United States District Court, M.D. Pennsylvania
September 30, 2005.
HAKEIM ROBINSON, Plaintiff,
ROBERT SHANNON, ET AL., Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
Hakeim Robinson filed this pro se civil rights action on
December 22, 2004, pursuant to 42 U.S.C. § 1983. He is currently
confined at the State Correctional Institution at Frackville
(SCI-Frackville), Pennsylvania. Named as Defendants are Robert
Shannon, Superintendent at SCI-Frackville, and the following
SCI-Frackville medical personnel: Barbara G. Malewski, Chief
Health Care Administrator; Dr. Scott Sterling, D.O.; and Joan
On February 3, 2005, an Order was issued directing service of
the complaint and denying a motion for the appointment of counsel
which had previously been filed by Plaintiff. (Dkt. Entry 8.)
Presently pending are motions to dismiss filed by Dr. Sterling
(Dkt. Entry 10) and Defendants Shannon, Malewski and Gibbons
(Dkt. Entry 26). Also pending is a second motion for appointment
of counsel (Dkt. Entry 16), and a motion to amend the complaint.
(Dkt. Entry 29.) For the reasons that follow, Plaintiff's motions for counsel
and to amend will be denied, and the motions to dismiss will be
In his complaint Robinson states that he injured his ankle at
SCI-Frackville in August of 2004. He went to the prison infirmary
and was told by Defendant Gibbons, a registered nurse, that his
ankle was sprained. Gibbons then provided Robinson with an ice
pack, Motrin and an ace bandage. Robinson claims that he was not
offered crutches or an x-ray to determine the extent of his
injuries, even though he had to hop "over 100 yards outside to
get to medical." (Dkt. Entry 1, Compl. at 3.)
On August 16, 2004, Robinson again signed up for sick call
because he noticed no difference in the pain or swelling of his
ankle. He requested crutches and that an x-ray be performed, but
only received a cane on that date. He claims that the cane was
useless. He acknowledges that an x-ray was performed four (4)
days later on August 20, 2004.
Several weeks later Robinson signed up for sick call because he
had not heard the results of the x-ray taken on August 20, 2004.
He was seen by Ms. Ellsworth, a physician's assistant, who did
not know what was wrong with his ankle. At that time Robinson
received a prescription for Motrin, which he had been previously
given for pain associated with the prior amputation of two toes
on his left foot.
The following week, a second x-ray of his ankle was taken. A
few weeks later, he again signed up for sick call to inquire as to the x-ray results.
Robinson alleges that he did not receive the correct diagnosis
of his ankle injury until he saw Dr. Sterling on October 18,
2004, who informed him that his ankle had been fractured.
Sterling noted the swelling and discoloration, and referred to
the injury as an "old fracture." (Id. at 4.)
Robinson contends that Defendant Shannon was deliberately
indifferent to his medical needs because he was aware of the
deficient and inadequate health care the medical department
provides to inmates. He claims that Nurse Gibbons was
deliberately indifferent in that she mis-diagnosed his condition
as a sprain, and failed to order an x-ray and crutches. He also
contends that he should have seen a doctor before his visit with
Defendant Sterling on October 18, 2004. He further claims that
the "professional assessment was well below marginal expectancy"
when Defendant Gibbons mis-diagnosed his condition as a sprain,
and then Defendant Sterling stated that it was best to allow the
fractured portion of the bone to dissolve. (Dkt. Entry 1, Compl.
at 5.) As relief Robinson requests compensatory damages.
A. Motion for appointment of counsel
On March 16, 2005, Robinson filed his second motion seeking the
appointment of counsel. (Dkt. Entry 16.) In the pending motion
Robinson reiterates the grounds for the appointment of counsel
presented in his initial motion: his inability to afford/obtain
counsel, the limitations prison imposes upon his ability to litigate the case
and the complexity of the issues involved. Robinson has responded
to the motion to dismiss in a comprehensible manner. As explained
below, the averments of the Complaint reflect a disagreement as
to the level of medical care received, but do not support
deliberate indifference to a serious medical need. Accordingly,
the instant motion will be denied.
B. Motion to amend complaint
On April 7, 2005, Plaintiff filed a document entitled
"Addendum" (Dkt. Entry 29) which the Clerk of Court has docketed
as a motion to amend the complaint in this action. In the motion,
Plaintiff seeks to raise new claims, including retaliation,
denial due process, violation of the free exercise of religion
clause of the First Amendment, and unconstitutional conditions of
confinement. These claims are asserted against individuals not
named originally as defendants in this action, including
Corrections Officer Reed.
It is evident that Plaintiff is not seeking to clarify or
amplify the deliberate indifference claim originally presented in
this matter. On the contrary, his "addendum" pertains to matters
occurring since this action was instituted. Pursuant to Federal
Rule of Civil Procedure 15(d), "[u]pon motion of a party the
court may . . . permit the party to serve a supplemental pleading
setting forth transactions or occurrences or events which have
happened since the date of the pleading sought to be
supplemented." Rule 15(d) gives district courts broad discretion
in allowing supplemental pleadings in the interests of justice
and judicial economy. See Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988.)
In the instant case, the supplementation of the original
complaint will not be permitted. First, the supplemental pleading
does not concern matters that relate to the claims originally
asserted. For example, Plaintiff does not complain of continuing
inadequate medical attention. Instead, he rather seeks to add new
defendants with regard to new claims which are more properly
pursued in a separately filed civil rights action. To permit
Plaintiff to add the unrelated claims would allow Plaintiff to
circumvent Rule 20(a) of the Federal Rules of Civil Procedure,
which authorizes joinder of claims and defendants "arising out of
the same transaction, occurrence, or series of transactions or
occurrences" that involve questions of law or fact common to all
defendants. No such commonality is present here. Furthermore, to
permit Plaintiff to insert into this action new claims against
additional defendants would allow him to circumvent the filing
fee requirements of the Prison Litigation Reform Act.
Accordingly, leave to amend the complaint will be denied.
C. Motions to dismiss complaint
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal
of a complaint for "failure to state a claim upon which relief
can be granted. . . ." A motion to dismiss should not be granted
if "under any reasonable reading of the pleadings, the
plaintiff? may be entitled to relief. . . ." Langford v. City
of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In making
that decision, all well-pleaded allegations in the complaint must
be accepted as true, Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000), and reasonable
inferences from the averments of the complaint must be drawn in
the plaintiff's favor. See United States v. Occidental
Chemical Corp., 200 F.3d 143, 147 (3d Cir. 1999). The court,
however, need not accept "bald assertions" or "legal
conclusions." Morse v. Lower Merion School District,
132 F.3d 902, 906 (3d Cir. 1997). Likewise, the court need not "conjure up
unpled allegations or contrive elaborately arcane scripts" in
order to breathe life into an otherwise defective complaint.
Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). A
district court should provide leave to amend "when amendment
could cure the deficiency and would not be inequitable." Grayson
v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002). A
complaint that sets forth facts which affirmatively demonstrate
that the plaintiff has no right to recover, however, is properly
dismissed without leave to amend. Id.; see also Estelle v.
Gamble, 429 U.S. 97, 107-08 (1976).
In order to establish a claim against Defendants for inadequate
medical care under § 1983 based on the Eighth Amendment, Robinson
must show "(i) a serious medical need, and (ii) acts or omissions
. . . that indicate deliberate indifference to that need."
Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d
Cir. 2003). A prison official acts with deliberate indifference
to an inmate's serious medical needs when he "knows of and
disregards an excessive risk to inmate health or safety. . . ."
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a prison
official's conduct does not constitute deliberate indifference
unless it is also accompanied by the requisite mental state.
Id. Accordingly, a complaint that a physician "has been negligent in diagnosing or treating a medical condition does
not state a valid claim of medical mistreatment under the Eighth
Amendment. . . ." Estelle v. Gamble, 429 U.S. 97, 106 (1976).
"A medical decision not to order an X-ray, or like measures, does
not represent cruel and unusual punishment. At most it is medical
malpractice." Id., 429 U.S. at 107. "[A]s long as a physician
exercises professional judgment his behavior will not violate a
prisoner's constitutional rights." Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). In sum,
negligence, unsuccessful medical treatment, or medical
malpractice does not give rise to a § 1983 cause of action, and
an inmate's disagreement with medical treatment is insufficient
to establish deliberate indifference. See Durmer v.
O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993.)
1. Dr. Sterling's Motion to Dismiss
Defendant Sterling has filed a motion to dismiss the complaint,
arguing that it contains no factual allegations supporting the
contention that Dr. Sterling was deliberately indifferent to
Plaintiff's medical needs. Dr. Sterling points to the complaint's
averments that Plaintiff did not see Dr. Sterling until the week
of October 18, 2004, when Plaintiff received "the correct
diagnosis of [his] injury." (Dkt. Entry 1, Compl. at 4.) This was
the first time Defendant Sterling had any contact with Plaintiff
with regard to this injury. There are simply no allegations that
Sterling had any knowledge or involvement in Plaintiff's prior
treatment or that he in any way had any knowledge of any
previously alleged inappropriate treatment.
At best, Plaintiff takes issue with Dr. Sterling's treatment
following his diagnosis. Sterling informed Plaintiff that because his injury appeared to be an "old
fracture," the method of treatment was to allow the bone to
dissolve, and that this procedure might take some time. This
claim is nothing more than a disagreement with a physician's
treatment. Plaintiff has not suggested that there was some other
way of treating the old fracture. Nor has he shown that Dr.
Sterling refused to prescribe pain medication. The fact that
Plaintiff may have wanted more x-rays or a different type of
treatment does not change this outcome. While Robinson may not
agree the course of treatment, he has not presented, and cannot
present under these circumstances, a viable cruel and unusual
punishment claim against Dr. Sterling. Accordingly, Dr.
Sterling's motion to dismiss will be granted.
2. Corrections Defendants' Motion to Dismiss
Defendants Shannon, Malewski and Gibbons move to dismiss the
complaint on the basis of failure to exhaust administrative
remedies as required under the Prison Litigation Reform Act
pursuant to 42 U.S.C. § 1997e(a). Section 1997e(a) provides that
no action shall be brought with respect to prison conditions by a
prisoner until such administrative remedies as are available are
The Pennsylvania Department of Corrections has an Inmate
Grievance System which permits any inmate to seek review of
problems that may arise during the course of confinement. Under
Department Policy DC-ADM 804, after an attempt to resolve any
problems informally, an inmate may submit a written grievance to
the prison Grievance Coordinator for initial review. If an inmate is dissatisfied with the response, he can appeal the
grievance to the Facility Manager, who is the Superintendent of
the institution where he is confined. If the inmate is
dissatisfied with the Superintendent's response, there is a final
level of review by the Secretary's Office of Inmate Grievances
and Appeals. (Dkt. Entry 32, Appendix, Ex. A".)
In his complaint Plaintiff acknowledges the existence of a
grievance procedure at SCI-Frackville. He further states that he
has filed a grievance with regard to the allegations set forth in
his complaint. Defendants move to dismiss the complaint on the
ground that Plaintiff did not complete the grievance procedure
with regard to his claims. In support of their argument they
submit the declaration of Tshanna Kyler, an Administrative
Officer 2 in the Secretary's Office of Inmate Grievances and
Appeals. (Id., Kyler Decl. ¶ 1.) Kyler states that Plaintiff
filed two grievances concerning the August 2004 medical treatment
of his ankle. The numbers assigned to the grievances were 101740
and 102614. While Plaintiff appealed the initial result of both
grievances, he failed to properly complete the appeals through
With regard to grievance 101740, Plaintiff's appeal to the
final level of review was dismissed due to his failure to include
all of the required documents needed for review. Prior to the
dismissal, he was sent a letter informing him of the omission.
While Plaintiff attempted to appeal a second time, he again
failed to forward the required documents. Thus, the appeal
process with regard to this grievance was not exhausted.
In grievance 102614, Plaintiff appealed to the Secretary's
Office but failed to include evidence of his appeal to the Superintendent and the
Superintendent's response. He was informed of the need to
complete the initial appeal to the Superintendent. Plaintiff
submitted no further response to the Secretary's Office with
regard to this appeal. Kyler states in her declaration that a
review of the department's records reveals that an appeal to the
Superintendent had not been filed by Plaintiff.
In opposing Defendants' motion, Plaintiff agrees that with
regard to grievance 101740, he did not initially send the
required documents with his appeal to the Secretary's Office.
However, after being informed of his omission, he states that he
resubmitted the documents. He also acknowledges being advised
following his second submission that his appeal was still missing
the appropriate documents. There is no allegation by Plaintiff
that he ever attempted to again submit the proper forms with his
appeal. Plaintiff argues that in his view his resubmission of
documents following the first notification from the Secretary's
Office was complete and that someone must have "removed" the
documents. Even if this were true, it does not relieve him of the
responsibility of notifying the Secretary's Office and
resubmitting the required documents once he received the second
notification from the Secretary's Office that his appeal remained
incomplete and could not be processed.*fn1 Plaintiff argues that he was unable to comply with the
Secretary's Office request regarding grievance 102614 because the
Superintendent did not respond to a grievance he allegedly filed.
This does not save Plaintiff from the exhaustion requirement in
this case for the following reasons. Plaintiff appealed grievance
102614 to the Secretary's Office. He failed to include a copy of
his appeal to the Superintendent and the Superintendent's
response. He was notified of the omission by the Secretary's
Office. No further response was submitted by Plaintiff to the
Secretary's Office. Plaintiff admits this. While he contends that
he could not produce the Superintendent's response because he
never received one, he could still have responded to the
Secretary's letter by producing a copy of his appeal and
explaining that the Superintendent never responded.*fn2
Plaintiff, however, did nothing and his appeal was in turn
dismissed by the Secretary's Office. Based on the foregoing, it
is clear that Plaintiff's claims against the Corrections
Defendants are subject to dismissal for failure to exhaust
Even if the Court were to find exhaustion with regard to these
claims, dismissal of the complaint would still be warranted for
the following reasons. With regard to Defendant Shannon, it is clear that Robinson only names him as a defendant in this
action due to his position as Superintendent at SCI-Frackville.
Liability may not be imposed under § 1983 on the traditional
standards of respondeat superior. Rode v. Dellarciprete,
845 F.2d 1195, 1207-08 (3d Cir. 1988). Further, even if Robinson
alleged that Shannon had some personal involvement in the alleged
wrongs, it is well-established that a non-physician defendant
cannot be considered deliberately indifferent for failing to
respond to an inmate's medical complaints when the inmate is
already receiving treatment from the prison's medical staff.
See Durmer, 991 F.2d at 69.
With regard to the remaining defendants, Robinson's averments
rise to nothing more than a disagreement with the medical
treatment he received, or at best negligence, which is not
actionable under § 1983. Every time Robinson alleges that he
requested to be seen at sick call for his ankle injury, he was
examined and treated. The medical department never refused to see
him. During his three infirmary visits in August of 2004, he was
given an ice pack, Motrin, an ace bandage, an x-ray and a cane.
While he may have desired that an x-ray be performed on his first
visit instead of his third visit, and while he may have wanted
crutches instead of a cane, these are mere disagreements with the
treatments ordered by Defendants and do not support an inference
of deliberate indifference. IV. CONCLUSION
For the reasons set forth above, this action will be dismissed.
An appropriate Order is attached. ORDER
NOW, THIS 30th DAY OF SEPTEMBER, 2005, in accordance with the
accompanying Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:
1. Plaintiff's motion for counsel (Dkt. Entry 16) is
2. Plaintiff's motion to amend (Dkt. Entry 29) is
3. Defendant Sterling's motion to dismiss (Dkt. Entry
10) is granted and the claims against him are
dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
4. The motion to dismiss filed by Defendants Shannon,
Malewski and Gibbons (Dkt. Entry 26) is granted and
the claims against them are dismissed pursuant to
Fed.R.Civ.P. 12(b)(6). 5. The Clerk of Court is directed to close this case.
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