HANDY v. VARNER et al

Filing 62

MEMORANDUM OPINION AND ORDER granting 49 the Commonwealth Defendants' Motion to Dismiss for Failure to State a Claim; and granting 51 Defendant Mollura's Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Cynthia Reed Eddy on 01/14/2014. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DERRALD HANDY,
Plaintiff,
v.
UNIT MANAGER AMY VARNER, et al.,
Defendants.

)
)
)
)
)
)
)
)

Civil Action No. 2: 12-cv-1091
United States District Magistrate
Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER
Presently pending are the following: the Motion to Dismiss filed by Defendants Amy
Varner and Lori Kwisnek, with brief in support (ECF Nos. 49 and 50), the Motion to Dismiss
filed by Defendant Dr. Mollura, with brief in support (ECF Nos. 51 and 52), and the Plaintiff’s
Brief in opposition (ECF No. 60). For the reasons that follow, both Motions will be granted.1
Factual Background2
Plaintiff, Derrald Handy, is a prisoner currently incarcerated at SCI-Graterford. This
action was initiated by Plaintiff on August 1, 2012, by the filing of a Motion for Leave to
Proceed in forma pauperis (ECF No. 1). By Order entered August 27, 2012, the case was
dismissed without prejudice as Plaintiff had failed to obey a court order requiring him to file an
authorization. On October 17, 2012, because Plaintiff submitted the required Authorization, the
case was reopened and the Motion for Leave to Proceed in forma pauperis was granted. The

The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF
Nos. 35, 36, and 37.
1

As the law requires, all disputed facts and inferences are resolved in favor of Plaintiff, the
non-moving party.
2

1

Complaint was filed the next day. (ECF No. 6.)
On August 2, 2013, Plaintiff filed an Amended Complaint, which remains the operative
complaint. (ECF No. 58). Named as Defendants are two Department of Corrections (“DOC”)
employees who were assigned to SCI-Greensburg, Amy Varner, a Unit Manager, and Lori
Kwisnek, Corrections Health Care Administrator (“the Corrections Defendants”) and Dr.
Mollura, a medical practitioner independently contracted by the DOC to provide medical
services to its inmates.
Plaintiff’s claims are based upon events alleged to have occurred while he was confined
at SCI-Greensburg, his former place of confinement. His claims appear to be based on alleged
violations of his First and Eighth Amendment rights. Plaintiff alleges that Defendant Varner
moved him to the dormitory area “because I was considered a problem to the staff because I
continue to file complaints about various issues in the jail” and that she wanted to “get me out of
her hair.” Amended Complaint, at 2. According to Plaintiff, Defendant Mollura and Defendant
Kwisnek did nothing to assist Plaintiff in being moved out of the dormitory area, although they
both were aware that the environmental conditions in the dormitory area were causing Plaintiff’s
pre-existing health issues to worsen.3 He seeks compensatory and punitive damages, as well as
unspecified injunctive relief, which the Court notes is moot as SCI-Greensburg officially closed
on June 30, 2013.
Defendants have filed the instant Motions to Dismiss, with briefs in support, in which
they seek to have Plaintiff’s claims against them dismissed with prejudice pursuant to Federal
Rule of Civil Procedure 12(b)(6). The matter has been fully briefed and is ripe for disposition.

However, the Amended Complaint also recognizes that Dr. Mollura facilitated Plaintiff’s
move out of the dormitory area. Amended Complaint at 3-4.
3

2

B.

Standard of Review for Motion to Dismiss
1.

Pro Se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–521 (1972). If
the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,
it should do so despite failure to cite proper legal authority, confusion of legal theories, poor
syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag
v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,
555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read
“with a measure of tolerance”).
In a section 1983 action, the court must liberally construe the pro se litigant's pleadings
and “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by
name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran
Affairs, 165 F.3d 244, 247–48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their
complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting
Higgins, 293 F.3d at 688). Under our liberal pleading rules, during the initial stages of litigation,
a district court should construe all allegations in a complaint in favor of the complainant. Gibbs
v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996)
(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100,
103 (3d Cir. 1990) (same). Notwithstanding this liberality, pro se litigants are not relieved of
their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v.

3

Books A Million, Inc., 296 F.3d 376, 378, (5th Cir. 2002).
Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences
where it is appropriate.
2.

Motion to Dismiss Pursuant to Rule 12(b)(6) - The Legal Standard

A motion to dismiss pursuant Rule 12(b)(6) challenges the legal sufficiently of the
complaint. When reviewing a motion to dismiss, the Court must accept all well-pleaded facts
and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff.
Burtch v. Milberg Factors, Inc., 62 F.3d 212, 220 (3d Cir. 2011), cert. denied, -- U.S. --, 131 S.
Ct. 1861 (2012) (citing In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)).
However, as the Supreme Court of the United States made clear in Bell Atlantic Corp. v.
Twombly, such “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. 554, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (holding that, while the Complaint need not contain detailed factual allegations, it must
contain more than a “formulaic recitation of the elements” of a constitutional claim and must
state a claim that is plausible on its face) (quoting Twombly, and providing further guidance on
the standard set forth therein).
To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United
States Court of Appeals for the Third Circuit instructs that a district court must make a three-step
approach when presented with a motion to dismiss for failure to state a claim. Santiago v.
Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the
process as a “two-pronged approach,” it views the case as outlining three steps) (citing Iqbal,
556 U.S. at 675). First, “the court must ‘tak[e] note of the elements a plaintiff must plead to state
a claim.” Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the court

4

“should identify allegations that, ‘because they are no more than conclusions, are not entitled to
the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, ‘”where there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at 679).
Courts generally consider the allegations of the complaint, attached exhibits, and matters
of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described
or identified in the complaint also may be considered if the plaintiff’s claims are based upon
those documents. Id. (citations omitted). In addition, a district court may consider indisputably
authentic documents without converting a motion to dismiss into a motion for summary
judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d
217, 222 (3d Cir. 2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court
generally should consider “the allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a claim.”).
Moreover, the United States Court of Appeals for the Third Circuit has held that, in civil
rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a
claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Discussion
A.

Official Capacity Claims against the Corrections Defendants
At all times relevant this lawsuit, Corrections Defendants Varner, the Unit Manager, and

Kwisnek, the Hospital Administrator, were employees or officials employed by the DOC.

5

Therefore, to the extent that Handy has named these Corrections Defendants in their official
capacities, such claims are barred by the Eleventh Amendment. See Amended Complaint, at 7, ¶
6. See, e.g., Braun v. State Correctional Institution at Somerset, 2010 WL 10398, *5-6 (W.D.
Pa. 2010)(“a section 1983 action against a state official in his official capacity is not a suit
against the person but it is a suit against itself and as such, the action is barred by the Eleventh
Amendment.”).
Thus, all official claims against Corrections Defendants Varner and Kwisnek will be
dismissed. Plaintiff will not be granted leave to amend the claims against these defendants in
their official capacities as doing so would be futile.
B.

Eighth Amendment Medical Care Claims4
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 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
Defendants have not sought to dismiss Plaintiff’s retaliation claims brought against
Defendant Varner.
4

6

doctor's attention.” Colburn v. Upper Darby Twp, 946 F.2d 1017, 1023 (3d Cir. 1991);
Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347. “To act with deliberate indifference to
serious medical needs is to recklessly disregard a substantial risk of serious harm.” Everett v.
Nort, No. 13-1864, slip op. at 6 (3d Cir. Nov. 21, 2013) (quoting Giles v. Kearney, 571 F.3d 318,
330 (3d Cir. 2009)). Such indifference may be evidenced by an intentional refusal to provide
care, delayed provision of medical treatment for non-medical reasons, denial of prescribed
medical treatment, denial of reasonable requests for treatment that results in suffering or risk of
injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir.1993), or “persistent conduct in the face of
resultant pain and risk of permanent injury,” White v. Napoleon, 897 F.2d 103, 109 (3d
Cir.1990).
“Where a prisoner has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims which sound in state tort law.” Everett v. Nort, No. 131864, slip op. at 6 (quoting United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2
(3d Cir. 1979)) (quotation marks omitted). Furthermore, it is also clear that the misdiagnosis of a
condition or medical need, or negligent treatment provided for a condition, is not actionable as
an Eighth Amendment claim because medical malpractice standing alone is not a constitutional
violation. Estelle, 429 U.S. at 106. “Indeed, prison authorities are accorded considerable latitude
in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Thus,
“the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g.
Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a
physician exercises professional judgment his behavior will not violate a prisoner's constitutional
rights.’).” Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D. Pa. 1997).

7

Given the liberal construction afforded to the pro se complaint, Plaintiff has arguably
satisfied the serious medical need requirement at this early juncture in the proceedings. However,
as discussed infra, it is apparent that Plaintiff has failed to satisfy the second prong of the
deliberate indifference analysis.
1.

Dr. Molllura

Plaintiff does not deny that he was provided medical treatment while in the dormitory
area. Rather, he contends that Dr. Mollura supported “Amy Varner’s acts of harassment and
retaliation, by first recognizing the need for medical attention and not doing ‘all’ that was
‘needed’ to solve the ‘underlining’ (sic) problem, which was to move me out of the contaminated
areas that was causing the problems.” Amended Complaint at 5-6.
The Amended Complaint is void of any allegations that Dr. Mollura failed to provide
medical care to Plaintiff while he was assigned to the dormitory area. To the contrary, the
Amended Complaint acknowledges that Dr. Mollura provided timely and continual care to
Plaintiff in the form of medical evaluations and prescriptions. Plaintiff, however, disagrees with
the treatment he received and asserts that the only effective “treatment” should have consisted of
a re-assignment from the dormitory area.
A prisoner's disagreement with “evaluations and opinions regarding him” are insufficient
to set forth an actionable constitutional claim. Paine v. Baker, 595 F.2d 197, 201 (4th Cir. 1979).
Accordingly, since the Amended Complaint acknowledges that Plaintiff was provided with
ongoing treatment and that his claims are solely premised upon his disagreement with medical
determinations and evaluations made by Dr. Mollura, the Court finds that a viable deliberate
indifference claim has not been stated under Estelle. This determination is bolstered by the fact

8

that Plaintiff has not alleged that there was any specific medical treatment which he should have
received but was denied for a non-medical reason or that any prescribed care was improperly
delayed. Plaintiff will not be granted leave to amend his Eighth Amendment claim against
Defendant Mollura as doing so would be futile
2.

Defendant Kwisnek

It is also undisputed that Defendant Kwisnek is a non-medical prison official as she was
the Health Care Administrator at SCI-Greensburg, a non-physician layperson. The case law is
clear that health care administrators are “undisputably administrators, not doctors . . . ” Thomas
v. Dragovich, 2005 WL 1634260, *6 (3d Cir. 2005), and, therefore, “cannot be deemed
deliberately indifferent simply because the lay administrator did not challenge the physician’s
care or respond directly to a prisoner’s request for more or different treatment.” Judge v.
Medical Dept at SCI-Greene, Civ. Act. No. 05-1776, 2007 WL 1576400, *4 (W.D. Pa. May 31,
2007). Further, as the Court of Appeals for the Third Circuit explained in Durmer v. O'Carroll,
991 F.2d 64, 68 (3d Cir.1993), a non-physician defendant cannot 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.
Since there are no facts asserted in the Amended Complaint which could establish that
Defendant Kwisnek had any personal involvement whatsoever in Plaintiff's medical treatment
and since the Amended Complaint admits that Plaintiff was receiving medical care while at SCIGreensburg, under the standards announced in Durmer, the Court concludes that a viable
deliberate indifference claim has not been set forth against Defendant Kwisnek. Based on the

9

factual allegations in the Amended Complaint, Defendant Kwisnek’s role was limited to
primarily responding to complaints and grievances submitted by Plaintiff relative to his medical
care. The Amended Complaint sets forth clear allegations that Defendant Kwisnek was neither
responsible for making medical decisions regarding Plaintiff nor did she intentionally deny or
delay access to medical care or intentionally interfere with Plaintiff’s prescribed medical
treatment.
Further, to the extent that Plaintiff seeks to allege claims against Kwisnek based on her
role in the DOC’s Inmate Grievance System, such allegations fail to state a claim.
Plaintiff will not be granted leave to amend his Eighth Amendment claim against
Defendant Kwisnek as doing so would be futile.
C.

Futility
If a civil rights complaint is subject to 12(b)(6) dismissal, a district must permit a curative

amendment unless such an amendment would be inequitable or futile. Alston v. Parker, 363
F.3d 299, 235 (3d Cir. 2004). A district court must provide the plaintiff with this opportunity
even if the plaintiff does not seek leave to amend. Id.
For the reasons discussed supra, the Court will not grant Plaintiff leave to amend as it
would be futile.
Conclusion
For all the foregoing reasons, the Motion to Dismiss filed the Commonwealth
Defendants will be granted, as will be the Motion to Dismiss filed by Defendant Mollura.

AND NOW, this 14th day of January, 2014,
It is hereby ORDERED that the Commonwealth Defendants’ Motion to Dismiss is

10

GRANTED in its entirety. Plaintiff’s claims against Defendants Varner and Kwisnek in their
official capacities are dismissed with prejudice as a matter of law. Additionally, Plaintiff’s
claims against Defendant Kwisnek in her individual capacity are likewise dismissed with
prejudice as a matter of law.
It is hereby ORDERED that Defendant Mollura’s Motion to Dismiss is GRANTED in
its entirety and Plaintiff’s claims against him are dismissed with prejudice as a matter of law.
In accordance with Federal Rule of Civil Procedure 12(a)(4)(A), Defendant Varner’s
responsive pleading shall be served on or before January 28, 2014.

s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc:

DERRALD HANDY
AS2003
PO Box 244
Graterford, PA 19426
Scott A. Bradley
Office of the Attorney General
Email: [e-mail]
Jesse A. Torisky
Eisenberg & Torisky
Email: [e-mail]

11