Henry v. Deibelbis et al

Filing 22

MEMORANDUM (Order to follow as separate docket entry)The Plaintiff is also reminded that his amended complaint must be complete in all respects. It must be a new pleading which stands by itself without reference to the original complaint. The amend ed complaint should clearly identify each Defendant, set forth the factual substance underlying Henry's claims in short, concise and legible statements, and specify the constitutional claims and relief being sought. If an amended complaint is n ot timely filed, the claims against the Corrections Defendants will be dismissed for the reasons set forth herein and disposition of the surviving portion of the original complaint may proceed. An appropriate Order will enter. Signed by Honorable Richard P. Conaboy on 6/10/18. (cc)

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

CRAIG HENRY,
Plaintiff
v.
WILLIAM DREIBELBIS, ET AL.,
Defendants

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CIVIL NO. 3:CV-17-1391
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Craig Henry (Plaintiff), an inmate presently confined at the
Smithfield State Correctional Institution, Huntingdon,
Pennsylvania (SCI-Smithfield), initiated this pro se civil rights
action.

Service of the Complaint was previously ordered.

Named as Defendants are Secretary John Wetzel, Deputy
Secretary Christopher Oppman, and Chief Medical Director Paul Noel
of the Pennsylvania Department of Corrections (DOC).1 Plaintiff is
also proceeding against SCI-Smithfield Health Care Administrator
William H. Dreibelbis as well as Regional Medical Director Andrew
Daneha and Infectious Disease Control Registered Nurse D. Cutshall
of Correct Care Solutions.

1. Oppman was previously employed by the DOC as Director of the
Bureau of Health Care Services.
1

Plaintiff states that he has been diagnosed with Hepatitis
C.

According to the Complaint, Defendants were deliberately

indifferent to Plaintiff’s medical needs by failing to provide him
with a follow up liver biopsy in July, 2015.

Plaintiff explains

that under prior DOC policy he was provided with a liver biopsy
every five years with the last one occurring July, 2010.
Henry further alleges that he has not been provided with
Viro-load and APRI blood tests which are required under the DOC’s
Hepatitis C protocol.

The Complaint also alleges that the

protocol developed by the DOC for the treatment of DOC inmates
with Hepatitis C is constitutionally deficient.
Following service of the Complaint, Defendants Wetzel,
Dreibelbis, Noel and Oppman (hereinafter Corrections Defendants)
filed a motion to dismiss.2

See Doc. 16. The opposed motion is

ripe for consideration.
Discussion
Corrections Defendants claim entitlement to dismissal on the
grounds that: (1) there are no allegations of personal involvement
in constitutional misconduct set forth against Defendants Oppman
and Dreibelbis; (2) the claims for monetary damages against
Corrections Defendants in their official capacities is barred by
the Eleventh Amendment; (3) Plaintiff has failed to sufficiently
allege a claim of deliberate indifference against Wetzel, Noel,

2. In light of the submission of a motion to dismiss, Plaintiff’s
subsequently filed request (Doc. 19) for entry of default against
the Corrections defendant will be denied.
2

Oppman, and Dreibelbis; and (4) Plaintiff has failed to raise
viable state law claims of medical malpractice and negligence.
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.

When ruling on a motion to dismiss under

Rule 12(b)(6), the court 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 plaintiff must present 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. 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-harmedme accusation.” Ashcroft v. Iqbal, ___ U.S. ____ , 129 S.Ct 1937,
1949 (2009). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not suffice.”
Iqbal, 129 S.Ct at 1949.

Legal conclusions must be supported by

factual allegations and the complaint must state a plausible claim
for relief.

See id. at 1950.

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“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.

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).

Additionally, pro se pleadings are

to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520
(1972).
Official Capacities
As partial relief, Plaintiff seeks an award of compensatory
and punitive damages.

See Doc. 1, p. 9.

Corrections Defendants

contend that the claims for monetary damages against them in their
official capacities must fail.

See Doc. 17, p. 7.

The United States Supreme Court has ruled that a § 1983
action brought against a “State and its Board of Corrections is
barred by the Eleventh Amendment unless [the State] has consented
to the filing of such a suit."
(1978).

Alabama v. Pugh, 438 U.S. 781, 782

In Will v. Michigan Dep't of State Police, 491 U.S. 58

(1989), the Supreme Court reiterated its position that state
agencies are not "persons" subject to liability in § 1983 actions
brought in federal court. The Eleventh Amendment bars all suits
against a state and its agencies in federal court that seek
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monetary damages.

Walker v. Beard, 244 Fed. Appx. 439, 440 (3d

Cir. 2007); see also A.W. v. Jersey City Public Schools, 341 F.3d
234, 238 (3d Cir. 2003).
Likewise, suits brought against state officials acting in
their official capacities are to be treated as suits against the
employing government agency.

Will, 491 U.S. at 70-71; Garden

State Elec. Inspection Serv. v. Levin, 144 Fed. Appx. 247, 251 (3d
Cir. 2005).

As such, Henry’s monetary damage claims brought

against the Corrections Defendants in their official capacities
are considered to be against the state itself and are barred by
the Eleventh Amendment.
However, to the extent that Plaintiff is seeking injunctive
relief against the Corrections Defendants in their official
capacities, such requests are not barred by the Eleventh
Amendment.

See Pennsylvania Federation of Sportsmen’s Clubs, Inc.

v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
Personal Involvement
Corrections Defendants next argue that the claims against
Deputy Secretary Oppman and Health Care Administrator Dreibelbis
are subject to dismissal because there are no allegations of
personal involvement by those officials in any constitutional
misconduct. See Doc. 17, p. 4.
According to the Corrections Defendants, Plaintiff alleges
only that Dreibelbis oversees the delivery of health care to the
SCI-Smithfield inmate population.

They add that entry of

dismissal is appropriate because there is no assertion that the
Health Care Administrator was personally involved in Henry’s day
to day treatment and that any dissatisfaction with Dreibelbis’
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responses to his institutional grievances is not a proper basis
for civil rights liability.

It is similarly argued that Defendant

Oppman was not directly involved in Plaintiff’s care.
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.

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.
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rode

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.
Inmates also do not have a constitutional right to a prison
grievance system.

See Jones v. North Carolina Prisoners Labor

Union, 433 U.S. 119, 137-138 (1977); Speight v. Sims, No. 08-2038,
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2008 WL 2600723 at *1 (3d. Cir. Jun 30, 2008)(citing Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a
prison grievance procedure confers no liberty interest on a
prisoner.”).

Consequently, any attempt by Plaintiff to establish

liability against a defendant solely based upon the substance or
lack of response to his institutional grievances does not by
itself support a constitutional due process claim.

See

also Alexander v. Gennarini, 144 Fed. Appx. 924, 925 (3d Cir.
2005)(involvement in post-incident grievance process not a basis
for § 1983 liability); Pryor-El v. Kelly, 892 F. Supp. 261, 275
(D. D.C. 1995) (because prison grievance procedure does not confer
any substantive constitutional rights upon prison inmates, the
prison officials' failure to comply with grievance procedure is
not actionable).
Plaintiff generally alleges that Driebelbis failed to
provide him with a needed liver biopsy in July 2015.
¶ IV.

See Doc. 1,

However, the Complaint acknowledges that Plaintiff sent

requests for treatment to Defendant Cutshall and a non-defendant
J. Grove for treatment in July, 2015 and was informed by those
officials that a hold had been placed on Hepatitis C treatment due
to a rapid change in treatment methods.

The Complaint also admits

that Defendant Cutshall was the individual responsible for his
treatment and assessments.

The only other allegation regarding

Dreibelbis is that the Defendant failed to respond to a his
grievances including a March 14, 2017 complaint.
With respect to Deputy Secretary Oppman, Plaintiff asserts
that it is his belief that Oppman is reevaluating the DOC’s
Hepatitis C

protocol and is responsible for overseeing the
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delivery of medical services to Pennsylvania state prisoners.
id., at ¶¶ 17-18.

See

The Complaint concedes that the new DOC

Hepatitis C protocol was developed by Correct care solutions.

See

id., at ¶ 28.
Pursuant to the standards announced in Rode, this Court
agrees with Corrections Defendants’ contention that any attempt to
establish liability solely premised on Oppman and Dreibelbis’
respective supervisory capacities within either the DOC or SCISmithfield must fail.

There is also no factual allegations set

forth which sufficiently show that either of those officials was
personally involved in either Plaintiff’s day to day care or the
development or implementation of the DOC’s Hepatitis C protocol
which is being challenged herein.
The Complaint as stated only appears to establish liability
against the Health Care Administrator based upon either his
supervisory capacity or his lack of response to the inmate’s
institutional grievances.

Pursuant to the above discussion,

either approach is insufficient for establishing civil rights
liability against Defendant Dreibelbis.

Due to the vagueness of

the Complaint, it is unclear as to whether Plaintiff wishes to
pursue a claim against Dreibelbis regarding either the creation or
implementation of the DOC’s Hepatitis C protocol.
With respect to Deputy Secretary Oppman, Plaintiff describes
said Defendant as being the DOC’s Director of Health Care Services
during the relevant time period.

While it appears that Plaintiff

may wish to pursue a claim against Oppman regarding the DOC’s
Hepatitis C protocol, there are no specific factual assertions set
forth regarding Oppman which adequately show any direct involvement
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in either the development or implementation of the challenged
protocol.

Plaintiff maintains that only his symptoms are being

treated and that no effort is being made to cure his condition.
However, Henry fails to adequately explain the basis for his claims
against Corrections Defendants Oppman and Dreibelbis.

For

instance, Plaintiff does not allege that either official played any
role in the development of the protocol.

There is also no claim

that either Corrections Defendant failed to implement treatment for
Henry which is required under the present policy.
Although Oppman and Dreibelbis have set forth valid
arguments for entry of dismissal, given the liberal treatment
afforded pro se litigants and the serious nature of his claims, the
Plaintiff will be afforded an opportunity to submit a curative
amended complaint addressing the deficiencies outlined herein and
which sufficiently sets forth factual allegations of personal
involvement in constitutional misconduct against Defendants Oppman
and Dreibelbis.
Deliberate Indifference
It is next argued that Plaintiff has failed to adequately
allege a deliberate indifference claim against any of the four
Corrections Defendants.
This Court has already adequately addressed the claims
against Oppman and Dreibelbis.

With respect to Secretary Wetzel

Plaintiff asserts that the Defendant is responsible for the
formation of policies which ensure the delivery of proper medical
care to Pennsylvania state inmates.

See Doc. 1, p. 6, ¶ 16.

Plaintiff adds only that Wetzel has been given notice of inadequate

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treatment by

Dreibelbis but has failed to undertake any

corrective measures.
The Complaint describes Defendant Noel as being Chief
medical Director of Correct Care Solutions.

It is alleged that

Noel was responsible for the oversight, operation, and
administration of inmate medical care.

See id. at ¶ 19.

The

pending motion to dismiss asserts that Noel is the DOC’s Chief of
Clinical Services and not an employee of Correct care Solutions.
The Eighth Amendment “requires prison officials to provide
basic medical treatment to those whom it has incarcerated.”

Rouse

v. Pannier, 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 Sprawl v. Gilles, 372

F.3d 218, 235-36 (3d Cir. 2004); Nasale 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).

Dental

care has been recognized an important medical need of inmates.
Petrazzoulo v. United States Marshals Service, 999 F. Supp 401, 407
(W.D.N.Y. 1998)
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
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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).

This Court is

satisfied that the Complaint’s assertion of inadequate care for
Hepatitis C satisfies the serious medical need threshold.
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 v. Brennan, 511 U.S. 825, 841 (1994).

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

See Dormer v.

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
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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.”).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 nonmedical factors, a constitutional claim may be presented.

See id.

As previously discussed, civil liability cannot be premised
upon a defendant’s supervisory capacity or failure to take action
in response to institutional grievances.

It is also noted that

Secretary Wetzel is a non-medical Defendant and Plaintiff alleges
that the challenged Hepatitis C was developed by Correct care
Solutions.

Moreover, the only discernible claim against Chief of

Clinical Services Noel is a general claim wholly based upon his
supervisory duties.

Given those consideration the Complaint, as

stated, fails to set forth a viable claim against either Wetzel or
Noel.
Nonetheless, is is clear that Secretary Wetzel is the chief
policymaker for the DOC and Noel is the DOC’s Chief of Clinical
services.

As such, those two Corrections Defendants may have

played some role in the development and or ultimate approval of the
DOC’s Hepatitis C protocol.

Accordingly, Plaintiff will likewise

be granted opportunity to file a curative amended complaint which

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sufficiently sets forth facts establishing the basis for his claims
against Defendants Wetzel and Noel.
Negligence/Medical Malpractice
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); Aldinger v. Howard, 427 U.S. 1, 9 (1976).

Supplemental

jurisdiction may be declined over a claim when the court has
dismissed all claims over which it has original jurisdiction.
28 U.S.C. § 1367(c)(3) (1997).

See

When rendering a determination

regarding pendent jurisdiction district courts should consider
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, if a federal claim is dismissed prior to trial, the
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.”
Once the basis for federal jurisdiction disappears, a
district court should only exercise its discretion to entertain
pendent claims if extraordinary circumstances exist.

New Jersey

Department of Enviromental Protection v. Glouchester Enviromental
Management, 719 F. Supp. 325, 337 (D. N.J.

1989).

A decision as

to whether this Court will exercise, jurisdiction over Plaintiff’s
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state law tort claims against the Corrections Defendants will be
held in abeyance to allow Plaintiff opportunity to file an amended
complaint.
Amended Complaint
As previously discussed, Plaintiff will be provided
opportunity to file a single, curative, all inclusive amended
complaint within twenty-one (21) days of the date of this Order
which adheres to the standards set forth herein.
Henry is reminded that in order to state a viable civil
rights claim 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.

Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).3

He must also

exhaust available administrative remedies with respect to each
claim he wishes to purse before seeking relief in federal court.
The Plaintiff is also reminded that his amended complaint
must be complete in all respects.

It must be a new pleading which

stands by itself without reference to the original complaint.

The

amended complaint should clearly identify each Defendant, set forth
the factual substance underlying Henry's claims in short, concise
and legible statements, and specify the constitutional claims and
relief being sought.

If an amended complaint is not timely filed,

the claims against the Corrections Defendants will be dismissed for
the reasons set forth herein and disposition of the surviving

3.
The United States Supreme Court in Leatherman v. Tarrant
County Narcotics Unit, 507 U.S. 163, 167 (1993), noted that a §
1983 complaint need only to comply "with the liberal system of
'notice pleading' set up by the Federal Rules." Id.
14

portion of the original complaint may proceed.

An appropriate

Order will enter.

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

DATED:

AUGUST 10, 2018

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