Vazquez v. Yeoman et al
MEMORANDUM re Dfts' mtns to Dismiss 23 and 25 and pltf's proposed amended complaint 34 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 04/23/14. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CO YEOMAN, et al.,
CIVIL NO. 1:CV-13-01067
Plaintiff Juan Vazquez, an inmate currently incarcerated at the State
Correctional Institution in Albion, Pennsylvania (“SCI-Albion”), commenced this
civil rights action by filing a complaint on April 24, 2013, pursuant to the provisions
of 42 U.S.C. § 1983. (Doc. 1.) In his complaint, Plaintiff asserts both federal and
state claims regarding back injuries and pain resulting from his cell assignment while
he was previously incarcerated at the State Correctional Institution at Smithfield
(“SCI-Smithfield”) in Huntingdon, Pennsylvania. Named as Defendants are
employees from SCI-Smithfield, specifically Correctional Officer (“CO”) Yeoman
and Sergeant Boroski (collectively “Corrections Defendants”), and Josh Mahute, a
physician’s assistant (“PA”). Plaintiff seeks compensatory and declaratory relief.
Presently before the court are two motions to dismiss filed by both sets of
Defendants. (Docs. 23 & 25.) For the reasons set forth below, PA Mahute’s motion
to dismiss will be granted and he will be dismissed as a party in this action.
Corrections Defendants’ motion to dismiss will be granted in part and denied in part.
In his complaint, Plaintiff provides the following factual background. For
purposes of disposition of the instant motions to dismiss, the factual allegations
asserted in the complaint will be accepted as true and viewed in a light most favorable
Plaintiff arrived at SCI-Smithfield on August 31, 2011, and received a cell
assignment on the top tier of the C-block housing unit. (Doc. 1 ¶ 8.) On September 8,
2011, Plaintiff went to sick call with complaints of chronic back pain and trouble
maintaining his balance. (Id. ¶ 9.) As a result, Plaintiff was issued a cane and
received a medical restriction requiring him to be placed on the bottom tier of the
housing unit. (Id.) Plaintiff also asserts that, at or around this time, SCI-Smithfield
was undergoing renovations and, therefore, it was the “custom/practice” to require
that handicapped inmates eat meals in the housing unit rather than the dining hall. (Id.
Plaintiff alleges that Sergeant Boroski, the supervising officer on duty on Cblock during this time, was aware that Plaintiff had a cane, chronic back problems,
and bottom tier status, but continued to house Plaintiff on the top tier, thus making
him travel up and down stairs with his cane. (Id. ¶¶ 11-12.) He also alleges that CO
Yeoman, also located on C-block, was aware of Plaintiff’s condition but kept him on
the top tier. (Id. ¶ 22-23.)
“A few days” before September 15, 2011, Plaintiff fell down the stairs in Cblock and felt “significant back pains.” (Id. ¶ 13.) As a result, he signed up for sick
call with PA Mahute. (Id.) On September 15, 2011, Plaintiff went to sick call with
PA Mahute, who told Plaintiff that he would contact Sergeant Boroski and CO
Yeoman to have Plaintiff’s bottom tier status enforced. (Id. ¶ 14.) Upon his return to
C-block, he was not moved to a bottom tier cell and, in fact, fell down the stairs again
that day. (Id.) Plaintiff was taken to an outside hospital the same day. (Id. ¶ 15.)
Plaintiff claims that he injured his back again and now “sometimes suffers partial
paralysis in shoulder and arm area with constant headaches.” (Id. ¶ 16.)
Plaintiff now alleges that all three Defendants knew of the risk of harm to
Plaintiff by keeping him on the top tier, yet intentionally and negligently disregarded
that risk. (Id. ¶¶ 18-20; 24-6; 29-36.) In addition, Plaintiff claims that Sergeant
Boroski is liable for failing to supervise CO Yeoman in connection with moving
Plaintiff from the top tier to bottom tier. (Id. ¶ 26.)
In addition to these allegations, Plaintiff alleges that he has fully exhausted his
administrative remedies with respect to his claims. (Id. ¶¶ 39-40.) Defendants do not
dispute that Plaintiff has exhausted his administrative remedies.
Standard of Review - Motion to Dismiss
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 the
context of 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. Cnty. 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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 555) (recognizing that Rule 8 pleading standard “does
not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”); accord, e.g., Baraka v. McGreevey,
481 F.3d 187, 195 (3d Cir. 2007) (stating that 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).
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, 93 (2007), and all reasonable
inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d
144, 150 (3d Cir. 2007), and view them in the light most favorable to the plaintiff,
Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). 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. Iqbal, 556 U.S.
at 663 (citing Twombly, 550 U.S. at 555, 570) (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”); see also
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). Further, when a complaint
contains well-pleaded factual allegations, “a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at 664.
However, a court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Id. at 678 (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.
“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 Coll. 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 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, 551 U.S.
at 94 (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
In order to state a viable Section 1983 claim, a plaintiff 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). The defendant’s conduct must have a close causal
connection to the plaintiff’s injury in order for Section 1983 liability to attach.
Martinez v. California, 444 U.S. 277, 285 (1980).1 A prerequisite for a viable civil
rights claim is that the defendant directed, or knew of and acquiesced in, the
deprivation of the plaintiff’s constitutional rights. Rode v. Dellarciprete, 845 F.2d
1195, 1207-08 (3d Cir. 1988). On its face, Section 1983 creates no exceptions to the
liability it imposes, nor does it speak of immunity for any individual who might
deprive another of civil rights. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993).
Nevertheless, it is well-settled that certain government officials possess immunity
from Section 1983 liability. Id.
In their motion to dismiss, Corrections Defendants seek dismissal of the
complaint on the basis that: (1) Plaintiff’s Eighth Amendment claims do not amount to
The Court in Martinez explained: “Although a § 1983 claim has been described as ‘a
species of tort liability,’ 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 (internal citations omitted).
deliberate indifference; (2) Corrections Defendants enjoy sovereign immunity against
Plaintiff’s state law negligence claims; and (3) Plaintiff’s claims against Corrections
Defendants in their official capacities are barred by the Eleventh Amendment. (See
Doc. 26.) In his motion to dismiss, Defendant PA Mahute seeks dismissal of the
complaint on the basis that: (1) Plaintiff has failed to state a claim of deliberate
indifference under the Eighth Amendment; and (2) Plaintiff has failed to state a claim
of negligence. For purposes of discussion, the court will first address Corrections
Defendants’ argument with respect to official capacity, then will discuss the
arguments in both motions to dismiss relating to the federal claims and pendant state
law claims together.2
Corrections Defendants contend that the Eleventh Amendment bars Plaintiff’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
For purposes of disposition of the motions to dismiss Plaintiff’s complaint, the court
will exercise supplemental jurisdiction over Plaintiff’s pendant state law claims.
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 (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, 159-60 (1908); Koslow
v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002).
Based on this well-settled law, Plaintiff’s claims for money damages against
Corrections Defendants in their official capacities will be dismissed. To the extent
that Plaintiff has brought § 1983 claims against Corrections Defendants in their
individual capacities, however, those claims 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.”).
Turning to Plaintiff’s claims for declaratory relief, the court notes that the
Supreme Court instructed that “a state official in his or her official capacity, when
sued for injunctive relief, would be a person under § 1983 because ‘official-capacity
actions for prospective relief are not treated as actions against the State.’” Will, 491
U.S. at 71 n.10. However, this language only applies to ‘a state official in his or her
official capacity.” Id. at 71 n.10 (emphasis added). As a result, Plaintiff’s § 1983
claims for injunctive relief against Corrections Defendants in their official capacities
Deliberate Indifference Claims
In his complaint, Plaintiff alleges that Corrections Defendants violated the
Eighth Amendment when they refused to move him to the bottom tier, as mandated by
a medical directive relating to his back pain. Plaintiff also alleges that Defendant PA
Mahute was deliberately indifferent to Plaintiff’s serious medical needs when he
failed to act, despite being aware that Corrections Defendants had refused to move
Plaintiff to the bottom tier. Further, the court will address whether Defendant PA
Mahute was deliberately indifferent in providing medical care to Plaintiff.3 The court
will address these claims in turn.
While it is not entirely clear that Plaintiff has alleged a claim of deliberate indifference
based on inadequate medical care against PA Mahute, the court will nevertheless construe the
complaint in favor of Plaintiff as liberally as possible. Further, in his brief in opposition to the
motions to dismiss, Plaintiff acknowledges that he is not asserting a claim of deliberate indifference
based on inadequate medical care against Corrections Defendants. (See Doc. 35 at 2) (“[D]efendants
have mischaracterized plaintiff’s claim as an issue of ‘direct-medical treatment’ when in fact,
[plaintiff] has clearly stated a collateral-medical issue of ‘responsive-accommodation’ . . . .”). Thus,
the court will not discuss Corrections Defendants with respect to a claim of deliberate indifference
based on inadequate medical care.
Bottom Tier Designation
In the instant motions to dismiss, Corrections Defendants and Defendant PA
Mahute both argue that Plaintiff has failed to establish that they were deliberately
indifferent to his serious medical needs with respect to his bottom tier designation.
“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit
inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Rhodes v.
Chapman, 542 U.S. 337, 349 (1981)). The Eighth Amendment prohibition against
cruel and unusual punishment requires that prison officials provide “humane
conditions of confinement” including “adequate food, clothing, shelter and medical
care.” Farmer, 511 U.S. at 832.
“[T]o establish an Eighth Amendment violation an inmate must allege both an
objective element - that the deprivation was sufficiently serious - and a subjective
element - that a prison official acted with a sufficiently culpable state of mind, i.e.,
deliberate indifference.” Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) (citing Wilson
v. Seiter, 501 U.S. 294 (1991)). “The objective inquiry is whether the inmate was
‘denied the minimal civilized measure of life’s necessities.’” Fuentes v. Wagner, 206
F.3d 335, 345 (3d Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
To satisfy the subjective component, an inmate must prove that a prison official
demonstrated “deliberate indifference” to a serious risk of harm to which the inmate
was exposed. Farmer, 511 U.S. at 836-37. “[A] prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Id. at 837.
In the instant case, first with respect to Corrections Defendants, Plaintiff alleges
that after he received the bottom tier status on September 8, 2011 due to his “chronic
back problems,” both Corrections Defendants were aware of his new status yet failed
to move him from the upper tier to the bottom tier. (Doc. 1 ¶¶ 9, 11, 22.) As a result,
Plaintiff continued his upper tier status, where he was required to walk up and down
stairs with the assistance of a cane. (Id. ¶ 12.) Eventually Plaintiff fell on those steps
in the housing unit, injuring himself a few days before September 15, 2011, and again
on September 15, 2011. (Id. ¶¶ 13, 14.) He claims that Corrections Defendants’
intentional refusal to move him to the bottom tier, despite being aware of the medical
directive to do so, caused this risk of serious harm and resulting further injury to his
In their motion to dismiss, Corrections Defendants argue that Plaintiff’s
allegation that they intentionally failed to follow the housing restriction imposed by
the medical department is insufficient to rise to the level of deliberate indifference,
and cite several cases from other districts, none of which appear to be applicable either
procedurally or factually.4 Further, they argue that, at most, Plaintiff’s allegation
amounts to a negligent delay in moving him to the bottom tier. However, these
arguments do not properly respond to Plaintiff’s allegation that Corrections
Defendants deliberately refused to move Plaintiff to the bottom tier, despite knowing
of the medical directive to do so, other than by baldly disputing his material
allegation. At this stage in the litigation and without the benefit of discovery, the
court cannot assume that the extent of the risk to Plaintiff posed by the top tier status
In support of this contention, Corrections Defendants cite the following cases. In
Felix-Torres v. Graham, 687 F. Supp. 38, 53 (N.D.N.Y. 2009), the district court granted a motion
for summary judgment in favor a medical defendant who failed to fulfill her role in ensuring that the
plaintiff was assigned to a bottom bunk. This case is inapplicable because, here, Plaintiff is alleging
that Corrections Defendants, non-medical providers, intentionally refused to carry out a directive
already in place. In Sanderson v. Green, No. CV 310-040, 2011 WL 1226212, *4 (S.D. Ga. Feb. 18,
2011), the district court granted a motion to dismiss a complaint that alleged that the plaintiff was
intentionally placed in a top bunk despite having a “lower bunk safety profile.” The court found that
the defendant was entitled to qualified immunity on the finding that, inter alia, the defendant was
not intentionally refusing to follow a prescription for medication needed to treat a known medical
condition. Id. Rather, in that case, the reason behind the “safety profile” was not readily apparent.
Id. This case is inapplicable here, as Plaintiff has clearly alleged the reason underlying his bottom
tier status. In Turner v. Corbett, Civ. A. No. 11-1701, 2012 WL 930863, * 3 (E.D. Pa. Mar. 20,
2012), the district court granted a motion to dismiss where the plaintiff claimed that he was assigned
an upper bunk despite having a doctor’s note specifying lower bunk status, but permitted the
plaintiff to amend his complaint to include allegations relating to the nature and extent of the risk
posed by a top bunk assignment. Notably, the court found nothing in the record indicating the
existence, let alone veracity, of the doctor’s note. Id. at *1. In Connors v. Heywright, No. 02 Civ.
9988(DC), 2003 WL 21087886, *3 (S.D.N.Y. May 12, 2003), the district court sua sponte dismissed
a complaint that alleged that prison officials were negligent for, inter alia, failing to move the
plaintiff to the bottom bunk pursuant to a medical directive. Construing the complaint liberally, the
court also found no deliberate indifference on the basis that the plaintiff did not allege any facts
relating to culpability of the defendants and, rather, did allege that the defendants promptly
responded to his medical complaints. Id. This case is inapplicable because, here, Plaintiff has
was not serious. Moreover, while the nature of Plaintiff’s injuries is somewhat
unclear, given his allegations that he was taken to an outside hospital after his second
fall and that he had injuries to his “shoulder and arm area with constant headaches,”
(Doc. 1 ¶ 16), the court will allow this claim to proceed. Corrections Defendants’
motion to dismiss on this claim will, therefore, be denied.
Turning to Defendant PA Mahute, Plaintiff alleges that, when he went to sick
call on September 15, 2011 and informed PA Mahute of his bottom tier status, PA
Mahute told him that he would contact both Corrections Defendants to make sure that
he would be moved to the bottom tier. (Doc. 1 ¶ 14.) However, it was later the same
day that Plaintiff fell down the stairs again and had to be taken to an outside hospital.
(Id. ¶¶ 14-15.) Plaintiff alleges that PA Mahute failed to take “appropriate action” in
order to ensure Plaintiff was moved to the bottom tier (Id. ¶ 32); rather, PA Mahute
“merely made a phone call for plaintiff to be moved” (Id. ¶ 31).
In his motion to dismiss, PA Mahute argues that Plaintiff has failed to state a
claim of deliberate indifference against him because Plaintiff has not alleged
subjective indifference on the part of PA Mahute. In fact, the complaint does not even
assert that PA Mahute ignored Plaintiff’s complaints. To the contrary, the complaint
alleges that PA Mahute supported the transfer of Plaintiff from the upper tier to the
lower tier, and even placed a call advocating such. Upon review, the court agrees with
PA Mahute here. Without a showing that PA Mahute knew of and disregarded the
risk to Plaintiff in being assigned to the upper tier, Plaintiff fails to state a claim of
deliberate indifference. See Farmer, 511 U.S. at 836-37. Rather, Plaintiff’s complaint
alleges that, not only was PA Mahute aware of Plaintiff’s medical directive on bottom
tier status, but also he tried to ensure that prison officials enforced it. This is simply
not a case of deliberate indifference on the part of PA Mahute. Therefore, PA
Mahute’s motion to dismiss will be granted as to this claim. Further, since Plaintiff
has failed to state a constitutional violation here, amendment would be futile. See
Fletcher-Harlee Corp., 482 F.3d at 252.
Medical Treatment by PA Mahute
In his motion to dismiss, Defendant PA Mahute argues that Plaintiff has failed
to establish that he was deliberately indifferent to Plaintiff’s serious medical needs
with respect to addressing Plaintiff’s “chronic back problems.” In order to establish
an Eighth Amendment claim against a defendant for inadequate medical care, a
plaintiff must show “(i) a serious medical need, and (ii) acts or omissions . . . that
indicate deliberate indifference to that need.” Natale v. Camden County Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse, 182 F.3d at 197. A
serious medical need is one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that a layperson would recognize the need for a
doctor’s attention. Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326,
347 (3d Cir. 1987). Additionally, “if ‘unnecessary and wanton infliction of pain’
results as a consequence of denial or delay in the provision of adequate medical care,
the medical need is of the serious nature contemplated by the eighth amendment.” Id.
(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
The test for whether a prison official was deliberately indifferent is whether that
defendant “acted or failed to act despite his knowledge of a substantial risk of serious
harm.” Farmer, 511 U.S. at 841. “The official must both be aware of the facts from
which the inference can be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837. Thus, a complaint that a physician “has
been negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at
Further, an Eighth Amendment claim does not exist when an inmate is provided
with medical care but disputes the adequacy of that care. 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. Corr. Inst’l
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, 182 F.3d at 197 (“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 (concluding that mere allegations of malpractice do not raise issues of
Consequently, a claim for a violation of the Eighth
Amendment will not succeed unless the medical treatment received consists of “act[s]
which were either intentionally injurious, callous, grossly negligent, shocking to the
conscience, unconscionable, intolerable to the fundamental fairness, or barbarous.”
Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978).
In the instant case, the allegations in Plaintiff’s complaint clearly demonstrate
that Plaintiff received medical treatment following his falls on the stairs a few days
before September 15, 2011, and on September 15, 2011, itself. After the first fall, he
signed up for sick call, and was seen by PA Mahute on September 15, 2011.
Following his second fall, Plaintiff alleges that he was taken to an outside hospital for
treatment. Unfortunately, despite the medical attention, Plaintiff continued to suffer
from discomfort. This is clearly a case where Plaintiff has been given medical
attention but is dissatisfied with the course of treatment and subsequent results. As
stated above, an inmate’s disagreement with medical treatment is insufficient to
establish deliberate indifference. Durmer, 991 F.2d at 69; Spruill, 372 F.3d at 235.
Thus, Plaintiff has failed to establish an Eighth Amendment violation with respect his
treatment by PA Mahute for his injuries resulting from his falls. PA Mahute’s motion
to dismiss will be granted as to this claim. Further, since Plaintiff’s averments fall
shortof stating a constitutional violation, amendment would be futile. See FletcherHarlee Corp., 482 F.3d at 252.
Pendant State Law Claims
As set forth above, Corrections Defendants argue that they enjoy sovereign
immunity against Plaintiff’s pendant state law claims. Defendant PA Mahute argues
that Plaintiff has failed to state a valid medical negligence claim because Plaintiff has
not filed a certificate of merit. The court will address the arguments separately.
Under Pennsylvania’s sovereign immunity statute, “the Commonwealth, and its
officials and employees acting within the scope of their duties, shall continue to enjoy
sovereign and official immunity and remain immune from suit except as the General
Assembly shall specifically waive the immunity.” 1 Pa. Cons. Stat. Ann. § 2310.
Further, at 42 Pa. Cons. Stat. Ann. § 8522, the General Assembly specifically waived
sovereign immunity in nine areas, including cases involving medical professional
liability.5 However, it is well-settled that immunity is waived only for claims asserted
The nine exceptions to sovereign immunity pursuant to 42 Pa. Cons. Stat. Ann. §
(1) operation of any motor vehicle in the possession or control of a Commonwealth
party; (2) acts of health care employees of Commonwealth agency medical facilities
or institutions; (3) care, custody, or control of personal property in the possession or
control of Commonwealth parties; (4) dangerous condition of Commonwealth agency
real estate and sidewalks; (5) dangerous condition of highways under the jurisdiction
of Commonwealth agency created by potholes or sinkholes or other similar
conditions created by natural elements; (6) care, custody, or control of animals in the
possession or control of a Commonwealth party; (7) sale of liquor at Pennsylvania
liquor stores; (8) acts of a member of the Pennsylvania military forces; and (9)
administration, manufacture and use of toxoid or vaccine.
against health care employees, and not to individuals who are not medical
professionals. McCool v. Dep’t of Corr., 984 A.2d 565, 570 (Pa. Cmwlth. 2009)
(interpreting 42 Pa. Cons. Stat. Ann. § 8522(b)(2)).
Here, Plaintiff’s state law claim that Corrections Defendants were negligent
when they failed to move Plaintiff to the bottom tier due his back injury and pain is
barred by Pennsylvania’s sovereign immunity statute, as neither Corrections
Defendant is a health care employee of the DOC, a Commonwealth agency. See
Green v. Fisher, Civ. No. 1:12-CV-00982, 2013 WL 664677, *6 (M.D. Pa. Feb. 22,
2013) (interpreting 42 Pa. Cons. Stat. Ann. § 8522(b)(2) as applied to claim against
DOC). Thus, this claim of negligence against Corrections Defendants will be
dismissed on the basis of sovereign immunity.
Further, Plaintiff’s state law claim that Defendant Sergeant Boroski was
negligent in failing to supervise CO Yeoman also fails because none of the waivers of
sovereign immunity recognized in 42 Pa. Cons. Stat. Ann. § 8522(b) are applicable to
this claim. See Wesley v. Hollis, Civ. No. 03-3130, 2007 WL 1655483, *15-16 (E.D.
Pa. June 6, 2007) (holding supervising corrections officer was entitled to sovereign
immunity against claim that he negligently failed to oversee offending corrections
officer). Thus, this claim of negligent failure to supervise against Sergeant Boroski
will be dismissed on the basis of sovereign immunity.
The court also notes that Plaintiff alleges in his complaint that Sergeant Boroski
committed an Eighth Amendment violation when he failed to supervise CO Yeoman.
In order to hold officials liable for failure to supervise or train subordinates properly
under Section 1983, the plaintiff must allege facts which demonstrate more than the
mere occurrence of an isolated incident in which an individual was deprived of
constitutional rights. Oklahoma City v. Tuttle, 471 U.S. 808, 820-21 (1985).
Misconduct by guards, without evidence that defendants were on notice that these
particular offenders had previously been guilty of wrongdoing or that there was a
pattern or practice of misconduct in the department, does not state a claim.
McClelland v. Facteau, 610 F.2d 693, 697-98 (10th Cir. 1979); Wilkinson v. Ellis, 484
F. Supp. 1072 (E.D. Pa. 1980). Here, because Plaintiff provides no facts establishing
a pattern or practice of misconduct or abuse, no Section 1983 claim has been stated.
Therefore, Plaintiff’s federal claim relating to failure to train will be dismissed.
Certificate of Merit
Defendant PA Mahute moves to dismiss the pendant state law claim of
professional negligence against him, arguing that Plaintiff has failed to comply with
the requirements of state law in lodging this claim. Specifically, PA Mahute claims
that Plaintiff has failed to comply with Pennsylvania Rule of Civil Procedure 1042.3
(“Rule 1042.3”), by filing a valid certificate of merit with this malpractice claim.
Rule 1042.3 provides, in pertinent part,
In any action based upon an allegation that a licensed professional
deviated from an acceptable professional standard, the attorney for the
plaintiff, or the plaintiff if not represented, shall file with the complaint or
within sixty days after the filing of the complaint, a certificate of merit
signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement
that there exists a reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or work that is the
subject of the complaint, fell outside acceptable professional standards
and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional
standard is based solely on allegations that other licensed professionals
for whom this defendant is responsible deviated from an acceptable
professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
(d) The court, upon good cause shown, shall extend the time for filing a
certificate of merit for a period not to exceed sixty days. A motion to
extend the time for filing a certificate of merit must be filed by the
thirtieth day after the filing of a notice of intention to enter judgment of
non pros on a professional liability claim under Rule 1042.6(a) or on or
before the expiration of the extended time where a court has granted a
motion to extend the time to file a certificate of merit, whichever is
greater. The filing of a motion to extend tolls the time period within
which a certificate of merit must be filed until the court rules upon the
Pa. R. Civ. P. 1042.3(a), (d). The purpose of the required certificate of merit is to
“assure that malpractice claims for which there is no expert support will be terminated
at an early stage in the proceedings.” Chamberlain v. Giampapa, 210 F.3d 154, 160
(3d Cir. 2000).
Rule 1042.3(a) applies to both pro se and represented plaintiffs and constitutes
a rule of substantive state law with which plaintiffs in federal court must comply. See
Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007) (holding
that district courts must “appl[y] Rule 1042.3 as substantive state law”); Paige v.
Holtzapple, No. 1:08-cv-0978, 2009 WL 2588849, *3 (M.D. Pa. Aug. 19, 2009)
(citing Iwanejko, 249 F. App’x at 944); Fernandez v. Dep’t of Justice, No. 3:07-cv01080, slip op. at 10 (M.D. Pa. Sept. 2, 2008) (recognizing that the plaintiff’s pro se
status “is not a viable basis upon which to excuse compliance with Rule 1042.3 or the
requirement of com[i]ng forth with expert medical testimony”).
Failure to file a certificate of merit under Rule 1042.3(a) or a motion for an
extension under Rule 1042.3(d) is fatal unless the plaintiff demonstrates that his
failure to comply is justified by a “reasonable excuse.” Perez v. Griffin, 304 F. App’x
72, 74 (3d Cir. 2008); see also Walsh v. Consol. Design & Eng’g, Inc., No. Civ. A.
05-2001, 2007 WL 2844829, *5 (E.D. Pa. Sept. 28, 2007) (“Rule 1042.3 is subject to
equitable considerations and a party who fails to timely file a certificate of merit may
be relieved from the requirement where the defaulting party provides a reasonable
explanation or legitimate excuse.”).
In the instant case, Plaintiff has not provided the court with a certificate of merit
required by Rule 1042.3. As a result, any malpractice claim against Defendant PA
Mahute will be dismissed.
At the same time Plaintiff filed his brief in opposition to the instant motions to
dismiss, (Doc. 35), Plaintiff also filed a “proposed amended complaint,” (Doc. 34),
notably without an attached motion for leave to file an amended complaint. Because
Plaintiff’s proposed amended complaint is not accompanied by the requisite motion
for leave to file an amended complaint, the proposed amended complaint will be
stricken. The court further notes that the proposed amended complaint does nothing
to cure any of the deficiencies noted herein with respect to the claims in the original
complaint. Therefore, the court will reject the proposed amended complaint and not
grant leave for Plaintiff to file an amended complaint because any amendment would
For the reasons set forth above, Corrections Defendants’ motion to dismiss will
be granted in part and denied in part. Corrections Defendants will be directed to
answer the complaint. Further, Defendant PA Mahute’s motion to dismiss will be
granted, and he will be dismissed as a party in this action.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: April 23, 2014.
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