Opinion
2:20-CV-01686-LPL ECF 8 10
06-07-2021
CHRISTOPHER FERREIRAS, Plaintiff, v. CHCA NEDRA RICE-GREGO, CHCA STEPHANIE WOOD, SUPT MARK CAPOZZA, CRN K. RANDOLPH, RN BRIAN, RN BRENT, RN DARLA, RN MARK JENKINS, RN BOBECK, RN CARTER, RN SANNER, MEDICAL PROVIDER RACHEL MEDLOCK, CO 1 BURRIE, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, SCI -FAYETTE, MD.PA DOC, ET AL; Defendants.
CHRISTOPHER FERREIRAS Counsel for Defendants
CHRISTOPHER FERREIRAS Counsel for Defendants
District Judge Marilyn Horan
REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS
LISA PUPO LENIHAN, United States Magistrate Judge
I. RECOMMENDATION
For the reasons stated below, it is the recommendation of this Court that the Motion to Dismiss filed by Defendants Medlock and Cowden (“Medical Defendants”) be granted, and the claims against them be dismissed without prejudice, except for the claims of ADA violation against Medical Defendants in their individual capacities, which should be dismissed with prejudice. Plaintiff should be granted leave to amend the rest of the claims against Medical Defendants, provided he can show that his allegations are not time-barred by the statute of limitations.
Regardless of whether the plaintiff is counseled or not, if the Court has determined that a civil rights complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6), the Court must give the plaintiff an opportunity to amend the complaint, even if not requested, unless such amendment involves bad faith, would cause undue delay or prejudice, or would be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (prisoner civil rights case).
In addition, the Court recommends that the Motion to Dismiss by the DOC Defendants be granted. All claims against the DOC Defendants in their official capacities should be dismissed with prejudice, except for the ADA claims. The claims of ADA violation against the DOC Defendants in their official capacities remain in the case. Plaintiff should be granted leave to amend the remainder of his claims against the DOC Defendants in their individual capacities.
II. REPORT
A. Factual Allegations and Procedural Background
Plaintiff Christopher Ferreiras (“Plaintiff”) is currently incarcerated at SCI Albion. ECF No. 1-1, ¶ 1. The allegations took place when he was incarcerated at SCI Fayette. Id. ¶ 16. Plaintiff asserts claims of deliberate indifference for violating the clause prohibiting cruel and unusual punishment under the Eighth Amendment, violation of the Equal Protection Clause under the Fourteenth Amendment, and violations of the Americans with Disabilities Act (“ADA”) against both the Medical and DOC Defendants. Plaintiff also asserts state law professional negligence claims against the Medical Defendants. Id. p. 2
Plaintiff suffers from paraplegia and must self-catheter four times a day-at 6 am, 11 am, 4 pm, and 10 pm. Id. ¶ 20. Plaintiff has a prescription for these supplies weekly: twenty-eight French catheters, twenty-one diapers, and twenty-eight pairs of latex gloves. Id. ¶ 19. Each set of supplies are meant to last one week. Id.
From August 14, 2017 to October 2018, Plaintiff experienced shortages in his supplies of catheters, and also received the wrong size of catheters. On August 14, 2017, Defendant RN Brian came at 7 am with medication for Plaintiff but failed to bring Plaintiff his weekly catheter supplies. Id. ¶ 21. Brian told Plaintiff that the RN on the next shift would bring Plaintiff the supplies. Id. ¶ 22. Plaintiff was forced to reuse the catheter he used at 6 am. Id. For the rest of that day, Plaintiff had to use the same catheter as he was not given additional catheters. Id. ¶ 23.
On August 21, 2017, Defendant Brian again failed to provide the catheter supplies when he came to give Plaintiff his medication. When Plaintiff asked for the supplies and explained that he could get infections from contaminated catheters, Brian allegedly told him to “stop bitching.” Id. ¶ 24. Plaintiff was again forced to reuse his supplies. Id. At 7pm that same day, another nurse brought Plaintiff his medical supplies. Id. ¶ 25.
On that same day, Plaintiff asked Defendant Medlock for catheters and benzalkonium wipes to be included in his supplies. Medlock refused. Id. ¶ 27. The next day, August 22, Defendant Brian told Plaintiff that he would no longer bring Plaintiff his supplies and that he should ask someone else to do so, because of Plaintiff's complaining. Id. ¶ 28. Plaintiff contracted a urinary tract infection (“UTI”) as a result of reusing catheters. Id. ¶ 26.
When Plaintiff placed a sick call, Defendant Darla Cowden answered and told him he should wash his catheters using soap and water. Plaintiff alleges that this is against the medical practice in the United States for people with paraplegia. Id. ¶ 29. Cowden also refused to test Plaintiff for other infections after his course of antibiotic treatment was complete. Id. ¶ 32.
Plaintiff alleges that “the denial of medical supplies continued, ” and on September 4, 2017, a nurse brought Plaintiff 3 diapers, 4 packets of lubricant, 4 catheters, and 4 pairs of gloves. Id. ¶ 30.
The Corrections Health Care Administrators (“CHCA”) Stephanie Wood and Nedra Rice-Grego refused to house Plaintiff in the infirmary after placing him on antibiotics for two weeks for his UTI. Id. ¶ 31. Plaintiff sent them request slips on March 19 and 26 of 2018, requesting the correct size of catheters. Plaintiff explained in his request slips that the wrong size catheters give him difficulty, but the request was denied. Id. ¶ 33. In June 2018, Plaintiff continued to receive the wrong size catheters and inadequate supplies. Id. ¶ 34. Plaintiff was only receiving twelve catheters per week instead of his usual twenty-eight. Id. ¶ 35.
On September 18, 2018, Defendant RN Brent stated to Plaintiff that the medical staff had hidden all of Plaintiff's supplies and that he could not find them. Id. ¶ 37. Plaintiff asked Defendant Corrections Officer Burrie to contact medical to get his supplies, but Burrie refused. Id. ¶ 38. Defendant RN Bobeck also refused to provide Plaintiff with his supplies at medication time. Id. ¶ 39. Later that day, Defendant Brent brought Plaintiff 3 French catheters, 3 pairs of gloves, 2 diapers, and 3 packets of lubricant, which was meant to last a full week. Brent told Plaintiff that he does not have time to bring the medical supplies. Id. ¶ 40.
On September 24, 2018, Defendant RN Jenkins refused to bring Plaintiff his supplies, telling him that the eye doctor was using the medical supply room. Id. ¶ 41. In the next month, Defendant Wood stopped sending Plaintiff the gloves and the wipes he needed to clean off the catheters he was reusing. Id. ¶ 42.
The lack of proper catheter supplies resulted in Plaintiff being unable to properly empty his bladder, serious spasms, and constant urinary accidents. Id. ¶ 36. Plaintiff alleges that he may have also had several undiagnosed UTIs, but Defendants refused to test him. Id.
Plaintiff filed a lawsuit pursuant to 42 U.S.C. § 1983 in the Court of Common Pleas of Fayette County on October 16, 2020. ECF No. 1-2. Defendants Medlock and Cowden removed the case to this Court based on federal question jurisdiction on November 3, 2020. ECF No. 1-3. The Medical and DOC Defendants filed their respective Motions to Dismiss for Failure to State a Claim on January 4, 2021, along with briefs in support. ECF Nos. 8 through 11. Plaintiff filed his briefs in opposition to the Motions on February 23, 2021. ECF Nos. 23, 27. The Motions are now ripe for disposition.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
C. Discussion
1. Motion to Dismiss by Medical Defendants Medlock and Cowden
a. ADA Claims
Defendants Medlock and Cowden argue that the ADA claims against them should be dismissed because, as individuals, they are not among the class of defendants against which such claims should be brought. ECF No. 9, p. 7. In his response in opposition, Plaintiff cites no law to the contrary, simply insisting that Defendants are cognizable defendants under the ADA. ECF No. 23, p. 6.
Individuals are not liable under Title II of the ADA because they are not “public entities” within the meaning of the ADA. See Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002). An exception exists when an individual is sued for prospective injunctive relief. See Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002) (“a person seeking purely prospective relief against state officials for ongoing violations of federal law may sue under the ‘legal fiction' of Ex parte Young[, 209 U.S. 123, 159-60 (1908)]”). But Plaintiff does not seek any form of injunctive relief. Thus, medical Defendants Medlock and Cowden may not be held liable in their individual capacities for damages under Title II of the ADA. The Court respectfully recommends that the ADA claims against Defendants in their individual capacities be dismissed with prejudice.
The term “public entities” of Title II of the ADA is defined as:
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of Title 49).
Nor does the Complaint state that the medical Defendants in their official capacity are part of a public entity.
b. Statute of Limitations
Medical Defendants argue that all claims based on allegations that took place before October 16, 2018 are time-barred by the statute of limitations. ECF No. 9, p. 5. Plaintiff filed his complaint on October 16, 2020, thus any facts alleged to have taken place earlier than the two years before that date is time-barred from being the basis of any claims. Id. Defendants assert that the Complaint contains only three paragraphs involving allegations against them, and those allegations occurred on August 21st, 22nd, and in September of 2017, well outside the two years within which Plaintiff should have filed the complaint. Id. p. 3.
Congress has not established a time limitation for a § 1983 cause of action. Wilson v. Garcia, 471 U.S. 261, 266 (1985), superseded by statute as recognized in, Kasteleba v. Judge, 325 Fed.Appx. 153, 156 (3d Cir. 2009). The United States Supreme Court has indicated, however, that courts are to consider § 1983 actions as tort actions and borrow the statute of limitations for state tort causes of action. Wilson, 471 U.S. at 278. In Pennsylvania, the statute of limitations for tort actions is two years. 42 Pa. Con. Stat. Ann. § 5524. Therefore, for § 1983 actions brought in Pennsylvania federal courts, the appropriate limitations period is two years. See Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985).
Federal law, however, governs when a § 1983 cause of action accrues; that is, when the statute of limitations begins to run. See Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, “‘the limitations period begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action.'” Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998) (quoting Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991)). “The cause of action accrues even though the full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 (citations omitted).
In addition, because exhaustion of prison administrative remedies is mandatory under the Prison Litigation Reform Act, the statute of limitations applicable to § 1983 actions may be tolled while a prisoner exhausts. Thompson v. Pitkins, 514 Fed.Appx. 88, 90 (3d Cir. 2013). The Complaint states that Plaintiff has exhausted all his administrative remedies for the events in this action. ECF No. 1-1, ¶ 18. In his response in opposition to the DOC Defendants' Motion to Dismiss, Plaintiff states that he filed grievances about the medical supply issue. ECF No. 27, pp. 3-5. Plaintiff has not alleged that he submitted any grievances against either Defendant Medlock or Cowden in particular. If he did, the process may toll the statute of limitations period, depending on when the final appeals of the grievances were denied. Thus, it is respectfully recommended that Plaintiff be granted leave to amend the Complaint with regard to Defendants Medlock and Cowden, if he submitted any grievances naming them. Plaintiff should attach the grievances and all initial reviews and final appeals, or allege the dates on which they were filed or issued.
c. Equal Protection
Defendants argue that although in the Complaint Plaintiff identifies a claim for the violation of the Equal Protection Clause of the Fourteenth Amendment, he fails to state how he has been treated differently than those similarly situated and only states a basis for a violation of the Eighth Amendment. ECF No. 9, p. 5. Plaintiff responds with new allegations that do not appear in the Complaint. ECF No. 23, pp. 4-5.
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “This is not a command that all persons be treated alike but, rather, ‘a direction that all persons similarly situated should be treated alike.'” Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). See also United States v. Armstrong, 517 U.S.456 (1996) (Equal Protection Clause prohibits decision to prosecute based on an unjustifiable standard such as race, religion, or other arbitrary classification).
To state a claim under this theory, “a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment.” Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
While Plaintiff has not stated an equal protection claim based on the allegations in the Complaint, it is this Court's recommendation that he be granted leave to amend this claim if he is able to allege facts that would state an equal protection claim. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
d. Professional Negligence Claims
Finally, Defendants Medlock and Cowen move to dismiss Plaintiff's claims against them for professional negligence. ECF No. 9, p. 8. Plaintiff has not filed a Certificate of Merit (“COM”), according to the Pennsylvania Rules of Civil Procedure. Plaintiff responds that he does not have to produce a COM, because this issue is “within the common knowledge of lay people.” ECF No. 23, p. 5. He cites no law thereto.
In the Third Circuit, actions stemming from claims of medical malpractice are considered “action[s] based upon an allegation that a licensed professional deviated from an acceptable professional standard, ” as required by Pa. R. Civ. P. 1042.3 (a). Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 264 (3d Cir. 2011); Baumgarder v. Ebbert, 535 Fed. App'x 72, 77 (3rd Cir., 2013); Smith v. United States, 498 Fed. App'x 120, 121-22 (3rd Cir. 2012). Thus, unless an exception to the COM requirement applies, Plaintiff's medical malpractice and professional negligence claims asserted under Pennsylvania law, are subject to the COM requirement under Pa. R. Civ. P. 1042.3(a). The Third Circuit has held that a plaintiff's pro se status does not excuse compliance with the COM requirement. Hodge v. U.S. Dep't of Justice, 264, 267 (3rd Cir. 2010) (citing Iwanejko v. Cohen & Grigsby P.C., 249 Fed. App'x 938, 943-44 (3rd Cir. 2007)).
Under Pennsylvania law, a Plaintiff may file an untimely Certificate of Merit (“COM”) as long as she does so before the defendant files a praecipe for non pros. Liggon-Redding at 260 n.2. The burden is on a Plaintiff to meet all requirements, and in those instances when a Plaintiff requires more time to obtain and file a COM, Rule 1042.3(d) allows that “upon good cause shown, [the Court] shall extend the time for filing a certificate of merit for a period not to exceed sixty days.” Green v. Maxa, No. 1:17-CV-223SPB, 2019 WL 1207535, at *3 (W.D. Pa. Mar. 14, 2019). If a Plaintiff does not comply with Rule 1042.3, the claims will be dismissed and a judgment of non pros entered upon a motion by the Defendant according to Pa. R. Civ. P. 1042.6. Perez v. Griffin, 304 Fed.Appx. 72, 74 (3d Cir. 2008). But the failure to comply with Rule 1042.3 is not fatal to claims of professional liability if the plaintiff can show a “reasonable excuse” for the noncompliance. Id. (citing Womer v. Hilliker, 908 A.2d 269, 279-80 (2006)).
In reviewing Plaintiff's response, he may be attempting to assert claims of ordinary negligence, rather than professional malpractice, against the medical Defendants. “Rule 1042.3 was intended to weed out frivolous claims which allege that medical and other professionals deviated from acceptable professional standards of care. But Rule 1042.3 was not intended to be a procedural trap to strike down potentially meritorious claims sounding in ordinary negligence.” Ferencz v. Medlock, No. CIV.A. 11-1130, 2014 WL 3339639, at *7 (W.D. Pa. July 8, 2014). If a claim does not involve the exercise of medical judgment-involving technical complexity or esoteric issues beyond the realm of common knowledge and experience-but instead alleged administrative errors (such as a failure to schedule a follow-up appointment), then it would sound in ordinary negligence. See Ferencz, at *7.
As the Court is not able to ascertain at this time whether Plaintiff intends to assert a claim of ordinary negligence or professional negligence, or both, it is recommended that all negligence claims be dismissed without prejudice and Plaintiff be granted leave to amend. Plaintiff should be cautioned that if he intends to assert a claim of professional negligence, he must file a Certificate of Merit pursuant to Pa. R. Civ P. 1042.3(d)..
2. Motion to Dismiss by DOC Defendants
a. Eleventh Amendment Immunity
As correctly noted by the DOC Defendants, the Eleventh Amendment bars suits against a state in federal court by private parties. Laskari v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). “Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it . . . a State cannot be sued directly in its own name regardless of the relief sought.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citing Pugh, 438 U.S. at 781). Eleventh Amendment immunity protects entities created by state governments that operate as alter egos or arms of the State. See Lake Country Estates v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 402 (1979). The United States Supreme Court has held that a § 1983 action brought against a “State and its Board of Corrections is barred by the Eleventh Amendment unless [the State] has consented to the filing of such a suit.” Pugh, 438 U.S. at 782. The Commonwealth of Pennsylvania has specifically reserved its right to immunity from suit in federal court under the Eleventh Amendment. 42 Pa. Cons. Stat. § 8521(b) (“Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.”) Moreover, the United States Supreme Court has held that § 1983 does not override a State's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 342 (1979). An action in federal court for damages or back pay against a state official acting in his official capacity is also barred. Laskaris at 26.
For that reason, it is respectfully recommended that all claims against the DOC Defendants in their official capacities be dismissed with prejudice.
With the exception of the claim of ADA violation. See below.
b. Non-Medical Personnel
Defendants Capozza, Rice-Grego, and Wood maintain that they are non-medical personnel, and because Plaintiff was under medical care, they cannot be liable for deliberate indifference. ECF No. 11, pp. 4-6. They state that there are no allegations that they interfered with Plaintiff's treatment, and that he alleges he was eventually provided with medical supplies and treated with antibiotics. Id. Thus, they argue, the claims of deliberate indifference against them should be dismissed.
Plaintiff replies by stating that he sent multiple grievances to Capozza regarding the lack of supplies. ECF No. 27, pp. 4- 6. Plaintiff avers that Defendants Capozza, Rice-Grego, and Wood were aware of his situation with lack of adequate and proper supplies, and the harm he was experiencing, through request slips he sent to them. Id.
To state a claim for deliberate indifference, a plaintiff must satisfy the two-part test drawn from Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “First, plaintiff must make an ‘objective' showing that the deprivation was ‘sufficiently serious,' or that the result of defendant's denial was sufficiently serious. Additionally, the plaintiff must make a ‘subjective' showing that defendant acted with ‘a sufficiently culpable state of mind'” - i.e., “deliberate indifference ”Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
A medical need is “serious” if it is “one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003). “The seriousness of an inmate's medical need may also be determined by reference to the effect of denying the particular treatment.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations omitted).
To demonstrate deliberate indifference, the plaintiff “must make a subjective showing that defendant acted with a sufficiently culpable state of mind.” Pinchak, 294 F.3d at 499. The level of culpability is “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Thomas v. Dragovich, 142 Fed.Appx. 33, 36 (3d Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A prison official must “know of an excessive risk to an inmate's health or safety and affirmatively disregard it.” Innis v. Wilson, 334 Fed.Appx. 454, 456 (3d Cir. 2009) (citing Farmer, 511 U.S. at 835-38). “A non-medical prison official” cannot “be charge[d] with the Eighth Amendment scienter requirement of deliberate indifference” when the “prisoner is under the care of medical experts” and the official does not have “a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” Pearson v. Prison Health Serv., 850 F.3d 526, 543 (3d Cir. 2017) (Spruill, 372 F.3d at 236).
The Third Circuit has “found ‘deliberate indifference' in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citations omitted). Prison officials may not, with deliberate indifference to the serious medical needs of the inmate, choose “an easier and less efficacious treatment” of the inmate's condition. Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017). Deliberate indifference has been found when a “prison official persists in a particular course of treatment ‘in the face of resultant pain and risk of permanent injury.” Mutschler v. SCI Albion CHCA Health Care, 445 Fed.Appx. 617, 620 (3d Cir. 2011) (reversing dismissal of Eighth Amendment claim against prison official because it is plausible from the pleadings that he knew about Plaintiff's latex allergy and resultant pain and risk of injury and he failed to correct the situation). See also Jefferson v. Overton, No. CV 13-220, 2017 WL 3922909, at *6 (W.D. Pa. Sept. 7, 2017) (denying summary judgment to CHCA defendants because they were responsible for resolving inmate health care grievances, and oversee the delivery of health care to each inmate and, despite awareness of Plaintiff's ongoing infection risk and the practice of reusing catheters, each did nothing).
Capozza, Rice-Grego, and Wood are non-medical personnel. Plaintiff's response to their Motion, while not incorporated into his Complaint, show that they may have been aware of the inadequate amount and size of catheters Plaintiff was receiving. Furthermore, this situation is not one in which Plaintiff's medical needs were being met under the care of a medical professional, and non-medical staff was not obligated to intervene because they did not have medical expertise. Plaintiff alleges that his catheters and other supplies have been prescribed to him, but the prison was not supplying the correct amount and size that were prescribed. Thus, this is a case in which a medical professional had determined how to treat a patient, but the non-medical staff is not ensuring that the proper course of treatment is being carried out. While a defendant's mere participation in the grievance process cannot confer knowledge of, and acquiescence to, a constitutional violation, (Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013)), it is possible, based on Plaintiff's statement in his response, that Defendants' actions or inaction go beyond merely denying Plaintiff's grievances. Thus, it is the recommendation of this Court that the claims of deliberate indifference against Capozza, Rice-Grego, and Wood be dismissed without prejudice, and Plaintiff be granted leave to amend his claims with the allegations he sets forth in his response in opposition.
c. Personal Involvement
Defendants argue that Plaintiff does not state a claim for deliberate indifference against Defendants Capozza, Sanner, and Randolph because he failed to allege any personal involvement on their part. ECF No. 11, p. 6. They assert that Plaintiff seems to implicate Defendants' participation by virtue of their titles. Id. Plaintiff responds with additional facts about Defendant Randolph's actions.
It is well settled that a “defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)). A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. These allegations “must be made with appropriate particularity.” Id. See also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a ‘plausible nexus' or ‘affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'”). A defendant's mere participation in the grievance process is insufficient to confer knowledge of, and acquiescence to, a constitutional violation. Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013); see also Sears v. McCoy, No. 1:17-CV-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept. 12, 2017) (“the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.”).
The Court agrees with Defendants that Plaintiff has not sufficiently alleged how Capozza, Sanner, and Randolph were personally involved in the deliberate indifference to his medical needs. It is respectfully recommended that the claims against Capozza, Sanner, and Randolph be dismissed without prejudice and Plaintiff be granted leave to amend.
d. Eighth Amendment Claims
Defendants Sanner, Carter, Bobeck, Jenkins, Randolph, and McShane argue that Plaintiff fails to state an Eighth Amendment claim for deliberate indifference to medical needs as to them. ECF No. 11, p. 8. Specifically, these Defendants maintain that Plaintiff did not allege the culpable state of mind necessary to state a claim for deliberate indifference And, although the time and manner with which he received his supplies changed, Plaintiff nonetheless received his supplies and thus does not state claim for deliberate indifference. Id. p.9. Plaintiff responds that whenever one of the Defendant nurses failed to deliver the correct amount of supplies, Plaintiff would explain why he needed the amount he did and the harm of having to reuse the catheters. ECF No. 27, p. 7.
McShane is not listed as a Defendant on the docket. Secondly, the Motion to Dismiss filed by DOC Defendants does not include McShane. The only place McShane appears is in the argument commencing on page 8, ECF 11. Therefore, the Court is ignoring any argument as to McShane as he is not a Defendant in the case.
To state an Eighth Amendment violation in the context of medical treatment, an inmate must show two elements: 1) plaintiff was suffering from a “serious medical need, ” and 2) prison officials were deliberately indifferent to the serious medical need. Gamble v. Estelle, 439 U.S. 897 (1978). Deliberate indifference is properly pleaded by factual allegations supporting the conclusion that the official knew of and disregarded an excessive risk to inmate health or safety.
Natale, 318 F.3d at 582 (citing Farmer v. Brennan, 511 U.S. 825 (1994)). The official must be “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists.” Natale, 318 F.3d at 582. The official must also “draw the inference.” Id. The United States Court of Appeals for the Third Circuit has held that this standard is met in several scenarios, including “when a doctor is intentionally inflicting pain on [a] prisoner, ” and when the denial of “reasonable requests for medical treatment ... exposes the inmate to undue suffering[.]” Spruill, 372 F.3d at 235 (internal quotation marks and citations omitted). This standard is also met when “a prison official . knows of a prisoner's need for medical treatment but intentionally refuses to provide it” or “delays necessary medical treatment based on a nonmedical reason.” Rouse v. Plaintier, 182 F.3d 192, 197 (3d Cir. 1999).
The allegations in the Complaint are insufficient as to whether the Defendants exhibited the culpable state of mind. There is no allegation that Defendants Brent, Bobeck, or Jenkins were aware of this serious medical condition/need for supplies and the consequences to Plaintiff when ignored. Brent also was unable to find the supplies in the first alleged instance he failed to bring Plaintiff the supplies. This is not enough to make out a plausible claim that Brent, Bobeck, and Jenkins were deliberately indifferent.
Where allegations state what illness and conditions Plaintiff could and has acquired when forced to reuse his catheters, they do not state which Defendants were aware of this. As discussed above, there are no allegations against Defendants Sanner, Randolph, or Carter.
Aside from the issue of the sufficiency of allegations against the individual Defendants, the Court disagrees with Defendants' argument that “the fact is that Plaintiff still received medical supplies and this change does not sufficiently show deliberate indifference on the part of these Corrections Defendants.” ECF No. 11, p. 9. Plaintiff states in the Complaint that he needed a new catheter each time he emptied his bladder, and that not having the right amount and the right size of catheters would and did cause UTIs, besides pain and discomfort. Thus, while prison authorities are given considerable latitude in the diagnosis and treatment of prisoners, Durmer v. O'Carroll, 991 F.2d at 67 (quotations and citations omitted), a preventable, ongoing harm caused by the lack of medical supplies goes beyond such latitude. There is no dispute that Plaintiff suffers from a serious medical condition. If Plaintiff could sufficiently allege a culpable state of mind as to any individual Defendant, then together with the lack of adequate catheter supplies leading to his undue suffering, it would state the claim of deliberate indifference against that Defendant.
The Court recommends that the deliberate indifference claims against Sanner, Carter, Bobeck, Jenkins, and Randolph be dismissed without prejudice, and that Plaintiff be given leave to amend the allegations against them individually.
e. Defendant Burrie
Defendant Burrie argues that Plaintiff fails to state a claim against him because there are no allegations that Burrie had any knowledge of the medical staff mistreating Plaintiff. Plaintiff makes new allegations in his responsive brief that suggest that Burrie ignored his request to contact medical more than once, and that he had explained to Burrie why he needed more catheters. ECF No. 27, p. 7. Again, none of this is in his Complaint.
As stated above, “a non-medical prison official” cannot “be charge[d] with the Eighth Amendment scienter requirement of deliberate indifference” when the “prisoner is under the care of medical experts” and the official does not have “a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” Pearson v. Prison Health Serv., 850 F.3d 526, 543 (3d Cir. 2017) (Spruill, 372 F.3d at 236).
Burrie is a non-medical person who is alleged to have ignored Plaintiff's request to contact Medical once. As the Complaint stands, Plaintiff does not allege sufficient allegations to state a claim of deliberate indifference against Defendant Burrie. The Court respectfully recommends that the deliberate indifference claim against Burrie be dismissed without prejudice and Plaintiff be granted leave to amend his Complaint.
f. Equal Protection
Defendants argue that Plaintiff has failed to allege that there are similarly situated individuals whom the Corrections Defendants treated in a different manner from the way they treated Plaintiff and thus has failed to allege a violation of equal protection clause against any individual DOC Defendants. ECF No. 11, p. 11. Plaintiff does not respond to this argument. As with the Court's recommendation for the same claim against Defendants Medlock and Cowden, and for the same reasons, it is also recommended that this claim be dismissed without prejudice and Plaintiff be granted leave to amend his Complaint about the equal protection claim against the DOC Defendants.
g. ADA Claims
Finally, Defendants maintain that DOC Defendants in their individual capacities are not liable for ADA violations, and motion for the ADA claims against the DOC Defendants in their individual capacities to be dismissed. ECF No. 11, p. 11. The discussion as to ADA violations by Medlock and Cowden above applies here as well. The DOC Defendants 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. See Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002). It thus is the Court's recommendation that Plaintiff's claims of ADA violation against the DOC Defendants in their individual capacities be dismissed with prejudice. As Defendants did not motion to dismiss the ADA claims against the DOC Defendants in their official capacities, those claims will proceed.
III. CONCLUSION
Thus, the Court respectfully recommends that the Motion to Dismiss by Medical Defendants Medlock and Cowden be granted, and the claims against them be dismissed without prejudice, except for the claims of ADA violation against Medical Defendants in their individual capacities, which should be dismissed with prejudice. Plaintiff should be granted leave to amend the rest of the claims against Medical Defendants, provided he can show that his allegations are not time-barred by the statute of limitations.
See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). If Plaintiff intends to assert a professional negligence claim against Medical Defendants, he has 60 days from the filing of the order adopting this Report and Recommendation to file a Certificate of Merit. Pa. R. Civ. P. 1042.
In addition, the Court respectfully recommends that the Motion to Dismiss by DOC Defendants be granted. All claims against the DOC Defendants in their official capacities should be dismissed with prejudice, except for the ADA claims. The claims of ADA violation against the DOC Defendants in their official capacities remain in the case. Plaintiff should be granted leave to amend the remainder of his claims against the DOC Defendants in their individual capacities.
If Plaintiff is granted leave to file an amended complaint, that “amended complaint must be complete in all respects. It must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed.” Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D.Pa. 1992). It should specify what actions are alleged as to each individual Defendant. The amended complaint must be “simple, concise, and direct” as required by the Rules of Civil Procedure. See Fed.R.Civ.P. 8. If Plaintiff fails, within the applicable time period, to file an amended complaint adhering to the standards set forth above, the unamended claims will be dismissed.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.