Duganne v. Giroux et al

Filing 50

MEMORANDUM (Order to follow as separate docket entry) re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in Amended Complaint filed by Corizon Medical Department, Dr. Famiglio, 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Clemens, Harding, Wendy Nicholas, Frank Welsh, Moore, Boyles, Giroux Signed by Honorable Malachy E Mannion on 9/15/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(bs)

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manic depressive, mood swings that are so severe, can't
think clearly....
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Dawn BALL, Plaintiff,
v.
Dr. FAMIGLIO, et al., Defendants.
Civil No. 1:11–CV–1834.
March 14, 2012.
Jaime B. Boyd, Chief Counsel‘s Office, Mechanicsburg,
PA,Kathryn M. Kenyon, Pietragallo Gordon Alfano
Bosick & Raspanti LLP Chief Counsel'S Office, Chief
Counsel’ SS Office,Jaime B. Boyd. Mechanicsburg, PA,
for Defendants.
Dawn Ball, Muncy, PA, pro se.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, United States Magistrate Judge.
I. Statement of Facts and of the Case
A. Dawn Marie Ball's Litigation History
*1 Dawn Ball's current circumstances inspire both
sorrow and concern. Dawn Ball is an inmate housed in the
Restricted Housing Unit at the State Correctional
Institution (SCI) Muncy, who by her own account suffers
from a cascading array of severe mental illnesses, and who
has candidly acknowledged that she is profoundly
disturbed, informing the Court that:
My mental health is declining. I suffer from OCD so
bad I scrub my hands till they bleed, confusion, PTSD,
disassociative disorder, I smell, see and hear things not
there, severely stressed, phobias, agoraphobia, severe
anxiety, lack of interest in things, lack of arousal in
things, racing thoughts, suicidal, cognitive problems and
disorders, lack of interest in life, disoriented, dizzyness,
paranoid-schizophrenic, constant worry, frightened
scared, can't properly care for myself, tics, bipolar,

Ball v. Beard, No. 1:09–CV–845 (Doc. 42, pp. 6–7)
Furthermore. Ball is also an inmate who has reported
to the Court that she engages in multiple episodes of
destructive, self-defeating and senseless behavior. For
example, recurring themes in Ball's lawsuits include Ball's
penchant for smearing feces on herself and her cell, her
destruction of her own clothing, and her use of her
clothing to plug her toilet and flood her cell with water
and human waste. Ball is also, by her own admission, an
inmate with a propensity for sudden, explosive rages, as
illustrated by the civil complaint which she has filed Ball
v. Barr, No. 1: 11–CV2240 (M.D.Pa.). In this complaint,
Ball describes an episode in which a discussion regarding
the aesthetic qualities of a piece of cornbread escalated in
a matter of moments into a profanity-laced wrestling
match over a food tray.
While she suffers from paranoia, schizophrenia, and
experiences these visual and auditory hallucinations, Ball
is also a prodigious federal court litigant, bringing
numerous lawsuits based upon her perception of the events
that take place around her in prison. Indeed, at present
Ball has a total of twenty-two lawsuits pending before this
Court.FN1 Ball is also a prodigiously unsuccessful litigant,
who has had at least three prior lawsuits dismissed either
as frivolous or on the grounds that the lawsuit failed to
state a claim upon which relief could be granted.
FN1. See, e.g., Ball v. SCI Muncy, No.
1:08–CV–700 (M.D.Pa.); Ball v. SCIMuncy, No.
1:08–CV–701 (M.D.Pa.); Ball v. Hill, No.
1:09–CV–773 (M.D.Pa.); Ball v. Beard, No.
1:09–CV–845 (M.D.Pa.); Ball v. Lamas, No.
1:09–CV–846, (M.D.Pa.); Ball v. Oden, No
1:09–CV–847 (M. D.Pa.); Ball v. Bower, No.
1:10–CV–2561 (M.D.Pa.); Ball v. Sisley, No.
1:11–CV–877 (M.D.Pa.); Ball v. Struther, No.
1:11–CV–1265 (M.D.Pa.); Ball v. Hummel, No.
1:11–CV–1422 (M.D.Pa.); Ball v. Beckley, No.

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1:11–CV–1829 (M.D.Pa.); Ball v. Sipe, No.
1:11–CV–1830 (M.D.Pa.); Ball v. Craver, No.
1:11–CV–1831 (M.D.Pa.); Ball v. Powley, No.
1:11–CV–1832 (M.D.Pa.); Ball v. Cooper, No.
1:11–CV–1833 (M.D.Pa.); Ball v. Famiglio, No.
1:11–CV–1834 (M.D.Pa.); Ball v. Eckroth, No.
1:11–CV–2238 (M.D.Pa.); Ball v. Campbell, No.
1:11–CV–2239 (M.D.Pa.); Ball v. Barr, No.
1:11–CV–2240 (M.D.Pa.); Ball v. Giroux, No.
1:12–CV–10 (M.D.Pa.); Ball v. Giroux, No.
1:12–CV–11 (M.D.Pa.); Ball v. Curham, No.
1:12–CV–12 (M.D.Pa.).

if she refrains from signing up for sick calls, conduct that
Ball describes as a “bribe.” (Id.)
Ball further alleges that two corrections staff, Judy Rowe
and Gloria Duggan, “made derogatory and slanderous
statements against me on their grievance responses. They
said I put my fingers in feces and smear it on [medical]
requests which is not true.” (Id .) Ball also contends that
these medical scheduling staff, and another medical
scheduler identified only as Jane Doe, have improperly
refused to handle her medical request forms because of
these claims that Ball smears fecal material on the forms.
(Id.)

B. Ball's Current Lawsuit
It is against the backdrop that Ball instituted the
current lawsuit. In this pro se complaint, which Ball filed
on October 4, 2011, the plaintiff names 11 defendants and
recites a series of medical and scheduling complaints
which she has against these prison staff.
At the outset, Ball alleges that four
defendants-Lieutenants Hummel, Neese, Barto and Dr.
Famiglio-have refused and canceled eye appointments for
her for two years. According to Ball, as a result of this
failure to treat her eyes, “I'm losing my vision.” (Doc. 1)
Ball further alleges that Lieutenant Hummel has also
refused her other medical appointments in March and
April 2011. The nature of these medical appointments is
not further described by Ball.
*2 Ball's October 4, 2011, complaint then alleges that
another defendant, Dawn Werner, has not ordered new
glasses for the plaintiff, to replace a pair of glasses broken
in September 2011. Ball further complains that a prison
psychologist, defendant D'Addio, gave her medical
records to a state hospital without her permission, and
“told my private business to corrections officers.”
According to Ball this “private business” involved the fact
that Ball “was going to have a pysch evaluation done for
the court.” (Id.)
Ball's October 4, 2011, complaint then levels another
allegation against Dr. Famiglio. This allegation, ironically,
seems to involve the doctor providing some extra degree
of medical care to Ball. Specifically, Ball complains that
the doctor has offered her skin lotion, and other medicines,

In addition, Ball's complaint reflects that she has a concern
that pap smear test results may reveal abnormalities, but
that four defendants-Dr. Famiglio, Dr. Gothwal, Judy
Rowe, and Gloria Duggan-“won't tell me the results or
they say the results are fine and they are not.” (Id.) On the
basis this bald assertion by Ball that she does not believe
medical staff when they tell her she is fine, the plaintiff
seeks to sue these individual defendants. (Id.)
Further, Ball alleges that Dr. Gothwal, and Dr. Famiglio
declined to see her on three occasions in April 2011 and
twice in May 2011. Ball does not indicate what, if any,
medical problems she was experiencing at the time that
these physicians declined to see her on these specific
dates. (Id.)
Finally, Ball alleges generally that the defendants
have not provided her with adequate health care, and have
inappropriately discontinued various medications which
she has received in the past. (Id.)
Ball's complaint then provides a confused and
contradictory account of her efforts to exhaust here
administrative remedies regarding these various medical
complaints, stating: “I believe I exhausted all these claims.
If not, I was on grievance restriction or my mail was
held....They refused to send my mail and they made me
miss the deadlines around 5/3/11 and did not give me the
mail with grievances back till around 5–6–11.” (Id.)
On the basis of these allegations, Ball sues each of the
11 named defendants, seeking injunctive and declaratory

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relief, as well as punitive and compensatory damages of
$5,000,000 each. (Id.) The defendants have now filed a
motion to dismiss Ball's complaint, (Doc. 51), arguing that
Ball has failed to exhaust her administrative remedies and
has further failed to state claims upon which relief can be
granted. (Id.) This motion has been fully briefed by the
parties, (Docs. 52, and 63), and is now ripe for resolution.
For the reasons set forth below, it is recommended that
this motion to dismiss be granted, in part, and denied, in
part, as follows:
II. Discussion
A. Rule 12(b)(6) and Rule 56—The Governing Legal
Standards
*3 The defendant has filed a motion to dismiss this
complaint under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, which provides that a complaint should
be dismissed for “failure to state a claim upon which relief
can be granted.” Fed.R.Civ.P. 12(b) (6). With respect to
this benchmark standard for legal sufficiency of a
complaint, the United States Court of Appeals for the
Third Circuit has aptly noted the evolving standards
governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of
jurisprudence in recent years. Beginning with the
Supreme Court's opinion in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d
929 (12007) continuing with our opinion in Phillips v.
County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008)
and culminating recently with the Supreme Court's
decision in Ashcroft v. Iqbal 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) pleading standards have
seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to
plead more than the possibility of relief to survive a
motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209–10
(3d Cir.2009).
In considering whether a complaint fails to state a
claim upon which relief may be granted, the court must
accept as true all allegations in the complaint and all
reasonable inferences that can be drawn from the

complaint are to be construed in the light most favorable
to the plaintiff. Jordan v. Fox Rothschild, O'Brien &
Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir.1994).
However, a court “need not credit a complaint's bald
assertions or legal conclusions when deciding a motion to
dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906 (3d Cir.1997). Additionally a court need not
“assume that a ... plaintiff can prove facts that the ...
plaintiff has not alleged.” Associated Gen. Contractors
of Cal. v. California State Council of Carpenters, 459
U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). As
the Supreme Court held in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), in
order to state a valid cause of action a plaintiff must
provide some factual grounds for relief which “requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of actions will not
do.” Id. at 555. “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id. In
keeping with the principles of Twombly, the Supreme
Court has underscored that a trial court must assess
whether a complaint states facts upon which relief can be
granted when ruling on a motion to dismiss. In Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009), the Supreme Court held that, when considering a
motion to dismiss, a court should “begin by identifying
pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.” Id. at 1950.
According to the Supreme Court, “[t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 1949. Rather,
in conducting a review of the adequacy of complaint, the
Supreme Court has advised trial courts that they must:
*4 [B]egin by identifying pleadings that because they
are no more than conclusions are not entitled to the
assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be
supported by factual allegations. When there are
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 1950.
Thus, following Twombly and Iqbal a well-pleaded

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complaint must contain more than mere legal labels and
conclusions. Rather, a complaint must recite factual
allegations sufficient to raise the plaintiff's claimed right
to relief beyond the level of mere speculation. As the
United States Court of Appeals for the Third Circuit has
stated:
[A]fter Iqbal, when presented with a motion to dismiss
for failure to state a claim, district courts should conduct
a two-part analysis. First, the factual and legal elements
of a claim should be separated. The District Court must
accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions. Second, a
District Court must then determine whether the facts
alleged in the complaint are sufficient to show that the
plaintiff has a “plausible claim for relief.” In other
words, a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to
“show” such an entitlement with its facts.
Fowler, 578 F.3d at 210–11.
In practice, consideration of the legal sufficiency of a
complaint entails a three-step analysis: “First, the court
must ‘tak[e] note of the elements a plaintiff must plead to
state a claim .’ Iqbal, 129 S.Ct. at 1947. Second, the court
should identify allegations that, ‘because they are no more
than conclusions, are not entitled to the assumption of
truth.’ Id. at 1950. Finally, ‘where there are well-pleaded
factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement for relief.’ Id.” Santiago v. Warminster Tp.,
629 F.3d 121, 130 (3d Cir.2010).
In addition to these pleading rules, a civil complaint
must comply with the requirements of Rule 8(a) of the
Federal Rule of Civil Procedure which defines what a
complaint should say and provides that:
(a) A pleading that states a claim for relief must contain
(1) a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support; (2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a
demand for the relief sought, which may include relief

in the alternative or different types of relief.
B. Legal Standards Governing Eighth Amendment
“Deliberate Indifference” Claims in a Prison Medical
Context
These pleading principles apply with particular force
to claims, like those made by Ball, which are premised on
the degree of medical care which a prisoner receives.
Liberally construed, the gravamen of Ball's complaint is
that prison officials have violated her rights under the
Eighth Amendment to the United States Constitution by
displaying “deliberate indifference” to this inmate's
medical needs. Ball faces an exacting burden in advancing
this Eighth Amendment claim against prison officials in
their individual capacities. To sustain such a claim, she
must plead facts which:
*5 [M] eet two requirements: (1) “the deprivation
alleged must be, objectively, sufficiently serious;” and
(2) the “prison official must have a sufficiently culpable
state of mind.” Farmer v. Brennan, 511 U.S. 825, 834,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation
marks and citations omitted). In prison conditions cases,
“that state of mind is one of ‘deliberate indifference’ to
inmate health or safety.” Id. “Deliberate indifference” is
a subjective standard under Farmer-the prison
official-defendant must actually have known or been
aware of the excessive risk to inmate safety.
Beers–Capitol v. Whetzel, 256 F.3d 120, 125 (3d
Cir.2001).
By including a subjective intent component in this Eighth
Amendment benchmark, the courts have held that a mere
generalized knowledge that prisons are dangerous places
does not give rise to an Eighth Amendment claim. See
Jones v. Beard, 145 F. App'x 743 (3d Cir.2005) (finding
no Eighth Amendment violation where inmate-plaintiff
complained about cellmate who had a history of
psychological problems, but where plaintiff failed to
articulate a specific threat of harm during the weeks prior
to an attack.) In short, when “analyzing deliberate
indifference, a court must determine whether the prison
official ‘acted or failed to act despite his knowledge of a
substantial risk of serious harm.’ Farmer v. Brennan, 511
U.S. 825, 841, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
A prisoner plaintiff must prove that the prison official

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‘knows of and disregards an excessive risk to inmate
health or safety.’ Id. at 837.” Garvey v. Martinez,
08–2217, 2010 WL 569852, at *6 (M.D.Pa. Feb.11,
2010).
These principles apply with particular force to Eighth
Amendment claims premised upon inadequate medical
care. In the medical context, a constitutional violation
under the Eighth Amendment occurs only when state
officials are deliberately indifferent to an inmate's serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 105, 97
S.Ct. 285, 50 L.Ed.2d 251 (1976). To establish a violation
of his constitutional right to adequate medical care in
accordance with this standard, Ball is required to allege
facts that demonstrates (1) a serious medical need, and (2)
acts or omissions by prison officials that indicate
deliberate indifference to that need. Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir.1999).
Deliberate indifference to a serious medical need involves
the “unnecessary and wanton infliction of pain.” Estelle,
429 U.S. at 104. Such indifference may be evidenced by
an intentional refusal to provide care, delayed provision of
medical treatment for non-medical reasons, denial of
prescribed medical treatment, denial of reasonable
requests for treatment that results in suffering or risk of
injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d
Cir.1993), or “persistent conduct in the face of resultant
pain and risk of permanent injury,” White v. Napoleon,
897 F.2d 103, 109 (3d Cir.1990).
However, it is also clear that the mere misdiagnosis of
a condition or medical need, or negligent treatment
provided for a condition, is not actionable as an Eighth
Amendment claim because medical malpractice standing
alone is not a constitutional violation. Estelle, 429 U.S. at
106. “Indeed, prison authorities are accorded considerable
latitude in the diagnosis and treatment of prisoners.”
Durmer, 991 F.2d at 67 (citations omitted). Furthermore,
in a prison medical context, deliberate indifference is
generally not found when some significant level of
medical care has been offered to the inmate. Clark v. Doe,
2000 U.S. Dist. LEXIS 14999, 2000 WL 1522855, at *2
(E.D.Pa. Oct.13, 2000) (“courts have consistently rejected
Eighth Amendment claims where an inmate has received
some level of medical care”). Thus, such complaints fail

as constitutional claims under § 1983 since “the exercise
by a doctor of his professional judgment is never
deliberate indifference. See e.g., 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.’)”. Gindraw v. Dendler, 967 F.Supp. 833, 836
(E.D.Pa.1997).
*6 Applying this exacting standard, courts have frequently
rejected Eighth Amendment claims that are based upon the
level of professional care that an inmate received; see,
e.g., Ham v. Greer, 269 F. App'x 149 (3d Cir.2008);
James v. Dep't of Corrections, 230 F. App'x 195 (3d.
Cir.2007); Gillespie v. Hogan, 182 F. App'x 103 (3d
Cir.2006); Bronson v. White, No. 05–2150, 2007 WL
3033865 (M.D.Pa. Oct.15, 2007); Gindraw v. Dendler,
967 F.Supp. 833 (E.D.Pa.1997), particularly where it can
be shown that significant medical services were provided
to the inmate but the prisoner is dissatisfied with the
outcome of these services. Instead, courts have defined the
precise burden which an inmate must sustain in order to
advance an Eighth Amendment claim against a healthcare
professional premised on allegedly inadequate care,
stating that:
The district court [may] properly dis[miss an] Eighth
Amendment claim, as it concerned [a care giver],
because [the] allegations merely amounted to a
disagreement over the proper course of his treatment
and thus failed to allege a reckless disregard with
respect to his ... care. The standard for cruel and unusual
punishment under the Eighth Amendment, established
by the Supreme Court in Estelle v. Gamble, 429 U.S.
97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and its
progeny, has two prongs: 1) deliberate indifference by
prison officials and 2) serious medical needs. “It is
well-settled that claims of negligence or medical
malpractice, without some more culpable state of mind,
do not constitute ‘deliberate indifference.’ “ “Nor does
mere disagreement as to the proper medical treatment
support a claim of an eighth amendment violation.”....
[The inmate] alleged no undue delay in receiving
treatment and, as the district court noted, the evidence
he presented established that he received timely care....
Although [an inmate plaintiff] may have preferred a

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different course of treatment, [t]his preference alone
cannot establish deliberate indifference as such
second-guessing is not the province of the courts.
James, 230 F.App'x. at 197–198.(citations omitted).
Furthermore, it is well-settled that an inmate's
dissatisfaction with a course of medical treatment,
standing alone, does not give rise to a viable Eighth
Amendment claim. See Taylor v. Norris, 36 Fed. Appx.
228, 229 (8th Cir.2002) (deliberate indifference claim
failed when it boiled down to a disagreement over
recommended treatment for hernias and decision not to
schedule a doctor's appointment); AbdulWadood v.
Nathan, 91 F.3d 1023, 1024–35 (7th Cir.1996) (inmate's
disagreement with selection of medicine and therapy for
sickle cell anemia falls well short of demonstrating
deliberate indifference); Sherrer v. Stephen, 50 F.3d 496,
497 (8th Cir.1994) (inmate's “desire for a replacement
joint instead of fusion surgery is merely a disagreement
with the course of medical treatment and does not state a
constitutional claim”); Kayser v. Caspari, 16 F.3d 280,
281 (8th Cir.1994) (prison provided escalating level of
treatment for inmates's ailments over time, and inmate's
disagreement with course of medical treatment was
insufficient basis for Eighth Amendment violation);
Czajka v. Caspari, 995 F.2d 870, 871 (8th Cir.1993)
(inmate's mere disagreement with doctor's informed
decision to delay surgery does not establish Eighth
Amendment claim); Smith v. Marcantonio, 910 F.2d 500,
502 (8th Cir.1990) (inmate failed to prove deliberate
indifference where his complaints represented nothing
more than mere disagreement with course of his medical
treatment); Lair v. Oglesby, 859 F.2d 605, 606 (8th
Cir.1988) (disagreement about whether doctor should have
prescribed medication does not result in constitutional
violation); Martin v. Sargent, 780 F.2d 1334, 1339 (8th
Cir.1985) (Inmate failed to state facts indicating doctor
deliberately disregarded his medical problem; inmate's
disagreement as to proper medical treatment does not give
rise to Eighth Amendment violation). Therefore, where a
dispute in essence entails nothing more than a
disagreement between an inmate and doctors over
alternate treatment plans, the inmate's complaint will fail
as a constitutional claim under § 1983; see e.g., Gause v.
Diguglielmo, 339 F. App'x 132 (3d Cir.2009) (dispute

over choice of medication does not rise to the level of an
Eighth Amendment violation); Innis v. Wilson, 334 F.
App'x 454 (3d Cir.2009) (same); Rozzelle v. Rossi, 307 F.
App'x 640 (3d Cir.2008) (same); Whooten v. Bussanich,
248 F. App'x 324 (3d Cir.2007) (same); Ascenzi v. Diaz,
247 F. App'x 390 (3d Cir.2007) (same), since “the
exercise by a doctor of his professional judgment is never
deliberate indifference.” Gindraw v. Dendler, 967 F.Supp.
833, 836 (E.D.Pa.1997) (citations omitted). In short, in the
context of the Eighth Amendment, any attempt to
second-guess the propriety or adequacy of a particular
course of treatment is disavowed by courts since such
determinations remain a question of sound professional
medical judgment. Inmates of Allegheny County Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir.1979) (quoting Bowring
v. Godwin, 551 F.2d 44, 48 (4th Cir.1977)).
C. Except for Those Claims Relating to Incidents
Occurring in September 2011, At This Time Disputed
Factual Issues Preclude The Court from Reaching a
Judgment as a Matter of Law Regarding Whether Ball
Failed to Properly Exhaust Her Administrative
Remedies
*7 Moreover, in this case, the defendants also assert
a procedural hurdle to Ball maintaining this action, urging
the Court to dismiss the plaintiff's claims because Ball has
failed to timely exhaust the administrative remedies
available to her. Ball, in turn, has countered this defense
claim by asserting that corrections officials frustrated her
efforts to exhaust these claims in a timely fashion by
placing her on a grievance restriction. However, with
respect to this issue, Ball's pleadings are confused and
contradictory, with Ball stating: “I believe I exhausted all
these claims. If not, I was on grievance restriction or my
mail was held....They refused to send my mail and they
made me miss the deadlines around 5/3/11 and did not
give me the mail with grievances back till around 5–6–11
.” (Id.)
This dispute, which comes before the Court on an
incomplete factual record, may be critically important
because Ball's alleged failure to timely pursue these
administrative remedies can have substantive significance
for the plaintiff since the Prison Litigation Reform Act
provides that “[n] o action shall be brought with respect to
prison conditions under ... [42 U.S.C. § 1983], or any
other Federal law, by a prisoner confined in any jail,

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prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). Section 1997e's exhaustion
requirement applies to a wide-range of inmate complaints,
including damages complaints like those made by Jones
grounded in alleged violations of the Eighth Amendment.
See Spruill v. Gillis, 372 F.3d 218 (3d. Cir.2004); Booth
v. Churner, 206 F.3d 289 (3d Cir.2000). While this
exhaustion requirement is not a jurisdictional bar to
litigation, this requirement is strictly enforced by the
courts. This rigorous enforcement is mandated by a
fundamental recognition that § 1997e's exhaustion
requirement promotes important public policies. As the
United States Court of Appeals for the Third Circuit has
noted:
Courts have recognized myriad policy considerations in
favor of exhaustion requirements. They include (1)
avoiding premature interruption of the administrative
process and giving the agency a chance to discover and
correct its own errors; (2) conserving scarce judicial
resources, since the complaining party may be
successful in vindicating his rights in the administrative
process and the courts may never have to intervene; and
(3) improving the efficacy of the administrative process.
Each of these policies, which Congress seems to have
had in mind in enacting the PLRA, is advanced by the
across-the-board, mandatory exhaustion requirement in
§ 1997e(a).... [A] a comprehensive exhaustion
requirement better serves the policy of granting an
agency the “opportunity to correct its own mistakes with
respect to the programs it administers before it is haled
into federal court.” Moreover, “even if the complaining
prisoner seeks only money damages, the prisoner may
be successful in having the [prison] halt the infringing
practice” or fashion some other remedy, such as
returning personal property, reforming personal
property policies, firing an abusive prison guard, or
creating a better screening process for hiring such
guards. And when a prisoner obtains some measure of
affirmative relief, he may elect not to pursue his claim
for damages. In either case, local actors are given the
chance to address local problems, and at the very least,
the time frame for the prisoner's damages is frozen or
the isolated acts of abuse are prevented from recurring.
An across-the-board exhaustion requirement also

promotes judicial efficiency.... In cases in which
inmate-plaintiffs exhaust their remedies in the
administrative process and continue to pursue their
claims in federal court, there is still much to be gained.
The administrative process can serve to create a record
for subsequent proceedings, it can be used to help focus
and clarify poorly pled or confusing claims, and it
forces the prison to justify or explain its internal
procedures. All of these functions help courts navigate
the sea of prisoner litigation in a manner that affords a
fair hearing to all claims.
*8 Nyhuis v. Reno, 204 F.3d 65, 75–76 (3d Cir.2000)
(citations omitted).
Because of the important policies fostered by this
exhaustion requirement, it has been held that there is no
futility exception to § 1997e's exhaustion requirement. Id.
Instead, courts have typically required across-the-board
administrative exhaustion by inmate plaintiffs who seek to
pursue claims in federal court. Moreover, courts have also
imposed a procedural default component on this
exhaustion requirement, holding that inmates must fully
satisfy the administrative requirements of the inmate
grievance process before proceeding into federal court.
Spruill v. Gillis, 372 F.3d 218 (3d Cir.2004). Applying
this procedural default standard to § 1997e's exhaustion
requirement, courts have concluded that inmates who fail
to fully, or timely, complete the prison grievance process
are barred from subsequently litigating claims in federal
court. See, e.g., Booth v. Churner, 206 F.3d 289 (3d
Cir.2000); Bolla v. Strickland, 304 F. App'x. 22 (3d
Cir.2008); Jetter v. Beard, 183 F. App'x. 178 (3d
Cir.2006). This requirement of strict adherence to the
timetables prescribed by prison grievance policies is
compelled by the important policies underlying the PLRA.
As the Supreme Court has noted: “Proper exhaustion
demands compliance with an agency's deadlines and other
critical procedural rules because no adjudicative system
can function effectively without imposing some orderly
structure on the course of its proceedings.” Woodford v.
Ngo, 548 U.S. 81, 90–91, 126 S.Ct. 2378, 165 L.Ed.2d
368 (2006).
This broad rule admits of one, narrowly defined exception.
If the actions of prison officials directly caused, or

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contributed to, the inmate's procedural default on a
grievance, the inmate will not be held to strict compliance
with this exhaustion requirement. See Camp v. Brennan,
219 F.3d 279 (3d. Cir.2000). However, case law
recognizes a clear “reluctance to invoke equitable reasons
to excuse [an inmate's] failure to exhaust as the statute
requires.” Davis v. Warman, 49 F. App'x 365, 368 (3d
Cir.2002). Thus, an inmate's failure to exhaust will only be
excused “under certain limited circumstances,” Harris v.
Armstrong, 149 F. App'x 58, 59 (3d Cir.2005), and an
inmate can 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.” Davis v. Warman, supra, 49
F. App'x at 368. See also, Brown v. Croak, 312 F.3d 109,
110 (3d Cir.2002) (assuming that prisoner with failure to
protect claim is entitled to rely on instruction by prison
officials to wait for outcome of internal security
investigation before filing grievance); Camp v. Brennan,
219 F.3d 279, 281 (3d Cir.2000) (exhaustion requirement
met where Office of Professional Responsibility fully
examined merits of excessive force claim and
uncontradicted correctional officers impeded filing of
grievance).
*9 In the absence of competent proof that an inmate
was misled by corrections officials, was impeded in filing
a timely grievance, or some other extraordinary
circumstances intervened and prevented compliance with
the grievance process, inmate requests to excuse a failure
to exhaust are frequently rebuffed by the courts. Thus, an
inmate cannot excuse a failure to timely comply with these
grievance procedures by simply claiming that his efforts
constituted “substantial compliance” with this statutory
exhaustion requirement. Harris v. Armstrong, 149 F.App'x
58, 59 (3d Cir.2005). Nor can an inmate avoid this
exhaustion requirement by merely alleging that the
Department of Corrections policies were not clearly
explained to him. Davis v. Warman, 49 F. App'x 365, 368
(3d Cir.2002). Thus, an inmate's confusion regarding these
grievances procedures does not, standing alone, excuse a
failure to exhaust. Casey v. Smith, 71 F. App'x 916 (3d
Cir.2003). Moreover, an inmate cannot cite to alleged staff
impediments to grieving a matter as grounds for excusing
a failure to exhaust, if it also appears that the prisoner did
not pursue a proper grievance once those impediments

were removed. Oliver v. Moore, 145 F. App'x 731 (3d
Cir.2005) (failure to exhaust not excused if, after staff
allegedly ceased efforts to impede grievance, prisoner
failed to follow through on grievance).
In this case, Ball alleges that she either exhausted her
grievances, or was on a grievance restriction which
prevented her from timely exhausting her administrative
remedies. However, Ball's pleadings recite that she was
only subject to a grievance restriction in May of 2011. The
defendants, in turn, have provided the Court with nothing
detailing Ball's grievance history, or identifying when Ball
may have been subject to grievance restrictions. On this
incomplete factual record, at this time there are
unresolved, threshold factual questions which prevent us
from reaching any final conclusions regarding whether this
exhaustion requirement has been satisfied, or should be
excused, with respect to all of Ball's claims which pre-date
August 2011. As to these claims, Ball's assertion that she
completed the grievance process, coupled with her claim
that she was on a grievance restriction in May of 2011, if
true, could excuse her delay in exhausting his
administrative remedies. See, e.g., Brown v. Croak, 312
F.3d 109, 110 (3d Cir.2002) (assuming that prisoner with
failure to protect claim is entitled to rely on instruction by
prison officials to wait for outcome of internal security
investigation before filing grievance); Camp v. Brennan,
219 F.3d 279, 281 (3d Cir.2000) (exhaustion requirement
met where Office of Professional Responsibility fully
examined merits of excessive force claim and
uncontradicted correctional officers impeded filing of
grievance). At a minimum, these unresolved questions
create a factual dispute which precludes dismissal of these
claims at this time. Indeed, where there are factual
questions concerning the extent to which an inmate's
efforts to exhaust his grievances were impeded or delayed
by the actions of prison officials, judgment in favor of the
defendants clearly is not appropriate. See, e.g., Knauss v.
Shannon, No. 08–1698, 2010 WL 569829 (M.D.Pa.
Feb.12, 2010); Born v. Monmouth County Correctional
Institution, No. 07–3771, 2008 WL 4056313 (D.N.J.
Aug.28, 2008).
*10 Thus, at present, disputed issues of material fact
prevent us from reaching any final conclusions on the
question of whether Ball timely exhausted her

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administrative remedies with respect to claims which
pre-date August 2011. Therefore, it is recommended that
this motion to dismiss be denied as to these claims without
prejudice to the renewal of this defense on a more
complete factual record.
However, with respect to the claims that Ball makes
relating to conduct occurring in September of 2011,
dismissal of these claims on exhaustion grounds is
appropriate. Ball's pleadings do not assert that she was
subject to any grievance restriction in September 2011,
and the defendants aptly note that the timing of her claims
makes it impossible for Ball to have exhausted her
administrative remedies with respect to these particular
matters.
This legal impossibility stems from the fact that the
administrative procedure that state inmates must use to
prosecute grievances is provided for in Department of
Corrections Administrative Directive 804 (Doc. 48, Ex. B,
“DC–ADM 804”). The grievance system is comprised of
three tiers. Pursuant to DC–ADM 804, the first step in the
inmate grievance process, except for those expressly
governed by other procedures, is an initial review. At this
stage, an inmate must submit a grievance within 15
working days of the event on which the grievance is based.
(Id.) An inmate who is dissatisfied with the initial decision
may appeal to the Facility Manager within 10 working
days from the date of the initial review decision. (Id.) At
a state correctional institution, the Facility Manager is the
institution's Superintendent. If an inmate is not satisfied
with the result of the Facility Manager's review of his
appeal, he may appeal to final review with the Secretary's
Office of Inmate Grievances and Appeals by filing an
appeal with that office within 15 working days of the date
of the Facility Manager's decision. Extensions to these
deadlines could be granted at the discretion of the agency
if the inmate submitted a written explanation for a failure
to timely file the grievance or an appeal. (DC–ADM
804(VI)(B)(3), (VI)(C)(2) (a), (VI)(D)(1)(c).) Since this
process requires more than 30 days to complete, it is
impossible for Ball to have fully exhausted these
grievances as to matters occurring in September 2011
prior to the filing of her civil complaint on October 4,
2011. Since “[p]roper exhaustion demands compliance
with an agency's deadlines and other critical procedural

rules because no adjudicative system can function
effectively without imposing some orderly structure on the
course of its proceedings,” Woodford v. Ngo, 548 U.S. 81,
90–91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), Ball's
failure to complete the grievance process as to these
September 2011 claims requires their dismissal from this
action at this time.
D. Many of Ball's Remaining Claims Fail On Their
Merits
1. Ball May Not Bring a Private Cause of Action Against
Defendant D'Addio Under HIPAA
*11 In addition to this procedural obstacle, many of
Ball's remaining claims fail on their merits. For example,
in her complaint Ball alleges that a prison psychologist,
defendant D'Addio, gave her medical records to a state
hospital without her permission, and “told my private
business to corrections officers.” According to Ball this
“private business” involved the fact that Ball “was going
to have a pysch evaluation done for the court.” Thus,
liberally construed, Ball appears to be advancing a novel
claim to a private right of action under the Health
Insurance Portability and Accountability Act of 1996
(HIPAA), 42 U.S.C. § 201, alleging that defendant
D'Addio violated this health care statute by publicly
disclosing health information.
This novel claim warrants only brief consideration.
The courts that have examined HIPAA have generally
concluded “that HIPAA does not create such a private
right [of action for individual plaintiffs]. See Rigaud v.
Garofalo, 2005 WL 1030196 (E.D.Pa.2005); Dominic J.
v. Wyoming Valley West High School, 362 F.Supp.2d 560
(M.D.Pa.2005); O'Donnell v. Blue Cross Blue Shield of
Wyoming, 173 F.Supp.2d 1176 (D.C.Wyo.2001); Brock v.
Provident Am. Ins. Co., 144 F.Supp.2d 652
(N.D.Tex.2001); Means v. Indep. Life and Accident
Insurance Co., 963 F.Supp. 1131 (M.D.Ala.1997); Wright
v. Combined Insurance Co. of America, 959 F.Supp. 356
(N.D.Miss.1997).” Carney v. Snyder, No. 06–23, 2006
WL 2372007, *4 (W.D.Pa. Aug.15, 2006). Therefore,
Ball simply may not maintain a private HIPAA claim
against this defendant arising out of the disclosure of her
“private business.”

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2. Many of Ball's Eighth Amendment Medical Care
Claims Also Fail
In addition, many of the discrete Eighth Amendment
medical care claims advanced by Ball simply fail as a
matter of law. As we have noted, in this setting:
The standard for cruel and unusual punishment under
the Eighth Amendment, established by the Supreme
Court in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976), and its progeny, has two
prongs: 1) deliberate indifference by prison officials and
2) serious medical needs. “It is well-settled that claims
of negligence or medical malpractice, without some
more culpable state of mind, do not constitute
‘deliberate indifference.’ “ “Nor does mere
disagreement as to the proper medical treatment support
a claim of an eighth amendment violation.”....Although
[an inmate plaintiff] may have preferred a different
course of treatment, [t]his preference alone cannot
establish deliberate indifference as such
second-guessing is not the province of the courts.
James, 230 F. App'x at 197–198.(citations omitted).
Judged against this standard we find, at the outset,
that Ball's complaint that in October of 2011 that
defendant, Dawn Werner, had not ordered new glasses for
the plaintiff, to replace a pair of glasses broken in
September 2011, simply does not rise to the level of
deliberate indifference to a serious medical need,
especially since Ball's allegations do not describe any
prolonged denial of eye glasses.
*12 Similarly, without further well-pleaded facts,
Ball's claim against Dr. Famiglio that involves the doctor
providing some extra degree of medical care to Ball, in the
form of offering Ball skin lotion, and other medicines, if
she refrains from signing up for sick calls, does not
describe deliberate indifference to a serious medical
condition. Quite the contrary, despite Ball's efforts to
describe this conduct as a “bribe,” it appears that the
doctor is providing additional, and alternative, care to
Ball, a matter of medical discretion which cannot be fairly
characterized as deliberate indifference to her needs.
While Ball may prefer sick call visits to receipt of this
medication, this disagreement between an inmate and
doctors over alternate treatment plans does not state a

constitutional claim under § 1983. See, Gause v.
Diguglielmo, 339 F. App'x 132 (3d Cir.2009) (dispute
over choice of medication does not rise to the level of an
Eighth Amendment violation).
Similarly, Ball's complaint that Dr. Gothwal, and Dr.
Famiglio declined to see her on three occasions in April
2011 and twice in May 2011, does not state a claim since
Ball does not indicate what, if any, medical problems she
was experiencing at the time that these physicians declined
to see her on these specific dates. In the absence of further
well-stated facts this assertion, standing alone, simply does
not show deliberate indifference to a serious medical need.
At most, it displays a disagreement between an inmate and
a doctor concerning the level of care needed by the
prisoner, a matter which does not state a constitutional
claim under § 1983. See, Gause v. Diguglielmo, supra.
Further, Ball's concern that pap smear test results may
reveal abnormalities, but that four defendants-Dr.
Famiglio, Dr. Gothwal, Judy Rowe, and Gloria
Duggan-“say the results are fine and they are not,” does
not state an Eighth Amendment claim. The fact that Ball
does not believe medical staff when they tell her she is
fine simply does not amount to deliberate indifference to
her serious medical needs.
Finally, Ball's allegations that two corrections staff, Judy
Rowe and Gloria Duggan, “made derogatory and
slanderous statements against me on their grievance
responses. They said I put my fingers in feces and smear
it on [medical] requests which is not true,” does not state
an actionable constitutional claim. In this regard, Ball
seems to invite this Court to address a matter which she
acknowledges has been the subject of on-going prison
grievance proceedings; namely, the question of whether
she smears her own feces on documents given to medical
staff. We will decline this invitation because Ball's
complaint indicates that these statements were allegedly
made in grievance responses that are part of on-going
prison grievance proceedings. In this setting the fact that
Ball can pursue these claims in her grievance proceedings
addresses any concerns she may have since: “[F]iling false
... charges [against an inmate] does not itself violate a
prisoner's constitutional rights, so long as procedural due
process protections were provided. See e.g., Freeman v.

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Rideout, 808 F.2d 949, 952–53 (2d Cir.1986) (the filing
of false charges does not constitute a claim under § 1983
so long as the inmate was granted a hearing and an
opportunity to rebut the charges); Hanrahan v. Lane, 747
F.2d 1137, 1140 (7th Cir.1984).” Richardson v. Sherrer,
344 F. App'x 755, 757–758 (3d Cir.2007). See also Booth
v. Pence, 141 F. App'x 66 (3d Cir.2005); Smith v.
Mensinger, 293 F.3d 641, 653–54 (3d Cir.2002).
3. Ball's Claim That She Has Been Denied Eye Care For
Two Years Is Not Subject to Dismissal
*13 While we conclude that many of Ball's claims fail
on substantive and procedural grounds, we find that one
assertion made by Ball in this complaint is not subject to
dismissal for failure to state a claim upon which relief may
be granted. Ball alleges that four defendants-Lieutenants
Hummel, Neese, Barto and Dr. Famiglio-have refused and
canceled eye appointment for two years. According to
Ball, as a result of this failure to treat her vision “I'm
losing my vision.” (Doc. 1) This assertion, if proven,
would support an Eighth Amendment claim. Therefore,
the defendants' motion to dismiss this particular claim
should be denied.
E. These Flawed Claims Should Be Dismissed Without
Prejudice, and The Plaintiff's Claim for $5,000,000 in
Damages Should be Stricken
While this merits analysis calls for dismissal of many
of the claims set forth in this action, we recommend that
Ball be given another, final opportunity to further litigate
these claims by endeavoring to promptly file a second
amended complaint. We recommend this course mindful
of the fact that in civil rights cases pro se plaintiffs often
should be afforded an opportunity to amend a complaint
before the complaint is dismissed in its entirety, see
Fletcher–Hardee Corp. v. Pote Concrete Contractors, 482
F.3d 247, 253 (3d Cir.2007), unless granting further leave
to amend is not necessary in a case such as this where
amendment would be futile or result in undue delay,
Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004).
Accordingly, it is recommended that the Court provide the
plaintiff with an opportunity to correct these deficiencies
in the pro se complaint, by dismissing this deficient
complaint at this time without prejudice to one final effort
by the plaintiff to comply with the rules governing civil
actions in federal court.

However, we note that the Court should also strike the
claim for a specific sum of unliquidated damages,
$5,000,000, from this pro se complaint. In this regard,
Rule 12(f) of the Federal Rules of Civil Procedure
imposes a duty on the Court to review pleadings and
provides that the Court may upon its own initiative at any
time order stricken from any pleading any immaterial
matter. Fed.R.Civ.P. 12(f). Decisions regarding whether
claims may be stricken from a complaint are properly
presented to a United States Magistrate Judge for
determination in the first instance. Singh v. Superintending
School Committee of the City of Portland, 593 F.Supp.
1315 (D.Me.1984). In this case, Ball's claim for a
specified amount of unliquidated damages violates Local
Rule 8.1 which provides, in part, that:
The demand for judgment required in any pleading in
any civil action pursuant to Fed.R.Civ.P.8(a)(3) may set
forth generally that the party claiming damages is
entitled to monetary relief but shall not claim any
specific sum where unliquidated damages are involved.
The short plain statement of jurisdiction, required by
Fed.R.Civ.P.8(a)(1), shall set forth any amounts needed
to invoke the jurisdiction of the court but no other.
*14 Local Rule 8.1 (emphasis added).
Since this prayer for relief violates Local Rule 8.1 by
specifying a particular amount of unliquidated damages,
that specific dollar claim will be stricken from the
complaint without prejudice to the Plaintiff arguing in any
subsequent trial or hearing on the merits for any
appropriate amount of damages supported by the evidence
III. Recommendation
Accordingly, for the foregoing reasons, IT IS
RECOMMENDED that the defendant's motion to dismiss
be GRANTED, in part, and DENIED, in part, as follows:
The following claims in the Plaintiff's complaint
should be dismissed without prejudice to the plaintiff
endeavoring to correct the defects cited in this report,
provided that the plaintiff acts within 20 days of any
dismissal order:
1. All claims arising out of actions in September, 2011.

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Not Reported in F.Supp.2d, 2012 WL 1886676 (M.D.Pa.)
(Cite as: 2012 WL 1886676 (M.D.Pa.))

2. All claims against defendant Dawn Werner.
3. All claims involving the following matters:
A. Ball's claim against Dr. Famiglio that involves the
doctor providing some extra degree of medical care to
Ball, in the form of offering Ball skin lotion, and other
medicines, if she refrains from signing up for sick calls.
B. Ball's claim that a prison psychologist, defendant
D'Addio, gave her medical records to a state hospital
without her permission, and “told my private business to
corrections officers.”
C. Ball's complaint that Dr. Gothwal, and Dr. Famiglio
declined to see her on three occasions in April 2011 and
twice in May 2011, since Ball does not indicate what, if
any, medical problems she was experiencing at the time
that these physicians declined to see her on these
specific dates.

a habeas corpus petition within fourteen (14) days after
being served with a copy thereof. Such party shall file with
the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically
identify the portions of the proposed findings,
recommendations or report to which objection is made and
the basis for such objections. The briefing requirements
set forth in Local Rule 72.2 shall apply. A judge shall
make a de novo determination of those portions of the
report or specified proposed findings or recommendations
to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The
judge, however, need conduct a new hearing only in his or
her discretion or where required by law, and may consider
the record developed before the magistrate judge, making
his or her own determination on the basis of that record.
The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge
with instructions.
M.D.Pa.,2012.

D. Ball's concern that pap smear test results may reveal
abnormalities, but that four defendants-Dr. Famiglio,
Dr. Gothwal, Judy Rowe, and Gloria Duggan-“say the
results are fine and they are not,” since the fact that Ball
does not believe medical staff when they tell her she is
fine simply does not amount to deliberate indifference
to her serious medical needs.

Ball v. Famiglio
Not Reported in F.Supp.2d, 2012 WL 1886676 (M.D.Pa.)
END OF DOCUMENT

E. Ball's allegations that two corrections staff, Judy
Rowe and Gloria Duggan, “made derogatory and
slanderous statements against me on their grievance
responses. They said I put my fingers in feces and smear
it on [medical] requests which is not true.”
F. Ball's claim for a specific sum of unliquidated
damages., $5,000,000.
The Parties are further placed on notice that pursuant
to Local Rule 72.3:
Any party may object to a magistrate judge's proposed
findings, recommendations or report addressing a motion
or matter described in 28 U.S.C. § 636(b)(1)(B) or making
a recommendation for the disposition of a prisoner case or

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.