Opinion
3:21-cv-146-KAP
03-23-2023
MICHAEL J. PENDLETON, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al. Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
The complaint should be dismissed with leave to amend in part.
Report
Since plaintiff is proceeding in forma pauperis, 28 U.S.C.§ 1915(e)(2) commands:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
Also applicable to this case is 28 U.S.C.§ 1915A, which commands that:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Plaintiff, an inmate at S.C.I. Somerset, brings his civil rights action pursuant to 42 U.S.C. § 1983 against the Pennsylvania Department of Corrections, Superintendent Eric W. Tice, and Deputy Superintendent Dan Caro, alleging that they were deliberately indifferent to a risk to his health and safety in violation of his constitutional rights under the Eighth Amendment.
Plaintiff also makes passing references to the Americans with Disabilities Act, the Pennsylvania Constitution, and the Equal Protection Clause; however, the facts alleged and the relief sought clearly indicate that plaintiff only truly asserts an Eighth Amendment deliberate indifference claim.
Plaintiff alleges that starting in April 2020, he was one of ten inmates chosen to be part of a group run by Caro. As part of that group, plaintiff would receive housing privileges, but he would have to work at an assigned job. Plaintiff suffers from asthma, high blood pressure and vertigo. He felt he could not turn down work because he would lose privileges and maybe face disciplinary sanctions. In June or July of 2020, the Pennsylvania Department of Health and the Pennsylvania Department of Corrections sent to Somerset a list of 26 inmates, including plaintiff, who, due to their high risk and the Covid-19 pandemic, could not work or leave their unit. This prohibition was not enforced until January 11, 2021, when the Secretary of the Department of Corrections (John Wetzel) ordered Superintendent Tice to enforce the prohibition. In November 2020, plaintiff worked on a unit that was locked down due to the spread of Covid-19; he did not have a proper protective equipment at this work assignment. He subsequently contracted Covid-19. Another alleged reason plaintiff contracted Covid-19 is that the corrections officers individually and as union members resisted being vaccinated, and in their unvaccinated state worked across several units of the prison and cross-contaminated them.
As a preliminary matter, the Department of Corrections is not a proper defendant in a civil rights action pursuant to 42 U.S.C. § 1983. See Adams v. Hunsberger, 262 Fed.Appx. 478 (3d Cir.2008) (finding Section 1983 claims against Pennsylvania Department of Corrections were properly barred because it is not a “person” withing the meaning of Section 1983). The Department of Corrections should be dismissed without leave to amend.
As for the two remaining defendants, the superintendent and deputy superintendent, a prison officials cannot be found liable under the Eighth Amendment for failing to protect a prisoner “unless the official knows of and disregards an excessive risk to inmate health and safety; 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 allege a claim against a defendant in this or any civil rights action pursuant to 42 U.S.C.§ 1983, a plaintiff must allege that the defendant had “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). A plaintiff must demonstrate such personal involvement by plausible allegations of fact, not by mere assumptions or by conclusory assertions. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
Plaintiff does not give the details of his bout with Covid-19. He alleges that he has some lingering side effects such as headaches and a loss of taste and smell. This is inadequate. When some injury is alleged to have occurred, in order to determine whether there is a claim of deliberate indifference, a court must ask whether, prior to the actual occurrence, the risk that such injury would result was ‘substantial' and whether the officials knew of the risk. ... The inquiry into ex ante risks does not obviate the need to decide whether the injury alleged is serious enough to entitle the plaintiff to compensation under the Eighth Amendment.
Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996). To illustrate, if a corrections officer knowingly came to work with a common cold or the flu, with the common understanding that she was to some degree contagious, she is not thereby liable to every inmate who contracted her illness, no matter how mild the inmate's case. That the corrections officer did not consider that illness serious enough to deter her from working a shift would seem to be inherently inconsistent with the subjective knowledge that she was an “excessive risk” to an inmate. And assuming the rare case where that could be inferred, such as a nurse with knowledge of her contagious state working around immune-compromised inmates without safety gear or warnings, see generally Troxel v. A.I. Dupont Inst., 450 Pa. Super. 71, 84, 675 A.2d 314, 320 (1996), is she liable no matter how insubstantial and passing the cold or flu contracted by an inmate, or only when “serious harm” actually occurs? Similarly, a corrections officers who works without being vaccinated because he considered the risk of Covid-19 the less dangerous course for himself could not without distorting Farmer v. Brennan be alleged to be liable for any symptoms of Covid-19 suffered by someone downstream because that judgment proved to be incorrect.
Legal liability has not expanded to the point where a parent sending a first grader to school, knowing the child has a cold, is liable to the parents of all the children who get sick in the following weeks. In fact, in Pennsylvania common law legal liability does not exist when a physician knowingly fails to protect a corrections officer from an inmate with a highly communicable and sometimes lethal infection. Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 57 A.3d 1232 (2012). Does legal liability exist based only on allegations that corrections personnel failed to protect an inmate from any consequences from an incompletely understood and still uncontrolled pandemic? That is essentially where plaintiff's complaint stands. Additional allegations of fact about the risk to plaintiff, the knowledge of the defendants, and the seriousness of the Covid-19 suffered by plaintiff are necessary. The liberality with which pro se pleadings should be construed does not mean a Court can let an inadequate claim proceed and count on “weed[ing] it out” through “careful case management.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007).
To sum up, plaintiff has not alleged any fact that indicates that either Tice or Caro, by being aware of the general circumstances of the Covid-19 pandemic, thereby knew of an excessive risk to plaintiff's health and safety, or that they disregarded (as opposed to misjudged) such a risk. The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” I cannot say that it would be futile to allow plaintiff to amend his complaint if he is able to remedy the defects in his claim against Tice or Caro.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error). Plaintiff is also given leave to amend his complaint within the same time. Plaintiff can, if he wants, both amend his complaint and file objections. If plaintiff chooses to do neither he should be deemed to be standing on the adequacy of the present complaint and it should be dismissed for failure to state a claim.