Kirk v. Wyoming County Correctional Facility et al

Filing 26

MEMORANDUM AND ORDER: The mtns to dismiss 16 & 17 are GRANTED in part and DENIED in part as follows:1) The mtn to dismiss filed by Dft Dr. Russell 17 is DENIED.2) The mtn to dismiss 16 as to Dft Wyoming County is GRANTED.3) The mtn to dismiss 16 as to Dft Lieutenant Howell is GRANTED, and Dft Lieutenant Howell is dismissed as a party in this action.4) The mtn to dismiss 16 is GRANTED as to Defendant Warden Ameigh for Pltfs claim of deliberate indifference to his serious medical needs .4) The mtn to dismiss 16 is DENIED as to Dft Pendleton for Pltfs claim of deliberate indifference to his serious medical needs.5) Pltfs amended complaint shall be filed in accordance with theinstructions set forth in the accompanying memorandum no later than 01/03/12.Signed by Honorable Sylvia H. Rambo on 12/22/11. (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLARENCE J. KIRK,
Plaintiff
v.
WYOMING COUNTY
CORRECTIONAL FACILITY, et al.,
Defendants

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CIVIL NO. 1:CV-11-00665
(Judge Rambo)

MEMORANDUM
Plaintiff Clarence J. Kirk (“Kirk”), an inmate currently confined at the State
Correctional Institution in Pittsburgh, Pennsylvania, initiated this civil rights action
with a complaint filed pursuant to the provisions of 42 U.S.C. § 1983 on April 11,
2011, as amended June 13, 2011. (Doc. 13.) Named as Defendants are several prison
officials and medical care providers at Kirk’s former place of confinement, the
Wyoming County Correctional Facility (“WCCF”) in Tunkhannock, Pennsylvania.1
In his amended complaint, Kirk alleges that Defendants were deliberately indifferent
to his serious medical needs with respect to an injury he sustained in April 2009. He
also alleges an access to the courts claim and seeks to hold Defendant Wyoming
County liable for his injuries.

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Named as Defendants are Gary D. Russell, M.D., as well as Wyoming County, Warden
Ameigh, Lieutenant Howell, and Nurse Penalton (hereinafter properly spelled “Pendleton”)
(“WCCF Defendants”).

Presently before the court are two motions to dismiss the amended complaint,
filed by Defendant Dr. Russell and WCCF Defendants. (Docs. 16 & 17.) For the
reasons set forth below, the motions to dismiss will be granted in part and denied in
part, and Kirk will be permitted to amend his complaint.

I.

Background
A.

Facts

In the amended complaint, Kirk provides the following background with respect
to his claims. The court notes that for purposes of disposition of the instant motions to
dismiss, the factual allegations asserted in the amended complaint will be accepted as
true and viewed in a light most favorable to Kirk.
On April 19, 2009, while proceeding from the second-tier level to the lower
level day room at WCCF, Kirk tripped on a metal strip protruding on the steps. (Doc.
13 at 2.) He fell down approximately eight (8) to ten (10) steps and landed on his left
shoulder and middle back, and twisted his ankle. (Id.) The second shift sergeant, a
Sergeant Smith, gave Kirk an ice pack for his ankle and told him to submit a sick call
request, if necessary. (Id.) Sometime thereafter, Kirk submitted a sick call slip,
requesting to be seen immediately. (Id.)

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After several days, during which Kirk experienced “intense suffering,” on April
23, 2009, Nurse Pendleton called Kirk to the medical department. (Id.) Despite his
pain, Nurse Pendleton gave Kirk only an ace bandage and a pair of velcro-strip
sandals, and instructed him to continue applying ice packs. (Id.) Subsequently, Kirk
wrote out several request slips addressed to Warden Ameigh and Lieutenant Howell,
requesting x-rays. (Id.) As stated by Kirk, “eventually” Dr. Russell examined him
and mistakenly ordered x-rays of his right shoulder rather than his left. (Id. at 2-3.)
When Kirk asked Dr. Russell to examine and take an x-ray of his ankle, Dr. Russell
responded, “We’re not talking about that now.” (Id. at 3.) Dr. Russell then asked
Kirk if he believed in God, and when Kirk responded that he did, Dr. Russell stated,
“Pray for a healing!” (Id.)
Thereafter, Kirk continued to submit sick call requests, but they were ignored.
(Id.) However, on August 12, 2009, Kirk was transported to Geisinger Medical
Center for care. (Id.) Kirk alleges that he continues to suffer from severe shoulder,
ankle, and back injuries. (Id.)
In addition to these allegations, Kirk avers an access to the courts claim against
Warden Ameigh. His claim, as fully stated, is as follows:
Count 1, as to Warden Ameigh, denial to “Access to Courts.” Via, the
Wyoming County Jail has no access to photo copy machines neither . . .
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does it have access to legal materials, carbon paper, pencils, pens, for
indigent inmates, no law library or materials for legal research.
Disrup[ted] incoming call to plaintiff’s potential attorney’s the least being
plaintiff should have been notified of Attorney(s) trying to contact him.
(Id.) Finally, Kirk claims that the lack of a policy, regulation, or directive as to
“proper functions of its County Prison” gave rise to the constitutional violations in
this case. (Id. at 4.)
B.

Procedural History

On April 11, 2011, Kirk filed his complaint. (Doc. 1.) On April 25, 2011, the
court issued an order directing service of the complaint. (Doc. 6.) Defendant Dr.
Russell filed a motion to dismiss on June 9, 2011. (Doc. 12.) However, prior to filing
a brief in support of that motion to dismiss, Kirk filed an amended complaint. (Doc.
13.) As a result, the court issued an order deeming moot Defendant Dr. Russell’s
motion to dismiss. (Doc. 15.) Thereafter, WCCF Defendants and Defendant Dr.
Russell filed motions to dismiss the amended complaint. (Docs. 16 & 17.) Briefs in
support of the motions were also filed. (Docs. 18 & 20.) Kirk filed separate briefs in
opposition to the motions on July 12 and 14, 2011, respectively. (Docs. 21 & 24.)
Neither set of Defendants have filed a reply brief. Thus, the motions are ripe for
disposition.

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II.

Standard of Review
Among other requirements, a sound complaint must set forth “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). This statement must “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Fair notice” in Rule
8(a)(2) “depends on the type of case – some complaints will require at least some
factual allegations to make out a showing that the pleader is entitled to relief.”
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quotation omitted).
“[A] situation may arise where, at some point, the factual detail in a complaint is so
undeveloped that it does not provide a defendant the type of notice of claim which is
contemplated by Rule 8.” Id. A plaintiff must provide “more than labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” to show
entitlement to relief. Twombly, 550 U.S. at 555; accord, e.g., Phillips, 515 F.3d at
231-32; Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (the court is not
“compelled to accept unsupported conclusions and unwarranted inferences or a legal
conclusion couched as a factual allegation.”) (quotations and citations omitted));
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). See also Ashcroft v. Iqbal, –

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U.S. –, 129 S. Ct. 1937, 1949 (2009) (recognizing that Rule 8 pleading standard “does
not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”) (quoting Twombly, 550 U.S. at 555).
A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted. In deciding a motion to dismiss
under Rule 12(b)(6), the court is required to accept as true all of the factual allegations
in the complaint, Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007), and
all reasonable inferences permitted by the factual allegations, Watson v. Abington
Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to
the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). Accord Phillips,
515 F.3d at 233. If the facts alleged are sufficient to “raise a right to relief above the
speculative level” such that the plaintiff’s claim is “plausible on its face,” a complaint
will survive a motion to dismiss. Twombly, 550 U.S. at 555, 570; Phillips, 515 F.3d at
234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Carroll,
495 F.3d 62, 66 (3d Cir. 2007). See Iqbal, 129 S. Ct. at 1949 (explaining a claim has
“facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged”).
Further, when a complaint contains well-pleaded factual allegations, “a court should

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assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. at 1950. However, a court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at
555). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements do not suffice.” Id. at 1949 (citing Twombly, 550 U.S. at 555).
“To decide a motion to dismiss, courts generally consider only the allegations
contained in the complaint, exhibits attached to the complaint and matters of public
record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007). The court may consider “undisputedly authentic document[s] that
a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the [attached] document[s].” Pension Benefit, 998 F.2d at 1196.
Additionally, “documents whose contents are alleged in the complaint and whose
authenticity no party questions, but which are not physically attached to the pleading,
may be considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d
Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v Higgins, 281 F.3d
383, 388 (3d Cir. 2002) (“Although a district court may not consider matters
extraneous to the pleadings, a document integral to or explicitly relied upon in the

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complaint may be considered without converting the motion to dismiss into one for
summary judgment.”) (internal quotation omitted). However, the court may not rely
on other parts of the record in making its decision. Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
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); Youse v.
Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994). Such a complaint “must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson, 127 S.
Ct. at 2200 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Finally, in the Third Circuit, a court must grant leave to amend before
dismissing a civil rights complaint that is merely deficient. See, e.g., Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston v.
Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116
(3d Cir. 2000). “Dismissal without leave to amend is justified only on the grounds of
bad faith, undue delay, prejudice, or futility.” Alston v. Parker, 363 F.3d 229, 236 (3d
Cir. 2004).

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III.

Discussion
A plaintiff, in order to state a viable § 1983 claim, must plead two essential

elements: 1) that the conduct complained of was committed by a person acting under
color of state law, and 2) that said conduct deprived the plaintiff of a right, privilege,
or immunity secured by the Constitution and laws of the United States. West v.
Atkins, 487 U.S. 42, 48 (1988). A defendant’s conduct must have a close causal
connection to plaintiff’s injury in order for § 1983 liability to attach. Martinez v.
California, 444 U.S. 277, 285 (1980).2 A prerequisite for a viable civil rights claim is
that a defendant directed, or knew of and acquiesced in, the deprivation of a plaintiff’s
constitutional rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
As stated above, there are two motions to dismiss pending in the instant case.
In his motion to dismiss, Defendant Dr. Russell argues that the amended complaint
should be dismissed as to him because Kirk has failed to establish that he was
deliberately indifferent to his serious medical needs. In their motion to dismiss,
WCCF Defendants argue that the amended complaint should be dismissed on the
following grounds: (1) Kirk’s claims against Defendants Warden Ameigh, Lieutenant

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The Court in Martinez explained: “Although a § 1983 claim has been described as ‘a
species of tort liability,’ Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 988, 47 L. Ed. 2d.
128 [(1976)], it is perfectly clear that not every injury in which a state official has played some part
is actionable under that statute.” Martinez, 444 U.S. at 285.

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Howell, and Pendleton in their official capacities are barred by the Eleventh
Amendment; (2) Kirk has failed to allege or identify a Wyoming County policy or
custom that caused his injuries; (3) Kirk has failed to establish that WCCF Defendants
were deliberately indifferent to his serious medical needs;3 and (4) Kirk has failed to
establish an access to the courts claim. The court will address the arguments set forth
in both motions to dismiss in turn.
A.

Defendant Dr. Russell’s Motion to Dismiss

In his motion to dismiss, Defendant Dr. Russell contends that Kirk has failed to
allege facts in support of his allegation that Defendant Dr. Russell was deliberately
indifferent to his serious medical needs. To demonstrate a prima facie case of Eighth
Amendment cruel and unusual punishment based on the denial of medical care, a
plaintiff must establish that the defendant acted with “deliberate indifference to [his]
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Durmer v.
O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993). There are two components to this
standard: Initially, a plaintiff must make an “objective” showing that the deprivation
was “sufficiently serious,” or that the result of the defendant’s denial was sufficiently

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WCCF Defendants include this argument in the section of their brief in support of the
motion to dismiss that argues that Kirk failed to allege or identify a Wyoming County policy or
custom that caused his injuries. (See Doc. 20 at 6-8.)

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serious. Additionally, the plaintiff must make a “subjective” showing that the
defendant acted with “a sufficiently culpable state of mind.” Wilson v. Seiter, 501
U.S. 294, 298 (1991); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.
2002).4
This test “affords considerable latitude to prison medical authorities in the
diagnosis and treatment of the medical problems of inmate patients. Courts will
‘disavow any attempt to second guess the propriety or adequacy of a particular course
of treatment . . . which remains a question of sound professional judgment.” Little v.
Lycoming County, 912 F. Supp. 809, 815 (M.D. Pa. 1996) (citing Inmates of
Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979), quoting Bowring v.
Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
When an inmate is provided with medical care and the dispute is over the
adequacy of that care, an Eighth Amendment claim does not exist. Nottingham v.
Peoria, 709 F. Supp. 542, 547 (M.D. Pa. 1988). Mere disagreement as to the proper
medical treatment does not support an Eighth Amendment claim. Monmouth Cnty.

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The “deliberate indifference to serious medical needs” standard is obviously met when
pain is intentionally inflicted on a prisoner, where the denial of reasonable requests for medical
treatment exposes the inmate to undue suffering or the threat of tangible residual injury, or when,
despite a clear need for medical care, there is an intentional refusal to provide that care. See Spruill
v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (quoting White v. Napolean, 897 F.2d 103, 109 (3d Cir.
1990); Monmouth Cnty Corr. Instutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).

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Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Only
flagrantly egregious acts or omissions can violate the standard. Medical negligence
alone cannot result in an Eighth Amendment violation, nor can any disagreements
over the professional judgment of a health care provider. White v. Napolean, 897 F.2d
103, 108-10 (3d Cir. 1990). See also Estelle, 429 U.S. at 105-06 (medical malpractice
is insufficient basis upon which to establish an Eighth Amendment violation); Rouse
v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (“It is well-settled that claims of
negligence and medical malpractice, without some more culpable state of mind, do not
constitute ‘deliberate indifference.’”); Lanzaro, 834 F.2d at 346 (mere allegations of
malpractice do not raise issues of constitutional import).
In the instant case, Defendant Dr. Russell argues that Kirk’s amended complaint
does not establish deliberate indifference to his medical needs. The court disagrees.
Viewing the facts in a light most favorable to Kirk, the court finds that he has asserted
a claim of deliberate indifference to his medical needs based on his assertions that he
sought treatment from Defendant Dr. Russell for injuries to his left shoulder, ankle,
and back and subsequently Defendant Dr. Russell intentionally refused to provide him
with that treatment, either by intentionally taking an x-ray of the wrong shoulder, by
intentionally denying treatment to his ankle and back, or by insisting that Kirk pray

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rather than receive medical care. See Durmer, 991 F.2d at 68; Spruill, 372 F.3d at
235. The ultimate success or failure of this claim is not before the court on a 12(b)(6)
motion, only whether Kirk has properly alleged a cause of action, which he has.
Therefore, Defendant Dr. Russell’s motion to dismiss will be denied.
B.

WCCF’s Motion to Dismiss
1.

Official Capacity

In their motion to dismiss, WCCF Defendants contend that the Eleventh
Amendment bars Kirk’s claims for money damages against them in their official
capacities. The Eleventh Amendment precludes federal court jurisdiction over suits
by private parties against states or their agencies unless sovereign immunity has
expressly been waived. United States v. Mitchell, 445 U.S. 535, 538 (1980). By
statute, the Commonwealth of Pennsylvania has specifically withheld its consent to be
sued. See 42 Pa. Cons. Stat. Ann. § 8521(b); see also Laskaris v. Thornburgh, 661
F.2d 23, 25 (3d Cir. 1981). The doctrine of sovereign immunity also extends to a state
official in his or her official capacity because “it is not a suit against the official but
rather is a suit against the official’s office. As such it is no different from a suit
against the State itself.” Garden State Elec. Inspection Servs. v. Levin, 144 F. App’x
247, 151 (3d Cir. 2005) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

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(1989)). In Will, the Supreme Court held that a state and state officers acting in their
official capacities are not “persons” against whom a claim for money damages under §
1983 can be asserted. Will, 491 U.S. at 64. However, the Eleventh Amendment does
not preclude a suit against a state official acting in his or her individual, or personal
capacity. Hafer v. Melo, 502 U.S. 21, 31 (1991); Ex parte Young, 209 U.S. 123, 15960 (1908); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). Based on this
well-settled law, Kirk’s claims for money damages against the all of the WCCF
Defendants in their official capacities will be dismissed. To the extent that Kirk has
argued in his brief in opposition to the motion to dismiss that when he stated in his
amended complaint that he was suing all Defendants “individually and severally,” it
was his intention to sue Defendants in their individual capacities as well, the court will
construe Kirk’s amended complaint as setting forth § 1983 claims against WCCF
Defendants in their individual capacities, and those claims will remain viable. See
Hafer, 502 U.S. at 31 (“We hold that state officials, sued in their individual capacities,
are ‘persons’ within the meaning of § 1983.”).
2.

Wyoming County Monell Liability

In their motion to dismiss, WCCF Defendants contend that Defendant
Wyoming County should be dismissed as a party because Kirk has failed to allege any

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policy, custom, or practice of Wyoming County that sustained or gave rise to his
constitutional claims. A municipal body or other local government unit, not part of a
state for Eleventh Amendment purposes, is a “person” subject to suit under § 1983.
See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-91 (1978). However,
municipalities and other local government entities may not be held liable under
§ 1983 for the acts of their employees under the theory of respondeat superior or
vicarious liability. Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S.
397, 403 (1997).
The Supreme Court has held that “a plaintiff seeking to impose liability on a
municipality under § 1983 [is required] to identify a municipal ‘policy’ or ‘custom’
that caused the plaintiff’s injury.” Id. (citing Monell, 436 U.S. at 694). A policy is an
official proclamation or edict of a municipality, while a custom is a practice that is
“‘so permanent and well-settled’ as to virtually constitute law.” Beck v. City of
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Andrews v. City of Philadelphia,
895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted). A custom need not be
“formally approved by an appropriate decisionmaker,” but must be “so widespread as
to have the force of law.” Natale v. Camden County Corr. Facility, 318 F.3d 575, 584
(3d Cir. 2003) (quoting Brown, 520 U.S. at 404).

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A review of the complaint reveals that Kirk has failed to set forth any
allegations whatsoever that Wyoming County undertook any act pursuant to an
official municipal policy of some nature which caused a constitutional violation. In
addition, his assertion that Wyoming County lacks a policy, regulation, or directive as
to “proper functions of its County Prison” is vague and fails to articulate a claim
against Wyoming County. Further, Kirk has not alleged that anyone in Wyoming
County government ever promulgated a policy of indifference to his constitutional
rights, and he has not alleged that borough officials ever violated the rights of anyone
but himself. See St. Louis v. Praprotnik, 485 U.S. 112, 128 (1988). Kirk has alleged
nothing more than an isolated incident of alleged unconstitutional activity by a county
employee, if even that, liability for which cannot properly be imputed to the county
itself. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (stating proof of isolated
act insufficient to impose liability under Monell). Therefore, the claim against
Wyoming County will be dismissed as legally frivolous. Kirk, however, will be
granted the opportunity to amend his complaint to state a claim against Wyoming
County, if possible.
3.

WCCF Defendants’ Deliberate Indifference to Serious Medical
Needs

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WCCF Defendants also contend that Kirk has failed to establish that they were
deliberately indifferent to his serious medical needs. As the court has already set forth
the standard for addressing a deliberate indifference to a serious medical need claim,
see supra pp. 10-12, that standard need not be repeated here.
Turning to the amended complaint and applying that standard, the court initially
finds that Kirk’s allegations cannot support liability here against Defendants
Wyoming County, Warden Ameigh and Lieutenant Howell. Specifically, Kirk’s
allegations, construed liberally, do not support a finding that these Defendants would
have had personal involvement in the claims alleged in the amended complaint, as
none is a medical provider. Moreover, any attempt to allow Kirk to amend his
complaint against these Defendants would be futile. Liability cannot be assessed
against these Defendants as none of the individuals nor the entity has any authority to
make treatment decisions concerning Kirk’s medical care. See Durmer, 991 F.2d at
69 (holding warden and commissioner cannot be considered deliberately indifferent
by failing to directly respond to a medical complaint by a prisoner who was receiving
treatment by the prison doctors).
Although Kirk alleges some facts that indicate that these Defendants may have
been aware of his medical concerns, Kirk cannot assert liability against these

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Defendants due to their involvement in reviewing request slips or grievances filed by
Kirk. First, the filing of a grievance is not sufficient to show the actual knowledge
necessary for personal involvement. Rode, 845 F.2d at 1208. Second, mere
concurrence in a prison administrative appeal process does not implicate a
constitutional concern. Garfield v. Davis, 566 F. Supp. 1069, 1074 (E.D. Pa. 1983)
(holding that administrative review of prison disciplinary hearings is not
constitutionally guaranteed and, therefore, plaintiff’s claims with respect to the
Program Review Committee’s decision did not rise to constitutional significance).
While prisoners have a constitutional right to seek redress of their grievances from the
government, that right is the right of access to the courts, which is not compromised
by the failure of the prison to address grievances. Wilson v. Horn, 971 F. Supp. 943,
947 (E.D. Pa. 1997), aff’d, 142 F.3d 430 (3d Cir. 1998). For these reasons stated
above, the deliberate indifference claims against Defendants Wyoming County,
Warden Ameigh and Lieutenant Howell will be dismissed.
The remaining WCCF Defendant Nurse Pendleton is not entitled to dismissal of
this action. First, reading the complaint liberally, the Defendant Pendleton may have
been personally involved in Kirk’s claim asserting a delay of adequate medical care.
Further, the court finds that Kirk has asserted a claim of deliberate indifference to his

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medical needs based on his assertion that medical treatment was delayed for nonmedical reasons. See Durmer, 991 F.2d at 68; Spruill, 372 F.3d at 235. The ultimate
success or failure of this claim is not before the court on a 12(b)(6) motion, only
whether Kirk has properly alleged a cause of action, which he has. Therefore, the
deliberate indifference claim against Defendant Nurse Pendleton will not be
dismissed.
4.

Access to the Courts Claim

WCCF Defendants also argue that Kirk has failed to set forth an access to the
courts claim against Defendant Warden Ameigh. As stated above, Kirk has asserted
that he was denied access to the courts based on his lack of access to a photocopy
machine, legal materials for legal research, carbon paper, pencils, and pens. For the
reasons set forth below, the court will grant WCCF Defendants’ motion to dismiss on
this issue. Kirk, however, will be granted the opportunity to amend his complaint to
state an access to the courts claim against Defendant Warden Ameigh, if possible.
“[P]risoners have a constitutional right of access to the courts.” Bounds v.
Smith, 430 U.S. 817, 821 (1977). In order to state a claim for denial of this right, Kirk
must plead that he has suffered an “actual injury” arising from the challenged conduct
of defendants. See Lewis v. Casey, 518 U.S. 343, 349-50 (1996).

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As stated above, Kirk claims his access to the courts was hindered in several
ways. In their brief in support of the instant motion, WCCF Defendants counter that
Kirk has failed to provide any details regarding a date or case which would
demonstrate “actual injury” with specificity. (See Doc. 20 at 9) (citing Wilson v.
Shannon, 982 F. Supp. 337, 339 (E.D. Pa. 1997) (confirming that “actual injury” may
be demonstrated by the loss or rejection of a legal claim or failure to meet a deadline).
In his brief in opposition to the instant motion, Kirk states that he “suffered injury not
due to a lack of a Wyoming County prison law library,” but the lack thereof,
“Hindered plaintiff’s efforts to pursue his legal claims . . . . (Doc. 21 ¶ 16.) Kirk’s
assertion here does not provide the court with any indication as to what is his “actual
injury” in this case. As such, Kirk has failed to set forth a claim. However, in the
interest of justice to this pro se litigant, the court will permit Kirk to reassert his claim
of denial of access to the courts in an amended complaint with any details regarding a
date or case which would demonstrate “actual injury,” if possible.

C.

Amended Complaint

As set forth above, the court will permit Kirk to file an amended complaint
setting forth his claim against Wyoming County, and his claim of denial of access to

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the courts against Defendant Ameigh, if possible. As such, the court also instructs
Kirk to include in his amended complaint his claim of deliberate indifference against
Defendants Dr. Russell and Nurse Pendleton. Kirk is reminded that in preparing his
amended complaint, among other requirements, a sound complaint must set forth “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). This statement must “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A
complaint need not contain detailed factual allegations, but a plaintiff must provide
“more than labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” to show entitlement to relief as prescribed by Rule 8(a)(2). Id.; see
also Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).
Kirk is also reminded that his amended complaint must sufficiently allege each
Defendant’s personal involvement or state that any conduct attributable to each of
them amounted to a violation of his constitutional rights. See Rode v. Dellarciprete,
845 F.2d 1195, 1207-08 (3d Cir. 1988) (in order to state a viable claim under § 1983,
each named defendant must be shown, via the complaint’s allegations, to have been
personally involved in the events or occurrences which underlie a claim). To meet the

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standards set forth in Rule 8, Kirk’s amended complaint must at least contain a
modicum of factual specificity, identifying the Defendants and the particular conduct
of the Defendants purported to have harmed him. “A complaint which contains a bare
bones allegation that a wrong occurred and which does not plead any of the facts
giving rise to the injury, does not provide adequate notice.” Purveegiin v. Pike Cnty.
Corr. Facility, No. 3:CV-06-0300, 2006 WL 1620219 (M.D. Pa. June 6, 2006).
In addition, Kirk is advised that the “amended complaint must be complete in
all respects. It must be a new pleading which stands by itself as an adequate
complaint without reference to the complaint already filed.” Young v. Keohane, 809
F. Supp. 1185, 1198 (M.D. Pa. 1992). Additionally, it must specify the existence of
actions by Defendants which have resulted in constitutional deprivations. See, e.g.,
Rizzo v. Goode, 423 U.S. 362, 370–73 (1976).
Kirk is advised that if he fails, within the applicable time period, to file an
amended complaint adhering to the standards set forth above, the claim against
Wyoming County and the access to the courts claim against Defendant Warden
Ameigh will be dismissed with prejudice for failure to state a claim.

IV.

Conclusion

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For the reasons set forth above, Defendant Dr. Russell’s motion to dismiss will
be denied. Further, the motion to dismiss filed by WCCF Defendants will be granted
as to Kirk’s claims against Defendants Wyoming County, Warden Ameigh, and
Lieutenant Howell. That motion to dismiss will be denied as to Kirk’s claims of
deliberate indifference as to Defendant Nurse Pendleton. Kirk will be permitted to
amend his complaint to include a claim against Wyoming County and a claim of
access to the courts against Defendant Warden Ameigh, if possible. Included in that
amended complaint also shall be Kirk’s deliberate indifference claim against
Defendants Dr. Russell and Nurse Pendleton.
An appropriate order will issue.

s/Sylvia H. Rambo
United States District Judge
Dated: December 22, 2011.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLARENCE J. KIRK,
Plaintiff
v.
WYOMING COUNTY
CORRECTIONAL FACILITY, et al.,
Defendants

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:
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CIVIL NO. 1:CV-11-00665
(Judge Rambo)

ORDER
In accordance with the accompanying memorandum, IT IS HEREBY
ORDERED THAT the motions to dismiss (Docs. 16 & 17) are GRANTED in part
and DENIED in part as follows:
1) The motion to dismiss filed by Defendant Dr. Russell (Doc. 17) is DENIED.
2) The motion to dismiss (Doc. 16) as to Defendant Wyoming County is
GRANTED.
3) The motion to dismiss (Doc. 16) as to Defendant Lieutenant Howell is
GRANTED, and Defendant Lieutenant Howell is dismissed as a party in this action.
4) The motion to dismiss (Doc. 16) is GRANTED as to Defendant Warden
Ameigh for Plaintiff’s claim of deliberate indifference to his serious medical needs.

4) The motion to dismiss (Doc. 16) is DENIED as to Defendant Pendleton for
Plaintiff’s claim of deliberate indifference to his serious medical needs.
5) Plaintiff’s amended complaint shall be filed in accordance with the
instructions set forth in the accompanying memorandum no later than January 3,
2012.

s/Sylvia H. Rambo
United States District Judge
Dated: December 22, 2011.