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Connolly v. Tennis

April 23, 2008

MICHAEL CONNOLLY, PLAINTIFF
v.
WARDEN FRANKLIN TENNIS, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Plaintiff, Michael Connolly, an inmate at the Rockview State Correctional Institution ("SCI-Rockview") in Bellefonte, Pennsylvania, initiated this action pro se by filing a civil rights complaint pursuant to the provisions set forth in 42 U.S.C. § 1983. Plaintiff subsequently filed an amended complaint (Doc. 15) in which he names two categories of SCI-Rockview employees as defendants: Valerie Senko, physician's assistant ("P.A."); and Kevin Burke, M.D., psychiatrist ("the Medical Defendants"); and Franklin Tennis, warden; Richard Ellers, health care supervisor; and Dobson, corrections officer ("the Corrections Defendants").

In his amended complaint, Plaintiff alleges that he received inadequate medical care, that he was retaliated against for filing grievances related to medical care, and that he did not obtain an adequate response to his grievances. He seeks compensatory and punitive damages as well as the suspension of the licenses of Dr. Burke and Defendant Senko.

Various motions presently are before the court, including motions to dismiss filed on behalf of Defendant Senko (Doc. 22) and Defendants Tennis, Ellers, and Dobson*fn1 (Doc. 25); Plaintiff's motion for leave to file an amended complaint (Doc. 44); and two motions for appointment of counsel (Docs. 37, 51). For the reasons set forth below, the motions to dismiss will be granted; the motion for leave to file an amended complaint will be denied as futile; and the motions to appoint counsel will be denied as moot.

I. Background

A. Allegations of Complaint

On January 15, 2007, Dr. Burke was deliberately indifferent to Plaintiff's psychiatric needs and caused him to be placed in a hard cell. (Doc. 15 at 2 ¶ 1.) He repeatedly denied Plaintiff proper care for severe anxiety and panic attacks after numerous recommendations by an unidentified physician's assistant. (Id.) Because Dr. Burke neglected to give him medication for blood pressure, Plaintiff suffered kidney pain and mental anguish. (Id. ¶ 2.) On January 16, 2007 at 3:00 a.m., emergency team members came to Plaintiff's cell to give him medicine and placed him on call to be seen by a doctor in the morning. (Id.) On January 17, 2007, Plaintiff filed a grievance regarding his medical treatment and his intent to file a law suit in federal court. (Id. at 3 ¶ 3.)

On January 19, 2007, Plaintiff became disoriented while in the medical waiting area. (Id.) An unidentified physician's assistant told Plaintiff to lie down until Dr. Burke examined him. (Id.) Defendant Dobson wrote a misconduct report against Plaintiff for lying down in the medical waiting area and for refusing to sit up when ordered. (Id. ¶ 4.) Plaintiff told Defendant Dobson that he was sick. (Id.) The misconduct report was the first retaliatory strike against Plaintiff for threatening to file a law suit. (Id. ¶ 6.)

On January 20, 2007, Plaintiff saw a jail sergeant who was working in the medical area on the day Plaintiff was placed in a hard cell, and he told Plaintiff that "they" were out to get him put in "the hole." (Id. ¶ 5.) The sergeant would not say who "they" were, but inferred that he meant the "high brass." (Id.) A property officer remarked to Plaintiff, "You're the one who likes to write guards up!!" (Id. ¶ 7.)

Thereafter, medical personnel were "hostile" to Plaintiff. (Id. ¶ 8.) On March 15, 2007, Plaintiff was at sick call for severe rectal bleeding, but was not seen by a physician's assistant because of an earlier lock down. (Id. ¶ 9.) Plaintiff was told to come back the next day. (Id.) However, Plaintiff was not seen the next day, even after his counselor called the medical unit. (Id. ¶ 10.) A misconduct report was filed against Plaintiff for refusing to go to work even though DOC policy states that inmates are to remain in their cells until they are seen by medical staff. (Id.) Because it was the weekend, Plaintiff had to wait four more days to see medical staff. (Id. ¶ 11.) An unidentified P.A. examined Plaintiff and gave him medicine. (Id.) Plaintiff was treated harshly because of his previously filed grievances. (Id. ¶ 12.)

As a result of a guilty finding on the misconduct charges filed against Plaintiff for refusing to go to work, he was not released on parole on April 16, 2007 as he had anticipated. (Id. at 4 ¶ 13.) Plaintiff did not get any relief as a result of appeals to the warden. (Id. ¶ 14.)

On August 1, 2007, Defendant Senko was hostile to Plaintiff at sick call. (Doc. 15 at 4 ¶ 15.) When Plaintiff told her that he was going to file a grievance against her, she told him to leave the medical area.*fn2 (Id.) Plaintiff filed a grievance that day, and Defendant Senko fabricated two misconduct reports against Plaintiff to avert them. (Id. ¶ 16.) As a result of Defendant Senko's false charges, Plaintiff was found guilty of the misconduct charges, spent five months in the restricted housing unit ("RHU") , and lost his opportunity for parole a second time. (Id. ¶ 17.) Plaintiff "informed" Defendants Tennis and Ellers, but was denied any relief. (Id. ¶ 18.) He believes that he was retaliated against by prison staff "from the warden on down." (Id. ¶ 19.)

In retaliation, Plaintiff was forced to share a cell with a special needs patient in the RHU, and a lieutenant there denied Plaintiff yard privileges and treated him in a hostile manner because the lieutenant is a friend of Defendant Senko's. (Id. ¶¶ 20, 21.) Plaintiff has Human immunodeficiency virus ("HIV") and was "put back on HIV medication due to his health deteriorating after 5 years of positive test results while not needing any meds." (Id. ¶ 22.) He believes that his health was harmed "due to the deliberate indifference and retaliation" of Defendants. (Id. at 5 ¶ 23.) Plaintiff continues to be retaliated against, and at the time of filing his amended complaint, he had just been informed that he was being transferred.*fn3 (Id. ¶ 24.)

B. Procedural History

On September 14, 2007, Plaintiff filed his original complaint. Service of the complaint was directed by Order dated September 19, 2007. (Doc. 7.)

On September 24 and 26, 2007, Plaintiff moved for leave to file an amended complaint. (Docs. 8, 9.) Because Plaintiff's complaint had not yet been served, the court denied Plaintiff's motions for leave to amend as moot and noted that Plaintiff still could file an amended complaint without leave of court. (Doc. 11.) Plaintiff filed an amended complaint on October 18, 2007. (Doc. 12.) However, because his amended complaint did not comply with Federal Rules of Civil Procedure 10(a) and 11(a), the Court provided Plaintiff with two blank § 1983 complaint forms and directed that, if he did not file an amended complaint, the court would proceed on his original complaint. (Doc. 13.) On November 9, 2007, Plaintiff filed an amended complaint (Doc. 15), which is the current complaint in this action.

Defendants filed three separate motions to dismiss. The first motion to dismiss (Doc. 20) was filed by Dr. Burke on December 31, 2007, along with a supporting brief (Doc. 21). Plaintiff did not timely file an opposition brief. Therefore, by Order dated January 24, 2008, the court directed Plaintiff to file his opposition to Dr. Burke's motion within fifteen days, or else the court would deem the motion unopposed. (Doc. 26.) Plaintiff failed to file an opposition brief, and thus by Order dated February 15, 2008, the court granted Dr. Burke's motion to dismiss as unopposed and terminated Dr. Burke as a party to this action. (Doc. 34.)

The second motion to dismiss (Doc. 22) was filed by Valerie Senko, P.A., on December 31, 2007. (Doc. 22.) Defendant Senko filed a supporting brief on January 15, 2008. (Doc. 23.) Plaintiff did not timely file an opposition brief, and therefore, by Order dated February 6, 2008, the court directed him to file an opposition brief within fifteen days, or else the court would deem the motion unopposed. (Doc. 33.)

The third motion to dismiss (Doc. 25) was filed by the Corrections Defendants on January 18, 2008. A supporting brief (Doc. 29) was filed on February 1, 2008. Because Plaintiff did not timely file his opposition, by Order dated February 25, 2008, the court directed him to do so within fifteen days or else the motion would be deemed unopposed.

On February 27, 2008, Plaintiff filed a motion to appoint counsel (Doc. 37). The next day, Plaintiff filed a letter (Doc. 36) with the court in which he requested more time to find an attorney and stated "I wish to drop the charges. Please let the deft's attorneys know that I quit." Because Plaintiff's intentions were unclear, by Order dated February 28, 2008, Plaintiff was directed to notify the court within ten days as to whether he sought voluntary dismissal of this action or to proceed. (Doc. 40.) By letter dated March 4, 2008, Plaintiff indicated that he wanted to proceed, but again requested counsel. (Doc. 51.)

On March 4, 2008, Plaintiff filed his opposition (Docs. 41, 42) to the Corrections Defendants' motion to dismiss. On March 6, 2008, Plaintiff filed his opposition to Defendant Senko's motion to dismiss. (Docs. 49-50.) On the same date, Plaintiff filed a motion for leave to file an amended complaint. (Doc. 44.) The court now will turn to a discussion of ...


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