Covert v. Houser et al

Filing 14

MEMORANDUM (Order to follow as separate docket entry 15 ) - SEE MEMORANDUM FOR FURTHER DETAILS. Signed by Honorable Yvette Kane on 2/16/21. (dmn)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN COVERT,
Plaintiff
v.
RN BRENDA HOUSER, et al.,
Defendants

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No. 1:20-cv-02022
(Judge Kane)

MEMORANDUM
Before the Court is pro se Plaintiff John Covert (“Plaintiff”)’s amended complaint filed
pursuant to 42 U.S.C. § 1983. (Doc. No. 13.) For the reasons set forth below, the Court will
dismiss the amended complaint without further leave to amend and direct the Clerk of Court to
close the above-captioned action.
I.

BACKGROUND
On November 2, 2020, Plaintiff, who is presently incarcerated at the State Correctional

Institution Mahanoy in Frackville, Pennsylvania (“SCI Mahanoy”), initiated the above-captioned
case by filing a complaint pursuant to 42 U.S.C. § 1983 against Defendants RN Brenda Houser
(“Houser”), Ms. White (“White”), Ms. B. Mason (“Mason”), and Prison Health Services
(“PHS”). (Doc. No. 1.) In his complaint, Plaintiff asserted that he has exhausted all his
resources to attempt “to get the medication and physical [therapy] that [he needs] for [his]
plantar fasciitis.” (Doc. No. 1 at 1-2.) Plaintiff averred that his doctor and foot and ankle
specialist submitted paperwork to SCI Mahanoy regarding what Plaintiff “need[s] done to [his]
feet.” (Id. at 2.) According to Plaintiff, the medical staff at SCI Mahanoy only provide him
600mg of Ibuprofen; Plaintiff averred that he is supposed to be receiving 600mg of Gabapentin
as well as physical therapy. (Id.) He further maintained that an unnamed female staff member
has “been trying to take [him] off all [his] pain [medications]” and stated that she cannot help

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Plaintiff “at all.” (Id. at 5.) As relief, Plaintiff requested that he be provided medications and
physical therapy and that the medical staff “do what was [recommended] by doctors and
[specialists].” (Id.)
In a Memorandum and Order dated January 26, 2021, the Court granted Plaintiff leave to
proceed in forma pauperis and dismissed Plaintiff’s complaint for failure to state a claim upon
which relief may be granted. (Doc. Nos. 11, 12.) Specifically, the Court concluded that: (1)
Plaintiff had not pled facts regarding how the named Defendants were personally involved in the
alleged violations of his constitutional rights; (2) Plaintiff had failed to set forth a plausible claim
against Defendant PHS because he failed to assert that the alleged deficiencies in his medical
care resulted from PHS’s policies, customs, or practices; (3) Plaintiff failed to set forth plausible
supervisory liability claims against Defendants White and Mason; and (4) the complaint, at most,
set forth a disagreement regarding Plaintiff’s medical care, which was insufficient to maintain an
Eighth Amendment claim. (Doc. No. 11 at 5-9.) The Court granted Plaintiff leave to file an
amended complaint within thirty (30) days. (Doc. No. 12.)
On February 8, 2021, Plaintiff filed his amended complaint against Defendants Houser,
White, Mason, and PHS. (Doc. No. 13.) In his amended complaint, Plaintiff avers that he is not
receiving the medications and physical therapy prescribed to him by a specialist. (Id. at 4.) He
maintains that he “did everything that [he] had to” and that a specialist provided paperwork on
what Plaintiff needed to treat his plantar fasciitis. (Id.) According to Plaintiff, “[t]hey said that
[he] need[s] [physical therapy] and Gabapentin 600mg.” (Id.) Plaintiff avers that he has been
dealing with pain in his feet for a year and a half, and that he is trying not to end up in a
wheelchair for the rest of his life. (Id.) Plaintiff maintains that his “civil rights,” as well as his
rights under the First and Fourteenth Amendments, have been violated. (Id. at 5.) As relief,

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Plaintiff requests damages as well as a Court Order directing SCI Mahanoy to provide him with
physical therapy and Gabapentin. (Id.) Pursuant to the Prison Litigation Reform Act of 1995
(“PLRA”), 1 the Court will perform its mandatory screening of Plaintiff’s amended complaint.
II.

LEGAL STANDARD
A.

Screening and Dismissal of Prisoner Complaints

Under 28 U.S.C. § 1915A, federal district courts must “review . . . a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” See 28 U.S.C. § 1915A(a). If a complaint fails to state a claim upon
which relief may be granted, the Court must dismiss the complaint. See id. § 1915A(b)(1).
District courts have a similar screening obligation with respect to actions filed by prisoners
proceeding in forma pauperis and prisoners challenging prison conditions. See id.
§ 1915(e)(2)(B)(ii) (“[T]he [C]ourt shall dismiss the case at any time if the [C]ourt determines
that . . . the action or appeal . . . fails to state a claim on which relief may be granted . . . .”); 42
U.S.C. § 1997e(c)(1) (“The [C]ourt shall on its own motion or on the motion of a party dismiss
any action brought with respect to prison conditions under section 1983 of this title . . . by a
prisoner confined in any jail, prison, or other correctional facility if the [C]ourt is satisfied that
the action . . . fails to state a claim upon which relief can be granted.”).
In dismissing claims under §§ 1915(e), 1915A, and 1997e, district courts apply the
standard governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See, e.g., Smithson v. Koons, No. 15-01757, 2017 WL 3016165, at *3 (M.D.
Pa. June 26, 2017) (“The legal standard for dismissing a complaint for failure to state a claim

1

See The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26,
1996).
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under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c)(1) is the same as that for dismissing a
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.”); Mitchell v.
Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010) (explaining that when dismissing a complaint
pursuant to § 1915A, “a court employs the motion to dismiss standard set forth under Federal
Rule of Civil Procedure 12(b)(6)”). To avoid dismissal under Rule 12(b)(6), a civil complaint
must set out “sufficient factual matter” to show that its claims are facially plausible. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009). The plausibility standard requires more than a mere possibility that the defendant is
liable for the alleged misconduct. “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P.
8(a)(2)). When evaluating the plausibility of a complaint, the Court accepts as true all factual
allegations and all reasonable inferences that can be drawn from those allegations, viewed in the
light most favorable to the plaintiff. See id. at 679; In re Ins. Brokerage Antitrust Litig., 618
F.3d 300, 314 (3d Cir. 2010). However, the Court must not accept legal conclusions as true, and
“a formulaic recitation of the elements of a cause of action” will not survive a motion to dismiss.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Based on this standard, the United States Court of Appeals for the Third Circuit has
identified the following steps that a district court must take when reviewing a Rule 12(b)(6)
motion: (1) identify the elements that a plaintiff must plead to state a claim; (2) identify any
conclusory allegations contained in the complaint that are “not entitled” to the assumption of
truth; and (3) determine whether any “well-pleaded factual allegations” contained in the
complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp.,

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629 F.3d 121, 130 (3d Cir. 2010). In addition, in the specific context of pro se prisoner
litigation, a district court must be mindful that a document filed pro se is “to be liberally
construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however
inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by
lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted)
(quoting Estelle, 429 U.S. at 106).
B.

Section 1983 Standard

Section 1983 is the vehicle by which private citizens may seek redress for violations of
federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute
states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
Id. “Section 1983 is not a source of substantive rights,” but is merely a means through which “to
vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon,
331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85
(2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the
conduct complained of was committed by persons acting under color of state law; and (2) the
conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United
States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West
v. Atkins, 487 U.S. 42, 48 (1988)).

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III.

DISCUSSION
A.

Plaintiff’s Complaint

Plaintiff’s amended complaint fails to cure the deficiencies the Court previously
identified in his original complaint. As noted supra, Plaintiff again names Houser, White,
Mason, and PHS as Defendants in the above-captioned case. However, for a § 1983 claim to
survive a motion to dismiss, the plaintiff must sufficiently allege that the defendant was
personally involved in the act or acts that the plaintiff claims violated his rights. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Solan v. Ranck, 326 F. App’x 97, 100 (3d
Cir. 2009). In the instant case, Plaintiff has not adequately pled facts regarding how the named
Defendants were personally involved in the alleged violations of his constitutional rights. See
Lawal v McDonald, 546 F. App’x 107, 113 (3d Cir. 2014) (concluding that the plaintiff’s
collective use of the word “Defendants” failed to adequately plead which specific defendant
engaged in the specific conduct alleged by the plaintiff); Hudson v. City of McKeesport, 244 F.
App’x 519, 522 (3d Cir. 2007) (affirming the dismissal of one defendant because the complaint
did not provide any basis for a claim against him). While Plaintiff avers that he has not been
provided medication and physical therapy, he fails to allege facts suggesting that the named
Defendants were personally involved in the denial of such medical care. The Court simply
cannot proceed on Plaintiff’s claims against Defendants as pled.
Moreover, as the Court previously informed Plaintiff, under § 1983, a private
corporation, such as PHS, contracted to provide healthcare for inmates cannot be held liable
pursuant to respondeat superior; instead, a plaintiff must allege that the entity had a policy,
practice, or custom that caused his or her injury. See Shade v. Stanish, No. 1:19-cv-1429, 2020
WL 869748, at *7 (M.D. Pa. Feb. 21, 2020); see also Carpenter v. Kloptoski, No. 1:08-cv-2233,

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2010 WL 891825, at *8 (M.D. Pa. Mar. 10, 2010) (concluding that a § 1983 claim against a
private medical service solely on the basis that it was responsible for providing health care is
subject to dismissal). Here, Plaintiff again fails to allege any facts suggesting that the alleged
deficiencies in his medical care were the result of PHS’s policies, customs, or practices.
Furthermore, Plaintiff has failed to set forth plausible supervisory liability claims against
Defendants White and Mason based upon their respective positions as Deputy Superintendent
and Superintendent at SCI Mahanoy. Supervisors “may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” See Iqbal,
556 U.S. at 676. The Third Circuit has noted that there are two theories of supervisory liability
applicable to claims brought pursuant to § 1983: (1) “a supervisor may be personally liable under
§ 1983 if he or she participated in violating the plaintiff’s rights, directed others to violate them,
or, as the person in charge, had knowledge of and acquiesced in his subordinates’ violations”;
and (2) policymakers may also be liable under § 1983 “if it is shown that such defendants, ‘with
deliberate indifference to the consequences, established and maintained a policy, practice[,] or
custom which directly caused [the] constitutional harm.’” See A.M. ex rel. J.M.K. v. Luzerne
Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). With respect to the second theory of
liability, the plaintiff must allege that “(1) existing policy or practice creates an unreasonable risk
of constitutional injury; (2) the supervisor was aware that the unreasonable risk was created; (3)
the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice.”
See Merring v. City of Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing Sample v.
Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). In the instant case, Plaintiff again fails to plead
facts suggesting that Defendants White and Mason participated or acquiesced in the alleged

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violation of his rights, and he has not identified any policy that allegedly caused the violation of
his rights. See McTernan v. City of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009).
Notwithstanding the deficiencies set forth above, Plaintiff again fails to set forth a
plausible Eighth Amendment claim against Defendants. The Eighth Amendment prohibits the
infliction of cruel and unusual punishment on prisoners. In the context of medical care, the
Eighth Amendment “requires prison officials to provide basic medical treatment to those whom
it has incarcerated.” See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). To establish an
Eighth Amendment claim based on a prison’s denial of medical care, an inmate must allege acts
or omissions by prison officials that were sufficiently harmful to evidence deliberate indifference
to a serious medical need. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). The relevant inquiry is whether
the defendant (1) was subjectively deliberately indifferent to (2) the plaintiff’s objectively
serious medical needs. See Farmer, 511 U.S. at 834, 837; Chavarriaga v. N.J. Dep’t of Corr.,
806 F.3d 210, 226 (3d Cir. 2015).
The “deliberate indifference” prong of the Eighth Amendment test requires that the
defendant actually know of and disregard “an excessive risk to inmate health or safety.” See
Farmer, 511 U.S. at 837. Circumstantial evidence can establish subjective knowledge if it shows
that the excessive risk was so obvious that the official must have known about it. See BeersCapitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842). The
Third Circuit has found deliberate indifference when a prison official: (1) knows of a prisoner’s
need for medical treatment and intentionally refuses to provide it; (2) delays necessary medical
treatment for a non-medical reason; or (3) prevents a prisoner from receiving needed or
recommended medical treatment. See Rouse, 182 F.3d at 197.

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Because only egregious acts or omissions can violate this standard, mere medical
malpractice cannot result in an Eighth Amendment violation. See White v. Napoleon, 897 F.2d
103, 108-10 (3d Cir. 1990); see also Pearson v. Prison Health Servs., 850 F.3d 528, 535 (3d Cir.
2017) (“[W]hen medical care is provided, we presume that the treatment of a prisoner is proper
absent evidence that it violates professional standards of care.”); Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises
professional judgment[,] his behavior will not violate a prisoner’s constitutional rights.”). If
there is a dispute over the adequacy of the received treatment, courts have consistently been
reluctant to second-guess the medical judgment of the attending physician. See Caldwell v.
Luzerne Cty. Corr. Facility Mgmt. Emp., 732 F. Supp. 2d 458, 472 (M.D. Pa. 2010) (“Courts
will not second guess whether a particular course of treatment is adequate or proper.”); Little v.
Lycoming Cty., 912 F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996).
Therefore, a mere difference of opinion between the prison’s medical staff and the inmate
regarding the diagnosis or treatment that the inmate receives does not support a claim of
deliberate indifference. See Pearson, 850 F.3d at 535; Monmouth Cty. Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Moreover, a prison doctor’s use of a treatment
regimen different than that prescribed by a private physician does not necessarily amount to
deliberate indifference. See Johnson v. Cash, 557 F. App’x 102, 104 (3d Cir. 2013) (citing
McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977)). The question is, therefore, “whether the
defendant has provided the plaintiff with some type of treatment, despite whether it is what
plaintiff wants.” See Jacobs v. Lisiak, Civ. No. 15-00686, 2016 WL 344431, at *4 (M.D. Pa.
Jan. 28, 2016); Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988).

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In the instant case, Plaintiff has again not set forth a plausible Eighth Amendment claim
against Defendants. In his amended complaint, Plaintiff maintains that a specialist has
recommended that he receive physical therapy and 600mg of Gabapentin for his plantar fasciitis.
(Doc. No. 13 at 4.) He avers that staff at SCI Mahanoy are not providing this specific medical
care to him. (Id.) Plaintiff’s amended complaint, as pled, fails to suggest that Defendants were
aware of Plaintiff’s medical condition and completely refused or delayed treatment. Plaintiff’s
amended complaint, like his original complaint, at most sets forth a disagreement as to the care
provided to him, and such disagreement is not sufficient to maintain an Eighth Amendment
claim. See Hemingway v. Gosa, No. 19-cv-583, 2020 WL 2556914, at *16 (M.D. Pa. May 20,
2020) (collecting pertinent authority).
B.

Leave to Amend

Due to the applicable liberal pleading standard, a plaintiff should generally be granted
leave to amend before a Court dismisses a claim that is merely deficient. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Federal Rules of Civil Procedure
allow for amendments to be granted liberally in light of the “principle that the purpose of
pleading is to facilitate a proper decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182
(1962). The Court may deny a motion to amend where there is “undue delay, bad faith[,] or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment.” See id. The Court must also determine whether a
proposed amendment would be futile if the complaint, as amended, would not survive a motion
to dismiss for failure to state a claim upon which relief may be granted. See In re NAHC, Inc.
Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002). In the instant case, the Court concludes that it

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would be futile to permit Plaintiff to file a second amended complaint because he has already
been granted an opportunity to cure the deficiencies identified in his initial complaint and his
amended complaint failed to cure such deficiencies. See Jones v. Unknown DOC Bus Driver &
Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (concluding that when an inmate-plaintiff “has
already had two chances to tell his story . . . giving him further leave to amend would be futile”).
IV.

CONCLUSION
For the foregoing reasons, the Court will dismiss Plaintiff’s amended complaint (Doc.

No. 13) for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). Plaintiff will not be provided leave to file a second amended complaint. An
appropriate Order follows.

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