Opinion
2:17-CV-01035-NBF
08-19-2021
PITTSBURGH ARTHUR BOMAR, Plaintiff, v. BRAUNLICH, LIEUTENANT AT SCI-GREENE; CODY, CORRECTIONAL OFFICER; C. MARTIN, CORRECTIONAL OFFICER; HICKS, CORRECTIONAL OFFICER; T. LEWIS, CORRECTIONAL OFFICER; J. MCCUNE, CORRECTIONAL OFFICER; GUMP, CORRECTIONAL OFFICER; RONNIE FEATHER, CORRECTIONAL OFFICER; MILLS, CORRECTIONAL OFFICER; SHALLENBERGER, CORRECTIONAL OFFICER; STANDARD, CORRECTIONAL OFFICER; SICKLES, CORRECTIONAL OFFICER; JENKINS, CORRECTIONAL SERGEANT OFFICER; MAZON, CORRECTIONAL OFFICER; MCGEE, CORRECTIONAL OFFICER; R. MAYER, CORRECTIONAL OFFICER; BRANT, CORRECTIONAL OFFICER; MCANANY, CORRECTIONAL INSTITUTION ADMINISTRATION STAFF; CAPTAIN SWITZER, CORRECTIONAL CAPTAIN/SHIFT COMMANDER; TATE, RN; DICE, RN; LORI RIDINGS, RN; DR. DENISE SMYTH, NATALIE AUSTIN, PA-C; HENDERSON, CORRECTIONAL OFFICER; ORBASH, CORRECTIONAL OFFICER; LT. PROCE, CORRECTIONAL LIEUTENANT; AND ASHLEY BOOKER, RN; Defendants.
Arthur Bomar Pro Se.
Arthur Bomar Pro Se.
Nora Barry Fischer, District Judge.
REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS ECF NOS. 133, 135
LISA PUPO LENIHAN, United States Magistrate Judge.
I. RECOMMENDATION
For the reasons stated below, it is respectfully recommended that the Motions to Dismiss by Defendants of the Pennsylvania Department of Corrections (“DOC Defendants”) and by Defendants Ridings, Smyth, and Austin of the medical staff at SCI-Greene (“Medical Defendants”) be granted in part, with the exception of the deliberate indifference claim against Defendant Tate. The Motion should be denied as to the deliberate indifference claim against Tate. It is recommended that the remaining Defendants be terminated from the case.
DOC Defendants include Defendant Braunlich in their latest Motion to Dismiss. The Court will not consider the arguments in regard to Defendant Braunlich. It has already denied the Motion to Dismiss the claims against him in a previous Report and Recommendation which was adopted by the District Court. See ECF Nos. 72, 73. In this case, the allegations of Braunlich are essentially the same as those in the First Amended Complaint, as are the arguments in favor of dismissal. The Court's decision constitutes Law of the Case. See Pub. Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997)(“The law of the case doctrine directs courts to refrain from re-deciding issues that were resolved earlier in the litigation.”)
II. REPORT
A. Factual and Procedural Background
This matter has a long and complicated procedural background. Plaintiff Arthur Bomar (“Plaintiff”), pro se, filed this action pursuant to 42 U.S.C. § 1983 against the Corrections and Medical staff at SCI-Greene for claims of excessive force and deliberate indifference under the Eighth Amendment, a claim for violation of the due process clause of the Fourteenth Amendment, as well as a claim for assault and battery. ECF No. 1. The Complaint was filed in the Commonwealth Court of Pennsylvania on July 24, 2017, and DOC Defendants removed it to the United States District Court for the Western District of Pennsylvania. Id.
Plaintiff alleges that when he was incarcerated at SCI-Greene, two officers (not named as defendants in the Second Amended Complaint) told him on December 14, 2016 that he was being transferred to SCI-Graterford because he had an upcoming court date. ECF No. 116 ¶ 34. Plaintiff told the officers that he did not have a court date and would refuse to go. Id. ¶ 37. The next day, more officers (also not named as defendants) came to his cell to escort him to intake for transfer to SCI-Graterford. Plaintiff refused to go, and the officers left. Id. ¶¶ 38, 39.
Four days later, on December 19, 2016, Defendant Braunlich, along with a “seven man extraction team” of Defendants Cody, Martin, Hicks, Lewis, McCune, Gump, and Standard, came to Plaintiff's cell. Id. ¶ 40. Without warning, Braunlich opened the cell door wicket and sprayed Plaintiff with a large container of OC spray, covering his face and the rest of him. Id. ¶¶ 41, 42. Plaintiff then placed his hands outside the wicket and Defendant McCune cuffed them. Id. ¶¶ 43, 44. McCune also shackled Plaintiff's feet when Plaintiff exited his cell and was placed on his knees. Id. ¶ 44. Defendants Lewis and Martin then escorted Plaintiff to the medical room, where Defendant Tate, who is an RN, was waiting. Id. ¶ 45. Plaintiff states, “at that time nothing was done to decontaminated [sic] Plaintiff of the chemical agent.” Id. ¶ 46.
Defendants McCune, Lewis, and Martin placed Plaintiff in a restraint chair. Then Defendants Braunlich, McCune, Lewis, Martin, Cody, Hicks, Feather, Henderson, Mills, and Tate escorted Plaintiff to intake for the prison transfer. Id. ¶ 47. Defendants Lewis and McCune removed Plaintiff from the restraint chair. Defendants Martin and Henderson strip searched Plaintiff. Plaintiff still had not been decontaminated at this point. Id. ¶¶ 48, 49. After the search, Defendants Martin and Henderson gave Plaintiff back the same clothes which he was wearing when he was sprayed, and which were also not cleaned off. Id. ¶ 51. Plaintiff states that he was “not allowed to clean himself by taking a shower, or wash-up, obtain clean clothing, underwear, jumpsuit, etc.” He also did not receive medical treatment. Id. ¶ 52.
Defendants Martin and Henderson then placed Plaintiff back into hand cuffs and leg shackles. Id. ¶ 53. Defendants Henderson, Mills, and Orbash escorted Plaintiff to SCI-Camp Hill in the transport van, with Plaintiff still covered in the OC spray. Id. ¶¶ 54, 55. When Plaintiff arrived at SCI-Camp Hill, Defendant Proce escorted him from the transport van into the prison, to intake, and then to a cell. Id. ¶ 56. Plaintiff waited for about one and a half hours in the cell still covered in OC. Id. Plaintiff states that “nothing was done to decontaminated [sic] Plaintiff of the chemical agent, ” and that he was “again denied medical treatment.” Id. ¶ 58. Plaintiff spent nine hours covered in the chemical agent. Id. ¶ 59. Plaintiff experienced “physical burning of the skin, eyes, face, hands, legs, tongue, and throat plus chest pain.” Id. ¶ 60.
Plaintiff alleges that Defendants Switzer and McAnany both authorized the use of the OC spray on Plaintiff, and they should have known by their training and commonsense that Plaintiff should have been decontaminated right after he was sprayed, and not be denied medical treatment for nine hours after being sprayed. Id. ¶¶ 61, 62. Plaintiff also alleges that Defendants Tate, Dice, Austin, Smyth, Booker, and Ridings also authorized the use of the OC spray on Plaintiff, and should have known by their training and commonsense that Plaintiff should have been decontaminated and given medical treatment soon after being sprayed. Id. ¶ 63.
Plaintiff submitted a grievance on February 13, 2017, complaining of being forcibly extracted from his cell on December 19, 2016, and how he was not decontaminated and received no medical attention for nine hours after being sprayed with the OC chemical agent. ECF No. 136-1 at p. 2. The grievance names Defendant Braunlich, “John/Jane Doe's (1-99, those who were directly involved in the use of chemical agents and/or extraction of Grievant), ” several other defendants who have since been terminated from this case, and “John/Jane Doe's (1-99, as to those unknown at this time due to a lack of discovery, but those who were directly involved in the incident, either pretransfer or subsequent.” Id. at p. 3. The security staff at SCI-Greene investigated his grievance and found it to be unsubstantiated with regard to abuse. Id. at p. 1. Plaintiff appealed the denials to the final stage, which was again denied by the Secretary's Office of Inmate Grievances and Appeals. Id.
Plaintiff claims that all named DOC Defendants used excessive force against him in violation of the Eighth Amendment. ECF No. 116 ¶ 66. Plaintiff also claims that their actions in using physical force against Plaintiff without need or provocation constitutes assault and battery under Pennsylvania law. Id. ¶ 67. Plaintiff claims that Defendants Switzer, Braunlich, McAnany, Tate, Dice, Austin, Smyth, Booker, Ridings, and Proce, were deliberately indifferent to his need for medical attention after he was sprayed with OC, and thus violated the prohibition against cruel and unusual punishment under the Eighth Amendment. Id. ¶ 68.
In September 2017, DOC Defendants filed the first Motion to Dismiss to the original Complaint and a Motion to Stay Discovery. ECF Nos. 4, 6. Plaintiff motioned to quash the Motion to Stay Discovery; the Court denied that motion due to the pending Motion to Dismiss, which argued for dismissal based on issues that required little to no discovery. ECF Nos. 11, 13. In October 2017, Plaintiff submitted a Motion to Amend Complaint and Response to Defendants' Motion to Dismiss. ECF No. 15. The Court granted Plaintiff leave to file a new, complete Amended Complaint within fourteen days. ECF No. 16. One month later, when the Court did not receive an Amended Complaint, it ordered Defendants to proceed with their response to Plaintiff's original Complaint. ECF No. 23.
In November 2017, Defendants who have since been terminated filed their respective Motions to Dismiss the original Complaint. ECF Nos. 24, 26, 28. After Plaintiff was granted two extensions to file responses and one extension to file Objections to the Report and Recommendation, the District Court adopted the Report and Recommendation terminating certain defendants from the case on May 3, w, 2017. ECF No. 42. The District Court granted Plaintiff an additional 21 days to submit an Amended Complaint. Id. Plaintiff requested another extension of ninety days, which this Court rejected but allowed thirty days. ECF Nos. 43, 44.
On August 1, 2018, when Plaintiff failed to submit an Amended Complaint by the deadline, the Court entered an Order to Show Cause why the case should not be dismissed for Plaintiff's failure to prosecute. ECF No. 45. Plaintiff responded that he was trying to find a lawyer to assist him. ECF No. 46. The District Court then administratively closed the case on the condition that Plaintiff was to file status reports of his efforts to find representation every 60 days. ECF No. 47. Plaintiff submitted updates in late 2018 and early 2019. ECF Nos. 48-50. The case was reopened in March 2019 without Plaintiff securing counsel. ECF No. 53. Plaintiff was granted one month to submit an Amended Complaint. Id. Plaintiff motioned to strike the order to reopen the case, which was denied. ECF Nos. 54, 55. Plaintiff then was given until May 24, 2019 to submit his Amended Complaint or the Court would recommend dismissal for failure to prosecute. ECF No. 56. Throughout April and May 2019, Plaintiff tried to compel discovery, which was ultimately denied. ECF Nos. 57-60. On June 5, 2019, this Court entered another Order to Show Cause as to why the case should not be dismissed for failure to prosecute. ECF No. 63.
On June 20, 2019, Plaintiff finally filed an Amended Complaint. ECF No. 64. This Court issued its Report and Recommendation in February 2020, adopted by the District Court, denying the Motion to Dismiss with respect to Defendant Braunlich, but granting it with respect to Defendants Wetzel and Gilmore. ECF No. 72. The Court ordered Defendants to provide Plaintiff with records that would help him with identifying the John and Jane Doe Defendants in his Amended Complaint. ECF No. 74. The Court also granted Plaintiff until June 1, 2020, to file a Second Amended Complaint having identified all John and Jane Does.
After several months of discovery, from February to June 2020, the Court held a teleconference with the parties, in which extensive discussion took place on how to identify the officers who transported Plaintiff from SCI-Greene to SCI-Camp Hill and then to SCI-Graterford. ECF No. 97. Plaintiff also needed medical records. Defendants would resume looking for those records even though previous efforts had yielded nothing, and Plaintiff was given until July 10, 2020, to submit a proposed Second Amendment, in which he must identify any defendant by name and assert all claims against all parties. Id. The Court advised Plaintiff that any remaining Doe defendants would be dismissed. Id.
On July 14, 2020, Plaintiff motioned again for an extension of time to file his Second Amended Complaint, asking for another sixty days because he was having trouble accessing the law library. ECF No. 101. The Court granted him an extension until August 7, 2020, noting that Plaintiff is not seeking to add more causes of action, but simply to identify the unnamed defendants, and therefore does not see the need to use the law library. ECF No. 102. On July 31, 2020, Plaintiff submitted a Motion for Leave to Amend. ECF No. 105. This Court denied the motion because Plaintiff still named Doe defendants, and gave Plaintiff until August 14, 2020 to file an Amended Complaint with all Does identified. ECF No. 106. When the Court received nothing by that date, it filed a Report and Recommendation on August 31, 2020 to dismiss the Doe defendants. ECF No. 107
On September 14, 2020, Defendant Braunlich filed a status report as part of the discovery process in which he provided Plaintiff with a few more names of individuals who may have been involved in the transport process. ECF No. 112. For that reason, the District Court denied the Report and Recommendation at ECF 107 to give Plaintiff an opportunity to file a Second Amended Complaint by October 15, 2020. ECF No. 113. The District Court stated in its text order “NO FURTHER AMENDMENTS SHALL BE PERMITTED.” Id. On October 6, Plaintiff requested yet more time to submit his Second Amended Complaint, which this Court granted. ECF No. 115.
Finally, on December 7, 2020, Plaintiff filed the present Second Amended Complaint, naming new DOC Defendants as well as Medical Defendants. ECF No. 116. DOC Defendants have moved to dismiss the Second Amended Complaint. ECF No. 133. Medical Defendants Smyth, Ridings, and Austin have moved to dismiss or in the alternative for Summary Judgment. ECF No. 135. Plaintiff has responded to both Motions. ECF No. 139. The Motions are now ripe for review.
B. Legal Standard
1. Motion to Dismiss
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the
speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
2. Exhaustion of Administrative Remedies
Through the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), Congress amended 42 U.S.C. § 1997e(a) to prohibit prisoners from bringing an action with respect to prison conditions pursuant to 42 U.S.C. § 1983 or any other federal law, until such administrative remedies as are available are exhausted. Specifically, the act provides in pertinent part as follows:
No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. § 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). Exhaustion is required under this provision regardless of the type of relief sought and the type of relief available through administrative procedures. See Booth v. Churner, 532 U.S. 731, 741 (2001). In addition, the exhaustion requirement applies to all claims relating to prison life which do not implicate the duration of the prisoner's sentence, including those that involve general circumstances as well as particular episodes. See Porter v. Nussle, 524 U.S. 516, 532 (2002).
The PLRA also mandates that inmates “properly” exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjunctive system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91. Importantly, the exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally defective . . . appeal.” Id. at 83; see also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004) (utilizing a procedural default analysis to reach the same conclusion). Courts have concluded that inmates who fail to fully, or timely, complete the prison grievance process are barred from subsequently litigating claims in federal courts. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir. 2000); Bolla v. Strickland, 304 Fed.Appx. 22 (3d Cir. 2008); Jetter v. Beard, 183 Fed.Appx. 178 (3d Cir. 2006).
This broad rule favoring full exhaustion admits of one, narrowly defined exception. If the actions of prison officials directly caused the inmate's procedural default on a grievance, the inmate will not be held to strict compliance with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (Section 1997e(a) only requires that prisoners exhaust such administrative remedies “as are available”). However, case law recognizes a clear “reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires.” Davis v. Warman, 49 Fed.Appx. 365, 368 (3d Cir. 2002). Thus, an inmate's failure to exhaust will only be excused “under certain limited circumstances, ” Harris v. Armstrong, 149 Fed.Appx. 58, 59 (3d Cir. 2005), and an inmate can defeat a claim of failure to exhaust only by showing “he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate.” Davis, 49 Fed.Appx. at 368; see also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002) (assuming that prisoner with failure to protect claim is entitled to rely on instruction by prison officials to wait for outcome of internal security investigation before filing grievance); Camp, 219 F.3d at 281 (exhaustion requirement met where Office of Professional Responsibility fully examined merits of excessive force claim and correctional officers impeded filing of grievance).
In the absence of competent proof that an inmate was misled by corrections officials, or some other extraordinary circumstances, inmate requests to excuse a failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot excuse a failure to timely comply with these grievance procedures by simply claiming that his efforts constituted “substantial compliance” with this statutory exhaustion requirement. Harris, 149 Fed.Appx. at 59. Nor can an inmate avoid this exhaustion requirement by merely alleging that the Department of Corrections policies were not clearly explained to him. Davis, 49 Fed.Appx. at 368. Thus, an inmate's confusion regarding these grievances procedures does not, standing alone, excuse a failure to exhaust. Casey v. Smith, 71 Fed.Appx. 916 (3d Cir. 2003). Moreover, an inmate cannot cite to alleged staff impediments to grieving a matter as grounds for excusing a failure to exhaust, if it also appears that the prisoner did not pursue a proper grievance once those impediments were removed. Oliver v. Moore, 145 Fed.Appx. 731 (3d Cir. 2005) (failure to exhaust not excused if, after staff allegedly ceased efforts to impede grievance, prisoner failed to follow through on grievance).
No analysis of exhaustion may be made absent an understanding of the administrative process available to state inmates. “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.' The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirement, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).
Within DC-ADM 804, the Inmate Grievance System Policy, the Pennsylvania Department of Corrections established a three-step Inmate Grievance System to provide inmates with an avenue to seek review of problems that may arise during the course of confinement. Pursuant to DC-ADM 804, after an attempt to resolve any problems informally, an inmate may submit a written grievance to the facility's Grievance Coordinator for initial review. This must occur within fifteen days after the events upon which the claims are based. Within fifteen days of an adverse decision by the Grievance Coordinator, an inmate may then appeal to the Facility Manager of the institution. Within fifteen days of an adverse decision by the Facility Manager, an inmate may file a final appeal to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”). An appeal to final review cannot be completed unless an inmate complies with all established procedures. An inmate must exhaust all three levels of review and comply with all procedural requirements of the grievance review process in order to fully exhaust an issue. See Booth v. Churner, 206 F.3d 289, 293 n.2 (3d Cir. 2000) (outlining Pennsylvania's grievance review process); Ingram v. SCI Camp Hill, No. 08-23, 2010 U.S. Dist. LEXIS 127124, at *21-25 (M.D. Pa. Dec. 1, 2010) (same).
C. Discussion
1. Medical Defendants' Motion to Dismiss
Medical Defendants Smyth, Ridings and Austin argue, inter alia, that Plaintiff has failed to exhaust his administrative remedies with regard to them. ECF No. 136, p. 12. Of the total of nine grievances appealed to SOIGA by Plaintiff between July 2016 and June 2017, only one is relevant to the allegations made in this case. Id. at pp. 13-14. That grievance did not mention the claim he now asserts against these Defendants. Id. at p. 14. Plaintiff responds: “Plaintiff did state within his amended complaint that Plaintiff has exhausted his administrative remedies with respect to all claims and all defendants.” ECF No. 139, p. 7.
First, Plaintiff appears to misunderstand the meaning of exhausting one's administrative remedies. Stating that one has exhausted one's administrative remedies in the complaint does not mean that those remedies could then be deemed exhausted. The Court must examine the grievance related to the allegations in the Second Amended Complaint and compare it to the allegations against the defendants in the Complaint. The Court thus determines whether Plaintiff complied with the regulations of the Pennsylvania Department of Corrections to administratively exhaust his remedies. As noted in Spruill, the standard by which to measure whether a prisoner has exhausted his administrative remedies is whether he complied with the procedures set forth in the prison's rules for grievances or administrative remedies. See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).
Plaintiff's grievance related to his allegations before the Court states that on December 19, 2016, he was forcibly extracted from his cell with the use of excessive force, resulting in severe bodily and emotional injury, and that he was forced to remain covered in OC spray for more than nine hours “without medical treatment or chemical decontamination.” ECF No. 136-1 at p. 2. This is the only reference to medical care that Plaintiff states in the grievance. He does not state any more specific details about any lack of medical care. He does not name Smyth, Ridings, or Austin in the grievance. He does name John and Jane Does in the grievance, but none of them are alleged to be medical personnel. See ECF No. 136-1 at p. 3. DCM 804 governs the inmate grievance procedure. Section 1.A.11.b states: “the inmate shall identify individuals directly involved in the event(s).” Plaintiff did not identify Smyth, Ridings, or Austin in this grievance, not by name or as Does. Spruill is clear that the regulation here is to put the prison officials on notice of the persons claimed to be guilty of wrongdoing. See Spruill, 372 F.3d at 234. With no indication that these three persons, or even persons in a medical capacity, were involved in the events set forth in Plaintiff's grievance, they did not have any notice that they were being accused. Plaintiff has failed to exhaust his administrative remedies for failing to name them in his grievance.
As stated by the Court of Appeals for the Third Circuit, “it is beyond the power of this court-or any other-to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000)(quotation omitted). The Supreme Court of the United States reiterated this tenet in Booth v. Churner, 206 F.3d 289 (3d Cir. 2000).
Because he failed to exhaust his administrative remedies against Medical Defendants Smyth, Ridings, and Austin, the Court recommends that the Motion to Dismiss by these Defendants be granted, and that all claims against them be dismissed with prejudice.
2. DOC Defendants' Motion to Dismiss a. Excessive Force Claim
DOC Defendants argue that Plaintiff has failed to state a claim of excessive force against them. ECF No. 134 at p. 7. Plaintiff does not allege an unnecessary and wanton infliction of pain that offends contemporary standards of decency. Id. at p. 8. The OC spray was used to obtain Plaintiff's compliance with the prison transfer after he refused several times to be transferred. Id. Plaintiff makes no allegations that he was handled roughly or suffered any harm in the restraint chair. Id.
Plaintiff's response is to re-state what he has already stated in the Second Amended Complaint. Plaintiff makes the conclusory statement that “the transfer of the Plaintiff was not for the Department of Corrections purposes and the unnecessarily and wantonly inflicting pain was done in bad-faith to cause maliciously sadistically [sic] harm to the Plaintiff.” ECF No. 139 ¶ 1, p. 1. Plaintiff also states that he did state a claim upon which relief could be granted, and cites Page 9 of his Second Amended Complaint (ECF No. 116), where he names the Defendants under Count One, Excessive Force.
Resolution of an Eighth Amendment claim “mandate[s] an inquiry into a prison official's state of mind.” Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000)(quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991)). The relevant inquiry in evaluating a claim of excessive force by prison guards is whether the force used was applied in good faith to maintain or restore discipline, or instead “maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (citation and internal quotation marks omitted); Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The latter use of force is prohibited. Hudson, 503 U.S. at 6-7.
In Whitley, the Supreme Court set forth a number of factors that must be considered in evaluating the use of force by prison officials. 475 U.S. at 319. These include the extent of any injury to the prisoner, as well as “the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Id.; see also Hudson, 503 U.S. at 8; Giles v. Kearney, 571 F.3d 318, 328 (2009); Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000). While not every “malevolent touch by a prison guard gives rise to a federal cause of action, ” Hudson v. McMillian, 503 U.S. 1, 9 (1992), the “[a]pplication of force by . . . prison guards exceeding that which is reasonable and necessary under the circumstances” may be actionable, ” Davidson v. O'Lone, 752 F.2d 817, 827 (3d Cir. 1984).
Moreover, in assessing a claim of excessive force, prison officials “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Whitley, 475 U.S. at 321 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). This deference, however, “does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice.” Whitley, 475 U.S. at 322.
The Court agrees with DOC Defendants that Plaintiff has failed to state a claim for excessive force against them. Plaintiff does not allege any facts that support that any of the Defendants had a malicious or sadistic state of mind. Here are the allegations of each Defendant against whom Plaintiff claims excessive force:
McCune: Cuffed Plaintiff's hands and shackled legs after Plaintiff was sprayed. Put Plaintiff in restraint chair and escorted Plaintiff to intake. Removed Plaintiff from restraint chair at intake.
Martin: Escorted Plaintiff to the medical unit after Plaintiff was sprayed with chemicals. Put Plaintiff in restraint chair and escorted Plaintiff to intake. Strip searched Plaintiff at intake. Gave Plaintiff clothes with chemical still on them. Shackled Plaintiff after strip search.
Lewis: Escorted Plaintiff to the medical unit after Plaintiff was sprayed with chemicals. Put Plaintiff in restraint chair and escorted Plaintiff to intake. Removed Plaintiff from restraint chair at intake.
Cody: Escorted Plaintiff to intake.
Hicks: Escorted Plaintiff to intake.
Feather: Escorted Plaintiff to intake.
Henderson: Escorted Plaintiff to intake. Strip searched Plaintiff at intake. Gave Plaintiff clothes with chemical still on them. Shackled Plaintiff after strip search. Escorted Plaintiff to transport van to SCI Camp Hill.
Mills: Escorted Plaintiff to intake. Escorted Plaintiff to transport van to SCI Camp-Hill.
Orbash: Escorted Plaintiff to transport van to SCI Camp Hill
Proce: Escorted Plaintiff to intake at SCI Camp Hill.
McAnany: Authorized use of chemical on Plaintiff. Should have known that Plaintiff should have been decontaminated.
Switzer: Authorized use of chemical on Plaintiff. Should have known that Plaintiff should have been decontaminated.
Gump, Shallenberger, Standard, Sickles, Mazon, Jenkins, Magee, Mayer, and Brant: [no factual allegations against them.]
Plaintiff's allegations that some of the Defendants escorted him to intake, or escorted him to the transport van and accompanied him to SCI Camp-Hill, do not allege any kind of force that was deployed maliciously or sadistically for the purpose of causing harm.
As Plaintiff makes no allegations that any Defendant other than Braunlich sprayed him with the OC spray, there is no need to analyze whether any of the other Defendants have treated Plaintiff with excessive force in removing him from his cell.
As to being placed into a restraint chair, Plaintiff does not allege any facts that would support a finding of excessive force by any of the Defendants. As applied to mechanical restraints, the Supreme Court in Hope v. Pelzer, 536 U.S. 730 (2002), identified particular criteria relevant to the use of excessive force test, holding that (1) where the inmate had “already been subdued, handcuffed, [and] placed in leg irons, ” and (2) there was a “clear lack of an emergency situation” such that “[a]ny safety concerns had long since abated, ” then (3) subjecting the inmate to “substantial risk of physical harm” and “unnecessary pain” serves no penological justification. Id. at 738. Although Plaintiff was cuffed and shackled at the time he was placed into the restraint chair, he alleges no other actions by the Defendants that they knowingly subjected him to a substantial risk of physical harm, or to unnecessary pain. The allegations do not rise to the level of cruelty as was the situation in Hope, where the Supreme Court found that excessive force was used when the Plaintiff had been tied to a hitching post for seven hours under the sun and given water only once. See Id. at 374-75. The Third Circuit has also found that it was not excessive force to confine a prisoner to such a chair for eight hours when he was released every two hours to stretch, was given food, and was examined by a nurse at the end of the eight hours. Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000). According to Plaintiff's allegations, he was placed in the chair solely for the period of being moved from his cell to intake. Plaintiff does not allege that he was placed back in the chair after he was strip searched and taken to the van for transport. Thus, these allegations do not support a claim of excessive force against any of the Defendants. The Court recommends that the Motion to Dismiss this claim be granted and the claim be dismissed.
b. Deliberate Indifference Claim
Plaintiff asserts that Defendants Switzer, Braunlich, McAnany, Tate, Dice, Booker, and Proce were deliberately indifferent against him, as they were responsible for not decontaminating him after he was sprayed. Defendants counter that Plaintiff has failed to state a deliberate indifference claim against Switzer, Braunlich, and McAnany because he improperly tries to impute non-medical defendants with Eighth Amendment liability by alleging deliberate medical indifference. ECF No. 134 at p. 9. They argue that the claim should be dismissed against Tate, Dice, and Booker because the only allegations are that they improperly authorized the use of the chemical agent on him, and they should have known that he should be immediately decontaminated afterward. Id. at p. 12. Defendants assert that Plaintiff does not make any specific allegations that Tate, Dice, and Booker denied him treatment, or were otherwise responsible for providing him with treatment. Id. Thus, Defendants argue, the claim of deliberate indifference against them must be dismissed.
In response to the argument to dismiss the claim of deliberate indifference, Plaintiff repeats the allegations that he already stated in the Second Amended Complaint, that Defendants Switzer, Braunlich, and McAnany authorized the use of the chemical spray, and that they should have known to immediately decontaminate Plaintiff after the spray was used on him. ECF No. 139 ¶ 1, p. 2. Thus, they along with Tate, Dice, Booker, and Proce should be held liable for “unnecessarily and wantonly inflicting pain…” Id. Plaintiff again states that he did state a claim upon which relief could be granted and refers to Page 10, Count Two of his Second Amended Complaint.
Plaintiff appears to misunderstand the meaning of “stating a claim” as used in this context. Stating a claim means making enough factual allegations so that the Court, taking those allegations as true, can determine that those allegations form a plausible claim, under what the law requires, and thus allow the claims to proceed.
To state a claim for deliberate indifference, a plaintiff must satisfy the two-part test drawn from Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “First, plaintiff must make an ‘objective' showing that the deprivation was ‘sufficiently serious,' or that the result of defendant's denial was sufficiently serious. Additionally, the plaintiff must make a ‘subjective' showing that defendant acted with ‘a sufficiently culpable state of mind'” - i.e., “deliberate indifference.” Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
A medical need is “serious” if it is “one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003). “The seriousness of an inmate's medical need may also be determined by reference to the effect of denying the particular treatment.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations omitted). “In addition, where denial or delay causes an inmate to suffer a lifelong handicap or permanent loss, the medical need is considered serious.” Id.
To demonstrate deliberate indifference, the plaintiff “must make a subjective showing that defendant acted with a sufficiently culpable state of mind.” Pinchak, 294 F.3d at 499. The level of culpability is “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Thomas v. Dragovich, 142 Fed.Appx. 33, 36 (3d Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A prison official must “know of an excessive risk to an inmate's health or safety and affirmatively disregard it.” Innis v. Wilson, 334 Fed.Appx. 454, 456 (3d Cir. 2009) (citing Farmer, 511 U.S. at 835-38). The Third Circuit Court of Appeals has “found ‘deliberate indifference' in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citations omitted). Conversely, “[m]ere medical malpractice cannot give rise to a violation of the Eighth Amendment.” White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990). As our Court of Appeals long ago explained, “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979).
Moreover, “[i]f a prisoner is under the care of medical experts . . ., a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (citing Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993)). “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.” Id. Thus, “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Id. At the same time, even when an inmate is under the care of prison medical staff, his condition might be “so dire and obvious that [a non-medical prison official's] failure to summon immediate medical attention . . . amount[s] to deliberate indifference.” Id. at 237. As one district court has explained:
if the prisoner's skin appears blue or he appears short of breath for no apparent reason, or his appearance otherwise suggests to a layperson that the prisoner may need medical attention, guards cannot simply leave the prisoner to his possible fate on the theory that he has been receiving regular medical care and is “in capable hands.” The judgment of the medical personnel necessarily is based on the information available to them when they last saw the prisoner and/or last reviewed his file. It is generally absurd for guards to assume that medical staff are aware of the prisoner's condition at the current moment: how would a doctor or nurse who examined a prisoner even an hour ago know that at this minute, without his presence, the prisoner appears to be experiencing signs/symptoms of a medical problem?Roberts v. Hacken-Joe, No. 1:08-CV-458, 2009 WL 2356262, at *4 (W.D. Mich. July 29, 2009).
The allegations of each Defendant against whom Plaintiff claims deliberate indifference are:
McAnany: Authorized use of chemical on Plaintiff. Should have known that Plaintiff should have been decontaminated.
Switzer: Authorized use of chemical on Plaintiff. Should have known that Plaintiff should have been decontaminated
Tate (RN): Was in medical unit when Plaintiff brought in. Escorted Plaintiff to intake. Present at SCI Greene on December 19, 2016. Authorized use of chemical on Plaintiff. Should have known that Plaintiff should have been decontaminated.
Dice (RN): Present at SCI Greene on December 19, 2016. Authorized use of chemical on Plaintiff. Should have known that Plaintiff should have been decontaminated.
Booker (RN): Present at SCI Greene on December 19, 2016. Authorized use of chemical on Plaintiff. Should have known that Plaintiff should have been decontaminated.
Proce: Escorted Plaintiff to intake at SCI Camp Hill.
In denying the Motion to Dismiss this claim against Defendant Braunlich, this Court stated:
While Plaintiff has not alleged that he suffered any lasting or continuing problems as a result of the OC spray, courts have held that the failure to decontaminate prisoners or otherwise provide medical treatment for prisoners exposed to pepper spray can support a claim for a violation of the Eighth Amendment where the “failure to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.'” Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.2002) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (quoting Estelle, 429 U.S. at 104)).ECF No. 72 at p. 11. As for Defendant Switzer, McAnany, Dice, and Booker however, Plaintiff does not allege that they were present when he was sprayed, or that they had knowledge that he had been sprayed and was covered in chemical agent. He only states that they “authorized” the use of the spray on Plaintiff and that they were “present at the State Correctional institution at Greene, on December 19, 2016.” Authorizing the use of OC spray is not sufficient to state a claim for deliberate indifference. Simply being present at the institution on the date Plaintiff was sprayed does not indicate that they knew of this occurrence. Plaintiff's statement that Switzer, McAnany, Dice, and Booker “should have known” by their training that Plaintiff should have been decontaminated is not a factual allegation and insufficient to show that they acted with a culpable state of mind. Thus, the Court recommends that the claim for deliberate indifference be dismissed as against Defendants Switzer, McAnany, Dice, and Booker.
Defendant Proce is only alleged to have escorted Plaintiff to intake at SCI Camp-Hill. There are no allegations that he knew that Plaintiff had been sprayed with OC Spray, or that Plaintiff had not been decontaminated. Thus, Plaintiff fails to establish a culpable state of mind for Proce and fails to state a claim of deliberate indifference against him. The Court recommends that the claim be dismissed against him.
As to Defendant Tate, a medically trained RN, Plaintiff alleges that she was present when he was being taken to intake. The Court can liberally construe these allegations to find a barely plausible claim of deliberate indifference against Tate, just as with Defendant Braunlich in the previous Report and Recommendation. See ECF No. 72 at p. 11. As with Defendant Braunlich, discovery will bear out whether Tate was indeed deliberately indifferent to Plaintiff's need to decontaminate after being sprayed with the OC spray.
Relevant to the claim against Defendant Tate is also Defendants' argument that all Defendants named in the Second Amended Complaint should be terminated from this action because the statute of limitations has lapsed and the Complaint does not meet the relation back requirements of F.R.C.P. 15(c)(1). ECF No. 134 at p. 12. Plaintiff's most recent amendment, they assert, comes four years after the incident that is the subject of this suit. Id. at p. 13. As the Court has found the claim of deliberate indifference to be stated against Defendant Tate only, it must also determine whether this claim against her relates back to the original Complaint.
Under the provisions of Fed.R.Civ.P. 15(c)(1), an amendment relates back to the date of the filing of the original complaint and is treated, for statute of limitations purposes, as if it had been filed at that time, when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.Fed.R.Civ.P. 15(c)(1). See also, e.g., Ferencz v. Medlock, 905 F.Supp.2d 656, 665-66 (W.D.Pa.2012) (setting forth above criteria where plaintiff seeks “to add or substitute a new party”) (citing Estate of Grier v. Univ. of Pa. Health Systm., 2009 WL 1652168 (E.D.Pa. June 11, 2009)).
There is no dispute that 42 Pa. Cons. Stat. Ann. § 5524, the statute that provides for the two-year statute of limitations in this civil rights action, allows relation back. See Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003). The allegations against DOC Defendants are the same as those from the original Complaint. Defendants claim that they would be prejudiced if the claims were allowed to go forward against them, because “Plaintiff appears to have taken no action to identify the proper parties for his suit at any point between the December 19, 2016 incident and the institution of his action on July 24, 2017.” ECF No. 145 at p. 15. Plaintiff did make efforts to compel discovery after removal to this District. As explained in the procedural background, Plaintiff sought to quash DOC Defendants' Motion to Stay Discovery not long after DOC Defendants removed the case to the District Court. See ECF No. 11. This Court denied his Motion because of the pending Motion to Dismiss by Defendants. Defendants do not address the relation back issue specifically as against Defendant Tate, but Plaintiff's original Complaint does refer to “Defendant John/Jane Doe's (1-99)…MEDICAL PERSONNEL WHOM [sic] ASSISTED IN CELL EXTRACTION…” ECF No. 1-2 ¶ 18. This applies to Defendant Tate, as Plaintiff alleges her to have been present when Plaintiff was brought to intake still covered in OC spray. At this point, the Court is satisfied that Plaintiff's identification of Tate relates back to one of the Jane Doe medical personnel he named in his original Complaint.
3. Due Process and Assault and Battery Claims
At the beginning of his Second Amended Complaint, Plaintiff asserts an Assault and Battery claim under Pennsylvania law against presumably all Defendants involved in his cell extraction. He does not name the Defendants whom he claims committed the tort against him. Plaintiff named four Does in the previous iteration of his complaint as accompanying Braunlich to his cell to help extract him. ECF No. 64 ¶ 24. Now Plaintiff names seven officers as Defendants who presumably assaulted him during the extraction process. ECF No. 116 ¶ 40. However, Plaintiff does not allege any facts that establishes the claim that any of the seven officers assaulted him, just as he fails to allege any facts that would support a claim of excessive force. Plaintiff has taken two opportunities to amend his Complaint, and there are no facts that would support his claims. The Court thus recommends that the Motion to Dismiss the claim for Assault and Battery be granted and that this claim be dismissed.
In the opening paragraph of his Second Amended Complaint Plaintiff asserts a violation of his due process rights under the Fourteenth Amendment. See ECF No. 116 at p. 1. However, he does not state which allegations he relies on to support this claim. Medical Defendants argue that this claim violates the explicit source rule. “Under this rule[, ] if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” Brown v. Burnett, CV 15-284, 2016 WL 74652, at *7 (W.D. Pa. Jan. 7, 2016) (quotations omitted). The allegations here are more related to the Eighth Amendment's prohibition against cruel and unusual punishment. Thus, the Court recommends that the Motion to Dismiss the Fourteenth Amendment Claim be granted and the claim be dismissed. See also Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 261 (3d Cir. 2010) (Because plaintiff's allegations of conditions of confinement and failure to protect fit squarely within the Eighth Amendment's prohibition on cruel and unusual punishment, his due process claim is foreclosed.)
In his Response in opposition, Plaintiff states that his due process claim stems from the allegation that Defendant Tate did not notify a physician when Plaintiff arrived at intake. ECF No. 139 at p. 6. Plaintiff did not allege this fact in his Second Amended Complaint, when he had many opportunities to amend his complaint. Furthermore, even if he had alleged this fact, the explicit source rule would still apply to foreclose applying the Fourteenth Amendment as the Eighth Amendment would still be more applicable.
III. CONCLUSION
For all the reasons stated above, it is respectfully recommended that the Motion to Dismiss by Medical Defendants Smyth, Ridings, and Austin be granted, and all claims against them be dismissed. It is further recommended that the Motion to Dismiss by the DOC Defendants be granted, with an exception of Defendant Tate and the claim for deliberate indifference. The claim of deliberate indifference against Defendant Tate should remain while all other claims should be dismissed.
It is further recommended that the claims to be dismissed should be dismissed with prejudice. Plaintiff has had since 2017 to submit amended complaints with the defendants, allegations, and claims that he felt was necessary to include. District Judge Fischer has stated that no further amendments shall be permitted. ECF No. 113. This Court is of the opinion that any more amendments would be futile.
The court must allow amendment by the plaintiff in civil rights cases brought under § 1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless doing so would be "inequitable or futile." Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile).
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.