Morton v. DeRose et al
Filing
57
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 9/29/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
TERENCE J. MORTON,
:
:
Plaintiff
CIVIL ACTION NO. 3:15-2351
:
v
:
(JUDGE MANNION)
DOMINICK L. DEROSE, et al.
:
Defendants
MEMORANDUM
I.
Background
Plaintiff, Terence J. Morton, an inmate confined in the State Correctional
Institution, Houtzdale (“SCI-Houtzdale”), Pennsylvania, filed the above
captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). Morton
challenges the medical care he received as an inmate at his former place of
confinement, the Dauphin County Prison. The named Defendants are Enos
Martin, M.D. and Warden Dominick DeRose. Id. Plaintiff’s allegations of fact
are taken from Plaintiff’s complaint (Doc. 1 ) and Plaintiff’s medical records
submitted in support of his complaint. (Doc. 52).
On November 12, 2013, Plaintiff requested on intake to be seen for a
mental health evaluation, stating that “he was diagnosed by juvenile probation
with Bipolar Disorder and ADHD and never treated.” (Doc. 52 at 23). Plaintiff
denied any suicidal thoughts. Id.
Plaintiff alleges that in December, 2013, he saw Defendant, Dr. Enos,
for bipolar disorder, sleeping problems and anxiety problems. (Doc. 1 at 2).
Dr. Martin prescribed him the following medications “Imipramine 25 mg,
Risperdal 2mg and Sinequan 75mg.” Id. Plaintiff states that “this medication
began on 12-11-13 until the Defendant reorder them on 3-31-14, the Plaintiff
took the medication until he was transferred to SCI-Camphill on 4-8-14.” Id.
In January, 2014, Plaintiff informed Dauphin County Prison’s Medical
Department, along with Defendant, Dr. Martin, via request slip that the “the
medication ‘Risperdal’ started causing serious medical complications and
abnormal defects, such as chest bleeding and Plaintiff’s body started to grow
female breast.” Id. Plaintiff also contacted his family about the serious harm
the drug was causing. Id.
In March, 2014, Plaintiff experienced sensitivity in his chest and
bleeding of the chest. Id. He states that he “contacted a nurse, ‘Jane Doe’ at
the pm pill line about it” and she “advised him that it’s temperaly (sic) and that
the plaintiff is growing and not to worry about it.” Id. On March 31, 2014,
Plaintiff was seen by Dr. Martin at a sick call appointment. (Doc. 52 at 22).
There is no indication that Plaintiff complained to Dr. Martin about any
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concerns of Risperdal’s side effects. Id.
Although Plaintiff claims that Defendant, Dr. Martin “deliberately forced
the Plaintiff to continue to take the ‘Riperdal’ medication until the Plaintiff got
transferred to a state institution on April 8, 2014,” (Doc. 1 at 3), Plaintiff’s
medical record indicates that he was seen by Dr. Martin on April 2, 2014, and
was “doing well, complains of not sleeping beyond breakfast.” (Doc. 52 at 24).
At this visit, it was noted that “Imipramine has been removed from formulary;
need formulary change or substitute med.” Id. There are no recorded
complaints by Plaintiff to Dr. Martin regarding the taking of Risperdal. Id.
Plaintiff claims that he was “bullied, emotionally and mental abuse by
fellow inmates and Correctional Officer at Dauphin County Prison” and that
the “bullying forced [him] to stay in his cell and the only time [he] exited the
cell was to get a shower and a phone call.” (Doc. 1 at 3). When in the shower,
he states that he “was forced to cover his chest with one arm so he would not
get made fun of” because “fellow inmates and Correctional Officer would
scream at the Plaintiff telling him he needs a bra and several inmates made
a paper bra and hung it in the Plaintiff’s cell.” Id. Plaintiff claims he “went
through depression, mood swings.” Id.
On May 24, 2014, while housed at SCI-Camp Hill, Plaintiff began to
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“experience more abnormal amount of growth in his chest so much that stress
marks began to form on his chest and inner arms.” Id. Although Plaintiff “put
in a sick call slip to SCI-Camp Hill’s medical department, he was never seen
because he was transferred to SCI-Houtzdale on May 28, 2014.” Id.
On May 30, 2014, Plaintiff was notified by a family member that
Risperdal has “harmful side effects towards boys and men”, which “included
growth in chest bleeding of the breast and mood swings.” Id.
On July 18, 2014, Plaintiff “discontinued the medication due to the harm
that the medication caused him.” Id.
In December, 2014, Plaintiff filed a grievance on the medical department
and Dr. Martin. Id. He claims that he “never received a response from the
grievance coordinator” because he was transferred back to SCI-Camp Hill on
December 24, 2014. Id.
On April 28, 2015, Plaintiff, having never received a response from the
first grievance, filed a second one. Id.
On December 4, 2015, Plaintiff filed the instant action in which he seeks
compensatory and punitive damages for Defendants’ “deliberate indifference
to medical needs, medical malpractice, slight negligence, emotional distress,
mental anguish and pain and suffering under the Eighth Amendment.” Id.
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Currently pending before the Court are Defendants’ motions to dismiss
Plaintiff’s complaint, filed on behalf of Defendants, Dr. Martin and Warden
DeRose. (Docs. 31, 33). The motions are fully briefed and are ripe for
disposition. For the following reasons, the Court will grant the motions.
II.
Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to
state a claim upon which relief can be granted.” Under Rule 12(b)(6), we must
“accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v.
County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint
need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.
8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Id. at 570. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft
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v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels
and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is
not bound to accept as true a legal conclusion couched as a factual
allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must
include at least a discernible factual basis to survive a Rule 12(b)(6)
dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180,
184 (3d Cir. 2009) (per curiam).
In resolving the motion to dismiss, we thus “conduct a two-part
analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual
elements from the legal elements and disregard the legal conclusions. Id. at
210-11. Second, we “determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for relief”. Id. at 211
(quoted case omitted).
In addition, because Plaintiff complains about “prison conditions,” the
screening provisions of 42 U.S.C. §1997e apply, as do the screening
provisions of 28 U.S.C. §1915(e), given that he was granted in forma pauperis
status to pursue this suit. The court’s obligation to dismiss a complaint under
the PLRA screening provisions for complaints that fail to state a claim is not
excused even after defendants have filed a motion to dismiss. See, e.g.,
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Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir. 2000). Hence, if there is
a ground for dismissal which was not relied upon by a defendant in a motion
to dismiss, the court may nonetheless sua sponte rest its dismissal upon such
ground pursuant to the screening provisions of the PLRA. See Lopez; Dare
v. U.S., Civil No. 06-115E, 2007 WL 1811198, at *4 (W.D. Pa. June 21, 2007),
aff’d, 264 Fed App’x. 183 (3d Cir. 2008).
III.
Discussion
A. Eighth Amendment Medical Claim
In order to establish an Eighth Amendment medical claim, a plaintiff
must show “(i) a serious medical need, and (ii) acts or omissions by prison
officials that indicate deliberate indifference to that need.” Natale v. Camden
Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse
v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one
that has been diagnosed by a physician as requiring treatment, or one that is
so obvious that a layperson would recognize the need for a doctor’s attention.
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton infliction of
pain results as a consequence of denial or delay in the provision of adequate
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medical care, the medical need is of the serious nature contemplated by the
eighth amendment.” Id.
A prison official acts with deliberate indifference to an inmate’s serious
medical needs when he “knows of and disregards an excessive risk to inmate
health or safety; the 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.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). Thus, a complaint that a physician or a medical department “has been
negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment...” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision not to
order an X-ray, or like measures, does not represent cruel and unusual
punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s long
as a physician exercises professional judgment his behavior will not violate
a prisoner’s constitutional rights.” Brown v. Borough of Chambersburg, 903
F.2d 274, 278 (3d Cir. 1990). Further, a doctor’s disagreement with the
professional judgment of another doctor is not actionable under the Eighth
Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). In
sum, negligence, unsuccessful medical treatment, or medical malpractice
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does not give rise to a §1983 cause of action, and an inmate’s disagreement
with medical treatment is insufficient to establish deliberate indifference. See
Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
Further, a prison administrator cannot be found deliberately indifferent
under the Eighth Amendment because he or she fails to respond to the
medical complaints of an inmate being treated by a prison physician, or
because, as non-physicians, they defer to the medical judgment of the
inmate’s treating physicians. Id., 991 F.2d at 69. If, however, non-medical
prison personnel had “a reason to believe (or actual knowledge) that prison
doctors or their assistants are mistreating (or not treating) a prisoner,” liability
may be imposed. Spruill, 372 F.3d 236.
A mere difference of opinion between the prison’s medical staff and the
inmate regarding the diagnosis or treatment which the inmate receives does
not support a claim of cruel and unusual punishment. Farmer v. Carlson, 685
F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d 22,
24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976).
Additionally, if there is a dispute over the adequacy of the received
treatment, courts have consistently been reluctant to second guess the
medical judgment of the attending physician. Little v. Lycoming County, 912
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F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key
question is whether the defendant has provided the plaintiff with some type
of treatment, regardless of whether it is what the plaintiff desires. Farmer v.
Carlson, 685 F. Supp. at 1339.
By Plaintiff’s own account, he received medical treatment and
medication at Dauphin County Prison. To the extent that Plaintiff is
dissatisfied with the purported side effect of the medication, i.e., bleeding,
breast growth and mood swings, such allegations, at best, demonstrate
Plaintiff’s disagreement with medical treatment. Though he may have
preferred a different medication, such disagreement is not enough to state a
§1983 claim. Spruill, 372 F.3d 235, (holding that “[m]ere disagreement as to
the proper medical treatment is” insufficient to state a constitutional violation);
Gause v. Diguglielmo, 339 Fed.Appx. 132, 136 (3d Cir. 2009) (a dispute over
the choice of medication does not rise to the level of an Eighth Amendment
violation). This is particularly true in light of the fact that there are no
allegations in the amended complaint that defendant Dr. Martin intentionally
withheld medical treatment from Plaintiff in order to inflict pain or harm upon
him. See Farmer, 685 F.Supp. at 1339; Rouse, 182 F.3d at 197.
The allegations in Plaintiff’s complaint amount to nothing more than his
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subjective disagreement with the treatment decisions and medical judgment
of the medical staff at the prison. White, 897 F.2d. at 103, (observing that “a
prisoner’s subjective dissatisfaction with his medical care does not in itself
indicate deliberate indifference”). Claims of medical malpractice and
disagreements as to the proper course of medical treatment simply do not
suffice to satisfy the deliberate indifference standard. See Monmouth Cnty.,
834 F.2d at 346. Courts will not second guess whether a particular course of
treatment is adequate or proper. See Parham v. Johnson, 126 F.3d 454, 458
n.7 (3d Cir. 1997); (quoting Inmates of Allegheny Cnty. Jail v. Pierce, 612
F.2d 754, 762 (3d Cir. 1979)). Based on the foregoing, Plaintiff’s complaint
fails to articulate a plausible civil rights claim against defendant Dr. Martin.
B. Personal Involvement
It is well established that personal liability in a civil rights action 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). It is also well-settled in the
Third Circuit that personal involvement of defendants in alleged constitutional
deprivations is a requirement in a civil rights case and that a complaint must
allege such personal involvement. Sutton v. Rasheed, 323 F.3d 236, 249–250
(3d Cir. 2003). Each named defendant must be shown, through the
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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).
Aside from naming Warden DeRose in the caption of the complaint,
there are no allegations in the body of the complaint against this Defendant.
There is no evidence of record that this Defendant was personally involved in
any of the alleged incidents of constitutional deprivation. Thus, it is apparent
that Plaintiff is attempting to impose liability on Warden DeRose on the basis
of respondeat superior. As such, Defendant, Warden DeRose is entitled to
dismissal.1
1
With respect to Plaintiff’s allegation that “Correctional Officer would
scream at the Plaintiff telling him he needs a bra,” it is well settled that mere
words spoken to a prisoner by a correctional officer, even when those words
are harsh, do not amount to a violation of the prisoner’s civil rights by the
officer. Johnson v. Glick, 481 F.2d 1028, 1033 n. 7 (2d Cir.1973); Collins v.
Cundy, 603 F.2d 825, 827 (10th Cir.1979) (verbal harassment by threatening
to hang an inmate is not sufficient to state a constitutional deprivation).
“Standing alone, simple verbal harassment does not constitute cruel and
unusual punishment, deprive a prisoner of a protected liberty interest or deny
a prisoner equal protection of the laws.” DeWalt v. Carter, 224 F.3d 607, 612
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IV.
Leave to Amend
Before dismissing a complaint for failure to state a claim upon which
relief may be granted, the Court must grant the Plaintiff leave to amend his
complaint unless amendment would be inequitable or futile. See Grayson v.
Mayview State Hospital, 293 F.3d 103, 114 (3rd Cir. 2002). Since it is clear
from Plaintiff’s complaint that Plaintiff received adequate medical treatment
throughout his incarceration at the Dauphin County Prison, and merely
disagrees with the treatment he received during this time, the Court finds that
amendment on these claims would be futile.
V.
Conclusion
For the reasons stated above, the motions to dismiss, filed on behalf of
Defendants, Dr. Enos Martin and Warde Dominick DeRose, will be granted. An
appropriate order shall issue.
s/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: September 29, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-2351-01.wpd
(7th Cir. 2000). Accordingly, any claim of verbal assault fails to state a
cognizable claim.
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