Opinion
Civil Action 2:22-cv-01871
09-06-2023
ABDUL RASHEED, Plaintiff, v. LT. DISALVO, et al, Defendants.
ECF No. 23
LISA PUPO LENIHAN, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
ARTHUR SCHWAB, JUDGE
I. RECOMMENDATION
For the reasons set forth below, it is respectfully recommended that the Motion to Dismiss (ECF No. 23) filed by Defendants be granted and the Complaint dismissed with prejudice.
II. REPORT
A. Factual Background/Procedural History
At all relevant times, Plaintiff Abdul Rasheed was incarcerated at SCI-Fayette in the RHU. Compl., ¶ 8, ECF No. 5 at 5. On or about August 16, 2022, he was scheduled for physical therapy due to injuries he sustained when he fell from his top bunk bed. Id. That morning, C.O. Saxon informed Plaintiff that he would escort Plaintiff to physical therapy around 8:30 to 9:00 a.m.. Id. However, C.O. Saxon did not arrive at the scheduled time to do so. Around 10:30 or 11:00 a.m., C.O. Saxon was passing out Plaintiff's lunch tray and Plaintiff asked him why he was not taken to his physical therapy appointment. Id. C.O. Saxon allegedly told Plaintiff that physical therapy had called and rescheduled his appointment. Id. Plaintiff contends that C.O. Saxton lied to him about the rescheduled appointment and that the appointment had actually been cancelled due to an unlawful policy that “denies inmate medical treatment if an email is not sent out,” and in so doing was deliberately indifferent to his medical needs. Id. at ¶ 9.
Plaintiff does not list CO Saxton as a Defendant nor does he refer to him as such in his Complaint, but rather he alleges that CO Saxon was deliberately indifferent to his medical needs. Defendants submit that despite this assertion, neither the Complaint nor the docket reflects that CO Saxon is a Defendant in this action. ECF No. 24 at 2 n. 1. As such, Defendants do not specifically address Plaintiff's claim that CO Saxon was deliberately indifferent to his medical needs.
Plaintiff further alleges that on or about August 19, 2022, he called Captain Newman to his cell door and informed him that RHU officers had refused to take him to his physical therapy appointment on August 16, 2022. Id. at 6, ¶ 13. After looking into this, Captain Newman returned and informed Plaintiff that his physical therapy appointment was rescheduled for September 13, 2022. Id. at 7.
Plaintiff filed a grievance regarding the rescheduling of his physical therapy appointment on August 19, 2022 claiming that “all officers” were deliberately indifferent to his serious medical needs. Id. at 5, ¶ 10. He contends that Lt. DiSalvo was assigned to investigate his grievance which he ultimately denied. Id. at 6, ¶ 11. In so doing, Plaintiff contends that Lt. DiSalvo was deliberately indifferent to his serious medical needs. Id., ¶¶ 11-12. In support of the denial of Plaintiff's grievance, Lt. DiSalvo indicated that new staff within the physical therapy department had incorrectly notified the RHU about Plaintiff's appointment, causing it to be rescheduled for September 13, 2022. Id. at ¶ 11; see also Initial Review Response dated 9/6/22, ECF No. 37-1 at 2. Lt. DiSalvo noted that the procedure in the RHU requires that an email be sent to the RHU informing them of physical therapy appointments rather than notifying the RHU of appointments via a phone call, which is what happened in Plaintiff's case. Id. at ¶ 12; ECF No. 37-1 at 2. Lt. DeSalvo further noted that this administrative issue was resolved by informing everyone involved. Id.
The Initial Review Response is attached as Exhibit A to Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss. ECF No. 37-1. The Court may consider documents attached by Plaintiff in response to a motion to dismiss without converting it to a motion for summary judgment where the plaintiff incorporates the contents of the document in his complaint, the information contained in the document is relevant to plaintiff's claims, and the authenticity of the document is not being challenged. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
However, Plaintiff contends that he was not taken to his physical therapy appointment on September 13, 2022. ECF No. 5 at 7, ¶ 13. Thus, he alleges that Captain Newman was deliberately indifferent to his serious medical needs because he was aware of this as well as the “created policy of the RHU officers denying Plaintiff of Medical Treatment.” Id.
Plaintiff appealed Lt. DiSalvo's response to his grievance to the Facility Manager, E. Armel who, on September 13, 2022, upheld the appeal in part due to the fact that Plaintiff missed his appointment but denied any and all relief requested due to the fact that the issue was resolved by rescheduling his appointment. ECF No. 5 at 7, ¶ 14; see also Facility Manager's Appeal Response, ECF No. 37-1 at 3. Plaintiff alleges that he informed Facility Manager E. Armel of the RHU officers conduct of creating policies that deny him and other inmates of medical attention and he was again denied physical therapy on September 13, 2022. ECF No. 5 at 7, ¶ 15. As such, Plaintiff maintains that Facility Manager E. Armel was deliberately indifferent to his medical needs for failing to intervene and do away with the RHU officers created policy. Id.
The Facility Manager's Appeal Response is attached as Exhibit A to Plaintiff's Brief in Opposition and may be considered by the Court without converting the motion to dismiss to a motion for summary judgment. See Note 1, supra.
Plaintiff's physical therapy appointment was subsequently rescheduled for September 20, 2022. ECF No. 5 at 8, ¶ 16. On that date, Plaintiff was escorted to physical therapy by Corrections Officers Skrobach and Lackey and upon their arrival, were informed that the physical therapist was running late. Id. COs Skrobach and Lackey received a radio call from Sargent Burrie in the RHU directing them to return Plaintiff to his cell in the RHU. Id. Plaintiff contends that CO Skrobach, CO Lackey, and Sargent Burrie were deliberately indifferent to his serious medical needs for denying him physical therapy and escorting him back to his RHU before receiving his treatment. Id., ¶ 17.
On December 27, 2022, Plaintiff commenced this civil rights action asserting a Section 1983 claim for violation of his rights under the Eighth Amendment Cruel and Unusual Punishments Clause. Named as Defendants in this lawsuit are Lt. DiSalvo, Captain Newman, Facility Manager E. Armel, and Sargent Burrie. See ECF No. 5 at 2, Part I.B. Although he did not name them as defendants, Plaintiff alleges that C.O. Saxon, C.O. Skrobach, and C.O. Lackey were deliberately indifferent to his serious medical needs. See ECF No. 5 at 4, ¶¶ 5-7, and at 8, ¶¶ 16-17. Plaintiff is suing the Defendants in both their individual and official capacities. For relief, Plaintiff seeks compensatory and punitive damages, and “injunctive relief of the RHU's created policy which denies inmates access to medical treatment disposed of.” Id. at 10, Part VI.
In response, Defendants filed the pending motion to dismiss and supporting brief. ECF Nos. 23 & 24. Plaintiff has filed brief in opposition to the motion to dismiss. ECF No. 37. As such the motion is ripe for disposition.
B. Legal Standard
The United States Court of Appeals for the Third Circuit aptly 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 v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (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).
Also, 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.”) (quoting Higgins, 293 F.3d at 688). 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, 2102 (10th Cir. 1996).
“In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as ‘documents that are attached or submitted with the complaint, ... and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'” State College Area Sch. Dist. v. Royal Bank of Canada, 825 F.Supp.2d 573, 577-578 (M.D.Pa.2011) (quoting Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.2006)). See also Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993) (citations omitted). This includes documents that are “integral to or explicitly relied upon in the complaint,” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997), such as “an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document,” Pension Benefit Guar. Corp., 998 F.2d at 1196. Consideration of such documents will not convert the motion to dismiss into a motion for summary judgment.
C. Discussion
Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. Section 1983 of the Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commw. of Pa., 36 F.3d 1250, 125556 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Both of these requirements have been met here as Defendants do not dispute that they were acting under color of state law. The Court now turns to Defendants' arguments.
1. Eleventh Amendment Immunity
Plaintiff has indicated that he is suing the Defendants in both their individual and official capacities. Defendants argue that Plaintiff's claims against them in their official capacities should be dismissed pursuant to the immunity provided by the Eleventh Amendment. The Court agrees.
In his brief in opposition, Plaintiff misconstrues Defendants' argument as asserting qualified immunity, however, Defendants are invoking immunity under the Eleventh Amendment. The Eleventh Amendment bars civil rights suits against a state and their agencies in federal court by private parties where the state has not consented to such action. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (Pennsylvania) (citing Alabama v. Pugh, 438 U.S. 781 (1978)); see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (agencies that are arms of the state). Pennsylvania has not waived immunity from suit in federal court, and Congress has not abrogated this immunity in enacting 42 U.S.C. § 1983. Conklin v. Anthou, 495 Fed.Appx. 257, 263 (3d Cir. 2012) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989); Wheeling & Lake Erie Ry. Co. v. Pub. Util. Comm'n of Pa., 141 F.3d 88, 91 (3d Cir. 1998); 42 Pa. Cons. Stat. § 8521(b)).
Eleventh Amendment immunity also applies to actions in federal court against state officials acting in their official capacities for money damages or back pay, as such retroactive relief would be paid out of the state treasury. Laskaris, 661 F.2d at 26 (citing Edelman v. Jordan, 415 U.S. 651 (1974)); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (a civil action brought against a state official in his official capacity is deemed an action against the state); Hafer v. Melo, 502 U.S. 21, 26 (1991) (when a state official is sued in an official capacity, the real party in interest is the government entity that employs them). Cf. Will, 491 U.S. at 71 (a State and its officials acting in their official capacities are not “persons” subject to suit within the meaning of Section 1983). Plaintiff's § 1983 official capacity claim against the Defendants, who are all employees of the Pennsylvania DOC, essentially is a claim against the Commonwealth of Pennsylvania. See Lavia v. Pa. Dep't of Corrs., 224 F.3d 190, 195 (3d Cir. 2000) (Pennsylvania DOC shares in the Commonwealth's Eleventh Amendment immunity). Thus, to the extent Plaintiff seeks monetary relief against the Defendants in their official capacities, his claim is barred by Eleventh Amendment immunity.
However, the Supreme Court has noted an exception to this rule where “suits against individual state officers [are] for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002) (“Hess”)(citing MCI Telecomm Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 503 (3d Cir. 2001)). This exception is commonly referred to as the doctrine of Ex Parte Young, 209 U.S. 123, 155-56 (1908). See Hess, 297 F.3d at 323. The Supreme Court has narrowly applied this exception, Pennhurst, 465 U.S. at 102, and indeed, has declined to apply the exception to relief styled as prospective relief but which, in actuality, seeks compensation for a past injury by a state official, Edelman, 415 U.S. at 666-68. “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'” Verizon Maryland, Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (438 (1997)).
Here it appears that in addition to monetary relief, Plaintiff seeks relief that is prospective in nature- he requests injunctive relief which disposes of “the RHU's created policy which denies inmates access to medical treatment.” Thus, the injunctive relief sought by Plaintiff involves changes to the RHU's procedure for scheduling physical therapy appointments and would not result in any monetary relief, ancillary or otherwise, from the Pennsylvania Treasury. See Edelman, 415 U.S. at 667-68 (observing that the difference between prospective and retroactive relief in many instances is not that between day and night, and holding the Eleventh Amendment does not bar an order compelling state compliance in the future, but prohibits an injunction ordering payment of previously owed sums; however, “an ancillary effect on the state treasury is permissible and often an inevitable consequence of the principle announced in Ex parte Young[.]”).
However, that does not end the inquiry. The prospective injunctive relief sought by Plaintiff would not end an ongoing violation of federal law. The Complaint does not allege that the denial of physical therapy is ongoing. In addition, Plaintiff has not identified any federal law that has been and will continue to be violated by the DOC's procedure for scheduling physical therapy appointments for inmates housed in the RHU. Although Plaintiff asserts that the current policy/procedure is deliberately indifferent to his serious medical needs, as discussed below, it does not rise to the level of a constitutional violation. Therefore, the Court finds that Ex Parte Young does not apply here. As such, Defendants are entitled to Eleventh Amendment immunity on all claims against them in their official capacities. Accordingly, the Court recommends that Plaintiff's claims against Defendants in their official capacities be dismissed with prejudice.
Moreover, it is unclear whether the named Defendants in this case have the authority to “dispose of “ the policy/practice for scheduling physical therapy appointments for inmates housed in the RHU.
2. Lack of Personal Involvement
Next, Defendants DiSalvo, Newman, Armel, and Burrie argue that they should be terminated from this action and dismissed because Plaintiff has failed to allege sufficient personal involvement on their behalf. Plaintiff alleges that the Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. According to Defendants, Plaintiff is contending, in essence, that (1) the responses of Defendants DiSalvo and Armel to his grievance establish their deliberate indifference, (2) Defendant Newman's deliberate indifference is established by a conversation that occurred on August 19, 2022 in which Plaintiff informed Defendant Newman about the missed physical therapy appointment and Defendant Newman's attempt to reschedule the appointment, and (3) Defendant Burrie's deliberate indifference is established by his direction to COs Skrobach and Lackey to return Plaintiff to the RHU on September 20, 2022 when the physical therapist was running behind schedule. Defendants claim that these allegations are insufficient to establish personal involvement on their part in any Eighth Amendment violation.
For liability to be imposed under 42 U.S.C. § 1983, “[a] defendant in a civil rights action 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) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)).
A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. These allegations “must be made with appropriate particularity.” Id. See also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a ‘plausible nexus' or ‘affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'”) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)).
The Third Circuit Court of Appeals has identified two general instances in which the conduct of a supervisor-defendant or the policies/procedures of a supervisordefendant may constitute personal involvement, thus warranting a finding of individual supervisory liability for a constitutional tort. First, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Second, 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.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Defendants DiSalvo and Armel submit that they both occupy supervisory roles and their only involvement was their participation in the grievance process. They argue that “an officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.” Defs. Br., ECF No. 24 at 8 (quoting Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (citing Rode, 845 F.2d at 1207-08)). Moreover, they contend that “information learned through ‘the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.'” ECF No. 24 at 8 (quoting Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D.Pa. 2013)).
Defendant Newman submits that the Complaint merely alleges that he had a conversation with the Plaintiff on August 19, 2022 regarding his missed physical therapy appointment and his rescheduling of same and this single conversation is insufficient to establish the personal involvement necessary to state a constitutional claim. He cites in support Palmer v. Watterson, Case No. 1:20-cv-10, 2021 WL 640637, at *5 (W.D.Pa. Jan. 29, 2021)(citing Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020)).
Defendant Burrie submits that the Complaint merely alleges that, upon being informed by C.O.s Lackey and Skrobach that Plaintiff's physical therapy appointment was running late, he instructed them to bring Plaintiff back to the RHU so they could receive their lunch breaks, and this is insufficient to establish personal involvement in the alleged constitutional violation. Moreover, Defendant Burrie maintains that the direction to return Plaintiff to the RHU is the kind of routine decision-making that occurs in the daily administration of a prison. Indeed, Defendant Burrie notes that Plaintiff alleges that the decision to return him to the RHU was premised upon the delay in treatment in the physical therapy department and not rooted in some malicious desire to deprive Plaintiff of needed medical treatment. ECF No. 24 at 9-10.
In response, Plaintiff argues that Defendant DiSalvo, Armel, Newman and Burrie are supervisors. ECF No. 37 at 14. He further argues that Defendant DiSalvo investigated his grievance and learned of the cancellation of his physical therapy appointment, and that he, along with Defendants Newman and Burrie, established a policy in the RHU that if medical staff calls for an inmate via phone rather than email, they are not to receive medical treatment. ECF No. 37 at 14. Plaintiff accuses Defendants of establishing the email policy so that they can have more time to do nothing. Id. at 15. Plaintiff submits that each Defendant was personally involved when they established this policy. Id. at 16.
The Court finds that the Complaint, as well as the documents attached to Plaintiff's brief in opposition, fail to allege sufficient facts to plausibly show any personal involvement by Defendants DiSalvo, Armel, Newman, and Burrie in a constitutional violation-deliberate indifference to his serious medical needs. Usually, a supervisory defendant's participation in the grievance process is insufficient to confer knowledge of, and acquiescence to, a constitutional violation. Mearin, 951 F.Supp.2d at 782; see also Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D.Pa. Sept. 12, 2017)(“the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional violation.”); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D.Pa. 2010)(“ If 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, there is no personal involvement on the part of that official.”)(citing Rode, 845 F.2d at 1208). However, where a plaintiff alleges an ongoing constitutional violation and that he made the supervisory defendants aware of the constitutional violation through the filing of a grievance, and the supervisory defendants were confronted with a situation that can be remedied directly, such allegations are sufficient to allege personal involvement by the supervisory defendants. Gomez v. Dimonte, Civ. No. 22-5528, 2023 WL 5526807, at *3 (D.N.J. Aug. 28, 2023)(citing Whitehead v. Rozum, No. 11-102, 2012 WL 4378193, at *2 (W.D.Pa. Aug. 7, 2012), report and recommendation adopted by 2012 WL 4370929 (W.D.Pa. Sept. 24, 2012)(other citations omitted).
Here Plaintiff argues that Defendants DiSalvo and Armel were made aware of the alleged constitutional violation through his grievance and appeal and did nothing to remedy the situation, thereby acquiescing in the alleged constitutional violation. However, Plaintiff's own factual allegations and the grievance responses belie his argument. First, the Complaint does not allege an ongoing constitutional violation-the Complaint references only three missed appointments. Second, Defendant DiSalvo investigated Plaintiff's grievance and determined that the cancellation of the appointment was due to a communication breakdown when new medical staff called instead of emailing the RHU to bring Plaintiff to his appointment. Defendant DiSalvo took corrective action to make sure the communication breakdown would not occur in the future by reiterating that requests for RHU inmates to be brought to medical appointments must be done by email. Defendant Armel concurred and noted that Plaintiff's appointment had been rescheduled for September 13th. This conduct demonstrates that Defendants DiSalvo and Armel did not acquiesce in the denial of medical treatment to Plaintiff but rather took corrective action to remedy the reason for the cancelled appointment.
Moreover, as discussed below, Plaintiff has not pled a plausible Eighth Amendment deliberate indifference claim. Thus, any personal involvement by Defendants could not have involved participation in the violation of Plaintiff's constitutional rights.
As to Defendant Newman, his awareness after the fact that Plaintiff was not taken to his August 16, 2022 does not amount to personal involvement in the alleged constitutional violation. Nor does Defendant Burrie's instruction to COs Lackey and Skrobach to return Plaintiff to the RHU upon learning that physical therapy was running behind schedule amount to personal involvement in the alleged constitutional violation.
Additionally, other than mere conclusory allegations, there is nothing in the Complaint or in the grievance responses that plausibly shows that the DOC had a policy, or that any of the Defendants established a policy, that if medical staff calls for an inmate in the RHU, the inmate is not to receive medical treatment. Rather, as Lt. DiSalvo explained in his grievance response, there was a communication breakdown due to the new medical staff calling rather than emailing the RHU about Plaintiff's appointment. From an administrative standpoint, Lt. DiSalvo agreed with CHCA Bright that medical staff should be emailing the RHU about inmate appointments so that management can make sure that the inmates are being taken to their appointments. ECF No. 37-1 at 2. Thus, Plaintiff has not plausibly shown that Defendant DiSalvo, Newman, or Burrie created a policy to deny inmates medical treatment.
In further support of his argument that Defendants were personally involved in establishing an unconstitutional policy in the RHU of denying medical treatment if medical staff calls for an inmate, Plaintiff points to a request to medical staff that he submitted asking “why is he continuously being denied medical treatment” and their response was “they have called for me for three months straight and don't know why I am not being brought down.” ECF No. 37 at 14 (citing Ex. B attached to Pl.'s Br. in Opp'n, ECF No. 37-2). However, the Inmate Request to Staff Member submitted on 9/13/22 does not ask why he has been continuously denied medical treatment but asks: “I am writing because I was scheduled for physical therapy on 9-13-22, can you please tell me why I wasn't seen.” ECF No. 37-2 at 2. In response, he was informed that “you have been on my monthly callouts for the past several months. no clue why you haven't been brought over.” Id. This inquiry refers only to the scheduled appointment on September 13, 2022. The inquiry and response do not show or suggest an unconstitutional policy let alone any personal involvement by Defendants DiSalvo, Newman, or Burrie.
Accordingly, the Court finds that Plaintiff has failed to plausibly show that Defendants DiSalvo, Armel, Newman, and Burrie were personally involved in a violation of Plaintiff's Eighth Amendment rights. As such, the Court recommends that Defendants' motion to dismiss be granted.
3. Eighth Amendment Deliberate Indifference Claim
In his Complaint, Plaintiff asserts that Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment when they prevented him from receiving physical therapy for the injuries he sustained when he fell out of his bunk bed. Defendants move to dismiss Plaintiff's deliberate indifference claim for failure to state a plausible claim due to the de minimis nature of the harm. In addition, they argue that Plaintiff has failed to allege sufficient facts to establish the subjective component of his Eighth Amendment claim-that they consciously disregarded his need for physical therapy and intentionally delayed his treatment based upon that awareness. Rather, Defendants submit that Plaintiff's allegations make clear that they consistently made efforts to coordinate and effectuate his treatment, but that those efforts were frustrated on two isolated occasions by factors out of their control.
In response, Plaintiff argues that although his initial physical therapy appointment on August 16, 2022 was rescheduled for September 13, 2022, he was not taken for physical therapy on September 13, 2022, which demonstrates Defendants deliberate indifference to his serious medical needs. ECF No. 37 at 21. He states that he submitted a Request to Staff Member directed to the medical staff inquiring as to why he was not seen for his scheduled physical therapy appointment on September 13, 2022. Id.; see also Pl.'s Ex. B to his Br. in Opp'n, ECF No. 37-2 at 2. The medical staff responded that he has been on their monthly callouts for the past several months but they had no clue why he hasn't been brought over. ECF No. 37-2 at 2. Plaintiff also contends that COs Lackey and Skrobach and Sargent Burrie were deliberately indifferent to his serious medical needs on September 20, 2022 when COs Lackey and Skrobach returned him to his cell because his physical therapist was running behind schedule upon the instruction of Sargent Burrie, and when COs Lackey and Skrobach had a duty and failed to intervene when Sargent Burrie ordered them to return Plaintiff back to the RHU. ECF No. 37 at 22-23.
Plaintiff does not list COs Lackey and Skrobach as Defendants nor does he refer to them as such in his Complaint, but rather he alleges that they were deliberately indifferent to his medical needs. Defendants submit that despite this assertion, neither the Complaint nor the docket reflects that either of those individuals is a Defendant in this action. ECF No. 24 at 3 n. 2. As such, Defendants do not specifically address Plaintiff's claim that COs Lackey and Skrobach were deliberately indifferent to his medical needs.
The Eighth Amendment's prohibition against cruel and unusual punishment requires prison officials to provide basic medical treatment to those whom it has incarcerated and that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). In order to establish an Eighth Amendment violation, a plaintiff must show (1) a serious medical need, and (2) that the defendant was deliberately indifferent to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)(citing Estelle, 429 U.S.at 106). To state a claim for deliberate indifference, a “plaintiff must make an ‘objective' showing that the deprivation was ‘sufficiently serious,' or that the result of defendant's denial was sufficiently serious. Additionally, the plaintiff must make a ‘subjective' showing that defendant acted with ‘a sufficiently culpable state of mind.'” Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). As to the subjective prong, the plaintiff “must make a subjective showing that defendant acted with a sufficiently culpable state of mind.” Pinchak, 294 F.3d at 499. The level of culpability is “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Thomas v. Dragovich, 142 Fed.Appx. 33, 36 (3d Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 836 (1994)). As the Supreme Court noted in Estelle: “[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain' or to be ‘repugnant to the conscience of mankind.'” 509 U.S. at 105. See also Rouse, 182 F.3d at 197 (“It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.'”). Rather, a prison official must “know of an excessive risk to an inmate's health or safety and affirmatively disregard it.” Innis v. Wilson, 334 Fed.Appx. 454, 456 (3d Cir. 2009) (citing Farmer, 511 U.S. at 835-38).
Here the Court finds that Plaintiff has not alleged sufficient facts to plausibly make an objective or subjective showing that Defendants were deliberately indifferent to his need for physical therapy. From an objective standpoint, neither the cancelling and rescheduling of two physical therapy appointments nor the result of the cancellation of these appointments was sufficiently serious. Other than a communication breakdown regarding the August 16thappointment which prevented Plaintiff from being taken to his scheduled appointment and the cancellation of the rescheduled appointment on September 13 without explanation, Plaintiff has not alleged that he has been denied physical therapy on any other occasion. Although he alleges that he was returned to his cell on September 20th when the physical therapist was running behind schedule, he does not allege that he did not receive physical therapy later that day or that he did not receive or was denied physical therapy on any other occasion. At best, the factual allegations show that the limited number of cancelled physical therapy appointments resulted in de minimis harm to Plaintiff.
As to the subjective component, the Complaint fails to allege sufficient facts to show that Sargent Burrie's decision to return him to his cell on September 20th amounted to a constitutional violation. Rather, Sargent Burrie's decision merely involved routine decision-making that occurs in the daily administration of a prison. To this end, “[p]rison officials have wide discretion in matters of prison operation and discipline, and these matters are not under the supervisory direction of federal courts.” Ray v. Brierley, 316 F.Supp. 1057, 1059 (W.D.Pa. 1970)(citing Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967), and Ford v. Bd. of Managers of New Jersey State Prison, 407 F.2d 937 (3d Cir. 1969)). Other than Plaintiff's conclusory allegation that Sargent Burrie was deliberately indifferent to his medical needs, there are no factual allegations to support such a finding. Plaintiff is simply disagreeing with an administrative determination that is within the discretion of Sargent Burrie to make.
Moreover, the factual allegations show that the cancellation of the first physical therapy appointment on August 16th was due to a communications breakdown, not to deliberate indifference on the part of any of the named Defendants. After investigating Plaintiff's grievance, Defendant DiSalvo determined the reason for the cancellation of the August 16thappointment and contacted the parties responsible and took corrective action. Likewise, Defendant Armel noted the corrective action taken by Defendant DiSalvo and that Plaintiff's appointment had been rescheduled for September 13th. Defendant Armel's grievance response was issued the same day as Plaintiff rescheduled appointment, so Defendant Armel would not have had knowledge that the September 13th appointment was cancelled at the time he issued his response.
Similarly, the factual allegations do not show that Defendant Newman was deliberately indifferent to Plaintiff's need for physical therapy. Rather, the factual allegations show that Defendant Newman actually looked into why Plaintiff's August 16th physical therapy was cancelled and contacted medical staff to reschedule his appointment.
Accordingly, the Court finds that Plaintiff has failed to plausibly show that the Defendants were deliberately indifferent to his serious medical needs. As such, the Court recommends that Defendants' motion to dismiss Plaintiff's Eighth Amendment deliberate indifference claim be granted.
Although not addressed by Defendants in their motion and brief, Plaintiff's allegation of deliberate indifference by COs Saxon, Lackey, and Skrobach fails to state a plausible Eighth Amendment claim. Plaintiff merely alleges that CO Saxon did not arrive for his scheduled August 16th physical therapy appointment and later informed him that the appointment had been rescheduled. As to COs Lackey and Skrobach, Plaintiff merely alleges that they escorted him to his physical therapy appointment on September 20th and later returned him to his cell upon instruction by Sargent Burrie due to the therapist running late. None of these allegations is sufficient to show deliberate indifference to a serious medical need. Therefore, it would be futile to allow Plaintiff to amend his Complaint to formally add COs Saxon, Lackey, and Skrobach as defendants. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
D. Conclusion
For the reasons set forth above, it is respectfully recommended that the Motion to Dismiss (ECF No. 23) filed by Defendants be granted and the Complaint dismissed with prejudice.
Because Plaintiff is unlikely to be able to state any facts to plead a plausible Eighth Amendment deliberate indifference to serious medical needs claim against Defendants DiSalvo, Armel, Newman, and Burrie, the Court finds that it would be futile to allow Plaintiff to amend his Complaint. Phillips, 515 F.3d at 245. Therefore, the Court recommends that the Complaint be dismissed with prejudice.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.