Opinion
1:22-CV-00183-SPB
08-14-2023
HAFEES ALSTON, Plaintiff v. GEORGE LITTLE, P.A. SECRETARY OF CORRECTIONS; DERRICK B. OBERLANDER, SUPERINTENDENT; N.P. SUTHERLAND, N.P. LESLIE, K. M. SMITH, MEDICAL MANAGER; JANA SMITH, T. BEIL, KERI MOORE, D. VARNER, AND; AND LISA LAMOREAUX, Defendants
SUSAN PARADISE BAXTER, United States District Judge.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS ECF NOS. 13, 23
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfully recommended that the motion to dismiss filed by Sutherland, Leslie, and Lamoreaux (ECF No. 13) be GRANTED in part and DENIED in part and that the motion to dismiss filed by the seven Pennsylvania Department of Corrections Defendants (ECF No. 23) be GRANTED.
II. REPORT
A. Introduction and Procedural History
Plaintiff Hafees Alston (“Alston”), an inmate currently in the custody of the State Correctional Institution at Frackville (“SCI-Frackville”), commenced this pro se civil rights action against ten individuals who are employees of the Pennsylvania Department of Corrections (“DOC”) or medical personnel who provided medical services at SCI-Forest. Alston's Complaint alleges that certain Defendants violated his rights based on deficient medical care he received for a knee injury and that others violated his rights based on the COVID-19 mitigation restrictions he experienced while incarcerated at SCI-Forest. ECF No. 7. Specifically, Alston claims that the care he received for his knee injury was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the U.S. Constitution and constituted medical malpractice under Pennsylvania state law, and that the conditions of his confinement claim constituted cruel and unusual punishment under the Eighth Amendment and false imprisonment under state law. For relief, Alston seeks “compensatory damages for all of the five dollar Medical co-payments taken from his inmate account,” nominal and punitive damages against each Defendant jointly and severally, declaratory relief, and “an injunction to be housed in a cell by himself where he can be alone/ socially distance himself.” ECF No. 7, p. 36.
Alston has also appended the following exhibits to his complaint: Grievance #916792 and related documents (ECF Nos 7-1 to 7-8), an excerpt from a motion by the Commonwealth to dismiss an unidentified Defendant's petition (ECF No. 7-9), a 1.30.20 Inmate Request to Staff Member Medical Manager form (ECF No. 7-10), a 4.18.20 Inmate Request to Staff Member Medical Manager form (ECF No. 7-11), a 4.10.21 Inmate Request to Staff Member Kim Smith (ECF No. 7-12), a 1.29.22 Inmate Request to Staff Member Medical Manager - Kim Smith (ECF No. 7-13), a 11.13.20 Inmate Request to Staff Member Medical Manager (ECF No. 7-14), Grievance #905466 and related documents (ECF Nos. 7-15 to 7-17), a 2.19.21 Inmate Request to Staff Member Medical - Kim Smith (ECF No. 7-18), a 3.28.21 Inmate Request to Staff Member Medical Manager (ECF No. 7-19), and Alston's December 2020 Monthly Account Statement (ECF No. 7-20).
The Defendants are Nurse Practitioner (“NP”) Leslie, NP Sutherland, Health Services Administrator (“HSA”) Lamoreaux (collectively, “Medical Defendants”), DOC Secretary George Little, SCI-Forest Superintendent Derrick Oberlander, Chief Healthcare Administrator K.M. Smith (“CHCA Smith”), Registered Nurse Jana Smith (“RN Smith”), Chief Grievance Coordinator D. Varner, “Chief Grievance Approver” T. Biel, and “Representative of D. Varner” Keri Moore (collectively, “DOC Defendants”). ECF No. 7, ¶¶ 4-6.
The Medical Defendants responded to the Complaint with a motion to dismiss each of Alston's claims pursuant to Fed.R.Civ.P. 12(b)(6) and brief in support of their motion. ECF Nos. 13, 14. Thereafter, the DOC Defendants filed a Rule 12(b)(6) motion to dismiss each of Alston's claims and a supporting brief. ECF Nos. 23, 24. Alston filed a brief in opposition to the Medical Defendants' motion. ECF Nos. 28. He then filed a brief in opposition to the DOC Defendants' motion. ECF No. 40.
B. Factual Background
The Court accepts as true for purposes of the pending motion the following factual allegations, which arise from Alston's Complaint. On December 27, 2019, Alston was at the SCI-Forest gym when he “suffered a knee injury in which a ‘Pop' was heard.” ECF No. 7, ¶ 8. After Alston contacted medical about this knee injury, he was seen by NP Leslie on January 17, 2020. At this appointment, Leslie performed “a curosy [sic] brief examination,” declared the injury to be unconcerning, and gave Alston Motrin. Id., ¶ 10.
Thereafter, Alston continued to experience knee pain. On January 30, 2020, he complained of knee pain in an Inmate Request to Staff form (“inmate request form”). Lamoreaux responded to this request and told him he needed to submit a sick call request to receive medical attention. On February 19, 2020, “[NP] Sutherland examined [Alston's] knee and determined that the knee needed heightened [sic] level of care from the previous appointment.” Id., ¶ 11. Sutherland gave Alston a steroid shot and ordered an x-ray before sending him “back to the Unit without . . . any Housing Restrictions” ordering that he be moved from the top bunk to the bottom bunk “or a knee brace to protect [Alston] from any further reinjury.” Id., ¶ 13. The x-ray, which was taken at a later date, “showed no structural damage.” Id., ¶ 12.
Alston next wrote to medical staff about his knee pain on April 18, 2020. In this inmate request form, he complained that his knee pain had worsened and asked about the results of his x-ray. Lamoreaux responded to this inmate request form by telling him he had to submit a sick call request to get the x-ray results.
Then, on October 18, 2020, “[Alston] was exiting the top bunk he was still assigned and fell out of the bunk, thus re-injuring” his knee. Id., ¶ 18. His knee was later examined by an unidentified medical staff member, who gave him ice and Motrin. The next day, Alston had another medical appointment with an unidentified medical staff member to examine his knee because his knee still hurt. And about a week later, Leslie examined his knee as well and “determined that [Alston's] knee ha[d] been aggravated in the 10/18/20 incident which resulted in swollenness, decreased range of motion, and a increased [sic] degree of pain.” Id., ¶ 22. Alston's Complaint later adds that Leslie initially “suspected” he had a “L.C.L. tear.” Id., ¶ 72. Leslie scheduled a follow-up appointment and x-ray to be performed two days later. According to Alston, he also “asked Leslie for a M.R.I. to which Leslie replied, ‘NO!'” Id., ¶ 73. However, Leslie appears to have submitted an MRI request later that day. See Id., ¶ 94.
Alston's knee pain persisted. On December 16, 2020, Leslie examined Alston's knee injury in response to a sick call request he had submitted six days prior and “ordered” Alston “to do squats as a remedy for the pain.” Id., ¶ 27. Alston responded to this order by informing “Leslie that his advice” was “in stark contrast to the advice given to [him] ¶ 10/27/20 to rest his knee.” Id., ¶ 28. Alston then questioned why Leslie was prescribing this therapy before he knew the MRI results and the extent of Alston's injury. According to Alston, Leslie responded by saying “thanks for the five bucks,” and then “left without giving” Alston “any medication” or “brace for his knee,” despite “know[ing] that [Alston] was still housed on” the “top bunk/top tier.” Id., ¶¶ 78, 29.
Alston avers that his “injury continued to worsen” because he was “[r]eceiving no medical treatment.” Id., ¶ 30. On December 16, 2020, Alston submitted Grievance No. 905466 in which he complained about the adequacy of his medical treatment.
On January 6, 2021, Alston underwent an MRI. Alston requested the results of this MRI in sick calls he submitted on February 10 and 15, 2021. After receiving no response to either request, he submitted another sick call on February 18, 2021.
Alston then filed Grievance No. 916792 on the “grounds of not receiving proper medical attention and still being housed on the top bunk in his cell, on the top tier of the housing unit.” Id., ¶ 37. RN Smith denied this grievance. Alston appealed this denial, and Superintendent Oberlander upheld the denial. Alston then appealed to the final review, which also upheld the denial of his grievance.
On February 23, 2021, Alston learned his MRI results. According to Alston, the “M.R.I. revealed that the initial injury complained of on 12/27/19 was a torn acl.” Id., ¶ 92. He then received a knee brace and a housing restriction limiting him to the “bottom bunk/bottom tier.” Id., ¶ 44.
On June 24, 2021, Alston had knee surgery. He continued to have knee pain and complained of pain “and complications of the healing process” in a January 2022 sick call request. Id., ¶ 47. Thereafter, Alston began physical therapy for his knee. On January 27, 2022, “[Alston] saw Medical about a popping in his knee”; the medical examiner told him that the popping was “nothing and part of” the “healing process.” Id., ¶ 49. That day, Alston was also moved back to a top bunk while “still wearing a knee brace.” Id., ¶ 50.
Alston complained of knee pain again in a sick call request he submitted on February 1, 2022, and was seen by a doctor two days later. The doctor scheduled an x-ray for an unspecified date and a follow-up x-ray for February 8, 2022. Alston has not disclosed the results of these x-rays but avers that “[his] leg has not healed properly.” Id., ¶ 53.
Alston further asserts that his “injury is compounded by [his] conditions of confinement,” which are “unsafe due to the Covid-19 pandemic and overcrowding/cramped quarters at prison.” Id. He adds that because of “Covid-19 and its variants such as ‘Omicron' [he] is continuously exposed to serious harm and death,” “subjected to continuous unwarranted lockdowns,” and “forced to wear a mask in order to exit his cell.” Id., ¶¶ 53, 54. He also avers that he is “forced to eat cold food inside of his cell next to a toilet.” Id., ¶ 55.
C. 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 Atl. 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. Emp. 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.”). 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.
Finally, because Plaintiff is proceeding pro se, his complaint will 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”).
D. Analysis
Alston asserts that Defendants violated his Eighth Amendment rights by acting with deliberate indifference to his serious knee injury and related medical needs and by subjecting him to unconstitutional conditions of confinement. He also asserts state law claims of false imprisonment and medical malpractice against each Defendant.
The Medical Defendants argue that the allegations of Alston's Complaint demonstrate that they were not deliberately indifferent to Alston's medical needs and that his failure to file a Certificate of Merit requires dismissal of his state law medical malpractice claim. The DOC Defendants argue that Alston's allegations do not support that any of them was personally involved in any actionable conduct. Alternatively, they argue that Alston's allegations fail to state an Eighth Amendment claim against any DOC Defendant and that his state law medical malpractice and false imprisonment claims are barred by sovereign immunity. The Court will address each argument in turn.
1. Eighth Amendment Deliberate Indifference to Serious Medical Needs
“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” See Estelle v. Gamble, 429 U.S. 97 (1976)) (internal quotation omitted). To establish a violation of his constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. See 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).
Alston's allegations concerning the nature and severity of his knee injury and subsequent pain and limitations satisfy the “serious medical need” element of his Eighth Amendment claim. Accordingly, only the second prong of the deliberate indifference test is at issue here: whether the treatment of Alston's knee manifested deliberate indifference to his serious medical needs.
It is well-settled 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) (characterizing a dispute over pain medication as the type of “disagreement over the exact contours of [plaintiff's] medical treatment” that does not violate the constitution)). Similarly, “the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice standing alone is not a constitutional violation.” Id. (quoting Estelle, 429 U.S. at 106). “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). And the Third Circuit has made clear that “there is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'” Wisniewski v. Frommer, 751 Fed.Appx. 192, 195-96 (3d Cir. Oct. 3, 2018) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)). Thus, “courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018) (quoting Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)).
Importantly, liability under civil rights claims pursuant to § 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 “participat[ion] in violating the plaintiff's 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).
i. Alston's Eighth Amendment claim against the Medical Defendants should be dismissed except for that portion of the claim against Leslie and Sutherland based on their denial of his request for a bottom bunk assignment.
Alston argues that Leslie and Sutherland responded with deliberate indifference to his injury and associated pain and limitations. He avers that when he “informed Leslie that he heard a ‘POP' which is indicative of a ligament injury,” at his first knee examination and expressed the same to Sutherland at his appointment a month later, the Defendants should have ordered an MRI instead of an x-ray because an x-ray only “shows structural damage.” ECF No. 7, ¶ 160. See id., ¶ 142. He further asserts that their treatment plan of Motrin, ice, and steroid shots caused him unnecessary pain and suffering because they knew or should have known that these therapies would not alleviate his pain. See e.g., ECF No. 7, ¶¶ 142-144. He also alleges that Leslie and Sutherland's failure to issue a bottom bunk housing restriction until February 2021 caused him unnecessary pain and suffering because they knew or should have known the risk a top bunk posed and failed to mitigate this risk.
The Medical Defendants counter that the Complaint and medical records demonstrate that Leslie and Sutherland “kept a regular course of treatment,” “were responsive to sick calls and took a course of action regarding Plaintiff's condition they believed appropriate.” ECF No. 14, pp. 6-7. They also point out that Alston “was examined by medical personnel on at least ten (10) different instances with vary [sic] options and recommendations for treatment, including providing Motrin, steroid shots to the knee, x-rays, socially distanced visits to the Plaintiff's cell during the Covid-19 pandemic and an MRI.” Id, p. 7.
The allegations show that Alston received continuous treatment and care for his knee. At his initial appointment for his knee injury on January 17, 2020, NP Leslie performed an examination and determined that Motrin would suffice for treatment. His knee was examined again about a month later by NP Sutherland, who gave him a steroid shot and scheduled an x-ray. Alston did not complain to medical staff about knee pain again until two months later, when he wrote about his pain in an inmate request to staff form submitted to Lamoreaux. And, though Lamoreaux responded to his inmate request to staff form instructing him to submit a sick call request to receive medical attention, Alston did not. Upon re-injuring his knee, medical staff examined his knee and gave him ice and Motrin. Leslie examined his knee the next day and scheduled an x-ray, MRI, and follow-up appointment, and gave him knee strengthening exercises. He had an MRI on January 6, 2021, and thereafter received a knee brace, housing restriction, and referral for knee surgery. Medical personnel continued to examine Alston's knee regularly in response to his complaints of knee pain before and after his surgery and continued to provide him with care based on the results of the examinations. Courts have consistently held that regular assessment, treatment, and care like that provided to Alston in this case do not support a finding of deliberate indifference under the Eighth Amendment. See, e.g., Payo v. Stechschulte, 2022 WL 912588, at *7 (W.D. Pa. Mar. 29, 2022) (No deliberate indifference found where it was undisputed that “Plaintiff was seen, evaluated and treated on a regular basis and was prescribed medication as medically needed.”); Gause, 339 Fed.Appx. at 135 (Deliberate indifference standard unmet where “[Plaintiff's] medical records show that he was seen many times by the prison medical staff and received medicine, physical therapy, and even treatment outside of the prison,” thus establishing that “[Plaintiff] received medical care.”).
Alston avers that Leslie and Sutherland mis-diagnosed his initial knee injury and thereby caused him unnecessary pain and suffering. At best, these “[a]llegations of negligent treatment, are medical malpractice claims, not constitutional violation claims.” Gillespie v. Hogan, 182 Fed.Appx. 103, 105 (3d Cir. 2006) (citing Estelle, 429 U.S. 97).
Alston's allegations regarding the delay in issuing a bottom bunk restriction present a closer issue. “Courts have found that it can be [a constitutional] violation where an inmate has a serious medical need requiring him to use the bottom bunk, but prison officials are deliberately indifferent to that need.'” Concepcion v. Russell, 2021 WL 826301, at *4 (E.D. Pa. Mar. 4, 2021) (quoting Saunders v. GEO Grp., Inc., 2019 WL 5558659, at *4 (E.D. Pa. Oct. 25, 2019) (quoting Whitehead v. Wetzel, 2016 WL 356809, at *7 (W.D. Pa. June 2, 2016)). See Wall v. Bushman, 639 Fed.Appx. 92, 95 (3d Cir. 2015) (reversing grant of summary judgment where disputed issue of material fact existed from which a rational factfinder could conclude that prison doctor recklessly disregarded prisoner's need for a lower-bunk assignment or denied the lower-bunk assignment for non-medical reasons)); see also Guilfoil v. Pierce, Civ. A. 2009 WL 688957, at *5 (D. Del. Mar. 16, 2009) (“Refusal of prison officials to assign an inmate with a herniated disc to a bottom bunk may constitute deliberate indifference if the inmate's condition is sufficiently serious.”).
Alston alleges that he informed Leslie and Sutherland of the popping sound he heard upon his initial injury and his related severe pain thereafter and that these Defendants observed swelling in his knee and a decreased range of motion. Sutherland and Leslie's treatment of his knee, including referring Alston for x-rays and an MRI, supports an inference that they recognized the potential seriousness of his injury. And Alston avers that he repeatedly requested a bottom bunk restriction and complained about his knee pain to these Defendants. Yet, according to the Complaint, Alston was not assigned a bottom bunk until February 2021, over a year after he first injured his knee and months after he re-injured it. Read liberally, the Complaint supports a plausible inference that Sutherland and Leslie acted with deliberately indifference to Alston's need for a bottom-bunk assignment.
In summary, Alston's Eighth Amendment claim based on deliberate indifference to his knee fails and should be dismissed as to all Medical Defendants and with respect to all aspects of his care, except for the portion of the claim against Sutherland and Leslie based on their alleged denial of his request for a bottom bunk assignment.
ii. Alston's Complaint fails to support a claim that medical administrators HSA Lamoreaux and CHCA Smith acted with deliberate indifference to his medical needs.
Alston's deliberate indifference to his serious medical needs claim fails against HSA Lamoreaux and CHCA Smith because his allegations do not support an inference that they knew or should have known that he was receiving inadequate medical care or treatment. HSA Lamoreaux and CHCA Smith are unquestionably administrators, not medical providers. See Thomas v. Dragovich, 142 Fed.Appx. 33, 39 (3d Cir. 2005); Fantone v. Herbik, 528 Fed.Appx. 123, 128 n.6 (3d Cir. 2013); Roberts v. Tretnick, 2014 WL 4218249, *3-4 (W.D. Pa. 2014); McEachin v. Wilson, 2009 WL 5206008, *13 (W.D. Pa. 2009) “‘To state an Eighth Amendment claim of deliberate indifference against' a corrections healthcare administrator, [Alston] must show that she ‘possessed actual knowledge or a reason to believe that prison doctors or their assistants [were] mistreating (or not treating) him.'” Trainor v. Wellpath, et al., 2021 WL 3913970, at *10 (W.D. Pa. Sept. 1, 2021) (citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)) (internal citations omitted). In Spruill the Court of Appeals explained the rationale for this standard as follows:
If a prisoner is under the care of medical experts ... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a non-medical prison official liable in a case where a prisoner was under a physician's care would strain this division of labor. Moreover, under such a regime, non-medical officials could even have a perverse incentive not to delegate treatment responsibility to the very physicians most likely to be able to help prisoners, for fear of vicarious liability.Spruill 372 F.3d at 236.
Alston appears to premise HSA Lamoreaux and CHCA Smith's liability on their role as healthcare administrators and their responses to his inmate request to staff forms. He alleges that HSA Lamoreaux and CHCA Smith knew or should have known that he was receiving deficient medical treatment because they received his inmate request forms and sick call slips. He then avers that their failure to intervene in his treatment in accordance with his complaints constituted deliberate indifference. He further asserts that CHCA Smith's deliberate indifference is also evidenced by her denial of his grievance. These allegations do not support that HSA Lamoreaux and CHCA Smith were “directly responsible - whether through [their] own actions, a policy for which [they] w[ere] responsible, or [their] knowledge and acquiescence in subordinates' behavior - for” the medical care and treatment Alston received, including when he received a bottom bunk restriction. Concepcion v. Russell, 2021 WL 826301, at *5 (E.D. Pa. Mar. 4, 2021). Accordingly, Alston's Complaint does not state a claim of deliberate indifference against HSA Lamoreaux or CHCA Smith. Alston's general averments about Smith's conduct also do not support that she engaged in actionable conduct. See Walker v. Glunt, 654 Fed.Appx. 531, 533 (3d Cir. 2016) (“Here, [inmate-plaintiff] only broadly alleged that [defendant] received his ‘request slip' after the incident, but did not respond. [Inmate-plaintiff] has not alleged [defendant]'s knowledge and acquiescence with the required particularity, nor has [inmateplaintiff] offered evidence tending to show that [defendant] had the necessary level of involvement in the underlying allegedly unconstitutional conduct for the claim against him to survive.”); accord Enlow v. Beard, 2013 WL 5332139, *5 (W.D. Pa. Sept. 23, 2013) (holding that plaintiff has not shown personal involvement on the part of the defendants to whom he allegedly sent inmate request slips informing them of the inappropriate bunk transfer)).
iii. Alston's allegations fail to support the personal involvement of RN Smith, Varner, Moore, Biel, Oberlander, and Little.
DOC Defendants argue that Alston's deliberate indifference claim against them fails “[b]ecause not one of the [DOC] Defendants have any personal involvement in Mr. Alston's alleged medical woes.” ECF No. 24. The Complaint's allegations against the DOC Defendants are limited to the following: CHCA Smith denied Grievance No. 905466 on January 5, 2021; RN Smith denied Grievance No. 916792 on March 4, 2021; and on April 18, 2021, Oberlander denied Alston's appeal of Grievance No. 916792. ECF No. 7, ¶¶ 32, 37, 40. Alston also alleges that he complained to CHCA Smith about “the ongoing pain [he] has endured since 12/27/19 until the filing of sick-calls 2/10/21, 2/15/21” and that he still had not received the MRI results in an inmate request to staff form submitted on February 19, 2021, and that he “wrote Medical Manager Kim Smith as Exhaustion of Legal Remedies for Medical Documents to support claims raised.” Id., ¶¶ 35, 58. His only mention of Little is in the “Defendants” section of the Complaint, where he appears to premise Little's lability on his assertion that Little is “legally responsible for the overall operation of the” facility. Id., ¶¶ 4, 5. He further avers that Oberlander is too, as well as “legally responsible for the . . . welfare of all of the inmates in that [sic] prison.” Id., ¶ 5. No factual allegations concern Varner, Biel, and Moore, and Alston only states their job title when naming them in the “Defendants” section: “Chief Grievance Coordinator,” “Chief Grievance Approver,” and “Representative of [Varner],” respectively. Id., ¶6. Alston therefore appears to base these Defendants' liability solely upon their role in the grievance process.
These general allegations do not support the personal involvement of any DOC Defendant under § 1983. As the DOC Defendants correctly argue, Defendants' participation in the grievance process, without more, cannot support personal liability. The DOC Defendants also rightly assert that the “‘mere hypothesis' that an official is personally involved in complained-of conduct ‘simply because of his [supervisory position]' is an insufficient basis for finding Section 1983 liability.” ECF No. 24, p. 6 (quoting Evancho, 423 F.3d at 354). Accordingly, Alston's allegations do not state an Eighth Amendment deliberate indifference claim against Biel, Little, Moore, Oberlander, RN Smith, and Varner.
2. Alston's allegations do not state an Eighth Amendment conditions of confinement claim.
Alston also appears to assert an Eighth Amendment conditions of confinement claim against the Defendants. 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. Seiter, 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 v. Brennan, 511 U.S. 825, 834 (1994)) (quotation marks and citations omitted).
Alston avers that he “is being forced to live in a cell with another inmate during this Pandemic and this two inmates in a single cell [sic] constitutes Cruel and Unusual Punishment.” ECF No. 7, ¶ 165. He adds that his “exposure to the deadly disease / Virus is also Cruel and Unusual as Plaintiff is defenseless and cannot socially distance himself.” Id. Further, Alston avers that he is “forced to eat cold food inside of his cell next to a toilet.” Id., ¶ 55.
These allegations do not support a plausible inference that Alston has been subjected to an “objectively, sufficiently serious” condition of confinement. In fact, Alston describes the general conditions of confinement at SCI-Forest that all inmates unavoidably faced during the pandemic. These allegations also do not attribute a particular deprivation to any Defendant's
actionable conduct. Furthermore, and as DOC Defendants note, the Court of Appeals for the Third Circuit has rejected the proposition that measures adopted by the DOC to mitigate the spread of COVID-19 create unconstitutional conditions of confinement. Washington v. Warden Canaan USP, 858 Fed.Appx. 35, 37 (3d Cir. 2021)); see also id. (listing cases); ECF No. 24, p. 9. Accordingly, Alston's Eighth Amendment conditions of confinement claim should be dismissed as to all Defendants.
3. Alston's failure to file a certificate of merit is fatal to Alston's medical malpractice claim against the Medical Defendants, and his medical malpractice claim fails as a matter of law as to all other Defendants.
Alston also asserts that Medical Defendants' care fell below the accepted standard of care and represents medical malpractice under Pennsylvania Law. To support such a claim, Alston must establish the following elements:
(1) the [medical professional] owed a duty to the patient; (2) the [medical professional] breached the duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm.Grant v. Pennsylvania Dep't of Corr., 2021 WL 4312451, at *12 (W.D. Pa. Aug. 6, 2021), report and recommendation adopted, 2021 WL 3828146 (W.D. Pa. Aug. 27, 2021) (quoting Doe v. Hosp. of Univ. of Pa., 546 F.Supp.3d 336 (E.D. Pa. 2021)).
Rule 1042.3 of the Pennsylvania Rules of Civil Procedure generally requires a plaintiff asserting a medical or professional malpractice claim to file a Certificate of Merit (“COM”) for each defendant who is the subject of the claim either with the complaint or within 60 days thereafter. See 231 Pa. Code Rule 1042.3(a). The COM must attest that there is a reasonable probability that the medical or other professional care described in the complaint fell outside of acceptable professional standards. The Third Circuit has held that Rule 1042.3 is substantive law that applies to professional malpractice claims based on Pennsylvania law that are asserted in federal court. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 262-64 (3d Cir. 2011) (citing Erie R.R. v. Thompkins, 304 U.S. 64 (1983)). Thus, for purposes of a motion to dismiss or motion for summary judgment, Rule 1042.3 is applied as “controlling, substantive state law.” Scaramuzza v. Sciolla, 345 F.Supp.2d 508, 509-10 (E.D. Pa. 2004). “[A] plaintiff's failure to comply with Rule 1042.3 requires dismissal of any malpractice claim.” Bennett v. PrimeCare Medical, Inc., 2018 WL 6072126, at *10 (M.D. Pa. Sept. 14, 2018). While the Court recognizes the difficulties inmates face in obtaining a COM, they are not excused from the requirements of Rule 1042.3.
Rule 1042.3(a) of the Pennsylvania Rules of Civil Procedure states:
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard . . . the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the . . . party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or . . .
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or . . .
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.231 Pa. Code Rule 1042.3(a).
However, “Pennsylvania practice expressly provides plaintiffs with notice of Rule 1042.3's requirements and an opportunity to cure any failure to file a certificate of merit before a matter is dismissed.” TranSystems Corp. v. Hughes Associates, Inc., 2014 WL 6674421, at *5 (M.D. Pa. Nov. 24, 2014). Rule 1042.6 of the Pennsylvania Rules of Civil Procedure states:
(a) ... a defendant seeking to enter a judgment of non pros under Rule 1042.7(a) shall file a written notice of intention to file the
praecipe and serve it on the party's attorney of record or on the party if unrepresented, no sooner than the thirty-first day after the filing of the complaint.Pa. R. Civ. P. 1042.6(a). Under this rule, no judgment may be entered against a plaintiff for failure to timely file a COM unless the defendant has complied with its notice requirements. Schmigel v. Uchal, 800 F.3d 113, 124 (3d Cir. 2015) (“The condition of thirty days' notice prior to seeking dismissal of an action for failure to comply with the COM regime is substantive and must be applied in federal court.”).
Here, the Medical Defendants provided Alston with the requisite notice of their intention to seek dismissal on November 13, 2022. ECF No. 17. Alston's medical malpractice claim requires expert testimony to identify the applicable standard of professional care, a deviation from that standard, and causation of injury or other damages. Accordingly, Alston's failure to provide a COM for each Medical Defendant is fatal to his medical malpractice claim against Sutherland, Lamoreaux, and Leslie.
Although Alston does not appear to assert a medical malpractice claim against the DOC Defendants, DOC Defendants correctly assert that “non-medical [DOC] employees do not fall within the scope of Pennsylvania's ‘medical-professional liability exception'” to sovereign immunity. ECF No. 24, p. 11 (citing Steinberg v. Department of Public Welfare, 405 A.2d 1135 (Pa. Cmwlth. 1979); Jackson v. Beard, 2010 WL 887246 (W.D. Pa. 2010); Johnson v. Department of Corrections, 1992 WL 392601 (E.D. Pa. 1992)). See also 1 Pa. C.S. § 2310; 42 Pa. C.S. § 8522(b). DOC Defendants are also correct in their contention that CHCA Smith and RN Smith are not alleged to have “participated in the alleged medical acts to give rise to a cognizable medical malpractice and medical negligence claim.” Id. See Grant, 2021 WL 4312451, at *12 (quoting Doe, 546 F.Supp.3d 336) (elements of Pennsylvania medical malpractice claim). As such, his medical malpractice claim should be dismissed without prejudice against CHCA Smith and RN Smith and with prejudice against the remaining DOC Defendants.
4. Alston's Complaint fails to state a state law false imprisonment claim.
Lastly, Alston asserts a claim of false imprisonment against Defendants for “being forced to wear a mask in order to exit the cell for shower, phone, etc.” because “said mask complicates Plaintiff's breathing making it difficult to function properly. As such Plaintiff is compelled to remain inside of his cell for extended periods of time against his will.” ECF No. 7, ¶ 201. False imprisonment claims can be brought under either federal civil rights law or state tort law. Although Alston does not specify under which he is proceeding, this failure is irrelevant because his claim is facially invalid under either.
A civil rights false imprisonment claim under the Fourth Amendment requires the Plaintiff to establish that they were arrested without probable cause and are consequently falsely imprisoned. See James v. City of Wilkes-Barre, 700 F.3d 675, 682-83 (3d Cir. 2012). Alston does not challenge the legality of his conviction or resulting incarceration. Thus, he has no basis for a false imprisonment claim under the Fourth Amendment. A rightfully incarcerated individual cannot assert a false imprisonment claim based on his cell assignment or other conditions of confinement. Challenges to a prisoner's conditions of confinement are asserted under the Eighth Amendment, not as a false imprisonment claim under the Fourth Amendment. And, as noted above, the allegations of his Complaint fail to support that Alston's conditions of confinement violate his rights under the Eighth Amendment.
Any false imprisonment claim asserted by Alston under Pennsylvania state law also fails as a matter of law. Such a claim requires a plaintiff to allege facts to demonstrate:
1) defendant detained her; and 2) the detention was unlawful. Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994)). More specifically, liability for false imprisonment attaches where: (a) one acts intending to confine another within boundaries fixed by the actor, (b) his act results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it.Kintzel v. Kleeman, 965 F.Supp.2d 601, 608 (M.D. Pa. 2013) (citing Gagliardi v. Lynn, 285 A.2d 109, 111 n.2 (1971)). Alston has alleged no facts to support that his confinement was unlawful.
The DOC Defendants additionally argue that any false imprisonment claim is barred by sovereign immunity. The doctrine of sovereign immunity provides state officials with broad immunity from most state-law tort claims, “except as the General Assembly shall specifically waive the immunity.” 1 Pa. C.S. § 2310. Although the Pennsylvania General Assembly “has waived sovereign immunity for claims of negligence against Commonwealth employees in a very limited and express set of circumstances,” it has not done so for intentional torts. Id. (citing 42 Pa.C.S. § 8522(b)). Kull v. Guisse, 81 A.3d 148, 157 (Pa. Comm. Ct. 2013) (“[S]tate employees do not lose their immunity for intentional torts, provided they are acting within the scope of their employment.”) (citations omitted, emphasis added). Consequently, sovereign immunity “shields Commonwealth employees from liability when their actions: (1) cannot fit into one of the nine statutory exceptions in § 8522; (2) are not negligent; and (3) occurred when acting within the scope of his or her employment.” Tibbens v. Snyder, 2020 WL 5372097, at *5 (M.D. Pa. June 24, 2020) (citing Kintzel v. Kleeman, 965 F.Supp.2d 601, 606 (M.D. Pa. 2013)).
Specifically, the General Assembly has waived immunity in cases of: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. C.S.A. § 8522.
False imprisonment is an intentional tort that does not fall within the statutory exceptions enumerated in § 8522. See, e.g., Brown v. Smith, 2019 WL 2411749, at *4 (W.D. Pa. June 7, 2019) (noting that assault and battery do not fall within the § 8522 exceptions). Furthermore, no plausible basis exists for inferring that any Defendant was acting outside of the scope of his or her employment. Accordingly, Alston's false imprisonment claim against the DOC Defendants is both facially deficient and barred by sovereign immunity.
III. LEAVE TO AMEND
The Third Circuit has instructed that if a 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). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are 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, where Alston's own factual allegations demonstrate that his overall medical care comported with Eighth Amendment requirements, it would be futile to allow leave to amend the aspects of that claim that are subject to dismissal. Similarly, because of the fundamental nature of the defects in Alston's false imprisonment claims, they should also be dismissed with prejudice. Regarding Alston's conditions of confinement claim, while it is unlikely that additional allegations of fact could elevate his allegations to an Eighth Amendment violation, the undersigned cannot say with certainty that amendment would be futile. In addition, the Court of Appeals has directed that dismissals of medical malpractice claims in federal court based on the failure to produce a COM must be without prejudice. Booker v. United States, 366 Fed.Appx. 425, 427 (3d Cir. 2010) (citing Stroud v. Abington Memorial Hospital, 546 F.Supp.2d 238, 250 (E.D. Pa. 2008) and Scaramuzza v. Sciolla, 345 F.Supp.2d 508, 510-11 (E.D.Pa.2004)). This implies that a plaintiff may later cure this defect by amendment, provided such is not precluded by other considerations under Rule 15 of the Federal Rules of Civil Procedure. Thus, Alston should only be prohibited from amending his medical malpractice claim against Little, Oberlander, Beil, Moore, and Varner.
IV. Conclusion
For the foregoing reasons, it is respectfully recommended that the DOC Defendants' motion to dismiss be GRANTED and Medial Defendants' motion to dismiss be GRANTED in part and DENIED in part. Specifically, the undersigned recommends that:
• Alston's Eighth Amendment deliberate indifference to medical needs claim be dismissed with prejudice as to all Defendants, except as to Defendants Sutherland and Leslie, and the claim against these two Defendants be permitted to continue only to the extent it is based on their alleged denial of a lower bunk assignment;
• Alston's Eighth Amendment conditions of confinement claim be dismissed without prejudice and with leave to file an amended complaint;
• Alston's state law medical malpractice claim be dismissed without prejudice, except as to Defendants Little, Oberlander, Beil, Moore, and Varner, and the medical malpractice claim against them be dismissed with prejudice; and
• Alston's false imprisonment claims be dismissed with prejudice.
V. 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).