STORY v. WETZEL et al

Filing 115

OPINION AND ORDER granting 72 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 87 Motion to Dismiss for Failure to State a Claim as set forth more fully in the Opinion itself. Signed by Chief Magistrate Judge Maureen P. Kelly on 5/24/17. [A copy of this Opinion and Order was mailed to Plaintiff on this date at his address of record]. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STANTON STORY,
Plaintiff,
v.
JOHN E. WETZEL, DORINA VARNER,
KERRI MOORE, ROBIN M. LEWIS, L.S.
KERNS, BARR, ROBERT GILMORE,
TRACEY SHAWLEY, IRMA VIHLIDAL,
DR. BYUNGHAK JIN, CAPTAIN
ARMSTRONG, CAPTAIN MITCHELL, LT.
KELLY, LT. SILBAUGH, LT. HOWELLS,
LT. A.J. MORRIS, LT. GREGO, C.O.
JOHNSON, C.O. BARNHART, C.O.
SCHIRRA, SARGENT PLUMLEY,
SARGENT TROUT, and NURSE JANE
DOE,
Defendants.

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Civil Action No. 15-1241
Chief Magistrate Judge Maureen P. Kelly

Re: ECF Nos. 72 and 87

OPINION AND ORDER
KELLY, Chief Magistrate Judge
Plaintiff Stanton Story (“Plaintiff”) is an inmate in the custody of the Pennsylvania
Department of Corrections (“DOC”), and is currently incarcerated at the State Correctional
Institution at Greene (“SCI Greene”). Plaintiff initiated this civil action against various DOC
officials and employees at SCI Greene (“the DOC Defendants”), alleging that they violated his
rights provided by the United States Constitution by shackling him to the wall of a “dry cell” for
twenty-six hours and by confiscating his legal and personal property. Plaintiff has also has
named Byunghak Jin, MD (“Dr. Jin”) as a defendant contending that Dr. Jin violated his
constitutional rights when he performed an anal probe on Plaintiff and by failing to treat him for
a skin condition and facial and nose pain that Plaintiff was experiencing. ECF No. 12.

Following the adjudication of Motions to Dismiss filed by the DOC Defendants and Dr.
Jin, ECF Nos. 49, 57, Defendants DOC officials John E. Wetzel, Dorina Varner, Kerri Moore,
Robin M. Lewis, L.S. Kerns Barr, Robert Gilmore, Tracey Shawley, Irma Vihlidal, Captain
Armstrong, Captain Mitchell, Lt. Silbaugh, Lt. Howells, Lt. A.J. Morris, and Lt. Grego were
dismissed from the action. ECF No. 70. In addition, all of Plaintiff’s claims except for his
Eighth Amendment claim brought at Count II against Defendants Lt. Kelly, C.O. Johnson-I, C.O.
Barnhart, C.O. Schirra, and Sargent Plumley stemming from being shackled to the wall of a dry
cell and his state law claim for conversion brought at Count VII against Defendants Sargent
Trout and C.O. Johnson-II were dismissed. Id.1 Plaintiff, however, was granted leave to file an
Amended Complaint with respect to two claims: his Eighth Amendment deliberate indifference
claim brought against Dr. Jin at Count IV of the Complaint and his First Amendment access to
the court claims brought at Count VI against Defendants Sargent Trout and C.O. Barnhart.
Plaintiff filed an Amended Complaint on December 9, 2016. ECF No. 71.
The remaining DOC Defendants and Dr. Jin have now filed renewed Motions to Dismiss
arguing that Plaintiff has failed to cure the defects cited in the Court’s Opinion relative to Counts
IV and VI. ECF Nos. 72, 87. Plaintiff has filed “Objections” to both Motions, ECF Nos. 100
and 109, and Dr. Jin has filed a Reply to Plaintiff’s Objections. ECF No. 105. As such both
Motions are ripe for review.

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At the conclusion of its earlier Opinion, the Court mistakenly noted that the only claims remaining for adjudication
absent the filing of an Amended Complaint are Plaintiff’s Eighth Amendment cruel and unusual punishment claims
brought at Count IV against Defendants Kelly, Johnson-I, Barnhart and Schirra relative to Plaintiff being handcuffed
to a wall for 26 hours and his state law claim for conversion brought at Count VII against Defendants Plumley,
Trout and Johnson-II. In fact, Plaintiff has brought his Eighth Amendment cruel and unusual punishment claims at
Count II of the Complaint against Defendants Kelly, Johnson I, Barnhart, Schirra and Plumley and his state law
claims for conversion brought at Count VII are against Defendants Trout and Johnson II, and not Plumley.

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I.

STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material 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
accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set
forth in the complaint. See Cal. Pub. Empl. Ret. Sys. 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. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Id., citing Papasan v. Allain, 478 U.S. 265, 286
(1986). Indeed, the United States Supreme Court has 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, or where the factual content does not allow the court "to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cty. 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”).
In addition, 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). In a civil rights action, the court must liberally construe the pro se litigant's

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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). 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. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
II.

DISCUSSION
A.

The DOC Defendants’ Motion to Dismiss First Amendment Claim (Count
VI)

Plaintiff alleges at Count VI of the original Complaint that his right of access to the
courts provided by the First Amendment to the Constitution was violated when his legal
materials were confiscated by DOC Defendants Trout and Barnhart. ECF No. 12 ¶¶ 66-69, 106.
An incarcerated prisoner, like any other citizen, has a constitutionally protected right of
access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The United States Supreme
Court has established that in order to have standing to bring a claim for denial of access to the
courts, an inmate must establish that he suffered an “actual injury” as a result of the alleged
denial. Id. at 349. See Dunbar v. Barone, 487 F. App’x 721, 724 (3d Cir. 2012). “Actual injury
occurs when a prisoner demonstrates that a ‘nonfrivolous’ and ‘arguable’ claim was lost because
of the denial of access to the courts.” Fortune v. Hamberger, 379 F. App’x 116, 120 (3d Cir.
2010), quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002). See Dunbar v. Barone, 487 F.
App’x at 724; Atwell v. Lavan, 557 F. Supp. 2d 532, 558-59 (M.D. Pa. 2008), aff’d, 366 F.
App’x 393 (3d Cir. 2010) (proof of actual injury caused by virtue of absence of records is
required). Thus, in order to state a claim for denial of access, the allegedly lost suit must have
been non-frivolous since losing the ability to litigate a frivolous suit simply causes no injury.
Christopher v. Harbury, 536 U.S. at 415. It therefore follows that “the underlying cause of
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action . . . is an element that must be described in the complaint, just as much as the allegations
must describe the official acts frustrating the claim.” Id. See id. at 416 (“[h]ence the need for
care in requiring that the predicate claim be described well enough to apply the ‘nonfrivolous’
test and to show that the ‘arguable’ nature of the underlying claim is more than hope”).
In this case, the Court previously dismissed Plaintiff’s First Amendment claim finding
that Plaintiff’s general allegations that he informed Defendant Trout that he had “open cases in
Federal and State Court,” and that the confiscation of his legal documents caused him to miss
important deadlines which, in turn, caused “litigations in both state and federal court to be
denied,” was insufficient to describe the underlying causes of action or demonstrate that Plaintiff
suffered an actual injury. ECF No. 70 at 15. The Court also found that the documents that
Plaintiff attached to his original Complaint to support his claim did not demonstrate that any
filing deadlines were missed. Id. at 15-16.
In the Amended Complaint, Plaintiff largely reiterates the same factual allegations set
forth in his original Complaint and cites to the same documents that he attached thereto, which
this Court already determined were insufficient to support a First Amendment access to the
courts claim.2 ECF No. 71 ¶¶ 33-48. Although Plaintiff specifically alleges in the Amended
Complaint, unlike in the original Complaint, that his Petition for Allowance of Appeal to the
Pennsylvania Supreme Court was denied because the legal documents putting forth his argument
were amongst the documents confiscated by Trout and Barnhart, Plaintiff does not set forth any
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Specifically, the Court found that the orders from the Supreme Court and Superior Court of Pennsylvania show
only that Plaintiff had an appeal from the denial of a PCRA petition pending in the Superior Court of Pennsylvania
in March and April of 2014, and that his subsequent Petition for Allowance of Appeal to the Supreme Court of
Pennsylvania was denied in January of 2015. ECF No. 70 at 15. With respect to the order from the Third Circuit
Court of Appeals dated July 1, 2015, in which Plaintiff’s application for a certificate of appealability in a habeas
proceeding was denied, the record shows that Plaintiff’s Motion to Amend/Correct Petition for Writ of Habeas
Corpus, which is the subject of the Order at issue, was denied by the District Court on September 30, 2014, and
Plaintiff’s Notice of appeal to the Third Circuit Court of Appeals was filed on October 27, 2014, and thus, contrary
to Plaintiff’s suggestion, the appeal and/or request for a certificate of appealability was timely filed.

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facts regarding the nature of the appeal, the underlying issues or any facts to suggest his case had
any merit. Plaintiff therefore has failed to plead facts that would suggest he suffered an actual
injury as the result of his documents being confiscated and thus has failed to cure the defects in
his original Complaint. As such, Plaintiff has failed to state a First Amendment access to the
courts claim against Defendants Trout and Barnhart and Count VI of the Amended Complaint is
properly dismissed.
B.

Dr. Jin’s Motion to Dismiss Eighth Amendment Claim (Count IV)

At Count IV of the original Complaint Plaintiff raises a claim against Dr. Jin for
deliberate indifference to Plaintiff’s medical needs in violation of his rights provided by the
Eighth Amendment. Specifically, Plaintiff alleged that in November of 2014, Dr. Jin charged
him for a sick call visit but refused to prescribe anything to Plaintiff for his skin condition, and
that in December of 2014, Dr. Jin charged him a fee but refused to administer medical attention
for pain that Plaintiff was experiencing around the right side of his nose and nostril area. ECF
No. 12 ¶¶ 101, 59-60. See ECF No. 12-1 at 19-21.
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 218, 235 (3d
Cir. 2004). 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

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doctor's attention.” Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 347 (3d Cir. 1987).
A serious medical need may also be found to exist where the denial or delay of treatment results
in “unnecessary and wanton infliction of pain.” Id. See Latona v. Pollack, No. 07-1 E, 2010 WL
358526, at *7 (W.D. Pa. Jan. 25, 2010), aff'd sub nom. Latona v. Prison Health Servs. Inc., 397
F. App'x 807 (3d Cir. 2010).
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). “[T]he official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Wilson v. Burks, 423 F. App’x 169, 173 (3d
Cir. 2011), quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994).
With respect to Plaintiff’s claim that Dr. Jin refused to treat a skin condition in November
of 2014, Plaintiff has not added any new averments in the Amended Complaint to support his
claim and therefore has failed to cure the deficiencies citied by the Court in its earlier Opinion.
ECF No. 70 at 25-26. That portion of Count IV will therefore be dismissed.
With respect to Plaintiff’s claim against Dr. Jin for failing to treat Plaintiff’s facial pain in
December of 2014, the Court previously found that Plaintiff had failed to state a claim because it
was not clear from the allegations in the Complaint that suffering from facial pain could be
considered a serious medical need and because Plaintiff had not alleged any facts concerning the
onset of the pain, the extent of the pain or the duration of the pain. ECF No. 70 at 25-26. Nor
had Plaintiff alleged any facts from which the inference could be made that a substantial risk of

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harm existed, that Dr. Jin was aware of those facts, that Dr. Jin actually drew the inference, or
that Plaintiff suffered any harm as the result of Dr. Jin’s alleged inaction. Id.
In the Amended Complaint, however, Plaintiff has alleged that the facial pain he was
experiencing was the result of an infectious abscess which ultimately required Plaintiff to
undergo root canal surgery; that Dr. Jin consistently denied and refused to give Plaintiff medical
assistance when Plaintiff was clearly suffering and in pain; that once Plaintiff was released from
the RHU and was seen by another doctor, he was referred to the dentist because of the pain and
swelling in Plaintiff’s face and nose; that Plaintiff was in excruciating pain and was forced to
suffer the pain until he was released from the RHU months later; and that Dr. Jin’s deliberate
indifference is evidenced by Plaintiff having to wait until he was released from the RHU and
seen by another doctor to be treated for the abscess. ECF No. 71 ¶¶ 15, 25, 26, 28, 30.
The Court finds that these assertions, viewed in the light most favorable to Plaintiff, are
sufficient to state a plausible claim for deliberate indifference to a serious medical need as it can
properly be inferred from these allegations that Dr. Jin was aware of, and declined to treat,
Plaintiff’s excruciating facial pain which resulted in Plaintiff continuing to suffer severe pain for
“months.” See Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d at 346 (“[w]here
prison authorities deny reasonable requests for medical treatment, however, and such denial
exposes the inmate to undue suffering or the threat of tangible residual injury . . . deliberate
indifference is manifest”) (internal quotations and citations omitted); Scantling v. Vaughn, No.
03-0067, 2004 WL 306126, at *7 (E.D. Pa. Feb. 12, 2004) (”[a] prison official may be found to
be deliberately indifferent when . . . reasonable requests for medical treatment are denied and the
denial exposes the inmate to undue suffering”); Green v. Mazzone, No. 99-3190, 2002 WL
1636709, at *4 (D.N.J. July 19, 2002), quoting Estelle v. Gamble, 429 U.S. at 110 (“the

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Supreme Court has found deliberate indifference when prison officials provided consistently
ineffective treatment ‘in the face of resultant pain’”). As such, Plaintiff’s claim brought at Count
IV of the Complaint relative to Dr. Jin’s alleged failure to treat Plaintiff’s facial pain remains
viable.
IV.

CONCLUSION
For the foregoing reasons, the DOC’s Motion to Dismiss is properly granted, and Dr.

Jin’s Motion to Dismiss is properly granted with respect to his alleged failure to treat Plaintiff’s
skin condition but will be denied with respect to Dr. Jin’s alleged failure to treat Plaintiff’s facial
pain. Accordingly the following Order is entered:
ORDER
AND NOW, this 24th day of May, 2017, upon consideration of the Motion to Dismiss
submitted on behalf of the DOC Defendants, ECF No. 72, and Plaintiff’s response thereto, IT IS
HEREBY ORDERED that the Motion is GRANTED and Count IV of the Complaint is
dismissed. IT IS FURTHER ORDERED that, upon consideration of the Motion to Dismiss
submitted on behalf of Dr. Jin, ECF No. 87, Plaintiff’s response thereto and Dr. Jin’s reply brief,
Dr. Jin’s Motion to Dismiss is GRANTED IN PART AND DENIED IN PART as follows: the
Motion is granted with respect to Plaintiff’s Eighth Amendment claim brought at Count IV of the

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Complaint relative to Dr. Jin’s failure to treat Plaintiff’s skin condition and denied with respect
to Plaintiff’s claim that Dr. Jin failed to provide him with medical care for his facial pain.3
BY THE COURT:

/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
cc:

Stanton Story
AP-3330
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
All counsel of record via CM/ECF

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Accordingly, the only claims remaining for adjudication are Plaintiff’s Eighth Amendment cruel and unusual
punishment claims brought at Count II of the Complaint against Defendants Kelly, Johnson-I, Barnhart, Schirra and
Plumley relative to Plaintiff being handcuffed to a wall for twenty-six hours; Plaintiff’s Eighth Amendment
deliberate indifference claim brought at Count IV against Dr. Jin relative to his alleged failure to treat Plaintiff’s
facial pain; and Plaintiff’s state law claims for conversion brought at Count VII against Defendants Trout and
Johnson-II.

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