ALLEN v. WETZEL et al
MEMORANDUM re dfts' Mtns to dismiss/summary jgmnt 19 and 24 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 6/3/21. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN WETZEL, et al.,
Presently before the Court are the motion to dismiss (Doc. No. 19) filed by
Defendants John Wetzel (“Wetzel”) and Kevin Ransom (“Ransom”) and the motion
to dismiss or, in the alternative, for summary judgment (Doc. No. 24) filed by
Defendants Wellpath and Jorge Dominic (“Dominic”). Pro se Plaintiff Nafis Allen
(“Allen”) has filed neither responses nor a motion seeking an extension of time to
do so. Accordingly, because the time periods for responding have expired, the
motions are ripe for disposition.
Procedural History and Summary of Plaintiff’s Complaint
Plaintiff , who is currently incarcerated at the State Correctional Institution in
Dallas, Pennsylvania (“SCI Dallas”), initiated the above-captioned action on January
11, 2021 by filing a complaint pursuant to 42 U.S.C. § 1983 against Defendants in
the United States District Court for the Eastern District of Pennsylvania. (Doc. No.
2.) On January 29, 2021, that court transferred the matter to this Court for further
proceedings. (Doc. No. 4.) In his complaint, Plaintiff complaints about conditions
at SCI Dallas as they relate to the COVID-19 pandemic. (Doc. No. 2 at 1-2.) He
alleges that Defendants have: (1) failed to enforce social distancing and the wearing
of face masks by staff; and (2) failed to force staff to take COVID-19 tests. (Id. at
2.) Plaintiff claims that in November of 2020, his COVID-19 test came back
negative, but he was subsequently transferred to the Restricted Housing Unit
(“RHU”). (Id.) Plaintiff avers that he came into contact with inmates and staff who
had tested positive with COVID-19. (Id.) Plaintiff tested positive for COVID-19 in
December of 2020. (Id.) He avers that he has chronic asthma and he “became at
serious foreseeable risk of death.” (Id.) Based on the foregoing, Plaintiff asserts
violations of his Eighth Amendment rights. (Id. at 1-3.) He seeks injunctive relief
as well as damages. (Id. at 3.)
Defendants Wetzel and Ransom filed their motion to dismiss and brief in
support thereof on April 20, 2021. (Doc. Nos. 19, 20.) On April 26, 2021, Plaintiff
filed an extension of time to provide documents related to service of process. (Doc.
In an Order dated that same day, the Court denied the motion as
unnecessary to the extent Plaintiff sought an extension to provide documents to
effect service of process, but granted him a thirty (30)-day extension to respond to
the motion to dismiss. (Doc. No. 22.) Defendants Wellpath and Dominic filed their
motion to dismiss or, in the alternative, for summary judgment and supporting
materials on April 27, 2021. (Doc. Nos. 24, 25.) They argue, inter alia, that Plaintiff
failed to exhaust his administrative remedies. (Doc. No. 25.) In its April 27, 2021
Order, the Court informed the parties that, pursuant to Paladino v. Newsome, 885
F.3d 203 (3d Cir. 2018), it would consider the exhaustion issue in the context of
summary judgment, and by doing so, would consider matters outside the pleadings
in its role as factfinder. (Doc. No. 28.) Accordingly, the Court directed Plaintiff to
respond to Defendants’ motion within thirty (30) days. (Id.) As noted above,
however, Plaintiff has not responded to either motion. Defendants Wetzel and
Ransom filed a certificate of concurrence as to the motion filed by Defendants
Wellpath and Dominic on May 21, 2021. (Doc. No. 29.)
Summary of the Department of Corrections (“DOC”)’s Response
The DOC has provided publicly available information regarding its response
https://www.cor.pa.gov/PAges/COVID-19.aspx (last accessed June 1, 2021 12:45
p.m.). In-person visitation has been suspended since March 13, 2020. See id. “All
new inmates are being screened before being admitted into prison,” and the DOC is
not accepting inmates with flu-like symptoms from county institutions. See id. The
DOC has provided inmates with disposable masks and “strongly encourage[s]
inmates” to use them. See id. Moreover, inmates “are being provided materials to
clean their cell[s] daily. Materials will be provided to them on a daily basis.” See id.
Institutions are conducting town hall meetings with inmates “to review sanitation
guidelines and COVID-19 information for awareness.”
Industries has increased the production of anti-bacterial soap, and soap is provided
free of charge to all inmates. See id.
With respect to staff members, all facilities conduct “enhanced screening for
all individuals entering a facility. No one will be permitted to enter a facility who
has a fever over 100 degrees or exhibits signs of cold or flu.” See id. Staff are
required to wear masks, and “institutions have provided each staff member with a
cloth mask for use.” See id. Daily updates are provided to all staff members, and
PPE has been provided to all staff. See id. Employees are advised to stay home if
they are sick. See id.
Each institution “has plans in place for quarantine if an inmate tests positive.”
See id. All gyms, barber shops, and cosmetology areas have been closed until further
notice, as have the general libraries. See id. DOC officials have also reduced the
inmate population where they can by furloughing paroled individuals from centers
to home plans, maximizing parole releases, expediting the release process for anyone
with a pending home plan, and reviewing inmates who are beyond their minimum
sentences. See id.
The DOC has also begun to vaccinate inmates and staff. “Non-medical staff
and inmates are in Phase 1B, with vulnerable inmates being prioritized.” See id. All
inmates will be offered the vaccine. See id. No one will be required to receive the
vaccine, but the DOC will focus on “encouraging vaccination for those inmates in
the long-term care setting who are most vulnerable.” See id. As of June 1, 2021,
there is one (1) active case of COVID-19 among the inmates at SCI Dallas. See id.
There has been a total of 1,278 inmates cases at SCI Dallas, with eleven (11) deaths.
See id. There are two (2) active cases among staff at SCI Dallas, with a total of 275
staff cases. See id.
STANDARDS OF REVIEW
Motion to Dismiss, Federal Rule of Civil Procedure 12(b)(6)
When ruling on a motion to dismiss under Rule 12(b)(6), the Court must
accept as true all factual allegations in the complaint and all reasonable inferences
that can be drawn from them, viewed in the light most favorable to the plaintiff. See
In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court’s
inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal,
pleading requirements have shifted to a “more heightened form of pleading.” See
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal,
all civil complaints must set out “sufficient factual matter” to show that the claim is
facially plausible. Id. The plausibility standard requires more than a mere possibility
that the defendant is liable for the alleged misconduct. As the Supreme Court
instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has
not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing
Fed. R. Civ. P. 8(a)(2)).
Accordingly, to determine the sufficiency of a complaint under Twombly and
Iqbal, the United States Court of Appeals for the Third Circuit has identified the
following steps a district court must take when determining the sufficiency of a
complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to
state a claim; (2) identify any conclusory allegations contained in the complaint “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., 629 F.3d 121, 130 (3d Cir. 2010)
(citation and quotation marks omitted).
In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a
court must consider only the complaint, exhibits attached to the complaint, matters
of public record, as well as undisputedly authentic documents if the complainant’s
claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d
Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)).
A court may also consider “any ‘matters
incorporated by reference or integral to the claim, items subject to judicial notice,
matters of public record, orders, [and] items appearing in the record of the case.’”
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed.
2004)); see also Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.
2002) (noting that when considering a motion to dismiss, courts may consider
“documents whose contents are alleged in the complaint and whose authenticity no
party questions, but which are not physically attached to the pleading”).
In the context of pro se prisoner litigation specifically, the court must be
mindful that a document filed pro se is “to be liberally construed.” 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”
and can only be dismissed for failure to state a claim if it appears beyond a doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) requires the court to render summary
judgment “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“[T]his standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A disputed fact is “material” if proof of its existence or nonexistence would
affect the outcome of the case under applicable substantive law. Id. at 248; Gray v.
York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material
fact is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United
Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the court
must view the facts and all reasonable inferences in favor of the nonmoving party.
Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963
F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59
(3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may
not rest on the unsubstantiated allegations of his or her pleadings. When the party
seeking summary judgment satisfies its burden under Rule 56 of identifying
evidence which demonstrates the absence of a genuine issue of material fact, the
nonmoving party is required by Rule 56 to go beyond his pleadings with affidavits,
depositions, answers to interrogatories or the like in order to demonstrate specific
material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). The party opposing the motion “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Electric
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56 shifts the
burden of production to the nonmoving party, that party must produce evidence to
show the existence of every element essential to its case which it bears the burden
of proving at trial, for “a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.
In determining whether an issue of material fact exists, the court must
consider the evidence in the light most favorable to the nonmoving party. White,
826 F.2d at 59. In doing so, the Court must accept the nonmovant’s allegations as
true and resolve any conflicts in his favor. Id. (citations omitted). However, a party
opposing a summary judgment motion must comply with Local Rule 56.1, which
specifically directs the oppositional party to submit a “statement of the material
facts, responding to the numbered paragraphs set forth in the statement required [to
be filed by the movant], as to which it is contended that there exists a genuine issue
to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the
statement required to be served by the moving party will be deemed to be admitted.”
L.R. 56.1. A party cannot evade these litigation responsibilities in this regard simply
by citing the fact that he is a pro se litigant. These rules apply with equal force to
all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL 2853261, at *5 (M.D.
Pa. July 20, 2010) (pro se parties “are not excused from complying with court orders
and the local rules of court”); Thomas v. Norris, No. 02-CV-01854, 2006 WL
2590488, at *4 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules
of Civil Procedure).
Civil Rights Statute, 42 U.S.C. § 1983
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)).
STATEMENT OF MATERIAL FACTS 1
On March 22, 2021, counsel for Defendants Wellpath and Dominic contacted
the Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”) to see whether
it had received any final level grievance appeals from Plaintiff. (Doc. No. 24-1 ¶ 4.)
“Keri Moore, the Assistant Chief of SOIGA, responded the following day,
confirming that SOIGA has ‘not received any appeals from this inmate.’” (Id. ¶ 5.)
Defendants Wellpath and Dominic then contacted SCI Dallas and requested copies
of all grievances filed by Plaintiff from January 2020 until the present, “regardless
of whether they were appealed.” (Id. ¶ 6.) In response, SCI Dallas produced copies
of four (4) grievances, none of which are related to Plaintiff’s complaint. (Id. ¶¶ 78.)
The DOC’s grievance policy, DC-ADM 804, states, “The Inmate Grievance
The Local Rules provide that in addition to the requirement that a party file a brief in opposition
to the moving party’s brief in support of its motion, “[t]he papers opposing a motion for summary
judgment shall include a separate, short and concise statement of material facts responding to the
numbered paragraphs set forth in the statement [of material facts filed by the moving party] . . . as
to which it is contended that there exists a genuine issue to be tried.” See M.D. Pa. L.R. 56. 1.
The Rule further requires the inclusion of references to the parts of the record that support the
statements. See id. Finally, the Rule states that the statement of material facts required to be
served by the moving party will be deemed to be admitted unless controverted by the statement
required to be served by the opposing party. See id. Unless otherwise noted, the background
herein is derived from the Rule 56.1 statement of facts filed by Defendants Wellpath and Dominic.
(Doc. No. 24-1.) Plaintiff has not filed a responsive statement to Defendants’ Rule 56.1 statement
of facts. Accordingly, unless otherwise noted, the Court deems the facts set forth by Defendants
to be undisputed. See Fed. R. Civ. P. 56(e)(2); M.D. Pa. L.R. 56.1; United States v. Alberto, No.
3:18-cv-1014, 2020 WL 730316, at *2 (M.D. Pa. Feb. 13, 2020) (concluding that the “[f]ailure to
file this [responsive statement of material facts] results in admission of the moving party’s
statement of facts”).
System is intended to deal with a wide range of issues, procedures, or events that
may be of concern to an inmate.” (Id. ¶ 9.) When submitting a grievance, inmates
must: (1) identify the event giving rise to the grievance; (2) identify the individuals
involved; (3) “state specific any claims [they] wish to make concerning violations
of Department directives, regulations, court orders, or other law”; and (4) request
“specific relief if the inmate desires compensation or other legal relief normally
available from a court.” (Id. ¶ 10.) “Plaintiff has failed to submit a single grievance
related to his concerns about COVID-19 exposure.” (Id. ¶ 11.)
Claims Against Defendant Wellpath
Wellpath has contracted with the DOC to provide medical care to inmates
housed at SCI Dallas and other state institutions. The Third Circuit, however, has
held that “a private health care company providing services to inmates ‘cannot be
held responsible for the acts of its employees under a theory of respondeat superior
or vicarious liability.’” Sims v. Wexford Health Sources, 635 F. App’x 16, 20 (3d
Cir. 2015) (quoting Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583 (3d
Cir. 2003)). Rather, a plaintiff must allege that the private healthcare company had
“a relevant . . . policy or custom, and that the policy caused the constitutional
violation [he] allege[s].” Natale, 318 F.3d at 584); see also Lomax v. City of
Philadelphia, No. 13-cv-1078, 2017 WL 1177095, at *3 (E.D. Pa. Mar. 29, 2017)
(“Because [defendant] is a private company contracted by a prison to provide health
care for inmates, . . . it can only be held liable for constitutional violations if it has a
custom or policy exhibiting deliberate indifference to a prisoner’s serious medical
needs.”). Here, Plaintiff fails to allege any facts demonstrating that the alleged
violations of his Eighth Amendment rights resulted from any policies, practices, or
customs set forth by Defendant Wellpath. See McTernan v. City of York, 564 F.3d
636, 658 (3d Cir. 2009) (noting that to assert a plausible claim, the plaintiff “must
identify [the] custom or policy, and specify what exactly that custom or policy was”).
For that reason alone, Plaintiff’s claims against Defendant Wellpath are subject to
Claims Against Defendants Wetzel, Ransom, and Dominic
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 violates his rights. See Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988); see also Solan v. Ranck, 326 F. App’x 97, 100 (3d Cir. 2009).
Here, it appears that Plaintiff seeks to proceed against Defendants Wetzel and
Ransom based upon their respective supervisory positions as Secretary of the DOC
and Superintendent of SCI Dallas. Supervisors, however, “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’s complaint fails to set forth plausible supervisory
liability claims against Defendants Wetzel and Ransom. Plaintiff fails to allege facts
indicating that Defendants Wetzel and Ransom personally witnessed staff members
not wearing face masks and taking COVID-19 tests and condoned or acquiesced in
this behavior. Likewise, there are no facts suggesting that Defendants Wetzel and
Ransom directed staff members to not wear face masks and not take COVID-19
tests. While supervisors cannot encourage constitutional violations, a supervisor has
“no affirmative constitutional duty to train, supervise or discipline so as to prevent
such conduct.” See Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). The
Court, therefore, agrees that Plaintiff has failed to set forth plausible supervisory
liability claims against Defendants Wetzel and Ransom.
Plaintiff has also named Dominic, the CEO of Wellpath, as a Defendant in
this matter. The complaint, however, is completely devoid of any facts alleging how
Defendant Dominic violated Plaintiff’s constitutional rights. Rather, it appears that
Plaintiff has named Defendant Dominic solely because of his position as CEO of
Wellpath. Plaintiff, therefore, has failed to allege the requisite personal involvement
to state a plausible claim for relief against Defendant Dominic. See Foye v. Wexford
Health Sources, Inc., 675 F. App’x 210, 215 (3d Cir. 2017).
Eighth Amendment Claims
In order to succeed on a claim as to one’s conditions of confinement, a
plaintiff must establish that: “(1) he was incarcerated under conditions imposing a
substantial risk of serious harm, (2) the defendant-official was deliberately
indifferent to that substantial risk to his health and safety, and (3) the defendantofficial’s deliberate indifference caused him harm.” See Bistrian v. Levi, 696 F.3d
352, 367 (3d Cir. 2015), abrogated in party on other grounds by Mack v. Yost, 968
F.3d 311 (3d Cir. 2020).
“[T]he Constitution does not mandate comfortable
prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Therefore, conditions of
imprisonment violate the Eighth Amendment only if they, “alone or in combination
. . . deprive inmates of the minimal civilized measures of life’s necessities.” See id.
at 347. Such necessities include “adequate food, clothing, shelter, and medical
See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
deprivations are required to make out a conditions-of-confinement claim.” See
Hudson v. McMillian, 503 U.S. 1, 9 (1992). However, “[s]ome conditions of
confinement may establish an Eighth Amendment violation ‘in combination’ when
each would not do so alone, but only when they have a mutually enforcing effect
that produces the deprivation of a single, identifiable human need such as food,
warmth, or exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372 (3d
Cir. 2019) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991) and Rhodes, 452 U.S.
In the instant case, Defendants do not dispute that the COVID-19 pandemic
constitutes a substantial risk of harm to inmates. (Doc. No. 20 at 7); see also Dixon
v. United States, No. 20-5994, 2020 WL 3249231, at *3 (D.N.J. June 16, 2020)
(concluding that the inmate-plaintiff could meet the objective prong of an Eighth
Amendment claim “because COVID-19 is a very contagious virus that can cause
serious health complications or death in vulnerable people”). The Court, however,
agrees with Defendants that Plaintiff has failed to allege facts suggesting that
Defendants demonstrated deliberate indifference to the risk posed by COVID-19.
As noted supra, the DOC has adopted detailed preventative steps to mitigate the risk
to inmates and staff and to control the spread of COVID-19 through the state
correctional institutions. The Court may take judicial notice of this information, as
it is publicly available on a governmental website. See Vanderklok v. United States,
868 F.3d 189, 205 (3d Cir. 2017). “A review of these steps suggests that DOC
officials, including Defendants, have not acted unreasonably with respect to the
threat posed by COVID-19 and instead have instituted measures to safeguard the
entire inmate population, including Plaintiff.” Bevins v . Kauffman, No. 1:20-cv2012, 2021 WL 322168, at *5 (M.D. Pa. Feb. 1, 2021).
While the Court understands Plaintiff’s legitimate concerns regarding the
COVID-19 pandemic, it agrees with the numerous courts throughout the nation that
have concluded that similar allegations do not support a plausible inference that
officials have demonstrated deliberate indifference to inmates’ Eighth Amendment
rights. See, e.g., Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (granting
defendants’ motion to stay the district court’s grant of a preliminary injunction on
the basis that, inter alia, the plaintiffs had not demonstrated that defendants were
deliberately indifferent to the risk posed by COVID-19 because the correctional
facility had “implemented many measures to curb the spread of the virus”); Bevins,
2021 WL 322168, at *5; Wilkins v. Wolf, No. 1:20-cv-2450, 2021 WL 1578250, at
*6-7 (M.D. Pa. Apr. 22, 2021) (finding that inmate-plaintiff had failed to state an
Eighth Amendment claim regarding an alleged inadequate response to the COVID19 pandemic); Wylie v. Bonner, No. 2:20-cv-2593-TLP-tmp, 2021 WL 261280, at
*4-6 (W.D. Tenn. Jan. 26, 2021) (finding that inmate-plaintiff had failed to state an
Eighth Amendment conditions of confinement claim because he failed to allege that
staff knew of and disregarded the risks posed by COVID-19); Shokr v. LeBlanc, No.
20-488, 2020 WL 8093228, at * (M.D. La. Dec. 14, 2020) (concluding that the
inmate-plaintiff had failed to state a plausible Eighth Amendment claim because
measures were being taken to combat the COVID-19 virus); Kesling v. Tewalt, 476
F. Supp. 3d 1077, 1086-88 (D. Idaho 2020) (concluding that inmate-plaintiff’s
amended complaint failed to set forth a plausible Eighth Amendment claim when
prison officials had developed and instituted policies to curb the spread of COVID19); McKissic v. Barr, No. 1:20-cv-526, 2020 WL 3496432, at *6 (W.D. Mich. June
29, 2020) (concluding that inmate-plaintiff failed to state an Eighth Amendment
claim where defendants had taken “significant measures . . . to secure prisoner safety
and prevent infection” and the plaintiff’s “speculation about the mere possibility that
he will become infected does not rise to the level of an Eighth Amendment
violation”). Indeed, “the Eighth Amendment does not require perfection on the part
of prison officials.” See Wylie, 2021 WL 261280, at *6.
The Court is sympathetic to the fact that Plaintiff suffers from chronic asthma
and contracted COVID-19.
Plaintiff’s complaint, however, is devoid of any
allegations that he experienced any serious symptoms upon contracting COVID-19.
From the complaint, as pled, the Court “cannot conclude that, when faced with a
perfect storm of a contagious virus and the space constraints inherent in a
correctional facility, [Defendants] here acted unreasonably by ‘doing their best.’”
See Swain v. Junior, 961 F.3d 1276, 1289 (11th Cir. 2020). The Court, therefore,
will grant Defendants’ motions to dismiss (Doc. Nos. 19, 24) and dismiss Plaintiff’s
complaint (Doc. No. 2) for failure to state a plausible Eighth Amendment claim.
Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner must
pursue all available avenues of relief through the applicable grievance system before
initiating a federal civil rights action. See 42 U.S.C. § 1997e(a); Booth v. Churner,
532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms
of relief sought and offered through administrative avenues.”). Section 1997e
provides, in relevant part, that “[n]o action shall be brought with respect to prison
conditions under [S]ection 1983 of this title, or any other [f]ederal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” See 42 U.S.C. § 1997e(a). The exhaustion
requirement is mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007);
see also Booth, 532 U.S. at 742 (holding that the exhaustion requirement of the
PLRA applies to grievance procedures “regardless of the relief offered through
The Third Circuit has further provided that there is no futility exception to
Section 1997e’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 75-76
(3d Cir. 2000). Courts have typically required across-the-board exhaustion by
inmates seeking to pursue claims in federal court. See id. Additionally, courts have
interpreted this exhaustion requirement as including a procedural default component,
holding that inmates must fully satisfy the administrative requirements of the inmate
grievance process before proceeding with a claim in federal court. See Spruill v.
Gillis, 372 F.3d 218 (3d Cir. 2004); see also Oriakhi v. United States, 165 F. App’x
991, 993 (3d Cir. 2006) (providing that “there appears to be unanimous circuit court
consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement by
exhausting administrative remedies after the filing of the complaint in federal
court”). Courts have also concluded that inmates who fail to complete the prison
grievance process in a full and timely manner are barred from subsequently litigating
claims in federal court. See, e.g., Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008).
This broad rule favoring full exhaustion allows for a narrowly-defined
exception; if the actions of prison officials directly caused the inmate’s procedural
default as to a grievance, the inmate will not be required to comply strictly with this
exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
However, courts also recognize a clear “reluctance to invoke equitable reasons to
excuse [an inmate’s] failure to exhaust as the statute requires.” See Davis v.
Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust
will be excused only “under certain limited circumstances,” see Harris v.
Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005), and an inmate may defeat a claim
of failure to exhaust only by showing “he was misled or that there was some
extraordinary reason he was prevented from complying with the statutory
mandate.” See Warman, 49 F. App’x at 368.
In the absence of competent proof that an inmate was misled by corrections
officials, or some other extraordinary circumstances warranting a departure from
strict compliance with the exhaustion requirement, courts frequently reject inmate
requests for their failure to exhaust to be excused. An inmate, therefore, may not
excuse a failure to comply with these grievance procedures in a timely manner by
simply claiming that his efforts constituted “substantial compliance” with this
statutory exhaustion requirement. See Harris, 149 F. App’x at 59. Furthermore, an
inmate may not avoid this exhaustion requirement by merely alleging that the
administrative policies were not clearly explained to him. See Warman, 49 F. App’x
at 368. Consequently, an inmate’s confusion regarding these grievances procedures
does not, alone, excuse a failure to exhaust. See Casey v. Smith, 71 F. App’x 916
(3d Cir. 2003); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t
is well established that ‘ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.’” (citations omitted)).
Recently, the Supreme Court considered what renders administrative
remedies unavailable to an inmate such that a failure to exhaust may be excused.
See Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted “three kinds of
circumstances in which an administrative remedy, although officially on the books,
is not capable of use to obtain relief.” See id. at 1859. First, an administrative
procedure is not available “when (despite what regulations or guidance materials
may promise) it operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” See id. Second, a procedure
is not available when it is “so opaque that it becomes, practically speaking, incapable
of use.” See id. Finally, a procedure is unavailable when “prison administrators
thwart inmates from taking advantage of a grievance process through machination,
misinterpretation, or intimidation.” See id. at 1860. However, “once the defendant
has established that the inmate failed to resort to administrative remedies, the onus
falls on the inmate to show that such remedies were unavailable to him.” See Rinaldi
v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The Third Circuit recently
to defeat a failure-to-exhaust defense based on a misrepresentation by
prison staff, an inmate must show (1) that the misrepresentation is one
which a reasonable inmate would be entitled to rely on and sufficiently
misleading to interfere with a reasonable inmate’s use of the grievance
process, and (2) that the inmate was actually misled by the
Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).
Defendants Wellpath and Dominic maintain that they are entitled to summary
judgment because the “records produced by SOIGA and SCI Dallas reveal that
Plaintiff has failed to file a single grievance related to his COVID-19 exposure.”
(Doc. No. 25 at 6.) Defendants Wetzel and Ransom have filed a certificate of
concurrence in Defendants Wellpath and Dominic’s motion. (Doc. No. 29.) The
record before the Court indicates that Plaintiff has never appealed a grievance to
final review by SOIGA. (Doc. No. 24-2 at 1.) Moreover, Plaintiff has filed four (4)
grievances from January 2020 to the present and none of them are related to the
claims he raises in his instant complaint. (Doc. No. 24-3 at 1-8.) Plaintiff has not
responded to Defendants’ motion. Plaintiff, therefore, has not refuted the defense
that he failed to properly exhaust the claims he raises in his instant complaint
regarding the DOC’s response to the COVID-19 pandemic. Accordingly, because
the PLRA requires full and proper exhaustion prior to the initiation of Plaintiff’s
claims in federal court, and this Court cannot excuse compliance with those
requirements, the motion for summary judgment will be granted on the basis that
Plaintiff failed to properly exhaust his administrative remedies.
Leave to Amend
Courts are cautioned that because of the liberal pleading standard, a plaintiff
should generally be granted leave to amend before dismissing a claim that is merely
deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
The federal rules allow for liberal amendments in light of the “principle that the
purpose of pleading is to facilitate a proper decision on the merits.” Foman v. Davis,
371 U.S. 178, 182 (1962) (citations and internal quotations omitted). 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.” Id. The Court must also determine
that a proposed amendment would be futile if the complaint, as amended, would not
survive a motion to dismiss for failure to state a claim. In re NAHC, Inc. Sec. Litig.,
306 F.3d 1314, 1332 (3d Cir. 2002). Based on the foregoing, the Court concludes
that it would be futile to grant Plaintiff leave to file an amended complaint because
he failed to exhaust his administrative remedies prior to initiating the abovecaptioned action.
For the foregoing reasons, the Court will grant Defendants’ motions. (Doc.
Nos. 19, 24.) Plaintiff will not be permitted to file an amended complaint in this
matter. An appropriate Order follows.
s/ Sylvia H. Rambo
United States District Judge
Date: June 3, 2021
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