Opinion
3:19-CV-00163-KRG
08-04-2022
GREGORY LINDELL BURNS, Plaintiff, v. JENNIFER SCHROCK, RNS; JAWAD A. SALAMEH, M.D.; MELISSA STEFANIC, RN; ANDREW DANCHA, DO; ERIN CLARK, CRNP; AND CHARDONNAY DIALYSIS, INC., Defendants,
GREGORY LINDELL BURNS Attorney[s] for Defendant[s] via electronic filing
GREGORY LINDELL BURNS
Attorney[s] for Defendant[s] via electronic filing
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF, MAGISTRATE JUDGE
I. RECOMMENDATION
This civil rights action was initiated pro se by Plaintiff Gregory Lindell Burns (“Plaintiff”) against several Defendants for alleged violation of his civil rights while incarcerated in the Pennsylvania Department of Corrections State Correctional Institution (“SCI”) at Laurel Highlands. Presently before the Court is a Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendant Jennifer Schrock. (ECF No. 114).
The Court has subject matter jurisdiction under 28 U.S.C. § 1331. For the reasons that follow, it is respectfully recommended that Defendant Schrock's motion be granted and Plaintiff's Section 1983 civil conspiracy claim against Defendant Schrock be dismissed with prejudice.
II. REPORT
a. Background
Plaintiff initiated this lawsuit on October 7, 2019, and thereafter was permitted to amend his complaint twice. The operative facts are taken from his Third Amended Complaint (“TAC”) (ECF No. 109). Plaintiff receives dialysis treatment. Defendants CharDonnay Dialysis, Inc. provides the nurses and technicians that provide the dialysis treatments, and are under the supervision of Defendant Melissa Stefanic, RN. Defendant Schrock is employed by the DOC as the Correctional Health Care Administrator at SCI Laurel Highlands. Plaintiff alleges that prior to September 2019, Plaintiff's left arm fistula was normal. On October 6, 2018, his left arm and hand had edema noted by a CharDonnay technician and his treating physician, Dr. Salameh, was made aware of this. A fistulagram was ordered on October 9, 2018 at Connemaugh Memorial Hospital Center. An occlusion was noted to be present in the upper left arm. Upon return to SCI Laurel Highlands, Plaintiff's left hand and arm showed moderate swelling.
On November 15, 2018, Plaintiff wrote to Dr. Dancha that he had swelling in his left arm and went for a fistulagram a month prior and was told his vein was “no good.” TAC at 8. Dr. Salameh explained to Plaintiff that no doctor would perform the surgery to repair his vein and Dr. Salameh was trying to force Plaintiff to go to another dialysis site, but Plaintiff wanted his vein repaired. Plaintiff alleges that Dr. Dancha never responded.
In November 2018, Dr. Salameh told Plaintiff that it was too expensive to repair the veins in his left arm.
On December 4, 2018, a CharDonnay technician noted that Plaintiff was grimacing and massaging his left arm and asked to be let off treatment 14 minutes early.
On December 21, 2018, Plaintiff underwent another fistulagram and vein mapping showed inadequate veins for an AVF and a right upper arm AVG was recommended.
On January 16, 2019, another fistulagram was performed and it showed left upper arm edema with central stenosis and the occlusion was unable to be opened.
On January 27, 2019, a culture of purulent discharge was taken of Plaintiff's left arm which showed an abscess and he was prescribed antibiotics. Defendant Stephanic told technicians to keep using the left arm site and to just stick the needles around the abscess.
On February 13, 2019, the left arm fistula was blocked and Plaintiff underwent surgery for a right arm AVF creation.
On March 22, 2019, Plaintiff wrote to Dr. Dancha, and informed him that he “needs to send me to see a vascular surgeon since my left hand finger tips is(sic) dark purple and feels cold.” Id. at 9. Dr. Dancha did not respond to Plaintiff or take any action in response to Plaintiff's information.
On April 19, 2019, a vascular study was ordered and completed and recommended further testing and on April 23, 2019, Plaintiff spoke with Dr. Salmeh about the fistula site.
On April 26, 2019, Plaintiff was taken to the emergency room and admitted as an inpatient due to swelling and abscess in the Plaintiff's left arm. A right arm fistula was placed on April 29, 2019.
Plaintiff brings a “civil conspiracy” claim against Defendant Schrock for “conspiring” with Defendant Dr. Dancha and Defendant Dr. Salameh “with the common purpose of misleading Plaintiff regarding the proper treatment provided, and the proper treatment that should have been provided[,]” “discourag[ing] Plaintiff from seeking proper treatment to avoid the expense of vascular surgery to repair the damage caused by the failure to treat and the continued use of the left arm fistula site that was infected[,]” and “provid[ing] inadequate and misleading answers, which, Plaintiff believed at first and advised Plaintiff that the treatment he was being provided was adequate and proper, and denied the Plaintiff's grievances delaying proper treatment to Plaintiff, resulting in unnecessary risk, pain and suffering.” TAC (ECF No. 109) at p. 11. Due to the leniency afforded to pro se pleadings, the Court will construe Plaintiff's complaint as setting forth a civil conspiracy claim pursuant to 42 U.S.C. § 1983 against Defendant Schrock.
b. Standard of Review
i. Pro Se Pleadings
A pro se pleading is held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). As a result, a pro se complaint under 42 U.S.C. § 1983 must be construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). While pro se litigants are afforded this leniency, they “do not have a right to general legal advice from judges,” and “courts need not provide substantive legal advice to pro se litigants” because pro se litigants must be treated “the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
i. Federal Rule of Civil Procedure 12(b)(6)
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). Yet the court need not accept as true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion, a complaint must provide more than labels and conclusions. Bell Atlantic Corp., 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 555. Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic Corp., 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (quoting Bell Atlantic Corp., 550 U.S. at 556) (internal citations omitted).
When considering a Fed.R.Civ.P. 12(b)(6) motion, the court's role is limited to determining whether a plaintiff has a right to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
As a general rule, if a court “consider[s] matters extraneous to the pleadings” on a motion for judgment on the pleadings, the motion must be converted into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Even so, a court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents integral to or explicitly relied on in the complaint, even if they are not attached, without converting the motion into one for summary judgment. Mele v. Fed. Rsrv. Bank of New York, 359 F.3d 251, 256 n.5 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
c. Discussion
Defendant Schrock argues that Plaintiff does not allege any facts to support any of his conclusory allegations that Defendant Schrock engaged in any conspiracy against Plaintiff. (ECF No. 115 at 3). The Court agrees. At most, Plaintiff complains that Defendant Schrock in her capacity as SCI Laurel Highland's Health Care Administrator denied Plaintiff's grievances related to his medical care. “A plaintiff raising a claim under Section 1983 must allege a violation of a right secured by the Constitution or the laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” Wilkins v. Berks Cnty. Jail Sys., No. CV 15-5448, 2017 WL 2591943, at *4 (E.D. Pa. June 14, 2017). To establish personal liability against a defendant in a section 1983 action, the defendant must have personal involvement in the alleged wrongs. That is, the state actor must have played an affirmative part in the alleged misconduct to be subject to liability. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “[S]imply reviewing and denying grievances does not satisfy the ‘personal involvement' requirement for section 1983 claims.” Woodell v. Weiner, No. CV 18-1098, 2020 WL 5294308, at *11 (E.D. Pa. Sept. 4, 2020) (collecting cases).
Moreover, Plaintiff offers no facts sufficient to draw any reasonable inference that Defendant Schrock conspired to delay or deny Plaintiff medical care. Plaintiff's “mere incantation” of the word “conspiracy” in his complaint “does not talismanically satisfy [Federal Rule of Civil Procedure 8's] requirements.” Loftus v. Se. Pennsylvania Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994).
Accordingly, because Plaintiff has been given two opportunities to amend his complaint, it is respectfully recommended that Defendant Schrock's motion to dismiss be granted and Plaintiff's claim of conspiracy as to Defendant Schrock be dismissed with prejudice as amendment would be futile. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) (dismissal is appropriate where amendment “would be inequitable or futile.”).
d. Conclusion
Based on the foregoing, it is respectfully recommended that Defendant Schrock's motion be granted, and Plaintiff's Section 1983 civil conspiracy claim against Defendant Schrock be dismissed with prejudice.
Any party may file objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by August 23, 2022, and Defendants, because they are electronically registered parties, must file objections by August 18, 2022. The parties are cautioned that failure to file objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).