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George v. Pennsylvania Department of Corrections

March 11, 2010

KEITH HOWARD GEORGE, PLAINTIFF
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(Judge Caputo)

MEMORANDUM

I. Introduction

On June 24, 2009, Keith Howard George, a prisoner presently incarcerated at the Dallas State Correctional Institution (SCI-Dallas), in Dallas, Pennsylvania, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants were deliberately indifferent to his serious medical needs and violated his rights under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, et seq., when they failed to grant him a permanent single cell designation due to his medical disability, Benign Muscular Fasciculation Syndrome. (Doc. 1, Compl.)

The Pennsylvania Department of Corrections (DOC) and the following DOC employees are named as defendants: Michael Klopotaski, Superintendent; Thomas Leskowsky, Acting Health Care Administrator and Facility Disabilities Accommodation Coordinator; Robin Lucas, Inmate Grievance Coordinator and Assistant to the Superintendent; Laurie Samulesich, Records Clerk; Jerome Walsh, Deputy Superintendent for Centralized Services; and Dorinda Varner, Central Office Grievance Coordinator.*fn1 Stanley Bohinksi, D.O., the contract Medical Director at SCI-D, who is not a DOC employee, is also named as a defendant in the Complaint.*fn2 All defendants are named in their individual and official capacities. (Doc. 1, Compl. at ¶ 12.)

Presently before the Court is Dr. Bohinski's and the DOC defendants' separate Motions to Dismiss Plaintiff's Complaint (docs. 8 and 14), and Plaintiff's Motion for Default (doc. 18). For the reasons that follow, Dr. Bohinksi and the DOC Defendants' motions to dismiss will be granted and Mr. George's Motion for Default will be denied. If desired, Plaintiff will be granted the opportunity to file an amended complaint only with respect to his ADA claim against the DOC itself.

II. Standard of Review

Fed. R. Civ. P. 12(b)(6) authorizes the dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). The court is not limited to evaluating the complaint alone.

The Court may also consider documents attached to the complaint and matters of public record. McTernan v. City of York, Penn., 577 F.3d 521, 526 (3d Cir. 2009)(citing Lum v. Bank of America, 361 F.3d 217, 221 n. 3 (3d Cir. 2004)).

While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), to survive a motions to dismiss a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, U.S. , , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). The mere possibility of misconduct falls short of meeting this plausibiilty standard. Iqbal, U.S. at , 129 S.Ct. at 1949-50. Rule 8 demands "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at , 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are insufficient to state a claim. Id. at , 129 S.Ct. at 1950. "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).

In resolving the motion to dismiss, the Court conducts "a two-part analysis." Fowler, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210 -11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a " 'plausible claim for relief' " Id. at 211 (quoted case omitted). In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. Phillips, 515 F.3d at 234 - 235.

Finally, we note that pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend, unless such an amendment would be inequitable or futile. See Phillips, 515 F.3d at 245 - 246 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).

III. Background

The following facts are taken from Mr. George's Complaint and the documents attached to it. For the purposes of deciding the defendants' motions to dismiss, all of the facts are taken as true, and have been construed in the light most favorable to Mr. George.

During his final years of service in the Army, staff at the Walter Reed Institute of Technology diagnosed Mr. George with Benign Muscular Fasciculation Syndrome (BFS) for which there is no known treatment. (Doc. 1, Compl. at ¶ 13.) Plaintiff was given pain killers and ordered to keep his stress level down. Id.

Mr. George is presently serving a double life sentence at SCI-Dallas. (Id. at ¶ 14.) In the early 1990's, Mr. George sought to control the stress that aggravated his BFS condition by requesting a single cell housing assignment. His initial request was denied. (Doc. 1-4, Pl.'s Exs. at R. 4.)*fn3 However, in "the early 2000's," SCI-Dallas officials granted Mr. George an "A Code" housing assignment. Such a designation permits an inmate to occupy a single cell (i.e. without a cell mate) as long as the prison population does not increase to the point of requiring officials to place another inmate in the same cell as an A code designee. (Doc. 1 at ¶ 15; Doc. 1-4 at R. 4.) On the other hand, a "Z Code" housing assignment is a medical designation requiring prison officials to place the inmate in a single cell regardless of the prison population. (Doc. 1 at ¶ 15.) While under an A code, Mr. George's quality of life improved and he was able to reduce his need for pain medication by 75%. (Id. at ¶ 16.) However, "a few years" ago due to an increase in prison population and the corresponding need for additional cell space, Mr. George was given a cellmate. (Id. at ¶ 17; Doc. 1-4 at RR. 4 - 5.)

Mr. George claims to be experiencing increased health problems as a result of the stress of double celling with another inmate. In November 2007, Mr. George experienced a severe cramp in his left bicep which "shot into his chest." Several days after this attack, when the pain would not subside, he sought medical attention. Mr. George claims his increased stress triggered this attack as well as caused an elevation in his blood pressure. Mr. George now takes medication to control his hypertension. (Id. at R. 7.) Plaintiff also reports an unidentified medical staff member informed him that he has "type one kidney failure." (Doc. 1 at ¶ 18.) Thirty days after he requested, and was given, a change in his pain medication his blood tests revealed that his kidney condition "was corrected." (Id.) As of January 28, 2009, Mr. George's kidneys functions were "back to normal." (Doc. 1-4 at R. 22).

On August 2008, Mr. George requested SCI-Dallas staff grant him a permanent single cell accommodations due to his BFS medical disability. See Doc. 1-4 at RR. 4 - 7. His request was referred to the institution's Facility Disabilities Accommodation Coordinator, Thomas Leskowsky, Acting Health Care Administrator. (Doc. 1-2 at RR. 2 - 3.) Mr. Lewskowsky consulted the medical department regarding Mr. George's request.

It was learned during Mr. Lewskowsky's inquiry into this matter that neither Dr. Kale, a psychiatrist, nor Dr. Bohinski, a medical doctor, "could justify the accommodation of a single cell based on" Mr. George's particular medical condition and that "there has not been any noted health changes or medical incidents directly related to Fasciculation syndrome documented in his medical record in recent time." (Id. at R. 2.) Mr. George's hypertension is presently controlled as a result of medication and regular chronic care clinic visits. No notations or complaints were found in Mr. George's medical chart relative to the incident of bicep pain. (Id.) Dr. Kale reported that Mr. George did not suffer from psychosis. (Id. at ¶ 3.) "Dr. Bohinski noted that there was no justification for a single cell accommodation, and the current housing assignment of 'A' code is appropriate and accommodates [Mr. George's] current health status." (Id.) Based on these findings, on September 19, 2008, Superintendent Klopotoski found that Mr. George's "current housing code is appropriate. A single cell accommodation for medical reasons is not recommended at this time." (Id. at RR. 2 - 3.) Superintendent Klopotoski noted that his decision did not question Mr. George's BFS diagnosis, but rather reflected that his condition did not limit one or more of his major life activities. (Id. at R. 3.)

Mr. George appealed Superintendent Klopotoski's decision to final review. (See Doc. 1-4 at R. 24.) Dorina Varner, the Chief Grievance Officer, referred final review of the grievance to the DOC's Bureau of Health Care Services. (Id.) On March 23, 2009, Mr. George was advised that: the Bureau of Health Services has reviewed [his] grievance and determined that the medical care provided to [him] by the medical department at SCI Dallas has been reasonable and appropriate. Z-code status is determined by the physician based on specific criteria.

The physician does not feel that you warrant Z-code status. No evidence of neglect or deliberate indifference ...


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