Gonzalez v. Wentzel et al

Filing 64

MEMORANDUM (Order to follow as separate docket entry)As such, under the standards announced in Durmer, the non-medical Commonwealth Defendants are entitled to summary judgment with respect to any claim of medical deliberate indifference. The unopposed motion for summary judgment will be granted. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 9/18/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

GABRIEL GONZALEZ,

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Plaintiff
v.
JOHN WENTZEL, ET AL.,
Defendants

CIVIL NO. 3:CV-15-184
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
This pro se civil rights action pursuant to 42 U.S.C. § 1983
was filed by Gabriel Gonzalez (Plaintiff), an inmate presently
confined at the State Correctional Institution, Coal Township,
Pennsylvania (SCI-Coal Twp.).

Remaining Defendants are Secretary

John Wetzel of the Pennsylvania Department of Corrections (DOC) and
Superintendent Vincent Mooney and of SCI-Coal Twp.(hereinafter
Commonwealth Defendants).
By Memorandum and Order dated February 10, 2016, Defendant
Doctor Michael Moclock’s motion for summary judgment was granted.
See Doc. 48.

The Commonwealth Defendants’ motion to dismiss (Doc.

26) for failure to exhaust administrative remedies was denied on
February 18, 2016.

See Doc. 50.

As previously discussed by this Court, Gonzalez describes
himself as having “multiple cronic [sic] care issues” and pain.

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Doc. 1, ¶ IV.

Plaintiff alleges that his medical problems are not

being “properly addressed” by the SCI-Coal Twp. Medical staff.
Although Plaintiff previously received a determination of
eligibility for a handicapped cell, it is alleged that SCI-Coal
Twp. RN Supervisor Yackiel improperly denied the inmate’s request
for such continued placement on the grounds that he is not
handicapped.

The Complaint and attached exhibits generally

conclude that the Defendants have violated Plaintiff’s
constitutional rights as well as the Americans with Disabilities
Act (ADA).

Gonzalez seeks injunctive relief including placement in

a handicapped accessible cell, pain medication, and evaluation by
an outside physician.
Presently pending is the Commonwealth Defendants’ motion
seeking entry of summary judgment.

See Doc. 58.

The unopposed

motion is ripe for consideration.
Discussion
Commonwealth Defendants assert that they are entitled to
entry of summary judgment on the grounds that: (1) they were not
personally involved in Plaintiff’s medical treatment; (2) a viable
ADA claim is not set forth in the Complaint; (3) Plaintiff failed
to exhaust his administrative remedies with respect to his request
fo a clinical evaluation; and (4) the Commonwealth Defendants are
entitled to qualified immunity.
Standard of Review
Summary judgment is proper if “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
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movant is entitled to a judgment as a matter of law.”

Fed. R. Civ.

P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is “material” if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
non-moving party.

Id. at 248.

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

Summary

judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden at
trial.”

Celotex, 477 U.S. at 322-23.

“‘Such affirmative evidence

– regardless of whether it is direct or circumstantial – must
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amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).
Personal Involvement
The Commonwealth Defendants’ initial argument asserts that
Secretary Wetzel and Superintendent Mooney are entitled to entry
of summary judgment because they were not personally involved in
Plaintiff’s medical treatment and the decisions regarding his cell
accommodations.

See Doc. 60, p. 10.

As previously noted, this

argument is unopposed.
Civil rights claims cannot be premised on a theory of
respondeat superior.
(3d Cir. 1988).

Rode v. Dellarciprete, 845 F.2d 1195, 1207

Rather, each named defendant must be shown, via

the complaint's allegations, to have been personally involved in
the events or occurrences which underlie a claim.

See Rizzo v.

Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077 (3d Cir. 1976).

As explained in Rode:

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.
Rode, 845 F.2d at 1207.
Prisoners also have no constitutionally protected right to a
grievance procedure.

See Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger, C.J., concurring)
(“I do not suggest that the [grievance] procedures are
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constitutionally mandated.”); Speight v. Sims, No. 08-2038, 2008
WL 2600723 at *1 (3d. Cir. Jun 30, 2008)(citing Massey v. Helman,
259 F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a prison
grievance procedure confers no liberty interest on a prisoner.”)
While prisoners do have a constitutional right to seek
redress of their grievances from the government, that right is the
right of access to the courts which is not compromised by the
failure of prison officials to address an inmate’s grievance.

See

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal
grievance regulations providing for administrative remedy
procedure do not create liberty interest in access to that
procedure).

Pursuant to those decisions, any attempt by a

prisoner to establish liability against a correctional official
based upon their handling of his administrative grievances or
complaints does not support a constitutional claim.

See

also Alexander v. Gennarini, 144 Fed. Appx. 924, 925 (3d Cir.
2005)(involvement in post-incident grievance process not a basis
for § 1983 liability); Pryor-El v. Kelly, 892 F. Supp. 261, 275
(D. D.C. 1995) (because prison grievance procedure does not confer
any substantive constitutional rights upon prison inmates, the
prison officials' failure to comply with grievance procedure is
not actionable).
It is undisputed that Plaintiff has been diagnosed as having
and treated for a chronic back condition as well as having been
designated for a lower bunk, lower tier placement.

However,

Gonzalez was not deemed to be eligible for a handicapped cell.
There is no claim that either Secretary Wetzel or Superintendent
Mooney was involved in Gonzalez’s medical care or in the
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decisionmaking as to his lack of suitability for placement in a
handicapped cell.

Rather, it is clear from exhibits attached to

the complaint, that it was RN Supervisor Yackiel who made the
determination that Plaintiff was not eligible for a handicapped
cell.

See Doc. 1, pp. 8 & 10.
Pursuant to the standards announced in Rode and Hampton,

Plaintiff’s action to the extent that it seeks to establish
liability against Secretary Wetzel and Superintendent Mooney
solely based upon their respective supervisory capacities within
the Pennsylvania Department of Corrections cannot proceed.

Such

respondeat superior type assertions are simply insufficient for
establishing civil rights liability.

Likewise, any attempt by

Gonzalez to set forth claims against Commonwealth Defendants
Wetzel and Mooney solely based upon any responses or lack of
action in reply to his administrative grievance appeals is equally
inadequate under Flick and Alexander.
Since there are no factual allegations whatsoever that
either of the Commonwealth Defendants was personally involved in
the purported acts of constitutional misconduct, it is appropriate
to grant this unopposed request for entry of summary judgment.
ADA
Plaintiff asserts that conduct attributed to the
Commonwealth Defendants also violated his rights under the
Americans with Disabilities Act (ADA).

Specifically, Gonzalez

alleges that he was improperly denied handicapped cell
accommodations for his chronic back and pain issues.
Secretary Wetzel and Superintendent Mooney claim entitlement
to entry of summary judgment on the basis that Plaintiff provides
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no evidence of having a diagnosed disability and alleged
violations of the ADA cannot be asserted against individuals.
Doc. 60, p. 6.

See

As previously noted, this argument is unopposed.

In support of their argument, Commonwealth Defendants have
submitted a declaration under penalty of perjury by SCI-Coal Twp.
Health Care Administrator Karen Merritt-Scully.
Exhibit A.

See Doc. 59-1,

Although Scully admits that Plaintiff has been treated

for issues related to his back and at times has been housed in a
handicapped cell, she states that the Plaintiff does not meet the
criteria to have an order for a permanent handicap cell.1
Title II of the ADA provides that "no qualified individual
with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by such entity."

42 U.S.C. § 12132.2

The ADA seeks

"to assure even handed treatment and the opportunity for
[disabled] individuals to participate in and benefit from programs
[receiving financial assistance]. Southeastern Community College
v. Davis, 442 U.S. 397 (1979).

P.C. v. McLaughlin, 913 F.2d 1033,

1. Commonwealth Defendants admit that Plaintiff was previously
housed in a handicapped cell at times without a medical order
because he was not displacing an inmate who was medically qualified
for a handicapped cell.
2.
The regulations implementing the ADA define a "qualified
individual with a disability" as:
"An individual with a disability who, with
or without reasonable modifications to
rules, policies or practices, . . . meets
the essential eligibility requirements for
the . . . participation in programs or
activities provided by a public entity."
28 C.F.R. § 35.104 (1993).
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1041 (2d Cir. 1990).

The "evenhanded treatment" requirement does

not, however, impose an affirmative obligation on public entities
to expand existing programs but only that disabled individuals
receive the same treatment as those who are not disabled. An ADA
claim requires the applicant to show that challenged action
resulted from discriminatory animus based upon alleged disability.
See Brown v. Pennsylvania Department of Corrections, 290 Fed.
Appx. 463, 467 (3d Cir. 2008).
It has been recognized that the provisions of the ADA are
applicable to prisoners confined in state correctional
Pa. Dept. of Corrections v. Yeskey, 524 U.S.

institutions.

See

206 (1998).

As previously discussed by this Court’s February

10, 2016 Memorandum and Order, the ADA applies only to claims
against public entities, not individuals.

See Hampton v. Wetzel,

2017 WL 954050 * 10 (M.D. Pa. March 10, 2017)(Conner, J.).

As

discussed by the United States Court of Appeals for the Third
Circuit in Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir.
2002) “individuals are not liable under Titles I and II of the
ADA.”

See also Koslow v. Commonwealth of Pa., 302 F.3d 161, 178

(3d Cir. 2002).

Other courts within this circuit have reached

similar conclusions.

See Issa v. Delaware State University, 2014

WL 3974535 *4(D.Del Aug. 11, 2014)(individual liability not
available for ADA claims).

Pursuant to the above discussion, the

two individually named Commonwealth Defendants are not properly
named defendants for the purposes of an ADA claim.
Moreover, this Court also agrees that the Plaintiff has not
sufficiently demonstrated that he is disabled for purposes of the
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ADA.

Accordingly, the Court will grant the unopposed request for

entry of summary judgment with respect to Gonzalez’s ADA claim.
Deliberate Indifference
The Eighth Amendment “requires prison officials to provide
basic medical treatment to those whom it has incarcerated.”

Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)).

Where a prisoner has actually been

provided with medical treatment, one cannot always conclude that,
if such treatment was inadequate, it was not more than mere
negligence.

See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.

1993). It is true that if inadequate treatment results simply from
an error in medical judgment, there is no constitutional
violation.

See id.

In order to establish an Eighth Amendment medical claim, an
inmate must allege acts or omissions by prison officials
sufficiently harmful to evidence deliberate indifference to a
serious medical need.

See Spruill v. Gillis, 372 F.3d 218, 235-36

(3d Cir. 2004); Natale v. Camden Cty. Correctional Facility, 318
F.3d 575, 582 (3d Cir. 2003).

In the context of medical care, the

relevant inquiry is whether the defendant was: (1) deliberately
indifferent (the subjective component) to (2) the plaintiff’s
serious medical needs (the objective component).

Monmouth Cty.

Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987);
West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).
A serious medical need 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.”

Mines v. Levi, 2009 WL 839011 *7 (E.D. Pa. March 26,
9

2009)(quoting Colburn, 946 F.2d at 1023); Monmouth Cty. Corr.
Inst. Inmates, 834 F.2d at 347.

“[I]f unnecessary and wanton

infliction of pain 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.” Young v.
Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth
Cty. Corr. Inst. Inmates, 834 F.2d at 347). With respect to the
serious medical need requirement, this Court is satisfied that
Plaintiff’s allegation of having a chronic back ailment satisfies
the serious medical need standard at this stage in the
proceedings.
The Court of Appeals for the Third Circuit in Durmer added
that a non-physician defendant can not be considered deliberately
indifferent for failing to respond to an inmate's medical
complaints when he is already receiving treatment by the prison's
medical staff.

However, where a failure or delay in providing

prescribed treatment is deliberate and motivated by non-medical
factors, a constitutional claim may be presented.

See id.

Secretary Wetzel and Superintendent Mooney are clearly non-medical
defendants.

The Complaint acknowledges that Gonzalez was being

treated by the prison’s medical staff including Doctor Moclock.
There is no discernible claim that either of the Remaining
Defendants denied Plaintiff any prescribed treatment for a nonmedical reason.

Likewise, there is no claim that the Remaining

Defendants failed to provide Plaintiff with a prescribed
handicapped cell.

On the contrary, Plaintiff acknowledges that

the prison’s medical staff made a determination that he was not
entitled to a handicapped cell.
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As such, under the standards announced in Durmer, the nonmedical Commonwealth Defendants are entitled to summary judgment
with respect to any claim of medical deliberate indifference.
unopposed motion for summary judgment will be granted.

An

appropriate Order will enter.3

__S/Richard P. Conaboy
Richard P. Conaboy
United States District Judge

DATED: SEPTEMBER 18, 2018

3. Based upon the reasons set forth herein, the remaining
arguments for summary judgment will not be addressed.
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The