Opinion
2:22-CV-00819-CB
09-14-2023
REV. AUGUSTUS SIMMONS ENOXH, Plaintiff v. M. HICE, COULEHAN, UNIT MANAGER; LT. TROUT, LT. FOR L-BLOCK; LT. KULIK, LT. FOR L BLOCK; MAUREEN MALANOSKI, MAJOR OF UNIT MANAGE; MARTIN SWITZER, MAJOR OF GUARD; CAPTAIN KENNEDY, RHU CAPTAIN; STEPHEN BUZAS, DEPUTY SUPERINTENDENT; MARK DIALESANDROS, DEPUTY SUPERINTENDENT; MELODIE SIBANDA, REGISTER NURSE; VALERIE GRABOWSKI, REGISTER NURSE; MICAH HIGH, REGISTER NURSE; ALEXANDRA QUARTURE, REGISTER NURSE; JENNIFER ZEBLEY, REGISTER NURSE; LORAINE KAYLOR, NURSE; ASHLEY STILTON, NURSE; JENNIFER BEERS, NURSE; TERRY STRAIT, REGISTER NURSE; ASHLEY BOOKER, REGISTER NURSE; LORI JOZEFIK, NURSE; KEVIN MEITZLER, NURSE; WILLIAM NICHOLSON, HEALTHCARE SUPER; ROBERT SOLOMON, DOCTORS ASSISTANT; MARK HAMMER, DOCTORS ASSISTANT; JOHN DOE, CORRECTIONAL STAFF #1; JOHN DOE, CORRECTIONAL STAFF #2; JOHN DOE, CORRECTIONAL STAFF #3; JOHN DOE, CORRECTIONAL STAFF #4; JOHN DOE, CORRECTIONAL STAFF #5; JOHN DOE, CORRECTIONAL STAFF #6; AND ASHLEY LAYTON, Defendants
CATHY BISSOON, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON PENDING MOTIONS TO DISMISS
IN RE: ECF NOS. 29, 38
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Two motions to dismiss Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(6) are before the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636. Fed. R. Civ. Pro. 72, and LCvR 72. It is respectfully recommended that Defendant Quarture's motion (ECF No. 29) be GRANTED and that the claims against her be DISMISSED. It is further recommended that the DOC Defendants' motion (ECF No. 38) be GRANTED in part and DENIED in part.
II. Report
A. Factual and Procedural Background
Plaintiff Augustus Simmons Enoxh commenced this action against twenty-five named individual defendants and six John Doe defendants. Twenty-one of the named defendants are employees of the Pennsylvania Department of Corrections (collectively, DOC Defendants) at its State Correctional Institution at Greene (SCI-Greene) and the other four are individuals who apparently provided medical services at SCI-Greene either as employees of Wellpath or otherwise as non-DOC employees (collectively, Medical Defendants). Plaintiff asserts claims based on allegations that certain defendants knowingly disregarded reasonable COVID-19 mitigation procedures during the pandemic, resulting in his contracting the virus and becoming seriously ill. He further alleges that medical personnel at the prison either refused to treat his severe illness or, for non-medical reasons, treated him with less efficacious medications and therapies than those available. Plaintiff claims that this conduct violated his rights under the Eighth Amendment to the U.S. Constitution and seeks redress of these violations pursuant to 42 U.S.C. § 1983.
The DOC Defendants are Coulehan (Unit Manager), Trout (Lt. for L Block), Kulik (Lt. for L Block), Malanoski (Major of Unit), Switzer (Major of Guard), Kennedy (RHU Captain), Buzas (Deputy Superintendent), Dialesandros (Deputy Superintendent), Sibanda (Registered Nurse), Grabowski (Registered Nurse), High (Registered Nurse), Zebley (Registered Nurse), Kaylor (Nurse), Stilton (Nurse), Beers (Nurse), Strait (Registered Nurse), Booker (Registered Nurse), Jozefik (Nurse), Meitzler (Nurse), Nicholson (Healthcare Super.), and Layton. The Medical Defendants are Mike Hice, Mark Hammer (Doctors Assistant), Robert Solomon (Doctors Assistant), and Quarture (Registered Nurse). Hice, Hammer, and Solomon are employees of Wellpath, the company contracted to provide healthcare services at DOC correctional institutions. Quarture is separately represented and proceeding independent of the other Medical Defendants.
One of the Medical Defendants, Alexandra Quarture, moved separately to dismiss the claims against her on the grounds that the scant factual allegations against her fail to state a claim upon which relief can be granted. ECF Nos., 30. 29. The remaining Medical Defendants have filed an Answer. See ECF No. 32. The DOC Defendants have also moved to dismiss the claims against them. ECF No. 38. They argue that Plaintiffs claims must be dismissed because he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act. Specifically, they argue that Plaintiff failed to identify any DOC Defendant in his relevant grievance as required by DOC grievance procedures and that this procedural default precludes him from bringing his claims in this forum. See ECF No. 39, p. 4. Alternatively, they assert that the facts alleged do not support viable Eighth Amendment claims against them. Id., p. 8. The motions have been fully briefed and are ripe for decision.
B. Standard of Decision
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6) tests the legal sufficiency of the complaint. See Kostv. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “courtf] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir.1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Finally, because Plaintiff is proceeding pro se, his Complaint will be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read the pro se Plaintiffs Complaint to state a claim upon which relief can be granted, it will do so despite his failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
C. Factual Allegations
Plaintiff was previously incarcerated at SCI-Coal Township where prison personnel carefully adhered to COVID-19 mitigation measures such as mask-wearing by inmates and staff, daily disinfecting of commonly used surfaces, and isolation between prisoners, all of which limited outbreaks of infection. ECF No. 13, ¶ 3. On December 17, 2020, Plaintiff was transferred from SCI-Coal Township to SCI-Greene. Id., 4. He tested negative for COVID-19 before departing SCI-Coal Township and both upon arrival at SCI-Greene and after a fourteen-day quarantine period. Id., ¶ 6. Upon being housed on the L-block at SCI-Greene, Plaintiff noticed that staff members were not following any COVID-19 mitigation precautions. Id., ¶ 4. According to the Complaint, those responsible for enforcing COVID-19 safety protocols at SCI-Greene included: Deputy Stephen Buzas, Deputy Mark Dialesandros, Unit Manager Coulehan, Lt. Trout, Lt. Kulik, Major of Guard Martin Switzer, Major of Unit Management Maureen Malanoski, and Restricted Housing Unit Captain Kennedy. Id., ¶ 5. Each is named as a defendant in this action. Within one week of being placed on the L-block unit, Plaintiff Contracted CO VID-19. Id.,¶ 6.
Plaintiff was “exposed” to six correctional staff members (identified in the Complaint as John Doe Defendants) who disregarded safety measures, referred to COVID-19 as “fake,” reported for work knowing they had tested positive for the virus, and lied to medical staff about their test results. Id., at ¶ 7. Plaintiff reported this behavior to Unit Manager Coulehan, Lt. Trout, Lt. Kulik, and Major of Unit Management Maureen Malanoski, but nothing was done to enforce safety guidelines. Id. Plaintiff continued to inform administrators about this lack of enforcement and reported a “failure of correctional duty” to Switzer, Kennedy, Buzas, and Dialesandros. Id. Buzas and Dialesandros are also named as defendants.
After contracting the COVID-19 virus, Plaintiff complained to members of the prison's medical staff about difficulty breathing and severe pain in his joints, muscles, and internal organs. Id., ¶ 12. He alleges that medical staff ignored his pain and failed to provide appropriate treatment. Id. These medical staff members included: Registered Nurses Melodie Sibanda, Valerie Grabowski, Micah High, Alexandra Quarture, Jennifer Zebley, Loraine Kaylor, Ashley Stilton, Jennifer Beers, Terry Strait, Ashley Booker, Lori Jozefik, Ashley Layton, and Kevin Meitzler. Id.
Plaintiff verbally requested and sent written request slips for medical aid to Defendants William Nicholson (RN-CHCA), Robert Solomon (Physician), and Mark Hammer (Physician Assistant). Id., ¶ 13. Despite the availability of numerous treatment options, Plaintiff received only vitamin D and zinc. Id. He received no pain medication during this time and when he asked Hammer for an inhaler due to trouble breathing, Hammer refused to provide it, causing injury to his lungs. Id. Finally, Plaintiff states that M. Hice, liaison to Wellpath, the company contracted to provide healthcare at SCI-Coal Township, refused to approve a certain treatment due to its cost. Id. Plaintiff believes this was done in retaliation of his having filed a grievance against Hammer for refusing to provide medical care. Id. at 17.
D. Summary of Plaintiff s Claims
Based on the foregoing allegations, Plaintiff asserts twenty-four claims, which are graphically summarized as follows:
Count Number
Defendant(s)
Citation to Complaint (ECF No. 5)
1
Hice, Solomon, Hammer
Failure to provide Plaintiff with medication to treat COVID-19 symptoms or offering less efficacious treatment based on cost considerations.
p. 5
2
Refusal to provide more effective COVID-19 treatment based on medication cost
p. 6
3
Unit Manager Coulehan, Lt. Trout, Lt. Kulik
Supervisory liability based on L-Block supervisors' failure to enforce CDC guidelines and COVID-19 mitigation procedures
p. 6
4
Major of Unit Management Maureen Malanoski
Supervisory liability based on failure to enforce CDC guidelines and acquiescence in staffs “reckless conduct and behavior” concerning not wearing masks; cleaning unit, etc.; failure to protect Plaintiff from staffs reckless conduct
p.7
5
Major of Guard Martin Switzer
Supervisory liability based on acquiescence in staff s reckless conduct concerning COVID-19 protocols
p.7
6
RHU Captain Kennedy, C/Os 1, 2, 3, 4, 5,6
Supervisory liability based on nonenforcement of COVID-19 mitigation policies and procedures
p. 8
7
Dept. Superintendent Buzas
Supervisory liability based on acquiescence in staffs response to COVID-19; failure “to enforce the CDC guidelines to protect Plaintiff from COVID-19”
pp. 8-9
8
Dept. Superintendent Dialesandros
Supervisory liability based on acquiescence in staffs response to COVID-19: failure “to enforce the CDC
P-9
Count Number
Defendant(s)
Basis for Claim
Citation to Complaint (ECF No. 5)
guidelines to protect Plaintiff from COVID-19”
9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20,21
RN Sibanda, RN Grabowski, RN High, RN Zebley, Kaylor, Stilton, Beers, Strait, Booker, Jozefik, Layton, and Mietzler
“Several weeks” long denial of Plaintiff s access to pain medication for effects of COVID-19
pp. 9-16
12
RN Quarture
Inadequate referral/response to COVID-19 treatment inquiry
22
William Nicholson
Supervisory liability of medical supervisor for failure to protect Plaintiff from cruel and unusual punishment/prevent pain and suffering
p. 16
23
Robert Solomon
Failure to provide Plaintiff with pain medication and asthma inhaler for COVID-19 symptoms
pp. 16-17
24
PA Mark Hammer
Failure to provide Plaintiff with pain medication and asthma inhaler for COVID-19 symptoms
p. 17
Unless directly quoted, the claims identified herein are paraphrased from the language of the Complaint. Spelling errors have been corrected.
Plaintiff states this claim is against “Wellpath, M. Hice.” Because Plaintiff has not sued Wellpath, this reference is construed as identifying Hice as an employee of Wellpath and not as allegation against Wellpath as a business entity.
The following claims are relevant to the pending motions to dismiss:
• Counts 3-8 against DOC Defendants Coulehan, Trout, Kulic, Malanoski, Switzer, Kennedy, Buzas, and Dialesandros asserting supervisory liability claims based on acquiescence in subordinates' refusal to follow COVID-19 mitigation protocols;
• Counts 9-11 and 13-22 asserting an Eighth Amendment deliberate indifference to medical needs claim against DOC Defendants Sibanda, Grabowski, High, Zebley, Kaylor, Stilton, Beers, Strait, Booker, Jozefik, Layton, Meitzler, and Nicholson based on their alleged denial of medication to properly treat Plaintiff s CO VID-19 symptoms; and
• Count 12 asserting an Eighth Amendment deliberate indifference claim against Medical Defendant Quarture based on her instructing Plaintiff to submit a sick call slip to Hammer.
E. Discussion and Analysis
1. Dismissal based on the affirmative defense of failure to exhaust administrative remedies is not appropriate on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) where Defendants rely upon materials beyond the Complaint and have not moved alternatively for summary judgment or otherwise complied with the requirement of LCvR 56.
The DOC Defendants argue that Plaintiffs Complaint must be dismissed because he failed to properly exhaust his administrative remedies as required by the Prison Litigation Reform Act. (“PLRA”). See 42 U.S.C. § 1997e(a). Specifically, they argue Plaintiff failed to identify any of the DOC Defendants in the only grievance relating directly to his claims. See ECF No. 39, pp. 3-6. In support of this argument, the DOC Defendants have submitted the affidavit of Grievance Officer Michael Bell. The DOC Defendants have not moved alternatively for summary judgment or filed a concise statement of material facts as required by LCvR 56(B)(1). Nor has the Court given notice to Plaintiff that it would threat the DOC Defendants' motion, in whole or in part, as one for summary judgment. See Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010) (court must provide notice to pro se prisoners when converting a motion to dismiss into a motion for summary judgment). Accordingly, the Court may not consider the Bell affidavit or other evidentiary matters not attached or relied upon in the Complaint. Lum, 361 F.3d at 222 n.3.
Failure to exhaust administrative remedies as required by the PRE A is an affirmative defense that a defendant must plead and prove. “[I]nmates are not required to specifically plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). See also Small v. Camden Cnty., 728 F.3d 265, 268 (3d Cir. 2013). Because exhaustion is not a pleading requirement, it may be considered on a motion to dismiss only when a plaintiff acknowledges his failure to exhaust on the face of the complaint and the affirmative defense “present[s] an insuperable barrier to recovery by the plaintiff.” Ray v. Kertes, 285 F.3d 287, 295 n.8 (3d Cir. 2002) (citing Williams v. Runyon, 130 F.3d 568, 573 (3d Cri. 1997)). Plaintiff s Complaint does not acknowledge any failure to exhaust his administrative remedies. To the contrary, his Complaint expressly alleges that he has satisfied each stage of the grievance procedures of DC-ADM 804. Therefore, the Court should deny the DOC Defendants' motion to the extent it seeks dismissal of the claims against them based on the affirmative defense of failure to exhaust administrative remedies.
The DOC Defendants are free to re-raise this defense in a properly asserted motion for summary judgment that complies with LCvR 56.
2. Plaintiff's claims against the DOC Defendants in their official capacities should be dismissed.
Plaintiffs Complaint asserts his claims against each moving defendant in his or her “individual and official capacity.” ECF No. 13, p. 3. Plaintiff alleges that these defendants are correctional officers and nursing/medical staff employed by the DOC at SCI-Greene. Id., pp. 23. He seeks monetary damages against them. 7J.,pp. 18-19. However, claims for monetary damages against state officials sued in their official capacities are barred by the Eleventh Amendment. See Washington v. Gilmore, 2022 WL 819302, *8 (W.D. Pa. Mar. 18, 2022) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989); Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007)). Therefore, Plaintiff claims for monetary damages against the moving defendants in their official capacities should be dismissed with prejudice. See, e.g., Guilday v. Crisis Center at Crozer-Chester Medical Center, 2022 WL 507484, at *3 (E.D. Pa. Feb. 17, 2022).
Plaintiff also asks that the Court “declare defendants' conduct unlawful.” ECF No. 13, p. 17. However, declaratory relief is, for the most part, only available where injunctive relief would also be available - in situations where it is necessary to address prospective harm. Johnson v. Lesko, 2022 WL 6798416, at *6 (W.D. Pa. Apr. 26, 2022), report and recommendation adopted in part, rejected in part sub nom. Johnson v. Lasko, 2022 WL 4396192 (W.D. Pa. Sept. 23, 2022). Here, Plaintiff has not alleged facts to support that the moving defendants are engaged in any ongoing violation that would warrant injunctive or declaratory relief. Instead, he bases his claims exclusively on past conduct of the DOC Defendants. And, to the extent his claim for declaratory relief seeks prison reform for other inmates, he clearly lacks standing to assert such a claim. City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
The Court should also reject Plaintiffs request that the Court investigate and revoke the defendants' professional licenses. See ECF No. 13, p. 17. Plaintiff has identified no authority to support the Court's authority to revoke the professional licenses of state or private employees as a remedy under § 1983. To the extent Plaintiff seeks this remedy as punishment of the defendants, it is also barred by the Eleventh Amendment. See Phillips v. Nebraska, 2017 WL 5195209, at *3 (D. Neb. Nov. 9, 2017) (“To the extent termination of one's employment is a proper remedy under § 1983, [the] [p]laintiff does not allege that [the] [defendants' constitutional violations are ongoing; rather, [the] [p]laintiff seeks to terminate [the] [defendants' employment as a punishment for past misdeeds. Thus, [the] [p]laintiffs requested relief of terminating [the] [defendants' employment is barred by the Eleventh Amendment.”).
Accordingly, the claims against the moving defendants in their official capacities should be dismissed, with prejudice.
3. Plaintiffs supervisory liability/failure to protect claims against the DOC Defendants should not be dismissed.
The Eighth Amendment's protection against cruel and unusual punishment is violated when a prison official exhibits deliberate indifference towards an inmate; that is, if the official “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Estelle v. Gamble, 429 U.S. 97, 102-104 (1976). In this context, the Court must consider both objective and subjective components. The objective component asks whether the risk to health or safety is “sufficiently serious.” Farmer, 511 U.S. at 834. The subjective component is more complex. It requires evidence that the prison official knew of an excessive risk of harm to the inmate but disregarded that risk. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).
Plaintiff brings supervisory liability claims against Defendants Coulehan, Trout, Kulic, Malanoski, Switzer, Buzas, and Dialesandros. These claims are premised on allegations that they knew that staff under their supervisory authority were not following necessary COVID-19 mitigation procedures and “CDC guidelines,” but nevertheless failed to take any corrective action, thereby subjecting Plaintiff to an unnecessary risk of contracting the virus. See, e.g., ECF No. 13, p. 4, ¶ 9. Plaintiff also claims that Malanoski, Switzer, Kennedy, Buzas, and Dialesandros failed to protect Plaintiff from the risk of contracting COVID-19 by failing to enforce CDC guidelines. Id.
Courts in this Circuit have repeatedly rejected inmate claims based on exposure to COVID-19 where the record demonstrated that plaintiffs state correctional institution followed mitigation policies and procedures adopted by the DOC. See e.g., Engelund v. Doll, 2020 WL 1974389, at *11 (M.D. Pa. Apr. 24, 2020) (“it cannot be said that Respondents have been deliberately indifferent to Petitioners' health, safety, or medical needs” because, “[a]lthough COVID-19 presents a serious medical issue, as detailed above, the facilities have taken significant steps to curb the introduction or spread of COVID-19 and to contain and treat those infected with the virus”); Allen v. Wetzel, 2021 WL 2254997, at *7 (M.D. Pa. June 3, 2021) (DOC policies mitigating spread of COVID-19 sufficient to prevent deliberate indifference claim where Plaintiff contracted COVID-19 but did not experience any serious symptoms). In rejecting such claims, courts have frequently taken judicial notice of the DOC's mitigation policies and procedures because they are publicly available on a government website. See Allen, 2021 WL 2254997, at *6 (taking judicial notice of the DOC's COVID-19 mitigation policies). See also Bevins v. Kauffman, 2021 WL 322168, at * 1 (M.D. Pa. Feb. 1,2021) (noting that “DOC has provided publicly available information regarding its response to the COVID-19 pandemic”: https://www.cor.pa.gov/PAges/COVID-19.aspx). Courts have observed that “[a] review of these steps suggests that DOC officials... have not acted unreasonably with respect to the threat posed by COVID-19 and instead have instituted measures to safeguard the entire inmate population, including Plaintiff.” Bevins, 2021 WL 322168, at *5. Thus, an inmate's Eighth Amendment claim arising out of his or her contracting CO VID-19 will fail as a matter of law based on the DOC's COVID-19 mitigation policies and procedures absent factual allegations that prison officials disregarded or materially deviated from them. See Williams v. PA. Dep 't of Corr., 2023 WL 2655406, at *13 (W.D. Pa. Feb. 2, 2023), report and recommendation adopted sub nom. Williams v. PA Dep't of Corr., 2023 WL 2652298 (W.D. Pa. Mar. 27, 2023) (holding that inmate's second amended complaint failed to state an Eighth Amendment claim where it included “no factual allegations to support that any DOC Defendant deviated materially from any DOC COVID-19 mitigation protocols”).
Here Plaintiff alleges that the DOC Defendants either personally disregarded DOC COVID-19 mitigation policies and procedures or knew that prison staff members were disregarding them and did nothing about it. He alleges that John Doe Corrections Officers 1-6 “constantly quoted Donald J. Trump calling COVID-19 a common cold, fake, or not a[s] serious as democrats/media makes it.” ECF No. 13, p. 4, ¶¶ 7-11. He asserts that the supervisory DOC Defendants ignored his reports of prison staffs widespread disregard of COVID-19 precautions, which allowed their subordinates to spread the virus to the L-Block unit and, ultimately, to him. Id., p. 6.
The Court of Appeals for the Third Circuit has found similar allegations sufficient to state an Eighth Amendment claim. In White v. Wetzel, 2022 WL 32738607 (3d Cir. 2022), the plaintiff alleged supervisory prison personnel ignored “the Center for Disease Control guidelines for social distancing by housing inmates in an ‘open block' dormitory,” despite that they “knew how dangerous the open housing unit was..2022 WL 32738607, at * 1. Vacating the District Court's order dismissing the plaintiff s complaint, the Court of Appeals concluded that the allegations that prison personnel failed to comply with CDC guidelines, despite having been informed of the noncompliance by the plaintiff, were sufficient to state an Eighth Amendment claim. Id. at *2. Plaintiffs analogous allegations in this case are likewise sufficient to survive a motion to dismiss.
The DOC Defendants also argue that Plaintiffs COVID-19 related claims fail because his allegations do not support the personal involvement of the supervisory DOC Defendants. They are correct in observing that a plaintiff pursuing a § 1983 claim “must show that each and every defendant was ‘personally] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). “This means that each defendant must have played an ‘affirmative part' in the complained-of misconduct.” Ceasar v. Varner, 2022 WL 9491877, at *3 (W.D. Pa. Oct. 14, 2022) (quoting Iqbal, 556 U.S. at 677 (“In a § 1983 suit..., each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”). Furthermore, “[a]negations that broadly implicate multiple defendants without delineating individual conduct are legally insufficient.” Id. (citing Van Tassel v. Piccione, 608 Fed.Appx. 66, 69-70 (3d Cir. 2015)). Although Plaintiff's Complaint in this case does not allege dates or other details regarding how he notified each of the supervisory DOC Defendants regarding staff s disregard of CO VID-19 mitigation protocols, it does allege that Plaintiff specifically notified each of them verbally or in writing of this conduct and that each did nothing to correct the behavior. See ECF No. 13, ¶¶ 712, 19. While “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates,” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986), a supervisor, like any other official, faces liability if he or she participated in violating the plaintiff s rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K., 3T1 F.3d at 586 (emphasis added, citation omitted). Plaintiffs allegations are minimally sufficient to support that each supervisory DOC Defendant had knowledge of and acquiesced in subordinate misconduct and, thus, to support their personal involvement in the alleged Eighth Amendment violation.
Determining whether Plaintiff is ultimately able to prevail on his Eighth Amendment claim against the supervisory DOC Defendants will require a more developed record. As the Court of Appeals in White noted regarding the supervisory officials in that case, the DOC Defendants may be able on summary judgment to provide evidence “showing that they cannot be liable because they responded reasonably to the risk.” Id. (citing Farmer, 511 U.S. at 844). But here, as in White, dismissal is not appropriate based upon the allegations of the Complaint. Accordingly, it is recommended that the motion to dismiss claims against Defendants Coulehan, Trout, Kulic, Malanoski, Switzer, Kennedy, Buzas, and Dialesandros be denied.
4. Plaintiffs factual allegations against the DOC-employed nurses (Sibanda, Grabowski, High, Zebley, Kaylor, Stilton, Beers, Strait, Booker, Jozefik, Layton, Meitzler, and Nicholson) are minimally sufficient to state a deliberate indifference to medical needs claim.
According to the Complaint, DOC Defendants Sibanda, Grabowski, High, Zebley, Kaylor, Stilton, Beers, Strait, Booker, Jozefik, Layton, Meitzler, and Nicholson are registered nurses employed at SCI-Greene. See ECF No. 13, pp. 2-3. Plaintiff asserts an Eighth Amendment claim against each of these individuals based on allegations that each “caused plaintiff harm with the reckless act of denying plaintiff access to pain killers/pain medication when he was suffering from severe physical and mental pain from the effects of COVID-19 for several weeks.” ECF No. 13, pp. 9-16. As to Defendant Nicholson, Plaintiff alleges that “as a medical supervisor, [Nicholson] ...knowingly seen Plaintiff suffering from COVID-19 while in D.O.C. and did nothing to prevent this pain and suffering.” Id., p. 16. While thin on factual detail, this allegation supports a plausible inference that Nicholson was directly involved in Plaintiffs care and knowingly disregarded his need for treatment. Plaintiff further alleges that after contracting the virus, he complained to “medical staff” of “severe pain in his joints, muscles, internal organs, breathing, and severe headaches” that prevented him from sleeping, using the bathroom, thinking, and moving. Id., p. 4, ¶ 12. In response, Defendant Sibanda told him there was nothing she could do; Defendant Grabowski told him he would have to “ruff it out”; Defendant High refused to speak to Plaintiff and did nothing; Defendant Zebley told Plaintiff that she could not help him; Defendant Kaylor told him “that she would try to get me help, but never returned”; Defendants Stilton, Beers, Strait, and Booker refused to speak to Plaintiff about his pain; Defendant Jozefik refused to provide Plaintiff with pain killers; and Defendants Layton and Meitzler told him to “deal with the pain.” Id. Plaintiff acknowledges that Defendant Nicholson provided him with Vitamin D and zinc in response to his requests for treatment. Id., p. 5, ¶ 13. Plaintiff alleges that there were “24+ treatments” available and that the treatment he received “was deemed to have little benefit or no effect.” Id.
To establish an Eighth Amendment medical claim, a plaintiff must show “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment.” Id.
A prison official acts with deliberate indifference to an inmate's serious medical needs when he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Thus, a complaint that a physician or a medical department “has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment....” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Although thin on details such as dates and what role each Defendant had in his care, Plaintiff has alleged that he requested treatment for his COVID-19 infection from each of the nurse DOC Defendants and that each either refused or offered treatment that he or she knew to be inadequate to treat Plaintiff.
As noted, Nicholson provided Plaintiff with supplements as treatment for his illness, but Plaintiff characterizes this medication as “pseodotreatment,” and contends that it had “little benefit or no effect.” ECF No. 13, p. 5, ¶ 13. “Where 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.” Jordan v. Murin, 2020 WL 8675898, at *8 (W.D. Pa. Nov. 4, 2020) (quoting Green v. Wetzel, 2020 WL 4604540, at *9 (W.D. Pa. Aug, 11, 2020) (other citations omitted), report and recommendation adopted, 2021 WL 808698 (W.D. Pa. Mar. 3, 2021). Furthermore, courts “disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment... [which] remains a question of sound professional judgment.” Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)) (alterations in original)). That said, the fact that prison medical personnel have provided some medical care to an inmate does not preclude a finding of deliberate indifference:
[T]here are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements. For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for “an easier and less efficacious treatment” of the inmate's condition. West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). Nor may “prison authorities deny reasonable requests for medical treatment... [when] such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.'” Monmouth County Corr. Inst. Inmates, 834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)).Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017).
Like Plaintiffs allegations against the other nurse DOC Defendants, his allegations against Nicholson are minimally sufficient to state a claim. He alleges that while Nicholson provided him with zinc and vitamins, this treatment was woefully inadequate to address his symptoms and Nicholson should have recognized it as such. It is generally known that COVID-19 infections can vary significantly in severity. A more developed record may show that the treatment Plaintiff received for his infection was not deliberately indifferent based on the severity of his infection. And it is far from clear what role or responsibility each of the nurse DOC Defendants had in Plaintiff's care. But reading the Complaint in the light most favorable to Plaintiff and allowing for every reasonable inference in his favor, the facts alleged are minimally sufficient to state a plausible deliberate indifference to medical needs claim against Defendants Sibanda, Grabowski, High, Zebley, Kaylor, Stilton, Beers, Strait, Booker, Jozefik, Layton, Meitzler, and Nicholson. See Robinson v. Pennsylvania Dep 't of Corr., 2022 WL 970760, at *5 (ED. Pa. Mar. 31, 2022). Thus, whether this claim should survive scrutiny at later stages of the case will require a more developed record that presumably will include Plaintiff s medical records.
5. Defendant Quarture's motion to dismiss should be granted and the claims against her should be dismissed.
Plaintiffs lone allegation against Defendant Quarture is that after complaining to her about his COVID-19 symptoms, she “told [Plaintiff] to file a sick call to Mark Hammer.” ECF No. 13, p. 4, ¶ 12. This allegation is insufficient to support a plausible inference of deliberate indifference. Quarture did not deny medical care but instead referred Plaintiff to the correct procedure for obtaining medical assistance. And Plaintiff apparently followed Quarture's advice as he acknowledges that Hammer responded to his request for treatment. Id., p. 5, ¶ 13.
Plaintiff has not alleged facts to support a deliberate indifference claim against Quarture and her motion to dismiss therefore should be granted.
F. Leave to Amend
The Court of Appeals for the Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, amendment may not be futile as to Plaintiffs deliberate indifference claim against Quarture. That claim against Quarture should be dismissed without prejudice, and Plaintiff should be offered leave to amend as to that claim within twenty (20) following the disposition of this Report and Recommendation. If he fails to file an amended complaint within that time, his deliberate indifference claim against Quarture should be dismissed with prejudice.
G. Conclusion
In summary, it is respectfully recommended that (1) the DOC Defendants' motion to dismiss (ECF No. 38) be GRANTED as to Plaintiffs claims against the DOC Defendants in their official capacities, and DENIED in all other respects, and (2) Defendant Quarture's motion to dismiss (ECF No. 29) be GRANTED. It is further recommended that Plaintiff s official capacity claims be dismissed with prejudice, but that his deliberate indifference claim against Defendant Quarture be dismissed without prejudice and with leave to file an amended complaint as to that claim.
III. Notice Regarding Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), 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).