Murray v. Wetzel et al

Filing 136

MEMORANDUM (Order to follow as separate docket entry)Since all of the Plaintiffs federal claims against Defendants Correct Care and Rogers in this matter have been dismissed, jurisdiction will be declined with respect to any state law claims against those two Defendants. An appropriate Order will enter. re 61 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Courtney Rodgers, Correct Care Solutions Signed by Honorable Richard P. Conaboy on 3/15/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
IRVING MURRAY,
Plaintiff
v.
JOHN E. WETZEL, ET AL.,
Defendants

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CIVIL NO. 3:CV-17-491
(Judge Conaboy)

________________________________________________________________
MEMORANDUM
Background
Irving Murray, an inmate presently confined at the
Mahanoy State Correctional Institution, Frackville,
Pennsylvania (SCI-Mahanoy), filed the above captioned pro se
civil rights action pursuant to 42 U.S.C. § 1983.

A second

action initiated by the Plaintiff was previously consolidated
into this matter.
By Memorandum and Order dated February 14, 2018, the
Corrections Defendants’ motion to dismiss was partially
granted. See Doc. 123.

Dismissal was granted in favor of

Corrections Defendants Wetzel, Debalso, Mason, Silva, Varner,
Damore, and Hinman.

The allegations of verbal harassment and

for damages under the Pennsylvania Constitution were also
dismissed.

1

Remaining Defendants are Correct Care Solutions
(hereinafter Correct Care) and the following individuals
employed at SCI-Mahanoy:

Unit Manager Kevin Kellner, Keri

Moore; Health Care Administrator John Steinhart; Doctors
Courtney Rodgers, Robert Marsh, Andrew Newton, Paul Noel, and
Jay Cowan; Physicians’ Assistants R. Miller and Nancy
Palmigiano; Nurse Brenda Houser; PSS Amber Voekler; and LPM E.
Everding.
Murray states that he suffers from multiple chronic
medical problems including asthma, Hepatitis C, hypertension,
and epilepsy.

Murray asserts that the SCI-Mahanoy medical

staff has been denying him needed treatment and medications in
retaliation for his affiliation with a high profile prisoner.
The alleged mistreatment has included Murray being required to
pay for pain medication, falsification of his institutional
medical records, denial of mental health programming, and
improper assignment to an upper bunk.

The Complaint seeks

declaratory and injunctive relief as well as compensatory and
punitive damages.
Presently pending is a motion to dismiss or in the
alternative for summary judgment filed by Defendants Correct
Care and Doctor Rogers.

See Doc. 61.

ripe for consideration.

2

The opposed motion is

Discussion
With respect to the two Moving Defendants, Plaintiff
describes Doctor Rogers as being a licensed and registered
physician employed by Correct Care who was directly involved
in his treatment at SCI-Mahanoy.

See Doc. 1, p. 11. Murray

contends that Rogers fabricated facts in his institutional
medical files and denied him chronic care blood pressure,
cholesterol, asthma, acid reflux, pain, and anti-viral
Hepatitis C medications.1

It is also alleged that with respect

to his Hepatitis C, Murray was denied viral load testing, an
endoscopy, and liver biopsies.

See id. at p. 27.

Plaintiff

further claims that Rogers denied him follow up treatment for
back pain suffered in a fall from his top bunk.

See id. at p.

18.
The Complaint identifies Correct Care as a private
corporation which has been contracted by the Pennsylvania
Department of Corrections (DOC) to provide health care for
SCI-Mahanoy inmates.

Murray contends that Correct Care and

the Pennsylvania Department of Corrections’ (hereinafter DOC)
Hepatitis C. Committee have failed to adopt proper guidelines
for the treatment of state inmates with Hepatitis C.

1

See id.

In part, Plaintiff contends that his records have been
altered to reflect that he suffers from paranoia and delusions.
See id. at p. 29.
3

at p. 21.

Plaintiff additionally asserts that a newly

available Hepatitis C medication is only being provided to a
certain number of inmates because of its high cost.
The two Moving Defendants claim entitlement to
dismissal/summary judgment on the grounds that: (1) Plaintiff
failed to exhaust his administrative remedies; (2) there is no
basis for liability against Correct Care; (3) Plaintiff’s
claims are barred by the doctrine of res judicata; (4) Murray
fails to state a viable claim of deliberate indifference
against Doctor Rogers; and (5) the speculative allegation of
conspiracy is insufficient.
Motion to Dismiss
Moving Defendants’ pending dispositive motion is
supported by evidentiary materials outside the pleadings.
Federal Rule of Civil Procedure 12(d) provides in part as
follows:
If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleading are
presented to and not excluded by the
court, the motion must be treated as one
for summary judgment under Rule 56. All
parties must be given reasonable
opportunity to present all the material
that is pertinent to the motion.
Fed. R. Civ. P. 12(b)(d).
This Court will not exclude the evidentiary materials
accompanying Moving Defendants’ motion.
4

Thus, it will be

construed as solely seeking summary judgment.

See Latham v.

United States, 306 Fed. Appx. 716, 718 (3d Cir. 2009)(when a
motion to dismiss has been framed alternatively as a motion
for summary judgment such as in the present case, the
alternative filing is sufficient to place the parties on
notice that summary judgment might be entered).
Summary Judgment
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 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.
242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

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

5

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
non-moving party may not simply sit back and rest on the
allegations in its complaint.
477 U.S. 317, 324 (1986).

See Celotex Corp. v. Catrett,

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 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).
Res Judicata

6

The initial argument for summary judgment asserts that
Plaintiff previously filed a civil rights action in the United
States District Court for the Western District of Pennsylvania
which similarly asserted that Murray was being denied proper
treatment for Hepatitis C.

Since that was addressed on its

merits, the Moving defendants argue that the consideration of
Plaintiff’s pending action is barred by res judicata.

See

Doc. 62, p. 22.
The complex doctrine of res judicata restricts
relitigation of issues.

Res judicata requires "(1) a final

judgment on the merits in a prior suit involving (2) the same
parties or their privies and (3) a subsequent suit based on
the same causes of action."

United States v. Athlone Indus.,

Inc., 746 F.2d 977, 983 (3d Cir. 1984).
Res judicata precludes a party both from relitigating
matters already litigated and from litigating matters that
have never been litigated, yet should have been advanced in an
earlier suit.

Huck v. Dawson, 106 F.3d 45 (3d Cir. 1997)

(quoting Julien v. Committee of Bar Examiners, 923 F. Supp.
707, 716 (D.VI 1996)).
Plaintiff’s prior action in the Western District did not
named Doctor Rogers as a Defendant and did not concern his
medical treatment at SCI-Mahanoy.

7

As such, any claims related

to either Defendant Rogers or subsequent conduct at SCIMahanoy are not barred by res judicata.
Some of the claims presently asserted against Defendant
Correct Care are similar to those raised and dismissed by the
Western District in Plaintiff’s earlier action.

Moreover,

while Correct care was named as a Defendant in that earlier
action, the treatment protocol at issue herein was not
developed until after the filing of that action.

Accordingly,

although there was a final judgment on the merits entered in
Plaintiff’s prior suit, since Rogers was not named as a
Defendant in that matter and the claims presently raised
against Correct Care are not the same, the doctrine of res
judicata does not preclude consideration of Plaintiff’s
pending action.
Personal Involvement
The Moving Defendants’ second argument contends that any
attempt by Plaintiff to establish liability against Correct
Care based upon a theory of supervisory liability or the
Hepatitis C protocol developed by the DOC must fail.
62, p. 10.

See Doc.

They add that there is no discernible claim that

Correct care maintained any policy which caused harm to
Murray.
A plaintiff, in order to state an actionable civil rights

8

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.

See 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).
Furthermore, federal civil rights claims brought under §
1983 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:
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.
In order to establish a viable § 1983 claim against a

9

private corporate entity such as Correct Care, it must be
asserted that said Defendant had a policy, practice, or custom
which caused injury to the plaintiff. See Adonai-Adoni v.
King, 2009 WL 890683 * 2 (E.D. Pa. March 31, 2009) (a private
health care provider can only be liable under § 1983 if claim
rests upon some policy, practice or custom); see also Riddick
v. Modery, 250 Fed. Appx. 482, 483-84 (3d Cir. 2007);
Carpenter v. Kloptoski, 2010 WL 891825 * 8 (M.D. Pa. March 10,
2010)(§ 1983 claim against private medical service solely on
the basis that it was responsible for providing health care is
subject to dismissal).
Based on an application of the above standards to
Murray’s allegations, it is apparent that he may, at least in
part, be attempting to establish liability against Correct
Care on the basis that it employs members of the SCI-Mahanoy
medical staff who were involved in the Plaintiff’s care.
Under the standards developed in Rode, this Court agrees that
any such assertions are insufficient for purposes of
establishing liability under § 1983.

See Hetzel v. Swartz,

909 F. Supp. 261, 264 (M.D. Pa. 1995)(private corporate
employer cannot be held vicariously liable for employee’s
conduct).
Murray’s pro se Complaint includes a claim that Plaintiff

10

was denied

medication and testing due to the Hepatitis C

protocol which was in place at SCI-Mahanoy.

However, given

Plaintiff’s repeated acknowledgments in his Complaint, it was
the DOC not Correct Care which developed the protocol for the
treatment of Hepatitis C inmates
Given Plaintiff’s admission that it was the DOC which
created, implemented, and maintained a Hepatitis C protocol
there is no basis for a claim against Correct Care based upon
a claim that Murray did not qualify for certain treatment
under the DOC Hepatitis C policy.

There is also no other

discernible claim that Correct Care created any specific
policy, practice or custom which caused harm to the Plaintiff.
As such, Defendant Correct care is entitled to entry of
summary judgment.
Administrative Exhaustion
Plaintiff states that he filed two grievances relating to
his claims of inadequate medical treatment, Nos. 651442
(regarding the DOC’s interim Hepatitis C protocol) & 650448.
See Doc. 1, ¶ II.

Murray vaguely contends that his pursuit of

grievances was blocked or frustrated by Defendants in order to
prevent consideration of this action.

The Plaintiff concludes

that since he has made every reasonable attempt to exhaust his
administrative remedies, this action should be allowed to

11

proceed.

See id. at p. 5.

Moving Defendants state that according to records they
subpoenaed from the DOC, Murray submitted two grievances for
final administrative review both of which concerned his
Hepatitis C treatment.

Grievance 487208 which was dismissed

for procedural reasons and Grievance 54932 which was referred
to the DOC’s Bureau of Health Care Services for consideration
and was still pending when this matter was initiated.
Moreover, the DOC records show that any claim by Murray
regarding treatment for injury suffered from a fall from a top
bunk or falsification of institutional medical records were
not presented to SOIGA.

They conclude that since Plaintiff

has not filly exhausted his DOC administrative remedies with
respect to any of his pending claims, entry of summary on the
basis of non-exhaustion is appropriate.
Section 1997e(a) of title 42 U.S.C. provides:
No action shall be brought with respect to
prison conditions under Section 1979 of
the Revised Statutes of the United States
(42 U.S.C. 1983), or any other federal
law, by a prisoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as are
available are exhausted.
Section 1997e(a) requires administrative exhaustion
“irrespective of the forms of relief sought and offered

12

through administrative avenues.”

Porter v. Nussle, 122 S.Ct.

983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6
(2001).

Claims for monetary relief are not excused from the

exhaustion requirement.
Cir. 2000).

Nyhuis v. Reno, 204 F.3d 65, 74 (3d

Dismissal of an inmate’s claim is appropriate

when a prisoner has failed to exhaust his available
administrative remedies before bringing a civil rights action.
Ahmed v. Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000).
“[E]xhaustion must occur prior to filing suit, not while the
suit is pending.”

Tribe v. Harvey, 248 F.3d 1152, 2000 WL

167468, *2 (6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d
641, 645 (6th Cir. 1999)); Oriakhi v. United States, 165 Fed.
Appx. 991, 993 (3d Cir. 2006).
The United States Supreme Court in Jones v. Bock, 549
U.S. 199, 219 (2007), stated that the primary purpose of the
exhaustion requirement is to allow “a prison to address
complaints about the program it administers before being
subjected to suit, reducing litigation to the extent
complaints are satisfactorily resolved, and improving
litigation that does occur by leading to the preparation of a
useful record.”

Id.

The administrative exhaustion mandate

also implies a procedural default component.
Gillis 372 F.3d 218, 222 (3d Cir. 2004).

13

Spruill v.

As explained by the Third Circuit Court of Appeals, a
procedural default rule “prevents an end-run around the
exhaustion requirement.”

Id. at 230.

It also ensures

“prisoner compliance with the specific requirements of the
grievance system” and encourages inmates to pursue their
administrative grievances “to the fullest.”

Id.

Similarly,

the Supreme Court has observed that proper exhaustion of
available administrative remedies is mandatory, meaning that
prisoners must comply with the grievance system’s procedural
rules, including time limitations.

Woodford v. Ngo, 548 U.S.

81 (2006).
“There is no futility exception” to the exhaustion
requirement.”

Brown v. Croak, 312 F.3d 109, 112 (3d cir. 2002)

(citing Nyhuis, 204 F.3d at 75.

The Third Circuit Court of

Appeals reiterated its no futility exception by rejecting an
inmate’s argument that exhaustion should be excused because
prisoner grievances were regularly rejected.
186 Fed.

Appx. 271, 274 (3d Cir.

2006).

Hill v. Smith,

The Court of Appeals

has also rejected “sensitive’ subject matter or ‘fear of
retaliation’ as a basis for excusing a prisoner’s failure to
exhaust.”

Pena-Ruiz v. Solorzano, 281 Fed. Appx. 110, 113 (3d

Cir. 2008).
An inmate is not required to specifically plead or

14

demonstrate exhaustion in his or her complaint.
549 U.S. at 216;

See, Jones,

see also Ray v. Kertes, 285 F.3d 287 (3d Cir.

2002)(a prisoner does not have to allege in his complaint that
he has exhausted administrative remedies).

Rather, pursuant to

the standards announced in Williams v. Runyon, 130 F.3d

568,

573 (3d Cir. 1997), it is the burden of a defendant asserting
the defense of non-exhaustion to plead and prove it.2
The Pennsylvania Department of Corrections (“DOC”) has
established a Consolidated Inmate Grievance Review System which
has been periodically amended.

Section V of DC-ADM 804

(effective December 8, 2010) states that “every individual
committed to its custody shall have access to a formal
procedure through which to seek the resolution of problems or
other issues of concern arising during the course of
confinement.”

See Doc. 29, p. 8.

It adds that the formal

procedure shall be known as the Inmate Grievance System and
provides a forum of review and two (2) avenues of appeal.
Section VI ("Procedures") of DC-ADM 804 provides that, after
attempted informal resolution of the problem, a written
grievance may be submitted to the Facility Grievance

2

In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the
United States Court of Appeals for the Third Circuit similarly
stated that “[f]ailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”
15

Coordinator within fifteen (15) working days after the events
upon which the claims are based, but allowances of extensions
of time will be granted under certain circumstances.
An appeal from the Grievance Coordinator's Initial Review
decision may be made in writing within ten (10) working days to
the Facility Manager or Superintendent.

A final written appeal

may be presented within fifteen (15) working days to the
Secretary’s Office of Inmate Grievances and Appeals (SOIGA).

A

prisoner, in seeking review through the DOC grievance system,
may include reasonable requests for compensation or other legal
relief normally available from a court.

However, an improperly

submitted grievance will not be reviewed.
Moving Defendants acknowledge that on November 8, 2016
Plaintiff initiated Grievance No. 651442 regarding his lack of
Hepatitis C treatment.

They add that SCI-Mahanoy Health Care

Administrator Steinhart provided an unfavorable initial
response to that grievance on November 29, 2016.
p. 2.

See Doc. 62,

The response noted that Plaintiff’s lab results were

normal, the inmate had failed to show for some medical
appointments, he was not in imminent danger, and any decision
as to the need for a liver biopsy or other Hepatitis testing
would be made by a higher authority.

Murray unsuccessfully

appealed that response to the Facility Manager on November 30,

16

2016. However, the Moving Defendants maintain that based upon
undisputed DOC records a final SOIGA appeal was not completed.
The undisputed record establishes that the DOC had an
established grievance procedure in place during the relevant
time period. In his Compliant Plaintiff acknowledges that he
failed to fully exhaust his administrative remedies.
1, ¶ II.

See Doc.

Based upon Murray’s own admission and the Moving

Defendants’ undisputed factual submissions this Court is
satisfied that the Moving Defendants have satisfied their
burden of establishing

that Plaintiff failed to fully and

properly pursue any of his pending Hepatitis C related claims
to final administrative review.

Accordingly, those claims

against the Moving Defendants are unexhausted.
Second, the submitted DOC record also show that Plaintiff
has not completely and properly administratively exhausted any
claim pertaining to his Hepatitis C treatment at SCI-Mahanoy.
Accordingly those claims are likewise unexhausted.
With respect to Murray’s argument to be excused from the
exhaustion requirement.

The Plaintiff was clearly aware of the

grievance procedure and pursued grievances.

Moreover, it is

undisputed that he presented two final administrative reviews
to SOIGA, one of which was still pending when this matter was
initiated.

Those factors clearly undermine the vague,

17

factually unsupported claim by Murray that his attempts to
pursue administrative relief were frustrated or impeded by
correctional officials.
Based upon the determination that none of Murray’s pending
claims were properly exhausted as well as Plaintiff’s failure
to provide a viable reason to excuse his failure to exhaust, a
finding of non-exhaustion and entry of summary judgment in
favor of the Moving Defendants under the well-settled Spruill
and Woodford standards is appropriate.
Deliberate Indifference
Murray’s pending complaint alleges that as a result of
Doctor Rogers’ implementation of the DOC’s new interim protocol
he is being denied newly approved medication (Harvoni).

Murray

further claims that Doctor Rogers fabricated facts in his
institutional medical files and denied him free chronic care
blood pressure, cholesterol, asthma, acid reflux, and pain
medication.3

With respect to his Hepatitis C, Plaintiff claims

that he was denied anti-viral medications, viral load testing,
an endoscopy, and liver biopsies.

See id. at p. 27.

It is also asserted that following a fall from the top
bunk of his cell Plaintiff received x-rays and pain medication

3

In part, Plaintiff contends that his records have been
altered to reflect that he suffers from paranoia and delusions.
See id. at p. 29.
18

by a Physician’s Assistant.4

Murray maintains that Doctor

Rogers thereafter denied him follow up treatment for back pain
suffered in the fall.

See id. at p. 18.

Specifically, in

response to an inmate request Rogers told Plaintiff that he was
not scheduled for Chronic Care Clinic for several months and
that he should report to sick call with any other medical
issues and that he could purchase pain medication from the
prison commissary.
Moving Defendants argue that the facts pled in the
Complaint do not support an Eighth Amendment claim.
62, p. 11.

See Doc.

With respect to Murray’s Hepatitis C treatment,

they note that the Complaint acknowledges the inmate’s
condition was routinely monitored and that Doctor Rogers
properly acted in accordance with the DOC’s protocol.

Second,

they contend that since Murray admits that he was timely
treated following his fall by other members of the prison’s
medical staff there is no basis for liability against Rogers.
Third, instructing the Plaintiff to purchase over the counter
pain medication (Ibuprofen) from the prison commissary was not
unconstitutional.

Finally, Moving Defendants state that the

bald factually unsupported allegation Rogers participated in

4

Records provided by Plaintiff indicate that he was on bottom
bunk status since his arrival at SCI-Mahanoy. See Doc. 1-1, p. 47.
19

alteration/fabrication of Murray’s institutional medical
records is insufficient.
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.
Capitol v. Whetzel, 256 F. 3d 120, 125 (3d Cir.

See Beers2001).

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 v. Brennan, 511 U.S. 825, 837
(1994).
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)).

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

20

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,
Plaintiff identifies himself as suffering from Hepatitis C,
asthma, and other chronic conditions.

There is no argument by

the Moving Defendants that Plaintiff’s Complaint fails to
satisfy the serious medical need requirement with respect to
the deliberate indifference claims pertaining to those
conditions.

This Court likewise agrees that based upon the

nature of Plaintiff’s allegations it cannot be concluded that

21

he was not suffering from an objectively serious medical need.
However, with respect to injuries allegedly suffered by
Plaintiff due to a fall from the top bunk of his cell, they do
not appear to be of such magnitude as to satisfy the serious
medical need requirement.

See Wesson v. Igelsby, 910 F. 2d

278, 284 (5th Cir. 1990)(swollen wrists not a serious medical
need); Price v. Engert, 589 F. Supp.2d 240, 246 (W.D.N.Y.
2008)(wrist and hand injuries do not satisfy the serious
medical need requirement); Stankowski v. Farley, 251 Fed. Appx.
743, 748 (3d Cir. 2007)(cuts requiring no more than small
bandages do not constitute serious medical needs covered by the
Eighth Amendment).
Under the subjective deliberate indifference component of
Estelle, 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.”
Brennan, 511 U.S. 825, 841 (1994).

Farmer v.

A complaint that a

physician “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

22

treatment, one cannot always conclude that, if such treatment
was inadequate, it was no more than mere negligence.

See

Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

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.
2008) (“deliberate indifference is proven if necessary medical
treatment is delayed for non-medical reasons.”).
It is undisputed that following his fall from the top bunk
Plaintiff received timely medical care including x-rays and a
prescription of Ibuprofen for pain.

There is no assertion that

Doctor Rogers was involved in that initial evaluation and
treatment.

When the Ibuprofen prescription ran out, Plaintiff

contacted Rogers and was told by the Defendant that if he had
continuing problems related to his fall he should report for
sick call and that he could purchase Ibuprofen from the prison
commissary.
Plaintiff apparently seeks in part to establish liability
against Doctor Rogers because she did not provide him with a
free refill of the Ibuprofen prescription.

23

The United States

Court of Appeals for the Third Circuit has recognized that
charging inmates for medical expenses is not per se
unconstitutional.

See Reynolds v. Wagner, 128 F. 3d 166 (3d

Cir. 1997); McCabe v. Pennsylvania Department of Corrections,
523 Fed. Appx. 858, 860-61

(3d Cir. 2013) (although prisoners

cannot be denied essential or needed medical care, a modest fee
may be charged for non-emergency medication); Quinnones v.
Fischi, 2012 WL 1072278 (M.D. Pa. March 29, 2012)(Nealon J.).
Based upon the facts described by Plaintiff, the
allegation that there was an instance where Doctor Rogers
indicated that he could purchase Ibuprofen for a non-emergency
medical condition does not rise to the level of a viable
constitutional violation.

It is also noted that a grievance

response to Murray from Rogers which is attached to the
Complaint notes that Plaintiff was provided with medication for
asthma, constipation, iron deficiency anemia, and seizures.
See Doc. 1-1, p. 56.

Rogers added that Murray did not require

blood pressure or cholesterol medication and had failed to show
up for multiple follow up appointments.

See id.

Pursuant to

the above discussion, entry of summary judgment in favor of
Defendant Rogers with respect to the claim that follow up care
for injuries from the fall was denied is appropriate.
Second, Plaintiff makes a vague claim that Doctor Rogers

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participated in “falsification of official medical records and
conspiratory [sic] inappropriate misconduct of state
officials.” Doc. 1, p. 11.

The Complaint adds only that Rogers

erroneously indicated that Plaintiff was non-compliant with
previously prescribed treatment.
It appears that Plaintiff is challenging the
aforementioned grievance response wherein Rogers stated the
following: Plaintiff was seen multiple times at sick call
medication line and chronic care clinic; he failed to show for
many follow up appointments; Murray was provided with
medication for asthma, constipation, iron deficiency anemia,
and seizures but did not require blood pressure or cholestrol
medication; Plaintiff was only partially compliant with seizure
and psych medications; he was treated for fall from top bunk
with benign findings.

See Doc. 1-1, p. 56.

While Plaintiff is

apparently voicing his disagreement with Rogers’ assessment
that the inmate was non-compliant with his treatment at times,
this challenged assessment did not constitute deliberate
indifference to a medical need as there is no indication that
the assessment resulted in any change or reduction in the
treatment being provided to Murray.
Hepatitis C is admittedly a progressive disease which
causes liver damage, and in some instances death.

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Due to

Hepatitis’ progressive nature, the timing of treatment is
important and there is a higher success rate when treatment is
initiated at an early stage.

See Lee v Sewell, 159 Fed. Appx.

419, 421 (3d Cir. 2005)(prisoner’s claim of being denied
Hepatitis C medication for six months sets forth a viable claim
of deliberate indifference).
Murray contracted Hepatitis C in or around 2000.

See

Murray v. Department of Corrections, Civil No 15-48, slip op.
at p. 3. (W.D. Pa. Nov. 16, 2016).

He did not receive any

treatment prior to 2010 and thereafter underwent periodic
diagnostic testing for his illness.

See id.

During a previous

period of incarceration at SCI-Albion between 2012-2015 he was
regularly screened and evaluated and was a participant in the
prison’s Chronic Hepatitis Clinic.

See id. at p. 6.

Plaintiff states that he reentered prison as a parole
violator on October 14, 2016.

See Doc. 1, p. 15.

He admits

that he was not receiving any Hepatitis C treatment at the time
he entered SCI-Mahanoy.

See id. at p. 27. While at SCI-Mahanoy

Murray was assigned to the Chronic Care Clinic.
18.

See id. at p.

He also received treatment by the prison’s mental health

staff.
Murray’s pending complaint vaguely alleges that his
Hepatitis C was not properly monitored and that as a result of

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the DOC’s new interim protocol he is being denied newly
approved medication (Harvoni) because it is too expensive.
Based upon a liberal consideration of Plaintiff’s
allegations, the subjective deliberate indifference component
has not been met with respect to Defendant Doctor Rogers.
In the present case there is no indication or claim that Doctor
Rogers was involved in the creation or implementation of the
DOC’s current Hepatitis C protocol.

As such, any claims

against Doctor Rogers based upon the whether the protocol is
constitutionally acceptable is not properly raised against
Rogers.

Moreover, since there are no facts showing that the

provisions of the protocol were medically improper, any actions
taken by Rogers in compliance with the DOC’s Hepatitis C
protocol are insufficient to set forth a claim of deliberate
indifference by that physician.
It is undisputed that although Plaintiff has been
medically determined not to be presently eligible for new antiviral medication he continues to be periodically monitored and
tested via the prison’s Hepatitis C Chronic Care Clinic.

Thus,

this is not a case where no Hepatitis treatment is being
provided.

Plaintiff’s claims as stated appear at best to

represent his disagreement with determinations or assessments
made by Doctor Rogers based upon the results of diagnostic

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testing and application of the DOC’s Hepatitis C protocol, at
best, such allegation asserts claims of negligence by Dr,
Rogers which are not properly pursued in a civil rights action.
Entry of summary judgment will be granted in favor of
Doctor Rogers with respect to the allegations of deliberate
indifference.
Conspiracy
Moving Defendants maintain that the speculative assertion
that Doctor Rogers was part of a conspiracy does not set forth
a viable claim.

See Doc. 62, p. 22.

In order to set forth a cognizable conspiracy claim, a
plaintiff cannot rely on broad or conclusory allegations.

D.R.

by L.R. v. Middle Bucks Area Vocational Technical Sch., 972
F.2d 1364, 1377 (3d Cir. 1992), cert. denied, 506 U.S. 1079
(1993); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre
v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989).

The Third

Circuit Court of Appeals has further noted that "[a] conspiracy
claim must . . . contain supportive factual allegations."
Rose, 871 F.2d at 366.

Moreover, "[t]o plead conspiracy

adequately, a plaintiff must set forth allegations that address
the period of the conspiracy, the object of the conspiracy, and
the certain actions of the alleged conspirators taken to
achieve that purpose."

Shearin v. E.F. Hutton Group, Inc., 885

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F.2d 1162, 1166 (3d Cir. 1989).
The essence of a conspiracy is an agreement or concerted
action between individuals.
1377; Durre, 869 F.2d at 545.

See D.R. by L.R., 972 F.2d at
Consequently, a plaintiff must

allege with particularity and present material facts which show
that the purported conspirators reached some understanding or
agreement or plotted, planned and conspired together to deprive
plaintiff of a protected federal right.

Id.; Rose, 871 F.2d at

366; Young, 926 F.2d at 1405 n.16; Chicarelli v. Plymouth
Garden Apartments, 551 F. Supp. 532, 539 (E.D. Pa. 1982).
Where a civil rights conspiracy is alleged, there must be some
specific facts in the complaint which tend to show a meeting of
the minds and some type of concerted activity.
Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985).

Deck v.
A plaintiff

cannot rely on subjective suspicions and unsupported
speculation.

Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir.

1991).
There are no averments of fact in the Complaint that
reasonably suggest the presence of an agreement or concerted
activity involving Doctor Rogers.

Murray has simply not

alleged any facts showing any communication or cooperation
among any Defendants from which an agreement could be inferred.
While Plaintiff raises claims of constitutional misconduct, he

29

has not adequately alleged that those actions were the result
of a conspiracy.

Summary judgment will be granted with respect

to the claim of conspiracy against Defendant Rogers.
Pendent Jurisdiction
Murray indicates that he wishes to pursue state law
claims against the defendants.

See Doc. 1, p. 7.

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.
§ 1367(c)(3) (1997).

See 28 U.S.C.

Decisions regarding pendent jurisdiction

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

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

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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 against
Defendants Correct Care and Rogers in this matter have been
dismissed, jurisdiction will be declined with respect to any
state law claims against those two Defendants.

An appropriate

Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: MARCH 15, 2017

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