Opinion
Civil Action 20-808
05-03-2022
LAMONT BULLOCK, Plaintiff, v. MIKE HICE, DEPARTMENT OF CORRECTIONS, WILLIAM NICHOLSON, STEPHANY WOODS, MARK DIALESANDRA, SUPERINTENDENT ROBERT GILMORE, SUPERINTENDENT MICHAEL ZAKEN, TRACEY SHAWLEY, JOHN WETZEL, JOHN MCANANY, DR. SMYTH, JAYAKUMAR, DR. JAY, DR. PARKS, RONALD LONG, PHYSICIAN ASSISTANT MARK HAMMER, CORRECTIONAL OFFICER ANGELO, CORRECTIONAL OFFICER W.T. HENRY, CORRECTIONAL OFFICER MCCRACKEN, CORRECTIONAL OFFICER MASCETTA, PHYSICIAN ASSISTANT FETTERMAN, DR. BAIRD, JOHN POKOL, STANLEY FALOR, CHARLES ROSSI and SAFETY MANAGER, Defendants.
LAMONT BULLOCK ALL COUNSEL OF RECORD VIA CM/ECF.
LAMONT BULLOCK ALL COUNSEL OF RECORD VIA CM/ECF.
J. NICHOLAS RANJAN, DISTRICT JUDGE
REPORT AND RECOMMENDATION RE: ECF NO. 77
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Lamont Bullock (“Plaintiff'), an inmate presently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”), brings this pro se action against twenty-eight defendants arising out of allegations that he was deliberately exposed to contaminated foods and other harmful substances, and that he was denied proper medical treatment. ECF No. 20.
Presently before the Court is a Motion to Dismiss filed by Defendants Angelo, the Department of Corrections (“DOC”), Mark Dialesandra (“Dialesandra”), Robert Gilmore (“Gilmore”), W.T. Henry (“Henry”), Mascetta, John McAnany (“McAnany”), McCracken, William Nicholson (“Nicholson”), John Pokol (“Pokol”), Charles Rossi (“Rossi”), Tracey Shawley (“Shawley”), Dorina Varner (“Varner”), John Wetzel (“Wetzel”), Stephany Woods (“Woods”), and Michael Zaken (“Zaken”) (collectively, “Corrections Defendants”). ECF No. 77. For the reasons that follow, it is respectfully recommended that the Motion to Dismiss be granted.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Amended Complaint
In his Amended Complaint, Plaintiff brings claims against numerous defendants arising out of allegations spanning the course of over 20 years at 8 different correctional institutions.ECF No. 20. Broadly, Plaintiff claims that prison officials poisoned him by feeding him contaminated foods and beverages; used dirty needles to draw blood; and exposed him to harmful odors and dusts. Id. ¶¶ 23-25, 30, 59, 48, 52-56. As a result, Plaintiff alleges that he developed various illnesses. Id. ¶¶ 23, 56, 59.
Plaintiff claims that he was diagnosed with Hepatitis-C and denied treatment as early as 1998. ECF No. 20 ¶¶ 3739. He was incarcerated at the State Correctional Institutions at Huntington, Smithfield, Greene, Pittsburgh, Graterford, Houtzdale, Fayette and Dallas. Id. ¶¶ 23, 35, 62, 67, 69 and 70.
Plaintiff claims that his medical records have been fabricated to conceal his illnesses and to falsely indicate that he suffers from paranoid thinking. Id. ¶¶ 31, 33, 36. He asserts that he has been denied proper treatment, testing and diagnoses for those illnesses. Id. ¶¶ 22, 32-43, 56-64. Plaintiff also claims that the DOC transferred him to various institutions to cover up what happened. He believes that prison officials are plotting to cause his death. Id. ¶ 152.
a. Allegations against Corrections Defendants
Except for Wetzel, the DOC, and Varner, the Corrections Defendants were prison officials at the State Correctional Institution at Greene (“SCI-Greene”) during relevant times. Id. ¶¶ 5-15, 274-277, 280, 282. Based on his Amended Complaint, Plaintiff was incarcerated at SCI-Greene at two times: (1) March 1998 to January 2002 (“First SCI-Greene Incarceration”); and (2) December 2014 to present (“Second SCI-Greene Incarceration”). Id. ¶¶ 37, 38, 62, 78.
Wetzel was the Secretary of Corrections for the DOC and Varner was the DOC Grievance Coordinator. ECF No. 20 ¶¶ 14, 13. Plaintiff does not specifically refer to Dialesandra as an SCI-Greene official, however, he identifies Dialesandra's address at SCI-Greene. Id. ¶ 8.
Plaintiff notes that he was briefly housed at SCI-Somerset between March 22, 2018 and March 29, 2018. ECF No. 20 ¶ 121.
(1) First SCI-Greene Incarceration (1998 to 2002)
During his first incarceration at SCI-Greene, Plaintiff claims that correctional officers Angelo, Henry, McCracken and Mascetta fed him contaminated substances and mocked him. Id. ¶¶ 24, 27, 52. Plaintiffs food and drink tasted like feces or urine, and it sometimes contained blood, spit, semen and cigarette butts. Id. ¶¶ 24,49-50. He developed various illnesses as a result. Id. ¶23.
Pokol, McAnany and Rossi were medical providers or administrators at SCI-Greene. Id. ¶¶ 15, 280,282. To cover up his exposures, Pokol, McAnany and Rossi “had plaintiff[']s medical records read that plaintiff exhibited paranoid thinking that poison was in his food.” Id. ¶ 31.
Plaintiff also claims that Pokol, McAnany and Rossi failed to adequately test or treat his illnesses. Id. ¶¶ 57, 63. Although Plaintiff was diagnosed with Hepatitis-C on February 18,1998, Rossi and Stanley Falor discontinued Plaintiffs treatment before it was completed, and they falsely claimed that Plaintiff did not have Hepatitis-C. Rossi, McAnany and Pokol also failed to treat his symptoms for herpes simplex and multiple-chemical sensitivity, which he later was diagnosed with at the State Correctional Institution at Pittsburgh (“SCI-Pittsburgh”). Id. ¶¶ 63-64.
(2) Second SCI-Greene Incarceration (2014 to present)
After he returned to SCI-Greene in 2014, Plaintiff frequently sought and received medical attention. Id. ¶ 84. During this time, he claims that he was not provided with sufficient medical treatment for a variety of symptoms or illnesses. See generally id. ¶¶ 78-263.
(a) Nicholson
According to Plaintiff, Nicholson was the “Corrections Healthcare Administrator” at SCI-Greene. Id. ¶ 6. Regarding Nicholson, Plaintiff generally claims that Nicholson and Medical Administrator Mike Hice (“Hice”) did not approve “relevant treatments” or “the test[s]” that Plaintiff needed. Id. ¶¶ 88, 89, 104-106. This included Hice and Nicholson's refusal to allow treatment for Hepatitis-C, based on their claim that Plaintiff did not have Hepatitis-C. Id. ¶¶ 91, 107-08. Plaintiff also claims that Hice and Nicholson did not direct that he be provided with treatment for his Maxillary [Sinus] Disease. Id. ¶ 111.
In addition, Plaintiff believes his name was not added to a sick-call list on one occasion, in part because Hice and Nicholson did not want Plaintiff to be seen by a particular doctor, Dr. Santos. Id. ¶ 147. He also claims that Hice and Nicholson did not call to give him test results from a July 25,2018 blood test, which Plaintiff believes “could not have been negative.” Id. ¶ 158. He alleges that Nicholson falsely claimed that Plaintiff refused a transurethral resection of the prostate (“TURP”) surgery when, in fact, Plaintiff only asked that it be delayed. Id. ¶¶ 197-98. He claims that Hice and Nicholson improperly required him to pay for chronic care medical visits, contrary to DOC policy. Id. ¶¶ 182-184. Finally, he claims that Nicholson denied various grievances related to his medical treatment. Id. ¶¶ 227, 230, 248-49, 261.
(b) Woods, Varner, Shawley and Gilmore
Plaintiff claims that Woods was a “Corrections Healthcare Administrator.” Id. ¶ 7. Varner and Shawley acted as the DOC Grievance Coordinator and SCI-Greene Grievance Coordinator, respectively. Id. ¶¶ 12-13. Gilmore was the Superintendent at SCI-Greene. Id. ¶ 10.
Plaintiff alleges that Woods, Varner, Shawley and Gilmore improperly denied him relief in response to certain grievances and appeals regarding his medical treatment and housing. Id. ¶¶ 101, 107,108,126, 144, 153,176,233, 249, 261, 260-61. In particular, he grieved not being able to keep his chronic care medications on his person; the fact that a bottle of medication he received had a hole; that he was not called for sick call on a particular day; that he had ongoing symptoms from a procedure for which he was being treated; that he wanted to be housed with cellmates who were non-smokers; that he was told to sign up for sick call to report additional medical issues not related to the subject of a call; and that he had been denied treatment for Hepatitis-C. Id.
(c) Other Corrections Defendants
Plaintiff does not include any specific factual allegations against Wetzel, former Secretary of the DOC. He also does not plead any specific factual allegations as to Dialesandra or Zaken, except to proclaim his belief they are part of a plot to cause Plaintiff s death and have his body cremated, so that the real cause of his death will be hidden. Id. ¶ 152. This alleged plot also includes Corrections Defendants Woods, McAnany, and the DOC. Id.
(3) Legal Claims
Plaintiff brings claims under the First, Eighth and Fourteenth Amendments, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act, along with claims under Pennsylvania law for battery, assault and negligence. Id. at 1, ¶¶ 22, 268-273.
As to the Corrections Defendants, however, Plaintiff only specifically pleads claims under the Eighth Amendment, the ADA, and for assault and battery. Id. ¶¶ 268-273. In particular, he asserts Eighth Amendment claims against all moving Corrections Defendants, except Rossi. Id. He also pleads an ADA claim against the DOC, Wetzel, Nicholson, Woods, Dialesandra, Gilmore, Zaken, McAnany and Pokol. Id. ¶ 270. Finally, he pleads assault and battery claims against Angelo, Henry, McCracken, Mascetta, Wetzel, Gilmore, Zaken, Dialesandra, Shawley, Varner and Nicholson. Id. ¶¶ 268, 271, 273. Plaintiff does not specifically plead any claims against Rossi.
2. Prior Lawsuits
Plaintiff has initiated over 50 lawsuits in federal court. Of note, he previously brought lawsuits arising out of similar claims that he was exposed to diseases, was denied treatment, and that his medical records have been fabricated.
Based on a PACER Case Locator search, the Court has located approximately fifty-seven lawsuits initiated by Plaintiff Lamont Bullock in federal courts in Pennsylvania, with two additional lawsuits under the name Carlton L. Bullock.
Generally, in resolving a motion to dismiss, courts may consider only the allegations set forth in the complaint, any exhibits submitted with the complaint and matters of public record. Pension Benefit Guaranty Corp, v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). “[J]udicial opinions and docket sheets are public records, of which this court may take judicial notice in deciding a motion to dismiss.” Zedonis v. Lynch, 223 F.Supp.3d 417, 422 (M.D. Pa. 2017).
For example, Plaintiff filed a lawsuit over fifteen years ago against various defendants in the United States District Court for the Eastern District of Pennsylvania. Bullock v. Arias, OS-5665 (E.D. Pa. Nov. 21, 2016). As here, he claimed that prison officials deliberately fed him contaminated meals, which caused various illnesses. Id. at ECF No. 21 ¶ 34. He also claimed that individuals at SCI-Greene refused to treat his illnesses before his transfer to SCI-Pittsburgh in 2002. Id. at ECF No. 21 ¶ 38.
In 2010, Plaintiff brought another lawsuit against in the United States District Court for the Middle District of Pennsylvania against various defendants, including Varner. Bullock v. Dreibelbis, No. 10-1032 (M.D. Pa. May 14, 2010), at ECF No. 1. He similarly claimed that defendants were denying him medical treatment for various illnesses, including HIV, diabetes, and herpes, and that his medical records had been fabricated. Id. at 3-4.
In 2015, Plaintiff initiated another lawsuit in this Court, Bullock v. Berrier, No. 15-00001 (W.D. Pa. Jan 15, 2015) against multiple defendants, including Wetzel and Varner. Again, he claimed that defendants “placed the plaintiff in circumstances creating imminent danger of serious physical injury and ongoing danger based on defendants!”] repeated denials of treatment for plaintiffs HIV, HEPATITUS LIVER DISEASES, HERPIE SIMPLEX VIRUS, [and] DIABETES,” and that defendants “fabricated medical records and test results to cover up their willful [] and deliberate conduct.” Id. at ECF No. 1-1.
Plaintiff filed Dreibelbis and Berrier under the name “Carlton L. Bullock.” Because his prisoner identification number for these lawsuits is the same as in this case (AS-1035), it is clear these cases were filed by the same individual.
In Berrier, the Court denied Plaintiffs IFP Motion because he had three strikes under the Prison Litigation Reform Act (“PLRA”), and he was not under imminent danger of serious physical injury. Id. at ECF No. 21 (adopting Report and Recommendation, ECF No. 6). Based on affidavits from medical professionals who were familiar with Plaintiff s medical history, the Court found that “it is clear that Plaintiff is being treated appropriately for diseases that he has, and he has been tested for other diseases, which tests show he does not have, such as HIV, herpes and diabetes.” Id. at ECF No. 6. Because Plaintiff did not submit the filing fee and was not granted leave to proceed IFP, the action ultimately was dismissed.
This decision was affirmed on appeal. Bullock v. Berrier, No.15-3731 (3d Cir. 2016).
3. Procedural History
Plaintiff initiated this lawsuit on June 3, 2020 by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 3. After the Court identified certain deficiencies with Plaintiffs filing, he requested multiple extensions of time to submit the requisite filing fee instead of proceeding IFP. ECF Nos. 3 and 7.
Plaintiff eventually paid the filing fee, and his original Complaint was filed on March 30, 2021. ECF Nos. 15 and 18. The operative Amended Complaint was filed on June 21,2021. ECF No. 20.
4. Motion to Dismiss
Multiple defendants have filed pending dispositive motions. ECF Nos. 59, 63 and 77. The Corrections Defendants filed the instant Motion to Dismiss and Brief in Support on January 14, 2022. ECF Nos. 77 and 78.
On March 10, 2022, Plaintiff filed an Omnibus Brief in Opposition to all of the pending dispositive motions, including the Corrections Defendants' Motion to Dismiss. ECF No. 90. He also filed a Statement of Material Facts and Declaration in further support. ECF Nos. 91 and 92.
The Corrections Defendants filed a Response to Plaintiffs Statement of Material Facts. ECF No. 93.
The Corrections Defendants' Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement 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 set forth as factual allegations. Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Because Plaintiff is proceeding pro se, the Court will liberally construe his Complaint and employ less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
C. DISCUSSION
1. Statute of Limitations
In support of the Motion to Dismiss, the Corrections Defendants argue that any claims arising out of their conduct before May 27, 2018 are barred by a two-year statute of limitations. ECF No. 79 at 13-14.
In response, Plaintiff argues that the statute of limitations does not bar his claims because he has been subjected to continuing, never-ending wrongs, and the statute of limitations does not commence until those wrongs have ceased. ECF No. 90 at 12. He also argues that the Court should entertain Plaintiffs claims because he raises “extraordinary circumstances,” and his claims against all Defendants arise out of the same series of transactions or occurrences. Id. at 13.
Upon review, the Court should dismiss Plaintiffs claims against Angelo, Henry, McCracken, Mascetta, Pokol, and McAnany based on the statute of limitations. Plaintiff brings claims under the Eighth Amendment, the ADA (against Pokol and McAnany), and under Pennsylvania law for assault and battery (against Angelo, Henry, McCracken, Mascetta) against these defendants.
Plaintiffs Eighth Amendment, ADA and tort claims are subject to a two-year statute of limitations. Specifically, Plaintiff brings his Eighth Amendment claim under 42 U.S.C. § 1983. Section 1983 and ADA claims are both governed by the limitations period applicable to personal injury actions of the state where the cause of action arose. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (Section 1983); Disabled in Action of Pa. v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008) (ADA). Under Pennsylvania law, personal injury claims must be brought within two years of the accrual of the claim. 42 Pa. Const. Stat. § 5524(7). Under Pennsylvania law, claims for assault and battery are also governed by a two-year statute of limitations. Id. § 5524(1). Thus, a two-year statute of limitations applies relative to Plaintiffs claims against the Corrections Defendants.
Statute of limitations is an affirmative defense. Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (citing Fed.R.Civ.P. 8(c)(1)). In the Third Circuit, a limitations defense may be raised by a motion under Rule 12(b)(6) “only if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Robinson v, Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)) (internal quotations omitted). “However, ‘ [i]f the bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).'” Id. (quoting Robinson, 313 F.3d at 134-35.)
In this case, Plaintiffs claims against Angelo, Henry, McCracken, Mascetta, Pokol, and McAnany all relate to his First SCI-Greene Incarceration. At the latest, then, this conduct occurred in February 2002-more than eighteen years before this lawsuit was initiated. Because Plaintiff has filed prior lawsuits arising out of similar allegations, and he claims that Angelo, Henry, McCracken and Mascetta specifically told him that they fed him contaminated substances, it is clear he was on notice of these allegations more than two years ago. Thus, his claims against Angelo, Henry, McCracken, Mascetta, Pokol, and McAnany are clearly time-barred on the face of the Amended Complaint.
Plaintiff does not appear to include any allegations relative to Angelo, Henry, McCracken, Mascetta, Pokol with respect to his Second SCI-Greene Incarceration. As for McAnany, he does refer to McAnany denying a request that Plaintiff be housed with cellmates who are non-smokers during the Second SCI-Greene Incarceration. ECF No. 20 ¶ 172. However, his claims against McAnany arise out of his alleged failure to provide medical care and fabricating medical records. Id. ¶¶ 270-272.
There is no apparent basis for tolling the statute of limitations. Although Plaintiff refers the Court to the continuing violations doctrine, this doctrine does not apply. Under the continuing violations doctrine, “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd, of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991). For this doctrine to apply, “[f]irst, [the plaintiff] must demonstrate that at least one act occurred within the filing period .... Next, the plaintiff must establish that the [alleged wrong] is more than the occurrence of isolated or sporadic acts.” Kimes v. Univ, of Scranton, 126 F.Supp.3d 477, 492 (M.D. Pa. 2015) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995), superseded in part by statute Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009)).
Here, Plaintiff cannot satisfy either prong. His claims against Angelo, Henry, McCracken, Mascetta, Pokol, and McAnany arise out of discrete acts during his incarceration at SCI-Greene between 1998 and 2002, and none of those actions occurred within the statute of limitations. Thus, his claims are not timely. For these reasons, the Court should grant the Motion to Dismiss relative to Plaintiff's claims against Angelo, Henry, McCracken, Mascetta, Pokol, and McAnany.
2. Rossi
As discussed, Plaintiff does not specifically plead any claims against Defendant Rossi. See ECF No. 20 ¶¶ 268-273. Even if Plaintiff had pleaded any such claims, his allegations involving Rossi relate to Plaintiff's First SCI-Greene Incarceration, so they would be barred by the statute of limitations. Therefore, the Court should grant the Motion to Dismiss relative to Rossi.
3. Eighth Amendment Claims
Plaintiff brings claims under the Eighth Amendment pursuant to 42 U.S.C. § 1983 on four grounds. First, he claims Defendants denied him proper and effective medical care (as to DOC, Wetzel, Nicholson, Woods, Dialesandra, Gilmore, Zaken, McAnany, and Pokol). Id. ¶ 270. Second, he claims that Defendants failed to take disciplinary or other actions to “curb the known pattern of medical abuses” that he brought to their attention (as to Wetzel, Gilmore, Zaken, Dialesandra, Shawley and Varner). Id. ¶ 271. Third, he claims that Defendants falsified or fabricated his medical records (as to Nicholson, Pokol, McAnany, and Dialesandra). Id. ¶ 272. Fourth, he claims that Nicholson failed to honor his or his medical providers' requests for medical treatment. Id. ¶ 273.
Defendants move to dismiss these claims on three grounds: (1) Eleventh Amendment immunity (as to DOC); (2) lack of personal involvement in any underlying wrong (as to Wetzel, Varner, Gilmore, Woods, Shawley, Wetzel, Dialesandra and Zaken); and (3) failure to state a claim, arguing that the Corrections Defendants are non-medical prison officials who had no reason to know of any mistreatment based on Plaintiff s allegations. ECF No. 78 at 6-12,14-20.
In response, Plaintiff contends that his Eighth Amendment claims are viable because the Corrections Defendants had control over his medical treatment and denied him treatment for “serious medical injuries.” ECF No. 90 at 18. He argues that they did make medical decisions, they knew about his mistreatment, and they denied his grievances regarding his medical treatment. Id. at 18-19.
For the reasons that follow, the Court should grant the Motion to Dismiss Plaintiffs Eighth Amendment claims against the Corrections Defendants.
a. Eleventh Amendment immunity
Upon review, the DOC is entitled to immunity under the Eleventh Amendment as to Plaintiffs Eighth Amendment claims. The Eleventh Amendment generally precludes private individuals from bringing suit against a state, or one of its agencies, in federal court. Sheffer v. Centre Cnty., No. 4:18-cv-2080, 2019 WL 2621836, at *4 (M.D. Pa. May 23, 2019) (citing U.S. Const. Amend. XI; Pennhurst State Sch. & Hosp, v. Halderman, 465 U.S. 89 (1984)). This is a jurisdictional bar, which applies regardless of the relief sought, including claims brought in equity. Id. (citing Pennhurst, 465 U.S. at 100). Such immunity is not absolute, however, and is “subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc, v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
As an executive department of the Commonwealth, the DOC shares in the Commonwealth of Pennsylvania's Eleventh Amendment immunity. Lavia v. Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (“Pennsylvania's Department of Corrections is a part of the executive department of the Commonwealth”). Moreover, no exception applies. “The Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases (42 Pa. C.S.A. § 8521) and Congress did not abrogate state immunity in general in enacting civil rights legislation, including § 1983.” O' Hara v. Ind. Univ, of Pa., 171 F.Supp.2d 490, 495 (W.D. Pa. 2001). Based on this, the Motion to Dismiss should be granted as to Plaintiff's Eighth Amendment claims against the DOC.
b. Lack of personal involvement
The Court should also grant the Motion to Dismiss as to Plaintiff s Eighth Amendment claims against Varner, Gilmore, Woods, Shawley, Wetzel, Dialesandra and Zaken based on their lack of personal involvement. Plaintiff brings his Eighth Amendment claims under 42 U.S.C. § 1983. To establish individual liability under § 1983, “[a] defendant must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior j" Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Rizzo V. Goode, 423 U.S. 362 (1976).
There are “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2017), rev'd on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015). First, a supervisor may be held liable if he “participated in violating the plaintiffs rights, directed others to violated them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 & n. 5 (3d Cir. 2010) (citing A.M. ex rel. J.M.K. Luzerne Cnty., 372 F.3d 572, 586 (3d Cir. 2004)). Second, a supervisor may be liable if he “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M., 372 F.3d at 586.
As to Defendants Varner, Gilmore, Woods and Shawley, Plaintiffs factual allegations against these individuals are all based in their participation in the grievance process and not in any way regarding medical treatment by them. “The denial of Plaintiff s grievances does not, in itself, satisfy the requisite ‘personal involvement' requirement.” Williams v. Ferdarko, No. 17-313,2018 WL 3653272, at *3 (W.D. Pa. Aug. 1, 2018), aff'd Williams v. Ferdarko, 807 Fed.Appx. 177 (3d Cir. 2020) (citing Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (“If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official.”)). As such, Plaintiff s Eighth Amendment claims against Varner, Gilmore, Woods and Shawley should be dismissed.
As for Defendants Wetzel, Dialesandra and Zaken, the only factual allegations involve their roles as supervisory or managerial officials. ECF No. 20 ¶¶ 8, 11, 14. There is no basis for finding these Defendants liable in their supervisory capacities, however, because Plaintiff does not plead facts showing that Wetzel, Dialesandra or Zaken participated in violating the Plaintiff s rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations, or that they maintained any policy, practice or custom that caused Plaintiffs harm. See Santiago, 629 F.3d at 129; A.M., 372 F.3d at 586. For these reasons, the Court should grant the Motion Dismiss relative to Plaintiffs Eighth Amendment claims against Wetzel, Dialesandra and Zaken.
c. Failure to state a claim
As for Plaintiffs remaining Eighth Amendment claims against Nicholson, he fails to state a claim upon which relief can be granted. In the medical context, prison officials violate the Eighth Amendment when they are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976).
Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.” Id. at 104 (quoting Gregg v, Georgia, 428 U.S. 153, 173(1976)). “Deliberate indifference may be 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, ... or ‘persistent conduct in the face of resultant pain and risk of permanent injury.'” Josey v. Beard, No. 06-265, 2009 WL 1858250, at *6 (W.D. Pa. June 29, 2009) (citing Dumer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990) (internal citations omitted)).
“Mere misdiagnosis or negligent treatment is not actionable under § 1983 as an Eighth Amendment claim because medical malpractice is not a constitutional violation.” Id. (citing Estelle, 429 U.S, at 106). “[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.” Williams, 807 Fed.Appx. at 180 (quoting United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n. 2 (3d Cir. 1979)). Thus, “deliberate indifference is generally not found when some level of medical care has been offered to the inmate.” Josey, 2009 WL 1858250, at *6 (citing Clark v. Doe, No. 99-5616, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000) (“[C]ourts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.”)).
Non-medical prison officials like Nicholson, a healthcare administrator, are not “considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (quoting Durmer v. O'Carroll, 991 F.3d 64, 69 (3d Cir. 1993)). Rather, if an inmate is being cared for by medical experts, “a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.” Id. Thus, “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a nonmedical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” IT
Here, Plaintiff does not plead facts to establish Nicholson was deliberately indifferent to any serious medical need. Based on Plaintiffs allegations, he received frequent, ongoing medical care from medical professionals for his reported symptoms. He does not plead allegations to show that Nicholson, as a non-medical professional, had specific knowledge of any mistreatment or failure to treat Plaintiff under these circumstances.
To the extent Plaintiff's claim arises out of Nicholson's charging him for certain medical visits, this does not establish a per se violation of his Eighth Amendment rights. Reynolds v. Wagner, 936 F.Supp. 1216, 1223 (E.D. Pa. 1996) (“Although the government must provide medical care, the Supreme Court has never held the government must pay for it”), aff'd Reynolds v. Wagner, 128 F.3d 166,164 (3d Cir. 1997) (fee for medical services is not per se unconstitutional).
While Plaintiff broadly claims that Nicholson would not approve “required testfs]” or “relevant treatments,” it is not clear to what tests or treatments he is referring, who deemed them to be required, and whether this conduct related to any serious medical need. See ECF No. 20 ¶¶ 88, 89, 104-106. Based on these vague allegations, the Court should find that Plaintiff does not sufficiently plead an Eighth Amendment claim against Nicholson. Thus, the Motion to Dismiss should be granted relative to Plaintiffs Eighth Amendment claims against Nicholson.
The Corrections Defendants also argue that Plaintiffs First Amendment retaliation and Fourteenth Amendment claims should be dismissed for failure to state a claim and under the explicit source rule, respectively. Because Plaintiff does not specifically plead these claims against the Corrections Defendants, it is not necessary to consider those arguments.
4. Tort Claims
Plaintiff also brings tort claims of assault and battery under Pennsylvania law against Dialesandra, Gilmore, Nicholson, Shawley, Varner, Zaken and Wetzel. The Corrections Defendants argue that Plaintiffs tort claims should be dismissed because the Corrections Defendants have sovereign immunity and Plaintiff fails to state a claim for assault or battery. ECF No. 78 at 21-22.
As discussed, Plaintiffs tort claims against Angelo, Henry, McCracken, Mascetta should be dismissed based on the statute of limitations. Therefore, the Court limits this discussion to Plaintiffs tort claims against Dialesandra, Gilmore, Nicholson, Shawley, Varner, and Wetzel.
In response, Plaintiff argues that “assault and battery is the most common state law claim for physical abuse by [the] prison state,” and that it encompasses any treatment that would injure or impair the health of a prisoner. ECF No. 90 at 27-28.
Under Pennsylvania law, “[a]ssault is an intentional attempt by force to do an injury to the' person of another, and a battery is committed whenever the violence menaced in an assault is actually done . . . Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (quoting Cohen v. Lit Bros., 70 A.2d 419, 421 (1950)).
Upon review, Plaintiff fails to state a claim against these Defendants for assault or battery. He does not plead any specific allegations against Dialesandra, Zaken or Wetzel. As to Shawley, Gilmore, Nicholson and Varner, Plaintiffs allegations relate to the sufficiency of medical care or his dissatisfaction with their grievance responses. These allegations do not give rise to a claim for assault or battery.
Moreover, the Corrections Defendants are entitled to sovereign immunity relative to these claims. Under Pennsylvania law, the Commonwealth and its employees have broad immunity from most state-law tort claims. Fennell v. Wetzel, No. 4:17-cv-1520, 2019 WL 1264898, at *10 (M.D. Pa. Jan. 18, 2019) (citing 1 Pa. Const. Stat. § 2310) (“the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity”); see also Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) (“In other words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its officials and employees acting within the scope of their duties are likewise immune”). This immunity “applies to Commonwealth employees in both their official and individual capacities, so long as the employees are ‘acting within the scope of their duties.'” Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008). “Conduct of an employee is within the scope of employment if ‘it is of a kind and nature that the employee is employed to perform; [and] it occurs substantially within the authorized time and space limits ... .'” Fennell, 2019 WL 1264898, at *10 (quoting Brautigan v. Fraley, 684 F.Supp.2d 589, 593-94 (M.D. Pa. 2010)) (internal quotations omitted).
Because Plaintiffs allegations (if any) arise out of activities these defendants performed in the scope of their duties, they are also entitled to sovereign immunity relative to Plaintiff s tort claims. For these reasons, the Motion to Dismiss should be granted as to Plaintiff s assault and battery claims against Dialesandra, Gilmore, Nicholson, Shawley, Varner, Zaken and Wetzel.
5. ADA Claim
Finally, Plaintiff brings an ADA claim against the DOC, Wetzel, Nicholson, Woods, Dialesandra, Gilmore, Zaken, McAnany and Pokol. Id. ¶ 270. In support of the Motion to Dismiss, the Corrections Defendants argue that Plaintiff s ADA claim should be dismissed because individuals cannot be held liable under the ADA. The Corrections Defendants also argue that Plaintiff fails to state an ADA claim because he does clearly plead a qualifying disability and inadequate medical care does not violate the ADA. ECF No. 78 at 23-25.
The Corrections Defendants also generally argue that all claims against them are barred under Eleventh Amendment immunity. ECF No. 78 at 6-8. However, they do not specifically brief this issue relative to Plaintiffs ADA claim, including whether any exception to immunity arguably applies. See, e.g.,Geness v. Admin. Off, of Pa-Courts, 974 F.3d 263, 270 (3d Cir. 2020) (noting that “Congress unequivocally expressed its intent to abrogate sovereign immunity for claims brought under Title II of the ADA” and “claim-by-claim analysis” is required to determine whether Congress validly abrogated sovereign immunity).
In response, Plaintiff argues that HIV-infected prisoners and individuals with infectious diseases have qualifying disabilities under the ADA and Rehabilitation Act. ECF No. 90 at 2627. He also argues that he can pursue ADA claims against individuals acting under the color of law. Id.
Upon review, the Court should grant the Motion to Dismiss Plaintiff s ADA claims. As the Correction Defendants point out, “individual defendants, sued in their individual capacities, are not liable under Title II of the ADA because they are not ‘public entities' within the meaning of the ADA.” Wojnarowski v. Wetzel, No. 19-174, 2020 WL 8513503, at *10 (W.D. Pa. Nov. 10, 2020) (citing Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002)). Therefore, Plaintiffs claims against the individual defendants in their individual capacities should be dismissed on this basis.
Plaintiff does not specify under which Title of the ADA he is proceeding. Because the correctional facility where Plaintiff is incarcerated is a “public entity” subject to Title II of the ADA, the Court considers Plaintiffs claim under Title II. See Harris v. Lanigan, No. 11-1321,2012 WL 983749, at *4 (D.N.J. March 22, 2022).
Furthermore, Plaintiff also fails to state a viable claim under the ADA. To state a claim under the ADA, a plaintiff must allege that he “is a qualified individual with a disability, who was precluded from participating in a program, service, or activity, or otherwise was subject to discrimination, by reason of his disability.” Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019). Notably, this statute “prohibits disability-based discrimination, ‘not inadequate treatment for the disability.'” Kokinda v. DOC, 663 Fed.Appx. 156, 159 (3d Cir. 2016) (quoting Simmons v. Navajo Cty, Ariz., 609 F.3d 1101 (9th Cir. 2010)).
In this case, Plaintiffs allegations demonstrate that he received ongoing medical care. There are no allegations he was denied treatment or services or otherwise discriminated against because of a disability. Plaintiffs disagreement with the care and diagnoses that he received does not give rise to an ADA claim. Therefore, the Court should grant the Motion to Dismiss relative to Plaintiffs ADA claim.
The Corrections Defendants also argue that Plaintiffs Rehabilitation Act claim should be dismissed. Because Plaintiff does not specifically plead a Rehabilitation Act claim against the Corrections Defendants, it is not necessary to address this argument. The Court notes, however, that any such claim would be properly dismissed for the same reasons that Plaintiff cannot establish a claim under the ADA. See, e.g., Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012) (ADA and Rehabilitation Act “have the same standard for determination of liability” and are “to be interpreted consistently”); Wojnarowski v. Wetzel, No. 19-174, 2020 WL 8513503, at *10 (W.D. Pa. Nov. 10, 2020) (individual defendants are not liable under the Rehabilitation Act).
D. CONCLUSION
For the foregoing reasons, the Court should grant the Medical Defendants' Motion to Dismiss, ECF No. 77. However, “[i]f a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Because the Court cannot state with certainty that Plaintiff would be unable to plead any viable claim, he should be granted leave to amend as appropriate. However, Plaintiff should not be granted leave to amend relative to:
1. Any claims arising out of his First SCI-Greene Incarceration, which are barred by the applicable statutes of limitations;
2. Eighth Amendment claims against the DOC, which are barred by Eleventh Amendment immunity;
3. Any assault and battery claims against Shawley, Gilmore, Nicholson, Varner, Zaken and Wetzel, which are barred by sovereign immunity; and
4. Any ADA claims against individual Defendants.
As such, Plaintiff should only be granted leave to file a Second Amended Complaint, to the extent that he can cure the deficiencies identified herein, as to his Eighth Amendment claims against Defendants other than the DOC and to the extent that he can properly assert an ADA claim as to the DOC, which does not appear likely given the facts alleged.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.