support that he was personally involved in actionable conduct, acted with deliberate indifference to Williams' medical needs, retaliated against Williams, or failed to protect Williams from any serious risk to his health or safety. ECF No. 100. The Court will address these arguments in turn.
DOC Defendants only address Count One's Eighth Amendment failure to protect from coal ash and water claim, Count Two's Eighth Amendment failure to protect from the Coronavirus claim, and Count Three's First Amendment retaliation claim, and Dr. Jin misses certain claims too. Nevertheless, the Court will assess the viability of each claim sua sponte because Williams is proceeding in forma pauperis and thus, the Court is required to identify cognizable claims and “sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.” Sanchez v. Coleman, 2014 WL 7392400, at *4 (W.D. Pa. Dec. 11,2014) (citing 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)).
1. Count One and Count Two of the SAC fail to state a claim against the non-supervisory/non-policymaker DOC Defendants.
These DOC Defendants are CCPM Hawkinberry; CHCA Rice; Grievance Coordinator House; Major Mankey; Major Trempus; Captain Tift; Lieutenant Woods; Lieutenant Fisher; Sergeant Kowall; UM Byers;UM Riddle; UM Erickson; UM Hawk-Luster; Counselor Nagy; Counselor Knepper; Guard Minnie; Guard Bagan; Guard Fetsko; Kitchen Steward Casper; Kitchen Steward Kaczmark; Psychologist Gibson; Psychologist Brown; and Psychologist Schwartz.
The DOC Defendants argue that Williams' SAC does not support the requisite personal involvement of any Defendant in actionable conduct because the SAC identifies Defendants' role as “simply failing to respond to a grievance or letter,” “[a]nd where [Williams] does allege some sort of action, he uses broad and conclusory terms unsupported by specific factual allegations.” ECF No. 96, pp. 4-5. Liability under § 1983 requires a defendant's “personal involvement” in the deprivation of a constitutional right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21, 2013). This means that each defendant must have played an “affirmative part” in the complained-of misconduct, and “cannot be predicated solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1998)); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). A defendant's personal involvement can be shown by alleging their “participation] in violating the plaintiffs rights, direct[ing] others to violate them, or, as the person in charge, ha[ving] knowledge of and acquiesce[ing]” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
“Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity” in that a complaint must allege the particulars of conduct, time, place, and person responsible. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Evancho, 423 F.3d at 354. Indeed, “[w]hen a plaintiff merely hypothesizes that an individual defendant may have had knowledge of or personal involvement in the deprivation of his or her rights, individual liability will not follow.” Rager v. Mataloni, 2016 WL 4679010, at *3 (M.D. Pa. Sept 7, 2016) (citing Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003)). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
The DOC Defendants correctly argue that Williams' broad and conclusory allegations against them as a group do not support the personal involvement or a claim against any Defendant. This is because “[a]negations that broadly implicate multiple defendants without delineating individual conduct are legally insufficient.” Tat el v. Mt. Lebanon Sch. Dist., 2022 WL 15523185, at *29 (W.D. Pa. Oct. 27, 2022) (quoting Vo v. Wetzel, 2021 WL 6197743, at *8 (W.D. Pa. Dec. 31, 2021), affd, 2022 WL 1467978 (3d Cir. May 10, 2022). See also, Davis v. Williams, 354 Fed.Appx. 603, 605 (3d Cir. 2009). In scattergun fashion, the SAC seeks to implicate more than two dozen DOC employees in alleged failures to remedy coal dust and Coronavirus-related conditions at SCI-Fayette based on sweeping and undifferentiated allegations that all snqxq placed on notice of the conditions and their alleged adverse impact on Williams. Such allegations do not support liability under § 1983 absent allegations of fact to support an inference that each Defendant had a role in creating the dangerous conditions or had some authority or responsibility for addressing or remedying the conditions. Id. The only specific allegation identifying a DOC Defendant beyond notice is Williams' averment that Knepper told him the particles he observed were coal ash. Even under the most charitable reading of the SAC, Williams' allegations do not support that Knepper or any non-supervisory DOC Defendant had any responsibility for the creating or addressing the alleged dangerous conditions at SCI-Fayette. The broad sweep of liability Williams asks the Court to endorse is incompatible with the individual assessment of the conduct of each Defendant that must be made under the “deliberate indifference” standard. As the Supreme Court explained in Farmer v. Brennan, a prison official cannot be found liable ... unless the official knows of and disregards an excessive risk to inmate health and 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.” 511 U.S. 825, 837 (1994). See also, Kaucher v. Cnty. of Bucks, 455 F.3d 418, 428 (3d Cir. 2006) (holding that “defendants' conduct d[id] not exhibit deliberate indifference to a serious risk of prison officials contracting MRSA infections”). Indeed, if notice of allegedly dangerous conditions at a prison alone and without regard to position, authority, and responsibility, were sufficient to support liability, then every employee at the prison, from the janitor to the cook, would face potential claims and liability.
As was the case with Williams' prior versions of his complaint, the SAC's assertion of notice against a large group of DOC employees, with no differentiation of the role or responsibility of each Defendant relative to the conditions at issue, fails to state a claim. This continued pleading deficiency necessitates dismissal of all coal ash exposure, contaminated water exposure, Coronavirus-related claims against CCPM Hawkinberry; CHCA Rice; Grievance Coordinator House; Major Mankey; Major Trempus; Captain Tift; Lieutenant Woods; Lieutenant Fisher; Sergeant Kowall; UM Byers;UM Riddle; UM Erickson; UM Hawk-Luster; Counselor Nagy; Counselor Knepper; Guard Minnie; Guard Bagan; Guard Fetsko; Kitchen Steward Casper; Kitchen Steward Kaczmark; Psychologist Gibson; Psychologist Brown; and Psychologist Schwartz.
2. The SAC alleges facts sufficient to state Eighth Amendment conditions of confinement and failure to protect claims against Wetzel, Capozza, and Armel based on exposure to coal ash and contaminated water.
The Count One claims against former DOC Secretary Wetzel, former SCI-Fayette Superintendent Capozza, and current SCI-Fayette Superintendent Armel, however, require a different analysis. The alleged actions and omissions of these Defendants raise issues of potential supervisory or policymaker liability. Like that of any defendant, a supervisor's liability must be based on “personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998). Generally, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). But courts have identified two circumstances where the conduct of a supervisor or policymaker may constitute personal involvement in a constitutional violation sufficient to support his or her individual liability. First, supervisory liability may attach if the supervisor personally “participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). As previously noted, however “[a]negations of participation or actual knowledge and acquiescence.. .must be made with appropriate particularity.” Rode, 845 F.2d at 1207-08. Second, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
The Count Three allegations start under the Count Two header. ECF No. 94, ¶ 169.
Generally, a prison official's alleged failure to remedy matters complained of in a grievance or communication is insufficient to support personal responsibility. See Alexander v. Fritch, 2010 WL 1257709, at *16 (W.D. Pa. Mar. 26, 2010) (“[p]laintiff ca[nn]ot impose liability against any of the [d]efendants based solely on his or her involvement with his correspondence, grievances and misconducts as such conduct is insufficient to establish personal involvement as required under 42 U.S.C. § 1983”), affd, 396 Fed.Appx. 867 (3d Cir. 2010). Accordingly, courts have routinely dismissed civil rights claims against prison officials whose only involvement in the alleged violation stemmed from their participation in the grievance process. Mearin, 951 F.Supp.2d at 782. See also Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”); Stevens v. Winger, 2021 WL 2075585, at *4 (W.D. Pa. May 24, 2021) (dismissing claims against prison health care administrator whose only awareness of the alleged misconduct was based on receipt of a grievance). But this legal principle has its limitations. “While the review of grievances will not establish personal involvement in an underlying violation, several courts have concluded that a supervisory official may be held liable stemming from the review of a grievance alleging an ongoing violation because the official is personally involved in” a violation “he can remedy directly.” Wilkins v. Wolf, 2021 WL 1578250, at *5 (M.D. Pa. Apr. 22, 2021). See Mayo v. Oppman, 2018 WL 1833348, at *4 (W.D. Pa. Jan. 23, 2018), report and recommendation adopted, 2018 WL 943528 (W.D. Pa. Feb. 20, 2018); Gibbs v. Univ. Corr. Healthcare, 2016 WL 6595916, at *2 (D.N.J. Nov. 7, 2016); Whitehead v. Rozum, 2012 WL 4378193, at *2 (W.D. Pa. Aug. 7, 2012). Williams alleges that he sent numerous letters to Wetzel and inmate requests to Capozza and Armel over a period of years complaining of the hazardous conditions at SCI-Fayette and his resulting health problems. Williams avers that these Defendants typically ignored his communications and failed to remedy the dangerous conditions or transfer him to another correctional institution.
Liberally construing the SAC and viewing its allegations in a light most favorable to Williams, the facts alleged support inferences that reports received over an extended period notified Wetzel, Capozza, and Armel of an ongoing threat to the health and safety of Williams and other inmates at SCI-Fayette and that each knowingly opted not to do so. Each is also alleged to have occupied a relatively high-level position with the DOC which provided him with the authority and responsibility to take remedial action. These facts, if ultimately proven, are sufficient to support a finding of personal involvement on the part of these three supervisory Defendants. See Lofton v. Wetzel, 2013 WL 4813169, at *2-*3 (M.D. Pa. Sept. 9, 2013) (court held that complaint alleged facts sufficient to support the personal involvement of the Secretary of the DOC (Wetzel) and Superintendent of SCI-Rockville (Llamas) in SCI-Rockview inmate's claim that he had been subjected to hazardous conditions, including coal ash and inadequate plumbing, because the Defendants were “responsible for the safety and welfare of the inmates and [were] actively involved in the maintenance and upkeep of the prison.”); Sanchez v. Coleman, 2014 WL 7392400, at *6 (W.D. Pa. Dec. 11, 2014) (personal involvement of Defendants support by Plaintiffs allegations that Defendants “denied his grievances and appeals without addressing or investigating the contaminated food or water issues” alleged in these grievances and appeals).
The Court also takes judicial notice of the DOC's description of the Secretary of the DOC's responsibilities as “Ultimately responsible for the overall operation of the department through assignment of work to appropriate deputy secretaries and various offices/bureaus directors who have direct report to the secretary. Also advises the governor regarding prison related issues.” The Pennsylvania Department of Corrections at 3, https://www.cor.pa.gov/About%20Us/Documents/Agency%20Qverview.pdf (last viewed Jan. 25, 2023). The Court may take judicial notice of this description because it appears on a publicly available document accessible through a government website. See Vanderklok v. United States, 868 F.3d 189, 205 (3d Cir. 2017). And though the Court does not have a job description for a SCI Superintendent, it notes a former Superintendent of SCI-Greene's description of the role in an affidavit that the court paraphrased in Washington v. Gilmore as follows: “As Superintendent he was responsible for directing, through subordinate professional staff, the implementation of the comprehensive correctional program at SCI-Greene. His duties included the responsibility for the overall care, custody, and control of the facility's inmate population. More specifically, he would oversee facility staff responsible for the administration of a wide range of correctional programs and services, and review, and implement DOC and facility policies and procedures promoting a diversified correctional program.” 2021 WL 4288369, at *2 (W.D. Pa. Sept. 21, 2021), affd, 2022 WL 1073873 (3d Cir. Apr. 11, 2022) (internal citations omitted).
Williams' allegations of fact are also sufficient to support the other elements of a conditions of confinement claim and a failure to protect claim against Wetzel, Capozza and Armel. The Eighth Amendment's prohibition of cruel and unusual punishment imposes constitutional limitations on a prisoner's conditions of confinement. See Rhondes v. Chapman, 452 U.S. 337 (1981); Graham v. Connor, 490 U.S. 386 (1989); Wilson V. Setter, 501 U.S. 294 (1991). To state a viable conditions of confinement claim, the plaintiff must: (1) allege a deprivation that is “objectively, sufficiently serious”; and (2) show that the prison official “ha[s] a sufficiently culpable state of mind.” Beers-Capitol, 256 F.3d at 125 (quoting Farmer,511 U.S. at 834 (1994) (quotation marks and citations omitted). Courts have recognized that environmental or unsanitary prison conditions that pose a serious risk to the health of inmates may support a claim. See Moore v. Rosa, 2021 WL 1143376, at *5 (E.D. Pa. Mar. 25, 2021) (“unsanitary conditions can support a cognizable § 1983 conditions of confinement claim.”); Quinn v. Tritt, 2021 WL 1621294, at *4 (M.D. Pa. Feb. 1, 2021), report and recommendation adopted, 2021 WL 1193868 (M.D. Pa. Mar. 30, 2021) (assessing inmate's claim of exposure to contaminated water as a conditions of confinement claim).
Similarly, the Eighth Amendment imposes a duty on prison officials to “take reasonable measures to guarantee the safety of inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). To state a viable failure to protect claim, an inmate must allege facts sufficient to support plausible inferences that: (1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the prison official knew of and disregarded the excessive risk to inmate health and safety, and (3) the prison official's deliberate indifference caused the inmate to suffer harm. Id.', Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012). Regarding the second element, the facts alleged must support that the official was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that the official also drew the inference. Hill v. Patrick, 2008 WL 1752692, at *2 (W.D. Pa. 2008) (quoting Beers-Captiol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)).
The DOC Defendants argue that Williams' claims fail because the only injury he has alleged is that he may become sick in the future. However, the SAC alleges that Williams suffered various illnesses and health problems because of his exposure to coal ash and contaminated water while he was incarcerated at SCI-Fayette. Accepting these allegations as true for purposes of the DOC Defendants' motion to dismiss, Williams has identified harm sufficient to state a claim. Additionally, the factual allegations of the SAC are also sufficient to support a finding that the coal ash and contaminated water posed a substantial risk of harm of which Wetzel, Capozza, and Armel were aware and to which they failed to respond. As such, Williams has stated viable conditions of confinement and failure to protect claims against Wetzel, Capozza, and Armel.
3. Count Two of the SAC fails to state a claim against any DOC Defendant.
With respect to his Count Two claims, Williams asserts that numerous DOC Defendants failed to protect him from the Coronavirus because “they only provided [him] with a cheap face mask that covered his nose and his mouth,” and failed to answer the Coronavirus questions he posed to them in letters, inmate request to staff forms, and in person in April and May 2020. ECF No. 94, ¶ 167. He additionally asserts that he was never tested for the Coronavirus even though he asked Rice and Dr. Jin for a Coronavirus test, and, thus, Rice and Dr. Jin acted with deliberate indifference and “reckless disregard for [Williams'] life.” Id., ¶ 165.
In contrast to the facts alleged in support of Count One, Williams alleges that he only wrote one letter to Wetzel and one inmate staff request form to Capozza and Armel and did not present these Defendants with a request for relief - only questions to answer. Furthermore, the SAC is devoid of facts suggesting that any DOC Defendant was personally aware of any deficiencies in the prison's Coronavirus policies, failed to properly adhere to DOC COVID-19 mitigation policies and procedures, or encouraged any other Defendant to violate DOC policies or procedures. See Bevins v. Kauffman, 2021 WL 322168, at *4 (M.D. Pa. Feb. 1, 2021).Thus, Williams has not alleged facts to support that any DOC Defendant acted with deliberate indifference to any danger posed by the Coronavirus or was otherwise personally involved in any actionable conduct upon which he bases his Count Two claims.
Williams additionally premises his Count Two retaliation claim on “[t]he decision that John Wetzel, J.S. Johnson, Mark Capozza, Eric Armel, Rhonda House, Joseph Trempus, Shelly Mankey, Debra Hawkinberry, Nedra Rice, Dr. Byunghak Jin, Mr. Casper, Ms. Kaczmark, Ms. Gibson, Ms. Brown, Ms. Schwartz, Ms. Nagy, Mr. Riddle, Mr. Erickson, Mr. Knepper and Mrs. Carrie Hawk-Luster made to give the Plaintiff a cheap face mask and not give him the valuable information that he asked them to give to him regarding the Coronavirus.” ECF No 94,1167. However, because the SAC is devoid of any allegations supporting this conclusory assertion, the Court will disregard it. Calipo v. Wolf, 2019 WL 6879570, at *3 (W.D. Pa. Nov. 15,2019), report and recommendation adopted, 2019 WL 6877181 (W.D. Pa. Dec. 17,2019) (quoting Twombly, 550 U.S. at 555) (““Because no presumption of veracity attaches to this type of legal conclusion, the Court may disregard these statements when evaluating the sufficiency of the complaint.”).
Courts have consistently denied Coronavirus-related claims by inmates based on the DOC's adoption and its various SCI's implementation of policies and procedures to mitigate the risks posed by the virus. See e.g., Engelund v. Doll, 2020 WL 1974389, at *11 (M.D. Pa. Apr. 24, 2020) (“it cannot be said that Respondents have been deliberately indifferent to Petitioners' health, safety, or medical needs” because, “[a]lthough CO VID-19 presents a serious medical issue, as detailed above, the facilities have taken significant steps to curb the introduction or spread of COVID-19 and to contain and treat those infected with the virus”); Allen v. Wetzel, 2021 WL 2254997, at *7 (M.D. Pa. June 3, 2021) (DOC policies mitigating spread of COVID-19 sufficient to prevent deliberate indifference claim where Plaintiff contracted COVID-19 but did not experience any serious symptoms). The Court takes judicial notice of these mitigation policies and procedures because they are publicly available on a government website. See Vanderklok v. United States, 868 F.3d 189, 205 (3d Cir. 2017). See also Allen, 2021 WL 2254997, at *6 (taking judicial notice of the DOC's COVID-19 mitigation policies). As the court observed in Allen v. Wetzel, “[a] review of these steps suggests that DOC officials... have not acted unreasonably with respect to the threat posed by COVID-19 and instead have instituted measures to safeguard the entire inmate population, including Plaintiff.” Bevins v. Kauffman, 2021 WL 322168, at *5 (M.D. Pa. Feb. 1, 2021);
The SAC includes no factual allegations to support that any DOC Defendant deviated materially from any DOC COVID-19 mitigation protocols or that SCI-Fayette experienced any significant outbreak of the virus. See White v. Wetzel, 2022 WL 3273807, at *1 (3d Cir. Aug. 11, 2022) (prisoner stated a deliberate indifference to unsafe conditions of confinement claim where he alleged that prison officials materially deviated from DOC COVID-19 mitigation policies and procedures, which deviations resulted in a major outbreak of coronavirus infections at the prison and resulted in plaintiff contracting and becoming seriously ill and hospitalized with COVID-19). While Williams speculates that he may have contracted the virus based on his selfdiagnosis of his symptoms, he does not allege facts to support a plausible inference that he became seriously ill from the virus. Thus, Count Two of the SAC fails to state a claim against any DOC Defendant.
4. Count Three fails to state a claim against any DOC Defendant.
Count Three is a confusing jumble of allegations and claims. It includes claims of conspiracy and retaliation premised on conclusory allegations that groups of DOC Defendants conspired to retaliate against Williams by attempting to convince another inmate to file a false PRE A complaint against him, resulting in his placement in the RHU from December 2018 to March 2019, and that Defendants Fetsko, Minnie, Ko wall, and Hawk-Luster allegedly telling H-Block inmates that Williams was “gay and a snitch” to “discourage them from talking to [him].” He further alleges that he submitted a grievance and requests to staff concerning these matters but that the DOC Defendants to whom he directed the grievance and requests failed to remedy the problems. See No. 94, ¶¶ 174-202.
In order to sustain a civil conspiracy claim under § 1983, a plaintiff must allege facts to show that two or more persons acting under color of state law conspired to deprive him of a constitutional right. Laurensau v. Romarowics, 528 Fed.Appx. 136, 140 (3d Cir. 2013). Specifically, the plaintiff must allege: “1) the specific conduct that violated the plaintiff s rights, 2) the time and the place of the conduct, and 3) the identity of the officials responsible for the conduct.” Sanchez, 2014 WL 7392400, at *9 (citing Oatess v. Sobolevitch, 914 F.2d 428, 431 n. 8 (3d Cir. 1990)). Critical to this claim is “factual allegations of combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.” Id. (quoting Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994) (“[w]hile the pleading standard under [Fed. R. Civ. Proc .] Rule 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements”). Bare allegations that “[d]efendants engaged in a concerted action of a kind not likely to occur in the absence of agreement” are insufficient. Id. Similarly, “mere conclusory allegations of deprivations of constitutional rights are insufficient to state a conspiracy claim.” Tindell v. Beard, 351 Fed.Appx. 591, 594 (3d Cir. 2009). Rather, the plaintiff “must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.” Capogrosso v. The Supreme Court of the State of New Jersey, 588 F.3d 180, 184-85 (3d Cir. 2009). “Additionally, as Section 1983 does not create a cause of action for conspiracy in and of itself, a plaintiff must also allege some underlying deprivation of a constitutional right.” Id. (quoting Holt Cargo Systems, Inc. v. Delaware River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa. 1998). Williams' SAC invokes the term “conspiracy” and “conspire” in talismanic fashion and without alleging any facts to support the essential elements of the claim. Accordingly, Williams' civil conspiracy claim should be dismissed.
Williams' retaliation claim fares no better. To state a retaliation claim, the plaintiff must allege facts to show that (1) he engaged in protected activity; (2) officials took an adverse action against the plaintiff; and (3) “a causal link” exists “between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (alteration in original)); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). See also Golden v. Perrin, 2022 WL 2791186, at *4-5 (W.D. Pa. July 15, 2022). “[A]n otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech.” Anderson v. Davilla, 125 F.3d 148, 161 (3d Cir. 1997).
When analyzing whether an inmate engaged in constitutionally protected activity, courts should be mindful that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Jones v. North Carolina Prisoners' Lab. Union, Inc., 433 U.S. 119,125 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). Still, “prison inmates retain those constitutional rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system.” White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990) (citing Turner v. Safley, 482 U.S. 78 (1987)); Pell v. Procunier, 477 U.S. 817, 822 (1974). An “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). “Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Id. at 224 (internal quotation marks and citation omitted). The retaliatory conduct “need not be great in order to be actionable” but must be “more than de minimus.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal quotations omitted). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). ‘“These are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference.'” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)).
Williams' SAC mentions the lawsuit he filed at “Civil Action No. 18-170.” The filing of a civil lawsuit certainly represents protected activity within the scope of the first element of a retaliation claim. But the SAC alleges no facts to support a causal link between this protected conduct and the adverse actions certain DOC Defendants allegedly took against him. The SAC alleges no direct evidence of retaliatory motive or a close temporal proximity between the protected activity and the adverse action to support a plausible inference of causation. Indeed, Williams' invocation of “Civil Action No. 18-170” belies any causal connection between that protected activity and the alleged adverse actions. Taking judicial notice of its own docket, the Court notes that Civil Action No. 18-170 relates to events wholly unrelated to the subject matter and claims of this lawsuit, involves personnel and events at SCI-Forest, not SCI-Fayette, and is not closely proximate in time to the adverse actions alleged in this case. Thus, the SAC fails to allege facts to support that any DOC Defendant retaliated against him because he filed Civil Action No. 18-170. Similarly, while the SAC refers to Williams having filed grievances, it alleges no facts to support an inference that any DOC Defendant committed an adverse action in retaliation for his having done so. Accordingly, Williams' retaliation claim against the DOC Defendants should be dismissed.
Williams additionally alleges that Minnie, Fetsko, Ko wall, and Hawk-Lsuter “failed to protect him ... when they told a number of inmates that [Williams] was gay and a snitch.” ECF No. 94, ¶¶ 200, 201, 202. This claim fails because he does not allege that he suffered any harm as a result of these Defendants' alleged actions - the necessary third element of a failure to protect claim. See Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (the prison official's deliberate indifference caused the inmate to suffer harm). Accordingly, Williams' SAC fails to state a failure to protect claim against Minnie, Fetsko, Ko wall, and Hawk-Lsuter based on their alleged spreading of rumors that Williams is gay and a snitch.
Count Three also asserts claims against Capozza, House, and Wetzel based on their alleged involvement in grievances, a letter he sent to Wetzel, and an inmate staff request form he submitted to Capozza, and their subsequent “failure to remedy” his complaints. The SAC alleges no facts to support that the grievance, letter, or requests at issue in this count related to any longstanding or ongoing condition at the prison. Accordingly, unlike Williams' Count One claims against Wetzel, Capozza, and Armel, no basis for supervisory liability exists regarding his Count Three claims. Instead, Williams' Count Three claims against Capozza, House, and Wetzel rest solely upon these Defendants' involvement in the grievance process. As such, the claims fail as a matter of law. See Alexander, 2010 WL 1257709, at *16.
Finally, the SAC alleges that Minnie, Kowall, Fetsko, and Hawk-Luster committed the Pennsylvania tort of defamation (libel and slander) by telling inmates that Williams was gay and a snitch. Williams seeks compensatory damages from each of these three Defendants in their individual capacities.
To state a defamation claim under Pennsylvania law, the plaintiff must allege facts to support:
defamatory character of communication; (2) its publication by Defendant; (3) its application to Plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to PlaintiffWilson v. Am. Gen. Fin. Inc., 2013 WL 967161, at *6 (W.D. Pa. Mar. 12, 2013) (quoting Tucker v. Fischbein, 237 F.3d 275 (3d Cir. 2001) (citing 42 Pa.C.S.A. § 8343). Furthermore, “[i]n Pennsylvania, a defamatory statement is one that ‘tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'” Id. (quoting Resnick v. Manfredy, 52 F.Supp.2d 462, 470 (E.D. Pa. 1999) (quoting U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 922 (3d Cir. 1990))).
The Court need not reach the merits of Williams' defamation claims against Minnie, Kowall, Fetsko, and Hawk-Luster, however, because they are barred Pennsylvania sovereign immunity. See 42 Pa.C.S. §§ 8521-8522; 1 Pa.C.S. § 2310. Hawkins v. Brooks, 694 F.Supp.2d 434, 448 (W.D. Pa. 2010); See Bailey v. Wetzel, 2021 WL 5280926, at *8 (W.D. Pa. Nov. 12, 2021). Thus, Williams' defamation claims also fail as a matter of law.
5. The SAC fails to state any claim against Dr. Jin.
Dr. Jin argues that the SAC fails to state a claim against him because his involvement with Williams was limited to examining and diagnosing Williams on May 19, 2019, and his receipt of inmate staff request forms from Williams. ECF No. 100, p. 12. Because the allegations of the SAC support nothing more than Williams' disagreement with Dr. Jin's diagnosis, it fails to support an Eighth Amendment claim against him.
As to Count One, the SAC alleges that Dr. Jin examined Williams on May 9, 2019 and concluded that Williams was not suffering from any ailments related to coal ash or contaminated water. Williams attempts to convert this medical judgment to actionable conduct by further alleging that Dr. Jin's diagnosis was a cover up and retaliatory. But these assertions are conclusory and unsupported by factual allegations. As such, they are not assumed to be true and are to be disregarded in assessing whether the SAC states a claim against Dr. Jin. See Twombly, 550 U.S. at 555; McTernan, 577 F.3d at 531; California Pub. Employee Ret. Sys., 394 F.3d at 143. Likewise, although Williams included Dr. Jin among the numerous prison personnel to whom he sent inmate staff request forms, and like the others, Dr. Jin allegedly did not respond, remedy conditions at the prison, or transfer Williams to another prison, nothing associated with Dr. Jin's position as a prison physician supports that he was responsible for environmental conditions at SCI-Fayette or had any authority to transfer Williams. Accordingly, no basis exists to maintain an Eighth Amendment conditions of confinement or failure to protect claim against Dr. Jin. This leaves Williams' claim that Dr. Jin was deliberately indifferent to his medical needs as his sole claim against Dr. Jin.
Deliberate indifference to serious medical needs of prisoners is proscribed by the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97 (1976). To establish a violation of his constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a “failure to treat can be expected to lead to substantial and unnecessary suffering.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Deliberate indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O 'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
It is well-settled, however, that “an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional claims because “the exercise by a doctor of his professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.”)). “Therefore, where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5 (citing Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009).
Williams avers that he suffered numerous ailments that he attributes to exposure to coal ash and contaminated water at SCI-Fayette and that Dr. Jin did not respond properly to his reports of illness. Even assuming for purposes of the pending motions to dismiss that Williams' health complaints constituted a serious medical need, the SAC still fails to state a claim against Dr. Jin. The SAC acknowledges that Dr. Jin examined Williams on May 9, 2019 and determined that none of the symptoms or ailments of which he complained was due to exposure to coal ash or contaminated water. In fact, the SAC recounts Dr. Jin's medical findings, including that the dark and light spots on his body were common for people Williams' age, his eyes were not infected, and his breathing appeared normal. While the SAC expresses Williams' disagreement with Dr. Jin's diagnoses, an inmate's disagreement with a medical professional does not support an Eighth Amendment deliberate indifference claim. .
To the extent Williams is also asserting a deliberate indifference to medical needs claim against the DOC Defendants, this claim fails because “[c]orrectional defendant-administrators who are not themselves physicians 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.” Davis v. Thomas, 558 Fed. Appx' 150, 155 (3d Cir.) (citing Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.1993)) cert, denied, 135 S.Ct. 269, 2014 WL 3841942 (2014).
With respect to Count Two, Williams asserts that Dr. Jin acted with deliberate indifference to his serious medical needs when he failed to respond to his Coronavirus questions and when he failed to arrange for a Coronavirus test for him despite his request for one. ECF No. 94, ¶¶ 165, 166. Dr. Jin maintains that he never “ignored any threat to Williams” and “followed the DOC policy,” and that “[t]here is no proof that Williams ever had COVID in April-May 2020.” ECF No. 100, pp. 11, 12.
Although Williams alleges that he had unspecified symptoms he associated with the Coronavirus, he does not allege that he contracted the virus or that he became seriously ill. His allegation that his symptoms indicated that he may have contracted the virus is pure speculation. Indeed, the SAC alleges no facts to support that Williams had a serious medical need related to exposure to the Coronavirus. Even if the Court were to assume otherwise, Williams' allegations do not support a finding that Dr. Jin acted with deliberate indifference to this need. Williams complains that Dr. Jin failed to comply with his request for a Coronavirus test, but it is well established that an inmate is not “entitled to a particular course of treatment or to have particular tests performed.” Sanchez, 2014 WL 7392400, at *7 (W.D. Pa. Dec. 11, 2014) (citing Jetter v. Beard, 130 Fed.Appx. 523, 526 (3d Cir .2005), cert, denied, 546 U.S. 985).
In this case, the SAC alleges no facts to suggest the Dr. Jin failed to comply with DOC COVID-19 mitigation policies and procedures or that his decision not to arrange a Coronavirus test for Williams was based on anything other than his medical judgment that the test was medically unnecessary. Thus, Williams' SAC fails to state a deliberate indifference claim based on Dr. Jin's failure to order a Coronavirus test for Williams.
F. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In this case, despite having been afforded multiple opportunities to amend and cure deficiencies in the claims recommended for dismissal, Williams has failed to do so, and it is clear that further amendment would be futile. Accordingly, it is recommended that no further leave to amend be granted to Williams with respect to the claims recommended for dismissal.
III. Conclusion
For the reasons explained herein, it is respectfully recommended that Dr. Jin's motion to dismiss (ECF No. 99) be GRANTED and that the DOC Defendants' motion to dismiss (ECF No. 95) be GRANTED in part and DENIED in part: Specifically, it is recommended that all claims against Dr. Jin and all claims against all DOC Defendants, except Williams' failure to protect claim and conditions of confinement claim asserted in Count One against Wetzel, Capozza, and Armel, be dismissed with prejudice.
IV. Notice
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 waive 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).