Mitchell v. Sage et al

Filing 25

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 10/30/14. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH S. MITCHELL,
Plaintiff

:
No. 3:14cv905
:
:
(Judge Munley)
v.
: (Magistrate Judge Blewitt)
:
J. SAGE, Chief Psychologist, USP:
Lewisburg; KEVIN PIGOS, Doctor:
Medical/Clinical Director, USP:
Lewisburg; DOCTOR BROWN;
:
DOCTOR ANDREW EDINGER;
:
S. DEES, NREMT-P;
:
HOLZAPLE, Associate Warden;
:
J.E. THOMAS, Warden;
:
JOHN DOES 1-10;
:
FEDERAL BUREAU OF
:
PRISONS; and UNITED STATES,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Magistrate Judge Thomas M.
Blewitt’s report and recommendation that suggests dismissing portions of
plaintiff’s complaint. Plaintiff has filed objections to the report and
recommendation, and these matters are ripe for disposition.
Background
Plaintiff is a federal inmate currently confined at the United States
Penitentiary, Lewisburg in Lewisburg, Pennsylvania (hereinafter “USPLewisburg” or “prison”). He filed the instant civil rights and negligence
case on May 12, 2014. (Doc. 1, Compl.). Plaintiff complains that his

psychotropic medicine, Buproprion, was taken away from him although he
suffers from mental health disorders including atypical mood disorder,
atypical depressive disorder, borderline personality disorder and bipolar
disorder. (Id. at 2-3). He asserts that the prison officials and medical staff
at the prison have provided insufficient medical care. He asserts a civil
rights cause of action, commonly referred to as a Bivens action, and a
negligence cause of action.1 We deem the negligence cause of action as
a cause of action under the Federal Tort Claims Act (hereinafter “FTCA”).2
Plaintiff seeks $150,000 in compensatory damages and $95,000,000 in
punitive damages. (Id. at 5).
The Clerk of Court assigned the case to Magistrate Judge Thomas
M. Blewitt for pretrial management. Magistrate Judge Blewitt performed an
initial screening of the complaint pursuant to 28 U.S.C § 1915(e)(2). He
issued a report and recommendation (hereinafter “R&R”) suggesting the
following:

1

See Bivens v. Six Unknown Named Agents of the Fed. Bur. of
Narcotics, 403 U.S. 388 (1971).
2

See Alston v. Parker, 363 F.3d, 229, 234 (3d Cir. 2004) (stating that
courts are to construe complaints so “as to do substantial justice,” keeping
in mind that pro se complaints in particular should be construed liberally).
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1) Plaintiff’s request for a specific amount of monetary damages be
stricken from the complaint;
2) Plaintiff’s claims for damages against defendants in their official
capacities be dismissed with prejudice;
3) Defendants Dees, Holzaple, Thomas, the Federal Bureau of
Prisons (hereinafter “BOP”) and the United States be dismissed with
prejudice with regard to the Bivens action;
4) Defendants Brown and Sage be dismissed from the Bivens action
without prejudice;
5) Defendant United States be dismissed without prejudice from the
Federal Tort Claims Act (hereinafter “FTCA”) cause of action;
6) The negligence claims under the FCTA against Defendants Sage,
Pigos, Brown, Edinger, Dees, Holzaple, Thomas, John Does 1-10 and the
BOP be dismissed with prejudice;
7)Plaintiff’s constitutional claim against Defendant’s John Does 1-10
be dismissed without prejudice; and
8) Plaintiff’s Eighth Amendment Bivens claim regarding denial of
medical care against Defendants Pigos and Edinger be permitted to
proceed.

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(Doc. 12, R&R at 23-24).
Defendant filed objections to the R&R bringing the case to its present
posture.
Jurisdiction
Because the plaintiff brings suit to vindicate his constitutional rights
and under the FTCA, we have jurisdiction under 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”).
Legal Standard
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of
those portions of the report against which objections are made. 28 U.S.C.
§ 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.
1983). The court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. Henderson v.
Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court judge may
also receive further evidence or recommit the matter to the magistrate
judge with instructions. Id.
When no objections are filed to an R&R or to a portion of an R&R, in

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deciding whether to adopt the report and recommendation, we must
determine if a review of the record evidences plain error or manifest
injustice. FED. R. CIV. P. 72(b) 1983 Advisory Committee Notes (“When no
timely objection is filed, the court need only satisfy itself that there is no
clear error on the face of the record to accept the recommendation”); see
also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.
1983).
The magistrate judge examined the case pursuant to the requirement
that courts perform an initial screening of complaints filed by pro se
prisoners who seeks to proceed in forma pauperis. 28 U.S.C. §
1915(e)(2). The standard the court applies under section 1915 is the same
as the standard used for a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure.
When a 12(b)(6) motion is filed, the sufficiency of the allegations in
the complaint is tested. Granting the motion is appropriate if, accepting as
true all the facts alleged in the complaint, the plaintiff has not pleaded
“enough facts to state a claim to relief that is plausible on its face,” or put
another way, “nudged [his or her] claims across the line from conceivable
to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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The Third Circuit interprets Twombly to require the plaintiff to describe
“enough facts to raise a reasonable expectation that discovery will reveal
evidence of” each necessary element of the claims alleged in the
complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege
facts that “justify moving the case beyond the pleadings to the next stage
of litigation.” Id. at 234-35.
Discussion
I. Plaintiff’s objections
Plaintiff raises seven objections to the R&R, and we shall address
them in turn.
1. Specific monetary damages
As noted above, plaintiff seeks $150,000 in compensatory damages
and $95,000,000 in punitive damages. The magistrate judge recommends
striking from the complaint plaintiff’s request for a specific amount of
monetary damages. The magistrate judge bases his recommendation on
Local Rule of Court 8.1, which provides that the complaint “shall not claim
any specific sum where unliquidated damages are involved.” The instant
case deals with unliquidated damages, therefore, the magistrate judge

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recommends striking this request.
Plaintiff objects to this recommendation on the basis that “Plaintiff’s
Bivens is under federal jurisdiction, and Federal Rules of Civil Procedures
apply not local rules!!” (Doc. 16, Objections at 1). Plaintiff’s objection
lacks merit. The Federal Rules of Civil Procedure and the Local Rules
both apply to his case. Rule 83 of the Federal Rules of Civil Procedure
provides that a district court may “adopt and amend rules governing its
practice. A local rule must be consistent with - - but not duplicate - federal statutes and rules[.]” Here, the plaintiff cites to no rule or statute
that is inconsistent with the local rule. Accordingly, the plaintiff’s objection
is without merit and will be overruled. We will strike from the complaint the
request for specific monetary damages.
2. Defendant Holzaple, Associate Warden & Defendant Thomas
Warden
The plaintiff’s second objection deals with the R&R’s
recommendations involving Associate Warden Holzaple and Warden
Thomas. We will address these separately.
a. Defendant Holzaple, Associate Warden
The R&R recommends dismissing Defendant Holzaple, the associate

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warden at the prison, from the case with prejudice under both the Bivens
action and the FTCA action. Plaintiff objects to his dismissal from the
Bivens action.
With regard to the Bivens cause of action, the plaintiff alleges that
“Defendant Holzaple failed to assist in Plaintiff[’s] quest for appropriate
mental health treatment although he actually responded to Plaintiff’s
request to staff.” (Doc. 1, Compl. at 3). He further alleges that as the
associate warden, Holzaple has the duty to direct staff to provide
necessary and appropriate medical mental health care and treatment. (Id.)
A prison official cannot be held liable for a constitutional violation
based on respondeat superior liability. That is, he cannot be held liable
merely because he supervises the individual who caused the civil rights
violation. Rather, personal involvement on the part of the official must be
alleged. The magistrate judge suggests that Defendant Holzaple be
dismissed with prejudice from the Bivens action because the plaintiff has
not sufficiently pled personal involvement of Holzaple.
The plaintiff asserts that he provided several “requests to staff” and
verbally expressed his views to Holzaple, thus he has asserted sufficient
personal involvement. We disagree.

8

Personal involvement on the part of a prison supervisory official can
be demonstrated where the supervisor “kn[ew] of the constitutional
deprivation, participated in the deprivation or acquiesced to the wrongful
conduct.” Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988).
Moreover, “receiving and failing to respond to a grievance sent by a
prisoner is not sufficient to demonstrate personal involvement of a prison
supervisor[.]” Mines v. Levi, Civ. No. 07-1739, 2009 WL 839011 at *6 (E.D.
Pa. Mar. 26, 2009).
Here the R&R correctly suggests dismissing Defendant Holzaple. He
is not alleged to have had any personal involvement regarding plaintiff’s
medical treatment except for receiving complaints or inmate requests from
the plaintiff. Thus, this objection will be overruled.
b. Defendant Thomas
Plaintiff has also sued the Warden of USP-Lewisburg, Defendant
Thomas. For similar reasons as Defendant Holzaple - that is, no alleged
personal involvement - the magistrate judge recommends dismissing
Defendant Thomas from this action. Plaintiff objects on the basis that
Thomas had personal knowledge of the issue through a correspondence
from the “Washington’s Lawyers Committee”. As set forth above, however,

9

“personal knowledge” is not the basis upon which a supervisory defendant
may be held liable for a civil rights violation. The defendant must have
known of the constitutional deprivation and personally participated in it or
acquiesced to it. Here, plaintiff has not alleged such personal involvement.
Accordingly, the magistrate judge’s R&R will be adopted on this point and
the plaintiff’s objections overruled.
3. Received no mental health treatment
The next objection deals with whether the plaintiff has alleged that he
received any mental health treatment at the prison. The law provides that
prison officials such as the defendant warden and associate warden, who
are not doctors cannot “be considered deliberately indifferent simply
because they failed to respond directly to medical complaints of a prisoner
who was already being treated by the prison doctor.” Durmer v. O’Carroll,
991 F.2d 64, 69 (3d Cir. 1993). The R&R indicates that: “Plaintiff readily
admits and his Exhibits show that he was given medical care by the
medical Defendants and he received attention for his mental conditions by
these Defendants.” (Doc. 12, R&R at 18). Because he received treatment
from the medical personnel, the warden and associate warden, Thomas
and Holzaple, cannot be held liable for an Eighth Amendment claim.

10

Plaintiff argues that he “did not in fact receive any treatment at all for
his mental health illnesses at USP Lewisburg. His medication for those
conditions were prescribed at another institution. Plaintiff was not actually
treated while at USP-Lewisburg period.” (Doc. 16, Objections, at 2). After
a careful review, we agree with the magistrate judge and will overrule the
objection.
The complaint and exhibits attached thereto indicate that USPLewisburg did provide medical treatment to the plaintiff.3 Medical care he
evidently disagreed with, but medical care nonetheless. Therefore, this
objection is without merit and will be overruled.
4. Defendant Sage

3

Exhibits attached to his complaint illustrate the BOP Health
Services’ dealings with the plaintiff. For example, Exhibit 5 is a “Clinical
Encounter - Administrative Note”. It indicates that the plaintiff was placed
on suicide watch and refused to talk much but stated that he wants his pill
line medication back. (Doc. 1-1, at 12). Exhibit 6 is an incident report
that indicates that a prison medical care giver and the prison’s chief
psychologist when to speak with him. (Doc. 1-1, at 13). Exhibit 8 indicates
that an evaluation was performed on the plaintiff on February 11, 2014.
(Doc. 1-1, at 16). An administrative note designated as Exhibit 9 indicates
that medical staff saw the plaintiff on September 17, 2013. (Doc. 1-1, at
18). Defendant Edinger provided counseling to the plaintiff on or about
September 30, 2013. (Doc. 1-1, at 19). Also, Exhibit 11 indicates that on
November 18, 2013, Dr. Edinger considered plaintiff’s request to restart his
buproprion medication. (Doc. 1-1, at 23).
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Plaintiff’s complaint also asserts claims against J. Sage, the Chief
Psychologist at the prison. Specifically, the complaint alleges that
Defendant Sage “failed to provide Plaintiff adequate mental health
treatment,” was “aware of Plaintiff’s current diagnosis and his substantiated
history of mental illnesses,” and “chose to ignore the symptoms of
[deterioration] and continued to be indifferent to his mental health needs.”
(Doc. 1, Compl. at 2).
The R&R suggests dismissing Sage without prejudice to the plaintiff
filing an amended complaint and properly asserting the personal
involvement of Sage in the alleged unconstitutional behavior. The R&R
bases this recommendation on the assertion that plaintiff has not alleged
with sufficient factual specificity that Defendant Sage denied medical care
to the plaintiff, that is, that she personally participated in the decision to
deny medical care. The exhibits indicate that Defendant Sage tried to
speak to plaintiff when plaintiff was in the “suicide watch room” but left
when plaintiff refused to wear a smock. Plaintiff then shouted threats at
the medical staff. (Doc. 1-1 at 13).
We agree with the magistrate judge that the complaint does not
allege sufficient personal involvement of Defendant Sage. Besides general

12

allegations, the complaint reveals through its exhibits only one encounter
personally with Sage where she did not treat the plaintiff because plaintiff
would not comply with her request to don a smock.
The recommendation that Defendant Sage be dismissed without
prejudice will be adopted and the plaintiff’s objection will be overruled.
5. Defendant Brown
The R&R next addresses Defendant Brown, a doctor at the prison.
The complaint asserts that “Defendant Brown was quite aware of Plaintiff’s
complaint and failed to provide any medication or medical assistance
whatsoever nor did he actually respond to Plaintiff’s request to staff even to
direct Plaintiff’s course of actions.” (Doc. 1, Compl. at 3). The Magistrate
Judge notes that plaintiff fails to sufficiently allege how Defendant Brown
denied Plaintiff medical treatment for his serious mental health conditions.
Thus, the R&R recommends dismissing Brown without prejudice for failure
to allege personal liability against him.
Plaintiff objects to this recommendation. He asserts that Brown was
well aware of the issues set forth in the complaint and remained silent. As
set forth above, however, mere knowledge is not sufficient to allege
personal liability on a failure to provide sufficient medical care claim.

13

Accordingly, we will adopt the report and recommendation with regard to
Defendant Brown.
6. Defendant Dees
A third medical defendant that plaintiff sues is an EMT, Defendant S.
Dees. Plaintiff’s complaint alleges that “Defendant Dees was actually
aware of the dangers of Plaintiff’s mental illnesses untreated and chose a
course of action that will address her needs instead of the needs of
Plaintiff.” (Doc. 1, Compl. at 3). Dees evidently recommended the
discontinuation of plaintiff’s bupropion medication after plaintiff missed
three doses.
The magistrate judge indicates that Dees could not stop the
medication herself. The exhibits attached to the plaintiff complaint indicate
that she could merely recommend to the medical director that it be
discontinued. Dees did not take part in the final decision to discontinue the
medication. Therefore, the R&R recommends dismissal of Dees for lack of
personal involvement in discontinuation of the medicine. We disagree and
will sustain the plaintiff’s objections.
Dees had direct personal involvement with plaintiff. She
recommended that the medicine be discontinued and plaintiff asserts that

14

she fabricated documents so as to harm him. (Id.) Thus, although she did
not make the final decision to discontinue the medicine, she may have
been in a position to improperly affect that decision. Accordingly, we find
sufficient allegations have been set forth against Dees for the claim against
her to proceed at this point. Plaintiff’s objection with regard to Dees will,
therefore, be sustained.
7. Defendant Edinger
The R&R also discusses Defendant Doctor Andrew Edinger. The
Magistrate Judge concluded that plaintiff had sufficiently stated the
personal involvement of Edinger in the alleged improper decision to
discontinue plaintiff’s medication. (Doc. 12, R&R at 23). Accordingly, the
R&R recommends that plaintiff’s Eighth Amendment claim against Edinger
be allowed to proceed.
Plaintiff objects regarding Dr. Edinger. The nature of plaintiff’s
objection, however, is unclear as the Magistrate Judge recommends the
case proceeding against Edinger. Accordingly, the objection will be
overruled.
II. The remainder of the R&R
Plaintiff does not object to the remainder of the recommendations in

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the R&R. As noted above, when no objections are filed to an R&R or to a
portion of an R&R, in deciding whether to adopt the report and
recommendation, we must determine if a review of the record evidences
plain error or manifest injustice. FED. R. CIV. P. 72(b) 1983 Advisory
Committee Notes (“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record to accept
the recommendation”); see also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler,
723 F.2d 1077, 1085 (3d Cir. 1983).
A review of the remaining recommendations reveals no plain error or
manifest injustice. Thus, they will be adopted. These recommendations
include the following: 1) Plaintiff’s claims for damages against defendants
in their official capacities be dismissed with prejudice; 2) Defendant United
States be dismissed without prejudice from the Federal Tort Claims Act
(hereinafter “FTCA”) cause of action; 3) The negligence claims under the
FCTA against Defendants Sage, Pigos, Brown, Edinger, Dees, Holzaple,
Thomas, John Does 1-10 and the BOP be dismissed with prejudice; 4)
Plaintiff’s constitutional claim against Defendant’s John Does 1-10 be
dismissed without prejudice; and 5) Plaintiff’s Eighth Amendment denial of
medical care claim Bivens claim against Defendants Dees and Pigos be

16

permitted to proceed. (Doc. 12, R&R at 23-24).
Conclusion
For the reasons set forth above, Magistrate Judge Blewitt’s report
and recommendation will be adopted, and the plaintiff’s objections will be
overruled. An appropriate order follows.

Date: October 30, 2014

s/ James M. Munley
Judge James M. Munley
UNITED STATES DISTRICT COURT

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