Opinion
3:22-cv-217-KAP
01-24-2024
JEFFREY SPENCER, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Defendants' motion to dismiss, ECF no. 21, should be granted, and the bulk of plaintiff's Amended Complaint dismissed without further leave to amend. His state law claims, if any, can be brought in state court.
Report
Plaintiff Spencer's initial complaint was filed in late November 2022. Once served, defendants filed the pending motion to dismiss in late July 2023. Spencer then sought to amend the complaint. (He also filed a motion, that I granted, for additional time to file a response to the motion to dismiss.) I denied the motion to amend the complaint because Spencer had not submitted a proposed amended complaint, but I told Spencer to submit his proposed amended complaint as an exhibit to the response to the motion to dismiss. Spencer did that. The Clerk has now docketed the Amended Complaint at ECF no. 35.
It is not necessary to return to the start with a motion to dismiss the amended complaint for two reasons. The amended complaint does not vary in any significant way from the original, so the defendants' motion to dismiss and Spencer's response are still pertinent. I also have an independent duty under the Prison Litigation Reform Act to screen out meritless claims, so with or without the motion to dismiss I must review the Amended Complaint under the same Rule 12(b)(6) standard that the defendants rely on in their motion to dismiss. (The PLRA's screening requirements for inmate plaintiffs proceeding in forma pauperis are set out at 28 U.S.C.§ 1915(e)(2).)
Spencer's Amended Complaint alleges that he is wheelchair-bound and therefore has a disability under the Americans with Disabilities Act and Rehabilitation Act. He alleges that just shy of two years before he filed the original complaint dated November 14, 2022, he was seated and using a handicapped shower stall at S.C.I. Houtzdale on November 18, 2020, when after about five minutes the seat collapsed, and he fell to the floor. Spencer believes he was concussed, but once he pulled himself together and communicated with the corrections officers, they took him to the prison medical unit. The original complaint alleged that defendants Della-Torre (a PA) and Naji (an MD and the medical director at Houtzdale) ordered x-rays of his back and neck that day, which were taken about a week later. Spencer was not given any analgesics that day, but he was at some point near in time to the accident given Tylenol pills for pain, and subsequently received an injection in his arm of some pain medication two to three weeks post-accident. Naji scheduled an MRI approximately 4-6 weeks post-accident and nine months postaccident Spencer had the MRI done. Spencer alleged that he had had one session of PT and had seen a doctor twice by the filing date of the original complaint.
In the Amended Complaint dated November 5, 2023, some of the allegations from the original complaint are omitted and replaced by allegations that Spencer has been seen intermittently in the two years after the accident by Della-Torre, and that after two years Spencer was “diagnosed by Defendant Naji.” What this means is not elaborated, but maybe it is intended to suggest a causal relationship with Naji's subsequent scheduling of an MRI that was conducted in September 2022, and then Naji's recommending that Spencer be seen by a neurologist. That consultation had not been performed as of September 2023. Naji allegedly has told Spencer that “budget constraints” affecting the Department of Corrections are delaying the consultation. Della Torre “continually” gave Spencer “different experimental pain meds” between the accident and September 2023, and then told Spencer that he would not receive any more pain medication until a neurologist had seen him. Spencer alleges that the various pain medications he did receive were ineffective and variously caused the side effects of internal bleeding, loss of equilibrium, migraines, nausea and vomiting, blurred vision, numbness in his fingers, and a burning sensation in his lower extremities. When he complained to Della Torre about these side effects, she changed his medication to a different one.
According to Spencer, Amended Complaint at Paragraphs 31-36, these facts give rise to claims under the Eighth Amendment, under the ADA and the Rehabilitation Act, and under state tort law. The ADA/RA claim is against defendants DOC, Wetzel (formerly a secretary of the DOC) and Little (formerly a secretary of the DOC) for denying a reasonable accommodation (asserted to be a “safe handicap accessible shower”) of Spencer's disability. Spencer's state law tort claim is asserted against the DOC for bodily injury caused him by the allegedly dangerous condition created by defective Commonwealth property, i.e., the shower seat. Defendants Wetzel, Little, Smith (formerly a warden at Houtzdale) and Klinefelter (the current warden) allegedly violated the Eighth Amendment by creating a budget that allotted insufficient money to medical care to prevent a delay in Spencer's post-accident health care, specifically a neurology consultation. Spencer adds that Correct Care Solutions, the private corporation under contract to provide health care to inmates in custody of the DOC, is similarly liable for any “budget constraints” that “exposed plaintiff to unnecessary pain and injury.” Spencer alleges Estelle v. Gamble, 429 U.S. 97, 106 (1976)(“In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”) claims against defendants Naji, Sechrengost (the health care administrator at Houtzdale) and Klinefelter for failing to ensure that Spencer saw a neurologist sooner, and against Della Torre for prescribing pain medication “knowing said meds was causing plaintiff unnecessary physical pain” and “knowing plaintiff needed to be seen by a neurologist.” Finally, Spencer claims that Correct Care Solutions is liable for its failure to supervise or train Naji, despite being “put on notice” of Naji's “propensity” to “engage in” negligence and deliberate indifference.
Different prisons have their signature litigation styles. Almost all inmate-drafted complaints employ the same laundry list style of defendants and claims that Spencer does, but it is a feature of complaints from Houtzdale to assert that because plaintiff has a disability, any injury to the plaintiff is per se a violation of the ADA and the Rehabilitation Act. This assertion is incorrect. In the hopes of weeding this out of complaints from Houtzdale, I turn to the ADA/RA claim first.
The substantive standards for claims under the ADA and the Rehabilitation Act are the same. Furgess v. Pennsylvania Department of Corrections, 933 F.3d 285, 288 (3d Cir. 2019). They provide (for the ADA, in Title II) for actions against public entities, but they do not create actions for the liability either of individual persons or of private corporations contracting to provide healthcare with those public entities. Matthews v. Pennsylvania Department of Corrections, 613 Fed.Appx. 163, 169-70 (3d Cir. 20i5)(dismissing all ADA and RA claims except against the DOC). See 42 U.S.C.§ 12132 (“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (emphasis added)); 42 U.S.C.§ 12131 (a “public entity” is (a) any State or local government; (b) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (c) the National Railroad Passenger Corporation, and any other commuter authority). Any ADA/RA claim against anyone except the DOC fails from the beginning.
As for any ADA/RA claim against the DOC, to successfully assert a claim under Title II of the ADA, Spencer must plausibly allege that:
(1) he is a qualified individual; (2) with a disability; (3) he was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity; (4) by reason of
his disability.See e.g., Bowers v. NCAA, 475 F.3d 524, 553 n.32 (3d Cir.2007). Spencer adequately alleges the first two elements but not the latter two. Spencer's attempt to morph his alleged accident into an ADA/RA claim, if that is what he intends by claiming that he was denied a reasonable accommodation, is unavailing because he does not allege any exclusion or denial. To the contrary, he alleges that he was being provided an accommodation, an accessible shower. The accidental collapse of the seat is not a denial of an accommodation. Additionally, any claim based on the collapse of the shower seat (or for that matter, any claim that Spencer might wish to base on allegedly inadequate medical treatment) fails at the fourth element: Spencer does not allege his shower seat was inadequate because of his disability, he alleges that his shower seat was inadequate despite his assumed need for it. No matter how liberally Spencer's allegations are construed there is not even a hint that anyone sabotaged his shower seat or delayed or denied him medical care “because of” a disability, much less that anyone in authority at the DOC was aware of it.
Leaving for another case discussion of the additional hurdle posed by the Eleventh Amendment, for Spencer to obtain compensatory damages from the DOC for a past ADA violation he must allege “intentional discrimination,” and that at the least requires Spencer to allege (1) knowledge by some agent of the DOC that his federally protected rights were substantially likely to be violated, and (2) failure to act despite that knowledge. See Haberle v. Troxell, 885 F.3d 170, 181 (3d Cir.2018). See also Matthews v. Pennsylvania Department of Corrections, 827 Fed.Appx. 184, 187-88 (3d Cir.2020). In other words, someone had to have known the shower seat would collapse five minutes into Spencer's shower and sent Spencer into the shower due to animus against him because he was wheelchair-bound. Spencer makes no such allegation, and if he did it would be implausible.
Spencer's state law claim is simple: the Commonwealth does not consent to be sued (or to have its employees and agents sued) for tort claims in federal court. 42 Pa.C.S. § 8521(b). Whether Spencer's claim can be construed as a real property claim for which the DOC might be liable is a problem for Pennsylvania's state courts, not this one.
As far as any Eighth Amendment Estelle v. Gamble claims that might be intended, they are only available against Della Torre and Naji. The DOC (which is also not subject to suit on this claim due to the Eleventh Amendment) and the non-medical DOC defendants (Wetzel, Little, etc.) are not liable for inadequate medical care because nonmedical prison personnel are generally justified in relying on the expertise and care of prison medical providers, and “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a nonmedical prison official ... will not be chargeable with ... deliberate indifference.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). When it comes to the nonmedical defendants, Spencer comes up short even of this hurdle for an even more fundamental reason: he does not plausibly allege the personal involvement of the secretaries of the DOC and the wardens at Houtzdale in his or any other health care decisions. Spencer recognizes this and the drafter of his complaint tries to keep these defendants in the mix with the assertion that these non-medical personnel are nonetheless liable because Spencer's treatment was allegedly delayed because of their formulation and approval of an “inadequate budget.” Assuming for a moment that formulating the DOC's budget and recommending approval of a budget would not be legislative acts for which defendants would be as absolutely immune as would any member of the Pennsylvania House and Senate, formulating an inadequate budget for health care does not suffice to state a claim against the non-medical defendants because “inadequate” implies some knowledge by defendants that their budget decisions would at some point in the future proximately cause medical personnel to be deliberately indifferent to Spencer's serious medical needs as a result. It is certain that no defendant at any time can peer into the future that way, and it is implausible to the point of impossibility that the DOC's health care budget is so finely crafted that it can proximately cause decisions in individual cases. If there are allegations that can make this claim a nonconclusory one, Spencer has not made them.
In analyzing Spencer's Amended Complaint claims against Della Torre and Naji under the Eighth Amendment, Spencer must allege “deliberate indifference,” that is, that these defendants recklessly disregarded a substantial risk of serious harm to him, and that harm actually occurred. Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009), states the applicable law:
To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm. Estelle v. Gamble, 429 U.S. 97, 104105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Deliberate indifference may be shown by “intentionally denying or delaying medical care.” Estelle, 429 U.S. at 104, 97 S.Ct. 285. “The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health,' ” Farmer, 511 U.S. at 843, 114 S.Ct. 1970 (quoting Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Under a recklessness standard, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk.” Farmer, 511 U.S. at 844, 114 S.Ct. 1970.
Spencer offers allegations that plausibly show a history of unremitting complaints about his health care, but it is blackletter law that knowledge of a complaint is not knowledge that the complaint is valid. Spencer fails to allege one episode of injury post-accident where he was turned away from the medical department. Spencer also fails to allege any plausible risk of damage to his future health. Spencer allegedly sustained a single fall to the floor in 2020 that produced no signs or symptoms alleged by Spencer that would have alerted Della Torre, Naji, or anyone else to a need for more treatment on the day of the fall than Spencer received. Spencer's complaints about the next two years allege no new signs or symptoms from the fall (although he does allege various pain medications caused various side effects and that his pain medications were changed when he brought those to Della Torre's attention.) Spencer's allegations amount to the charge that although he has been seen repeatedly in-house, he has not yet had a consultation with a neurologist. But it is worth noting that a neurology consult is an attempt to discern whether some treatment is necessary, not treatment in itself. Estelle v. Gamble made the same distinction, specifically holding that the decision to order or not order diagnostic tools such as an x-ray was a matter for medical judgment, and a “medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court.” Id. 429 U.S. at 107. Under Estelle v. Gamble, Spencer would have no claim if Naji had flatly refused to refer him to a neurologist. A claim does not spring to life because Naji allegedly believes a consultation is advised but does not consider it the emergency that Spencer does, even if Naji truly believes that budget constraints are delaying things. Spencer quite clearly believes that he should have priority in treatment. He alleges nothing that allows the inference that Naji thinks so too, much less that Naji could not order emergency treatment if he did think so.
Whether in prison or out, specialist consultations are not always immediately available, and Spencer offers nothing that allows the inference he has been harmed or that Della Torre, Naji, or anyone else, ever believed or now believes that Spencer's wait for a neurology consultation risks injury to Spencer. The Eighth Amendment imposes a duty on prison personnel to provide medical care. It does not codify the proposition that because it is possible that more can be done, doing anything less is a constitutional violation. (In this vein, Spencer obviously believes that having had only one session of PT and two doctor visits is inadequate. He alleges nothing that allows the inference that this is so or that any defendant believes this is so.) The liberality with which pro se complaints are viewed does not dispense Spencer from plausibly alleging facts that some harm has been caused by any delay, and also alleging in a nonconclusory way that defendants subjectively believe that delay is causing Spencer a serious risk of harm.
Two things must be said about Spencer's simultaneous claims against Della Torre that Della Torre's prescription of pain medication injured him, see Paragraph 24, and that Della Torre's stopping of it injures him, see Paragraph 29. First, the reasons are so obvious why a medical care provider would switch pain medication (after a trial period) upon Spencer's alleged complaints that the medication was ineffective, and why a PA would stop all pain medication prescribed to Spencer pending Spencer's evaluation by a specialist, that Spencer has not only not stated a claim against Della Torre, he has conclusively alleged why she is not deliberately indifferent.
Second, due to the Civil Rights of Institutionalized Persons Act's requirement at 42 U.S.C.§ 1997e(a) that administrative remedies be exhausted before a complaint is filed, it is legally certain that Spencer cannot assert a claim over events in September 2023 in a civil case that began with a complaint filed in November 2022. As Ross v. Blake, 578 U.S. 632, 638 (2016) held, an inmate “shall” bring “no action” (that is, “may not bring any action”) absent exhaustion of available administrative remedies. That does not mean that as soon as one claim has been exhausted, an inmate is free to ignore exhaustion for all other claims and have the court assume the role of ombudsman. Spencer is limited in this action to claims that arose before November 2022. He has stated none within this court's jurisdiction, and there is no reason to consider his state law claim under the court's supplemental jurisdiction.
As for the invalid respondeat superior claim against Correct Care Solutions, Fed.R.Civ.P. 8(a) requires the complaint to be a short and plain statement containing sufficient factual matter that if accepted as true would state a legal claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the Supreme Court's words, plaintiff must allege enough facts in the complaint to “nudge” a claim “across the line from conceivable to plausible.” Id., 556 U.S. at 683, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff's conclusory assertions do not allow the inference that any claim exists against Naji, much less that some training or lack thereof by Correct Care Solutions is responsible for his decisionmaking.
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.” Amendment of the complaint for a third time is certainly inequitable and, as discussed herein, futile. It is a staple of prison litigation to sue as many persons downstream from an event as possible on as many legal theories as possible, but the Court of Appeals also directs that with two exceptions “federal courts treat pro se litigants the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Those exceptions are liberal construction of pleadings - which does not allow pro se plaintiffs to rewrite the law or excuse them from alleging sufficient facts in their complaints - id., 704 F.3d at 245, and giving notice to pro se inmate litigants when a motion to dismiss will be treated as a summary judgment motion. Id.
Liberal construction of pro se pleadings means paying attention to what the litigant has alleged and using common sense, not imagining that unpleaded facts exist that will come to light with unlimited do-overs. As the Supreme Court directed in Ashcroft v. Iqbal, supra, 556 U.S. at 679:
Determining whether a complaint states a plausible claim for relief will [] be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [] But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).(cleaned up). Common sense says that Spencer was injured in an accident and that that injury should be the subject of a state court tort action, if one is available. The balance of the complaint is meritless attempt to inflate Spencer's dissatisfaction with the pace of his neurology consultation into a federal case.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to my recommendation. 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).