WILKINS v. SECRETARY OF PA DEPT. OF CORRECTIONS et al
Filing
52
MEMORANDUM OPINION AND ORDER granting 34 Motion for Summary Judgment. It is further ORDERED that Summary Judgment is GRANTED in favor of Defendant Nurse Jane Doe, sua sponte.Signed by Magistrate Judge Cynthia Reed Eddy on 10/3/2013. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARNELL WILKINS,
Plaintiff,
v.
SECRETARY WETZEL, et al.,
Defendant.
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Civil Action No. 2: 12-cv-1152
United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION AND ORDER
Presently before the Court is the Motion for Summary Judgment, with brief in support,
filed by Defendants Secretary of PA Dept. of Corrections, Corrections Health Care
Administrator, and Nurse Katrina Shriver (ECF Nos. 34 and 35, respectively), and the brief and
response in opposition filed by Plaintiff, Darnell Wilkins (ECF Nos. 46 and 47).
The issues have been fully briefed and the factual record has also been thoroughly
developed via Defendants’ Concise Statement of Material Facts (ECF No. 36), the Appendix in
Support of Defendants’ Motion for Summary Judgment (ECF No. 37), the Plaintiff’s
Counterstatement of Facts (ECF No. 48), the Appendix to Plaintiff’s Response to Motion for
Summary Judgment (ECF No. 49), and Defendants’ Response to Plaintiff’s Additional Material
Facts (ECF No. 50).
The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF
Nos. 6 and 30.
After a careful consideration of Defendants’ motion, the filings in support and opposition
thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the
Motion for Summary Judgment will be granted.
BACKGROUND
Plaintiff, Darnell Wilkins, a state prisoner currently incarcerated at State Correctional
Institution - Fayette, in LaBelle, PA, has filed a complaint pursuant to the Civil Rights Act of
1871, 42 U.S.C. § 1983. Named as defendants are John Wetzel, Secretary of the Pennsylvania
Department of Corrections (“DOC”); Susan Berrier, Corrections Health Care Administrator
(“CHCA”), LPN Katrina Shriver, and Nurse Jane Doe. The Defendants, with the exception of
Jane Doe, are represented by the Office of Attorney General. Defendant Jane Doe has not been
served. See ECF No. 17, Notice of Inability to effectuate service filed by U.S. Marshal as to Jane
Doe.
This case centers on two occasions in 2011, specifically, April 29, 2011 and December
10, 2011. Plaintiff alleges that on both occasions he ran out of his prescription eye drops that had
been prescribed by an ophthalmology specialist and the pill line nurses (Defendants “Jane Doe”
and LPN Shriver) either forgot to order refills or refused to give him a refill. Plaintiff alleges that
these Defendants were negligent and/or deliberately indifferent to his serious medical needs in
violation of his Eighth Amendment rights.
Plaintiff also alleges that Defendants CHCA Susan Berrier and Secretary Wetzel failed to
properly or adequately train or supervise the nurses regarding the ordering and dispensing of
medicine; that Defendant Berrier failed to adequately respond to Plaintiff’s complaints about the
nurses, and that Secretary Wetzel failed to require adequate pharmacy facilities at SCI-Fayette so
that emergency medications could be available.
2
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if
the “movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The moving party has the initial burden of proving to
the district court the absence of evidence supporting the non-moving party's claims. Celotex
Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007);
UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004).
The burden then shifts to the non-movant to come forward with specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d
458, 460–61 (3d Cir. 1989) (the non-movant must present affirmative evidence—more than a
scintilla but less than a preponderance—which supports each element of his claim to defeat a
properly presented motion for summary judgment). The non-moving party must go beyond the
pleadings and show specific facts by affidavit or by information contained in the filed documents
( i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving
elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260
F.3d 228, 232 (3d Cir. 2001). The non-moving party “must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue.” Garcia
v. Kimmell, 381 F. App'x 211, 213 (3d Cir. 2010) (quoting Podobnik v. U.S. Postal Serv., 409
F.3d 584, 594 (3d Cir.2005)).
When considering a motion for summary judgment, the Court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson v.
3
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all
reasonable inferences which may be drawn from it, in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El
v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007). Importantly, however, in a case such as this one
where there are video recordings of the incidents in question, the Court need not adopt the nonmovant's version of the facts if the recording “blatantly contradict[s]” the non-movant's version
“so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).
Because Plaintiff is proceeding pro se, the Court is required to liberally construe his
pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, this does not require the
Court to credit his “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir.1997). Thus, for example, the mere allegation by Plaintiff that he
suffered from a serious medical need or that Defendants were deliberately indifferent to that need
is insufficient to establish that there is a genuine issue of material fact. Rather, the allegation
must be supported by evidence, which the Court will evaluate under the standard described above
to determine if there is merit beyond mere conclusions.
DISCUSSION
Defendants argue that summary judgment is appropriate because (i) Plaintiff has failed to
exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”) and,
in the alternative, that (ii) the record does not support a deliberate indifference and/or a due
process claim. Defendants’ arguments will be addressed seriatim.1
1
The Court notes that in his brief in opposition, Plaintiff appears to be responding to
arguments made by Defendants that they are entitled to qualified immunity (ECF No. 46, at 1-7)
and that Plaintiff is not entitled to relief because he has not suffered any physical injury (ECF No.
4
1. Failure to Exhaust Administrative Remedies2
Under the PLRA, “[n]o action shall be brought with respect to prison conditions under
section 1983 . . . by a prisoner confined in jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
The requirement that an inmate exhaust administrative remedies applies to all inmate
suits regarding prison life, including those that involve general circumstances as well as
particular episodes. Porter v. Nussle, 534 U.S. 516 (2002); Concepcion v. Morton, 306 F.3d 1347
(3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be
completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). The
exhaustion requirement is not a technicality, rather it is federal law which federal district courts
are required to follow. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (by using language “no
action shall be brought,” Congress has “clearly required exhaustion”).
The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules of that
grievance system. Woodford v. Ngo, 548 U.S. 81, 87–91 (2006) (“Proper exhaustion demands
compliance with an agency's deadlines and other critical procedural rules . . . .”). Importantly, the
exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally
46 at 7) . The Court has carefully reviewed Defendants’ brief and finds that these two arguments
were not raised by Defendants in their motion for summary judgment.
2
Importantly, a plaintiff’s failure to exhaust his administrative remedies does not deprive
the district court of subject matter jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n. 4 (3d Cir.
2000) ( “[W]e agree with the clear majority of courts that § 1997e(a) is not a jurisdictional
requirement, such that failure to comply with the section would deprive federal courts of subject
matter jurisdiction.”).
5
defective. . . appeal.” Id. at 83; see also Spruill v. Gillis, 372 F.3d 218, 228–29 (3d Cir. 2004)
(utilizing a procedural default analysis to reach the same conclusion) (“Based on our earlier
discussion of the PLRA's legislative history, [ . . . ] Congress seems to have had three interrelated
objectives relevant to our inquiry here: (1) to return control of the inmate grievance process to
prison administrators; (2) to encourage development of an administrative record, and perhaps
settlements, within the inmate grievance process; and (3) to reduce the burden on the federal
courts by erecting barriers to frivolous prisoner lawsuits.”).
The DOC maintains a grievance system which offers a three-phase grievance and appeals
procedure. See DC–ADM 804. First, an inmate may submit a grievance to the inmate counselor
within fifteen (15) days of the events giving rise to the grievance. The inmate is 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. Within ten (10)
working days, the grievance coordinator transmits a decision to the inmate. Next, if the inmate is
dissatisfied with the disposition of the grievance, he may, within ten (10) days of the grievance
coordinator's decision, appeal to the Facility Manager/Superintendent for a second level of
review, who must provide a decision within another ten (10) working days. Id. at 232. Finally,
an inmate may submit an appeal to the Secretary's Office of Inmate Grievances and Appeals
within fifteen (15) working days of the decision of the Facility Manager/Superintendent, and the
Secretary's Office has thirty days in which to issue a decision. Id.
The PLRA itself does not have a “name all defendants” requirement. Byrd v. Shannon,
715 F.3d 117, 127 (3d Cir. 2013) (citing Jones v. Bock, 549 U.S. 199, 217 (2007)). However, the
United States Court of Appeals for the Third Circuit has found that where the inmate fails to
6
specifically name the individual in the grievance or where the grievance is untimely or otherwise
defective, claims against an accused individual are procedurally defaulted. Spruill v. Gillis, 372
F.3d 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.”)
In this case, it is evident from the summary judgment record that Plaintiff has failed to
exhaust his administrative remedies relative to his Eighth Amendment claims.
1.
Grievance Number 370175
In Plaintiff’s first claim, he alleges that on April 29, 2011, he went to pick up his monthly
eye drops prescription refill and Nurse “Jane Doe” gave him the wrong eye drops. Upon inquiry,
Nurse Jane Doe told him that she had ordered and given Plaintiff the wrong eye drops, but was
re-ordering the correct medication. According to Plaintiff, two weeks later, on May 13, 2011,
Nurse Jane Doe told him at that time that she had forgotten to re-order the eye drops. On that
same day, Plaintiff saw PA Michelle Diggs about the delay in receiving his medication. PA
Diggs gave Plaintiff replacement drops that same day until his prescription could be filled.
Plaintiff filed Grievance Number 370175, dated June 22, 2011, in which he complains
that he suffered “headaches, extreme blurred vision, distress and anxiety” as a result of a nurse
giving him the wrong eye drops on April 29, 2011, and he had to wait approximately two (2)
weeks, until May 13, 2011, before receiving the correct prescription. Further, Plaintiff complains
that he “suffered loss of money” because as a result of having blurred vision due to not having
his correct prescription eye drops he made a mistake on his commissary order.
7
The grievance was rejected at all levels of administrative review because the grievance
was submitted more than fifteen (15) days working days after the events upon which it was
based.
The summary judgment record reflects that Grievance Number 370175 was dated June
22, 2011. (ECF No. 37-1, Exh. 1 at 2.) The following day, the grievance was denied by the
Administrative Officer as untimely. (Id. at 5.) Despite this finding, Plaintiff resubmitted his
grievance on June 28, 2011. (Id. a 6.) On June 30, 2011, the grievance was again rejected by the
Administrative Officer as untimely. (Id. at 8.) On August 22, 2011, Plaintiff sought to appeal the
denial of his grievance to the Facility Manager. (Id. at 9-10.) On September 14, 2011, the
Facility Manager also rejected Plaintiff’s appeal after concurring with the judgment of the
Administrative Officer that Plaintiff’s grievance was untimely. (Id. at 11.)
Accordingly, based on the summary judgment record, the Court finds that this claim fails
as a matter of law because it was not properly exhausted in compliance with the PLRA.
2.
Grievance Number 395458
In Plaintiff’s second claim, he alleges that on December 10, 2011, he requested additional
eye drops from Defendant LPN Shriver, and that she rejected his request telling him he needed to
wait ten (10) more days. On December 20, 2011, ten (10) days later, Plaintiff saw an
ophthalmologist, who prescribed “two (2) bottles of the eye drops,” rather than “just one (1)
bottle like he had been receiving.” Complaint, at ¶ 8.
Plaintiff filed a grievance shortly thereafter on January 3, 2012 (Grievance
Number 395458). However, in this grievance Plaintiff complains that he is having
complications as a result of being denied eye drops “two months ago.” (ECF No. 37-1, Exh. 2 at
8
3 (emphasis added)). He does not mention Defendant LPN Shriver or accuse anyone of refusing
him eye drops on December 10, 2011.
The Court of Appeals for the Third Circuit has stated that the PLRA does not require
perfect overlap between the grievance and the complaint; rather the two must simply share a
factual basis. Jackson v. Ivens, 244 F. App’x 508, 513 (3d Cir. 2007) (unpublished). The
allegations made by Plaintiff in Grievance Number 395458 simply do not match or share a
factual basis with the claim Plaintiff has asserted in this lawsuit against Defendant Shriver.
Accordingly, the Court finds that Grievance Number 395458 does not suffice to exhaust
Plaintiff’s administrative remedies and Defendant Shriver is entitled to summary judgment.
Likewise, to the extent that Plaintiff seeks to assert conclusory claims against Defendants
CHCA Berrier and/or Secretary Wetzel for failure to train and supervise nurses, for inadequate
grievance procedures, or for failure to require “adequate” pharmacies, he has never grieved any
of those issues. Defendants Berrier and Wetzel are, therefore, also entitled to summary judgment.
In sum, Plaintiff did not fully exhaust any grievance concerning his claims. As stated by
the Court of Appeals for the Third Circuit, “it is beyond the power of this court-or any other-to
excuse compliance with the exhaustion requirement, whether on the ground of futility,
inadequacy or any other basis.” Nyhuis, 204 F.3d at 73 (quotation omitted).
Because Plaintiff’s claims were not properly exhausted, it is not necessary for the Court
to reach the merits of Plaintiff’s claims. However, in an abundance of caution, and assuming
arguendo, that exhaustion did not bar Plaintiff’s claims, the Court will proceed to address the
merits.
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2.
Eighth Amendment Claims
In the medical context, a constitutional violation under the Eighth Amendment occurs
only when prison officials are deliberately indifferent to serious medical needs. Estelle v.
Gamble, 429 U.S. 97 (1976). The standard is two-pronged, “[i]t requires deliberate indifference
on the part of prison officials and it requires that the prisoner's medical needs be serious.” West v.
Keve, 571 F.2d 158, 161 (3d Cir. 1978). A serious medical need is “one that has been diagnosed
by a physician as requiring treatment or one that is so obvious that a lay person would easily
recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir.1987).
Deliberate indifference to a serious medical need involves the “unnecessary and wanton
infliction of pain.” Estelle, 429 U.S. at 104. Such indifference is manifested by an intentional
refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed
medical treatment, a 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).
Deliberate indifference is generally not found when some level of medical care has been
offered to the inmate. Clark v. Doe, No. 99–5616, 2000 WL 1522855, at *2 (E.D. Pa. Oct.13,
2000) (“courts have consistently rejected Eighth Amendment claims where an inmate has
received some level of medical care”). There is necessarily a distinction between a case in which
the prisoner claims a complete denial of medical treatment and one where the prisoner has
received some medical attention and the dispute is over the adequacy of the treatment. United
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States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n. 2 (3d Cir. 1979). Any attempt to
second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts
since such determinations remain a question of sound professional judgment. Inmates of
Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Goodwin,
551 F.2d 44, 48 (4th Cir. 1977)).
Defendants do not dispute that Plaintiff’s medical needs were “serious.” Instead,
Defendants contend that they are entitled to summary judgment on the basis that Plaintiff has
failed to put forth sufficient evidence to support a jury verdict in his favor on the issue of
deliberate indifference. The Court agrees.
Viewing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff
has failed to demonstrate a genuine issue of material fact on the issue of deliberate indifference.
For example, in his Complaint, Plaintiff acknowledges that Nurse Jane Doe made an initial
mistake by ordering the wrong prescription, and then “forgot” to order the correct prescription.
Complaint, at ¶ 9. The law is clear that negligence or medical malpractice does not establish
deliberate indifference so as to give rise to a civil rights claim. Durmer v. O’Carroll, 991 F.2d
64, 69 (3d Cir. 1993).
Further, the Court finds that the record evidence does not support Plaintiff’s claim that he
was denied eye drop refills in December 2011 for ten days, or that Defendant Shriver or anyone
else acted with deliberate indifference in withholding eye drops from him.
Rather, the medical evidence of record reflects a long history of treatment by
ophthalmologic and other outside specialists for Plaintiff’s eye problems, including glaucoma in
both eyes, and medication issues. The medical records reflect that Plaintiff is blind in his right
11
eye and that Plaintiff has had a number of surgical procedures on his left eye. Plaintiff has been
taking various prescription eye drops, including Timolol and Xalatan since at least 2008. The
medical record of evidence also tellingly describes that Plaintiff would not always follow the
refill schedule with his eye drops. At times, he would seek refills several days early; at other
times, he was late and did not ask for refills under several days after the refill was available. See
ECF. No. 37, Exh. 3, ¶ 5.
The medical evidence of record also contradicts Plaintiff’s claim that he was denied eye
drops refills in December 2011 for ten (10) days. The Medication Administration Record
(“MAR”) for November 2011, indicates that Plaintiff picked up his monthly prescription for
Timolol on November 5, 2011, which means that his next pick up date would be December 5,
2011. The November MAR also reflects that he picked up his monthly prescription for Xalatan
on November 8, 2011, which means that the next pick up date would be December 8, 2011. The
DOC cannot locate the December MAR; however, the January 2012, MAR reflects that Plaintiff
picked up his January refill for Timolol on January 2, 2012, and his January refill for Xalatan on
January 8, 2012. According to the Declaration of Susan Berrier, based on the dates Plaintiff
picked up his January refills, it appears that Plaintiff would have picked up his December refill
for Timolol on December 3, 2011, and his Xalatan refill on December 9, 2011. Had he requested
a refill only a week after he picked up his December refills, he would have been instructed to
sign up for sick call as nurses cannot change a prescription or dispense additional drops - that is a
decision only the pharmacy can make or that a doctor can order. See ECF No. 3701, Exh. 8, ¶ 6.
Plaintiff’s examination with an ophthalmologist on December 20, 2011, was a routine,
pre-scheduled appointment because Plaintiff was being treated for glaucoma. Id. at ¶ 12.
12
Further, the medical record evidence is void of any evidence that Plaintiff presented to
medical staff with an emergency condition either in May or December 2011. Rather, on the two
occasions when Plaintiff advised the medical staff that he had a problem with his eye drops (May
13 and December 21), the problem was immediately addressed.
Plaintiff’s allegations about the unavailability of medications and pharmacy services is
also belied by the record. The summary judgment record also reflects that the DOC has a
contract with Diamond Pharmacy which delivers prescriptions to SCI-Fayette six (6) days a
week. (ECF No.37, Exh. 3, ¶ 14.) When ordered by Noon, prescriptions are delivered by the
following day. Id. Diamond Pharmacy also contracts with a local “back up” pharmacy for
emergency deliveries (e.g., if an inmate returns from surgery and requires prescription meds on
an immediate basis.) Id.
Finally, Plaintiff’s claims of deliberate indifference against Defendants Berrier and
Wetzel must fail as the summary judgment record is void of any evidence of personal
involvement on their part. When a supervisory official is sued in a civil rights action, liability
can only be imposed if that official played an “affirmative part” in the complained-of
misconduct. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Although a supervisor
cannot encourage constitutional violations, a supervisor has “no affirmative constitutional duty to
train, supervise or discipline so as to prevent such conduct.” Id. (quoting Brown v. Grabowski,
922 F.2d 1097, 1120 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991)). The supervisor must be
personally involved in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). Participation in the after-the-fact review of a grievance is not enough to establish
personal involvement. See, e.g., Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006)
13
(allegations that prison officials and administrators responded inappropriately to inmate's laterfiled grievances do not establish the involvement of those officials and administrators in the
underlying deprivation). See also Cole v. Sobina, Civ. No. 04–99J, 2007 WL 4460617 (W.D. Pa.
2007); cf. Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997), aff'd, 142 F.3d 430 (3d Cir.
1998) (failure of prison officials to respond to inmate's grievance does not state a constitutional
claim).
Plaintiff has not alleged that Defendants Berrier or Wetzel were, in any way, personally
involved in the incidents of which he complains. Plaintiff’s claims are classic respondeat
superior and, therefore, do not state a claim for relief under Section 1983.
By presenting the above-cited evidence to the Court, Defendants have satisfied their
initial burden of proving the absence of evidence supporting Plaintiff’s claim. They have put
forward evidence to show that while Plaintiff suffers from a serious medical need, they were in
no way deliberately indifferent to Plaintiff’s medical needs.
The burden now shifts to Plaintiff to come forward with specific facts showing a genuine
issue for trial. Fed. R. Civ. P. 56(e). He has not met that burden. The Court finds that the record
is insufficient to establish deliberate indifference and that Plaintiff has not identified any specific
facts, supported by evidence, which demonstrate a genuine issue of material fact for trial.
In sum, the Court finds that Defendants have satisfied their burden of showing that there
is no genuine issue of material fact as to whether they were deliberately indifferent to Plaintiff’s
serious medical needs on April 29, 2011 and December 10, 2011. Accordingly, summary
judgment should be entered in favor of Defendants on Plaintiff’s Eighth Amendment claims.3
3
Plaintiff makes a reference to Equal Protection arguing that he was denied adequate
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2.
Due Process Claim
Plaintiff also appears to be asserting a due process claim against Defendants Berrier
and/or Wetzel in connection with the DOC grievance procedure because his request for a
“personal interview” was not granted. Complaint at ¶ 24.
It is well-settled that prisoners have no constitutional right to a grievance process, and a
prison official's denial of an inmate's grievance does not constitute a due process violation. See
Burnside v. Moser, 138 Fed. Appx. 414, 415 (3d Cir. 2005) (holding that a “state grievance
procedure does not confer any substantive constitutional rights upon prison inmates”); Jackson v.
Beard, 2008 WL 879923 at * 7 (E.D. Pa. Mar.31, 2008) (“inmate grievance procedures in
themselves do not confer a liberty interest protected by the Due Process Clause”); Thibodeau v.
Watts, 2006 WL 89213 at * 5 (M.D. Pa. Jan.6, 2006) (“Because a prison grievance procedure
does not confer any substantive constitutional right upon prison inmates, prison officials' failure
to comply with the grievance procedure is not actionable”). Thus, Plaintiff’s claim that his due
process rights were violated by Defendants’ denial of his request for a personal interview in
connection with his grievance will be dismissed.
medical care “because of him being a prisoner and/or because of his race (i.e., he is black). . . .”
Complaint, at ¶ 13. Given his lack of specificity in asserting this point, and because the summary
judgment record is absolutely void of any evidence that Plaintiff was ever denied or delayed
access to medical treatment because of his custody status or race, this claim is summarily denied.
Plaintiff also alleges in passing that “Defendants Nurse Jane Doe and Nurse [Shriver]”
conspired with prison officials to deny Plaintiff’s grievances. Complaint, at ¶ 20. These bald
and conclusory factual averments about an alleged conspiracy are insufficient to state a claim on
which relief can be granted.
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3.
Nurse Jane Doe
Service has yet to be accomplished on Defendant Nurse Jane; thus, Plaintiff’s claims
against her still remain.4 Nonetheless, the Court will sua sponte grant her summary judgment
for the following reasons.
The United States Supreme Court recognizes “that district courts . . . possess the power to
enter summary judgment sua sponte, so long as the losing party was on notice that [he] had to
come forward with all of [his] evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986);
see also Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 222 (3d Cir. 2004); Chambers
Dev. Co. v. Passaic Cnty. Utils. Auth., 62 F.3d 582, 584 n.5 (3d Cir. 1995). Before a district
court grants summary judgment to a non-moving party it must first place the adversarial party on
notice that the court is considering such sua sponte action. See Gibson, 355 F.3d at 222. Our
appellate court has explained that “notice” means “that the targeted party ‘had reason to believe
the court might reach the issue and receive a fair opportunity to put its best foot forward.’” Id. at
223 (quoting Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir. 1999) and Jardines
Bacata, Ltd. v. Diaq-Marquez, 878 F.2d 1555, 1561 (1st Cir. 1989)) (quotations omitted).
Additionally,
[w]here it appears clearly upon the record that all of the evidentiary materials that
a party might submit in response to a motion for summary judgment are before the
court, a sua sponte grant of summary judgment against that party may be
appropriate if those materials show no material dispute of fact exists and that the
other party is entitled to judgment as a matter of law.
Id. at 224 (quoting Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir. 1996)). Despite the general
notice requirement to the nonmoving party, our court of appeals has concluded that, notice to the
16
adversarial party is not required in three circumstances: (1) when there exists a fully developed
record; (2) when the adversarial party would not be prejudiced by a sua sponte grant of summary
judgment; and (3) when the decision is based on a purely legal issue. Id.
Although a court’s sua sponte grant of summary judgment must be undertaken with the
utmost caution given the serious consequences to the adversarial party, in this instance such
action is appropriate. Plaintiff’s Eighth Amendment deliberate indifference claim against
Defendant Jane Doe is identical and arises from the same set of factual allegations as his claims
against the moving Defendants, to which he responded extensively in his opposition briefs.
Specifically, he maintains that Defendant Jane Doe acted with deliberate indifference to his
medical needs when she mistakenly gave Plaintiff the wrong prescription eye drops and then
forgot to reorder the correct prescription. Plaintiff was on fair notice that the Court would
consider summary judgment in favor of Defendant Jane Doe on these claims because they are
coexistent to the claims against the moving Defendants. In fact, even though she has not been
served, Plaintiff still addressed his claims against Defendant Jane Doe in his response in
opposition to the moving Defendants’ Motion for Summary Judgment. See ECF No. 46 at 2.
Therefore, notice and an opportunity to be heard have already been provided. Additionally, and
more importantly, the summary judgment record before the Court is fully developed. All
evidence Plaintiff could potentially proffer in support of his deliberate indifference claim is in the
record presently before the Court.
As with the moving Defendants, the record simply does not reflect that Defendant Jane
Doe was deliberately indifferent to Plaintiff’s medical needs. At best, Plaintiff might have a
4
In his response in opposition, Plaintiff identifies Nurse Jane Doe as Danielle Ternitsky-Gordon.
17
claim for negligence - although that is far from clear - and that claim is not actionable under the
Eighth Amendment.
4.
Negligence Claims
Jurisdiction over supplemental claims is governed by 28 U.S.C. § 1367(a), which
provides that “the district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.” However, the
Court has discretion to decline to exercise supplemental jurisdiction, if it “has dismissed all
claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3). The Court of Appeals
has stated that “the district court must decline the . . . state claims unless considerations of
judicial economy, convenience and fairness to the parties provide an affirmative justification for
doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin
v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).
Because the Court has granted summary judgment as to all Plaintiff’s federal claims, and
given that there are no extraordinary circumstances which would warrant the exercise of
supplemental jurisdiction over the pendent state law claims, the Court will decline to exercise
supplemental jurisdiction. Plaintiff’s claims for negligence will be dismissed without prejudice
to allow Plaintiff an opportunity to raise these claims in state court. Angst v. Mack Trucks, Inc.,
969 F.2d 1530 (3d Cir. 1992) (once all federal claims have been dropped from the case, the case
should either be dismissed or transferred to the appropriate Pennsylvania Court of Common
Pleas pursuant to 42 Pa. Cons. Stat. Ann. § 5103(b)).
18
ORDER OF COURT
AND NOW, this 3rd day of October, 2013, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, AND DECREED that the
Motion for Summary Judgment filed by Defendants Secretary of PA Dept. of Corrections,
Corrections Health Care Administrator, and Nurse Katrina Shriver (ECF No. 34) is GRANTED.
It is further ORDERED that Summary Judgment is GRANTED in favor of Defendant
Nurse Jane Doe, sua sponte.
The Clerk of Court shall docket this case closed.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc:
DARNELL WILKINS
HM0887
Po Box 9999
LaBelle, PA 15450
Mary Lynch Friedline
Office of Attorney General
Email: mfriedline@attorneygeneral.gov
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