Brodie v. Fisher et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/23/17. (Attachments: # 1 Unpublished Opinion(s))(bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:16-0208
Supt. JOHN D. FISHER, et al.,
Plaintiff, an inmate formerly confined in the Smithfield State Correctional
Institution (“SCI-Smithfield”), Huntingdon, Pennsylvania1, filed the above
captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). The
named Defendants are the following employees of the Department of
Corrections and SCI-Smithfield: Chief Grievance Officer Dorina Varner,
former Superintendent Jon D. Fisher, Grievance Officer Lisa Hollibaugh,
former Safety Manager David Fultz, Registered Nurse Supervisor Mary
Moyer, Nurse Lisa, Lieutenant Gaff and Correctional Officers Vough and
Currently pending before the Court is Defendants’ motion to dismiss the
Plaintiff’s complaint. (Doc. 13). The motion is fully briefed and is ripe for
disposition. For the following reasons, the Court will grant the motion.
Plaintiff is currently housed in the Fayette State Correctional Institution,
Allegations in Complaint
Plaintiff alleges that on March 17, 2014, at approximately 8:30 p.m.,
during block recreation, Plaintiff “cut his right hand/finger on the edge of the
table provided for inmates to play cards; dominos; or any other games”. (Doc.
1). He claims that on this date and time, Defendant Rhodes was working the
triage area and instructed Defendant Vough to transport Plaintiff to the
Medical Department of the jail. Id.
Upon arriving at the Medical Department, Defendant, Nurse Lisa,
“attended the gaping wound on Plaintiff’s right hand/finger; as the report to
Lieutenant Gaff was made by said Nurse, the wound’s severity was beyond
the jail’s ability to repair.” Id. Lt. Gaff then “made a notification to center
control that there were no doctors in the prison and that a transport to an
outside facility (hospital) was necessary.” Id. Plaintiff states that “amid said
request, Nurse Lisa took other measures to impede the emergency request
of sending Plaintiff to the outside facility by calling ‘Doctor Vincent’ to come
in three hours later to come to work while the gaping wound to Plaintiff’s
hand/finger remained open to infection, thus treating such emergency as
mediocre.” Id. Dr. Vincent then “treated the gaping wound by numbing the
wound by spraying it; giving Plaintiff a needle; then stitching it up and
wrapping it with gauze.” Id. Plaintiff claims that “as a result of the gross
negligence of medical staff and otherwise, Plaintiff’s hand and finger loss
feeling in certain areas and has a contemporary (sic) condition that impedes
certain movements that are pivotal to writing and holding material in said right
On March 18, 2014, Plaintiff filed Grievance No. 5023020-14,
“demanding to be compensated for the pain and injuries endured due to the
deliberate indifference of said facilitator’s negligence in ignoring the
antecedent caveats of said injurious structure of the table in the recreation
On March 20, 2014, grievance Coordinator Lisa Hollibaugh
“acknowledged said grievance” and on March 28, 2014, Safety Manager
David Fultz “responded to the grievance with a denial”, stating that “the sharp
edges on the tables had been removed as of March 25, 2014.” Id.
On April 4, 2014, Plaintiff filed an appeal of the denial of Grievance No.
5023020-14 to the Superintendent, “contending the culpable neglect of said
Maintenance Safety Manager, thus, re-asserting the compensation request.”
Plaintiff alleges that on April 14, 2014, the Superintendent affirmed the
Safety Manager’s denial, “under the guise that the issue had been resolved
insofar as, after the issue contended had transpired; Maintenance (Mr. Fultz)
had taken corrective action.” Id.
Plaintiff states that “subsequently, on April 21, 2014, the issue was
appealed to the Final Review, Secretary’s Office for which a constituent for
Dorina Varner, Chief Grievance Officer, whereas her reasoning for upholding
the response of her subordinates was identical to Superintendent Jon D.
Fisher; but she actually denied compensation”, stating that her “reasoning for
upholding the response of Facility Employees of Smithfield was that because
the injuries were attended to after the being injured by the negligence of said
Officers, and therefore, Plaintiff was not entitled to any compensation for
those reasons.” Id.
After the incident Plaintiff claims to have submitted a request to staff to
be seen by Dr. Vincent because he “was losing feeling in the right hand, and
also to notify him that [Plaintiff’s] hand was purple and swollen.” Id. Dr.
Vincent gave Plaintiff “an unknown prescription pain pill for a few days” at the
end of which Plaintiff”s “felling in [his] hand was completely gone and felt like
it was completely numb.” Id.
Plaintiff claims that “thereafter, [he] was transferred to SCI-Fayette
whereas a sick call slip was sent to Medical Department for an X-ray due to
lack of feeling in [Plaintiff’s] hand” and “the prison informed [him] that this was
a permanent injury.” Id.
On February 8, 2016, Plaintiff filed the instant action in which he seeks
compensatory and punitive damages for Defendants’ “deliberate indifference
to the protection and safety of Plaintiff’s living conditions which subsequently
led to the structure of said facility to cause injury to Plaintiff” as well as to
Plaintiff’s medical treatment “by terminating Lieutenant Gaff’s order to send
Plaintiff to an outside hospital that would have had an emergency vehicle
come get Plaintiff from the prison in ample time to avoid permanent injury.” Id.
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
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).
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.,
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, supra.
A. Eighth Amendment Conditions of Confinement
The Eighth Amendment’s prohibition of cruel and unusual punishment
does not only restrain affirmative conduct, such as the use of excessive force
against prisoners. See, e.g., Hudson v. McMillian, 503 U.S. 1, 5 (1992). It also
imposes a duty on prison officials to provide humane conditions of
confinement and to “take reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “A prison official's
‘deliberate indifference’ to a substantial risk of serious harm to an inmate
violates the Eighth Amendment.” Id. at 828. A substantial risk of serious harm
“may be established by much less than proof of a reign of violence and terror,”
but requires more than a single incident or isolated incidents. See Riley v.
Jeffes, 777 F.2d 143, 147 (3d Cir.1985). To determine whether officials
operated with deliberate indifference, courts question whether they
consciously knew of and disregarded an excessive risk to the prisoner's well
being. Farmer, 511 U.S. at 840–44. Not only must a prison official be “aware
of facts from which the inference could be drawn that a substantial risk of
serious harm exists,” but the official “must also draw the inference.” Farmer,
511 U.S. at 837. “[A] prison official is deliberately indifferent when he knows
or should have known of a sufficiently serious danger to an inmate.” Young
v. Quinlan, 960 F.2d 351, 361 (3d Cir. 1992) (emphasis in original). The term
“should have known” is a term of art, which
[d]oes not refer to a failure to note a risk that would be perceived
with the use of ordinary prudence. It connotes something more
than a negligent failure to appreciate the risk ..., though
something less than subjective appreciation of that risk. The
“strong likelihood” of [harm] must be “so obvious that a lay person
would easily recognize the necessity for” preventative action.
[T]he risk of ... injury must be not only great, but also sufficiently
apparent that a lay custodian's failure to appreciate it evidences
an absence of any concern for the welfare of his or her charges.
Id. (quoting Colburn v. Upper Darby Twp., 946 F.2d 1017, 1025 (3d Cir.
1991)) (citation omitted, alterations in original). “Mere negligence claims do
not constitute ‘deliberate indifference.’ ” Innis v. Wilson, 334 Fed.Appx. 454,
475 (3d Cir. 2009) (per curiam). As such, prison officials are not subject to
liability as the result of negligent acts that cause unintended injury to inmates.
Daniels v. Williams, 474 U.S. 327 (1986)(holding that inmate who was injured
when he slipped on a pillow that was negligently left on the stairs by deputy
sheriff does not state claim under §1983).
Plaintiff’s allegations fail to establish a substantial risk of harm. Plaintiff
fails to allege evidence of any prior incident in which Defendants were on
notice of a danger and deliberately disregarded it. See Innis v. Wilson, 334
Fed. Appx. 454, (3d Cir.2009) (claim against maintenance staff as to table
that collapsed properly dismissed; no allegation that staff were aware of risk
of serious harm and failed to take steps); Simpson v. Horn, 25 F. Supp. 2d
563, 571 (E.D. Pa. 1998) (no conditions claim where inmate only complained
of rashes and two small cuts from edge of bed). As such, Brodie cannot
establish a substantial risk of serious harm through a single incident. Wallace
v. Doe, 512 Fed.Appx. 141, 144 (3d Cir. 2013) (per curiam) (quoting Riley,
777 F.2d at 147).
B. 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
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
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
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.
The allegations in Plaintiff’s complaint clearly demonstrate that Plaintiff
received medical attention, and that the attention he received lacks the
requisite deliberate indifference to support a Section 1983 claim. Once
Plaintiff reported to the medical department for treatment, he was immediately
seen, and his injury was assessed and then treated.
At best, Plaintiff’s complaint demonstrates his disagreement with the
type and timeliness of the treatment rendered. Though he may have wished
to have been seen by an ER doctor and treated earlier, his disagreement with
the course of action that Defendants took based on the injury he presented,
is not enough to state a §1983 claim. Sample v. Diecks, 885 F.2d 1099, 1109
(3d Cir.1989) (citing Estelle, 429 U.S. at 105–06 (in the medical context, an
inadvertent failure to provide adequate medical care cannot be said to
constitute an unnecessary and wanton infliction of pain or to be repugnant to
the conscience of mankind)). This is particularly so in light of the fact that
there are no allegations in the complaint that any of the Defendants
intentionally withheld medical treatment from Plaintiff in order to inflict pain or
harm upon Plaintiff. Farmer; Rouse. Thus, the allegations in the Plaintiff’s
complaint amount to nothing more than Plaintiff’s subjective disagreement
with the treatment decisions and medical judgment of the medical staff at the
prison. At most, the allegations in the complaint only rise to the level of mere
negligence. As simple negligence can not serve as a predicate to liability
under §1983, Hudson v. Palmer, 468 U.S. 517 (1984), Plaintiff’s civil rights
complaint fails to articulate an arguable claim. See White, 897 F.2d at 108110.
Even holding Plaintiff’s complaint to the less stringent pleading
standards of pro se plaintiffs, the allegations do not sufficiently allege
deliberate indifference. Plaintiff does not suggest that the institution’s medical
staff were aware that there was an excessive risk to his health or safety but
wantonly refused to provide him medical care. Spruill v. Gillis, 372 F.3d 218,
236 n. 12 (3d Cir. 2004) (stating that while a pro se complaint should be read
liberally, an inmate plaintiff must still allege that defendant was aware of the
risk and intentionally disregarded it). Thus, the allegations in the Plaintiff’s
complaint amount to nothing more than Plaintiff’s subjective disagreement
with the treatment decisions and medical judgment of the medical staff at the
C. Claims against Defendants Superintendent Fisher, Safety
Manager Fultz, Grievance Officer Hollibaugh and Chief Grievance Officer
Plaintiff fails to state a claim against Defendants Fisher, Fultz,
Hollibaugh and Varner, because the complaint reveals that they lack any
personal involvement in the wrongs, and Plaintiff’s allegations against these
Defendants are based solely upon their supervisory roles.
Local government units and supervisors typically are not liable under
§1983 solely on a theory of respondeat superior. See City of Oklahoma City
v. Tuttle, 471 U.S. 808, 824 n. 8 (1985); Monell v. Dep’t of Soc. Servs. Of City
of New York, 436 U.S. 658, 690-91 (1978) (municipal liability attaches only
“when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury” complained of). “A defendant in a civil rights
action must have personal involvement in the alleged wrongs, liability cannot
be predicated solely on the operation of respondeat superior. Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v.
Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing Rode). Personal
involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence.” Rode, 845 F.2d at 1207. Accord
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir.1997); Baker
v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir.1995). 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.
A §1983 action brought against a person in his or her official capacity
“generally represent[s] only another way of pleading an action against an
entity of which an officer is an agent.” Monell, 436 U.S. at 690 n. 55. “[I]n an
official-capacity action, ... a governmental entity is liable under §1983 only
when the entity itself is a ‘moving force’ behind the deprivation; thus, in an
official capacity suit the entity's ‘policy or custom’ must have played a part in
the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(internal quotation marks and citations omitted).
With respect to these Defendants, a review of the complaint confirms
that other then being listed as Defendants there are no specific assertions
that any of these Defendants had any personal involvement in the purported
violations of Plaintiff’s rights under the Eighth Amendment. Rather, the claims
asserted against these Defendants are premised either upon their respective
supervisory positions within the DOC or their handling of Plaintiff’s
subsequent institutional grievances and appeals.2
The Plaintiff alleges that Grievance Officer Hollibaugh acknowledged
his inmate grievance and Safety Manager Fultz responded to it. His appeals
However, dissatisfaction with the response to an inmate’s grievances
does not support a constitutional claim. See Alexander v. Gennarini, 144 Fed.
Appx. 924 (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). See also Cole
v. Sobina, No. 04-99J, 2007 WL 4460617, at *5 (W.D. Pa. Dec.19, 2007)
(“[M]ere concurrence in a prison administrative appeal process does not
implicate a constitutional concern.”). Thus, the “failure of a prison official to
provide a favorable response to an inmate grievance is not a federal
constitutional violation.” Flanagan v. Shively, 783 F.Supp. 922, 931–32 (M.D.
Pa.1992), aff’d, 980 F.2d 722 (3d Cir.1992). Based upon an application of the
above standards, such allegations are insufficient to satisfy the personal
involvement requirement standard of Rode. Accordingly, Defendants Fisher,
Fultz, Hollibaugh and Varner are entitled to entry of dismissal.
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.
of the grievance were denied by Superintendent Fisher and Chief Grievance
Mayview State Hospital, 293 F.3d 103, 114 (3rd Cir. 2002). Since it is clear
from Plaintiff’s complaint, and supporting documentation, that Plaintiff
received adequate medical treatment, and merely disagrees with the
treatment he received during this time, the Court finds that amendment on
Plaintiff’s Eighth Amendment medical claim would be futile.
Likewise, with respect to Plaintiff’s Eighth Amendment conditions of
confinement claim, it is clear that Brodie cannot establish a substantial risk of
serious harm through a single incident, and as such, any amendment would
For the reasons stated above, the Court will grant Defendants’ motion to
dismiss Plaintiff’s complaint, for failure to state a claim. Since Plaintiff has not
stated any cognizable federal claim, the Court, in its discretion, will decline to
exercise supplemental jurisdiction over Plaintiff’s state law claims pursuant to
28 U.S.C. §1367(c)(3). See Smith v. Albert Einstein Med. Ctr., 378 Fed.Appx.
154, 158 (3d Cir. 2010). Plaintiff may re-file any state law claims in the
appropriate Pennsylvania State Court. An appropriate order shall issue.
s/ Malachy E. Mannion
Malachy E. Mannion
United States District Judge
DATE: March 23, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0208-01.wpd
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