WHITENIGHT v. WETZEL et al
Filing
199
MEMORANDUM OPINION indicating that, for reasons more fully stated within, the Motions to Dismiss filed by Defendants 133 , 139 , 153 , and 180 will be GRANTED as to all federal claims and those claims are dismissed with prejudice. The Court declines supplemental jurisdiction over the state law claims and those claims will be dismissed without prejudice to refiling in an appropriate state forum. Signed by Chief Magistrate Judge Cynthia Reed Eddy on 12/12/2019. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
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SHAWN WHITENIGHT,
Plaintiff,
vs.
JOHN WETZEL, PA DOC SECRETARY;
JOHN/JANE DOE, CORRECT CARE
SOLUTIONS; ROBERT GILMORE, SCI
GREENE SUPERINTENDENT; DEPUTY
DIALESANDRO, SCI GREENE DEPUTY
SECRETARY; DORINA VARNER, CHIEF
GRIEVANCE OFFICER; KERI MOORE,
PA. DEPT. OF CORRECTIONS; PAUL
NOEL, ACTING MEDICAL DIRECTOR,
PA. DEPT. OF CORRECTIONS; ANDREA
NORRIS,
ACTIVE
DIRECTOR
OF
BUREAU OF HEALTH CARE SERVICES;
TRACY
SHAWLEY,
GRIEVANCE
COORDINATOR; IRMA VIHIDAL, CHCA;
KYLE GUTH, CHCA; R. CLITES,
MEDICAL; MICHAEL BELL, PA. DEPT.
OF CORRECTIONS; MICHAEL ZAKEN,
PA. DEPT. OF CORRECTIONS; DR.
HERBIK, REGIONAL MANAGER OF
CORRECT CARE SOLUTIONS; DR.
BYUNGHAK JIN, MEDICAL DIRECTGOR
SCI GREENE; DR. ALPERT, MEDICAL
DIRECTGOR SCI GREENE; DR. RAJ
MAHLI, MEDICAL DIRECTOR SCI
GREENE; DR. MIN HI PARK, PHYSICIAN
SCI GREENE; DR. SANTOS, PHYSICIAN
SCI GREENE; DR. KRAK, DENTIST SCI
GREENE; JOHN KUSHNER, PHYSICAL
THERAPIST;
ESTHER
MATTES,
PHYSICIANS
ASSISTANT;
ELAN
MWAURA, PHYSICAL ASSISTANT;
JOHN MCANANY, R.N.SUPERVISOR;
NEDRA GREGO, RN SUPERVISOR;
NURSE JONES, JOHN/JANE DOE, PA.
DEPT. OF CORRECTIONS; JOHN/JANE
DOE, CORRECT CARE SOLUTIONS;
PENNSYLVANIA DEPARTMENT OF
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2:16-cv-01864
Chief United States Magistrate Judge
Cynthia Reed Eddy
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CORRECTIONS,
CORRECT
CARE
SOLUTIONS, JOHN/JANE DOE, BUREAU
OF HEALTHCARE SERVICES;
Defendants.
MEMORANDUM OPINION1
Plaintiff, Shawn Whitenight, brings this civil rights case against a 28 named defendants
and a number of Jane/John Doe Defendants claiming his civil rights were violated during his
incarceration at SCI-Greene.2 In response to Defendants’ motions to dismiss, Whitenight filed an
Amended Complaint, which remains the operative pleading. (ECF No. 110). The defendants are
the Pennsylvania Department of Corrections (“DOC”), and individuals and entities employed by
the DOC, including the Secretary of the DOC, the Superintendent, grievance coordinators,
physicians and medical staff, a physical therapist, the Director of the Bureau of Healthcare
Services, and several unnamed individuals. Whitenight asserts that he was denied adequate
medical treatment in violation of the Eighth Amendment to the United States Constitution, that he
was retaliated against for speaking out about his inadequate medical treatment in violation of the
First Amendment, and that his Due Process rights were violated when he was placed in
administrative custody for 33 days in violation of the Fourteenth Amendment. He also brings
In accordance with the provisions of 29 U.S.C. § 636(c)(1), all served parties have
voluntarily consented to have a United States Magistrate Judge conduct proceedings in this case,
including trial and the entry of a final judgment. See ECF Nos. 57, 101, 104, 113, 168, 170, and
185. The only parties who have not been served are John / Jane Doe defendants. While unserved
defendants generally must also consent for a magistrate judge to exercise jurisdiction based on
“consent of the parties” under that statute, see Williams v. King, 875 F.3d 500 (9th Cir. 2017), this
Court is not aware of any decision holding that consent is necessary from defendants who are both
unserved and unidentified.
1
At the time Whitenight filed this complaint, he was a Pennsylvania state prisoner housed
at SCI-Greene. He notified the Court October 24, 2017, that he had been released from DOC
custody. (ECF No. 180).
2
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multiple state law claims sounding in medical malpractice, intentional infliction of emotional
distress, negligent infliction of emotional distress, and corporate negligence.
The Defendants have filed motions to dismiss contending that Whitenight’s constitutional
claims are without merit because the facts set forth in his Amended Complaint affirmatively reveal
that he did receive adequate medical care and that the Amended Complaint does not sufficiently
allege a claim for First Amendment retaliation or a due process violation. See ECF Nos. 133, 139,
153, and 180.3 Whitenight has responded in opposition to each motion. (ECF Nos. 145, 146, 147,
148, 149, 165, 166, 167, 190, 191, and 192). Defendants Santos and Kushner filed Reply Briefs
(ECF Nos. 179 and 194, respectively), to which Whitenight filed a Sur-Replies. (ECF No. 186 and
195). The motions are fully briefed and ripe for disposition. For the reasons that follow, the
motions will be granted to the extent that all federal claims will be dismissed with prejudice and
any state law claims will be dismissed without prejudice for want of jurisdiction.
Background4
At the outset, the Court notes that the Amended Complaint contains over 360 paragraphs
and is a running narrative of the medical care, or lack thereof, that Whitenight received during an
approximately 18-month period at SCI-Greene.
The Amended Complaint incorporates and
references over 300+ pages of exhibits which Whitenight filed with his original complaint.
Consistent with the Court of Appeals’ directive in Garrett v. Wexford Health, 938 F.3d 69 (3d Cir.
2019), the Court has carefully examined the allegations of the Amended Complaint.
3
The motion to dismiss filed by Defendant Kuschner (ECF No. 180) has been construed
as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). See
Text Order of 12/6/2017 (ECF No. 182).
The background of this case is taken from the allegations in the Amended Complaint,
which this Court must accept as true when considering the instant motions to dismiss.
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3
Plaintiff was arrested on December 17, 2013, and he claims that during his arrest he was a
"victim of excessive force retaliation" by the arresting Pennsylvania State Troopers. Amended
Complaint, ¶38. He claims that this alleged "excessive force" caused injuries to his cervical
and lumbar spine. Id. He does not claim that any of the named Defendants, who saw him when he
was at SCI-Greene, caused his injuries. In his summary and “index” of claims, Whitenight stresses that
the claims of his Amended Complaint are about “denials and delays to provide the correct, adequate
medical care.” (ECF 115, p. 1 and ECF 110, ¶41).
Standard of Review
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. A
court may dismiss all or part of an action for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). The complaint must plead “factual content that allows 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
The plaintiff must allege facts that indicate “more than a sheer possibility that a defendant has
acted unlawfully.” Id. Pleading only “facts that are ‘merely consistent with’ a defendant’s
liability” is insufficient and cannot survive a motion to dismiss. Id. (quoting Twombly, 550 U.S.
at 557).
A conclusory recitation of the elements of a cause of action is not sufficient. Phillips v.
Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The plaintiff must allege facts necessary to
make out each element. Id. (quoting Twombly, 550 U.S. at 563 n.8). In other words, the complaint
must contain facts which, if proven later, support a conclusion that the cause of action can be
established. In assessing the sufficiency of a complaint, a court must: (1) identify the elements of
the causes of action; (2) disregard conclusory statements, leaving only factual allegations; and (3)
assuming the truth of those factual allegations, determine whether they plausibly give rise to an
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entitlement to relief. Palakovic v. Wetzel, 854 F.3d 209, 220 (3d Cir. 2017) (internal quotation
marks and citations omitted) (quoting Burtch v. Millberg Factors, Inc., 662 F.3d 212, 221 (3d Cir.
2011)).
Courts generally consider the allegations of the complaint, attached exhibits, and matters
of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described
or identified in the complaint also may be considered if the plaintiff’s claims are based upon those
documents. Id. (citations omitted). In addition, a district court may consider indisputably
authentic documents without converting a motion to dismiss into a motion for summary judgment.
Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d 217, 222 (3d
Cir. 2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should
consider “the allegations in the complaint, exhibits attached to the complaint, matters of public
record, and documents that form the basis of a claim.”).
Discussion
A.
The Amended Complaint Fails to State a Claim For Deliberate Indifference in Violation of
the Eighth Amendment.
The Eighth Amendment to the United States Constitution prohibits the infliction of “cruel
and unusual punishments,” U.S. Const. amend. VIII, and requires that prisoners receive access to
basic medical treatment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Whitenight faces an exacting
burden in advancing his Eighth Amendment claim against prison officials in their individual
capacities.5 To sustain such a claim, he must plead facts that:
[M]eet two requirements: (1) “the deprivation alleged must be objectively,
sufficiently serious;” and (2) the “prison official must have a sufficiently culpable
Any claims against the DOC and the DOC Defendants in their official capacities are
barred by the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 1159-165-67 (1985).
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state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L.Ed.2d
811 (1994) (quotations marks and citations omitted). In prison condition cases,
“that state of mind is one of ‘deliberate indifference’ to inmate health or safety.”
Id. “Deliberate indifference” is a subjective standard under Farmer—the prison
official-defendant must actually have known or been aware of the excessive risk to
inmate safety.
Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
These principles apply with particular force to Eighth Amendment claims premised upon
inadequate medical care. In the medical context, a constitutional violation under the Eighth
Amendment occurs only when officials are deliberately indifferent to an inmate's serious medical
needs. Estelle, 429 U.S. at 105. To establish a violation of a constitutional right to adequate
medical care in accordance with this standard, a prisoner is required to point to evidence that
demonstrates (1) a serious medical need, and (2) acts or omissions by prison officials that indicate
deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate
indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.”
Estelle, 429 U.S. at 104. Such indifference may be evidenced by an intentional refusal to provide
care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical
treatment, denial of reasonable requests for treatment that results in suffering or risk of injury,
Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant
pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
However, it is also clear that the mere misdiagnosis of a condition or medical need, or
negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim
because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106. “Indeed,
prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.”
Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate
indifference is generally not found when some significant level of medical care has been offered
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to the inmate. Thus, such complaints fail as constitutional claims under § 1983 since “the exercise
by a doctor of his professional judgment is never deliberate indifference. See e.g., Brown v.
Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (‘[A]s long as a physician exercises
professional judgment his behavior will not violate a prisoner's constitutional rights’).
1.
Claims Against the DOC Defendants Relating to Whitenight’s Back Pain
Plaintiff generally accuses the DOC Defendants of not agreeing with him when he
complained about his medical care and/or not overriding the medical and clinical judgment of his
doctors. In fact, most of the claims against the DOC defendants concern their failure to respond
“appropriately” to letters, requests, or grievances where Whitenight complained about the scope,
timing, and medical judgment of his doctors, and/or the medical staff’s handling of medical records
or consultations. See Amended Complaint, Counts 1, 3-9, 11, 52-55, 66-67, 69-70, 73, 77-83, 86-87.
(ECF No. 110).
The DOC Defendants argue that Whitenight has failed to state a claim against them as they
did not have personal involvement in the treatment or alleged delay of Whitenight’s medical
treatment. The Court agrees with the DOC Defendants and finds that Whitenight’s allegations
against them cannot support an Eighth Amendment claim for deliberate indifference as a matter of
law.
First, the DOC Defendants are non-medical prison officials. As the Court of Appeals for
the Third Circuit recently reiterated:
As our precedent makes clear, “a non-medical prison official” cannot “be charge[d]
with the Eighth Amendment scienter requirement of deliberate indifference” when
the “prisoner is under the care of medical experts” and the official does not have a
“reason to believe (or actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner.” Spruill, 372 F.3d at 236; see also Durmer
v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (holding that non-physicians cannot
“be considered deliberately indifferent simply because they failed to respond
directly to the medical complaints of a prisoner who was already being treated by
the prison doctor”).
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Pearson v. Prison Health Serv., 850 F.3d 526, 543 (3d Cir. 2017). Here, Whitenight was being
treated by medical professionals and there is no allegation that any of these DOC Defendants knew
or had any reason to believe that the medical professionals were mistreating Whitenight or denying
or delaying medical treatment for non-medical reasons. The DOC defendants are entitled to defer to
the medical professionals under these circumstances, particularly when it comes to decisions about
medications, consultations for surgery, and interpreting diagnostic tests. See Davis v. Collins, 230 F.
App’x 172, 174 (3d Cir. 2007); Roberts v. PA DOC, No. 1:cv-15-2456, 2016 WL 4379031, *3 (M.D.
Pa. Aug 17, 2016); Lawson v. Phila. Prison System, No. 10-17712011 WL 710489, *3 (E.D. Pa. Mar.
1, 2011).
Moreover, to establish personal liability against a defendant in a § 1983 action, the
defendant must have personal involvement in the alleged wrongs. That is, the state actor must
have played an affirmative part in the alleged misconduct in order to be subject to liability. Rizzo
v. Goode, 423 U.S. 362 (1976); Chavarriaga v. New Jersey Dep’t of Corrections, 806 F.3d 210,
222 (3d Cir. 2015); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Responding to a
grievance is not sufficient to show the actual knowledge necessary for personal involvement.
Rode, 845 F.2d at 1208. Likewise, “supervising and monitoring” the delivery of medical services
is not sufficient to show the actual knowledge necessary for personal involvement.
And as for Defendants Wetzel and Gilmore, there are “two general ways” in which a
supervisor-defendant may be liable:
(1) where the supervisor established a policy, custom, or
practice that caused the harm; or (2) where the supervisor personally participated in the
constitutional violation. The United States Court of Appeals for the Third Circuit explained these
two general types of supervisory liability as follows:
First, liability may attach if they, “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused [the]
constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372
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F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford
Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be
personally liable under § 1983 if he or she participated in violating the plaintiff’s
rights, directed others to violate them, or, as the person in charge, had knowledge
of and acquiesced” in the subordinate’s unconstitutional conduct. Id. (citing Baker
v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995) ). “Failure to” claims—
failure to train, failure to discipline, or, as in the case here, failure to supervise—
are generally considered a subcategory of policy or practice liability.
Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316-19 (3d Cir. 2014), reversed on other
grounds by Taylor v. Barkes, -- U.S. --, 135 S.Ct. 2042, 2043 (2015).
The Amended Complaint is void of any allegations that Secretary Wetzel or Superintendent
Gilmore “established and maintained a policy, practice, or custom” which resulted in Whitenight’s
constitutional rights being violated or that they directly participated in violating Whitenight’s
rights, directed others to violate them, or, “as the person in charge, had knowledge of and
acquiesced” in any of the conduct which resulted in Whitenight’s constitutional rights allegedly
being violated.
After careful review of the Amended Complaint, and the exhibits thereto, the Court finds that
the Amended Complaint fails as a matter of law to state a claim because it does not allege any facts to
suggest that the DOC defendants had personal involvement in the providing of medical care to
Whitenight and the alleged violations of his rights under the Eighth Amendment.
2.
Claims against the Medical Defendants and Dr. Santos
Whitenight was diagnosed with chronic degenerative changes in his cervical and lumbar spine.
He contends that his back pain required surgical intervention, and that the course of treatment
prescribed by the Medical Defendants and Dr. Santos - prescribing pain medication and physical
therapy - was inadequate and amounted to deliberate indifference to his medical needs. The Court
finds that Whitenight’s claims fail as a matter as law because he cannot establish that these
defendants were deliberately indifferent to his serious medical needs. At most, Whitenight’s claims
9
amount to a disagreement with the course of treatment that the medical staff at SCI-Greene
prescribed. A fair reading of the Amended Complaint, coupled with the documents attached
thereto, indicates Whitenight was adamant that his pain required surgical intervention. However,
these same documents reveal that the medical professionals who were treating him did not think
that surgical intervention was an appropriate course of treatment.
It is a “well-established rule that mere disagreements over medical judgment do not state
Eighth Amendment claims.” White v. Napoleon, 897 F.2d 103 (3d Cir. 1990). See Foye v.
Wexford Health Sources, Inc., 675 F. App’x 210, 215 (3d Cir. 2017) (medical defendants were not
deliberately indifferent for failing to order an MRI consult at the inmate’s request); Gause v.
Diguglielmo, 339 F. App’x 132, 135-36 (3d Cir. 2009) (prison medical staff were not deliberately
indifferent where inmate received medicine, physical therapy, and outside treatment, and where
the inmate disagreed over the type of pain medication he received). In the context of the Eighth
Amendment, any attempt to second-guess the propriety or adequacy of a particular course of
treatment has been disavowed by courts since such determinations remain a question of sound
professional medical judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762
(3d Cir. 1979). Additionally, “[a] court may not substitute its own judgment for diagnosis and
treatment decisions made by prison medical staff members.” Id. at 762.
The medical evidence presented by Whitenight shows that the Medical Defendants and Dr.
Santos provided extensive and significant care and prescribed a course of treatment to help treat
his back pain, including pain medications and physical therapy, and that Whitenight disagreed with
that course of treatment. The Amended Complaint contains no plausible allegations that the
Medical Defendants or Santos refused to provide Whitenight with medical care or that they
delayed his treatment for non-medical reasons. Durmer, 991 F.2d at 68. Rather, the exhibits to the
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Amended Complaint consistently reflect that Whitenight’s medical providers did not believe that
surgery was the proper treatment for his degenerative disc problems. Whitenight’s requests for an
MRI,6 additional pain medications, and surgery do not outweigh his treating physicians’
professional judgment in determining the proper course of treatment, especially when a significant
level of medical care was provided to him. Brown, 903 F.2d at 278. Thus, the Court finds that the
factual allegations of the Amended Complaint, along with the attached Exhibits, do not show that
Whitenight has a plausible claim for relief. Iqbal, 566 U.S. at 678. Whitenight has failed to present
any allegations which demonstrate that any of the Medical Defendants or Dr. Santos was
deliberately indifferent to his medical needs.
For all these reasons, the Court finds that Whitenight has failed to state a claim for which
relief can be granted as a matter of law against any of the Medical Defendants and Dr. Santos for
the alleged violation of his Eighth Amendment rights.
3.
Claims Against Kushner, physical therapist
According to the Amended Complaint, Whitenight began treating with Mr. John Kushner on
March 29, 2016.
Mr. Kushner recommended stretching / resistance exercises, but told Whitenight
that these exercises would not "remove, repair or reduce the disc protruding into the spinal cord."
Complaint at ¶ 178.
He alleges that Mr. Kushner "failed to respond appropriately or at all to
Plaintiff's serious medical needs, interfered, denied and failed to complete treatment once
prescribed, conspired and completed informal policies or customs using the treatment known to
be ineffective to deny the correct treatment and used as a scheme to reach the next treatment option
and failing to complete consults (illegible) the next option." Id. at ¶ 232.
Exhibit 10-52, at 9, to the Amended Complaint reflects that Whitenight eventually had an
MRI on July 21, 2016, prior to initiating this lawsuit.
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It appears that Plaintiff is alleging that physical therapy was not an appropriate treatment
and would not cure his disc herniation and that some different treatment or diagnostic testing
should have been provided. However, Mr. Kushner is a physical therapist, and cannot provide
medical treatment or order medical consultation while a patient is under the care of a physician,
which Whitenight was at all times. Whitenight’s allegations reflect only his disagreement with
the treatment provided, not that Mr. Kushner was deliberately indifferent to Whitenight’s serious
medical needs. Accordingly, the Court finds that Whitenight has failed to state a claim for which
relief can be granted as a matter of law against John Kushner for the alleged violation of his Eighth
Amendment rights.
4.
Claims Regarding Dental Care
In Count 71, Whitenight sues Dentist Krak, Secretary Wetzel, Superintendent Gilmore and
multiple other medical and non-medical defendants for failing to respond appropriately to his
serious dental needs. Whitenight claims that during his bi-annual dental checkup in April 2016, a
dental assistant advised him that he had three small cavities and there was a waiting list of 1-1/2
to 2 years to receive fillings. (ECF No. 110, ¶¶ 247-248). However, he also states that, after filing
a grievance, he received his cavity filings two months later on June 22, 2016. (Id. at ¶ 250).
After careful review of the Amended Complaint, and the exhibits thereto, it is clear that
Whitenight received proper dental care. Dr. Krak found Whitenight’s teeth to be in very good
condition and he had only 3 “small” cavities. (ECF 10-41, p.3). Although Whitenight was told the
wait list for fillings was long, he was given a dental appointment two months later and his cavities
were filled at that time. Accordingly, the Amended Complaint fails to state a claim of deliberate
indifference claim concerning Whitenight’s dental care against any of the defendants.
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B.
The Amended Complaint Fails to State a Claim For Retaliation in Violation of the First
Amendment.
In Count 85 of the Amended Complaint, Whitenight asserts that Dr. Jin and RN John McAnany
retaliated against him for his exercise of speech. During an exam on 4/8/16, Whitenight complained
to Dr. Jin that his pain medications were not working. After an examination, Dr. Jin told Whitenight
that his complaints were not consistent with the exam findings. Whitenight became argument and
verbally inappropriate and, admittedly in a voice louder than usual, said, “This is Fucking Bullshit.”
(ECF No. 110, ¶ 288). He was then issued a misconduct and was taken to the RHU.
In order to state a prima facie claim of retaliation under the First Amendment, a prisonerplaintiff must show: (1) he engaged in constitutionally protected activity; (2) he suffered an
“adverse action” at the hands of prison officials; and (3) his constitutionally protected activity was
a substantial or motivating factor between the exercise of his constitutional rights and the adverse
action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2004). Fatal to Whitenight’s claim is that the
Amended Complaint states no facts which show that Whitenight engaged in constitutionally
protected conduct.
Courts have consistently held that prisoners do not have a constitutionally protected right
to use inappropriate, disrespectful, and derogatory language. See, e.g., Torres v. Clark, 522 F.
App’x 103, 106 (3d Cir. 2013) (holding that abusive, obscene, or inappropriate language used by
a prisoner in a letter “plainly violated the prison’s permissible restriction on [the prisoner’s] First
Amendment rights and therefore cannot form the basis for a retaliation claim”).
Whitenight cannot make out a prima facie case of retaliation as the statement he made to
Dr. Jin and RN McAnany does not amount to constitutionally protected conduct triggering a
retaliation claim. Therefore, this claim will be dismissed.
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C.
The Amended Complaint Fails to State a Claim For Due Process in Violation of the
Fourteenth Amendment.
In Count 58 of the Amended Complaint, Whitenight claims Secretary Wetzel,
Superintendent Gilmore, and Deputy Dialesandro violated his due process rights by placing him
in administrative custody (“AC”) for approximately 33 days upon his arrival at SCI-Greene on
11/20/14. Whitenight acknowledges that his placement in AC was due to a lack of general
population bed space. Whitenight claims his placement in AC custody was an illegal action that
was taken without affording him due process.
The protections of the Due Process Clause are triggered only if there is a deprivation of a
protected interest in life, liberty, or property. See Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir.
2002). For a prisoner, such a deprivation occurs when the prison “imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515
U.S. 472, 484 (1995).
Whitenight was in placed in administrative custody for 33 days. This is not enough to
trigger a protected property interest. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002)
(holding seven months in disciplinary custody did not implicate liberty interest interest); Torres v.
Fauver, 292 F.3d 141, 151-52 (3d Cir. 2002) (holding disciplinary detention for fifteen days and
administrative segregation for 120 days did not implicate liberty interest; Griffin v. Vaughn, 112
F.3d 703, 706 (3d Cir. 1997) (holding administrative detention for fifteen months did not implicate
liberty interest). Accordingly, the Court finds that Whitenight has failed to state a claim for which
relief can be granted for the alleged violation of his due process rights and this claim will be
dismissed with prejudice.
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D.
The Amended Complaint Fails to State a Claim For Conspiracy Under 42 U.S.C. § 1983.
To prevail on a § 1983 conspiracy claim, a plaintiff must prove that persons acting under
color of state law conspired to deprive him of a constitutional right. Laurensau v. Romarowics,
528 F. App’x 136, 140 (3d Cir. 2013). A conspiracy claim that does not allege facts or is based
on plaintiff’s own suspicion or speculation is insufficient to state a claim for conspiracy. Young v.
Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991); Tindell v. Beard, 351 F. App’x 591, 594 (3d Cir.
2009) (“[M]ere conclusory allegations of deprivations of constitutional rights are insufficient to
state a conspiracy claim.” (quoting Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989)).
Whitenight’s claim that Defendants’ actions were a part of an overarching conspiracy can
easily be rejected. The allegations of the Amended Complaint are nothing more than his own
suspicion and speculation.
The Amended Complaint and the voluminous attachments thereto
reflect that Whitenight’s constitutional rights were not violated. Accordingly, Whitenight’s
conspiracy claim will be dismissed.
E.
The Court Will Not Exercise Supplemental Jurisdiction Over State Law Claims
Whitenight’s remaining claims allege various state law claims including, but not limited to
negligence, medical malpractice, intentional infliction of emotional distress, negligent infliction
of emotional distress, and corporate negligence.7 A District Court may decline to exercise
supplemental jurisdiction over state law claims if “the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C.A. § 1367(c). However, the Court of Appeals for the
Third Circuit has recognized, “where the claim over which the district court has original
The Amended Complaint also lists, without explanation, such violations as, inter alia,
“medical assault and battery,” “negligence supervision of employees and agents,” “the state tort
claim of equal protection / discrimination,” “civil conspiracy,” “prosecution of retaliation against
a witness,” “official oppression,” “reckless endangerment,” and “violation of business entities.”
7
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jurisdiction is dismissed before trial, the district court must decline to decide the pendent 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)) (emphasis in
original).
Here, the Court has found that Whitenight’s Amended Complaint fails to state viable
constitutional claims. Considerations of judicial economy, convenience, and fairness do not
provide an affirmative justification for maintaining Whitenight’s state law claims. Shaffer v. Bd.
of Sch. Dir. of Albert Gallatin Area S.D., 730 F.2d 910, 912–13 (3d Cir. 1984) (noting that “time
already invested in litigating the state cause of action is an insufficient reason to sustain the
exercise of pendent jurisdiction” and that “decisions of state law should be avoided both as a matter
of comity and to promote justice between the parties, by procuring for them a surer-footed reading
of applicable law”). Because the Court will dismiss the federal claims, and there is no diversity,
the Court will dismiss all state law claims without prejudice for want of jurisdiction. See
Burnsworth v. PC Lab., 364 F. App’x 772, 776 (3d Cir. 2010) (affirming a district court's decision
to decline supplemental jurisdiction over state law claims when the federal claims had been
dismissed); Alexander v. New Jersey State Parole Bd., 160 F. App’x 249, 251 (3d Cir. 2005)
(same).
Leave to Amend
The Court of Appeals for the Third Circuit has instructed that if a civil rights complaint is
vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment,
unless an amendment would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Given that the Court has already provided
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Whitenight with an opportunity to amend, further amendment of this pleading would be futile.
Shelley v. Patrick, 481 F. App’x 34, 36 (3d Cir. 2012).
Conclusion
For all the above reasons, the pending motions to dismiss will be granted on all of
Whitenight’s federal claims and these claims will be dismissed with prejudice. The Court will not
exercise supplemental jurisdiction over the state law claims and these claims will be dismissed
without prejudice to refiling in an appropriate state forum. An appropriate order follows.
Dated: December 12, 2019
BY THE COURT:
s/Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge
cc:
SHAWN WHITENIGHT
182 Evansville Road
Berwick, PA 18603
(via U.S. First Class Mail)
All Counsel of Record
(via ECF electronic notification)
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