HAMMOND v. DEPT CORRECTIONS OF PENNA/ALBION
Filing
74
MEMORANDUM AND OPINION re 63 MOTION to Dismiss Amended Complaint, filed by MALINDA ADAMS, SCI GRATERFORD/DOC OF PA, F. JABLONSKI, CHRISTINE ZIRKLE, MAXINE OVERTON; 59 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiff's Amended Complaint filed by J. KORSZNIAK, DANIEL TELEGA. Signed by Magistrate Judge Maureen P. Kelly on 9/17/2012. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN OF PENNSYLVANIA
GREGORY HAMMOND,
)
)
)
vs.
) Civil Action No. 10-267 E
) Magistrate Judge Maureen P. Kelly
DEPT CORRECTIONS OF PENN/ALBION, )
SCI GRATERFORD/DOC OF PA, MAXINE )
OVERTON (Health Care Administrator),
)
CHRISTINE ZIRKLE (RNS), DANIEL
)
TELEGA (Physician's Assistant), OFFICER )
JABLONSKI (Correction Officer),
) ECF Nos. 59, 63
MALINDA ADAMS (Superintendent),
)
J. KORSZNIAK,
)
Defendants.
)
Plaintiff,
OPINION
KELLY, Magistrate Judge
Plaintiff, Gregory Plaintiff ("Plaintiff " or "Hammond"), is an inmate in the custody of
the Pennsylvania Department of Corrections ("DOC"), and is currently incarcerated at the State
Correctional Institution ("SCI") at Albion. Plaintiff brings this civil rights action against
Defendants SCI Graterford/DOC of PA; Maxine Overton (Healthcare Administrator)
("Overton"); Christine Zirkle (RNS) ("Zirkle"); Daniel Telega (Physician's Assistant) ("Telega");
Officer F. Jablonski (Corrections Officer) ("Jablonski"); Melinda Adams (Superintendent)
("Adams"); and J. Korszniak ("Korszniak"), alleging that Defendants have been deliberately
indifferent to his medical needs in violation of his rights provided by the Eighth Amendment to
the United States Constitution.
Presently before the Court is a Motion to Dismiss Plaintiff's Amended Complaint
submitted on behalf of Defendants Telega and Korszniak ("the Medical Defendants"), ECF No.
59, and a Motion to Dismiss Amended Consolidated Complaint submitted on behalf of
Defendants SCI Graterford/DOC of PA, Overton, Zirkle, Jablonski and Adams ("the DOC
Defendants"). ECF No. 63. For the reasons that follow, both Motions will be granted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
According to the Complaint, Plaintiff suffers from "Degenerate Joint Disease, Peripheral
Neuropathy, Gout, back pain, Chronic Kidney Disease." ECF No. 58, ¶13. Plaintiff alleges that
when he was brought into state custody in March of 2010, his kidneys required constant
monitoring and maintenance of his medication. Plaintiff contends, however, that the medical
staff at SCI Graterford changed his medications and improperly prescribed a "toxic cocktail of
medications" until he was transferred to SCI Camp Hill on April 14, 2010. Id. at ¶¶ 14-17.
Plaintiff alleges that the negligence and deliberate indifference of SCI Graterford's medical staff
caused nephritis and irreparable damage to both kidneys. Id. at ¶¶ 13, 15.
With respect to Defendant Korszniak, Plaintiff claims that during an examination on
March 31, 2010, Korszniak acted in an arrogant manner when Plaintiff complained of chronic
kidney disease. Id. at ¶ 14. Plaintiff also alleges, however, that Korszniak admitted him to the
infirmary for his "severe nausea, body aches and consistent cough." Id.
Plaintiff asserts that he was transferred to SCI Camp Hill on April 14, 2010, and that he
was placed on "medical hold" from April 21, 2010 until August 16, 2010, because his "multiple
illnesses and conditions presented a special and unique challenge, because the medications for
each were causing a cross reactions, which made [him] ill." Id. at ¶ 20.
It appears that Plaintiff was transferred to SCI Albion on August 17, 2010. During the
intake process, Plaintiff alleges that his medications, knee braces, elbow sleeve, wrist braces,
muscle rub and various ointments were confiscated, and that he lost his bottom bunk and bottom
tier status. Id. at ¶ 21. Plaintiff claims that he was told this was policy and that his property
2
would be returned after he was seen by the doctor. Id. Plaintiff contends, however, that because
he "slipped through the cracks somehow," he was not called to see a doctor and had to submit a
"sickline" slip in order to get his property back. Id.
Plaintiff nevertheless alleges that he was seen by Defendant Telega on August 20, 2010.
Id. at ¶ 21. Plaintiff complains that Telega was aloof, nonchalant, rude and unprofessional at the
time and that he allegedly told Plaintiff that he was not allowed to have the items that were
confiscated from him during intake. When Plaintiff asked for the muscle rub and A&D
ointment, Telega allegedly told Plaintiff to go buy some Vaseline at the Commissary. Id. After
Plaintiff challenged Telega's statement that A&D Ointment was the same as Vaseline, Telega
allegedly became hostile and told Plaintiff, "we're through." Id.
Plaintiff alleges that thereafter Telega failed to adequately examine him or read his
medical records which prevented anyone from learning of his terminal illnesses or chronic issues
and that he consequently went without treatment for five months. Id. at ¶ 22. Plaintiff also
claims that his knee braces, elbow sleeves and bottom bunk/bottom tier status were not returned
for over 90 days. Id. Plaintiff contends that Telega was negligent in providing care and that
Telega "made [it] his business to assure the Plaintiff could not be seen by anyone else or receive
the items" confiscated from intake. Id. at ¶ 23. Plaintiff also takes issue with Telega's alleged
failure to adhere to treatment recommended by doctors and, in particular, with Telega's alleged
"dismissal" of his knee problems. Id. at ¶¶ 22-26, 42.
According to Plaintiff, Telega's superiors "took him at his word," and failed to look at
Plaintiff's medical records for themselves. Id. at ¶ 22. As such, Plaintiff did not see a doctor for
nearly five months and went a substantial period without HIV medications, and without his
kidneys being monitored. Id. Plaintiff alleges that the SCI Albion medical department mocked
3
his condition and that Telega was derelict in his duty by failing to adhere to the
recommendations of doctors who had previously cared for him at SCI Camp Hill. Id. at ¶¶ 2426. He also faults Telega for wanting to "pretend to examine him again" when there was already
a previously diagnosed knee problem recorded in plaintiffs medical file. Id. at ¶ 23.
Plaintiff further complains that despite the fact that Telega was aware of Plaintiff's
history of knee problems, Telega "chose not to do anything" thereby varying from the prescribed
recommendations of doctors which culminated in his left knee giving out on July 8, 2011. Id. at
¶ 26. Plaintiff claims that he subsequently sustained another injury which has caused him to be
in a wheelchair indefinitely. Id. Plaintiff also alleges, however, that he was given a stabilizer
brace for his left knee and that he was seen by a Physical Therapist and/or Doctor concerning his
knee injury on: August 29, 2011, September 20, 2011, November 1, 2011, November 10, 2011
and November 21, 2011. Although Plaintiff contends that it was recommended that he have
weight training 5 days per week, "which has not yet happened," he acknowledges that he has
arranged to have weight training two days per week. Id. at ¶¶ 60-62.
Plaintiff also alleges that Defendant Zirkle, SCI Albion's RN Supervisor, learned of his
knee problems "and elected to do nothing." Id. at ¶ 27. Plaintiff claims that Zirkle "interjected"
herself into this matter by responding to request slips that were not "titled to her" and "helped to
forge an environment of negligence." Id.
With respect to Defendant Overton, Plaintiff contends that she "allowed" his rights to be
violated as she was not only aware of the refusal to return his knee braces and elbow sleeves but
that she failed to rectify the error. Id. at ¶¶ 28-42. Moreover, Plaintiff claims that Overton
compounded the error by lying in her responses to Plaintiff's grievances, stating that his knee
brace had been returned. Id. at ¶¶ 28-31. Plaintiff also asserts that Overton ignored previously
4
diagnoses and treatment recommendations; that, in particular, she "overruled" the
recommendations of a Physical Therapist on August 29, 2011, and that of a doctor on November
1, 2011; and that she prevented Plaintiff from being involved in any type of therapy or daily
weight training. Id. at ¶¶ 29-32. As well, Plaintiff complains that Overton deliberately and
willfully refused to provide him with proper medical treatment for knee and back pain and that
she colluded with Defendants Adams and Telega to declare Plaintiff medically clear thereby
ignoring all previously diagnosed conditions and recommendations. Id. at 33-42.
Plaintiff alleges that he was transferred to "DA Block" on August 21, 2010, but had not
been told by medical that his bottom bunk and bottom tier status had been revoked. When
Officer Jablonski assigned Plaintiff to a top tier and bunk, Plaintiff told him that he had
restrictions. Plaintiff states that Jablonski called medical and was told that the restrictions had
expired as of August 17, 2010. Id. at ¶ 43. Plaintiff alleges that Jablonski ignored his requests
to change cells with an inmate assigned to a bottom tier and gave him a direct order to move to
the top tier cell which, according to Plaintiff, placed him at risk of harm. Id. Plaintiff claims he
was in pain until November 5, 2010, when he received a bilateral knee brace and until November
21, 2010, when he was returned to the bottom tier. Id.
Plaintiff alleges generally that Overton, Adams, Zirkle and Telega denied, hindered or
delayed medical attention to him for over eleven months and only responded after his left knee
gave way on July 8, 2011, and again on November 21, 2011. Id. at ¶ 46. According to Plaintiff,
when his left knee gave way on July 8, 2011, he was examined by another Physician's Assistant
and received an x-ray, ice bag, crutches, pain medications, and "long term care." Id. at ¶¶ 26, 47.
On July 22, 2011, he received a walking cane which he used until November 21, 2011, when he
was provided a wheelchair. Id. Although Plaintiff acknowledges that a knee stabilizer was
5
ordered for his left knee on August 4, 2011, he alleges that he did not receive it until October 24,
2011, and had to walk "without the required protection," or any other aid. Id. at ¶ 48.
Plaintiff contends that he sent a request to Overton on September 9, 2011, seeking
information about the stabilizer's delay and inquiring as to why his medical records reflect that
he was receiving therapy when none had been provided. Id. at ¶ 49. On September 19, 2011,
when he failed to receive a response from Overton, Plaintiff filed Grievance No. 381685
complaining about the delay, the inaccurate notation in his medical records and "gross
negligence and medical malpractice." Id. at ¶ 50.
With respect to Defendant Adams, Plaintiff alleges that he wrote directly to her as the
acting superintendent at SCI Albion informing her of the alleged lack of medical care he was
receiving but that she offered no solution, displayed an unwillingness to get involved, and
eventually took a "hostile stance." Plaintiff complains that Adams failed to properly investigate
complaints or to remain free from the influence of other staff members and that it was a conflict
of interest for Adams to serve as a Grievance Coordinator and the "superintendent assistant" at
the same time. Id. at ¶¶ 51-52, 62.
Plaintiff also alleges that he was sent to the RHU on November 14, 2010, and that he was
without either of his two asthma inhalers. Id. at ¶ 53. Plaintiff's numerous requests to
corrections and medical staff about his need for the inhalers, however, allegedly went unheeded
resulting in him having asthma attacks on November 16, 2010, and again on November 18, 2010.
Id. Plaintiff claims that during these incidents he pressed his call button and was told that
medical would be notified, but no one came. Upon being released from the RHU on November
19, 2010, Plaintiff allegedly discovered that his asthma inhalers were missing from his property
and he was sent to the housing unit without them. Id. When, according to Plaintiff, he was later
6
placed in a smoking cell he suffered another asthma attack, requiring him to be taken to the
infirmary. While there, Plaintiff allows that he received two injections, two emergency breathing
treatments, and was held for 24-hour observation. Id.
Plaintiff subsequently filed Grievance No. 344212 and presently takes issue with
Defendant Zirkle's initial response to the Grievance wherein she stated that Plaintiff "contends"
to have asthma. Plaintiff complains of Zirkle's "audacity as a nurse, to question the validity of
Plaintiff's condition." Id. at ¶ 54.
Plaintiff also alleges that he had serious dental needs when he was transferred to SCIAlbion and that he should have been on "high priority" to receive dental care. According to
Plaintiff, he was nevertheless passed over for an entire year until he was seen by Dr. Logan on
August 19, 2011. Id. at ¶ 55. Plaintiff alleges that when he advised Dr. Logan that he was
"immune compromised," Dr. Logan inquired whether that was due to HIV and terminated
Plaintiff's appointment when he learned of his HIV status. Id. Plaintiff contends that Dr. Logan
then indicated that Plaintiff would be placed back on a waiting list and should not expect to be
called back anytime soon. Id.
Plaintiff subsequently filed Grievance No. 389147, and complains that the response
thereto inaccurately reports that he received dental treatment: on August 19, 2011, September 15,
2011, September 22, 2011, October 4, 2011, and October 21, 2011. Id. at ¶ 56. While Plaintiff
maintains that his requests for dental treatment were refused on: August 19, 2011, August 30,
2011, September 8, 2011, September 22, 2011, and September 19, 2011, and that he has had no
treatment since October 24, 2011, he later acknowledges that he was seen by Dr. Logan on
September 15, 2011, October 4, 2011 and October 22, 2011, and that Dr. Logan extracted teeth
each time. Id. Nevertheless, Plaintiff has not named a specific individual as a Defendant relative
7
to his dental treatment but simply states that the Dentist Department is under the "authoritive
[sic] umbrella of Ms. Overton's supervision." Id. at ¶ 57.
Plaintiff initiated this action on November 8, 2010, by filing a Motion for Leave to
Proceed in Forma Pauperis along with a Complaint naming "Dept Corrections of Penna/Albion"
as the sole Defendant. ECF No. 1. On February 15, 2011, Plaintiff filed an Amended Complaint
naming SCI/Graterford/DOC of PA, Overton, Zirkle, Telega, Jablonski and Adams as
Defendants. ECF No. 11. Plaintiff filed a Consolidated Complaint against these same
Defendants on November 30, 2011, ECF No. 47, and on January 11, 2012, Plaintiff filed another
Consolidated Complaint adding J. Korszniak as a Defendant. ECF No. 58.1
A Motion to Dismiss Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6)
was filed by the Medical Defendants on January 13, 2012. ECF No. 59. On February 13, 2012,
the DOC Defendants filed a Motion to Dismiss Amended Consolidated Complaint pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). ECF No. 63. Plaintiff responded to the Motions on
February 10, 2012, and March 19, 2012, respectively, ECF Nos. 62, 66, rendering both Motions
ripe for review.
II.
STANDARD OF REVIEW
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme
Court held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does
not allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. In
assessing the sufficiency of the complaint, the court must accept as true all allegations in the
complaint and all reasonable factual inferences must be viewed in the light most favorable to the
plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The court, however, need not
1
Although Plaintiff subsequently filed two Motions for Leave to Supplement Complaint, ECF Nos. 69, 72, both
motions were denied. As such, the Consolidated Complaint filed at ECF No. 58 remains the operative complaint
and is hereinafter referred to as the "Consolidated Complaint."
8
accept inferences drawn by the Plaintiff if they are unsupported by the facts as set forth in the
complaint. See California Public Employees’ Retirement System v. The Chubb Corp., 394 F.3d
126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997). Nor must the court accept legal conclusions set forth as factual allegations; rather,
“[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986).
See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under
Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action”
do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed]
conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal
evidence of the necessary element[s] of his claim”).
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of
jurisdiction over the subject matter, or if the plaintiff lacks standing to bring his claim. Motions
brought under Rule 12(b)(1) may present either a facial or factual challenge to the court's subject
matter jurisdiction. In reviewing a facial challenge under Rule 12(b)(1), as the DOC Defendants
have presented here, the standards relevant to Rule 12(b)(6) apply. In this regard, the court must
accept all factual allegations in the Complaint as true, and the court may only consider the
complaint and documents referenced in or attached to the complaint. See Gould Elec., Inc. v.
U.S., 220 F.3d 169, 176 (3d Cir. 2000). Once the court's subject matter jurisdiction over a
complaint is challenged, the plaintiff bears the burden of proving that jurisdiction exists.
Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). See Sixth
Angel Shepherd Rescue Inc. v. West, 790 F. Supp. 2d 339, 349 (E.D. Pa. 2011), aff'd, ___ F.
App'x ___, 2012 WL 1385009 (3d Cir. April 23, 2012) ("[t]heir claim that the Eleventh
9
Amendment bars this lawsuit is a facial challenge to the Court's jurisdiction").
II.
DISCUSSION
A.
The Medical Defendants' Motion to Dismiss
1.
Exhaustion of Administrative Remedies
The Medical Defendants initially argue that Plaintiff's claims brought against them are
barred as a matter of law because Plaintiff failed to exhaust his administrative remedies.
The Prison Litigation Reform Act ("PLRA") requires a prisoner filing a Section 1983
action to exhaust all administrative remedies before filing a claim in federal court. 42 U.S.C. §
1997(e)(a).2 See Spruill v. Gillis, 372 F.3d 218, 228 (3d Cir. 2004). Failure to exhaust
administrative remedies is an affirmative defense and, hence, the burden lies with party asserting
it. Karpiel v. Ogg, Cordes, Murphy & Ignelzi, LLP, 297 F. App'x 192, 193 (3d Cir. 2008)
(“[e]xhaustion is an affirmative defense and, accordingly, the burden is on [the defendant] to
demonstrate that [the plaintiff] failed to exhaust her administrative remedies . . .”). See Jones v.
Bock, 549 U.S. 199, 211–212, 215 (2007) (rejecting the Sixth Circuit's approach, which
“place[d] the burden of pleading exhaustion in a case covered by the PLRA on the prisoner”).
Thus, a plaintiff need not plead exhaustion in the complaint and a defendant may only assert the
defense in a motion to dismiss filed pursuant to Rule 12(b)(6), if it is clear from the face of the
complaint that the plaintiff has failed to exhaust. See Leveto v. Lapina, 258 F.3d 156, 161 (3d
Cir. 2001) (“a complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative
2
Specifically, the PLRA states that:
No action shall be brought with respect to prison conditions under section 1983 of this Title, or any
other Federal law by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as area available are exhausted.
42 U.S.C.1997e(a).
10
defense appears on its face”) (citations omitted); Boyd v. Sherrer, 2007 WL 2261553 at *2–3
(D.N.J. Aug. 3, 2007).
In order to properly exhaust his or her administrative remedies, a plaintiff must be in
“compliance with an agency's deadlines and other critical procedural rules . . . .” Woodford v.
Ngo, 548 U.S. 81, 90–91 (2006). The DOC's Grievance System Policy, DC–ADM 804, sets out
a three-step grievance and appeals process. An inmate is first required to legibly set forth all
facts and identify all persons relevant to his claim in a grievance which will then be subject to
"initial review." Spruill v. Gillis, 372 F.3d at 232, 233. After the initial review by a grievance
officer, the inmate has the opportunity to appeal to the Facility Administrator for a second level
of review. Id. at p. 232. Finally, an appeal to the Secretary's Office of Inmate Grievances and
Appeals is available. Id.
Here, the Medical Defendants have not discussed the allegations set forth in the
Consolidated Complaint or the documents attached thereto but merely refer the Court to the
Motion to Dismiss filed by the DOC Defendants. Neither the DOC's Motion nor the
Consolidated Complaint and its accompanying documents, however, speak to whether or not
Plaintiff exhausted his remedies with respect to his claims against Korszniak. Therefore, it
cannot be said that Plaintiff has failed to exhaust those claims and the Medical Defendants'
Motion in this regard is denied.
It nevertheless appears from the face of the Consolidated Complaint that, with the
exception of one grievance, Plaintiff has failed to exhaust his administrative remedies relative to
his claims brought against Defendant Telega.
11
Attached to Plaintiff's Consolidated Complaint are 134 pages of Exhibits which include
eight grievances that he has filed while at SCI Albion, only three of which concern Telega and
Plaintiff's claims brought against him. See ECF No. 58-1, pp. 45, 71, 73; ECF No. 58-2, p. 30.
According to these documents, Grievance No. 332166 was filed on August 20, 2010, and
was denied on September 7, 2010, after initial review. ECF Nos. 58-2, pp. 30, 31. The
documents further reflect that Plaintiff subsequently submitted two requests for final review but
both were rejected because he failed to appeal the issue to the Facility Manager at the second
level. ECF No. 58-2, pp. 32, 33.
The second grievance relevant to Telega was filed on September 1, 2010 at No. 333551,
and denied after initial review on September 17, 2010. ECF No. 58-1, pp. 45, 46. According to
the Consolidated Complaint, Plaintiff again failed to seek review by the Facility Manager at the
second level and, thus, his request for final review was denied. ECF No. 58-1, p. 48. Thus, it is
clear from the face of the Consolidated Complaint that Plaintiff failed to exhaust the
administrative review process with respect to the claims contained in these grievances and, to the
extent, Plaintiff's claims here are based on those grievances, they are properly dismissed.
Plaintiff, however, filed Grievance No. 349288 -- the third and last grievance relative to
Telega -- on January 5, 2011, wherein he complains that Telega refused his requests to see a
doctor and that Telega told him he would have to charge Plaintiff to reexamine his knees. ECF
No. 58-1, p. 71. Although Plaintiff has submitted documentation that initial review was denied
in February, 2011, ECF No. 58-1, pp. 72, 74, there is no further documentation or reference in
the Consolidated Complaint regarding the review process or what steps Plaintiff may have taken
toward exhaustion. It therefore is not clear from the face of the Consolidated Complaint that
12
Plaintiff has failed to exhaust his remedies with respect to these claims and Defendants' Motion
in this regard is denied.3
2.
Deliberate Indifference
Alternatively, the Medical Defendants argue that Plaintiff's Consolidated Complaint
should be dismissed because Plaintiff has failed to state a claim of deliberate indifference against
them.
The Eighth Amendment's prohibition against cruel and unusual punishment requires
prison officials to provide basic medical treatment to those whom it has incarcerated and that
deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and
wanton infliction proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103-04
(1976). Thus, in order to establish an Eighth Amendment violation, a plaintiff must demonstrate:
(1) a serious medical need; and (2) that the defendants were deliberately indifferent to that need.
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). See Spruill v. Gillis, 372 F.3d at 235.
In order to establish deliberate indifference, a “plaintiff must make an ‘objective’
showing that the deprivation was ‘sufficiently serious,’ or that the result of defendant's denial
was sufficiently serious. Additionally, a plaintiff must make a ‘subjective’ showing that
defendant acted with a ‘sufficiently culpable state of mind.’” Montgomery v. Pinchak, 294 F.3d
492, 499 (3d Cir. 2002), citing Wilson v. Seiter, 501 U.S. 294, 298 (1991). Deliberate
indifference exists “where [a] prison official: (1) knows of a prisoner's need for medical
3
Although the DOC Defendants have submitted a Declaration from Melinda Adams, who is the Assistant to the
Superintendent at SCI Albion as well as a Defendant in this action, in which she declares that Plaintiff failed to
appeal Grievance No. 349288 to either the Superintendent or to Final Review, Plaintiff has not been given the
opportunity at this stage of the litigation to either discover or submit any contrary evidence. While it is unlikely,
given Ms. Adam's Declaration and the seemingly exhaustive number of exhibits Plaintiff has submitted with his
Consolidated Complaint, that such evidence exists, at this juncture Plaintiff should nevertheless be given the
opportunity to provide it. Cameron v. Montgomery Cnty. Child Welfare Service, 471 F. Supp. 761, 763 (E.D. Pa.
1979), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("[i]n evaluating a motion to dismiss . . . . '[t]he issue is
not whether a plaintiff will ultimately prevail but the claimant is entitled to offer evidence to support the claims'").
See Westwood v. Cohen, 838 F. Supp. 126, 128 (S.D.N.Y. 1993).
13
treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on
a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Inconsistencies or differences
in medical diagnoses, short delays unaccompanied by arbitrary or unduly burdensome
bureaucratic procedures, and the refusal to summon the medical specialist of the inmate's choice,
perform tests or procedures that the inmate desires, or to explain to the inmate the reason for
medical action or inaction, however, does not amount to cruel and unusual punishment.
Maqbool v. University Hosp. of Medicine & Dentistry of New Jersey, 2012 WL 2374689 at * 9
(D.N.J. June 13, 2012). Nor do allegations of negligence or medical malpractice. See Spruill v.
Gillis, 372 F.3d at 235 (neither claims of medical malpractice nor disagreements regarding the
proper medical treatment are actionable); Rouse v. Plantier, 182 F.3d at 197, quoting Estelle v.
Gamble, 429 U.S. at 105 (allegations of negligence and medical malpractice are not sufficient to
establish a Constitutional violation as the “inadvertent failure to provide adequate medical care
cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ . . .”). As such,
allegations that the inmate was provided with medical care, but the care was “inadequate” fails to
state a cognizable claim. See Taylor v. Visinsky, 422 F. App'x 76, 78 (3d Cir. 2011).
With these standards in mind, it is clear that Plaintiff has failed to state a claim of
deliberate indifference against Defendant Korszniak. The only allegation in the Consolidated
Complaint against Korszniak is that he acted in an arrogant manner during an examination on
March 31, 2010. ECF No. 58, ¶ 14. Being arrogant, however, not only falls woefully short of
being deliberately indifferent to a serious medical need but Plaintiff has also alleged in the
Consolidated Complaint, and has acknowledged in his Response to Defendants' Motion to
Dismiss, that, notwithstanding his arrogant manner, Korszniak admitted him to the infirmary for
14
his nausea, body aches and consistent cough following the examination. Id.; ECF No. 62, pp. 2,
5. Thus, according to Plaintiff's own Complaint, Defendant Korszniak took steps to see that
Plaintiff was treated and his deliberate indifferent claims against Korszniak are properly
dismissed.4
With respect to Defendant Telega, the Court has already found that the only claims to
survive the exhaustion analysis are that Telega refused Plaintiff's requests to see a doctor about
his knees and that Telega told Plaintiff he would have to charge him to reexamine his knees.
ECF Nos. 58, p. 5; 58-1, p. 71. Neither of these assertions, however, state a claim for deliberate
indifference.
First, the United States Court of Appeals for the Third Circuit has specifically held that
“[i]f a prisoner is able to pay for medical care, requiring such payment is not ‘deliberate
indifference to serious medical needs.’” Reynolds v. Wagner, 128 F.3d 166, 174 (3d Cir. 1997),
quoting Helling v. McKinney, 509 U.S. 25, 32 (1993). See Stankowski v. Farley, 487 F. Supp.
2d 543, 556 (M.D. Pa. 2007).
Second, it is well established that an inmate does not have a constitutional right to see a
doctor on demand or the doctor of his choice. McNeil v. Redman, 21 F. Supp. 2d 884, 887 (C.D.
Ill. 1998) (an inmate has no constitutional right to see a doctor on demand). See Maqbool v.
Univeristy Hosp. of Medicine & Dentistry of New Jersey, 2012 WL 2374689 at *9. Nor is an
4
To the extent that Plaintiff has argued in his responsive brief that Korszniak also denied his request for medical
screening and failed to order diagnostic tests, review his medical charts or send Plaintiff to a specialist, it should be
noted that none of these allegations are contained in Plaintiff's Consolidated Complaint and are irrelevant to the
instant motion. See Commonwealth of Pa. ex. rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir.1988) (It
is well established that a plaintiff may not amend the Complaint through the brief filed in opposition to a motion to
dismiss). Moreover, even if the Court were to consider these additional assertions, they do not serve to resurrect
Plaintiff's deliberate indifference claims as it is readily apparent from the Consolidated Complaint that Korszniak
provided Plaintiff with treatment. Further, Plaintiff's assertions that Korszniak rendered recommendations; that
Korszniak's judgment was uninformed; and that the course of treatment Korszniak chose was unacceptable, see ECF
No. 62, pp. 2-6, sound in negligence and do not rise to the level of an Eighth Amendment violation. Spruill v. Gillis,
372 F.3d at 235.
15
inmate entitled to a particular course of treatment or to have particular tests performed. Jetter v.
Beard, 130 F. App'x 523, 526 (3d Cir. 2005), cert. denied, 546 U.S. 985 (2005) (noting that
while plaintiff would have preferred a different course of treatment, his preference does not
establish an Eighth Amendment cause of action); Pilkey v. Lappin, 2006 WL 1797756 at *2
(D.N.J. June 26, 2006) (“refusal to consider inmate's self-diagnoses,” or “to perform tests or
procedures that the inmate desires” does not amount to cruel and unusual punishment). Rather,
"the decision whether to summon a doctor, like the question of whether certain diagnostic
technique or form of treatment should be prescribed, 'is a classic example of a matter for medical
judgment,'" and does not give rise to an Eighth Amendment violation. McNeil v. Redman, 21 F.
Supp. 2d at 887, quoting Estelle v. Gamble, 429 U.S. at107. See White v. Napoleon, 897 F.2d
103, 110 (3d Cir. 1990) (disagreements over medical judgment do not state Eighth Amendment
claims); U.S. ex rel. Hyde v. McGinnis, 429 F.2d 864, 866, 867-68 (2d Cir. 1970), quoting
Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968) ("[a] difference of opinion between
a physician and a patient does not give rise to a constitutional right or sustain a claim under §
1983"; the conduct must be so harmful that it should be characterized as a barbarous act that
shocked the conscience); Hasty v. Johnson, 103 F. App'x 816, 817-18 (5th Cir. 2004) (prisoner
failed to state a claim for deliberate indifference to his medical needs where he alleged that
medical personnel provided him with purportedly less efficacious drugs for gastroesophageal
reflux disease as the prison medical personnel clearly provided him with treatment). Moreover,
the United States Court of Appeals for the Third Circuit has held that, under the deliberate
indifference standard, prison medical authorities have “considerable latitude” in exercising this
judgment in the diagnosis and treatment of inmate patients and that Court's should "disavow any
attempt to second-guess the propriety or adequacy of a particular course of treatment which
16
remains a question of sound professional judgment.” Carter v. Smith, 2012 WL 1864006 at *1
(3d Cir. May 23, 2012), quoting Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979) (citation omitted).
Here, according to the Consolidated Complaint, Plaintiff was seen by Telega on August
20, 2010, three days after arriving at SCI Albion, at which time Telega ordered x-rays, creams,
pain medication and scheduled a follow-up visit. ECF Nos. 58-1, p. 46; 58-2, p. 31. It also
appears that Plaintiff subsequently had blood drawn on September 7, 2010, and that on
September 13, 2010, x-rays were taken, Plaintiff received an injection and was returned to
bottom bunk status. ECF Nos. 58-1, pp. 44, 54; 58-2, pp. 2-3. It also appears that Telega
ordered additional x-rays when he saw Plaintiff a second time. ECF No. 58-1, p. 56. Under
these circumstances, Plaintiff's claim that Telega was deliberately indifference to his medical
needs does appear plausible but, rather suggests only that Plaintiff disagrees with Telega's
medical judgment and course of treatment.
Moreover, to the extent that Plaintiff has alleged that Telega somehow prevented him
from seeing a doctor or other medical personnel, Plaintiff's assertions in the Consolidated
Complaint and the documents he has submitted in conjunction with the Consolidated Complaint
are to the contrary. These documents show that Plaintiff was seen by at least six other medical
personnel, including Drs. Salemeh, Baker, Maxon, Latizio and McGaughey, on any number of
occasions between August 17, 2010, when he arrived at SCI Albion, and January 11, 1012, when
he filed the Consolidated Complaint. See ECF No. 58, pp. 7, 9, 10, 11, 13, 18, 19; ECF No. 581, pp. 19, 24, 29, 33, 35, 75; ECF No. 58-2, pp. 13, 16, 25. Because Plaintiff has clearly not been
prevented from seeing a doctor or other medical personnel, his allegations to the contrary cannot
serve to support a finding that Telega was deliberately indifferent to his medical needs.
17
3.
Retaliation
Finally, the Medical Defendants argue that Plaintiff has failed to allege sufficient facts to
sustain a claim for retaliation against Telega and, thus, to the extent that Plaintiff intended to
bring such a claim, it should be dismissed.
In order to establish a clam for retaliation, an inmate must demonstrate: (1) that he
engaged in constitutionally protected conduct; (2) that an adverse action was taken against him
by a prison official; and (3) that there is a causal connection between the exercise of his
constitutional rights and the adverse action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
To constitute an adverse action for purposes of a retaliation claim, the action taken must be
"sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights.” Id.,
quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
Plaintiff makes two references to retaliation in the Consolidated Complaint. First, in
paragraph No. 50, he notes that he filed Grievance No. 381685 on 9/19/11 "asking for answers
that were not provided by the Request to Staff on 9/9/11, to Ms. Overton," and then states that
"[t]here should be no retaliation to the Plaintiff for engaging in protected conduct under the First
and Fourteenth Amendments, so he would not suffer any longer from severe discomfort and pain
from knee and joint damage." ECF No. 58, p. 13. Both the 9/9/11 Request to Staff and the
Grievance revolve around the alleged delay in receiving the knee stabilizer ordered by
Physicians Assistant Brown and Plaintiff's assertion that he is not receiving the physical therapy
prescribed by the Physical Therapist. ECF Nos. 52-1, p. 9; 58-1, p. 2; 58-2, p. 13.
Plaintiff, however, has not identified an adverse action that was taken against him as a
result of submitting the Request to Staff or filing Grievance No. 381685.5 Nor has he plead any
5
Because the alleged delay in receiving a knee stabilizer and having physical therapy had already occurred before
Plaintiff filed the Request to Staff and the Grievance at issue, those delays cannot serve as the adverse action
18
facts from which it could be surmised that an adverse action was taken against him as a result of
filing the Request to Staff and Grievance No. 381685. Moreover, Plaintiff's 9/9/11 Request to
Staff and Grievance No. 381685 relate to his complaints against Overton and neither mention nor
pertain to Telega. ECF No. 58-1, p. 29; ECF No. 58-2, p. 13. See ECF No. 58, pp. 6-11.
The second reference to retaliation in the Consolidated Complaint appears in paragraph
59 wherein Plaintiff states that:
All Defendants here violated Plaintiff's procedural due process clause of
the First Amendment when direct retaliation for Plaintiff s numerous
complaints and filed grievances concerning the lack of, or quality of
medical attention he has been afforded. Plaintiff had been threatened by the
Medical department earl[y] on that if he insisted on the return of his knee
braces, and bottom bunk, bottom tier status, he'd be blackballed from
ever[y] activity and employment. This was a rule enforced only upon
Plaintiff . . . .
ECF No. 58, p. 18. Plaintiff, however, has not only failed to allege any facts to support his
contention that he has been blackballed from any activities but he has again failed to plead any
facts to suggest that his being blackballed was the result of his having filed complaints and
grievances. More importantly, however, Plaintiff has not pled any facts at all relative to Telega.
He has therefore failed to state a claim of retaliation against Telega and, to the extent he intended
to bring such a claim, it is properly dismissed.
Because it is evident from the face of the Consolidated Complaint that Plaintiff failed to
exhaust his administrative remedies with respect to all but one of his claims against Telega and
that Plaintiff has otherwise failed to establish that either Defendants Korszniak or Telega were
deliberately indifferent to his medical needs or that Telega retaliated against him, the Medical
Defendants' Motion to Dismiss will be granted.
subsequently taken as the result of his having submitted those documents.
19
B.
DOC Defendants' Motion to Dismiss
1.
Sovereign Immunity
The DOC Defendants initially argue that Plaintiff's Section 1983 claims against
Defendant SCI Graterford/DOC of PA should be dismissed because they are entitled to
immunity under the Eleventh Amendment to the United States Constitution.
The Eleventh Amendment provides that:
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.6
Thus, absent consent by a state, the Eleventh Amendment bars a civil rights suit in federal court
against a state, or a department or agency of the state having no existence apart from the state as
a defendant. Edelman v. Jordan, 415 U.S. 651, 663 (1974); Laskaris v. Thornburgh, 661 F.2d
23, 25 (3d Cir. 1981), citing Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 280
(1977). Pennsylvania has specifically withheld consent to suit in federal courts. 42 Pa.
Cons.Stat. Ann § 8521(b) ("Federal courts. Nothing contained in this subchapter shall be
construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed
by the Eleventh Amendment to the Constitution of the United States"). Moreover, it cannot be
disputed that the DOC, and by extension SCI Graterford, is an administrative department of the
Commonwealth of Pennsylvania. See 71 Pa. Stat. § 61 (naming the DOC as an administrative
department of the Commonwealth). As such, SCI Graterford/ DOC of PA are entitled to
Eleventh Amendment immunity and is properly dismissed from this action.7
6
The United States Supreme Court has long interpreted the Eleventh Amendment as prohibiting suits in federal
court against a state by the defendant state's own citizens as well. See Hans v. Louisiana, 134 U.S. 1 (1890).
7
Moreover, the United States Supreme Court held that a state is not “a person” subject to Section 1983 liability and
that the non-person status extends to “governmental entities that are considered arms of the state for Eleventh
20
2.
Exhaustion of Administrative Remedies
As previously discussed, the PLRA requires a prisoner filing a Section 1983 action to
first exhaust administrative remedies which, in turn, requires the inmate to submit a legible claim
or grievance setting forth all relevant facts and identifying all persons with information relevant
to his claims; appeal an unfavorable decision by a grievance officer to the Facility Administrator
for a second level of review; and submit a final appeal of the Facility Manager's decision to the
Secretary's Office of Inmate Grievances and Appeals. 42 U.S.C. § 1997(e)(a); Spruill v. Gillis,
372 F.3d at 232, 233. Moreover, an inmate's claims against an accused individual is
procedurally defaulted where the inmate fails to specifically name the individual in the grievance
or where the grievance is untimely or otherwise defective. Id. at 234. See Woodford v. Ngo,
548 U.S. at 90-91 (exhaustion of administrative remedies under the PLRA requires "using all
steps that the agency holds out," and "demands compliance with an agency's deadlines and other
critical procedural rules") (internal quotations and citations omitted).
In this case, it is clear from the face of the Consolidated Complaint and the documents
attached thereto that Plaintiff has not only failed to exhaust his administrative remedies relative
to his claims of deliberate indifference brought against the DOC Defendants but that those claims
are also procedurally defaulted.
a.
Grievance No. 332166
According to the documents submitted by Plaintiff, Grievance No. 332166 was filed on
August 20, 2010, and was denied on September 7, 2010, after initial review. ECF Nos. 58-2, pp.
30, 31. The documents further reflect that Plaintiff subsequently submitted two requests for
final review but both were rejected because he failed to appeal the issue to the Facility Manager
Amendment purposes.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989). Because the DOC and
SCI Graterford are arms of the state, dismissal of Plaintiff's federal claims brought against them are properly
dismissed under Will as well.
21
at the second level. ECF No. 58-2, pp. 32, 33. In addition, Plaintiff has not named any of the
DOC Defendants in Grievance No. 332166 and the complaints he raises therein revolve around
his initial visit with Telega and have nothing to do with the DOC Defendants.
b.
Grievance No. 333551
The second Grievance was filed by Plaintiff on September 1, 2010, at No. 333551, in
which he again complains about Telega, his top bunk status, and his missing knee braces and
elbow sleeve. ECF No. 58-1, p. 45. It is clear from the Consolidated Complaint that the
Grievance was denied after initial review on September 17, 2010, and that his request for final
review was denied because Plaintiff failed to seek review by the Facility Manager at the second
level. ECF No. 58-1, pp. 45, 46, 48. Further, neither Defendants Adams nor Zirkle are named in
the grievance and Plaintiff states only that he "wrote to Maxine Overton" and "spoke to . . .
Jablonski" about his complaints. Thus, nothing in the grievance implicates the DOC Defendants
and, to the extent Plaintiff alleges that Defendants Overton, Adams, Zirkle and Jablonski were
deliberately indifferent to this medical needs due to the revocation of his top bunk status and
because his knee braces and elbow sleeve were missing, those claims are procedurally defaulted.
c.
Grievance No. 349288
As previously discussed, Grievance No. 349288 was submitted on January 5, 2011,
wherein Plaintiff complains that Telega refused his requests to see a doctor and told Plaintiff he
would have to charge him to reexamine his knees. ECF No. 58-1, p. 71. Although Plaintiff has
submitted documentation that initial review was denied in February, 2011, ECF No. 58-1, pp. 72,
74, it is unclear from the face of the Consolidated Complaint whether Plaintiff took any further
steps toward exhaustion. Nevertheless, it is clear that neither Jablonski nor Zirkle are mentioned
in the Grievance and the only reference Plaintiff makes to Overton and Adams are that he had
22
written to them regarding Telega and the medical treatment he was receiving. Id. at p. 71. Thus,
Grievance No. 349288 does not serve to establish that Plaintiff's claims against the DOC
Defendants have been exhausted.
d.
Grievance No. 344212
Plaintiff submitted Grievance No. 344212 on December 2, 2010, regarding the five days
he was allegedly without his asthma inhaler while in the RHU and the subsequent revocation of
his bottom bunk status. ECF No. 20-1, p. 11. Not only is it clear from the Consolidated
Complaint that his appeal to final review rejected because he failed to comply with the
requirements set forth in DC-ADM 804, but none of the DOC Defendants are named in
Grievance or implicated in his complaints.
e.
Grievance No. 381685
On September 17, 2011, Plaintiff submitted Grievance No. 381685, complaining about
the lack of medical treatment he was receiving with respect to his knees and, in particular, the
absence of any physical therapy/and or weight lifting. ECF Nos. 52-1, p. 9; 58-1, p. 29. Other
than stating that he wrote an Inmate Request to Overton that went unanswered, however, none of
the DOC Defendants are named in the grievance or implicated in the alleged inadequate
treatment of his knees.
f.
Grievance No. 385473
Similarly, in Grievance No. 385473, which was filed on October 13, 2011, Plaintiff again
complains about the treatment of his knees and the lack of physical therapy. ECF No. 58-1, p.
82. Neither Jablonski or Zirkle are named in the Grievance and Adams and Overton, while
mentioned, are not named relative to the alleged lack of medical treatment. Rather, Plaintiff
23
merely complains generally about the ineffectiveness of the grievance system and accuses
Adams of "working hand and hand" with Overton. Id.
g.
Grievance No. 389147
The final Grievance, No. 389147, was filed by Plaintiff on November 14, 2011, and
revolves around the alleged lack of dental care he has received at SCI Albion and, in particular,
Dr. Logan's alleged refusal to treat Plaintiff after learning that he has HIV. ECF Nos. 52-1, p.
13; 58-1, p. 95. None of the DOC Defendants, however, are named in or the subject of the
grievance.
These facts, which are evident from the face of the Consolidated Complaint and the
documents that Plaintiff has attached thereto, clearly indicate that Plaintiff has failed to exhaust
any of his deliberate indifferent claims brought against the DOC Defendants. As such, Plaintiff's
claims against Defendants Overton, Adams, Zirkle and Jablonski are properly dismissed and
their Motion will be granted.
IV.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss Plaintiff's Amended Complaint
submitted on behalf of Defendants Telega and Korszniak, ECF No. 59, and the Motion to
Dismiss Amended Consolidated Complaint submitted on behalf of Defendants SCI
Graterford/DOC of PA, Overton, Zirkle, Jablonski and Adams, ECF No. 63, are granted.
An appropriate Order will be entered.
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
Dated: 17 September, 2012
24
cc:
Gregory Plaintiff
JL-5438
SCI Albion
10745 Rt. 18
Albion, PA 16475
All counsel of record via CM/ECF
25
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