Opinion
Civil Action 2:20-cv-1311
06-01-2021
MICHAEL MARKOWITZ, Plaintiff, v. WILLIAM NICHOLSON, et al., Defendants.
David Stewart Cercone Senior United States District Judge.
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge.
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendants William Nicholson and Robert Gilmore be denied.
II. REPORT
A. Procedural History
Plaintiff, Michael Markowitz, is a Pennsylvania state inmate currently incarcerated at SCI-Greene. He filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. The Complaint states that Markowitz has an extensive medical history and suffers from a plethora of chronic medical conditions and physical injuries which leave him in constant physical pain. Through the Complaint, Markowitz alleges he has received inadequate medical treatment resulting in constant chronic pain. Named as defendants are William Nicholson, the Corrections Health Care Administrator; Robert Gilmore, the former superintendent of SCI-Greene, and three medical providers assigned to SCI-Greene. All defendants are sued in their individual and official capacities. (ECF No. 4).
The three medical providers have filed an Answer to the Complaint. (ECF No. 27). The instant motion to dismiss has been filed on behalf of Defendants Nicholson and Gilmore only. (ECF No. 9). Markowitz has filed a response in opposition. (ECF No. 24). The matter has been fully briefed and for the reasons that follow, it is recommended that the motion to dismiss be denied.
B. Standard of Review
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “ ‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Nevertheless, the court need not accept as true “unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
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 plaintiffs complaint fails to state a claim. See GouldElecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). In short, a motion to dismiss should not be granted if a party alleges facts, which could, if established at trial, entitle him to relief. Twombly, 550 U.S. at 563 n.8. Additionally, pro se pleadings are to be construed liberally. Haines v. Kerner, 404 U.S. 519, 52 (1972).
C. Discussion
The Eighth Amendment prohibits prison officials from being deliberately indifferent to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to find deliberate indifference, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009).
A medical need is serious where it “has been diagnosed by a physician as requiring treatment” or is “so obvious that a lay person would easily recognize the necessity” of medical attention. Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). For the purpose of this report and recommendation only, the Court will presume that Markowitz's medical needs are serious.
Defendant William Nicholson is the Corrections Health Care Administrator at SCI-Greene. At all relevant times, Defendant Gilmore was the Superintendent at SCI-Greene. Defendants contend that Markowitz cannot sustain his claims against them because: (1) Markowitz had access to medical providers at SCI-Greene; (2) there are no allegations that Nicholson or Gilmore interfered with Markowitz's ability to see the medical staff at SCI-Greene; and (3) Nicholson and Gilmore are administrators and as non-physician defendants they cannot be found liable when they rely upon the opinions and course of treatment rendered by medical professionals. Markowitz argues in response that Nicholson and Gilmore were made aware of his need for medical treatment through his many “grievances of the inadequate medical care he was receiving, and the constant chronic pain that resulted from this inadequate medical treatment, and Defendants did nothing to remedy his inadequate treatment.” Pl's Resp. at ¶ 6.
In Pearson v. Prison Health Serv., the Court of Appeals for the Third Circuit reiterated that,
“[A] non-medical prison official” cannot “be charge[d] with the Eighth Amendment scienter requirement of deliberate indifference” when the “prisoner is under the care of medical experts” and the official does not have “a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” Spruill [v Gillis], 373 F.3d [281, ] at 236 [(3d Cir. 2004)]; see also [Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993)] (holding that non-physicians cannot “be considered deliberated indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was being treated by the prison doctor”).850 F.3d 526, 543 (3d Cir. 2017) (emphasis added).
Generally, “[c]orrectional defendant-administrators who are not themselves physicians cannot ‘be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.'” Davis v. Norwood, 614 Fed.Appx. 602, 605 (3d Cir. 2015) (quoting Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993)). However, deliberate indifference has been found in “situations where there was ‘objective evidence that [a] plaintiff had serious need for medical care, ” and prison officials ignored that evidence.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Nicini v. Morra, 212 F.3d 798, 815 n.14 (3d Cir. 2000)). See also Garcia v. Corr. Med. Serv., Inc., Civ. No. 13-1250, 2016 WL 7377103, at *5 (D.N.J. Dec. 20, 2016) (“Plaintiff has alleged that Defendants ignored his complaints and requests for treatment for nine years. It is therefore not unreasonable to infer [Defendants] knew of the need for medical care during that time and intentionally refused to provide it.”); Cardona v. Warden - MDC Facility, Civ. No. 127161, 2013 WL 6446999, at *5 (D.N.J. Dec. 6, 2013) (collecting cases and holding that plaintiff stated a valid denial of medical services claim against the prison warden because plaintiff alleged an ongoing constitutional violation, and alleged that the warden was made aware of the ongoing violation through repeated written requests).
Here, Markowitz contends that he repeatedly informed Nicholson and Gilmore, through his written submissions and grievances, that he had been taken off his pain medication and that the medication adjustment that had been prescribed to replace it, Cymbalta - an anti-depressant, was doing nothing for his chronic pain. Despite these notifications, Nicholson and Gilmore ignored Markowitz's repeated requests for treatment. The grievances that Nicholson and Gilmore were presented with were intended to correct an ongoing constitutional violation, not merely the denial of a grievance that had been brought to address a discrete, past violation. See Complaint, Exh. A, Grievance Nos. 648928 dated 10/21/2016; 796926 dated 4/12/2019; 796927 dated 4/12/2019; 841363 dated 12/23/2019; and 844794 dated 1/12/2020. (ECF No. 4-1).
The Court finds that Markowitz has alleged enough to create plausible deliberate indifference claims against Nicholson and Gilmore. The Court recognizes that discovery may well reveal that Markowitz's allegations do not support an Eighth Amendment deliberate indifference claim against either Nicholson or Gilmore, but at this early stage of the litigation, the allegations of the Complaint must be accepted as true and all reasonable inferences must be drawn in Markowitz's favor. Markowitz will be required to meet a high bar to ultimately prevail; however, at this stage of the litigation, the factual allegations of the Complaint are sufficient to state a plausible claim that Defendants Nicholson and Gilmore were deliberately indifferent to his serious medical needs.
III. CONCLUSION
For all these reasons, it is respectfully recommended that Defendants' Motion to Dismiss be denied.
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, Markowitz, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by June 18, 2021, and Defendants Nicholson and Gilmore, because they are electronically registered parties, must file objections, if any, by June 15, 2021. 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).