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April 7, 2004.


The opinion of the court was delivered by: THOMAS O'NEILL, Senior District Judge



Plaintiff is an inmate in the custody of the Pennsylvania Department of Corrections (DOC) incarcerated at the State Correctional Institution at Graterford. Pursuant to 42 U.S.C. § 1983, in July, 2000, he commenced this pro se action against corrections officials Martin F. Horn, Donald T. Vaughn, David DiGugliemo, John K. Murray, Donna Hale, Julia Knauer, Russell Marshall, Mary Canino and Edward Dennis (Commonwealth defendants) in their individual and official capacities. Plaintiff alleged that defendants' actions violated his rights under the Eighth and Fourteenth Amendments and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102 et seq. Defendants Donna Hale, Julie Knauer and Robert Fagan now move for summary judgment and to dismiss plaintiff's most recent amended complaint pursuant to Rule 12(b)(6). For the reasons stated below, I will grant defendants' motion for summary judgment. II. BACKGROUND

  A. Facts

  Plaintiff alleges that the Commonwealth defendants required him to stand up in his cell for Graterford's 6:00 a.m. standing count even though he was taking medication that made it difficult for him to wake up in time for the count. He also alleges that he received a misconduct as a result of his failure to stand in the morning. The standing count procedure, requiring all prisoners to stand for a 6:00 a.m. headcount, was instituted in August 1999 following an escape by another inmate.

  Plaintiff began taking medication for insomnia and depression on or about March 25, 1999, after being examined by Dr. Klyashtorny for complaints of insomnia, frustration, and irritation. Klyashtorny diagnosed him with an adjustment disorder and gave him a prescription for Desyrel. Klyashtorny then spoke with plaintiff on August 27, 1999 about the possible negative effects his medication could have with regard to his ability to stand for the newly instituted 6:00 am count and made arrangements to have plaintiff receive his medication earlier than normal to ensure it would not impede his ability to wake up in the morning. Despite this arrangement, on September 3, 1999, plaintiff failed to stand for the 6:00 a.m. count and was issued a misconduct. Plaintiff was found guilty of the misconduct on September 6, 1999 and given 15 days in disciplinary custody. Because of his placement in disciplinary custody, plaintiff failed to show up for appointments he allegedly had with Klyashtorny on September 6 and 15, 1999. Plaintiff alleges he was not provided with medication for his disorder while he was in disciplinary custody.

  On September 20, 1999, pursuant to DOC policy, plaintiff sent an ADA accommodation request to defendant Hale that he be "allow[ed] two to three minutes once waken [sic] up to stand for the 6 a.m. count" because of the side effects of his medication. (Pl.'s Resp. Mot. S.J. Ex. 14). Plaintiff then filed a grievance regarding his inability to stand for the 6:00 am count on September, 21, 1999. (Id. Ex. 13). He subsequently repeated his request to defendant Hale on September 27, 1999. (Id. Ex. 15). Frank Botto answered plaintiff's grievance on October 19, 1999, referring plaintiff to Klyashtorny's conclusion that his "medication does not sedate significantly enough to interfere with Brook's [sic] ability to respond to the 6:00 am count." (Defs.' Mot. S.J., Ex. 4).

  Plaintiff had another appointment with Klyashtorny on September 27, 1999, when he was prescribed 75 mgs. of Desyrel to be taken at bedtime for thirty days. On October 25, 1999, plaintiff saw Klyashtorny again and told him he was frustrated with having to stand for the 6:00 am count and that he felt threatened by the guards and administration. Klyashtorny increased plaintiff's prescription to 100 mg of Desyrel at bedtime. Plaintiff continued to complain of anxiety and aggressive feelings when he saw Klyashtorny on November 22, 1999. At that time, the doctor continued plaintiff's 100 mg Desyrel prescription and also prescribed 25mg of Vistaril to be taken in the morning. On December 30, 1999, plaintiff told Klyashtorny that he was satisfied with his medication and had no complaints or side effects to report. The doctor reordered plaintiff's Desyrel and Vistaril prescriptions.

  B. Procedural History

  Plaintiff filed his original complaint in this action on August 30, 2000. On October 23, 2000, the Commonwealth defendants moved to dismiss plaintiff's complaint. I granted the motion and dismissed the complaint on April 25, 2001. Plaintiff subsequently filed an appeal. On November 22, 2002, the Court of Appeals affirmed my decision to dismiss Brooks' constitutional claims under the Fourteenth and Eighth Amendments against the Commonwealth defendants because plaintiff had not alleged the defendants participated in or had personal knowledge of and acquiesced in the alleged violation of plaintiff's rights. My decision with respect to plaintiff's claim under Title II of the ADA was vacated and remanded for further proceedings pursuant to the decision in Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir. 2002).

  Subsequent to the Court of Appeals' decision plaintiff filed an amended complaint on February 14, 2003 in which he reiterated verbatim the factual allegations set forth in his original complaint, added legal claims against Hale and Knauer for failing to give him an ADA hearing and added a new defendant, Lieutenant Fagan, in his individual and official capacities, and a constitutional claim against him for denying him his medication on five different occasions. Defendants Knauer, Fagan and Hale then moved for summary judgment on May 20, 2003. Plaintiff filed a second amended complaint on September 25, 2003, with the only alteration being the addition of Frank Botto as another individual defendant. Defendants Knauer, Fagan and Hale moved to dismiss plaintiff's second amended complaint on September 30, 2002.


  Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court has recognized that the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party may not rest upon the mere allegations or denials of the party's pleading. See Celotex, 477 U.S. at 324.

  I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute over facts "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the record taken as a whole in a light most favorable to the nonmoving party, "could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citation omitted). If the evidence for the nonmoving ...

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