Opinion
Civil Action 2:23-cv-71 ECF 33 and 44
03-08-2024
GERMAN FIGUEROA-LOPEZ Plaintiff, v. DR. MICHAEL HERBIK, DR. RAJINDER MALHI, MARK JENKINS, LAURENE DONNELLEY, JIM BRIGHT, and DANIELLE PANACH Defendants.
David S. Cercone Senior District Judge
REPORT AND RECOMMENDATION
KEZIA O. L. TAYLOR UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendants Dr. Michael Herbik, Dr. Rajinder Malhi, Laurene Donnelley and Danielle Panach be granted in part and denied in part. ECF No. 33. The Motion to Dismiss Defendant Panach for failure to exhaust administrative remedies, converted to a Motion for Summary Judgment, should be granted. Defendant Panach should be terminated as a party defendant. The Motion to Dismiss Plaintiff's Eighth Amendment claim relating to deliberate indifference to serious medical needs should be denied as it relates to Plaintiff's post-surgery physical therapy and granted in all other respects.
It is further recommended that the Motion to Dismiss filed by Defendants Jim Bright and Mark Jenkins be granted. ECF No. 44.
Finally, in liberally construing the pro se Amended Complaint, Defendants failed to move on the First Amendment retaliation claim against Dr. Herbik and Jenkins and therefore, this claim should remain.
II. REPORT
A. FACTUAL ALLEGATIONS
On May 5, 2022, while incarcerated at SCI Fayette, Plaintiff, German Figueroa-Lopez (“Plaintiff”) slipped in the shower. While trying to break his fall with his right hand, Plaintiff felt and heard a pop in his right shoulder. Amended Complaint, ECF No. 30 ¶ 10. That same day, Plaintiff submitted a sick call slip describing his injury and excruciating pain. Id. ¶ 11. On May 6, 2022, after several complaints, a registered nurse evaluated Plaintiff. That same day, Defendant Dr. Rajinder Malhi (“Dr. Malhi”) also evaluated Plaintiff. Plaintiff explained to both medical professionals that he had virtually no range of motion in his right shoulder and severe pain. Id. ¶¶ 12-14. Dr. Malhi ordered an X-ray. In addition, the nurse ordered an X-ray, later approved by Defendant Dr. Michael Herbik (“Dr. Herbik”). Id. ¶¶ 13-16. Plaintiff further alleges that at this initial visit with Dr. Malhi, he prescribed Motrin for pain but later discovered that Plaintiff was on Coumadin for a heart condition, so Tylenol was prescribed for pain instead. Id. ¶ 17. Dr. Malhi's assessment indicated a possible rotator cuff tear of the right shoulder. In the treatment plan, Dr. Malhi included a sling, Motrin, substituted with Tylenol, X-rays, a four-day follow-up, and a possible orthopedic visit. Id. ¶ 18.
On May 13, 2022, Plaintiff saw Dr. Herbik for his X-ray follow-up. In his report, Dr. Herbik noted that the X-ray was negative, and that the Plaintiff had pain in his left anterior shoulder even though he injured his right shoulder. Dr. Herbik further ordered a physical therapy evaluation. Id. ¶ 19.
After submitting another sick call slip, Defendant Nurse Practitioner Laurene Donnelly (“Donnelly”) examined Plaintiff on May 31, 2022. She requested a second X-ray after observing Plaintiff was unable to lift his right arm. Id. ¶ 20. Plaintiff alleges that the results of the second X-ray were never discussed with him. Id. ¶ 21.
On June 16, 2022, Plaintiff filed Grievance No. 985231 regarding his injury and his alleged lack of effective medical treatment and physical therapy. He exhausted his administrative remedies as to this grievance on September 22, 2022. Id. ¶ 28.
Plaintiff incorrectly pled that his grievance was filed on June 6, 2022; however, his grievance was filed on June 16, 2022. See ECF No. 34-2, p.5.
On June 22, 2022, Plaintiff submitted a request to staff form, complaining of severe pain and requesting an MRI. Defendant, Jim Bright (“Bright”), Corrections Healthcare Administrator (“CHCA”), reviewed, processed, and responded to the request. Id. ¶ 22.
On June 8, July 2 and July 7, 2022, Plaintiff submitted four sick call slips complaining of “lots of pain,” that his injury had to be an “internal tissue or tendons/rotator cuff injury,” and requesting an MRI. Id. ¶ 23. He further indicated that he was unable to sleep because of pain, and that he was experiencing numbness in his shoulder, pinky, and ring fingers, and that his injury was getting worse. He also complained of increasing neck pain due to continuously wearing a shoulder/arm sling. Id.
On July 7, 2022, Defendant Nurse Practitioner Danielle Panach (“Panach”) examined Plaintiff. According to Plaintiff, Panach observed that Plaintiff was in severe pain and heard a loud click coming from Plaintiff's shoulder when he attempted to move it. Id. ¶ 24. The assessment indicated a right shoulder injury and bicep tendon rupture. Plaintiff was prescribed Flexeril for pain, a physical therapy evaluation for July 12, 2022, with a follow-up in 10 days. Id. ¶ 25.
On July 12, 2022, Plaintiff was evaluated by a physical therapist who determined that Plaintiff could not move his right shoulder. The therapist also noted numbness in two of his fingers. Id. ¶ 26.
On August 25, 2022, Plaintiff received an MRI. Id. ¶ 27. The MRI indicated that Plaintiff had multiple tears in his shoulder tendons and rotator cuff and labral degeneration in his rotator cuff which prevented his shoulder from staying in place. In addition, the MRI indicated adhesive capsulitis, a worsening of Plaintiff's shoulder due to lack of movement and physical therapy. Id.
Plaintiff alleges that he continued to suffer with chronic shoulder pain, and as a result, had difficulty sleeping. On December 29, 2022, after submitting a sick call request, Panach examined Plaintiff. Plaintiff avers that the prescribed pain medication was ineffective and that he needed physical therapy or surgery to prevent further damage to his shoulder. Id. ¶ 29.
On January 17, 2023, Plaintiff initiated this civil action. Id. ¶ 38.
On January 27, 2023, orthopedic surgeons at Allegheny Health Network (“AHN”) evaluated Plaintiff. X-rays indicated damage to Plaintiff's shoulder and elbow, contradicting the findings of the X-rays at the prison taken months earlier. Id. ¶¶ 30, 32-35. Plaintiff further alleges that he received a negative prognosis because of the “unnecessary delay” in his treatment and “basically no physical therapy.” Id. ¶ 37.
On February 3, 2023, Defendant Donnelly examined Plaintiff after he submitted another sick call slip. Plaintiff complained of increasing right shoulder pain and difficulty sleeping due to pain. He was prescribed oxycodone to which he had a negative reaction. Id. ¶ 39. On February 6, 2023, Plaintiff submitted another sick call slip complaining of the negative effects of the Oxycodone and was seen again by Defendant Donnelly. Donnelly prescribed Motrin which was contraindicated due to Plaintiff's other medications for his heart condition. Id. ¶ 40.
Between February 7, 2023, and April 6, 2023, Plaintiff submitted five separate sick call slips complaining of shoulder pain and the ineffectiveness of various medications. He was seen each time, although he alleges that he was “ineffectively disposed of each time.” Id. ¶ 41.
On April 7, 2023, Plaintiff received shoulder surgery, but nothing was done to address the injury to his elbow. Id. ¶ 42. On April 14, 2023, he was discharged from the prison infirmary by Defendants Herbik, and Jenkins, and forced to painfully remove his sling, contrary to AHN doctor's orders, and to put on a T-shirt “in direct retaliation for the present complaint.” Id. ¶ 43. Plaintiff alleges that Jenkins and Herbik “lied” in the medical reports indicating that they gave Plaintiff multiple shirts, and that they misrepresented “painfully and forcefully” making Plaintiff dress as, “helping to show Plaintiff how to get dressed.” Id. ¶ 45.
Plaintiff was scheduled for physical therapy on May 9, 2023. He never received this prescribed therapy. Id. ¶ 47.
Plaintiff informed Donnelly and other medical staff that he would be released on June 15, 2023. Medical staff instructed Plaintiff that he would have to follow-up in Pittsburgh at AHN the day after his release. Id. ¶ 48. Plaintiff complained about the long commute to AHN and the attendant travel expenses but attended the follow-up appointment. Id. ¶ 49. Plaintiff concludes that he continues to suffer because his elbow was never treated by Defendants. Id. ¶ 50.
Plaintiff attempts to make out a claim for Eighth Amendment deliberate indifference to serious medical needs. He emphasizes the delay in appropriate treatment, including an MRI and surgery, that caused him undue pain and further degeneration of his shoulder that has limited his ability to work. He also complains about Defendants' failure to treat his elbow. He requests compensatory and punitive damages in the amount of Two Million Dollars. He also requests that the prison purchase new X-ray machines. Id. ¶¶ 53-58. See also Plaintiff's Responsive Brief, ECF No. 38 at 4.
In his responsive brief, Plaintiff emphasizes that after his surgery, he received no physical therapy for the two and a half months that he remained incarcerated, which further damaged his shoulder. ECF No. 38 at 7.
B. LEGAL STANDARDS
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.”). 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, 1202 (10th Cir. 1996).
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, the pleadings, documents, electronically stored information, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56 (a) & (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non-movant's burden of proof. Id. Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court noted the following:
[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.... [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.Id. at 249-50 (internal citations omitted).
C. ANALYSIS
1. Motion to Dismiss filed by Defendants Donnelley, Dr. Herbik, Dr. Malhi and Panach (ECF No. 33)
a. Failure To Exhaust Administrative Remedies as to Panach
Defendants move to dismiss Defendant Panach from this civil action for failure to exhaust administrative remedies. Pursuant to the Court's Order at ECF No. 35, the Motion to Dismiss will be treated as a Motion for Summary Judgment with respect to the issue of exhaustion.
Through the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), Congress amended 42 U.S.C. § 1997e(a) to prohibit prisoners from bringing an action with respect to prison conditions pursuant to 42 U.S.C. § 1983 or any other federal law, until such administrative remedies as are available are exhausted. Specifically, the PLRA provides, in pertinent part, as follows:
No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. § 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). Exhaustion is required under this provision regardless of the type of relief sought and the type of relief available through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). In addition, the exhaustion requirement applies to all claims relating to prison life which do not implicate the duration of the prisoner's sentence, including those that involve general circumstances as well as “particular episodes[.]” Porter v. Nussle, 534 U.S. 516, 532 (2002). Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the available remedies prior to filing the action. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (by using language “no action shall be brought,” Congress has “clearly required exhaustion”).
This broad rule favoring full exhaustion admits of one, narrowly defined exception. If the actions of prison officials directly caused the inmate's procedural default on a grievance, the inmate will not be held to strict compliance with this exhaustion requirement. Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (Section 1997e (a) only requires that prisoners exhaust such administrative remedies “as are available.”).
Here, Plaintiff submitted Grievance No. 985231 on June 16, 2022, related to his alleged lack of effective medical treatment and physical therapy. Plaintiff's allegations concerning Defendant Panach, however, indicate that he was not involved with Plaintiff's medical care until July 7, 2022. Plaintiff references no other grievances. Therefore, Plaintiff has failed to exhaust his administrative remedies as to Defendant Panach. Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies, converted to a Summary Judgment, should be granted as to Defendant Panach. Defendant Panach should be terminated as a party defendant.
b. Eighth Amendment Deliberate Indifference to Medical Needs
In support of their Motion to Dismiss Plaintiff's Eighth Amendment claim for deliberate indifference to serious medical needs, Defendants argue that Plaintiff merely disagrees with the treatment he received, which does not rise to a violation of the Eighth Amendment. Prison officials are required under the Eighth Amendment to provide basic medical treatment to prisoners. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). In order to establish a constitutional violation based on the Eighth Amendment, “evidence must show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong, the plaintiff must demonstrate that his medical needs are serious. “Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.'” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle, 429 U.S. at 10304). Serious medical needs include those that have been diagnosed by a physician as requiring treatment or that are so obvious that a lay person would recognize the necessity for a doctor's attention, and those conditions which, if untreated, would result in the unnecessary and wanton infliction of pain or a lifelong handicap or permanent loss. See Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003); see also Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Here, Plaintiff alleges sufficient facts to plausibly suggest that his medical needs are serious for Eighth Amendment purposes. Moving Defendants do not dispute that Plaintiff's medical needs were serious. See Brief in Support of Motion to Dismiss, ECF No. 34 at 8-12.
The second element requires an inmate to show that prison officials acted with deliberate indifference to his serious medical need. The “deliberate indifference” standard is a stringent standard of fault requiring proof that a defendant disregarded a known or obvious consequence of his actions. Board of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997). The defendant must be both aware of facts from which the inference could be drawn that a substantial harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The test for whether a prison official was deliberately indifferent is whether that defendant “acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 841. Only egregious acts or omissions can violate this standard. See White v. Napoleon, 897 F.2d 103, 10809 (3d Cir. 1990). Nevertheless, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if harm ultimately was not averted.” Farmer, 511 U.S. at 844.
The Court of Appeals for the Third Circuit has found deliberate indifference where a prison official “(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended treatment.” Rouse, 182 F.3d at 197. The court of appeals has also found deliberate indifference where a prison official “persists in a particular course of treatment in the face of reluctant pain and risk of permanent injury.” Id. (citing White, 897 F.2d at 109-11). Relatedly, the court of appeals has held that “[n]eedless suffering resulting from a denial of simple medical care, which does not serve any penological purpose,” violates the Eighth Amendment. Atkinson, 316 F.3d at 266; see also Monmouth Cnty. Corr. Inst. Inmates, 834 F.2d at 346; Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993).
However, the deliberate indifference standard affords considerable deference to prison doctors in the diagnosis and treatment of inmate medical problems. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Courts will not second-guess the propriety or adequacy of a particular course of treatment if it is a question of sound professional judgment. Id. Thus, “mere disagreements over medical judgment do not state Eighth Amendment claims.” White, 897 F.2d at 110 (internal quotations and citations omitted). Even if a doctor's judgment concerning the proper course of a prisoner's treatment ultimately is shown to be mistaken, that would amount to medical malpractice and not an Eighth Amendment violation. See White, 897 F.2d at 110; see also Estelle, 429 U.S. at 105-06. Accordingly, a “misdiagnosis or preference for a certain type of treatment will not alone rise to the level of deliberate indifference.” Christy v. Robinson, 216 F.Supp.2d 398, 413 (D.N.J. 2002) (citations omitted). Moreover, “no [Eighth Amendment] claim is stated when a doctor disagrees with the professional judgment of another doctor” because “[t]here may, for example, be several acceptable ways to treat an illness.” White, 897 F.2d at 110.
Here, Plaintiff's allegations indicate that he was treated promptly and often. Instead, Plaintiff's complaints concern the effectiveness of his treatment, or the type of treatment prescribed. Specifically, Plaintiff complains that he should have been sent out for an MRI sooner, and that Defendants' measures to treat his pain were ineffective. These allegations will not rise to the level of an Eighth Amendment violation, even if Defendants' medical judgment was wrong. See White, 897 F.2d at 110. These claims should be dismissed with prejudice.
This Court recognizes that the United States Court of Appeals for the Third Circuit has held that, when dismissing a case for failure to state a claim in a civil rights case, a court must give a plaintiff the opportunity to amend a deficient complaint, unless doing so would be inequitable or futile. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). In light of the Court's above analysis, any attempt to amend the claim as it concerns Plaintiff's disagreement with the medical care he received, would be futile as a matter of law.
Conversely, Plaintiff's allegations concerning post-surgical orders for physical therapy and the failure to deliver that therapy, rise to the level of a constitutional violation, especially as related to Plaintiff's alleged shoulder mobility limitations. See Rouse, 182 F.3d at 197. Plaintiff's Eighth Amendment claim as it relates to the failure to deliver his prescribed post-surgery physical therapy should proceed into discovery.
c. Retaliation
Although not moved upon in Defendants' Motion to Dismiss, and not set out as a distinct count in the Amended Complaint, Plaintiff also states that he was retaliated against by Defendants Dr. Herbik and Jenkins for filing this civil action. Specifically, he states that contrary to AHN doctors' orders, he was forced to remove his sling only one week after surgery, prematurely discharged from the infirmary, and made to put on a t-shirt. He alleges that the removal of the sling caused excruciating pain and was done “in direct retaliation for the present complaint.” ECF No. 30 ¶¶ 43-45.
It is well settled that retaliation for the exercise of a constitutionally protected right may violate the protections of the First Amendment, which is actionable under § 1983. Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001); White, 897 F.2d at 112. However, merely alleging the fact of retaliation is insufficient. In order to prevail on a retaliation claim, a plaintiff must show that (1) the conduct which led to the alleged retaliation was constitutionally protected; (2) that he was subjected to adverse actions by a state actor (here, the prison officials); and (3) the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997).
A plaintiff can satisfy the second requirement by demonstrating that the “adverse” action “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). The third factor, “motivation,” may be established by alleging a chronology of events from which retaliation plausibly may be inferred. Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996); Goff v. Burton, 91 F.3d 1188 (8th Cir. 1996). It may also be established by a pattern of antagonism coupled with timing to establish a causal link. DeFranco v. Wolfe, 387 Fed.Appx. 147, 155 (3d Cir. 2010) (citing Lauren W. ex rel Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). That is, “‘the mere passage of time is not legally conclusive proof against retaliation.'” Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (quoting Robinson v. SEPTA, 982 F.2d 892, 894 (3d Cir. 1993)).
If the plaintiff proves these three elements, the burden shifts to the state actor to prove that it would have taken the same action without the unconstitutional factors. Mt. Healthy, 429 U.S. at 287. “This means that, once a prisoner demonstrates that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision, the prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.” Rauser, 241 F.3d at 334.
A prisoner's ability to file grievances and lawsuits against prison officials is a protected activity for purposes of a retaliation claim. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Allah, 229 F.3d at 224; Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981) (retaliation for exercising right to petition for redress of grievances states a cause of action for damages arising under the constitution). Plaintiff claims that the retaliation was the result of his filing this civil action. Thus, he has alleged the first element of a retaliation claim.
With respect to the second element, the Plaintiff alleges that Dr. Herbik and Jenkins inflicted excruciating pain after surgery when, contrary to AHN doctors' orders, they removed his surgical sling one week after surgery. The retaliatory use of force may constitute an adverse action. See, e.g., Busey v. Smith, No. 1:12-cv-469, 2014 WL 1491210, at *11 (M.D. Pa. April 15, 2014) (pain and injury to leg constituted adverse action), cited in, Hatten v. Bledsoe, Civil Action No. 1:13-cv-209, 2014 WL 5473571, at *15 (M.D. Pa. Aug. 4, 2014). Therefore, Plaintiff has alleged the second element of a retaliation claim.
As to the third factor, the court does not have sufficient facts to determine whether Plaintiff has established motivation. At this stage of the litigation, given the temporal connection between the alleged claims of retaliation and the filing of this civil action, coupled with the ongoing antagonism suggested by Plaintiff's repeated requests for more effective medical care, Plaintiff alleges enough facts to raise a reasonable expectation that further discovery may reveal evidence of retaliatory intent. Although Plaintiff faces a substantial burden in proving this claim, his Amended Complaint alleges sufficient facts to support a First Amendment retaliation claim against Defendants Dr. Herbik and Jenkins. As such, this claim should move forward into discovery.
2. Motion to Dismiss filed by Defendants Bright and Jenkins (ECF No. 44)
Plaintiff failed to file a response to the Motion to Dismiss filed by the Department of Corrections Defendants Bright and Jenkins (collectively, “DOC Defendants”). ECF No. 44. Pursuant to the Court's Order of November 29, 2023, Plaintiff's response was due on December 21, 2023. ECF No. 46. Plaintiff failed to file his response by the deadline. On January 2, 2024, the Court entered an Order to Show Cause why this case should not be dismissed for Plaintiff's failure to prosecute. The Court, however, afforded Plaintiff one last opportunity to file a response, and extended the deadline to January 19, 2024. ECF No. 47. On January 30, 2024, Plaintiff filed a Motion for Extension of Time, requesting a 90-day extension to file a response to the Motion to Dismiss at ECF No. 44. ECF No. 48. The next day, in an effort to keep this case moving forward, the Court granted only an additional 30 days for Plaintiff to file his response, setting a new response deadline for March 4, 2024. ECF No. 49. As of the date of this Report and Recommendation, Plaintiff has not responded to the DOC Defendants' Motion to Dismiss. Because Plaintiff filed a response to the Motion to Dismiss at ECF No. 33, the Court will make a recommendation on the merits of the motion filed by the DOC Defendants at ECF No. 44, but without the benefit of a response.
a. Defendant Bright
The only allegation directed to Bright states that on June 22, 2022, Plaintiff submitted a request to staff form, complaining of severe pain and requesting an MRI, and that CHCA Bright, reviewed, processed and responded to the request. ECF No. 30 ¶ 22. In support of their Motion to Dismiss, the DOC Defendants argue that Plaintiff does not allege, nor suggest, that Bright was deliberately indifferent to his medical needs by interfering, delaying, or preventing his access to medical staff.
To establish personal liability against a defendant in a § 1983 action, a defendant “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)). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207. However, the mere review of a grievance or mere concurrence in an administrative appeal process is insufficient to establish the personal involvement necessary for liability in a § 1983 action. See Simonton v. Tennis, 437 Fed.Appx. 60, 62-63 (3d Cir. 2011) (“[A] prison official's secondary review of an inmate's grievance or appeal is not sufficient to demonstrate the personal involvement required to establish the deprivation of a constitutional right.”); Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006) (holding that a state prisoner's allegation that prison officials and administrators responded inappropriately, or failed to respond to later-filed grievances about his medical treatment, did not establish that the officials and administrators were involved in the underlying alleged unconstitutional conduct).
The Court agrees that Plaintiff does not state an Eighth Amendment deliberate indifference to medical needs claim against Defendant Bright. Responding to a request form will not constitute the personal involvement necessary to state a constitutionally cognizable claim. See id.
Therefore, it is recommended that Defendants' Motion to Dismiss as it concerns Defendant Bright be granted. Any attempt to amend would be futile because no allegations suggest that Bright was personally involved in the alleged wrongdoing.
b. Defendant Jenkins
Plaintiff alleges that on April 14, 2023, a week after his surgery, Jenkins and Dr. Herbik forced Plaintiff “to painfully remove his sling,” contrary to AHN doctors' orders. ECF No. 30 ¶ 43. Plaintiff's allegation does not rise to the level of an Eighth Amendment violation. Even though this action may have been contrary to AHN orders, medical professionals can disagree as to when to remove a sling. See White, 897 F.2d at 110 (mere disagreements over medical judgment do not state an Eighth Amendment claim). Likewise, his allegation that he experienced great pain upon Defendants' removal of the sling one week after surgery does not rise to an Eighth Amendment violation. However, as discussed above, if Defendants Dr. Herbik and Jenkins inflicted pain upon Plaintiff in retaliation for filing this civil action, then Plaintiff should be able to explore this claim in discovery.
Finally, Plaintiff alleges that he was given only one over-sized t-shirt upon his discharge from the infirmary, and as a result, smelled for days thereafter, “compounding his mental anguish and emotional distress.” ECF No. 30 ¶¶ 45-46. These allegations fall woefully short of an Eighth Amendment violation for deliberate indifference to medical needs. Nor do they state an Eighth Amendment conditions of confinement claim. Significantly harsher conditions have been held not to violate the Eighth Amendment. See, e.g., Peterkin v. Jeffes, 855 F.2d 1021, 1026-28 (3d Cir. 1998) (holding that being made to sleep on dirty mattress on floor did not make out an Eighth Amendment claim); Blizzard v. Watson, 892 F.Supp. 587, 591, 598 (D. Del. 1995) (dismissing an Eighth Amendment claim where plaintiff claimed he was awakened “by urine splashing on his leg from a prisoner using the toilet near his bed”); Wilson v. Schomig, 863 F.Supp. 789, 794-95 (N.D. Ill. 1994) (ruling that without a showing of physical harm, claim that inmate was forced to sleep on urine and feces-stained mattress in dirty, roach-infested, leaky cell was not enough to make out an Eighth Amendment claim).
Therefore, it is recommended that Defendants' Motion to Dismiss Plaintiff's Eighth Amendment claim against Defendant Jenkins be granted. Any attempt to amend would be futile as a matter of law.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss filed by Defendants Dr. Michael Herbik, Dr. Rajinder Malhi, Laurene Donnelley and Danielle Panach be granted in part and denied in part. ECF No. 33. The Motion to Dismiss Defendant Panach for failure to exhaust administrative remedies, converted to a Motion for Summary Judgment, should be granted. Defendant Panach should be terminated as a party defendant. The Motion to Dismiss Plaintiff's Eighth Amendment claim relating to deliberate indifference to serious medical needs should be denied as it relates to Plaintiff's post-surgery physical therapy and granted in all other respects.
It is further recommended that the Motion to Dismiss for failure to state a claim filed by Defendants Bright and Jenkins be granted. ECF No. 44.
Finally, in liberally construing the pro se Amended Complaint, Defendants failed to move on the First Amendment retaliation claim against Dr. Herbik and Jenkins and therefore, this claim should remain.
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.