Robinson v. Tennis et al
Filing
77
MEMORANDUM and ORDER granting 27 Motion to Dismiss 36 ; adopting 69 Report and Recommendation of Magistrate Judge Mannion; pltf shall file an ameded compalint w/i 20 days of this order; Clerk of Court is directed to REMAND case to MJ Mannion for further proceedings. Signed by Honorable James M. Munley on 7/15/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK A. ROBINSON,
Plaintiff
:
No. 3:10cv272
:
:
(Judge Munley)
:
:
(Magistrate Judge Mannion)
v.
:
:
FRANKLIN TENNIS, et al.,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court are defendants’ objections to the report and recommendation
of Magistrate Judge Malachy E. Mannion, which proposes that portions of plaintiff’s
complaint be dismissed with leave to re-file an amended complaint with respect to
certain claims.
Background
This case arises out of disputes between the plaintiff, a prisoner at the
Pennsylvania State Correctional Institution in Rockview, Pennsylvania (“SCIRockview”) and officials and staff at that prison. (Complaint (Doc. 1) (hereinafter
“Complt.”) at 1). Plaintiff alleges that in May 2008 he filed a civil complaint in this
court regarding his treatment in prison. (Id.; see Case No. 3:08cv0924). Soon after,
plaintiff was transferred to another institution, SCI-Graterford. (Id.). In March 2009,
plaintiff returned to SCI-Rockview. Plaintiff contends that as soon as he returned to
Rockview prison officials retaliated against him for this complaint by placing him in
the restricted housing unit (“RHU”). (Id.). According to plaintiff, the SCI-Rockview
Superintendent, Deputy Superintendents, medical staff, and other prison officials
conspired to retaliate against him by denying medical treatment, using excessive
force and filing false misconduct reports. (Id. at 2).
Plaintiff raised specific allegations against the three defendants whose
motions are the subject of this opinion. He alleges that Defendant Kevin Burke, a
prison psychiatrist, told him that he agreed that plaintiff deserved a cell with a
window. (Id. at 10, ¶ 10). Burke also admitted to plaintiff that Deputy
Superintendent Robert Marsh was retaliating against him. (Id.). Marsh had taken
plaintiff’s lawsuit personally. (Id.). Though aware of Marsh’s misconduct, Burke
failed to take action to prevent that behavior. (Id.). Defendant Abdollah Nabavi, a
prison psychologist, allegedly attempted to convince plaintiff not to file the instant
lawsuit and to drop his earlier action. (Id. at 10, ¶ 12). Nabadi also allegedly
assisted in having plaintiff released from medical care and to security prematurely,
which resulted in abuse. (Id.). Finally, plaintiff alleges that Defendant Julie
Pengiero, a physician’s assistant, denied him medical treatment because she felt he
wanted to sue the prison. (Id. at 11, ¶ 18). She did not completely examine the
plaintiff or order that pictures be taken of his injuries, and did not consider whether
he should be handcuffed in front to limit pain in his arms and shoulders. (Id.).
Plaintiff filed a complaint and motion to proceed in foma pauperis on February
5, 2010. (Docs. 1, 3). Judge Mannion granted the motion for leave to proceed in
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forma pauperis on April 14, 2010. (Doc. 14). The court then issued summons for
the defendants. Most of the defendants answered the complaint (Doc. 53), but
Defendants Pensiero, Burke and Nabavi filed motions to dismiss the complaint.
(Docs. 27, 36). On March 4, 2011, Magistrate Judge Mannion issued a report and
recommendation that proposed that all of plaintiff’s claims against Defendants
Pensiero and Nabavi be dismissed with prejudice, as amendment of those claims
would be futile. The Magistrate Judge also recommended that both plaintiff’s claims
against Defendant Burke be dismissed. He proposed, however, that the court allow
plaintiff leave to amend his Eighth Amendment claim against Defendant Burke to
allege facts sufficient to establish the knowledge Burke had of retaliation against
plaintiff and how he could have acted to prevent that retaliation.
Plaintiff then filed objections to the report and recommendation, and
Defendant Pensiero filed a brief opposing those objections, bringing the case to its
present posture.
Jurisdiction
Because plaintiff filed his complaint pursuant to 42 U.S.C. § 1983, this court
has jurisdiction pursuant to 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.”).
Legal Standard
In disposing of objections to a magistrate judge’s report and recommendation,
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the district court must make a de novo determination of those portions of the report
to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v.
Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.
The district court judge may also receive further evidence or recommit the matter to
the magistrate judge with instructions. Id.
Magistrate Judge Mannion’s opinion addresses motions to dismiss from
various defendants brought pursuant to Federal Rule of Civil Procedure 12(b)(6).
When a defendant files such a motion, all well-pleaded allegations of the complaint
must be viewed as true and in the light most favorable to the non-movant to
determine whether “under any reasonable reading of the pleadings, the plaintiff may
be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d
Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d
Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per
curium)). The court may also consider “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record of the case.” Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations
omitted). The court does not have to accept legal conclusions or unwarranted
factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc.,
450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906 (3d Cir. 1997)).
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The federal rules require only that plaintiff provide “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’” a standard
which “does not require ‘detailed factual allegations,’” but a plaintiff must make “‘a
showing, rather than a blanket assertion, of entitlement to relief’ that rises ‘above the
speculative level.’” McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The
“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the conduct alleged.” Id.
Discussion
Plaintiff objects to the report and recommendation on two grounds. The court
will address each in turn.
A. The Magistrate Judge’s Standard for Reading the Pleadings
Plaintiff first contends that the Magistrate Judge did not apply the proper
standard for evaluating his complaint. Plaintiff filed the complaint pro se, and he
points out that judges are to construe such complaints liberally, make all inferences
in favor of the plaintiff and avoid applying the same stringent standards used to
evaluate claims where the plaintiff has the assistance of counsel.
The court agrees with the plaintiff that “[a] document filed pro se is “‘to be
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liberally construed.’” Erickson v. Pardus, 551 U.S. 89, (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Moreover, “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 doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’” Estelle, 429 U.S. at 106 (quoting Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)).
The court finds that the Magistrate Judge applied this standard to the report
and recommendation. The court did not recommend dismissal of portions of the
complaint because plaintiff failed to meet a complicated pleading standard, but
because the allegations made in plaintiff’s complaint would not entitle him to relief
even if proved true. The court finds that the Magistrate Judge gave those allegations
a generous reading, but found that the records appended to the complaint, when
combined with plaintiff’s allegations, were insufficient. Still, the Magistrate Judge’s
generous reading of the complaint found that plaintiff’s claims of retaliation against
Defendant Burke need not be dismissed with prejudice, as they had potential merit if
stated more fully. The court will therefore overrule the objections on this point and
adopt the report and recommendation.
In any case, the court finds that the Magistrate Judge properly recommended
the dismissal of the claims against Defendant Pensiero and Navabi and the Eighth
Amendment claims against Defendant Burke with prejudice. The Supreme Court
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has established that “deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)). “Deliberate indifference” means that a prison
official is “both aware of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, and . . . must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the medical context, courts have
found “deliberate indifference” in a number of ways, “including where the prison
official (1) knows of a prisoner’s need for medical treatment but intentionally refuses
to provide it; (2) delays necessary medical treatment based on a non-medical
reason; or (3) prevents a prisoner from receiving needed or recommended
treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Plaintiff’s claims against Defendant Pensiero are that she refused “to
completely examine plaintiff, take or recommend that pictures be taken of plaintiff’s
injuries,” and refused to have handcuffs placed in front rather than behind. (Complt.
at 11, ¶18). He also claims that Pensiero stated “all [plaintiff] want to do is sue
Rockview.” (Id.). The court agrees with the Magistrate Judge that such allegations,
even if proved true, could not state a claim for deliberate indifference to a serious
medical need. Plaintiff does not allege that Pensiero failed to treat him, but instead
claims she did not examine him “completely,” or order the x-rays plaintiff felt were
necessary. Plaintiff thus complains about the extent of the treatment provided.
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Courts have found that “[a]llegations of medical malpractice are not sufficient to
establish a Constitutional violation,” and “‘mere disagreement as to the proper
medical treatment’” is also insufficient. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.
2004) (quoting Monmouth County Correctional institutional Inmates v. Lanzaro, 834
F.2d 326, 346 (3d Cir. 1987)).
Moreover, plaintiff does not allege that he suffered from a serious medical
condition. At two points in the complaint, plaintiff alleges that officers twisted his
arms and made him uncomfortable. (See Complt. at 6, ¶ 7; at 8, ¶ 8). “A medical
need is ‘serious,’ . . . if it is ‘one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.’” Monmouth County Correctional Inmates, 834
F.2d at 347 (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979)). A need
may also be serious with “reference to the effect of denying the particular treatment.”
Id. If failing to treat creates an “‘unnecessary and wanton infliction of pain,’” or a
plaintiff is permanently disabled, “the medical need is of the serious nature
contemplated by eighth amendment.” Id. (quoting Estelle v. Gamble, 429 U.S. 97,
103 (1976)). Here, plaintiff asserts that he suffered pain from a twisted arm. He
does not allege that this injury was diagnosed by a doctor or would be obviously
recognized by a lay person, and the injury thus does not qualify as a serious medical
need. See, e.g., Tsakonas v. Cicchi, 308 Fed.Appx. 628, 632 (3d Cir. 2009)
(medical issue of “weight loss, eczema of the feet, seborrhea of the scalp, athlete’s
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foot, constipation, and swollen knuckles on [plaintiff’s] right hand” were not serious
medical conditions). Thus, plaintiff has not stated a claim for cruel and unusual
punishment against Defendant Pensiero.
Plaintiff’s claims against Defendant Burke, a prison psychiatrist, are that he
agreed with plaintiff that he should be housed in a cell with a window, but did nothing
to provide such an assignment. (Complt. at 10, ¶ 10). He also alleges that Burke
did nothing to prevent violations of plaintiff’s rights of which he was aware. (Id.).
The Magistrate Judge found that plaintiff’s complaint regarding the cell window was
part of a larger complaint about the treatment Burke provided plaintiff for his anxiety
disorder. Since plaintiff had alleged that Burke provided treatment, the Magistrate
Judge concluded that plaintiff’s complaint was about the treatment choices Burke
made, and thus could not state an Eighth Amendment complaint. The court agrees.
At the same time, the Magistrate Judge concluded that plaintiff’s complaint regarding
Burke’s failure to prevent violations of plaintiff’s rights, while insufficient, should not
be dismissed with prejudice. Plaintiff should be allowed, the Magistrate Judge
concluded, to re-file his complaint and raise more specific allegations against
Defendant Burke on this matter. The court agrees. Defendant’s allegations of a
failure to protect plaintiff from violations are cursory, but plaintiff could conceivably
state a claim on this issue. The court will therefore adopt the report and
recommendation as it relates to Burke.
Plaintiff alleges that Defendant Navabi, a prison psychologist, attempted to
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convince him not to file a legal action in this court. (Id. at ¶ 12). He also contends
that Navabi participated in a decision to release him prematurely from a psychiatric
observation cell, thus allowing security officers to abuse him. The court agrees with
the Magistrate Judge that these allegations cannot state a claim. As far as plaintiff’s
allegedly early release from psychiatric custody, plaintiff’s allegations are based on a
disagreement with medical treatment he agrees the defendant provided him. As
explained above, such allegations do not state a claim. The court also finds no legal
error in the Magistrate Judge’s conclusion that Defendant’s Navabi’s alleged verbal
harassment of the plaintiff in an attempt to prevent him from filing a lawsuit cannot
state a constitutional claim. See, e.g., Lindsey v. O’Connor, 327 Fed. Appx. 319,
321 (3d Cir. 2009) (“Verbal harassment of a prisoner, although distasteful, does not
violate the Eighth Amendment.”). As such, the court will adopt the report and
recommendation on this point.
B. Allegations of Conspiracy
Plaintiff also insists that the Magistrate Judge failed to address his claims of
conspiracy against the defendants. He alleges that his complaint averred that “all”
defendants participated in the conspiracy to retaliate against him and this claim
should be preserved. The court will overrule this objection as well. As explained
above, the Magistrate Judge thoroughly examined all of plaintiff’s allegations against
the defendants here named and concluded that plaintiff had not stated a claim. The
vague allegations of conspiracy here referenced by the plaintiff do not state a claim
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against these particular defendants. A broad general allegation, without more, does
not provide “sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (2009) (quoting Twombly, 550 U.S.
at 570). These allegations do not allow the court to “draw the reasonable inference
that the defendant is liable for the conduct alleged.” Id.
Conclusion
For the reasons stated above, the court will overrule the plaintiff’s objections to
the report and recommendation, adopt the report and recommendation, and remand
the case to the Magistate Judge for proceedings consistent with this opinion.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK A. ROBINSON,
Plaintiff
:
No. 3:10cv272
:
:
(Judge Munley)
:
:
(Magistrate Judge Mannion)
v.
:
:
FRANKLIN TENNIS, et al.,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 15th day of July 2011, the plaintiff’s objections to the
report and recommendation of Magistrate Judge Malachy E. Mannion (Doc. 72) are
hereby OVERRULED. The report and recommendation is hereby ADOPTED. The
motions to dismiss of defendants Pengiero, Burke, and Nabavi (Docs. 27, 36) are
hereby GRANTED. The motions of Defendants Pengiero and Nabavi are hereby
GRANTED WITH PREJUDICE and the Clerk of Court is directed to CLOSE the
case against those defendants. Defendant Burke’s motion to dismiss is granted
WITH PREJUDICE with reference to plaintiff’s Eighth Amendment claim, but without
prejudice with reference to plaintiff’s retaliation or other free-speech claim against
Defendant Burke. Plaintiff shall file an amended complaint as directed by this
opinion within twenty (20) days of the date of this order. The Clerk of Court is
directed to REMAND the case to Magistrate Judge Mannion for proceedings
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consistent with this opinion.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
UNITED STATES DISTRICT COURT
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