Nelson v. Garman et al

Filing 119

MEMORANDUM (Order to follow as separate docket entry)Since all of the Plaintiffs federal claims in this matter have been dismissed, jurisdiction will be declined with respect to any state law negligence which Nelson wishes to pursue. An appropriate Order will enter. re 31 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Signed by Honorable Richard P. Conaboy on 3/7/18. (cc)

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

MICHAEL NELSON,

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Plaintiff
v.
MARK GARMAN, ET AL.,
Defendants

CIVIL NO. 3:CV-16-2487
(Judge Conaboy)

_____________________________________________________________
MEMORANDUM
Background
Michael Nelson (Plaintiff), an inmate presently
confined at the State Correctional Institution, Camp Hill,
Pennsylvania (SCI-Pennsylvania), initiated this pro se civil
rights action pursuant to 42 U.S.C. § 1983.

By Memorandum

and Order dated February 9, 2018, Defendants Doctor Burke;
Certified Registered Nurse Practitioner (CRNP) Forsyth’s
motion to dismiss was granted.

See Doc. 115.

Remaining Defendants include two Pennsylvania
Department of Corrections (DOC) officials, Chief of
Psychological Services Robert Marsh and Director of Special
Investigations James Barnacle, as well as Defendant Martin of
the Pennsylvania Attorney General’s Office,.

The other

Remaining Defendants are the following officials at
Plaintiff’s prior place of confinement the Rockview State
Correctional Institution, Bellefonte, Pennsylvania (SCI1

Rockview): Superintendent Mark Garman; Deputy Superintendent
for Centralized Services Morris Hauser; Deputy Superintendent
McMahan; Erin Miller; Correctional Counseling Program Manager
Tim Miller; Major Heather Haldeman; Unit Manager Fred
Reibsome; Health Care Administrator William Williams;
Psychologists Tice, Smith, Miller, and Olson; Chief
Psychologist Richard Goss; Correctional Counselors
Baumgardner and Lansberry; Licensed Practical Nurses (LPN)
Julie Chamberlain and Michelle Silks; Sergeant Best;
Correctional Officers St. Clair, Stover, and Taylor; Social
Worker Ralph; Lieutenants Vangorder and Vance.
According to the Complaint, Plaintiff was diagnosed as
having serious mental health problems (“major depressive
disorder”) and assigned to a Residential Treatment Unit (RTU)
at SCI-Rockview.

Doc. 1, ¶ 33.

Following a November 11,

2015 tel-med video conference with Doctor Blissenbach, a
psychiatrist, his mental health medication, Tegretol was
increased from 200 mg twice daily to 400 mg twice daily.
Upon receiving the initial dose of increased medication
from LPN Michelle Silks the following day, Nelson allegedly
experienced blurred vison.

Correctional Officers St. Clair

and Taylor allegedly ignored the Plaintiff’s request for
immediate medical treatment.

See id. at ¶ 35.

On Friday November 13, 2015, Nelson contends that after
he complained of blurred vison to LPN Julie Chamberlain, she
decided on her own to decrease the dosage of Tegretol from
2

400 mg to 300 mg by simply snapping one of the two 200 mg
tablets he was receiving in half.

Nelson asserts that the

action taken by LPN Chamberlain was improper because that
Defendant was not medically qualified to decrease the
previously prescribed dosage of his medication.

Plaintiff

states that he began developing additional side effects.
On the morning of November 14, 2015, Plaintiff claims
that he received another decreased dosage of his medication
from Defendant Chamberlain and she purportedly ignored his
complaints of suffering additional side effects.
¶ 37.

See id. at

The following morning, Plaintiff states that he told

Nurse Michelle Silks that he was contemplating suicide but
the Defendant purportedly failed to take any action other
then to give Plaintiff a decreased dosage (300 mg) of his
medication.

Nelson states that he remained on the decreased

medication for a total of twelve (12) days.1
During that period, prison officials including Unit
Manager Reibsome and Health Care Administrator Williams
allegedly displayed deliberate indifference to Nelson’s
treatment and covered up the alleged improper alteration of
his prescribed medication by Defendants Chamberlain and
Silks.

Plaintiff further claims that multiple other

Defendants violated his rights by failing to take appropriate
action on numerous grievances which he initiated and

1. Plaintiff acknowledges that CRNP Forsyth eventually informed
the nursing staff that they could not alter the dosage of
Plaintiff’s medications and reordered the Tegretol prescription in
accordance with Doctor Blissenbach’s orders. See Doc. 1, ¶ 42.
3

complaints he made concerning the alleged improper alteration
of his medication.
Plaintiff also contends that he was issued a misconduct
by Defendant St. Clair for failing to obey an order regarding
an incident with another prisoner on Thursday, November 26,
2015 (during the twelve (12) day period which he received
decreased doses of his medication).

See id. at ¶ 41. Nelson

maintains that the misconduct should have been dismissed or
overturned because it was based upon behavior caused by his
mental illness, apparently the decreased dosage.2

He also

seeks to assert liability against multiple Defendants for
their failure to expunge or overturn the misconduct despite
their knowledge that Plaintiff was receiving decreased
medication at the time of the underlying incident.

In

relation to this claim, Plaintiff asserts that a response to
one of his appeals was on SCI-Houtzdale letterhead, which he
concludes was an ethical violation.
There are also claims that Nelson was subjected to
verbal harassment and racial slurs by members of the
correctional staff including Unit Manager Reibsome,
Correctional Officers Taylor, Stover, and Best.
¶ 39,49.

See id. at ¶

The Complaint further contends that on or about

December 7, 2015 Plaintiff was placed in a Restricted Housing
Unit (RHU) cell for nine days without a shower or recreation.
See id. at ¶ 42.

However, none of the Defendants are

identified as having been involved with this RHU placement.
2. Plaintiff adds that the misconduct negatively impacted his
parole eligibility.
4

Nelson seeks compensatory and punitive damages as well as
injunctive relief.

Presently

pending is Remaining Defendants’ motion to dismiss the
Complaint for failure to state a claim.

See Doc. 31.

The

motion is ripe for consideration.
Discussion
Remaining Defendants claim entitlement to dismissal on
the grounds: (1) the claims against many of the Defendants
should be dismissed for lack of personal involvement; (2) a
viable assertion of retaliation is not raised in the
Complaint; (3) an actionable claim of deliberate indifference
to Nelson’s medical needs is not alleged; and (4) the
allegations of verbal harassment are insufficient.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for
the dismissal of complaints that fail to state a claim upon
which relief can be granted.

A court in addressing a motion

to dismiss must “accept as true all factual allegations in
the complaint and all reasonable inferences that can be drawn
therefrom, and view them in the light most favorable to the
plaintiff.”

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.

2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.
2005)).
A complaint must set forth facts that, if true,
demonstrate a plausible right to relief.

See Fed. R. Civ. P.

8(a)(stating that the complaint should include “a short and
plain statement of the claim showing that the pleader is
entitled to relief”); Bell Atl. Corp. v. Twombly, 550 U.S.
5

544, 555 (2007).

This requirement “calls for enough facts to

raise a reasonable expectation that discovery will reveal
evidence of” the necessary elements of the plaintiff’s cause
of action.

Id. at 556.

A complaint must contain “more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.” Id.

Legal

conclusions must be supported by factual allegations and the
complaint must state a plausible claim for relief.

See id.

at 679.3
The reviewing court must determine whether the
complaint “contain[s] either direct or inferential
allegations respecting all the material elements necessary to
sustain recovery under some viable legal theory.”

Id. at

562; see also Phillips v. County of Allegheny, 515 F.3d 224,
234 (3d Cir. 2008)(in order to survive a motion to dismiss, a
plaintiff must allege in his complaint “enough facts to raise
a reasonable expectation that discovery will reveal evidence
of the necessary element[s]” of a particular cause of
action).

Finally, it is noted that pro se pleadings must be

afforded liberal construction.

See

Haines v. Kerner, 404

U.S. 519, 520 (1972).

3. “Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, at 555.
6

Personal Involvemen
Remaining Defendants initially argue that the following
allegations do not properly assert personal involvement in
constitutional misconduct: (1)

Director Barnacle of the

DOC’s Office of Special Investigation and Intelligence failed
to act on a Spring, 2016 complaint regarding the purported
improper medication alteration; (2) Correctional Counselor
Baumgardner, Psychologist Tice, Social Worker Ralph, and Erin
Miller served on an SCI-Rockview Psychiatric Review Team on
April 5, 2015 which failed to take action on a complaint from
Nelson regarding the aforementioned medication alteration;
(3) Superintendent Garman improperly denied a misconduct
appeal by the Plaintiff on SCI-Houtzdale stationary and
failed to grant Plaintiff relief on a grievance appeal; (4)
Defendants Bigelow, Confer, Counselor Lansberry, Deputy
McMahan, and Deputy Superintendent Hauser allegedly had
knowledge that Superintendent Garman used SCI-Houtzdale
stationery in denying Plaintiff’s misconduct appeal;4 (5) SCIRockview Chief Psychologist Goss and Unit Manager Haldeman
failed to expunge Plaintiff’s misconduct or to take
corrective action on the medication alteration complaint; (6)
Defendants Martin, Deputy Superintendent Hauser, and DOC
Chief Psychologist Marsh failed to take corrective action on
the November 2015 medication alteration months after the
incident; (7) Correctional Counseling Program Manager Tim
4. It is noted that nelson does not deny that he was guilty of the
misconduct, rather, he contends only that the charge should have
been withdrawn/overturned because his actions resulted from his
mental health problems.
7

Miller and Psychologist Olson who are both listed as
Defendants but not the subject of any factual allegations;
(8) Psychologist Smith allegedly failed to respond to an
April 29, 2016 complaint regarding the November 2015
purported unauthorized decrease in medication; (9)
Lieutenants Vance and VanGorder who are alleged to have been
made aware of violations of Plaintiff’s constitutional rights
months later and failed to take action, and (10) Health care
Administrator Williams with respect to the allegation of
having incorrectly responded to Nelson’s grievance.
A plaintiff, in order to state an actionable civil
rights claim, must plead two essential elements: (1) that the
conduct complained of was committed by a person acting under
color of law, and (2) that said conduct deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States.

Groman v.

Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw
by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir.
1990).
Civil rights claims brought cannot be premised on a
theory of respondeat superior.

Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988).

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:

8

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.
Many of the Remaining Defendants are employed in
supervisory roles with the DOC, SCI-Rockview, and also with
the Pennsylvania Attorney General’s Office.

Pursuant to the

standards announced in Rode, any claims against those
Remaining Defendants solely based upon their supervisory
roles cannot proceed.
It is undisputed that Plaintiff filed a multitude of
grievances, complaints, and administrative appeals regarding
the alleged unauthorized twelve (12) day decrease in his
medication and the misconduct charge issued by Defendant St.
Clair.

Nelson’s pending action clearly attempts to establish

liability against almost all of the Remaining Defendants due
to their responses or non-response to his various
administrative appeals, grievances, and complaints.
Prisoners 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 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.

9

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 Plaintiff to establish liability
against Defendants 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 postincident 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).
Based upon the above well settled standards, dismissal
in favor of the Remaining Defendants with respect to any
claim asserted them which are premised upon their respective
purported failures to take action in response to Nelson’s
complaints, grievances, and misconduct appeals is
appropriate.

10

However, it is noted that the Complaint does satisfy
the personal involvement requirement with respect to the
claims raised against Defendants St. Clair (misconduct
charge);

Best, Taylor (verbal harassment, retaliation);

Reibsome, Chamberlain, and Silks (deliberate indifference).
Dismissal will be entered in favor of all other Remaining
Defendants on the basis of lack of personal involvement.
Verbal Harassment
Plaintiff alleges that he was subjected to racial
slurs, as well as threats of retaliation by Defendants
Reibsome, Chamberlain, Best, Taylor, and Stover.
The use of words generally cannot constitute an assault
actionable under § 1983.

Johnson v. Glick, 481 F.2d 1028,

1033 n.7 (2d Cir.); Maclean v. Secor, 876 F. Supp. 695, 69899 (E.D. Pa. 1995); Murray v. Woodburn, 809 F. Supp. 383, 384
(E.D. Pa. 1993) ("Mean harassment . . . is insufficient to
state a constitutional deprivation."); Prisoners' Legal Ass'n
v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) ("[V]erbal
harassment does not give rise to a constitutional violation
enforceable under § 1983.").
Mere threatening language and gestures of a custodial
officer do not, even if true, amount to constitutional
violations.

Balliet v. Whitmire, 626 F. Supp. 219, 228-29

(M.D. Pa.) ("[v]erbal abuse is not a civil rights violation .
. ."), aff'd, 800 F.2d 1130 (3d Cir. 1986) (Mem.).

A

constitutional claim based only on verbal threats will fail
regardless of whether it is asserted under the Eighth
Amendment's cruel and unusual punishment clause, see
11

Prisoners' Legal Ass'n, 822 F. Supp. at 189, or under the
Fifth Amendment's substantive due process clause.
Verbal harassment, with some reinforcing act
accompanying them, however, may state a constitutional claim.
For example, a viable claim has been found if some action
taken by the defendant escalated the threat beyond mere
words.

See Northington v. Jackson, 973 F.2d 1518 (10th Cir.

1992) (guard put a revolver to the inmate's head and
threatened to shoot); Douglas v. Marino, 684 F. Supp. 395
(D.N.J. 1988) (involving a prison employee who threatened an
inmate with a knife).

Moreover, alleged instances of verbal

harassment which are not accompanied by any physical contact
are constitutionally insufficient.

See Hart v. Whalen, 2008

WL 4107651 *10 (M.D. Pa. July 29, 2008);
2004 WL 1793018 *7

Wright v. O’Hara,

(E.D. Pa. 2004)(correctional officer’s

words and gestures, including lunging at prisoner with a
clenched fist were constitutionally insufficient because
there was no physical contact).
There is no indication that the verbal harassment
allegedly voiced against Nelson was accompanied by a
reinforcing act involving a deadly weapon as contemplated
under Northington and Douglas.

More importantly, it is not

alleged that the alleged verbal abuse was accompanied by any
physically intrusive behavior.

Given the circumstances

described by Plaintiff, the purported verbal remarks
attributed to Defendants Reibsome, Taylor, Stover and Best,
although offensive, were not of such magnitude to shock the
conscience as contemplated by this Court in
12

S.M. v. Lakeland

School District, 148 F. Supp.2d 542, 547-48 (M.D. Pa.

2001)

and thus, did not rise to the level of a constitutional
violation.
Retaliation
Plaintiff asserts that he was verbally threatened by
Correctional Officers Best, Stover, and Taylor with
retaliation over filing a grievance against Defendants
Cunningham and Silks.

Remaining Defendants contend that they

are entitled to entry of dismissal with respect to the bald
allegations of retaliation because Plaintiff alleges only
that he was threatened with retaliation.

See Doc. 32, p. 21.

To establish a Section 1983 retaliation claim, a
plaintiff bears the burden of satisfying three (3) elements.
First, a plaintiff must prove that he was engaged in a
constitutionally protected activity.
F.3d 330, 333 (3d Cir. 2001).

Rauser v. Horn, 241

Second, a prisoner must

demonstrate that he “suffered some ‘adverse action’ at the
hands of prison officials.”

(Id.)(quoting Allah v.

Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

This

requirement is satisfied by showing adverse action
“sufficient ‘to deter a person of ordinary firmness’ from
exercising his First Amendment rights.”

(Id.)(quoting Suppon

v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)).

Third, a

prisoner must prove that “his constitutionally protected
conduct was ‘a substantial or motivating factor’ in the
decision to discipline him.”

Rauser, 241 F.3d at 333-

34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)).
13

The mere fact that an adverse action occurs after
either a complaint or grievance is filed is relevant, but not
dispositive, for the purpose of establishing a causal link
between the two events.

See Lape v. Pennsylvania, 157 Fed.

App’x. 491, 498 (3d Cir. 2005).

Only where the facts of a

particular case are “unusually suggestive” of a retaliatory
motive will temporal proximity, standing alone, support an
inference of causation.

Krouse v. American Sterlizer Co.,

126 F.3d 494, 503 (3d Cir. 1997).
Once Plaintiff has made a prima facie case, the burden
shifts to Defendants to prove by a preponderance of the
evidence that they “would have made the same decision absent
the protected conduct for reasons reasonably related to
penological interest.”

Carter v. McGrady, 292 F.3d 152, 158

(3d. Cir. 2002)(internal quotation and citation omitted).
When analyzing a retaliation claim, it must be recognized
that the task of prison administrators and staff is
difficult, and the decisions of prison officials require
deference, particularly where prison security is concerned.
Rauser, 241 F.3d at 334.
As noted in Allah, a prisoner litigating a retaliation
claim need not prove that he had an independent liberty
interest in the privileges that he was denied.

Thus, the

relevant inquiry is not whether the alleged retaliatory
conduct was unconstitutional.

On the contrary, Plaintiff

only needs to establish that he was subjected to adverse
action in retaliation for his engagement in constitutionally

14

protected conduct. The Remaining Defendants have not provided
this Court with sufficient facts to warrant a determination
that Plaintiff would have been subjected to a cell search and
placed in the RHU even if the inmate had not engaged in any
constitutionally protected activity.
Despite the liberal treatment afforded to pro se
litigants, the Plaintiff has not set forth a viable claim of
retaliation.

The initial

Rauser requirement requires that

Plaintiff show that he was engaged in a constitutionally
protected activity.

Nelson’s allegation that he was

subjected to retaliation for submitting institutional
grievances satisfies the Rauser requirement of pleading that
the exercise of a constitutionally protected conduct was the
motivating factor behind the purported retaliatory treatment.
The second prong of Rauser

requires that Nelson allege

that he suffered adverse action sufficient to deter a person
of ordinary firmness from exercising his constitutional
rights.

Rauser’s third

prong requires a prisoner must prove

that his constitutionally protected conduct was a substantial
or motivating factor in the alleged adverse action.

In the

instant case, Plaintiff contends only that he was verbally
threatened with retaliation.

There is no discernible

allegation that Nelson was actually subjected to any type of
retaliatory mistreatment.

As such, the second and third

Rauser adverse action requirements were not met.

Moreover,

this Court has already determined that mere verbal threats of
retaliation such as the ones alleged by Nelson are

15

constitutionally insufficient.

Dismissal will be granted

with respect to the allegations of retaliation.
Deliberate Indifference
Remaining Defendants next argue that LPNs Chamberlain
and Silks did not exhibit deliberate indifference to the
Plaintiff’s medical needs.

See Doc. 32, p. 23.

As

previously discussed Plaintiff alleges that on Friday
November 13, 2015, he complained of blurred vison to LPN
Chamberlain, she decided on her own to decrease the dosage of
Tegretol from 400 mg to 300 mg by simply snapping one of the
two 200 mg tablets he was receiving in half.

The following

day, LPN Silks likewise gave Nelson a lower dosage of his
prescribed medication and the inmate continued on the alleged
unauthorized decreased medication for a twelve (12) day
period.
A prison official violates the Eighth Amendment when he
acts with deliberate indifference to a known objectively
serious risk to a prisoner’s health or safety.

See Farmer,

511 U.S. at 837; Beers-Capitol v. Whetzel, 256 F. 3d 120, 125
(3d Cir.

2001).

This requirement of actual knowledge means

that “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,

511 U.S. at 837.
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)).
16

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, 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,
exhibits attached to the Complaint clearly show that
Plaintiff was deemed to have a serious mental illness by
prison officials.

See Doc. 1, p. 55.
17

Based upon that

designation, this Court is satisfied at this juncture that
the serious medical need requirement has been satisfied.
However, the Court has not been presented with sufficient
facts by Plaintiff which would warrant a determination the
alleged side effects he suffered due to an increase in
medication constituted a serious medical need.
With respect to the subjective deliberate indifference
component, the Supreme Court has established that the proper
analysis for deliberate indifference is whether a prison
official “acted or failed to act despite his knowledge of a
substantial risk of serious harm.”

Farmer, 511 U.S. at 841.

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 [as] medical malpractice does not become
a constitutional violation merely because the victim is a
prisoner.”

Estelle, 429 U.S. at 106.

When a prisoner has actually been provided with medical
treatment, one cannot always conclude that, if such treatment
was inadequate, it was no more than mere negligence.
Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

See
It is

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

See id.

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.; Ordonez v. Yost, 289 Fed. Appx. 553, 555 (3d Cir.

18

2008)(“deliberate indifference is proven if necessary medical
treatment is delayed for non-medical reasons.”).
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.

Based upon his own factual assertions, Plaintiff has
failed to satisfy the deliberate indifference requirement of
Estelle.

With respect to LPNs Chamberlain and Silks it is

undisputed that they provided the Plaintiff with medication.
There was no denial of care by those Defendants.

Rather, the

only allegations is that when Plaintiff presented them with
complaints that he was suffering side effects, the two nurses
allegedly made a medically unauthorized decision to decrease
the Plaintiff’s prescribed Tegretol from 400 mg twice a day
to 300 mg twice a day.

Such purported conduct does not

support a claim that an apparent need for treatment was
ignored or that treatment was denied or delayed.

Rather, the

Plaintiff’s claims at best contend that LPNs Chamberlain and
Silkes overstepped their authority and acted in a negligent
fashion by decreasing the Plaintiff’s medication in response
to his complaints of having side effects without first
obtaining the necessary authorization to do so from a
physician.

Since allegations of negligence are insufficient
19

to set forth a deliberate indifference claim, the civil
rights claims against LPNs Chamberlain and Silks are subject
to dismissal.
In regards to the other Remaining Defendants, many of whom
were not medical personnel, the claims that they did not
reprimanded the two nurses who allegedly decreased the dosage
of his medication without proper authorization or had a
misconduct charge dismissed, such conduct does not support a
claim that those Defendants failed to provide or delayed
needed medical care as required under Estelle.
With respect to the claims that non-medical Defendants
St. Clair and Taylor ignored Nelson’s request for immediate
medical attention when he complained of blurred vison, under
the standards set forth in Durmer, this allegation also fails
since Plaintiff acknowledges that the medical staff did
address his complaint the next day.

This claim is further

undermined by the fact that Nelson does not identify any
treatment which could have alleviated his problem and been
provided sooner.

There is also no claim that Plaintiff’s

blurred vison was anything more then a temporary problem
caused by the increase in his medication.

Based upon those

consideration St. Clair and Taylor are entitled to dismissal.
In conclusion, the allegations asserted against the
Defendants simply do not rise to the level of a viable
constitutional deliberate indifference claim.

20

ADA
Plaintiff asserts that conduct attributed to the
Defendants also violated his rights under the Americans with
Disabilities Acr (ADA).

See Doc. 1, ¶ 39.

The Remaining

Defendants next contend that Plaintiff fails to allege that
he was deprived of anything because of a disability.

See

Doc. 32, p. 9.
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. § 12132.5

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, 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

5.
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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individuals receive the same treatment as those who are not
disabled. It has been recognized that the provisions of the
ADA are applicable to prisoners confined in state
correctional institutions.

See

Pa. Dept. of Corrections v.

Yeskey, 524 U.S. 206 (1998).
Based upon a liberal construction of the Complaint,
Plaintiff has not sufficiently demonstrated that he is
disabled for purposes of the ADA.

Second, the alleged

conduct by the Remaining Defendants does not set forth a
viable basis for a claim that Plaintiff was subjected to
discrimination on the basis of any disability.

Accordingly,

the Court will grant the request for dismissal of Nelson’s
ADA claim.
Pendent Jurisdiction
To the extent that Plaintiff wishes to pursue state
law claims of negligence, federal courts have jurisdiction
over state claims which are related to the federal claims and
result from a common nucleus of operative facts.

See United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); see also
Aldinger v. Howard, 427 U.S. 1, 9 (1976).

A district court

may decline to exercise supplemental jurisdiction over a
claim when the court has dismissed all claims over which it
has original jurisdiction.
(1997).

See 28 U.S.C. § 1367(c)(3)

Decisions regarding pendent jurisdiction should be

premised on considerations of judicial economy, convenience
and fairness to the litigants.

22

New Rock Asset Partners v.

Preferred Entity Advancements, 101 F.3d 1492, 1505 (3d Cir.
1996)(citation omitted).
Once jurisdiction has been exercised over the state claim,
elimination of the federal claim does not deprive the court of
jurisdiction to adjudicate the pendent claim.

Id. (citing

Lentino v. Fringe Emp. Plans, Inc., 611 F. 2d 474, 479 (3d Cir.
1979)).

However, when the federal claim is dismissed prior to

trial, a district court should decline to decide the pendent
state claims, “unless considerations of judicial economy,
convenience, and fairness provide an affirmative justification
for doing so.”

Borough of West Mifflin v. Lancaster, 45 F.3d

780, 788 (3d Cir. 1995).
Since all of the Plaintiff’s federal claims in this matter
have been dismissed, jurisdiction will be declined with respect
to any state law negligence which Nelson wishes to pursue.
appropriate Order will enter.

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

DATED: MARCH 7, 2018

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