Opinion
1:22-CV-00186-SPB
03-06-2023
MARCUS R. JOHNSON, Plaintiff v. DR. MONTAG, SCI FOREST'S DENTIST; DEREK F. OBERLANDER, SUPERINTENDENT; AND JOHN WETZEL, FORMER SECRETARY OF CORRECTIONS, Defendants
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
IN RE: ECF NO. 21
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
Defendants' motion to dismiss Plaintiffs Amended Complaint has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1) and Local Rules 72.1.3 and 72.1.4. It is respectfully recommended that the Defendants' motion [ECF No. 21] be GRANTED.
I. Introduction
Plaintiff Marcus Johnson (“Johnson”) filed this action against Dr. Montag, a dentist who provides dental care to inmates at the State Correctional Institution at Forest (“SCI-Forest”), Derek F. Oberlander, the Superintendent of SCI Forest, and John Wetzel, the former Secretary of the Pennsylvania Department of Corrections (collectively, “Defendants”). ECF No. 31 (Amended Complaint), ¶¶ 3-5. Each Defendant is sued in his individual and official capacities. Id. Johnson claims that the Defendants violated his rights under the Eighth Amendment to the Constitution based on policies and actions that allegedly resulted in the denial or delay of his dental care at the start of the CO VID-19 pandemic. See id. Defendants' motion to dismiss Johnson's Amended Complaint has been fully briefed and is ripe for disposition. See ECF Nos. 24, 39.
Johnson's Amended Complaint also named Wellpath, a private medical services provider, as a defendant. ECF No. 31, ¶ 6. The claims against Wellpath have since been dismissed. See ECF No. 32; ECF No. 33.
II. Factual Allegations of the Amended Complaint
The following allegations of Johnson's Amended Complaint are accepted as true for purposes of Defendants' motion. See Hensley v. McCaulley, 2023 WL 2167805, at *1 (W.D. Pa. Jan. 25, 2023). Johnson's dental problems began on April 9, 2020, when he was awakened by a throbbing headache and pain in the upper right side of his mouth. ECF No. 31, ¶ 8. He asked to see a dentist, but his request was denied. Id., ¶ 11. Instead, the dental department sent him ibuprofen and penicillin. Id. Johnson followed the prescribed course of medication but did not experience any relief of symptoms. On April 16, 2020, he submitted a second sick-call request. On April 17, 2020, a nurse visited Johnson in his cell, gave him a prescription from the dentist for additional medication (more Ibuprofen and a new anti-biotic, Clindamycin), but told Johnson he would not be seeing the dentist. Id., ¶¶ 21-22. On April 24, 2020, Johnson complained again to a nurse that he needed to see a dentist but she told him the dentist was not going to see him and that he should submit a sick-call request for more medication because “that was all the dentist and dental department was going to do.” Id., ¶ 23. On April 25, 2020, Johnson submitted another sick-call request. On April 27, 2020, he was prescribed more ibuprofen.
On April 28, 2020, Johnson noticed that his tooth was discolored, prompting him to make an oral request to see his counselor. Id., ¶¶ 26-27. He met with his counselor who called the medical department. The counselor was told that the medical department could only prescribe more pain relievers and put Johnson on a liquid diet. Id., ¶ 30. The counselor was also told that Johnson could not take any more antibiotics as he had exceeded the recommended dosage. Id. ¶ 31.
Johnson then submitted a grievance about the care he had received. Id., ¶ 41. He also submitted sick-call requests on May 3, 2020, and on May 5, 2020, and was given more ibuprofen. He was again told that the dentist was not going to see him. Id., ¶ 46. Johnson submitted another sick-call request on May 11, 2020, and the next day he was given more ibuprofen. Id., ¶¶ 50-51. He repeated this process on May 21, 2020-sending a sick-call request and receiving more ibuprofen. Id., ¶¶ 54-55.
On May 28, 2020, Johnson finally received a response from Montag, the dentist at SCI-Forest. Montag informed Johnson that “no dental treatment is being done due to COVID lockdown. You will be scheduled when lockdown is lifted. We don't know when that will be.” Id., ¶ 56. He also received a “review response” to his grievance stating that the DOC had been following a policy during the pandemic of limiting dental procedures. See id., ¶ 59.
On June 9, 2020, Johnson was summoned to the dental department and examined by Montag. Id., ¶ 62. Montag told Johnson that he needed a root canal procedure and that such procedures would recommence in two weeks and that he would be seen first. Id., ¶ 64. He was also prescribed more ibuprofen and clindamycin. Id., ¶ 65. On June 29, 2020, Johnson was again examined by Montag and given more ibuprofen. Id., ¶¶ 67-69. Johnson was then tested for COVID-19 and prescribed more pain reliever and antibiotics. Id. Montag performed the root canal on Johnson's tooth on August 3, 2020. Id., ¶ 80.
After the root canal procedure, Montag inserted a temporary filling, which he told Johnson would be replaced with a permanent filling in “a couple of weeks.” Id., ¶ 81. The permanent filling was not substituted until June of 2021, due to what Montag described as his office's “failure to schedule the follow-up procedure.” Id., ¶¶ 90, 96-97.
III. Standards of Decision
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merlon Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555. See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Court of Appeals for the Third Circuit has articulated the following three-step approach: “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where 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.'” Burt ch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Moreover, 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). This means 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., Cromwell v. Fichter, 2022 WL 16973785, at *4 (W.D. Pa. Oct. 26, 2022) (citing 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)). Finally, when dismissing a claim pursuant to Fed.R.Civ.P. 12(b)(6) in a civil rights case, the Court must sua sponte permit a curative amendment unless doing so would be inequitable or futile. Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
IV. Discussion and Analysis
Johnson asserts an Eighth Amendment claim against Montag based upon his alleged deliberate indifference to his serious dental needs. He claims that Oberlander is liable for this violation because he failed to intervene to prevent the delay of his access to dental treatment. Finally, Johnson alleges that Wetzel endorsed or adopted a policy that approved the delay or denial of necessary dental treatment during the COVID-19 pandemic. He also brings a failure to train claim against Wetzel.
Defendants' motion seeks dismissal of the Amended Complaint as to all Defendants. As to Oberlander and Wetzel, Defendants argue that it fails to allege facts to support their personal involvement in any actionable conduct. They argue that the Eighth Amendment claim against Montag fails because Johnson received ongoing dental care and his disagreement with that care does not support a finding that Montag acted with deliberate indifference to his dental needs. They also argue that any claim based on the delay in replacing Johnson's temporary filling / following his root canal at best supports a claim of negligence, not deliberate indifference as required to support an Eight Amendment claim. Each of Defendants' arguments has merit. In addition, Johnson's claims for money damages against the Defendants in their official capacities fail as a matter of law.
A. The claims against the Defendants in their official capacities should be dismissed with prejudice.
Johnson sued the Defendants in their individual and official capacities. See ECF No. 6, ¶¶ 3-5. His official capacity claims for money damages should be dismissed with prejudice. Under the Eleventh Amendment, “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or be Citizens or Subjects of any Foreign State.” U.S. Const, amend XI. Thus, the Eleventh Amendment protects states, as well as their agencies and departments, from suit in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). This protection additionally extends to state employees acting in their official capacities. See Will v. Michigan Dept, of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.”).
As Johnson's dental needs have since been addressed and COVID-19 restrictions on dental services have largely been lifted at SCI-Forest, no claim for injunctive or declaratory relief is available in this action.
Here, the DOC is an agency of the Commonwealth of Pennsylvania, and the Commonwealth has not waived its Eleventh Amendment immunity from lawsuits filed in federal court. Therefore it, its departments, and their officials sued in their official capacities, are immune from suits filed in federal court. See, e.g., Talbert v. Dep't Corrs., 2022 WL 171774790 at *4 (E.D. Pa. Nov. 23, 2022). As officials of the DOC, the Defendants are entitled to sovereign immunity and the claims against them in their official capacities should be dismissed with prejudice. Downey v. Pa. Dep't of Corrs., 968 F.3d 299, 310-11 (3d Cir. 2020).
B. Johnson's Eighth Amendment claim against Montag should be dismissed because the facts alleged do not support an inference of deliberate indifference.
Johnson alleges that Montag was deliberately indifference to his dental needs because he delayed his root canal treatment between April 2020 and August 2020 for non-medical reasons, refused to examine him, and chose medication to treat his pain as a “less efficacious treatment in the absence of professional judgment.” ECF No. 31, ¶ 98. Montag responds that he determined the nature and timing of Johnson's care according to medical judgment, including consideration of the risks of performing dental procedures during the CO VID-19 pandemic. ECF No. 23, p. 7.
To establish an Eighth Amendment violation based on denial delay of medical or dental care, a plaintiff must show that the defendant was deliberately indifferent to his serious medical or dental needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference can be shown by a prison official “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104. 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.” Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). See also Williamson v. Corr. Med. Servs., Inc., 304 Fed.Appx. 36, 38 (3d Cir. 2008).
Johnson's dental condition and need for a root canal constituted a serious medical need. See, e.g., Angle v. Montag, 2023 WL 22455411, at *5 (W.D. Pa. Feb. 27, 2023); Fitch v. Bernhard, 2023 WL 358560, at *4 (D.N.J. Jan. 23, 2023) (allegation of fractured tooth and need for a root canal sufficient to show a serious medical need as required by the first prong of the Estelle inquiry). To survive dismissal, however, Johnson “must also show that the defendant [was] deliberately indifferent to the [need].” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003); see also Estelle v. Gamble, 429 U.S. 97 (1976).
Johnson first contends that Montag's four-month delay in treating him amounted to deliberate indifference to his dental needs. A delay in necessary medical treatment can constitute deliberate indifference where the delay occurs for a non-medical reason. See Urey v. Culver, 2023 WL 2088133, at *3 n.l (W.D. Pa. Jan. 26, 2023) (citing Rouse v. Plantier, 182 F.3d 197 (3d Cir. 1999)). “[D]eliberately delaying necessary medical care when the delay causes an increased risk of harm” ... or subjects the inmate to “undue suffering ... or residual injury” can also constitute deliberate indifference.” Durmer v. O'Carroll, 991 F.2d 64 (3d Cir. 1993); Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). But here, Johnson has not alleged facts to support that his root canal was delayed for an arbitrary or non-medical reason. As his Amended Complaint acknowledges, dental procedures were significantly delayed due to the implementation of COVID-19 mitigation measures. See ECF No. 31, ¶ 56 (Montag sent Johnson a response which stated that “no dental treatment is being done due to COVID lockdown”). Several courts have held that a delay in dental or medical procedures due to COVID-19 concerns is neither arbitrary nor was for a “non-medical reason.” See, e.g., Thompson v. Williams, 2022 WL 714691, at *3 (D. Colo. Mar. 10, 2022) (treatment delay due to COVID restrictions was not a “non-medical” delay); Cheatham v. Dedeke, 2022 WL 17093046, at *4 (D. Kan. Nov. 21, 2022) (delay in treatment because of COVID quarantine does not rise to the level of a constitutional violation); Jones v. Sorbu, 2021 WL 365853, at *6 (E.D. Pa. Feb. 3, 2021) (holding delay in prison dental procedures due to COVID-19 restrictions was neither arbitrary nor for a “non-medical” reason). Mitigating the risk of infection and spread of the CO VID-19 virus is a valid medical reason for delaying nonemergency medical and dental procedures. Nor has Johnson alleged facts to demonstrate that his tooth pain constituted an emergency or required immediate intervention. See, e.g., Anduze v. City of New York, 2022 WL 44586967, at *16 (S.D.N.Y. Aug. 8, 2022). In addition, he acknowledges that dental personnel treated him with pain medication and antibiotics during the time COVID-19 restrictions delayed his root canal procedure. He received prompt responses to his sick-call requests and was provided pain medication and numerous courses of antibiotics. Thus, he does not allege a complete denial of dental care. Compare Fitch, 2023 WL 358560, at *5 (finding allegation that plaintiff went more than seven months without any treatment for dental pain stated a deliberate indifference claim). Nor does Johnson allege that his requests for assistance from the dental providers at the institution went unanswered. See, e.g, Noe v. United States, 2022 WL 185877706, at *2 (D. Colo. Dec. 14, 1022) (finding that plaintiff stated a deliberate indifference claim where he alleged he filed several request for dental assistance that went unanswered). As this Court has noted, “[w]here courts have found a delay in dental care to be actionable, the facts presented most often have involved an extended period where no care was provided in the face of a serious need.” Robison v. Sutter, 2021 WL 6054944, at *7 (W.D. Pa. Nov. 22, 2021) (collecting cases), report and recommendation adopted, 2021 WL 6052112 (W.D. Pa. Dec. 21, 2021). Indeed, “courts have held that delays comparable or greater than that presented here are insufficient to state an Eighth Amendment claim where the plaintiff-like [Johnson]-was receiving some treatment.” Id. (citations omitted). See also Green v. Rubenstein, 644 F.Supp.2d 723, 732 (S.D. W.Va. 2009) (concluding there was no Eighth Amendment violation resulting from an overall 8-month delay in removing tooth fragment). Finally, Johnson's Amended Complaint lacks any allegation of residual injury or undue suffering.
Johnson's Amended Complaint acknowledges that he received dental care between his first complaint of tooth pain on April 9, 2020, and the ultimate repair of his tooth on August 3, 2020. Nothing in his Amended Complaint suggests that Montag ignored his dental needs while COVID-19 restrictions delayed his procedure. The four-month delay in the procedure was not so protracted as to contravene Eight Amendment limits. Id., p. 8. Accordingly, Johnson's Amended Complaint fails to state an Eighth Amendment deliberate indifference claim against Montag based on the delay in performing his root canal procedure.
As was the case in Robison, Johnson has not alleged facts to support an inference that this delay, rather than his underlying condition, caused some degree of additional harm. Robinson, 2021 WL 6054944, at *8 n/1 (citing Preziosi v. Nicholson, 2021 WL 4442840, at *18 (W.D. Pa. Sept. 28, 2021); Brooks v. Kyler, 204 F.3d 102, 105 n.4 (3d Cir. 2000) (summary judgment on medical treatment claim appropriate when there was no evidence that the delay in medical treatment “expose[d] the inmate ‘to undue suffering or the threat of tangible residual injury.' ”) (quoting Lanzaro, 834 F.2d at 346); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (“delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference which results in ... harm”); Sealock v. Colorado, 218 F.3d 1205,1210 (10th Cir. 2000) (same); Fox v. Lawrence County Jail, 2008 WL 2704546, * 10 (W.D. Pa. June 30, 2008) (defendant entitled to summary judgment due to the absence of evidence that plaintiff suffered additional harm caused by the delay in medical treatment)).
Johnson also contends that Montag acted with deliberate indifference to his needs by refusing to physically examine him and for choosing a “less efficacious treatment” option. These claims are also unsupported by the facts alleged in the Amended Complaint. According to the Amended Complaint, Montag did not refuse to examine Johnson but rather delayed an examination based on COVID-19 mitigation restrictions. Montag promptly and consistently treated Johnson with antibiotics and pain medication over a course of months. The Amended Complaint also acknowledges that Montag monitored Johnson's condition as a nurse told Johnson on at least two occasions that the medication “is from the dentist.” ECF No. 31, ¶¶ 21, 46. Further, just a month after Johnson's initial report of tooth pain, Montag wrote to him and explained that “no dental treatment is being done due to COVID lockdown.” Id., ¶ 56. When Montag examined Johnson in early June of 2020, he explained that once the COVID restriction was lifted, Johnson would be seen first. Id. None of this constitutes a refusal to examine Johnson.
Johnson's assertion that Montag chose a “less efficacious” treatment is similarly unsupported by the facts alleged in the Amended Compliant. Johnson is correct that prison officials may not deny “reasonable requests” for medical treatment or opt for “easier and less efficacious” treatment plans. Palakovic v. Wetzel, 854 F.3d 209, 228 (3rd Cir. 2017). But “federal courts are generally reluctant to second guess medical judgment and to constitutionalize claims which sound in state tort law.” Id. 854 F.3d at 228 (citing United States ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal quotations and citation omitted)). Instead, questions of medical treatment remain “a question of sound professional judgment.” Id., 854 F.3d at 228. Montag chose to treat Johnson with pain medication and two different antibiotics while concerns regarding the spread of the COVID-19 virus made nonemergency dental procedures imprudent. This represents the type of medical judgment that courts are loath to second guess. In essence, Johnson has alleged a mere disagreement as to the proper care for his condition, which does not support a claim of deliberate indifference. See, e.g, Tolbert v. Weiner, 2022 WL 17251290, at *4 (E.D. Pa. Nov. 28, 2022); Basemore v. Vihlidal, 2014 WL 640257, at *12 (W.D. Pa. Jan. 30, 2014) (“[Disagreement as to the appropriate choice of medical treatment does not give rise to a constitutional violation.”).
Finally, no inference of deliberate indifference arises from the delay between the placement of a temporary filling following the root canal procedure on August 3, 2020, and the placement of a permanent filling in June of 2021. Johnson alleges no facts to support that he suffered any meaningful harm because of this delay or that the delay was attributable to anything more than an office scheduling error. At most, these allegations might support an inference of negligence, not deliberate indifference. See, e.g., Leisure v. Lancaster Cnty. Prison, 750 Fed.Appx. 89, 91 (3d Cir. Sept. 18, 2018) (allegations of negligence are not sufficient to make out an Eighth Amendment claim) (citations omitted).
In sum, Johnson's Amended Complaint fails to allege any facts to support a plausible inference that Montag acted with deliberate indifference to his dental needs. Accordingly, Johnson's Eighth Amendment claim against Montag should be dismissed.
C. Johnson's failure to intervene claim against Oberlander should be dismissed.
Johnson alleges that Oberlander failed to “intervene and prevent further suffering of the Plaintiff' and instead chose “to continue to deny and/or delay Plaintiff access to the dental department in reliance on a constitutionally infirmed policy.” More specifically, Johnson alleges that Oberlander denied his grievance appeal “on the grounds that Plaintiff had been provided with appropriate palliative care during the directive regarding dental procedures.” ECF No. 14, ¶ 74. Although labeled as a failure to intervene claim, Johnson's claim against Oberlander is based on his involvement in the grievance process. Oberlander argues that participation in the grievance process does not constitute personal involvement in any actionable conduct.
Even were the claim to be considered as one alleging failure-to-intervene, it would fail. “A failure-to-intervene claim will not survive without a finding of a predicate constitutional violation.” Colon v. Kinnel, 2023 WL 1783774, at * 10 (E.D. Pa. Feb. 6, 2023) (citing Adams v. Officer Eric Seihorst, 449 Fed.Appx. 198,204 (3d Cir. 2011)). Because there was no underlying due process violation, there was no harm or constitutional infringement against which Oberlander could intervene or protect. See Fennell v. Wetzel, 2023 WL 1997116, at *5 (M.D. Pa. Feb. 14, 2023). The dental treatment Johnson received did not violate his constitutional rights. See discussion, supra. Thus, he cannot state a failure-to-intervene or failure-to-protect claim because “there was no harm or unlawful action to protect against.” Id. See also Chapolini v. Capodanno, 2023 WL 179843, at *2 (3d Cir. Jan. 13, 2023) (“A failure-to-intervene claim requires showing an underlying constitutional violation occurred.”) (citing Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002)).
It is well settled that involvement in the grievance process alone does not give rise to Section 1983 liability. See Dooley v. Wetzel,, 957 F.3d 366, 374 (3d Cir. 2020) (affirming dismissal of claims against prison officials for lack of personal involvement when officials' “only involvement” was “their review and denial of [plaintiff]'s grievance”); Lewis v. Wetzel, 153 F.Supp.3d 678, 696-97 (M.D. Pa. 2015) (collecting cases); Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006); Alexander v. Gennarini, 144 Fed.Appx. 924, 925 (3d Cir. 2005) (explaining that prisoner's claims against certain defendants were “properly dismissed” because the allegations against them “merely assert their involvement in the post-incident grievance process”). Courts have routinely dismissed civil rights claims under § 1983 against prison officials whose only knowledge of the alleged violation stemmed from their participation in the grievance process. See, e.g., Trainor v. Wellpath, 2021 WL 3913970, at *9 (W.D. Pa. Sept. 1, 2021); Hoopsick v. Oberlander, 2020 WL 5798044, at *2 (W.D. Pa. Sept. 29, 2020) (defendant upholding denial of plaintiffs grievance); Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (senior prison officials' participation in administrative appeal process); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (no personal involvement under § 1983 “[i]f a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred.”). Likewise, Johnson's claim against Oberlander in this case fails because it is based on his involvement in the grievance process. Johnson's claim against Oberlander should be dismissed.
This is true even if Oberlander investigated Johnson's dental treatment. Such actions are still insufficient to allege Oberlander's personal involvement in the denial or delay of Johnson's root canal procedures. See Rodgers, 696 F.Supp.2d 471, 488 (W.D. Pa. 2010) (“If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance ... there is no personal involvement on the part of that official.”).
D. The claims against Wetzel should be dismissed.
Johnson brings two related claims against Wetzel. First, he asserts a supervisory liability claim against Wetzel based on allegations that he was responsible for “overseeing the Department of Corrections, as well as policymaking” and in that capacity “adopted, established, and maintained” a policy “which was the driving force behind the deprivation of Plaintiff s constitutional rights and directly caused the constitutional violation of Plaintiff s Eighth Amendment rights.” ECF No. 31, ¶¶ 5, 100. Second, Johnson claims Wetzel failed to train and/or supervise relevant employees during the corona virus pandemic. Id., ¶ 101.
As discussed in the context of the claim against Montag, the Amended Complaint fails to allege facts to support any violation of Johnson's Eighth Amendment rights. Absent such a violation, no claim of supervisory liability is sustainable. Johnson's claims against Wetzel are subject to dismissal on this basis alone. See, e.g., Calhoun v. Vicari, 2005 WL 2372870, at *5 (D.N.J. Sept. 26, 2005) (“[W]here there is no constitutional violation, there can be no claim for failure to train or supervise adequately.”); see also Miller v. City of Philadelphia, 1996 WL 683827, at *3-4 (E.D. Pa. Nov. 25,1996) (plaintiff must show defendant established and maintained a policy, practice). See also Miller v. City of Phila., 1996 WL 683827, at *3-4 (E.D. Pa. Nov. 25, 1996) (plaintiff must show defendant, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [plaintiffs] constitutional harm”) (internal quotation marks omitted).
To the extent Johnson is attempting to assert a claim against Wetzel pursuant to Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978), such a claim is not sustainable against an individual. Such claims are brought against municipalities or other government entities based on a “policy or custom” that “caused the violation of the plaintiff s constitutional rights.” See Lawson v. City of Philadelphia, 2022 WL 17155767, at *2 (E.D. Pa. Nov. 22, 2022) (citing Monell, 436 U.S. at 694)). A Monell claim is not available against an individual. Vacekv Pa. Judicial Conduct Bd., 2010 WL 3338809, at *6 (W.D. Pa. Aug. 3, 2010) (“Although Plaintiff purports to bring his Monell claim against the individual defendants, such a claim is only appropriate as to a government entity.”). As alleged, this policy was issued by the federal Center for Disease Control (“CDC”) and followed by the DOC. Id., ¶ 58.
Instead, there are “two general ways” in which a supervisor-defendant may be liable for civil rights violations. Mabel v. Wetzel, 2022 WL 1620079, at *7 (W.D. Pa. May 23, 2022). First, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under [section] 1983 if he or she participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Failure to train, discipline, or supervise claims are generally considered a subcategory of policy or practice liability. Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316-19 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015).
The mere fact that Wetzel was a supervisor who was “responsible for overseeing the Pennsylvania Department of Corrections,” standing alone, cannot support liability under § 1983. See Ivy v. Wetzal, 2021 WL 479721, at *5 (W.D. Pa. Sept. 30, 2021) (citation omitted). This is because “[l]iability may not be imposed under § 1983 on the traditional standards of respondeat superior.” Id. (citing Iqbal, 556 U.S. at 677 (“In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”)).
According to the Amended Complaint, the policy upon which Johnson bases his claim against Wetzel stated as follows:
In order to protect staff and preserve personal protective equipment and patient care supplies, as well as expand available hospital capacity during the COVID-19 pandemic, the Center for Disease Control and Prevention recommends that dental facilities postpone elective procedures, surgeries, and non-urgent dental visits, and prioritize urgent and emergency visits and procedures now and for the coming several weeks.Id., ¶ 59.
Whether it was Wetzel who “established and maintained” this policy is irrelevant because Johnson's allegations fail to support that it caused any violation of his Eighth Amendment rights. As previously discussed, his allegations do not support an inference that Montag or any other employee or subordinate acted with deliberate indifference to his dental needs. Furthermore, Johnson's allegations against Wetzel are the type of “conclusory, thread-bare” allegations that are “insufficient to support a plausible inference that Wetzel established and maintained an unconstitutional policy or practice.” Ivy, 2021 WL 4479721, at *5 (citing Chavarriaga v. N. J. Dep't of Corr., 806 F.3d 210, 223 (3d Cir. 2015); see also Coulston v. Superintendent Houtzdale SCI, 651 Fed.Appx. 139, 143 (3d Cir. 2016) (“Conclusory legal allegations that [the DOC Secretary] is liable for ‘creating and enforcing an [unconstitutional] policy' do not suffice to state a claim.”).
Johnson's “failure-to-train” claim against Wetzel fails for the same reasons. No such claim is possible absent an underlying constitutional violation. In addition, the claim is premised on conclusory assertions unsupported by allegations of fact. See, e.g., Ndaula v. Clinton Cnty. Corr. Facility, 2020 WL 7773902, at *6 (W.D. Pa. Dec. 40, 2020) (bare allegations without explanation are insufficient to allege failure to train). For example, the Amended Complaint fails to identify with particularly any specific flaws in the training provided under the policy. See, e.g. Coleman v. Wetzel, 2015 WL 10381754, at *7 (M.D. Pa. Dec. 28, 2015) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). Johnson also has not alleged any facts to support Wetzel's knowledge of any prior constitutional violations allegedly committed pursuant to the policy. Thus, Johnson has alleged neither an underlying constitutional violation nor any plausible basis to support a supervisory liability against Wetzel. Accordingly, the claims against Wetzel should be dismissed.
V. Leave to amend should be denied as any further amendment would be futile.
In cases involving pro se plaintiffs alleging violations of civil rights, “[i]f a complaint is vulnerable to dismissal for failure to state a claim, a District Court must grant the plaintiff leave to amend ‘unless an amendment would be inequitable or futile.'” Zanders v. Ferko, 389 Fed.Appx. 88, 89 (3d Cir. 2010) (quoting Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). Here, the Amended Complaint's detailed factual recitation of Johnson's medical/dental history belies a claim of deliberate indifference rendering any attempt to amend to state an Eighth Amendment or supervisory liability claim futile. Accordingly, leave to further amend should be denied.
VI. Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).