STOKES v. WETZEL et al

Filing 6

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 4/30/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Ravanna SPENCER, Plaintiff
v.
Donald KELCHNER, et al., Defendants.
No. 3:06-CV-1099.
Jan. 9, 2007.
Ravanna Spencer, Camp Hill, PA, pro se.
MEMORANDUM AND ORDER
EDWIN M. KOSIK, United States District Judge.
*1 AND NOW, THIS 9th DAY OF JANUARY,
2007, IT APPEARING TO THE COURT THAT:
1. Plaintiff, Ravanna Spencer, an inmate confined at
the State Correctional Institution at Camp Hill,
commenced the instant civil rights action pursuant to 42
U.S.C. § 1983 on May 31, 2006. An amended complaint
was filed on August 21, 2006;
2. The matter was assigned to Magistrate Judge
Thomas M. Blewitt;
3. On September 7, 2006, the Magistrate Judge filed
a thirty-one (31) page Report and Recommendation,
wherein he recommended that:
Based on the foregoing, it is respectfully recommended
that Plaintiff's action as against Defendants Kelchner,
Beard and Law be dismissed. Specifically, we find that
Defendants Kelchner and Beard lack sufficient personal
involvement in this case. We find that Defendant Law,
by denyi n g Plaintiff's grievance, is not sufficiently
involved in the case. We also find no conspiracylaim is
stated as to Defendant Law. We find that Plaintiffs Fifth
Amendment Due Process claim with respect to his
placement in the SMU should be dismissed, and that his
Fourteenth Amendment Equal Protection claim as

against all Defendants should be dismissed. Further, we
find that Plaintiff's claims as against the Defendants in
their official capacities should be dismissed to the extent
that he seeks money damages. We find that Defendants
Southers and Whaling should be dismissed. We find
that Plaintiff has stated a First Amendment retaliation
claim against Defendant Newton, and that he has stated
Eighth Amendment claims against Defendants Newton,
Kalsky and Kahn. Finally, it is recommended that this
case be remanded to the undersigned for further
proceedings.
5. While plaintiff requested an extension of time in
which to file objections to the Report and
Recommendation, which was granted by the court, no
objections were filed to the Report and Recommendation;
AND, IT FURTHER APPEARING THAT:
6. If no objections are filed to a Magistrate Judge's
Report and Recommendation, the plaintiff is not
statutorily entitled to a de novo review of his claims. 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140
(1985). Nonetheless, the usual practice of the district court
is to give “reasoned consideration” to a Magistrate Judge's
report prior to adopting it. Henderson v. Carlson, 812
F.2d 874, 878 (3d Cir.1987);
7. We have reviewed the Magistrate Judge's Report
and we find the factual and legal analysis to be thorough
and accurate. Therefore, we will adopt his
recommendations in their entirety.FN1
FN1. We note that subsequent to the filing of the
Report and Recommendation several additional
filings have been made by the plaintiff. We refer
these subsequent filings to the Magistrate Judge
for disposition.
ACCORDINGLY, IT IS HEREBY ORDERED
THAT:
1. The Report and Recommendation of Magistrate

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Judge Thomas M. Blewitt dated September 7, 2006
(Document 22) is adopted in its entirety; and
2. The above-captioned action is remanded to the
Magistrate Judge for further proceedings.

transporting him to his cell (Eighth Amendment); that he
was cut when restraints were put on him; and that he was
deprived of his personal property while in a strip cell
wearing a suicide smock. Plaintiff's numerous unrelated
claims spanned from March 2006 through May 2006.
(Doc. 1).

REPORT AND RECOMMENDATION
THOMAS M. BLEWITT, United States Magistrate Judge.
Plaintiff, Ravanna Spencer, an inmate at the State
Correctional Institution at Camp Hill, Pennsylvania,
originally filed this § 1983 civil rights action, pro se, on
May 31, 2006. (Doc. 1). Plaintiff also filed a motion for
leave to proceed in forma pauperis. (Doc. 8). Plaintiff
simultaneously filed a Motion to Appoint Counsel, which
the Court denied on June 22, 2006. (Docs. 2 & 11).
Plaintiff's original 15-page Complaint named twenty-two
(22) Defendants employed in various capacities by the
Pennsylvania Department of Corrections. On June 16,
2006, Plaintiff filed a Motion to Amend his Complaint in
order to add new defendants and add new claims not
contained in his original lengthy Complaint. (Doc. 7).
*2 Upon our initial review of Plaintiff's original
Complaint under the Prison Litigation Reform Act of 1995
(the “PLRA”), we found that it contained many unrelated
claims against numerous Defendants, in violation of
Fed.R.Civ.P. 20(a). We found that Plaintiff's original
Complaint did not appear to properly state the personal
involvement of each and every named Defendant with the
numerous unrelated claims. Nor did we find Plaintiff's
original Complaint to be in compliance with Fed.R.Civ.P.
8. We found Plaintiff's original pleading to be completely
unmanageable, and it was impossible for Defendants to
intelligently respond to it.
Plaintiff claimed, in part, that he received improper
medical treatment for his mental health problems (Eight
Amendment); that he was improperly placed in the Special
Management Unit (“SMU”); that he was deprived of
meals; that he was threatened by Corrections Officers
(“CO's”) and made fun of (Eighth Amendment); that he
was denied due process with respect to his grievances
(Fifth Amendment); that he was deprived of yard time and
showers without due process since his bed was not made;
that he was retaliated against for filing grievances (First
Amendment); that excessive force was used on him in

Thus, on June 22, 2006, we directed Plaintiff to file
an Amended Complaint in conformity with Rules 8 and
20(a) of the Federal Rules of Civil Procedure. (Doc. 12).
We also gave Plaintiff direction as to how to file his
amended complaint and specifically directed that
Plaintiff's amended complaint should be limited with
respect to only defendants and claims that arise out of the
same transaction or occurrence or series of transactions or
occurrences, and that have questions of law or fact
common to all Defendants and claims. We further directed
Plaintiff to file separate actions as to any Defendants and
claims that do not share common legal and factual
questions and that do not arise out of the same transactions
or occurrences.
In violation of the Court's June 22, 2006 Order,
Plaintiff filed another Motion for Leave to File an
Amended Complaint on July 25, 2006. (Doc. 16).
Plaintiff's proposed amended complaint named 29
Defendants and, like his original pleading, contained 70
paragraphs of mostly unrelated claims against numerous
Defendants spanning a time period from January 2006 to
the present. In fact, Plaintiff's proposed amended pleading,
instead of narrowing his claims and Defendants to those
that were related and arose out of the same transactions or
occurrences, added new claims and new Defendants, and
covered a longer period of time than his original pleading
did. Plaintiff's proposed amended complaint also
contained many of the same claims and Defendants as his
original Complaint, and it added new claims and new
Defendants. As we stated in our prior Order, it simply
would not be possible for the 29 Defendants to respond to
the myriad of claims against them in the proposed
amended complaint, which do not arise out of the same
transactions or occurrences. Therefore, we denied
Plaintiff's Motion to file an Amended Complaint (Doc.
16), and we directed Plaintiff to file a proper amended
compliant in conformance with Rule 8 and Rule 20(a).
(Doc. 17).

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*3 Plaintiff filed a second Motion for Leave to File an
Amended Complaint on August 21, 2006. (Doc.18).
Plaintiff also filed a Memorandum of Law. (Doc. 19).
Attached to Plaintiff's Memorandum are exhibits related
to grievances Plaintiff filed with the prison. Plaintiff's
Motion for Leave to Amend is essentially his amended
complaint. We shall grant Plaintiff's Motion for Leave to
File an Amended Complaint by separate Order, and direct
that the Motion be docketed as his amended complaint.
(Doc. 18).FN1 We shall also direct the Clerk of Court to
change the caption to Plaintiff v. Donald Kelchner, since
Sgt. Maxwell is not named in the Plaintiff's amended
complaint. We shall also direct the Clerk of Court to
remove the names of all Defendants that were named in
Plaintiff's original Complaint (Doc. 1), but who were not
named in Plaintiff's Amended Complaint. (Doc. 18).
FN1. We note that attached to the Motion for
Leave to File an Amended Complaint is an Order
to Show Cause for an Injunction and /or a TRO.
(Doc. 18). Plaintiff also attached to his Motion
an explanation of his supporting exhibits that are
attached to his Memorandum. If Plaintiff wishes
to file an injunction motion with this Court, he
must file it in conformity with Local Rule 7.1,
M.D. Pa., along with a supporting brief under
Rule 7.5
We now screen Plaintiff's amended pleading under the
PLRA.
II. Allegations of Amended Complaint.
In the present case, Plaintiff alleges that on January
11, 2006, he was transferred from another prison to
SCI-Camp Hill. Plaintiff states that Defendants Jeffery
Beard, Secretary of Pennsylvania Department of
Corrections (“DOC”); Donald Kelchner, Superintendent
at SCI-Camp Hill; Counselor Whaling; Richard Southers,
Unit Manager; Andrew Newton, Psychiatrist; Muhammed
Khan, Psychiatrist; and Edward Kalsky, psychologist,
were aware that he was supposed to go to a Special Need
Unit (“SNU”) at the prison.FN2 However, Plaintiff indicates
that he was placed in the SMU (Special Management
Unit) instead of the SNU. (Doc. 18, ¶ 13.). Plaintiff states

that “on January 13, 2006 I mistakenly signed a “SNU”
Special Needs Unit treatment plan when this is not a
“SNU” but rather a(SMU) Special Management Unit
which is a control unit and is not suitable for a mentally
disabled person such as myself....” Plaintiff states that on
January 13, 2006, he filed a grievance and that he was
denied “his remedy to exhaust.” (Id.). Thus, Plaintiff
indicates that he has not exhausted his administrative
remedies, seemingly based on futility. (Id., ¶ 's 13., 21.).FN3
FN2. All of the Defendants except for Beard are
employed at SCICamp Hill.
FN3. It is well-settled that the Plaintiff must
exhaust his administrative remedies prior to
filing a civil rights suit. Id. at 230. In Porter v.
Nussle, 534 U.S. 516, 532 (2002), the Supreme
Court reiterated that the exhaustion requirement
under § 1997e(a) applies to all actions regarding
prisons conditions, including § 1983 actions or
actions brought pursuant to any other federal
law. The Porter Court held that “the PLRA's
exhaustion requirement applies to all inmate suits
about prison life, whether they involve general
circumstances or particular episodes, and
whether they allege excessive force or some
other wrong.” Id. However, Defendants have the
burden to plead exhaustion as an affirmative
defense. See Ray v. Kertes, 285 F.3d 287, 295
(3d Cir.2002).
Plaintiff avers that a few days afer his grievance,
Defendant Dr. Newton took him off of his medication as
retaliation for his grievance, and that because he was not
weaned off of his medication he suffered “excessive bowel
movement I couldn't sleep my body was hurting,” and that
he suffered other physical and mental pain. (Id., ¶ 14.).
Plaintiff states that he then filed another grievance against
Defendant Newton. We find that Plaintiff has stated a First
Amendment retaliation claim against Defendant Newton
for allegedly improperly taking him off of his medication
due to his grievance.
Plaintiff states that Defendant Dr. Khan saw him for
his monthly review on March 8, 2006, and alleges that Dr.
Kahn put his mental health history on the “tier.” Plaintiff
seemingly claims that Dr. Kahn made his mental health

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history known to the other inmates on Plaintiff's cell
block. Plaintiff states that he pleaded with Dr. Kahn to
stop and states that the doctor could have taken him into
a room for privacy, but the doctor did not. As a result,
Plaintiff states that “everybody on the block humiliated me
even the guards which eventually led up to me trying to
commit suicide....” Plaintiff states that this conduct by Dr.
Kahn also caused him to feel emotional pain and
humiliated, embarrassed and depressed. Plaintiff filed a
grievance on March 22, 2006 against Dr. Kahn, and states
that after he tired to commit suicide, “they took all of my
property they took the grievance and I never got it
back....” (Id., ¶ 15.).
*4 Plaintiff avers that Defendant Dr. Newton again
took him off of his medication and states that he tired to
file another grievance. Plaintiff states that it was rejected
since he was told that he already had filed one on that
issue. Plaintiff states that they took his grievance “because
as a result of Doctor Newton neglect I tried to commit
suicide again.” (Id., ¶ 16.).
Plaintiff claims that in April 2006, Dr. Newton and
Defendant Psychologist Kalsky came to his door and
similar to Dr. Kahn's conduct, they “put my mental health
history out there so the whole pod could hear and the same
process happened people began to humiliate me again....”
Plaintiff states that he filed another grievance over this
incident. (Id., ¶ 17.).
Plaintiff states that Defendant Teresa M. Law,
medical grievance coordinator at SCI-Camp Hill, denied
his mental health grievance “saying that I don't have any
mental health issues after she already had her signature on
a response that said I was diagnose with a anti-social
personality disorder.” Plaintiff concludes that Defendant
Law “was in concert with the mental health department in
denying me mental health treatment.” (Id., ¶ 18.).
Plaintiff claims that Defendant Kelchner denied his
grievance and said he did not have a mental health issue.
(Id., ¶ 19.).
As to Defendant Beard, Plaintiff only states that he
violated his Constitutional rights because he knew of the
treatment Plaintiff was receiving and he refused to stop his

officers. (Id., ¶ 22.). Plaintiff states that he made
Defendant Kelchner and Beard aware of his situation
when they came to the SMU on May 22, 2006. (Id., ¶ 23.).
Plaintiff sues all of the Defendants in their individual
and official capacities. (Id., ¶ 11.). As relief, Plaintiff
seeks compensatory and punitive damages as well as
injunctive relief. (Id., ¶ 's 35.-41.).
Plaintiff cannot recover monetary damages against
Defendants in their official capacities.FN4 Also, to the
extent that Plaintiff seeks compensatory and punitive
damages, each in the sum of “$1,000,000 to $3,000,000,”
such amounts should be stricken.FN5
FN4. Insofar as Plaintiff's attempt to sue the
Defendants in their official capacities seeking
monetary damages, he cannot do so. The
Amended Complaint, to the extent it is against all
of the Defendants in their official capacities
(Doc. 18, p. 3, ¶ 11.), and to the extent that it
seeks monetary damages, should be dismissed on
the grounds that such an action is barred by the
Eleventh Amendment. The Eleventh Amendment
applies to claims asserted in federal court under
42 U.S.C. § 1983. Quern v. Jordan, 440 U.S.
332, 342 (1979). It prohibits suits brought in
federal court against a state or where the state or
its agency is the real party in interest, and in
which the relief sought has an impact directly on
the state itself. Pennhurst State Schools and
Hospital v. Halderman, 465 U.S. 89 (1984);
Allegheny County Sanitary Authority v. United
States Environmental Protection Agency, 732
F.2d 1167 (3d Cir.1984). Based on the above,
the Plaintiff's Amended Complaint against the
Pennsylvania Department of Corrections
Defendants, to the extent it names them in their
official capacities, seeking monetary relief is
barred by the Eleventh Amendment and, thus,
this claim is subject to dismissal.
As stated, to the extent that the Plaintiffs seek
monetary damages, the Defendants are
immune under the Eleventh Amendment in
their official capacities. Will v. Michigan Dept.

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of State Police, 491 U.S. 58, 71 (1991);
Howlett v. Rose, 496 U.S. 356, 365 (1990).
We believe that payment of any money
judgment rendered against the Defendants,
who are indisputably employees working for a
prison within the Pennsylvania DOC (Doc. 18,
pp. 2-3), would have to be paid out of the
Pennsylvania State Treasury. Further, the
Pennsylvania DOC, which employs the
Defendants, receives its funding from the state
and does not enjoy any measure of autonomy.
See Bolden v. Southeastern Pennsylvania
Transp. Auth., 953 F.2d 807, 818 (3d
Cir.1991).
FN5. Plaintiff's request for a specific amount of
monetary damages should be stricken. Since
Plaintiff seeks unliquidated damages, he cannot
claim a specific sum of relief. Pursuant to Local
Rule 8.1, M.D. Pa., Plaintiff's request for specific
monetary damages of $1 million to $3 million
should be stricken from his Amended Complaint.
See Stuckey v. Ross, Civil No. 05-2354, M.D.
Pa., 1-9-06 Order, J. McClure.
We find that Defendants Beard, Kelchner and Law
should be dismissed and that Plaintiff's Fourteenth
Amendment Equal Protection claim should be dismissed.
We find that Defendants Southers and Whaling should be
dismissed. We find that Plaintiff's claim that his due
process rights were violated since he was placed in the
SMU without a hearing should be dismissed. We find that
Plaintiff has stated a First Amendment retaliation claim
against Defendant Newton, as well as Eighth Amendment
claims against Defendants Newton, Kalsky and Kahn.
With respect to the two (2) named supervisory Defendants
in the Amended Complaint, i.e., Superintendent Kelchner
and DOC Secretary Beard, we find that Plaintiff does not
sufficiently allege their personal involvement and that
their alleged conduct does not amount to a constitutional
violation. Plaintiff merely alleges that these supervisory
Defendants refused to address his complaints that he was
not getting the proper treatment, and that Kelchner denied
his grievance and said that Plaintiff did not have a mental
health issue. (Id., ¶ 's 19. & 22.-23.). Plaintiff avers that

the supervisory Defendants were aware of his improper
treatment, and by failing to take corrective action they
violated his due process and equal protection rights. (Id.).
We find that the stated two supervisory Defendants should
be dismissed since their personal involvement is lacking
in the retaliation Plaintiff alleges Defendant Newton took
in taking him off of his medication. Nor does Plaintiff
allege that either of the supervisory Defendants
participated in any decision to place him in the SMU, or
to reveal his mental health issues to other inmates in his
pod. Plaintiff does not allege that these two Defendants
personally deprived him medical care or that they caused
him to suffer any emotional or physical problems. Further,
during all relevant times, Plaintiff was being treated by the
prison psychiatric medical staff, and the two supervisory
Defendants, who are non-physicians, cannot be held liable
for the doctors' findings that Plaintiff did not have a
mental health problem requiring medication.
III. PLRA.
*5 As stated, the Plaintiff has filed an application to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
(Doc. 8). The Prison Litigation Reform Act of 1995,FN6
(the “Act”), obligates the Court to engage in a screening
process when a prisoner wishes to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915.FN7 Specifically,
Section 1915(e)(2), which was created by § 805(a)(5) of
the Act, provides:
FN6. Pub.L. No. 104-134, 110 Stat. 1321 (April
26, 1996).
FN7. The Plaintiff completed an application to
proceed in forma pauperis and authorization to
have funds deducted from his prison account.
The court then issued an administrative order
directing the warden to commence deduction of
the full filing fee due the court from the
Plaintiff's prison trust fund account.
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss
the case at any time if the court determines that (A) the
allegation of poverty is untrue; or (B) the action or
appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks

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monetary relief against a defendant who is immune from
such relief.
In reviewing the Complaint under 28 U.S.C. §
1915(e)(2)(B), we have determined that the Plaintiff is
unable to maintain his action as against Defendants
Kelchner and Beard. Specifically, we find that Defendants
Kelchner and Beard lack sufficient personal involvement
in this case. We find that Defendant Law by denying
Plaintiff's grievance is not sufficiently involved in this
case. We also find no conspiracy claim is stated as to
Defendant Law. We find that Plaintiff's Fifth Amendment
Due Process claim with respect to his placement in the
SMU should be dismissed, and that his Fourteenth
Amendment Equal Protection claim should be dismissed.
Further, we find that Plaintiff's claims as against all of the
Defendants in their official capacities should be dismissed
to the extent that he seeks money damages. We find that
Defendants Southers and Whaling should be dismissed.
We find that Plaintiff has stated a First Amendment
retaliation claim against Defendant Newton, and Eighth
Amendment claims against Defendants Newton, Kalsky
and Kahn.
IV. Motion to Dismiss Standard.
In considering whether a pleading states an actionable
claim, the court must accept all material allegations of the
complaint as true and construe all inferences in the light
most favorable to the plaintiff. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974). A complaint should not be
dismissed for failure to state a claim unless it appears
“beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 44-46 (1957); Ransom v.
Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). A complaint
that sets out facts which affirmatively demonstrate that the
plaintiff has no right to recover is properly dismissed
without leave to amend. Estelle v. Gamble, 429 U.S. 97,
107-108 (1976).
V. Section 1983 Standard.
In a § 1983 civil rights action, the Plaintiff must prove
the following two essential elements: (1) that the conduct
complained of was committed by a person acting under
color of state law; and (2) that the conduct complained of
deprived the Plaintiff of rights, privileges or immunities

secured by the law or the Constitution of the United
States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993).FN8
FN8. Section 1983 is not a source of substantive
rights. Rather, it is a means to redress violations
of federal law by state actors. Gonzaga Univ. v.
Doe, 536 U.S. 273, 284-85 (2002).
*6 Named as Defendants are eight (8) DOC
individuals, seven (7) of whom are employed at SCI-Camp
Hill. Since Defendants that are individually named in
Plaintiff's Complaint have been stated above, we shall not
reiterate their names.
It is well established that personal liability under section
1983 cannot be imposed upon a state official based on a
theory of respondeat superior. See, e.g., Rizzo v. Goode,
423 U.S. 362 (1976); Hampton v. Holmesburg Prison
Officials, 1546 F.2d 1077, 1082 (3d Cir.1976); Parratt,
supra. It is well settled in the Third Circuit that personal
involvement of defendants in alleged constitutional
deprivations is a requirement in a § 1983 case and that a
complaint must allege such personal involvement. Id. Each
named defendant must be shown, through the complaint's
allegations, to have been personally involved in the events
or occurrences upon which Plaintiff's claims are based. Id.
As the Court stated in Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir.1998):
A defendant in a civil rights action must have personal
involvement in the alleged wrongs.... [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made
with appropriate particularity. (Citations omitted).
A civil rights complaint must state time, place, and
responsible persons. Id. Courts have also held that an
allegation seeking to impose liability on a defendant based
on supervisory status, without more, will not subject the
official to section 1983 liability. See Rode, 845 F.2d at
1208; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985)
(per curiam) (a mere “linkage in the prison chain of
command” is not sufficient to demonstrate personal
involvement for purposes of section 1983).

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VI. Discussion.
A. Defendants Beard, Kelchner and Law
As discussed, we do not find any Constitutional
claims that the Plaintiff has asserted against the two
supervisory Defendants, Beard and Kelchner, and against
the medical grievance coordinator, Defendant Law.
These Defendants are not alleged to have personally
violated any of the Plaintiff's constitutional rights. Plaintiff
only mentions these Defendants as failing to take
corrective action to stop the abuses he alleges were
committed by the other Defendants. Plaintiff does not state
that Defendants Kelchner and Beard placed him in the
SMU, failed to give him his medication, and denied him
medical care. There are no allegations which create any
personal liability as to the stated Defendants. These
Defendants are not alleged to have participated in any
violations of Plaintiff's rights. Since there is insufficient
personal involvement alleged on the part of these three
Defendants in any constitutional violation, they should
also be dismissed. Rizzo, supra; Parratt, supra. Pursuant
to Rizzo, supra, the supervisory Defendants cannot be held
liable based on respondeat superior in this case. Thus,
Defendants Beard, Kelchner and Law should be dismissed
from this case.
*7 Moreover, a prison official's response or lack thereof
to an inmate's Administrative remedies is not sufficient
alone to hold the official liable in a civil rights action. The
law is well-settled that there is no constitutional right to a
grievance procedure. See Jones v. North Carolina
Prisoners' Labor Union, Inc. 433 U.S. 119, 137-138
(1977). This very Court has also recognized that grievance
procedures are not constitutionally mandated. See
Chimenti v. Kimber, Civil No. 3:CV01-0273, slip op. at p.
18 n. 8 (March 15, 2002) (Vanaskie, C.J.), reversed in
part, C.A. No. 03-2056 (3d Cir. June 8, 2005)
(Non-Precedential). Even if the prison provides for a
grievance procedure, as the DOC does, violations of those
procedures do not amount to a civil rights cause of action.
Mann v. Adams, 855 F.2d 639, 640 (9th Cir1988), cert
denied, 488 U.S. 898 (1988); Hoover v. Watson, 886
F.Supp. 410, 418 (D.Del.1995), aff'd 74 F.3d 1226 (3d
Cir.1995). See also Burnside v. Moser, Civil No. 04-2485,

12-16-04 Order, p. 3, J. Muir, M.D. Pa. (Even “[i]f the
state elects to provide a grievance mechanism, violations
of its procedures do not ... give rise to a [constitutional]
claim.”) (citations omitted). Thus, even if the prison
official allegedly failed to process the prisoner's
grievances, no constitutional claim is stated. Burnside,
supra.
As the Court stated in Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir.1985) (per curiam) a mere “linkage in the
prison chain of command” is not sufficient to demonstrate
personal involvement for purposes of section 1983.
Permitting supervisory liability where a defendant, after
being informed of the violation through the filing of
grievances, reports or appeals, failed to take action to
remedy the alleged wrong is not enough to show that the
defendant has the necessary personal involvement. Rizzo,
supra. Allowing only a letter sent to an official to be
sufficient to impose supervisory liability would permit an
inmate to subject defendants to potential liability in any
case in which the prisoner merely transmitted
correspondence to the official. Id. Thus, several courts
have held that “it is well-established that an allegation that
an official ignored a prisoner's letter of protest and request
for an investigation of allegations made therein is
insufficient to hold that official liable for the alleged
violations.” Greenwaldt v. Coughlin, 1995 WL 232736, at
*4 (S.D.N.Y.Apr.19, 1995) (citations omitted); accord
Rivera v. Goord, 119 F.Supp.2d 327, 344 (S.D.N.Y.2000)
(allegations that inmate wrote to prison officials and was
ignored insufficient to hold those officials liable under
section 1983); Woods v. Goord, 1998 WL 740782, at *6
(S.D.N.Y. Oct. 23, 1998) (“Receiving letters or
complaints ... does not render [prison officials] personally
liable under § 1983.”); Watson v. McGinnis, 964 F.Supp.
127, 130 (S.D.N.Y.1997) (“The law is clear that
allegations that an official ignored a prisoner's letter are
insufficient to establish liability.”) (citations omitted). The
Second Circuit Court has stated that “if mere receipt of a
letter or similar complaint were enough, without more, to
constitute personal involvement, it would result in liability
merely for being a supervisor, which is contrary to the
black-letter law that § 1983 does not impose respondeat
superior liability.” Walker v. Pataro, 2002 WL 664040, at
*12 (S.D.N.Y. Apr. 23, 2002).

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*8 Nor has Plaintiff stated a First Amendment retaliation
claim against Defendants Beard, Kelchner and Law.
Plaintiff only alleges that Defendant Dr. Newton retaliated
against him by taking him off of his medication due to his
grievance about being placed in the SMU which is not
suitable for a mentally disabled person. In Rauser v..
Horn, 241 F.3d 330, 333 (3d Cir.2001), the Court stated
that “a prisoner litigating a retaliation claim must show
that he suffered some ‘adverse action’ at the hands of the
prison officials.” To establish a retaliation claim, the
Plaintiff must also show that there exists a causal nexus
between the Plaintiff's constitutionally protected conduct
and the adverse action. Graham v. Henderson, 89 F.3d 75,
79 (2d Cir.1996). We find that this nexus does not exist
with respect to our two supervisory Defendants and with
respect to Defendant Law.
Plaintiff alleges that Defendant Law somehow conspired
with the prison mental health department to deny him
mental health treatment. (Id., p. 4, ¶ 18.). FN9 Plaintiff fails
to state a conspiracy claim against Defendant Law.
FN9. Since we again recommend that Plaintiff's
Eighth Amendment improper medical care claim
against Defendants Newton, Kahn and Kalsky
proceed, we shall not detail Plaintiff's allegations
in his Amended Complaint against them.
The Third Circuit in Jones v. Maher, Appeal No.
04-3993 (3d Cir.2005), slip op. p. 5, stated that broad and
conclusory allegations in a conspiracy claim are
insufficient to state a viable claim. (Citation omitted).
Also, the United States District Court for the Middle
District of Pennsylvania, in Flanagan v. Shively, 783
F.Supp. 922, 928-29 (M.D.Pa.1992), aff'd. 980 F.2d 722
(3d Cir.1992), cert. denied 510 U.S. 829 (1993), stated as
follows:
Bare conclusory allegations of “conspiracy” or
“concerted action” will not suffice to allege a
conspiracy. The plaintiff must expressly allege an
agreement or make averments of communication,
consultation, cooperation, or command from which such
an agreement can be inferred. In Waller v. Butkovich,
584 F.Supp. 909, 931 (D.C.N.C.1984), the district court
outlined the pleading requirements in a conspiracy

action.
In most cases, a bare conclusory allegation of
‘conspiracy’ or ‘concerted action’ will not suffice. The
plaintiffs must expressly allege an agreement or make
averments of ‘communication, consultation,
cooperation, or command’ from which such an
agreement can be inferred ...
(Citation omitted.) ... Allegations that the defendants'
actions combined to injure the plaintiffs are not a
sufficient basis from which to imply a conspiracy ...
(Citation omitted.)
Additionally, the plaintiffs must make ‘specific factual
allegations connecting the defendant to the injury’ ...
(Citations omitted.) ...
The Plaintiff fails to state a conspiracy claim against
Defendant Law, in that he does not allege an agreement
between her and the remaining psychiatrist and
psychologist Defendants to deliberately treat his mental
health ailments improperly. There is no allegation that
Defendant Law played any role in the decision to remove
Plaintiff from his medication or to treat his mental health
problems improperly. We find that Plaintiff's bare
conclusory allegations of conspiracy against Defendant
Law are inadequate to allege a conspiracy claim. See
Flanagan, supra.
*9 Further, since the Plaintiff was being treated by the
prison medical staff, Dr. Newton, Dr. Kahn and
Psychologist Kalsky, Defendants Beard, Kelchner and
Law, non-physicians, cannot be held liable under Durmer
v. O'Carroll, 991 F.2d. 64, 69 (3d Cir.1993).
Specifically, Plaintiff alleges that Defendants psychiatrist
and psychologist violated his Eighth Amendment rights by
not properly treating his mental health problems and by
taking him off of his medication. Plaintiff indicates that he
disputes the Defendant doctors' finding that he did not
have a mental health problem requiring medication. The
Plaintiff has failed to state a viable claim against
Defendants Beard, Kelchner and Law, since they were not
physicians, and he was receiving his medical treatment
from the prison psychiatrists and psychologist, even

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though he disagreed with the treatment rendered and felt
that his mental health problems were not being adequately
treated.
Any claim that Defendants Beard, Kelchner and Law
were deliberately indifferent to the Plaintiff's serious
medical needs must fail. The stated Defendants,
non-physicians, cannot be found deliberately indifferent to
the Plaintiff's serious medical needs, as the Plaintiff
acknowledges that he was under the care of the mental
health doctors. Durmer, 991 F.2d. at 69 (3d. Cir.1993).
The decisions how to treat Plaintiff and with what
medication were made by the treating Defendant doctors.
We recognize that in the case of Devern v.
SCI-Graterford, 2004 WL 1552000 * 1 (E.D.Pa.), the
Court limited Durmer and held that a “non-physician
supervisor may be liable under § 1983 if he had
knowledge or reason to know of medical mistreatment.” In
our case, the Plaintiff does not assert that Defendants
Beard, Kelchner and Law were involved with the
decisions how to treat Plaintiff and with what medication.
Nor is it alleged that these Defendants knew that Plaintiff's
treatment by the medical staff was improper or inadequate.
Further, it is not alleged that these Defendants knew that
the finding of the medical staff that Plaintiff did not have
a mental health problem was improper or rendered to deny
him medication.
Plaintiff attempts to make the stated Defendant
responsible for the conduct of the treating doctors whom
he admits was providing him with care. Liability in a §
1983 case may only be based on the Defendant's personal
involvement in conduct amounting to a constitutional
violation. Hampton v. Holmesburg Prison Officials, 546
F.2d 1077 (3d Cir.1976); Rizzo v. Goode, 423 U .S. 362
(1976). There is no claim that Defendants Beard, Kelchner
and Law had any direct involvement in Plaintiff's denial of
medical treatment claim or that they had knowledge of any
medical mistreatment. As stated, all of the actions taken
with respect to Plaintiff's mental health care were
performed by the Defendant doctors. Beard, Kelchner and
Law are not alleged to have been involved in prescribing
Plaintiff any medication or in taking him off of it. Nor are
they alleged to have played any role in diagnosing Plaintiff
with a mental disorder and later finding that he did not
have one. Plaintiff cannot hold the non-physician

Defendants liable on the basis of respondeat superior, as
he tries to do in this case. Id.
*10 Our conclusion is supported by this very Court's
decision in Chimenti v. Kimber, Civil No. 01-0273
(M.D.Pa.2002), aff'd. in part Third Circuit Appeal No.
03-2056 (6-8-05). In Chimenti, as in this case, the Plaintiff
was under the care of the prison's medical staff and the
Commonwealth Defendants were not physicians, nor were
they involved in his care. The Court held that under
Durmer, there was no basis for an Eighth Amendment
claim against any of the Commonwealth Defendants. Id.
at pp. 17-18.
B. Defendants Southers and Whaling
Plaintiff alleges that Defendant Southers, as unit
manager of the SMU, was responsible for the welfare of
inmates in the SMU, and that Defendant Whaling, as the
SMU counselor, was to make sure the inmates in the SMU
received proper counseling. (Doc. 18, p. 3, ¶ 's 7.-8.).
Plaintiff vaguely alleges that these Defendants mistreated
him by not making sure he received the proper treatment
and counseling in the SMU. Based on the above
discussion, insofar as Plaintiff was being treated by the
prison medical staff for his mental health problems, we
find that there is no Eighth Amendment claim stated as
against Defendants Southers and Whaling under
Durmer.FN10
FN10. Indeed, Plaintiff's claim against
Defendants Southers and Whaling is contingent
on his claim that the Defendant doctors
misdiagnosed him as not having a mental health
problem and as not requiring medication.
C. Due Process Claim
Further, to the extent that Plaintiff claims that
Defendants Beard, Kelchner, Southers and Whaling
violated his due process rights by not giving him a hearing
prior to placing him in the SMU upon his transfer to
SCI-Camp Hill, we find that this Court has repeatedly
found no liberty interest with respect to such claims. (Doc.
18, p. 5, ¶ 28.).
We conclude that, based on this Court's recent cases,
including Francis v. Dodrill, 2005 WL 2216582
(M.D.Pa.) and Stotts v. Dodrill, Civil No. 04-0043

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(M.D.Pa.), Petitioner's placement in the SMU does not
implicate his due process rights. Therefore, we shall
recommend that this claim be dismissed as against
Defendants Beard, Kelchner, Southers and Whaling.
Plaintiff states that he is challenging his placement in
the Special Management Unit at SCI-Camp Hill. Plaintiff
claims that the SMU is not suitable for an inmate such as
he, i.e., “a mentally disabled person.” (Doc. 18, p. 3, ¶
13.). Plaintiff states that on January 13, 2006, he was
supposed to go to the SNU and not the SMU due to his
mental health issues. However, Plaintiff states that he was
placed in the SMU, which is a control unit and not suitable
for him. Plaintiff alleges that the stated Defendants
violated his due process rights by placing him in the SMU
without first being given a hearing. (Doc. 18, pp. 5-6, ¶
28.). This Court has consistently held that placement in the
Special Management Unit does not give rise to atypical
and significant hardships and does not implicate due
process of law.
Thus, Plaintiff claims that he has been made to suffer
atypical hardship without due process due to his
immediate placement in the SMU upon his transfer to
SCI-Camp Hill in January 2006, since he was deprived of
his liberty in the SMU without a hearing. (Id.). Plaintiff
seems to claim that the procedural safeguards of Wolff v.
McDonnell, 418 U.S. 539 (1974), were not followed in his
case. (Id.). Plaintiff seems to claim that his placement in
the SMU constitutes an atypical and significant hardship
and implicates his due process rights. (Id.).
*11 We find that this Court, in the stated cases, has
considered similar claims and has found that an inmate's
placement in the SMU does not implicate his due process
rights. See Franics, supra at * 3.
Based on this Court's decisions in Francis v. Dodrill,
2005 WL 2216582 (M.D.Pa.), and Stotts v. Dodrill, Civ.
No. 04-0043, M .D. Pa.,FN11 we find that our Plaintiff's
placement in the SMU does not implicate his due process
rights. As this Court in Francis stated:
FN11. In Stotts, this Court found that federal
inmates' placement in the SMU following a riot
incident did not violate their due process rights,

that inmates' placement in the SMU was not
punitive in nature, and that inmates were not
entitled to the procedural safeguards.
The defendants also argue that Francis' placement in the
SMU does not implicate his due process rights. We
agree. A due process liberty interest “in avoiding
particular conditions of confinement may arise from
state policies or regulations.” Wilkinson v. Austin, 545
U.S. 209, ----, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174
(2005). The Due Process Clause protects a prisoner's
right to “freedom from restraint, which, while not
exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of
its own force, nonetheless imposes atypical and
significant hardship in relation to the ordinary incidents
of prison life.” Id. at 2394 (quoting Sandin v. Connor,
515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418
(1995)).
The proper focus for determining whether prison
conditions give rise to a due process liberty interest is
the nature of the conditions, not mandatory language in
prison regulations. Sandin, 515 U.S. at 484. In Sandin,
an inmate was charged with violating prison regulations.
Id. at 475. At a hearing, the hearing committee refused
the inmate's request to present witnesses. Id. The
committee found the inmate guilty and sentenced him to
disciplinary segregation. Id. The inmate sought review,
and a deputy administrator found some of the charges
unfounded and expunged his disciplinary record. Id. at
476. Thereafter, the inmate filed suit pursuant to 42
U.S.C. § 1983 for a deprivation of procedural due
process during the disciplinary hearing. Id. The Tenth
Circuit found that he had a protected liberty interest
because it interpreted the prison regulations to require
that the committee find substantial evidence of
misconduct before imposing segregation. Id. at 477. The
Supreme Court reversed, finding no liberty interest. Id.
at 484. In doing so, it rejected an approach that focused
on whether the prison regulations “went beyond issuing
mere procedural guidelines and has used ‘language of
an unmistakably mandatory character’ such that the
incursion on liberty would not occur ‘absent specified
substantive predicates.” ‘ Id. at 480 (quoting Hewitt v.
Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74

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L.Ed.2d 675 (1983)). The Court found this approach
undesirable because it created a disincentive for prison
administrators to codify prison management procedures
and because it “led to the involvement of federal courts
in the day-to-day management of prisons, often
squandering judicial resources with little offsetting
benefit to anyone.” Id. at 482. Thus, the Court held
liberty interests “will be generally limited to freedom
from restraint which, while not exceeding the sentence
in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force ...
nonetheless imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of
prison life.” Id. at 484. In applying this test, the Court
observed, “[discipline by prison officials in response to
a wide range of misconduct falls within the expected
perimeters of the sentence imposed by a court of law.”
Id. at 485. The Court then found that the inmate's
disciplinary segregation “did not present a dramatic
departure from the basic conditions of Conner's
indeterminate sentence” because the conditions of
disciplinary segregation were similar to those faced in
administrative and protective custody. Id. at 486.
*12 In Wilkinson v. Austin, 545 U.S. 209, ----, 125 S.Ct.
2384, 2393,

Fraise v. Terhune, 283 F.2d 506 (3d Cir.2002) applied
the Sandin test and found that avoiding placement in the
Security Threat Group Management Unit (STGMU) in
the New Jersey prison system is not a protected liberty
interest. Inmates who the prison deemed members of
groups that posed a security threat were placed in the
STGMU. Id. at 509. “An inmate assigned to the
STGMU remains in maximum custody until the inmate
successfully completes a three-phase behavior
modification program.” Id. at 511. The Court found that
despite the additional restrictions, prisoners have no
liberty interest in avoiding placement in the STGMU.
Id.; see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d
Cir.1997) (finding that additional restrictions in
administrative custody for a period of fifteen months
does not deprive prisoners of protected liberty
interests).
We find that the conditions in the [USP-Lewisburg]
SMU do not remotely approach the severity of the
conditions Wilkinson found to give rise to a protected
liberty interest, and are comparable to the conditions in
cases such as Sandin, Fraise, and Griffin, which found
no protected liberty interest.
Id., pp. *3-*4.

162 L.Ed.2d 174 (2005), the Court applied the Sandin
test and found that the plaintiff's due process rights were
implicated when he was placed in a program where:
almost all human contact is prohibited, even to the point
that conversation is not permitted from cell to cell; the
light, though it may be dimmed, is on for 24 hours;
exercise is for 1 hour per day, but only in a small indoor
room ... [P]lacement ... is indefinite and, after an initial
30 day review, is reviewed just annually.... [P]lacement
disqualifies an otherwise eligible inmate for parole
consideration.
Id. at 2394-95.
The court found that these harsh conditions “give rise to
a liberty interest in their avoidance.”
Id. at 2395.

The Francis Court concluded that the restrictions in
the SMU in federal prison were no greater than the
restrictions placed on the inmate in Griffin. Id. * 5. In our
case, Plaintiff does not allege any greater restrictions in
the SMU at SCI-Camp Hill than were placed on the
inmates in Francis.
The Francis Court then stated:
Inmates have no due process right to a facility of their
choosing. Young v. Quinlan, 960 F.2d 351, 358 n. 16
(3d Cir.1992). The Bureau of Prisons retains sole
discretion over where to place an inmate. 18 U.S.C. §
3621. Inmates do, however, have a liberty interest in
avoiding transfer to facilities where the conditions
impose “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484. This is not such a transfer. We

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find that these conditions and the conditions overall in
the SMU are reasonable and proportionate to those in
other prisons in the federal system and across the
country and do not impose an atypical and significant
hardship in relation to the ordinary incidents of prison
life. Using restrictions to promote prosocial behavior
falls within the parameters of a sentence imposed by a
court of law. While Francis clearly would prefer not to
be housed in the SMU, his preference is not a liberty
interest protected by the Due Process Clause.
*13 Id.
Further, the Court in Griffin v. Vaughn, 112 F.3d 703,
706 (3d Cir.1997), stated:
Applying the precepts of Sandin to the circumstances
before us, we conclude that the conditions experienced
by Griffin in administrative custody did not impose on
him “atypical and significant hardship,” that he was thus
deprived of no state created liberty interest, and that he
failure to give him a hearing prior to his transfer to
administrative custody was not a violation of the
procedural due process guaranteed by the United States
Constitution.
The Griffin Court concluded that, considering the
reasons to transfer inmates from general population to
administrative custody, such as inmates deemed to be
security risks, stays in administrative custody for many
months (i.e. as long as 15 months) are not uncommon. Id.
at p. 708. Thus, the Griffin Court held that the inmate
Griffin's transfer to and confinement in administrative
custody “did not deprive him of a liberty interest, and that
he was not entitled to procedural due process protection.”
Id.
Moreover, this Court in Francis, supra at * 2, stated
that “A violation of the Due Process Clause involves the
following three elements: '1) the claimant must be
‘deprived of a protectable interest; 2) that deprivation
must be due to some governmental action; and 3) the
deprivation must be without due process.’ “ (citation
omitted). The Francis Court, as stated, found that
placement of its Plaintiff, a federal inmate at
USP-Lewisburg, in the SMU did not implicate his due

process rights. Id. * 3. Based on Griffin and Francis, our
Plaintiff's placement in the SMU for eight (8) months does
not give rise to a protected liberty interest.
D. Fourteenth Amendment Equal Protection Claim
Plaintiff asserts that his Fourteenth Amendment right
to equal protection was violated by Defendants since he
was not being given the proper treatment due to his mental
disability. (Doc. 18, pp. 5-6). Plaintiff avers that
Defendants treated him differently than similarly situated
inmates who did not have mental health problems. We
find that the § 1983 Equal Protection claims should be
dismissed because the Plaintiff has failed to allege that
Defendants purposely discriminated against him on the
basis of his race, gender, or nationality. There is no claim
that Defendants were motivated by a discriminatory intent
with respect to Plaintiff's allegations. In fact, Plaintiff
alleges that he was taken off of his medication at the outset
by Defendant Dr. Newton because this Defendant was
retaliating against Plaintiff for his complaint that the
prison staff should not have placed him the SMU since it
was not suitable for him. (Doc. 18, ¶ 's 13.-14). Plaintiff
clearly did not claim a discriminatory motive for Dr.
Newton's alleged conduct. Additionally, we do not find
that Plaintiff has properly stated that he and any other
inmates were similarly situated for purposes of an equal
protection claim.
*14 The elements of a § 1983 Equal Protection claim
require Plaintiff to state Defendants intended to
discriminate against him, and later to prove this by either
direct or circumstantial evidence. See Pa. v. Flaherty, 983
F.2d 1267 (3d Cir.1993) (Intent is a prima facie element
of a § 1983 equal protection claim of discrimination)
(citing Washington v. Davis, 426 U.S. 229 (1976). See
also Williams v. Pa. State Police, 108 F.Supp.2d 460, 471
(E.D.Pa.2000) (“to prevail on a § 1983 claim, a plaintiff
must prove that the Defendant intended to discriminate”)
(citation omitted).
The Equal Protection Clause does not require that all
persons be treated alike, but instead, a plaintiff must show
that the differential treatment to those similarly situated
was unreasonable, or involved a fundamental interest or
individual discrimination. Tigner v. Texas, 310 U.S. 141,
147 (1940); Price v. Cohen, 715 F.2d 87, 91 (3d

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Cir.1983), cert. denied, 465 U.S. 1032 (1984). It is
well-settled that a litigant, in order to establish a viable
equal protection claim, must show an intentional or
purposeful discrimination. Snowden v. Hughes, 321 U.S.
1, 8 (1944); Wilson v. Schillinger, 761 F.2d 921, 929 (3d
Cir.1985), cert. denied, 475 U.S. 1096 (1986); E & T
Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th
Cir.1987), cert. denied 485 U.S. 961 (1988). This “state
of mind” requirement applies equally to claims involving
(1) discrimination on the basis of race, religion, gender,
alienage or national origin, (2) the violation of
fundamental rights, and (3) classifications based on social
or economic factors. See, e.g., Britton v. City of Erie, 933
F.Supp. 1261, 1266 (W.D.Pa.1995), aff'd, 100 F.3d 946
(3d Cir.1996); Adams v. McAllister, 798 F.Supp. 242, 245
(M.D.Pa.), aff'd. 972 F.2d 1330 (3d Cir.1992).
As the Court in Barnes Foundation v. Township of Lower
Merion, 942 F.Supp. 970, 983 (E.D.Pa.1997), stated:
The Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution provides
that “[n]o State shall ... deny to any person within its
jurisdiction the equal protection of the laws.” U.S.
Const. Amend. XIV, § 1. The Equal Protection Clause
announces the “fundamental principle” that “the State
must govern impartially,” New York City Transit Auth.
v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1367, 59
L.Ed.2d 587 (1979), and “is essentially a direction that
all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).
Plaintiff has failed to allege any facts from which it
can be concluded that our Defendants engaged in
intentional or purposeful discrimination or that he was
treated differently by Defendants than similarly situated
persons on the basis of his race, nationality or gender. In
short, Plaintiff does not allege any discrimination with
respect to his placement in the SMU or with respect to his
treatment he received there. There is no cognizable equal
protection claim stated. Plaintiff has failed to allege any
facts from which it can be concluded that Defendants
engaged in intentional or purposeful discrimination or that
he was treated differently than similarly situated
individuals on the basis of his race, religion, gender,

alienage, or national origin.
*15 Additionally, the Plaintiff has not stated any specific
acts taken by Defendants to show any discriminatory
animus attributable to the stated Defendants. Thus, we
shall recommend that Plaintiff's Fourteenth Amendment
claims as against all Defendants be dismissed.
F. Defendants Newton, Khan and Kalsky
We find that Plaintiff has stated a First Amendment
retaliation claim against Defendant Dr. Newton, and that
he has stated Eighth Amendment claims against
Defendants Newton, Khan and Kalsky.
“A prison official's ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate violates the
Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825
(1994) citing Helling v. McKinney, 509 U.S. 25 (1993);
Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble,
429 U.S. 97 (1976). An inadequate medical care claim, as
we have here, requires allegations that the prison official
acted with “deliberate indifference to serious medical
needs” of the plaintiff, while a prisoner. Estelle, 429 U.S.
at 104 (1976); Unterberg v. Correctional Medical
Systems, Inc., 799 F.Supp. 490, 494-95 (E.D.Pa.1992).
The official must know of and disregard an excessive risk
to inmate health or safety. Farmer, 511 U.S. at 837.
“[T]he official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id.
“The question ... is whether prison officials, acting with
deliberate indifference, exposed a prisoner to a sufficiently
substantial ‘risk of serious damage to his future health.’ “
Farmer, 511 U.S. at 843.
In order to state a viable Eighth Amendment claim, a
prisoner must demonstrate that the Defendant was
deliberately indifferent to his medical needs and that those
needs were serious. Estelle, 429 U.S. at 106.
Mere disagreement as to the proper medical treatment
does not support a claim of an Eighth Amendment
violation. Monmouth County Correctional Institution
Inmates v. Lensaro, 834 F.2d 326 (3d Cir.1987), cert.
denied, 486 U.S. 1006 (1988); see also Durmer v.
O'Carroll, 991 F.2d 64, 67 (3d Cir.1993) (‘[T]he law is

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clear that simple medical malpractice is insufficient to
present a constitutional violation.”). As such, “[a]
distinction must be made between a case in which the
prisoner claims a complete denial of medical treatment
and one where the prisoner has received some medical
attention and the dispute is over the adequacy of the
treatment.” Nottingham v. Peoria, 709 F.Supp. 542, 547
(M.D.Pa.1988) citing United States ex. rel. Walker v.
Fayette County, 549 F.2d 573, 575 n. 2 (3d Cir.1979).FN12
FN12. We note that, to an extent, our Plaintiff
disputes the Defendant doctors' finding that he
did not have a mental health issue despite being
diagnosed at his previous prison before his
transfer to SCI-Camp Hill that he had a mental
health diagnosis, i .e. anti-social personality
disorder, and required medication. (Doc. 18, p.
4). Insofar as Plaintiff disputes the doctors'
diagnosis of his mental condition and the doctors'
medical decision that he did not require
medication, this is not an actionable Eighth
Amendment claim.
In the case of Monmouth County Correctional
Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
Cir.1987), the court addressed whether the Plaintiff's
alleged injuries rose to the level of being sufficiently
serious for the purpose of establishing an Eighth
Amendment violation. The Monmouth County case stated
that:
*16 “A medical need is ‘serious,’ in satisfaction of the
second prong of the Estelle test, 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.” Pace v.
Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), aff'd, 649
F.2d 860 (3d Cir.1981); accord Laaman v. Helgemoe,
437 F.Supp. 269, 311 (D.N.H.1977). The seriousness of
an inmate's medical need may also be determined by
reference to the effect of denying the particular
treatment. For instance, Estelle makes clear that if
‘unnecessary and wanton infliction of pain,’ 429 U.S. at
103, 97 S.Ct. at 290, results as a consequence of denial
or delay in the provision of adequate medical care, the
medical need is of the serious nature contemplated by

the eighth amendment. See Id, at 105, 97 S.Ct. at 291.
In addition, where denial or delay causes an inmate to
suffer a life-long handicap or permanent loss, the
medical need is considered serious. (Citations omitted
).”
Monmouth County, 834 F.2d at 347(3d Cir.1987).
We find that Plaintiff has met the first hurdle of
Estelle, i.e ., Defendants were deliberately indifferent to
his medical needs, as he alleges that Defendants Newton,
Kahn and Kalsky denied him required medical care and
that they placed him in jeopardy amongst his fellow
inmates by disclosing his mental health condition to them.
In Monmouth, supra, 834, F.2d at 347, the Court said
that a medical need is serious if the delay or denial of
health care results in “wanton infliction of pain, lifelong
handicap or permanent loss.” Here Plaintiff alleges
sufficient physical and emotional suffering, and he claims
that it was as a result of any of our Defendants'
non-treatment. Taking all of the allegations of Plaintiff as
true, as we must at this juncture, he states legally sufficient
Eighth Amendment claims against Defendants Newton,
Kahn and Kalsky in this case. Thus, we shall recommend
that this case proceed with respect to these three
Defendants since the Plaintiff has alleged deliberate
indifference to his serious medical condition under the
Eighth Amendment as against them. Therefore, we shall
recommend that Plaintiff's Eighth Amendment claims
against Defendants Newton, Kahn and Kalsky proceed.
V. Recommendation.
Based on the foregoing, it is respectfully
recommended that Plaintiff's action as against Defendants
Kelchner, Beard and Law be dismissed. Specifically, we
find that Defendants Kelchner and Beard lack sufficient
personal involvement in this case. We find that Defendant
Law, by denying Plaintiff's grievance, is not sufficiently
involved in this case. We also find no conspiracy claim is
stated as to Defendant Law. We find that Plaintiff's Fifth
Amendment Due Process claim with respect to his
placement in the SMU should be dismissed, and that his
Fourteenth Amendment Equal Protection claim as against
all Defendants should be dismissed. Further, we find that
Plaintiff's claims as against the Defendants in their official

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Page 15
Not Reported in F.Supp.2d, 2007 WL 88084 (M.D.Pa.)
(Cite as: 2007 WL 88084 (M.D.Pa.))

capacities should be dismissed to the extent that he seeks
money damages. We find that Defendants Southers and
Whaling should be dismissed. We find that Plaintiff has
stated a First Amendment retaliation claim against
Defendant Newton, and that he has stated Eighth
Amendment claims against Defendants Newton, Kalsky
and Kahn. Finally, it is recommended that this case be
remanded to the undersigned for further proceedings.
NOTICE
*17 NOTICE IS HEREBY GIVEN that the
undersigned has entered the foregoing Report and
Recommendation dated September 7, 2006.
Any party may obtain a review of the Report and
Recommendation pursuant to Rule 72.3, which provides:
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
a habeas corpus petition within ten (10) 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.,2007.
Spencer v. Kelchner
Not Reported in F.Supp.2d, 2007 WL 88084 (M.D.Pa.)
END OF DOCUMENT

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