Opinion
Civil Action No. 3:14-cv-00031
08-31-2020
KAREEM GARRETT, Plaintiff, v. DR. MUHAMMAD NAJI, DR. SHELLA A. KHATRI, DEBORAH CUTSHALL, DEBRA YOUNKIN, JANET PEARSON, NURSE PRACTIONER BARNES, MARY JO BARBER, SERGEANT WOOMER, VINCENT DEFELICE, SERGEANT JAMES, and OFFICER HUNT, Defendants.
United States District Judge Kim R. Gibson
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the motions to dismiss filed by the Corrections Defendants (ECF No. 289) and Defendants Barnes and Cutshall (ECF No. 293) be denied.
Defendants Younkin, Pearson, Barber, Woomer, DeFelice, James, and Hunt are collectively referred to as the "Corrections Defendants."
II. REPORT
A. Relevant and Material Facts
The United States Court of Appeals for Third Circuit recited the lengthy procedural history of this case, as follows:
On February 14, 2014, by Garrett, then a prisoner at SCI Houtzdale, filed a six-page pro se civil rights complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of Pennsylvania. Garrett alleged that,
while incarcerated, he had been prescribed a wheelchair and walker to assist him with mobility. Upon being transferred to SCI Houtzdale in January 2014, medical , staff at that facility allegedly discontinued Garrett's use of a walker and wheelchair, forbade him from receiving walking assistance from other inmates, and discontinued his "psych" medication. According to Garrett, these decisions severely restricted his mobility, caused falls giving rise to further serious injury, and prevented him from accessing both medication and food. In addition, he alleged that the medical staff conducted a rectal examination without his consent and that this amounted to sexual assault. Garrett named six individuals1 and sought injunctive and declaratory relief and compensatory and punitive damages. . . . .
1Garrett named Dr. Naji, Debra Younkin, Janet Pearson, Deborah Cutshall, Shella Khatri, and Steven Glunt.
. . . .
On February 24, 2014, Garrett's complaint was transferred to the United States District Court for the Western District of Pennsylvania, the District in which SCI Houtzdale is located. Garrett filed an amended complaint as of right in March 2014, submitting lengthier and more detailed allegations and adding additional staff members.2 Garrett re-alleged the denial of medication and assisted devices, which led to aggravated injuries and serious falls, missed meals, the inability to receive medication on the "pill line," denial of access to previously prescribed medications, and the inability to bathe himself. And he included new claims. For instance, he alleged that staff issued him "misconducts" for asking for assistance with walking and that they declined to provide health care after falls and laughed when he fell and struggled on the floor. He also alleged that he experienced retaliation for filing grievances and for pursuing his section 1983 complaint. . . .
2In addition to the original six defendants, Garrett named Wexford Health, Superintendent Cameron, Deputy Superintendent Close, K. Hollinbaugh, Doretta Chencharick, Joel Barrows, Ms. Cogan, Mr. Little, and unidentified "operational staff."
. . .
Soon thereafter, on June 3, 2014, Garrett filed a second amended complaint (SAC), having been granted leave from the District Court to do so. The SAC named more than 40 defendant s[footnote omitted]. Garrett once again complained of inadequate medical treatment, including the withholding of a walker and wheelchair. He alleged that staff did not provide treatment after falls, relegated him to solitary confinement for asking for help walking, and denied him meals. He added descriptions of additional incidents, including an occasion on March 20, 2014, where medical staff left him strapped to a stretcher for nine
hours without treatment, unable to move or relieve himself and, later, denied him access to a handicapped-accessible shower in which to clean up after soiling himself. Garrett also alleged that he was denied access to a "disability gym" as part of his medical treatment . . . .
Several groups of defendants filed motions to dismiss the SAC. In December 2014, Garrett requested a stay until after his expected release in March 2015 in order to attempt to obtain private counsel. [footnote omitted]. The Magistrate Judge granted the stay request and directed that Garrett must respond the motions to dismiss by May 15, 2015. [footnote omitted]. In April, Garrett sought in additional stay, which the Magistrate Judge granted.
On July 15, 2015, Garrett notified the District Court that he had been released on May 19, 2015. He also moved to lift the stay in for appointment of counsel. The Magistrate Judge lifted the stay, denied the counsel motion without prejudice, directed Garrett to update his financial information in light of his release from prison, and set a deadline for Garrett to respond to the motions to dismiss.
Garrett timely responded to the motions to dismiss and again sought to amend the complaint. In February 2016, the Magistrate Judge granted his motion to amend.
. . .
The Third Amended Complaint (TAC) (which Garrett mistakenly titled "Second Amended Complaint") was docketed on February 5, 2016. In the TAC, in addition to pursuing relief under § 1983, Garrett added a reference to the Americans with Disability Act (ADA) and a claim of intentional infliction of emotional distress. The TAC added more than thirty additional defendants [footnote omitted], realleged the prior claims concerning the alleged denial of medical care, and added several supplemental claims, including claims of retaliation. [footnote omitted]. . . .
Several groups of defendants again filed motions to dismiss. In support of dismissal, Defendants Khatri, Dr. Naji, Cutshall, Thornley, and Nagel (collectively referred to as the Medical Defendants [footnote omitted]) argued that the complaint should be dismissed for failure to properly exhaust administrative remedies under the PLRA. The Magistrate Judge converted the Medical Defendants' motions to motions for summary judgment. The remaining defendants (collectively referred to as the Corrections Defendants) did not assert an administrative exhaustion defense. Instead, the Corrections Defendants argued that the TAC failed to comply with Rules 8 and 12 of the Federal Rules of Civil Procedure, and argued that they were entitled to dismissal, or, in the alternative, to a more definite statement under Rule 12(e).
On July 14, 2016, the Magistrate Judge issued a report and recommendation (R&R) recommending that the claims against the Medical Defendants be dismissed for failure to fully exhaust administrative remedies. . . .
As to the Corrections Defendants, the Magistrate Judge observed that the TAC consisted of 36 typewritten pages containing 90 paragraphs. . . . In addition, the R&R observed that the TAC referred to more than 60 defendants, but only 37 had been served.
The Magistrate Judge determined that requiring the Corrections Defendants to respond to the TAC's allegations as pleaded would be unreasonable, and therefore recommended granting the motion for a more definite statement. . . . . On September 9, 2016, the District Court adopted the R&R and issued an appropriate opinion and order.
. . .
On November 21, 2016, Garrett filed his Fourth Amended Complaint (FAC). The FAC, at fifteen typewritten pages, is less than half the length of the TAC. Consistent with the Magistrate Judge's instructions, the FAC included dates and times for most of the alleged events, trimmed the number of defendants,11 and omitted most of the extraneous references to the ADA and injunctive relief. [footnote omitted]. In many paragraphs of the FAC, Garrett included a copy of the entire list of more than fifty defendants, broadly alleging that all of the defendants somehow directly participated in his mistreatment, were aware of that mistreatment and did not step in to help him, or participated in retaliation against him.
11 Although the FAC names many of the same defendants as the TAC, Garrett did not include seventeen individuals who had been named in the TAC. . . .
Garrett v. Wexford Health, 938 F.3d 69 (3d Cir. 2019), cert. denied, 590 U.S. --- (May 18, 2020).
On June 12, 2017, the Magistrate Judge issued yet another R&R. In it, she again recommended dismissal of the claims against the Medical Defendants for the same reason she had previously given - Garrett's failure to exhaust administrative remedies as of the initial February 2014 filing date. [footnote omitted]. She recommended that the claims against the Corrections Defendants also be dismissed . . . . She therefore recommended that the FAC be dismissed in its entirely for failure to comply with Rule 8.
On October 11 2017, the District Court overruled Garrett's objections to the R&R, adopted the Magistrate Judge's recommendations, dismissed the claims against the Medical Defendants for failure to exhaust administrative remedies, dismissed the claims against the Corrections Defendants pursuant to Rule 8, and closed the case. Garrett timely appealed.
Garrett was appointed counsel and after briefing and hearing oral argument, the Court of Appeals vacated the dismissal of the claims against the Medical Defendants for failure to exhaust administrative remedies and the dismissal of the claims against the Corrections Defendants for failure to comply with Rule 8. The case was remanded for further proceedings.
On December 6, 2019, Plaintiff, through counsel, filed a Fifth Amended Complaint, which is his operative pleading. (ECF No. 268). The Fifth Amended Complaint names only eleven defendants and asserts claims for (1) deliberate indifference to his medical needs in violation of the Eighth Amendment against all defendants, and (2) retaliation in violation of the First Amendment against Defendants Naji, Khatri, James, and Hunt.
On June 12, 2020, Defendants Khatri and Naji filed Answers (ECF No. 288 and 295, respectively) while the Corrections Defendants and Defendants Barnes and Cutshall filed Motions to Dismiss. (ECF Nos. 289 and 293, respectively). The motions have been heavily briefed as Plaintiff filed a response in opposition on July 15, 2020 (ECF No. 301), the Corrections Defendants filed a Reply brief on July 23, 2020 (ECF No. 302), Defendants Barnes and Cutshall filed a Reply brief on July 29, 2020 (ECF No. 303), and Plaintiff filed a Sur-Reply on July 31, 2020. (ECF No. 306). Because many of the factual allegations and legal issues raised overlap against all the defendants, the Court will discuss the two pending motions together.
B. Standard of Review
The Supreme Court has issued two decisions that pertain to the standard of review for failure to state a claim upon which relief could be granted. The Supreme Court held that a complaint must include factual allegations that "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;" "labels and conclusions;" and " 'naked assertion[s]' devoid of 'further factual enhancement.' " Iqbal, 556 U.S. at 678 (citations omitted). Mere "possibilities" of misconduct are insufficient. Id. at 679. The Court of Appeals has summarized the inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Third, "whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
C. Discussion
1. Service on Defendants
Defendants Woomer, Hunt, DeFelice, and Barnes were originally added as defendants in the Third Amended Complaint (ECF No. 180) and were again named as defendants in the Fourth Amended Complaint (ECF No. 218) but were never served. Defendants Woomer, Hunt, and DeFelice argue that the claims against them are time-barred by the statute of limitations based on the date of service. (ECF No. 302). Defendant Barnes argues that under Rule 12(b)(5), the claims against her should be dismissed because she was first named as a defendant in the Third Amended Complaint but was not served within the 90-day period set forth in Rule 4(m) and there exists no good cause to extend the deadline for service. (ECF No. 303).
On January 14, 2020, Defendants Woomer, Hunt and DeFelice stipulated to accept service of the Fifth Amended Complaint and waived any defense based on insufficient service. (ECF No. 279). In accordance with that stipulation, their motion to dismiss does not raise arguments under Federal Rules of Civil Procedure 12(b)(4) or 12(b)(5), but rather presents a statute of limitations argument under Rule 12(b)(6). In Defendants' brief in support of their motion to dismiss, Defendants mistakenly argued that they were first added as defendants in the Fifth Amended Complaint. In their reply brief, Defendants acknowledged that they had in fact been added in the Third Amended Complaint and again in the Fourth Amended Complaint but argue that the claims are still time barred based on the date of service. Although the Court recognizes, as Plaintiff correctly points out, that it may summarily reject a claim raised for the first time in a reply brief, it declines to accept the invitation to do so and will address the claim on the merits.
In cases such as this one, where the plaintiff is proceeding in forma pauperis, the "officers of the court shall issue and serve all process." 28 U.S.C. § 1915(d); see also Fed.R.Civ.P. 4(c)(3). Although an inmate plaintiff proceeding in forma pauperis may rely on service by the Marshal, the plaintiff is not divested of all responsibilities related to this task. When advised of a problem in accomplishing service, a pro se litigant proceeding in forma pauperis must "attempt to remedy any apparent service defects of which [he] has knowledge." Rochan v. Dawson, 828 F.2d 1107, 11110 (5th Cir. 1987). If service cannot be accomplished due to the pro se plaintiff's "neglect" or "fault," such as failing to provide sufficient information to identify or locate the defendant, and the plaintiff fails to remedy the situation after being put on notice, dismissal of claims against the defendant may be appropriate. See Fed.R.Civ.P. 4(m).
As noted earlier, Defendants Woomer, Hunt, DeFelice, and Barnes have not been served in this case and the burden is on Plaintiff to provide sufficient information to enable the Marshal to serve these Defendants. The problem in this case, though, is that the Court inadvertently never requested Plaintiff to provide the information to enable the Marshal to effectuate service. Under the circumstances, the failure to not serve Defendants Woomer, Hunt, DeFelice, and Barnes should not be charged to Plaintiff. Accordingly, the Court recommends that the motions to dismiss be denied to the extent Defendants are seeking dismissal based either on a statute of limitations argument or on a failure to have been timely served argument.
2. Eighth Amendment Claims
Defendants Younkin, Pearson, Cutshall, Barber, and James argue that Plaintiff's Eighth Amendment claims against them are insufficiently alleged. Not surprisingly, Plaintiff responds that the allegations of the Fifth Amended Complaint are more than sufficient to state an Eighth Amendment claim against each of the moving defendants.
Through its prohibition of cruel and unusual punishment, the Eighth Amendment forbids the imposition of "unnecessary and wanton infliction of pain contrary to contemporary standards of decency." Helling v. McKinney, 509 U.S. 25, 32 (1993). To succeed on an Eighth Amendment medical care claim, "a plaintiff must make (1) a subjective showing that 'the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that 'those needs were serious.' " Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
Defendants Younkin and Pearson argue that they cannot be liable under a deliberate indifference theory because they are nurses, not medical professionals. In Pearson, the Court of Appeals for the Third Circuit clarified when a nurse could be chargeable with deliberate indifference:
According to the Fifth Amended Complaint, Defendant Younkin is a Corrections Health Administrator Nurse and Defendant Pearson is a Nurse Supervisor. Fifth Amended Complaint, at ¶¶ 9 and 10.
In Spruill, we specifically indicated that a non-medical prison official will not be chargeable with deliberate indifference, "absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner." 372 F.3d at 236. Now confronted with a set of defendants who are not physicians but have some amount of medical training, we clarify that the same division of labor concerns that underlies that rule apply when a nurse knows that a prisoner is under a physician's care and has no reason to believe that the doctor is mistreating the prisoner. Given that it is the physician with the ultimate authority to diagnose and prescribe treatment for the prisoner, a nurse who knows that the prisoner is under a physician's care is certainly "justified in believing that the prisoner is in capable hands," id., so long as the nurse has no discernible basis to question the physician's medical judgment.Pearson, 850 F.3d at 540 n.4 (emphasis added). Here, the Fifth Amended Complaint alleges that Defendants Younkin and Pearson had actual knowledge that Plaintiff was being denied medical care for his objective medical need for non-medical, retaliatory reasons, and that they failed to take any action to stop that mistreatment:
After Dr. Naji ordered that Plaintiff's walker be taken away, Plaintiff met with Defendants Younkin, Cutshall, and Pearson to seek their assistance in regaining his walker and medication. Plaintiff overheard a conversation between Dr. Naji and Defendants Younkin, Cutshall, and Pearson in which Dr. Naji admitted that he had taken away Plaintiff's walker because of the dispute regarding the rectal examination. Despite Younkin, Cutshall, and Pearson knowing that Dr. Naji had taken the walker for non-medical, retaliatory reasons, they did nothing at the time to ensure Plaintiff received the necessary medical treatment and care.Fifth Amended Complaint, at ¶ 35.
The Court finds that Plaintiff has alleged enough to create a plausible deliberate indifference claim against Defendants Younkin and Pearson that should be allowed to continue beyond their motions to dismiss.
Defendants Cutshall, Barber, and James argue that Plaintiff has not alleged sufficient personal involvement by them to state a deliberate indifference claim. (ECF No. 290 at 9-10; ECF 294 at 16-17). As with the arguments advanced by Defendants Younkin and Pearson, the Court finds the allegations of the Fifth Amended Complaint are more than sufficient to survive a 12(b)(6) challenge.
As to Defendant Cutshall, through the Fifth Amended Complaint, Plaintiff alleges that he went to her, Younkin, and Pearson for help after his walker was taken away from him by Dr. Naji for a non-medical reason. Fifth Amended Complaint, at ¶ 35. He alleges that Defendant Cutshall spoke to Dr. Naji and although she was told that the walker was taken away for non-medical, retaliatory reasons, she took no action to ensure that Plaintiff received the necessary medical treatment and care.
As to Defendant Barber, through the Fifth Amended Complaint, Plaintiff alleges that she processed Plaintiff's arrival at SCI Houtzdale, saw that he arrived in a wheelchair, and sent him to the medical facility for evaluation. Yet despite her personal knowledge of Plaintiff's medical condition and needs, on July 9, 2014, she refused Plaintiff access to a handicapped shower stall. Id., at ¶¶ 23-25. Plaintiff suffered a fall in the non-handicapped shower which caused further injury, pain and suffering. Id. at ¶ 60. And knowing that Plaintiff had sustained a serious injury, Defendant Hunt and Defendant Barber refused to let Plaintiff use a handicapped-accessible shower stall, which resulted in Plaintiff falling and injuring himself further. Id.
As to Defendant James, through the Fifth Amended Complaint, Plaintiff alleges that although Defendant James knew that "Plaintiff was unable to get around without a walker or other form of assistance," he did nothing to assist Plaintiff, and in fact punished Plaintiff for attempting to obtain treatment. Id. at ¶ 55.
The Court recognizes that discovery may well reveal that the alleged conduct of Defendants does not give rise to a deliberate indifference claim, but at this stage of the litigation, the allegations of the Fifth Amended Complaint must be accepted as true and all reasonable inferences must be drawn in Plaintiff's favor. For these reasons, the Court recommends that the motions to dismiss be denied on Plaintiff's claims of deliberate indifference to his serious medical needs be denied.
3. First Amendment Claims
In the Fifth Amended Complaint, Plaintiff alleges that Defendants Dr. Naji, Dr. Khatri, Sergeant James, and Officer Hunt retaliated against him for repeatedly requesting medical assistance and for exercising his First Amendment right to file grievances. Defendants James and Hunt argue that the allegations against them are insufficient to meet the standard for First Amendment retaliation claims.
Plaintiff alleges through his operative complaint that Defendant James when delivering a misconduct to him, physically assaulted Plaintiff by "slamming him on the chest" while he was sleeping, awakening and frightening him and also insulted and cursed at him, all done with a demeanor that was menacing and vindictive. Id. at ¶ 55. The allegations against Defendant Hunt are that after Plaintiff filed numerous grievances about his lack of medical care, Defendant Hunt called him a racial slur and threatened him with disciplinary action for having other inmates assist him. Id. at ¶ 54. And that Plaintiff did in fact receive a written misconduct, as Defendant Hunt had threatened, "for having other inmates assist him." Id. at ¶ 55.
Again, recognizing that discovery may well reveal that the alleged conduct of Defendants James and Hunt does not give rise to a retaliation claim, at this stage of the litigation, the allegations of the Fifth Amended Complaint must be accepted as true and all reasonable inferences must be drawn in Plaintiff's favor. For all these reasons, the Court finds that Plaintiff has alleged enough to create a plausible retaliation claim against Defendants James and Hunt that should be allowed to continue beyond the Defendants' motions to dismiss.
III. Conclusion
For the reasons stated above, it is respectfully recommended that the Motion to Dismiss filed by the Correction Defendants and the Motion to Dismiss filed by Defendants Barnes and Cutshall be dismissed.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Because all the parties are electronically registered any written objections must be filed by September 14, 2020. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections shall have fourteen days from the date of service of objections to respond.
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge Dated: August 31, 2020 cc: All Counsel of Record
(via ECF electronic notification)