Opinion
Civil Action No. 3:17-cv-00070
04-20-2020
HENRY UNSELD WASHINGTON, Plaintiff, v. JONATHAN BARNHART, DR. ROBINSON, RICHARD IRWIN, MARK MAYLE, DR. HUTCHINSON, J. STRAMAT, ANGELA JOHNSTON, ROXANNE PLAYSO, BRIAN P. HYDE, TESA ADELEKAN, B. COSTEA, LT. CINKO, J. R. MCDONNELL, M. J. FOSTER, K. TURNER, WILLIAM BOWERS, PHILLIP MAUST, HEIDI SROKA, ROBERT SNYDER, R. PESCHOCK, J. GIRONE, and ELLIS KAUFFMAN, Defendants.
Judge Kim R. Gibson
ECF No. 131, ECF No. 165
REPORT AND RECOMMENDATION ON DEFENDANTS MAYLE AND IRWIN'S MOTIONS TO DISMISS
I. RECOMMENDATION
For the reasons stated herein, it is respectfully recommended that the Motions to Dismiss Plaintiff's Amended Complaint, ECF No. 63, filed by Defendants Mark Mayle, M.D. ("Mayle") and Richard Irwin, M.D. ("Irwin") (collectively the "Additional Medical Defendants") at ECF No. 165 and ECF No. 131, respectively, be granted in part and denied in part. More specifically, it is recommended that the Motions be (1) granted with prejudice as they relate to Plaintiff's First Amendment free exercise of religion claim, and (2) denied as they relate to all other claims.
II. FACTUAL AND PROCEDURAL HISTORY; COMPLAINT
A. Factual History
As set forth in this Court's August 1, 2019 Report and Recommendation on the Medical Defendants' Motion to Dismiss, ECF No. 96 (adopted at ECF No. 112) : Plaintiff Henry Unseld Washington ("Plaintiff" or "Washington"), an inmate in the custody of the Pennsylvania Department of Corrections ("DOC") and currently confined at the State Correctional Institution at Somerset ("SCI Somerset"), is an African American male in his mid-seventies. Plaintiff commenced the present pro se prisoner civil rights action against (1) a wide array of medical, corrections, and various other SCI Somerset staff, including Defendant Irwin, an SCI-Somerset optometrist, and (2) Defendant Mayle, an ophthalmologist at a tertiary care facility (Southwestern Regional Eye Association) who performed right-eye laser surgery on Plaintiff in May 2015. ECF No. 63 at 1. Plaintiff's Amended Complaint alleges scores of seemingly separate events that occurring over a span of approximately three years while Plaintiff was incarcerated at SCI Somerset. See, e.g., ECF No. 63 at ¶¶ 114, 221. See also Defendant Mayle's Brief in Support of Motion to Dismiss ("Mayle Brief in Support"), ECF No. 166; Defendant Irwin's Brief in Support of Motion to Dismiss ("Irwin Brief in Support"), ECF No. 132. Plaintiff's reports of these alleged events are striking in their factual similarity - indeed, in their increasing similarity across Plaintiff's many years of litigation - to the reported circumstances held to give rise to maintainable claims of Constitutional violation in the numerous cases cited with parentheticals in Plaintiff's copious pleadings. See supra n. 1; ECF No. 63 at ¶¶ 170, 171.
Plaintiff has been in the custody of the DOC for several decades, and is quite familiar with filing suit to address the myriad forms of mistreatment that he has allegedly suffered in the many correctional institutions in which he has been incarcerated. The following Opinion of the Third Circuit Court of Appeals is illustrative:
[Washington's] long history in the Pennsylvania prison system has been characterized by repeated transfers, long stints in restricted housing and/or solitary confinement, and, he claims, sustained abuse. According to Washington, he was incarcerated in SCI Dallas . . . where he was repeatedly assaulted by staff members . . . . Following a transfer to SCI Greene, a "major assault" by prison staff left him with significant medical disabilities. This pattern of mistreatment, he avers, continued through transfers to SCI Mahanoy and SCI Retreat, where guards and prison staff - familiar with his "rabble rousing" tendencies, and angry about the grievances he filed regarding their friends in other institutions - continued to abuse him.Washington v. Grace, 445 F. App'x 611, 613 (3d Cir. 2011). The present action is simply "yet another lawsuit in the ongoing series of litigation commenced by Washington against officials at the various state institutions where he is incarcerated." Washington v. Grace, No. 8-01283, 2010 WL 4919074 (M.D. Pa., Nov. 29, 2010).
B. Procedural History
Plaintiff initiated the instant pro se prisoner civil rights action, per 18 U.S.C. § 1983, with the filing of a Motion for Leave to Proceed in forma pauperis on April 28, 2017, which was granted on May 18, 2017. ECF Nos. 1, 10. Plaintiff's Complaint, together with five supplements thereto, was docketed on May 18, 2017. ECF No. 11. Plaintiff was permitted to file an Amended Complaint, which was docketed on December 7, 2018. ECF No. 63.
C. Complaint
In his fifty-page, four-hundred-paragraph Amended Complaint, Plaintiff alleges that all Medical Defendants, including Mayle and Irwin, violated his rights under the Eighth, Fourteenth, and First Amendments, as well as a federal statute. In particular, Plaintiff alleges violations of his right to (a) freedom from cruel and unusual punishment under the Eight Amendment, (b) equal protection under the Fourteenth Amendment, (c) free exercise of religion under the First Amendment, and (d) freedom from retaliation under the First Amendment.
Plaintiff appeared to allege violations of his rights under the Religious Land Use and Inmate Protection Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq. See ECF No. 63 at ¶¶ 277, 281. See also ECF No. 96 at 12 (noting that Plaintiff makes no factual allegations that support or suggest any ability to support a claim against any of the Medical Defendants).
III. STANDARD OF REVIEW
The United States Court of Appeals for the Third Circuit 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, 578 F.3d at 213 (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).
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."). 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, 1202 (10th Cir. 1996).
The United States Court of Appeals for the Third Circuit has ruled that if a District Court is dismissing a claim pursuant to Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
IV. ANALYSIS
For a fuller explication of each of the below claims, the parties are directed to this Court's Prior Report and Recommendation, ECF No. 96 (adopted at ECF No. 112).
A. Eighth Amendment Denial of Medical Care
Under the Eighth Amendment, prison officials are prohibited from exhibiting deliberate indifference to serious medical needs of inmates. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To set forth a cognizable claim for deliberate indifference to a serious medical need, a plaintiff must allege (1) a serious medical need and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Id. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Moreover, "[t]his is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05.
The essence of Plaintiff's Eighth Amendment denial of medical care claims is that Plaintiff has, for years, been experiencing a lengthy list of "serious health problems" and that Medical Defendants, including Mayle and Irwin, have refused to provide him with adequate medical care. ECF No. 63 at ¶¶ 30-31. Plaintiff further asserts that all Medical Defendants refused to provide constitutionally adequate medical care to Plaintiff to penalize him for filing complaints, in various forms, against Medical Defendants, personally, as well as other medical professionals. ECF No. 63 at ¶ 34. See also infra Section IV (retaliation claim).
In many respects, Plaintiff's Eighth Amendment claims mirror those he has raised against medical staff at other correctional institutions in prior actions. See, e.g., Washington v. Gilmore, No. 15-01031, ECF No. 96 at 20-21.
With respect to the first requirement, a medical need is "serious," for Eighth Amendment purposes, 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 Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)). Whether a medical need is of the serious nature contemplated by the Eighth Amendment "may also be determined by reference to the effect of denying the particular treatment." Lanzaro, 834 F.2d at 347. Thus, a medical need is similarly "serious" if "unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care," or if "denial or delay causes an inmate to suffer a life-long handicap or permanent loss." Id. (citations omitted).
As part of the broad allegations made against all Medical Defendants, and canvased in the Prior Report and Recommendation, ECF No. 96, Plaintiff alleges his "several serious health problems" that have been "ongoing for years" include "near blind[ness] in [his] right eye" ECF No. 63 at ¶ 30. He further alleges that he has suffered severe pain, infected discharge, and progressive vision loss, during a period of delayed, negligent, inadequate, and/or incomplete ophthalmic treatment, including necessary surgery. Assuming the truth of these allegations for purposes of the Motions, Plaintiff has sufficiently alleged a "serious" medical need.
With respect to the second requirement, a prison official acts with "deliberate indifference" "if he knows that [an] inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). More specifically, a prison official may manifest "deliberate indifference" by "intentionally denying or delaying access to medical care." Estelle, 429 U.S. at 104-05. In addition, "deliberate indifference" is evident when "prison authorities prevent an inmate from receiving recommended treatment for serious medical needs or deny access to a physician capable of evaluating the need for such treatment." Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979).
Plaintiff alleges that the Additional Medical Defendants intentionally refused to provide him with medical care while he was experiencing pain, excreting blood and pus, suffering vision loss, and requesting assistance. See, e.g., ECF No. 63 at ¶ 76. More specifically, Plaintiff has alleged Defendant Mayle performed right-eye laser surgery on him on May 15, 2015 (by implication of pro se Plaintiff's assertion of several days of bloody, infected discharge and repeated temporary vision loss, negligently) and failed to provide necessary subsequent surgery to the same eye. See ECF No. 63 at ¶¶ 7, 81-82, 114-15. Plaintiff has alleged that Defendant Irwin explicitly expressed disregard for Plaintiff's complete loss of sight in his right eye or discharges of blood and infection therefrom. Id. at ¶¶ 125, 134. See also id. at ¶¶ 136, 147, 160-61 (alleging Irwin "declared" Plaintiff's need for emergency care but then "disregarded the risk" and "recommended Plaintiff" for laser surgery but delayed, which "contributed probably to Plaintiff['s] eyesight getting worse"); ECF No. 170 at ¶6 (alleging Irwin delayed from October 27, 2015 to November 6, 2015 to act on Plaintiff's need for immediate care).
Defendant Mayle's assertion that claims of Plaintiff's May 18, 2017 Complaint are time barred by Pennsylvania's applicable two-year statute of limitations are meritless under well-established law.
Although Defendant Irwin correctly references Plaintiff's numerous allegations broadly attributing misconduct with regard to his medical treatment, including ophthalmologic care, to other Defendants as well as Irwin, such allegations do not negate those made against Irwin for purposes of a Rule 12(b)(6) motion to dismiss. See generally Irwin Brief in Support, ECF No. 131.
Thus, it is respectfully recommended that the Additional Medical Defendants' Motions to Dismiss Plaintiff's Amended Complaint be denied as related to Plaintiff's Eighth Amendment denial of medical care claim. In so recommending, the Court notes that arguments raised in Additional Defendants' briefing are more suited to a Motion for Summary Judgment. Cf. ECF No. 166 at 8-10 (discussing the evidence which Plaintiff will be required to establish to maintain a claim of deliberate indifference to a serious medical need under the Eighth Amendment).
B. Fourteenth Amendment Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides, in pertinent part, that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. AMEND. XIV, § 1. The Equal Protection Clause, however, "is not a command that all persons be treated alike but, rather, 'a direction that all persons similarly situated should be treated alike.'" Artway v. Att'y Gen., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Accordingly, to state a cognizable equal protection claim, a plaintiff "must allege that he is a member of a protected class, similarly situated to members of an unprotected class, and treated differently from the unprotected class." Pollack v. City of Phila., No. 06-04089, 2007 U.S. Dist. LEXIS 11624 at *4 (E.D. Pa. Feb. 16, 2007) (citations omitted). In addition, a plaintiff must allege that this differential treatment was intentional. See, e.g., McClesky v. Kemp, 481 U.S. 279, 292 (1987) ("[A plaintiff] who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination.") Finally, because Plaintiff alleges that he is an African American, which is considered a "suspect class," strict scrutiny applies to his Fourteenth Amendment equal protection claim. See, e.g., Plyler v. Doe, 457 U.S. 202, 217 (1982). Thus, Plaintiff need only allege that the differential treatment was "not precisely tailored to serve a compelling governmental interest." Id.
The essence of Plaintiff's broad equal protection claim is that all Medical Defendants - including Mayle and Irwin - intentionally, and for no rational reason, refused to provide Plaintiff, who describes himself as a "dark skin[ned]" African American, with medical care, but provided medical care to all non-African American inmates. ECF No. 63 at ¶¶ 44-48, 223-226. Plaintiff alleges that Defendant Irwin "provided all other inmates, especially white inmates, medical care, [but] targeted Plaintiff to deny medical based on" reasons including race discrimination. Id. at ¶236. Plaintiff also alleges that, following Plaintiff's transfer between SCI facilities, Defendant Mayle denied him medical care and, specifically, did not complete necessary surgery on Plaintiff's right eye, although non-African American inmates who were transferred were returned to Defendant Mayle for completion of their surgeries. ECF No. 63 at ¶ 400; see also ECF No. 76. And Plaintiff specifically alleges that Mayle was motivated by racial animus. ECF No. 63 at ¶ 400; see also ECF No. 171 at 3.
Plaintiff, more specifically, alleges that Medical Defendants provided medical care to "all other inmates, especially white inmates." See, e.g., ECF No. 63 at ¶ 228. As Plaintiff reiterates claims of racial bias throughout his Amended Complaint, the Court understands this language to mean "all other [non-African American] inmates, especially white inmates."
Taking these allegations as true, and under the standards applicable to the present Motions, Plaintiff has alleged that (1) he is an African American (i.e., he is a member of a protected class); (2) Additional Medical Defendants refused to provide him with medical care but provided non-African American inmates with medical care (i.e., Additional Medical Defendants treated him differently from similarly-situated individuals); (3) Additional Medical Defendants treated him differently because he is African American (i.e., they engaged in intentional discrimination); and (4) there was no rational reason for the differential treatment (and, thus, the classification clearly is not precisely tailored to serve a compelling government interest).
Thus, it is respectfully recommended that the Additional Medical Defendants' Motions to Dismiss Plaintiff's Amended Complaint be denied as they relate to Plaintiff's Fourteenth Amendment equal protection claim.
As previously noted in ECF No. 96, although Plaintiff also alleged that he is a member of a protected class based on his religious beliefs as well as his age, Plaintiff's Amended Complaint contains absolutely no factual allegations supporting an equal protection claim on the basis of either religion or age. The Court has accordingly concluded of record that Plaintiff alleges a racial classification.
C. First Amendment Free Exercise of Religion
The First Amendment provides, in relevant part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. CONST. AMEND. I. Because "[t]here is no iron curtain drawn between the Constitution and the prisoners of this country," Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974), prisoners, like all persons, possess a right to practice their religion under the First Amendment. Bell v. Wolfish, 441 U.S. 520, 544 (1979). This constitutional right, although not entirely extinguished, is, however, lessened in the prison context, where legitimate penological interests must be considered when assessing the constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78, 89 (1987). Consequently, in order to establish a free exercise of religion claim, a plaintiff "must show that the [defendants] burdened the practice of his religion by preventing him from engaging in conduct mandated by his faith without any justification reasonably related to legitimate penological interests." Heleva v. Kramer, No. 08-03408, 2009 WL 1426759 (3d Cir. 2009) (citing Turner, 482 U.S. at 89).
As fully set forth in this Court's Prior Report and Recommendation, in the portion of his Amended Complaint asserting violations of his First Amendment right to free exercise of religion, Plaintiff includes two conclusory paragraphs that recite the names of all Defendants, including Additional Medical Defendants. ECF No. 63 at ¶¶ 281, 324. However, Plaintiff identifies neither how nor when any of the Medical Defendants prevented or substantially burdened his religious practices. Indeed, Plaintiff makes not a single specific factual allegation to support a First Amendment free exercise of religion claim against any of the Medical Defendants.
Plaintiff alleges that he is "the founder and leader of the Children of the Sun Church[,] who[se] beliefs dictate[] a daily reading of four different spiritually inspired Afro[c]entri[c] books or literature." ECF No. 63 at ¶ 283.
Plaintiff clarified in his prior Response in Opposition to Motion to Dismiss of Medical Defendants that, "[N]o claim is alleged against Medical Defendants for denying Plaintiff['s] religious rights." ECF No. 87 at ¶ 12. So too here, Plaintiff has clarified in response that he alleges no claim against Defendants Mayle or Irwin "for denial of [his] freedom of religion." ECF No. 171 at 7; ECF No. 170 at 8.
Thus, it is respectfully recommended that the Additional Medical Defendants' Motions to Dismiss Plaintiff's Amended Complaint, as related to Plaintiff's First Amendment free exercise of religion claims, be granted with prejudice.
D. First Amendment Retaliation
As this Court has noted, Plaintiff's extensive claims of denial of his right to freedom of speech are, in essence, claims of retaliation in violation of the First Amendment. It is well recognized that, under the First Amendment, "[r]etaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution." White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990). In order to set forth a cognizable claim for First Amendment retaliation, a plaintiff must allege that "(1) he engaged in a constitutionally protected activity; (2) he suffered, at the hands of a state actor, adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the protected activity was a substantial or motivating factor in the state actor's decision to take adverse action." Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). Further, to establish the critical element of causation, a plaintiff usually must allege "either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link." Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997)).
With respect to his retaliation claim, Plaintiff contends that all Medical Defendants engaged in all of the aforementioned alleged wrongdoing (i.e., violated his rights under the Eighth and Fourteenth Amendments) in order "to penalize Plaintiff for suing [medical professionals employed at other state correctional institutions], filing grievances against [Medical Defendants] pe[r]sonally, and [for] continuous[ly] communicat[ing] with authorities." ECF No. 63 at ¶ 34.
As to the first requirement, it is well settled that not only the filing of a lawsuit, but also the filing of a prison grievance, constitutes protected activity under the First Amendment. Fantone, 780 F.3d at 191. Plaintiff alleges that he engaged in both of these types of protected activity. See, e.g., ECF No. 63 at ¶ 84.
As to the second requirement, Plaintiff alleges that Medical Defendants, inter alia, refused to provide him with adequate, and often with any, medical care. See, e.g., ECF No. 63 at ¶¶ 30-33. Taking these allegations as true, Plaintiff has successfully alleged that he suffered adverse action by prison officials "sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2005) (citing Rauser, 241 F.3d at 333); Cortlessa v. Cnty. of Chester, No. 04-01039, 2005 WL 2789178 at *7 (E.D. Pa. Oct. 26, 2005) (denying motion to dismiss retaliation claim where plaintiff alleged that he was denied adequate medical assistance by prison officials in retaliation for attempting to file grievances) (citing Hughes v. Smith, No. 03-05035, 2005 WL 435226 at *4 (E.D. Pa. Feb. 24, 2005)).
As to the third requirement, Plaintiff broadly alleges that all Medical Defendants explicitly declared and explained their refusal to provide medical care to Plaintiff as being in retaliation for his participation in this constitutionally protected activity and each of them "followed up their threats with action several times over". See, e.g., ECF No. 63 at ¶¶ 66, 366, 368. Plaintiff specifically alleges that Defendant Mayle's repeated medical misconduct was motivated by Plaintiff's grievances and litigation against defendants who were Mayle's friends. Cf. ECF No. 171 at 4-5; id. at 6-7 (asserting that Mayle denied care in retaliation for grievances/litigation against Mayle's extended family of SCI professionals). See also id. at 5 (complaint alleges that Mayle denied Plaintiff medical care for reasons of race, religion and retaliation). In addition to including Irwin in his broad allegations of retaliatory motive, Plaintiff specifically alleges that while telling Plaintiff to accept going blind in his right eye, Irwin angrily admonished Plaintiff about his complaints to authorities, and that Irwin refused him medical care in retaliation for communications with authorities. ECF No. 63 at ¶¶ 196 (Irwin denied Plaintiff surgery to "teach him a lesson"), 203-04, 235-36.
Plaintiff also alleges that his reports of Constitutional violations "led to [Medical] Defendants [committing] further acts of deliberate indifference." ECF No. 63 at ¶ 60. Assuming the truth of these allegations of reiterated retaliation for Plaintiff's participation in constitutionally protected activity, Plaintiff has alleged the requisite causation.
Thus, under the presently applicable standards, it is respectfully recommended that the Additional Medical Defendants' Motions to Dismiss Plaintiff's Amended Complaint be denied as related to Plaintiff's First Amendment retaliation claim.
E. Other Asserted Grounds for Dismissal
Defendant Mayle's assertion of entitlement to dismissal under Fed. R. Civ. Proc. 8(a) owing to the length and less-than-clear character of Plaintiff's Amended Complaint cannot pass muster given Plaintiff's pro se status and the applicable standards of review to which this Court is bound. In response to protestations that it is "impossible . . . to distinguish - let alone defend against - the claims asserted", ECF No. 166 at 5, the Court notes that it is demonstrably possible, albeit unfortunately necessary, to parse through Plaintiff's claims. See ECF No. 96.
As reflected above, Plaintiff's broad allegations relating Constitutional rights violations alleged against Additional Medical Defendants Mayle and Irwin to violations alleged against all Defendants are sufficient under the applicable standards and at this procedural juncture. Accordingly, they are not now subject to dismissal under Fed. R. Civ. Proc. 20(a) as arising "out of completely different" occurrences or series of occurrences. Cf. ECF No. 166 at 6.
In response to this Court's October, 2019 guidance as to the requirement of a Certificate of Merit with regard to any negligence claim, see Minute Entry at ECF No. 114, Plaintiff filed Certificates of Merit at ECF Nos. 128, 144, 151 and 152. Despite attesting to an intended negligence claim against Defendant Mayle, and despite this Court's direction six months ago, Plaintiff has yet to file a Certificate of Merit as to a negligence claim against Defendant Mayle. In consideration of Plaintiff's pro se status, it is therefore recommended that Defendant Mayle's request for dismissal on this ground be denied at this time and that Plaintiff be given a final additional thirty (30) days - from entry of the Order on Mayle's Motion to Dismiss - to file the Certificate of Merit required by Pa. R. Civ. Proc. 1042.3. Cf. ECF No. 166 at 12-13.
V. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Additional Medical Defendants' Motions to Dismiss Plaintiff's Amended Complaint, filed by Defendants Mayle and Irwin at ECF No. 165 and ECF No. 131, respectively, be (1) granted with prejudice as they relate to Plaintiff's First Amendment free exercise of religion claim, and (2) denied as they relate to all other claims. It is further recommended that Plaintiff be given a final additional thirty (30) days - from entry of the Order on Mayle's Motion to Dismiss - to file the Certificate of Merit required by Pa. R. Civ. Proc. 1042.3.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights. Dated: April 20, 2020
BY THE COURT:
/s/_________
LISA PUPO LENIHAN
United States Magistrate Judge cc: Henry Unseld Washington
AM-3086
S.C.I. Somerset
1600 Walters Mill Rd
Somerset, PA 15510
Via First Class U.S. Mail
Counsel for Defendants
Via Electronic Mail