CAMACHO v. BEERS et al

Filing 46

Opinion and Order granting in part and denying in part 17 and 38 Partial Motions to Dismiss. Plaintiff may file Amended Complaint by December 20, 2017. Signed by Chief Magistrate Judge Maureen P. Kelly on 11/15/17. A copy of this Opinion and Order will be mailed this day, 11/15/17, to Plaintiff at his address of record. (ard)

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

ROBERTO CAMACHO, JR.,

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Plaintiff,
v.

C.O. BEERS, C.O. L. JOHNSON, C.O.
BREWER, C.O. TIMBERMAN, C.O.
GANNON, C.O. CAVANAUGH,
SERGEANT F.J. JOHNSON, CAROL
SCIRE, STEPHANIE WOOD, MARK
CAPOZZA, DEPARTMENT OF
CORRECTIONS, and LIEUTENANT
R. WASHINGTON,

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Civil Action No. 16-1644
Chief Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 17 and 38

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Defendants.

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MEMORANDUM OPINION
KELLY, Chief Magistrate Judge
I.

INTRODUCTION

Plaintiff Roberto Camacho, Jr. ("Plaintiff') initiated this action by the filing of a civil
complaint on November 8, 2016. ECF No. 4. In the Complaint, Plaintiff alleges violations of
the Eighth Amendment (Counts I - III), violation of the First Amendment (Count IV), violations
of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and Rehabilitation
Act, 29 U.S.C. §§ 701 et seq. (Counts V and VI) and state law claims of assault and battery
(Count VII) as well as intentional infliction of emotional distress (Count VIII).
Presently before the Court are the Partial Motions to Dismiss filed on behalf of C.O.
Beers, C.O. L. Johnson, C.O. Brewer, C.O. Timberman, C.O. Gannon, C.O. Cavanaugh,
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Sergeant F .J. Johnson, Carol Scire, Stephanie Wood, Mark Capozza, Lieutenant R. Washington,
and the Department of Corrections (collectively, "Defendants"), pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

ECF Nos. 17 and 38.

For the reasons that follow, Defendants'

Motions will be GRANTED in part and DENIED in part.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is presently an inmate at SCI-Huntingdon, m Huntingdon, Pennsylvania.
Sometime prior to his incarceration in 2009, Plaintiff was involved in a traffic accident in which
his left elbow was crushed. ECF No. 4

iii!

18, 48. As a consequence, he allegedly sustained

nerve damage, and lost strength and fine motor control in his dominant left hand.

ii

Id.

18.

Writing subsequently became difficult, and Plaintiff was unable to complete writing more than
one or two sentences at a time. Id.

ii 19-20.

The Pennsylvania Department of Corrections ("DOC") arranged for Plaintiff to undergo
orthopedic surgery in an effort to treat these limitations. Id.
performed in October of 2012.

Id.

ii 22.

The surgical procedure was

On or about October 21, 2012, Plaintiff was allegedly

assaulted by a kitchen supervisor at SCI-Huntingdon when Plaintiffs arm was struck with a pot
lid. Id. As a result, Plaintiff sustained injuries to the surgical site. Id.

iii! 22,

48. Additional

surgery was purportedly required, but Plaintiff was forced to retain the services of an attorney
because the DOC did not immediately arrange for the same. Id.

ii 23.

At some point thereafter,

Plaintiff also filed a grievance pertaining to his assault by the kitchen supervisor. Id.

ii 66.

The

DOC eventually approved Plaintiff for a second operation on July 11, 2014. Id. ii 24.
In preparation for the second surgery, Plaintiff was transported from SCI-Huntingdon to
SCI-Pittsburgh in June of 2014.

Id.

scheduled, on an out-patient basis. Id.

The procedure was performed on July 11, 2014, as

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24, 26. Plaintiff was returned to SCI-Pittsburgh the

same day, and was placed in the medical unit of the prison for several hours. Id.

ii 28.

While

under observation in the medical unit, Plaintiff asked if he could have something to eat, as he had

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begun fasting in advance of his surgery at or around 5:00 p.m. on July 10, 2014.

Id.~~

26, 28.

C.O. L. Johnson refused the request. Id.
On the same evening as the second surgery and following release from the medical unit,
C.O. Beers accompanied Plaintiff from the medical unit to the restrictive housing unit ("RHU").
Id.

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31. While en route, C.O. Beers allegedly "slammed" Plaintiffs left arm into the doorway

of an elevator. Id. Fallowing his operation, Plaintiffs left arm had been placed into a cast; the
cast cracked as a result of the conduct of C.O. Beers. Id. When confronted by Plaintiff, C.O.
Beers "laughed and said, 'Oops."' Id.

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32. Plaintiff requested to be taken back to the medical

unit at that time, but C.O. Beers declined to do so. Id.

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33. C.O. Beers further declined to

summon medical staff once Plaintiff was placed in his RHU cell. Id. Plaintiff claims that, by
that point, blood was seeping through the crack in the cast.

Id.~

34.

During the next two days, on July 12 and 13, 2014, Plaintiff repeatedly asked C.O.
Brewer, C.O. Timberman, C.O. Gannon, and Lieutenant R. Washington to allow him to see the
prison physician or other staff from the medical unit. Id.

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35. All requests were refused. Id.

Plaintiff was unable to make written requests due to his inability to write with his left hand. Id.
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36. As such, all of his requests for medical attention were made verbally. Id.
Over the course of the first week following the July 11, 2014, surgery, Plaintiff

repeatedly asked C.O. Beers, C.O. L. Johnson, C.O. Brewer, C.O. Timberman, C.O. Gannon,
C.O. Cavanaugh, and Sergeant F.J. Johnson to allow him to take a shower in order to keep his
incision site clean, per hospital orders. Id.

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41. Plaintiffs requests were denied. Id. As such,

Plaintiff allegedly attempted to clean his arm using water from the sink in his cell. Id.

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42.

When he also attempted to bathe using water from the sink, water would flow into his surgical
dressings and cast, causing the dressing and cast to deteriorate.

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Id.~~

42-44. The dressings and

cast began to smell, and caused Plaintiffs sutures to become irritated. Id.

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43. Ultimately,

Plaintiff removed the cast himself. Id. ~ 44.
In the ensuing weeks - through approximately August 5, 2014 - Plaintiff continued to
make primarily verbal requests to see the prison physician or medical staff. Id.

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45-47. In

addition to denial of same, C.O. Beers, C.O. L. Johnson, C.O. Brewer, C.O. Timberman, C.O.
Gannon, C.O. Cavanaugh, Sergeant F.J. Johnson, and Lieutenant R. Washington refused to
provide Plaintiff with prescribed pain medication, ice for swelling, and cushioning or padding to
elevate his arm.

Id.~~

39-40. When permitted to leave his cell, these Defendants would cuff his

wrists in such a way as to cause unnecessary pain and further damage to his cast.

Id.~~

37-38.

On July 24, 2014, Plaintiff - through counsel - initiated a claim in the United States
District Court for the Middle District of Pennsylvania regarding the kitchen assault at SCIHuntingdon, and subsequent denials of prompt medical care.

Id.

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It is believed that

25.

Defendants' knowledge of that claim, as well as earlier grievances filed by Plaintiff against SCIHuntingdon staff, prompted his alleged mistreatment at SCI-Pittsburgh. Id.

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29-30.

On November 8, 2016, Plaintiff filed the instant Complaint. ECF No. 4. On March 3,
2017, Defendants C.O. Beers, C.O. L. Johnson, C.O. Brewer, C.O. Timberman, C.O. Gannon,
C.O. Cavanaugh, Sergeant F.J. Johnson, Carol Scire, Stephanie Wood, Mark Capozza, and the
Department of Corrections filed the initial Partial Motion to Dismiss and Brief in Support
seeking dismissal of Counts II, III, V, VI, VII, and VIII of the Complaint for failure to state
claims upon which relief may be granted. ECF Nos. 17-18. Plaintiffs Briefin Opposition was
filed on April 25, 2017. ECF No. 29. Following the identification of Lieutenant John Doe as
Lieutenant R. Washington, the caption of the instant action was amended to substitute Lieutenant
Washington for Lieutenant Doe. ECF No. 27. On July 26, 2017, Defendant Lieutenant R.

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Washington filed a Motion for Partial Dismissal and Brief in Support, seeking dismissal of
Counts II and VIII. ECF Nos. 38-39. Plaintiff filed a Briefin Opposition on August 11, 2017.
ECF No. 42. The matter is fully briefed, and ripe for disposition.

Ill.

ST AND ARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a short and
plain statement of a claim, and show that the pleader is entitled to relief.

Dismissal of a

complaint or portion of a complaint is justified under Federal Rule of Civil Procedure 12(b)(6)
when a claimant fails to sufficiently state a claim upon which relief can be granted. Avoiding
dismissal under Rule 12(b)(6) requires a pleading party's complaint to provide "enough factual
matter" to allow the case to move beyond the pleading stage of litigation; the pleader must
"'nudge his or her claims across the line from conceivable to plausible."' Phillips v. Cnty. of
Allegheny, 515 F .3d 224, 234-35 (3d Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550
U.S. 544, 556, 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a
two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). First,
factual and legal elements of a claim must be distinguished. Id. Second, it must be determined
whether the facts as alleged support a "plausible claim for relief." Id. In making the latter
determination, the court must be mindful that the matter pleaded need not include "detailed
factual allegations," Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555), and the court
must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most
favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d
651, 653 (3d Cir. 2003)).

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A well-pleaded complaint, even when "it strikes a savvy judge that actual proof of... facts
is improbable," will not be dismissed as long as the pleader demonstrates that his or her claim is
plausible. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555-56). A pleading party
need only "put forth allegations that 'raise a reasonable expectation that discovery will reveal
evidence of the necessary element[s]."' Fowler, 578 F.3d at 213 (quoting Graff v. Subbiah
Cardiology Assoc., Ltd., 2008 WL 2312671 (W.D. Pa. June 4, 2008)). Moreover, pleadings filed
by pro se litigants are to be liberally construed, and courts should be flexible when applying
procedural rules. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (citing
Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011)).
Nevertheless, the facts pied do need to raise the expectation of relief above a purely
speculative level, and must include more than "labels and conclusions, and a formulaic recitation
of the elements of a cause of action." Phillips, 515 F.3d at 231-32 (quoting Twombly, 550 U.S.
at 554-56). Rule 8(a)(2) "requires a 'showing' rather than a blanket assertion of an entitlement
to relief." Id. at 232. "[T]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice," Fowler, 578 F.3d at 211 (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)), and even pro se litigants are required to plead facts sufficient to
supports their claims, and cannot flout procedural rules. Mala, 704 F.3d at 245.
IV.

DISCUSSION

A. Section 1983 Claims

42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law ....
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Congress conceived Section 1983 as a safeguard against deprivations of individual rights
conferred by federal statutes and the United States Constitution. City of Rancho Palos Verdes,
Cal. v. Abrams, 544 U.S. 113, 119 (2005) (citing Maine v. Thiboutot, 448 U.S. 1, 4 (1980)). In
order to properly state a valid Section 1983 claim, a plaintiff must demonstrate that an individual
acting under color of law violated enumerated constitutional or statutory rights. Berg v. Cnty. of
Allegheny, 219 F .3d 261, 268 (3d Cir. 2000). When evaluating such a claim, the Court must
'"identify the exact contours of the underlying right said to have been violated' and determine
'whether the plaintiff has alleged a deprivation of a constitutional right at all."' Chavarriaga v.
N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (quoting Nicini v. Morra, 212 F.3d 798,
806 (3d Cir. 2000)).

The Court must then determine whether a plaintiff demonstrated a

defendant's "'personal involvement in the alleged wrongs."' Id. (quoting Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988)).

"A plaintiff 'must portray specific conduct by state

officials'" to make such a showing. Id. (quoting Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir.
1970)).
At Count II of the Complaint, Plaintiff argues that his Eighth Amendment rights were
violated by the deliberate indifference of Defendants to his serious medical needs. ECF No. 4 at
24.

At Count III of the Complaint, Plaintiff asserts that Defendants Wood, Lieutenant R.

Washington, and Capozza are liable in a supervisory capacity for the Eighth Amendment
violations due to their failure to adequately manage the provision of medical care. Id. at 25. In
their respective Motions, Defendants argue that Plaintiff has failed to plead sufficient facts to set
forth these claims. ECF Nos. 18 at 6-9; 39 at 6-9.

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1.

gth

Amendment/Deliberate Indifference - Count II

It is well-established that the Eighth Amendment of the United States Constitution

"proscribes more than physically barbarous punishments," but also the provision of sub-standard
medical care to an inmate "who cannot by reason of the deprivation of his liberty, care for
himself." Estelle v. Gamble, 429 U.S. 97, 102-04 (1976) (citations omitted). See also Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (Prisons "must provide humane conditions of confinement;
prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical
care."). In order to state a claim for deliberate indifference to medical needs, a claimant must
make "(1) a subjective showing that 'the defendants were deliberately indifferent to his or her
medical needs' and (2) an objective showing that 'those needs were serious."' Pearson v. Prison
Health Serv., 805 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999)).
Defendants first argue that Plaintiff has not pled a serious medical need that was ignored
by Defendants. They contend that, at best, Plaintiffs allegations establish that he was in pain.
However, Defendants point out that Plaintiff does not allege a diagnosis by a treating physician
of a need for medical care. ECF Nos. 18 at 6; 29 at 6-9. The United States Court of Appeals for
the Third Circuit has held that a medical condition may properly be considered "serious" when it
is "diagnosed by a physician as requiring treatment, is easily recognizable by a lay person, or by
'reference to the effect of denying the particular treatment,"' i.e., when denial or delay of
treatment constitutes "'unnecessary and wanton infliction of pain,' or 'causes an inmate to suffer
a life-long handicap or permanent loss."' Imhoff v. Temas, 67 F.Supp.3d 700, 710 (W.D. Pa.
2014) (quoting Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987)).

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In the instant case, the medical need which Plaintiff argues merited treatment was his
cracked cast from which blood was seeping. He also argues that he was entitled to the provision
of prescribed pain medication, ice for swelling, cushioning for support of his arm, and the means
to keep the surgical site clean, per hospital orders.

His inability to properly clean himself

allegedly led to water penetrating the cast and surgical dressings, resulting in an unpleasant odor
and a disintegrating cast. As to the cracked cast seeping blood, this condition arose the same day
as Plaintiff underwent an orthopedic surgical procedure, and was allegedly the result of
unprovoked physical contact with C.O. Beers. Plaintiff sought medical assistance for this issue
from at least July 11 through July 13, 2014, and asked to see a physician as late as August 5,
2014. All requests were denied. Taken as true, Plaintiffs factual allegations paint a picture of
an objectively serious medical need which would be apparent to a lay person.

It is also

reasonable to conclude, based upon Plaintiffs assertions in the Complaint, that failure to address
a cast that was cracked and seeping blood immediately following surgery could lead to
unnecessary and wanton infliction of pain, or even long-term complications.

Similarly, the

disintegration of a cast meant to protect and immobilize an arm upon which surgery was recently
performed is an objectively serious medical need which would be apparent to a lay person.
Thus, Plaintiff has pied sufficient factual matter to conclude that he exhibited serious medical
needs.
Nevertheless, Defendants also argue that Plaintiffs allegations of deliberate indifference
were merely conclusory, and that non-medical prison personnel cannot be held liable for
deliberate indifference to serious medical needs. ECF Nos. 18 at 7-8; 39 at 6-9. Courts have
long characterized deliberate indifference as a '"subjective standard of liability consistent with
recklessness as that term is defined in criminal law."' Parkell v. Danberg, 83 3 F .3d 313, 335 (3d

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Cir. 2016) (quoting Nicini, 212 F.3d at 811). As such, a prison official may be said to be
deliberately indifferent if he or she was aware of a substantial risk of serious harm to an inmate,
and disregarded that risk by failing to take reasonable measures to mitigate it.

Id. (citing

Chavarriaga, 806 F .3d at 229). However, the burden is upon the claimant to show that a prison
official had knowledge of facts from which he or she could infer that there existed a substantial
risk of harm, and that the prison official drew the inference. Id. (citing Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 259 (3d Cir. 2010)). "'It is not enough merely to find that a
reasonable person would have known, or that the defendant should have known'" of the risk. Id.
(quoting Farmer, 511 U.S. at 843 n. 8).
In the past, deliberate indifference has been found to exist where a prison official "(1)
knows of a prisoner's need for medical 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 treatment." Id. at 337 (citing Rouse, 182 F.3d at 197).
Yet, where an inmate has received some medical treatment, deliberate indifference may be
difficult to demonstrate. Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (citing Dunner
v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993)). This is particularly true when a non-medical
prison official is a named defendant, because such personnel are generally justified in the belief
that an inmate is in capable hands. Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
In the instant case, however, Plaintiff is not simply claiming to have been denied care for
an existing ailment. Although he may, arguably, have received medical attention while held in
the medical unit of SCI-Pittsburgh following surgery, the complained of injuries for which he
later sought treatment while in the RHU were sustained after he left the medical unit; i.e., the
cracked cast and seeping blood, and the wet surgical dressing and disintegrating cast. Plaintiff

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was not previously under the care of prison medical staff for these issues. Accordingly, the non-

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medical personnel to whom Plaintiff complained - C.O. Beers, C.O. L. Johnson, C.O. Brewer,

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C.O. Timberman, C.O. Gannon, C.O. Cavanaugh, Sergeant F.J. Johnson, and Lieutenant R.

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Washington - cannot justify their alleged refusal to obtain medical care for Plaintiff upon any
assertion that Plaintiff was in "capable hands." Moreover, there is no concern here that holding

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these non-medical personnel liable would strain the prison's division of labor or promote

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interference by non-medical personnel in the decision-making of medical staff. Spruill, 372 F.3d
at 236.
At present, Plaintiff has pled that C.O. Beers, in particular, as well as C.O. L. Johnson,
C.O. Brewer, C.O. Timberman, C.O. Gannon, C.O. Cavanaugh, Sergeant F.J. Johnson, and
Lieutenant R. Washington, were aware of the condition of his arm and cast following surgery
and denied him access to medical care knowing - and perhaps even intending - that Plaintiff
would suffer serious harm. ECF No. 4

iii!

88-92. Prison officials may not "'deny reasonable

requests for medical treatment when such denial exposes the inmate to undue suffering or the
threat of tangible injury."' Palakovic, 854 F.3d at 228 (quoting Monmouth Cnty. Corr. Inst.
Inmates, 834 F.2d at 346). "This is true whether the indifference is manifested by prison doctors
in their response to the prisoner's needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once prescribed." Estelle,
429 U.S. at 104. Plaintiff has, therefore, pled facts sufficient to maintain a claim for deliberate
indifference to serious medical needs at Count II of the Complaint as against C.O. Beers, C.O. L.
Johnson, C.O. Brewer, C.O. Timberman, C.O. Gannon, C.O. Cavanaugh, Sergeant F.J. Johnson,
and Lieutenant R. Washington.

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As to Defendants Scire and Capozza, Plaintiff's claims in Count II relate only to the
handling of two grievances. ECF No. 4

i! 90.

As such, Plaintiff has not pled facts sufficient to

sustain such a claim against Scire or Capozza. He failed to show that either Scire or Capozza
were in possession of knowledge sufficient to infer that Plaintiff was at risk of serious harm, and
that they drew such an inference. Consequently, the Motion to Dismiss will be granted as to the

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claims in Count II against Scire and Capozza.

2.

8th

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Amendment/Failure to Supervise - Count III

At Count III, Plaintiff claims that Defendants Wood, Lieutenant R. Washington, and
Capozza are liable for the other Defendants' Eighth Amendment violations due to their failure to
adequately supervise the other Defendants. In response, Defendants Wood and Capozza argue
that this claim should be dismissed, because liability under § 1983 may not be predicated upon
vicarious liability or respondeat superior. ECF Nos. 18 at 9; 39 at 7. Plaintiff must allege that
Wood and Capozza took affirmative action to bring about the alleged Constitutional violation;
failure to act is not enough. Id.
As noted by Defendants, a claimant may not premise individual liability under § 1983 on
the doctrine of respondeat superior. Chavarriaga, 806 F.3d at 222 (citing Parratt v. Taylor, 451
U.S. 527, 537 n. 3 (1981)). Neither is vicarious liability available; a claimant must allege facts
sufficient to demonstrate that a defendant was personally involved in a constitutional violation.
Phillips v. Northampton Co., P.A., 687 F.App'x 129, 131 (3d Cir. 2017) (citing Evancho v.
Fisher, 423 F.3d 347, 353 (3d Cir. 2005)). This may be done by asserting facts sufficient to
show that the defendant established a policy, practice, or custom that directly caused a
constitutional violation, or that the defendant participated in, directed, or had knowledge of and
acquiesced to conduct causing a constitutional violation.

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Id. at 131-32 (citing A.M. ex rel.

J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004); Baker v. Monroe
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50 F.3d 1186, 1190-91 (3d Cir. 1995)).
a.

Defendant Wood

With respect to Defendant Wood, Plaintiff charges that she was the Health Care
Administrator at SCI-Pittsburgh, and was responsible for designing and implementing
procedures to insure that inmates had access to proper medical and post-surgical care, including
timely encounters with medical staff. ECF No. 4 if 55. Instead, Plaintiff claims that Wood failed
to provide for those medical needs. Id.

iii! 56, 94.

Plaintiff further asserts that Wood encouraged

and acquiesced to abuse and neglect of surgical inmates, including housing inmates in the RHU
instead of the medical unit. Id.
In support of the Motion to Dismiss, Wood argues that Plaintiff must show her direct
involvement in the alleged wrong. ECF No. 18 at 9. Specifically, she argues:
It is not enough to simply state that a Defendant is a supervisor therefore
he/she is responsible for the alleged misconduct and a § 1983 claim cannot
be predicated upon a theory of vicarious liability or respondeat superior,
Rizzo [v. Goode], supra, 423 U.S. 362 [1976], nor can a§ 1983 claim be
based on a failure to act. Commonwealth of Pennsylvania v. Porter, 659
F.2d336(3dCir.1981)cert. denied458U.S. ll2l (1982).

ECF No. 18 at 9.
As to Defendant Wood, Plaintiff's conclusory allegations are insufficient to demonstrate
that she may be held liable in an individual capacity as a supervisor. At most, Plaintiff has pled
facts which tend to show that Wood simply failed to act. No facts have been alleged which show
that Wood was involved in the acts complained of, or that these acts were undertaken with her
knowledge and acquiescence. Evancho, 426 F.3d at 353. Count III must be dismissed as to
Wood.

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b.

Defendant Capozza

Turning to Defendant Capozza, Plaintiff claims that as the Superintendent, he was
responsible for the conduct of all personnel at SCI-Pittsburgh, knew directly or constructively of
similar issues with other inmates in the past, and established, fostered, encouraged, or tolerated
the abusive practices maintained by the other named Defendants.

ECF No. 4

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59-63.

However, as the Court found with Wood, Plaintiff advances only conclusory allegations as to the
conduct of Capozza, and fails to provide facts which show that Capozza was involved in the acts
complained of in Counts I and II, or even had knowledge of same. Evancho, 426 F.3d at 353.
Accordingly, Count III must be dismissed as to Capozza.

Defendant R. Washington

c.

Finally, as to Lieutenant R. Washington, Plaintiff asserts that he established, encouraged,
and tolerated the abusive practices of the other named Defendants. ECF No. 4

if 52.

Lieutenant

R. Washington was the morning shift supervisor for the RHU, and was allegedly aware of prior
complaints made by other inmates in similar circumstances. Id.

iii!

52, 54. It is also pled that

Washington was aware of the state of Plaintiff's cast, and that requests for medical attention had
been made directly to Washington and denied by Washington. Id.

iii!

35, 41. Plaintiff also

indicates that Washington was aware that other Defendants had denied Plaintiff's requests for
medical attention.

Id.

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51-54. Thus, Plaintiff asserts, the correctional officers monitoring

Plaintiff were able to get away with assaulting him, and denying him access to medical attention,
medication, ice, supportive cushioning, and the means to properly clean his arm. Id.

if 52.

The Court notes that Defendant Lieutenant R. Washington did not seek partial dismissal
of the Complaint as to Count Ill. Even if he had so moved, viewed in the light most favorable to
Plaintiff as the non-moving party, sufficient factual matter has been pled to demonstrate that

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Lieutenant R. Washington participated in, directed, and/or had knowledge of and acquiesced to
conduct causing the alleged constitutional violations.

B. ADA and Rehabilitation Act Claims - Counts V and VI
In the Complaint, Plaintiff alleges that, prior to his incarceration, he suffered a crushing
injury of his left elbow. ECF No. 4

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18. As a result of nerve damage, Plaintiff lost strength and

fine motor control in his left hand and was unable to write more than a line or two at a time. Id.
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18-19. Consequently, Plaintiff claims that he was disabled and unable to perform the major

life activity of writing so as to communicate with his family and within the prison by way of
writing sick call slips or grievances. Id.

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20, 21 and 105.

At Count V of the Complaint, Plaintiff alleges that he was discriminated against by the
DOC because of his disability by the denial of an accommodation for his inability to complete
written sick call slips and four-ply grievance forms, which resulted in his inability to obtain
medical treatment. Id.

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104-06. In Count VI, Plaintiff further claims that he was denied access

by the DOC to prison medical facilities, treatment and services to which non-disabled inmates
had access.

Id.~~

107-09. Specifically, Plaintiff alleges that the DOC confined him to the RHU

for nearly two months after his surgery, barred him from the shower room for eight days,
deprived him of food for lengthy periods, deprived him of prescribed medication and denied him
ice and a cushion, which were needed post-surgery. Id.

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108. Accordingly, Plaintiff asserts that

the DOC violated the ADA and the Rehabilitation Act.
In the Motion to Dismiss, the DOC seeks dismissal of Counts V and VI on the basis that
Plaintiff failed to plead facts demonstrating that he has a qualifying disability in the context of
these two statutes, or that his alleged denial of medical care was a result of his disability. ECF
No. 18 at 10-13.

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The United States Supreme Court in Pa. Dep't of Corrections v. Yeskey, 524 U.S. 206
( 1998), expressly held that Title II of the ADA applies to state prisons, and the Pennsylvania
DOC specifically.
Here, the ADA plainly covers state institutions without any exception that
could cast the coverage of prisons into doubt. Title II of the ADA provides:
"Subject to the provisions of this subchapter, no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any
such entity." 42 U.S.C. § 12132.
State prisons fall squarely within the statutory definition of "public entity,"
which includes "any department, agency, special purpose district, or other
instrumentality of a State or States or local government."§ 12131(1)(B).
Id. at 210.
Because the plain text of Title II of the ADA unambiguously extends to state prison
inmates, this Court must consider whether Plaintiff has properly stated a claim of disability
discrimination. 1
In order to state a claim under Title II of the ADA, Plaintiff must allege facts which
demonstrate: "(1) he is a qualified individual; (2) with a disability; (3) he was excluded from
participation in or denied the benefits of the services, programs, or activities of a public entity, or
was subjected to discrimination by any such entity; (4) by reason of his disability. Bowers v.
Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 553 n. 32 (3d Cir. 2007); see also Wagner v. Fair
Acres Geriatric Center, 49 F .3d 1002, 1009 (3d Cir. 1995).
In order to invoke the protections of the ADA, Plaintiff must establish that he had a
disability within the meaning of the ADA. The ADA defines a "qualified individual with a
disability" as:
1

The ADA and the Rehabilitation Act have the same standard of liability and are to be interpreted consistently.
Macfarlan v. Ivy Hill SNF. LLC, 675 F.3d 266, 274 (3d Cir. 2012).

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an individual with a disability who, with or without reasonable modifications to
rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt of services or the participation in
programs or activities provided by a public entity.
42 U.S.C. § 12131(2). Under the ADA and the Rehabilitation Act, a "disability" may be: (1) "a
physical or mental impairment that substantially limits one or more major life activities;" (2) "a
record of such an impairment;" or (3) "being regarded as having such an impairment." 42 U.S.C.
§ 12102(1).
In the instant case, the DOC attacks Plaintiffs allegations of disability by arguing that he
does not suffer from an impairment that substantially limits a major life activity. ECF No. 18 at
10-12.
The United States Court of Appeals for the Third Circuit has held that in order to
establish the existence of a statutorily protected disability, a claimant must: "show that she has an
impairment; identify the life activity that she claims is limited by the impairment; and prove that
the limitation is substantial." Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 382 (3d Cir. 2004)
(citing Bragdon v. Abbott, 524 U.S 624, 631 (1998)).
The determination of whether an individual is substantially limited in a major life activity
must be made "on a case-by-case basis." Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 566
( 1999). What matters is not the name or diagnosis of the impairment but "the effect of the
impairment on the life of the individual." Id. "An impairment need not prevent, or significantly
or severely restrict, the individual from performing a major life activity in order to be considered
substantially limiting." 29 C.F.R. § l 630.2(j)(l )(ii). "Nonetheless, not every impairment will
constitute a disability within the meaning of this section." Id.

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In Matthews v. Pa. Dep't of Corr., 613 F. App'x 163 (3d Cir. 2015), the United States
Court of Appeals for the Third Circuit recognized that:
... the 2008 ADA Amendments Act ("ADAAA") was enacted to clarify that
the definition of "disability" should be construed "in favor of broad
coverage of individuals ... to the maximum extent permitted." 42 U.S.C.
§ 12102(4)(A). Therefore, courts must interpret the term "substantially
limits" consistently with the liberalized purposes of the ADAAA. Id.
§ 12102(4)(B). The EEOC subsequently updated its regulations to provide
that impairments lasting fewer than six months may be substantially
limiting. 29 C.F.R. § 1630.2(j)(l)(ix). A comment on the rule provides the
following example: "[I]f an individual has a back impairment that results in
a 20-pound lifting restriction that lasts for several months, he is
substantially limited in the major life activity of lifting, and therefore
covered under the first prong of the definition of disability." 29 C.F.R.
§ 1630.2(j)(l)(ix) (App.). Thus, under the current regulations, the duration
of an impairment is just one factor to consider in determining whether an
impairment substantially limits a major life activity.
Id. at 167-68.
In Matthews, the Court of Appeals recognized the challenge of interpreting the
ADAAA's effect on short-term-disability based claims. In assessing whether an impairment
substantially limits a major life activity, the Court determined that it "must set aside the mildsounding diagnosis and perform an individualized assessment of the effect of the impairment on
the life of' the plaintiff. Id.
In the instant case, there is no dispute that Plaintiff has pled facts in the Complaint
sufficient to support the existence of a physical impairment, i.e., a crushed elbow with nerve
damage resulting in difficulty writing. The issue is whether the alleged impairment substantially
limited a major life activity.

"A major life activity need not constitute volitional or public

behavior; it need not be an activity that is performed regularly or frequently; but it does have to
have importance to human life comparable to that of activities listed in the regulatory examples."
Fiscus, 385 F.3d at 384. Moreover, "a substantial limitation of a major life activity does not

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mean impossibility or even great physical difficulty; rather, substantial limitation is weighed in a
broad, practical sense, and may include non-physical factors." Id.
Here, Plaintiff claims that the major life activity of communication was substantially
limited because he had difficulty writing more than two lines at a time. He was relegated to
primarily verbal communication. As noted by Plaintiff in his Brief in Opposition, the ADA
characterizes "communicating" as a major life activity. ECF No. 29 at 13 (citing 42 U.S.C. §
12102(2)(A)). However, in order for the Court to determine whether Plaintiffs communication
was substantially limited by his impaired arm, the severity, duration, and permanency of the
impairment must be assessed. Johnson v. Amtrak, 390 F. App'x 109, 113 (3d Cir. 2010).
In the instant Complaint, Plaintiff provides limited information regarding the severity,
duration, or permanency of his impairment, although he does state that at the time of the events
in question, he could not write more than two lines at a time. Plaintiff alleges facts which
illustrate that his difficulty writing hindered his ability to communicate in the context of a prison
setting in order to obtain medical care and file grievances related thereto.
At the motion to dismiss stage, this Court is bound to take all factual allegations as true
and make all reasonable inferences in Plaintiffs favor. As such, this Court finds that Plaintiff in
his Complaint does allege a disability.

Additional facts will need to be developed during

discovery relative to whether he was in fact disabled within the meaning of the ADA and the
Rehabilitation Act. As such, Defendants' Motion to Dismiss Counts V and VI of the Complaint
as to the DOC is denied.
C.

Pendent State Law Claims

At Counts VII and VIII of the Complaint, Plaintiff asserts state law claims for assault and
battery, and intentional infliction of emotional distress ("IIED").

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ECF No. 4 at

~~

110-22.

f

\

Count VII pertains only to C.O. Beers. Id.

iii! 110-14.

Count VIII asserts an IIED claim against

C.O. Beers, C.O. Brewer, C.O. Timberman, C.O. Gannon, C.O. Cavanaugh, Sergeant F.J.
Johnson, Lieutenant R. Washington, Scire, and Capozza. Id. at iii! 115-22.
1.

Assault and Battery - Count VII

In the Motion to Dismiss, C.O. Beers argues that the assault and battery claims should be
dismissed on the ground of sovereign immunity. ECF No. 18 at 13-14. Beers contends that at
the time of the alleged incident, he was a state employee acting within the scope of his
employment. Id. As such, Count VII should be dismissed. Id.
"Article I, Section 11 of the Pennsylvania Constitution provides, in pertinent part, that
'suits may be brought against the Commonwealth in such manner, in such courts and in such
cases as the Legislature may by law direct."' Ickes v. Grassmeyer, 30 F.Supp.3d 375, 397 (W.D.
Pa. 2014) (quoting Pa. Const., Art. I, § 11). In Pennsylvania, public officials and employees
enjoy the protection of sovereign immunity when acting within the scope of their duties. Id.
(citing 1 Pa. Cons. Stat. § 2310). This immunity has been waived only with respect to damages
arising from negligent acts by public officials and employees. Id. at 398 (citing 42 Pa. Cons.
Stat. § 8522).
The torts of assault and battery are regarded as intentional torts in Pennsylvania. Id.
(citing Gene's Rest., Inc. v. Nationwide Ins. Co., 548 A.2d 246, 247 n. 2 (Pa. 1988)). As such,
sovereign immunity has not been waived for claims seeking relief for damages resulting from
these torts. Id. (citing Aetna Cas. & Surety Co. v. Roe, 650 A.2d 94, 103 (Pa. Super. Ct. 1994)).
However, sovereign immunity may not preclude such claims if a claimant demonstrates that a
public official or employee was acting outside the scope of his or her duties when the tort
occurred. '"[A]n assault committed by an employee upon another for personal reasons or in an

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outrageous manner is not actuated by an intent to perform the business of the employer and, as
such, is not within the scope of his or her employment."'

Id. at 3 99 (quoting Costa ·v.

Roxborough Mem'l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998)).
At Count VII of the Complaint, Plaintiff alleges that C.O. Beers slammed him into an
elevator doorway while escorting him from the medical unit of SCI-Pittsburgh to the RHU on the
day of Plaintiff's surgery. By slamming Plaintiff into the doorway, C.O. Beers caused Plaintiffs
cast to crack and blood to seep through the opening. When confronted, C.O. Beers laughed and
said, "oops." He also denied Plaintiffs request to be returned to the medical unit. In their
Motions, Defendants argue that such conduct was within the scope of C.O. Beers' duties as a
correctional officer. Plaintiff contests this characterization of C.O. Beers' conduct. In order to
"go beyond the scope of employment, however, an individual engaging in conduct that is
otherwise incidental to the performance of work-related duties must act with a high degree of
outrageousness." Ickes, 30 F.Supp.3d at 399 (citing Haas v. Barto, 829 F.Supp. 729, 734-35
(M.D. Pa. 1993)).
While the application of some degree of force may be warranted when correctional
officers are moving inmates from one section of a prison to another, when viewed in the light
most favorable to Plaintiff, the facts pled in the Complaint demonstrate that C.O. Beers' action
may have gone well beyond what the circumstances could possibly have justified. Thus, the
Court will not dismiss Count VII on the grounds of sovereign immunity at this early stage of the
case.

The Court will be in a better position to consider such an argument following a full

development of the factual record, should Defendants raise same at summary judgment. Zion v.
Nassan, 283 F.R.D. 247, 268 (W.D. Pa. 2012).

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2.

Intentional Infliction of Emotional Distress - Count VIII

In the Motions to Dismiss, Defendants argue that the IIED claim should be dismissed
because of sovereign immunity and the failure to plead the essential elements of the alleged
cause of action.
The applicability of sovereign immunity again comes down to whether the conduct of
Defendants fell within the scope of their duties as employees of the state. The Pennsylvania
Supreme Court has yet to formally recognize a cause of action for IIED; however a claim for
IIED would - in theory - require showing that a defendant's conduct was: "(1) extreme and
outrageous, (2) intentional or reckless, and (3) caused severe emotional distress." Bryan v. Erie
Cnty. Office of Children & Youth, 861 F.Supp.2d 553, 585 (W.D. Pa. 2012). Liability must be
premised on behavior '"so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society."' Id. (quoting Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)). The tort is to be
narrowly construed. Id. at 586 (citing Shaffer v. Nat'l Can Corp., 565 F.Supp. 909, 914 (E.D.
Pa. 1983)).
A showing of deliberate indifference in the Section 1983 context will not suffice. Bryan,
861 F.Supp.2d at 586. "Liability for intentional infliction of emotional distress is 'reserved by
the courts for only the most clearly desperate and ultra extreme conduct."' Id. at 585 (quoting
Hoy, 720 A.2d at 754). It is also not enough to allege facts which show only that a defendant
intended to commit a tort or crime, or that he or she sought to cause emotional distress; the
'"requisite intention which one must display for liability to be imposed is knowledge on the part
of the actor that severe emotional distress is substantially certain to be produced."' Id. (quoting
Hoffman v. Memorial Osteopathic Hosp., 492 A.2d 1382 (Pa. Super. Ct. 1985)).

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Conduct illustrative of the degree of depravity required to sustain an IIED claim has
included: (1) a defendant striking and killing a plaintiffs' son with his automobile, failing to
render aid or notify authorities, and burying the body in a field where it was discovered two
months later and returned to plaintiffs, Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970); (2) a
defendant's intentional fabrication of records suggesting plaintiff killed a third party, resulting in
indictment of plaintiff for homicide, Banyas v. Lower Bucks Hosp., 437 A.2d 1236 (Pa. Super.
Ct. 1981 ); and (3) a defendant's release of information suggesting that a plaintiff was suffering
from a fatal disease, when the defendant knew the information to be untrue, Chuy v. Phila.
Eagles Football Club, 595 F.2d 1265, 1273-74 (3d Cir. 1979).
Presently, Plaintiffs Complaint alleges that C.O. Beers intended to instill anxiety and
fear of future attacks; C.O. L. Johnson, C.O. Brewer, C.O. Timberman, C.O. Gannon, C.O.
Cavanaugh, Sergeant F.J. Johnson, and Lieutenant R. Washington intended to instill anxiety and
fear for his health and well-being; Scire intended to induce distress by interfering with the
grievance process; and, Capozza intended to instill a general sense of terror and apprehension in
the prison by failing to restrain the conduct of his correctional officers as a means of controlling
inmates. ECF No. 4

~~

115-22. However, it is not enough to plead that a defendant acted with

the intention to cause emotional distress; there must be extreme conduct and knowledge on the
part of the defendant that severe emotional distress is substantially certain to follow. Plaintiff
has not pled facts sufficient to make such a showing. Accordingly, Count VIII will be dismissed.
V.

CONCLUSION

Based upon the foregoing, Defendants' Partial Motions to Dismiss, ECF Nos. 17 and 38,
shall be granted in part and denied in part. The Court finds that the following counts of the
Complaint must be dismissed for failure to state claims upon which relief may be granted: Count

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II as to Scire and Capozza; Count III as to Wood and Capozza; and Count VIII as to all
Defendants. In all other respects, the Partial Motions to Dismiss are denied.
Thus, at this point, the remaining claims are Count I, Count II (as to Defendants Beers, L.
Johnson, Brewer, Timberman, Gannon, Cavanaugh, F.J. Johnson and Washington only), Count
III (as to Defendant Washington only), Count IV, Count V, Count VI and Count VII.
To the extent Plaintiff determines that he can remedy the identified deficiencies as to
Counts II, III and VIII, he may file an Amended Complaint by December 20, 2017.
An appropriate order follows.

ORDER
AND NOW, this 15th day of November, 2017, IT IS HEREBY ORDERED that
Defendants' Partial Motions to Dismiss, ECF Nos. 17 and 38, are GRANTED as to Count II as
to Defendants Scire and Capozza; Count III as to Defendants Wood and Capozza; and Count
VIII as to all Defendants. In all other respects, the Partial Motions to Dismiss are DENIED.
To the extent Plaintiff determines that he can remedy the identified deficiencies as to
Counts II, II and VIII, he may file an Amended Complaint by December 20, 2017. If Plaintiff
does not file an Amended Complaint by that date, the aforementioned counts will be dismissed
with prejudice and Defendant Wood will be terminated from the case.

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BY THE COURT,

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Dated: November 15, 2017
cc:

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Roberto Camacho, Jr.
JP-1043
SCI Huntingdon
1100 Pike Street
Huntingdon, PA 16654
All Counsel of Record via CM-ECF

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