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Anthony Haskins v. Dominick Derose


May 20, 2011


The opinion of the court was delivered by: (mannion, M.J.)



Presently pending before the court are: (1) an unopposed motion to dismiss the plaintiff's complaint filed on behalf of defendants Toolan and Fishel, ("Primecare defendants"), (Doc. No. 17), and (2) an unopposed motion to dismiss the plaintiff's complaint filed on behalf of defendant DeRose, (Doc. No. 21). Based upon the court's review of the record, it is recommended that both motions be denied in part and granted in part, and the plaintiff's complaint be dismissed.

On December 9, 2010, the plaintiff, currently an inmate at the State Correctional Institution, Camp Hill, Pennsylvania, filed the instant civil rights action pursuant to 42 U.S.C. §1983 in which he alleges that he received inadequate medical treatment. (Doc. No. 1). On the same day, the plaintiff filed the appropriate application to proceed in forma pauperis, (Doc. No. 2), and authorization form, (Doc. No. 3). As a result, a financial administrative order was issued. (Doc. No. 6).

By order dated January 10, 2011, it was directed that process issue. (Doc. No. 7).

On February 23, 2011, the Primecare defendants filed their motion to dismiss the plaintiff's complaint, (Doc. No. 17), along with a brief in support thereof, (Doc. No. 18).

On March 25, 2011, defendant DeRose filed his motion to dismiss the plaintiff's complaint, (Doc. No. 21), along with a brief in support thereof, (Doc. No. 22).

As of the date of this report, the plaintiff has failed to respond to either of the pending motions to dismiss. In light of the plaintiff's pro se status, however, the motions will be give a merits review pursuant to Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991).

The defendants' motions to dismiss are brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss brought pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). If the facts alleged by the plaintiff are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," dismissal of the complaint is inappropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (explaining a claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950 (quoting Twombly, 550 U.S. at 555). Moreover, a simple recitation of the elements of a cause of action supported by nothing more than conclusory statements is insufficient. Id. at 1949 (citing Twombly, 550 U.S. at 555).

A pro se complaint should be construed liberally, Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003), and "must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Before dismissing such a complaint as merely deficient, a court must grant leave to amend. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001);

Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

In his complaint, the plaintiff allege that, on August 15, 2010, he had a tooth pulled and the dentist, defendant Fishel, left the root inside of his mouth. The plaintiff indicates that he was given pain medication and was told that defendant Fishel would return to schedule an appointment for the plaintiff to see an oral surgeon.

On September 12, 2010, when defendant Fishel had not returned, the plaintiff alleges that he filed a grievance to see an oral surgeon. He indicates that during the time of his initial treatment and the time of his grievance he continuously received pain pills and antibiotics.

When no response was received to his initial grievance, on November 1, 2010, the plaintiff alleges that he filed a second grievance indicating that he was in "excruciating pain" and that he was getting headaches. Three days later, on November 4, 2010, the plaintiff was seen by defendant Fishel for follow-up. At that time, the plaintiff alleges that defendant Fishel informed him that his condition was not such that he needed to see an oral surgeon. The plaintiff alleges that defendant Fishel, as well as defendant Toolan, informed him that the root would dissolve or push out on its own.

In his complaint, the plaintiff alleges that the defendants acted with deliberate indifference to his medical needs in violation of his Eighth Amendment rights. He is seeking declaratory and injunctive relief, as well as compensatory and punitive damages. The plaintiff requests in his complaint that the court consider his claims "even though the prison grievance system was not completed."

In their motion to dismiss the plaintiff's complaint, the Primecare defendants argue that the plaintiff's complaint should be dismissed because he has admittedly failed to exhaust his administrative remedies and because he has failed to state a claim upon which relief can be granted.

Initially, with respect to the defendants' argument that the plaintiff failed to exhaust his administrative remedies, the Prison Litigation Reform Act, 42 U.S.C. §1997e(a), provides that "no action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available are exhausted."

Here, the plaintiff's complaint makes a plausible claim that he exhausted his administrative remedies. Although he indicates that the grievance process was not complete, he also alleges that he filed various grievances to which he never received a response. Assuming these facts to be true, as the court must do on a motion to dismiss, this is sufficient for exhaustion purposes. See Carter v. Morrison, 2007 WL 4233500 (E.D.Pa. Nov. 28, 2007)*fn2 ("a plaintiff who files grievances and receives no response has exhausted his or her remedies"). As such, the Primecare defendants' motion to dismiss the plaintiff's complaint for failure to exhaust his administrative remedies should be denied.

The Primecare defendants also argue that the plaintiff has failed to sufficiently state an Eighth Amendment claim upon which relief can be granted. Here, the court agrees.

The Eighth Amendment is violated with respect to the provision of medical care where a defendant acts with "deliberate indifference" to a plaintiff's "serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official acts with deliberate indifference when he or she "knows of and disregards an excessive risk to inmate health or safety." Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference may be evidenced by an intentional refusal to provided care, delayed provision of medical treatment for non-medical reasons, 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 by 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, the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim. 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). In the prison context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Clark v. Doe, 2000 WL 1522855, at *2 (E.D.Pa. Oct.13, 2000) ("courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care"). In fact, courts within the Third Circuit have consistently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received. See, e.g., Ham v. Greer, 269 F. App'x 149 (3d Cir. 2008); Bronson v. White, 2007 WL 3033865 (M.D.Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D.Pa.1997). Thus, on an Eighth Amendment claim, any attempt to second-guess the propriety or adequacy of a particular course of treatment is 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) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977)).

An inmate's dissatisfaction with a course of medical treatment, standing alone, also does not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 Fed. Appx. 228, 229 (8th Cir. 2002) (deliberate indifference claim failed when it boiled down to a disagreement over recommended treatment and decision not to schedule a doctor's appointment); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir. 1996) (inmate's disagreement with course of treatment fell short of demonstrating deliberate indifference). "[T]he exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D.Pa. 1997) (citations omitted).

Here, there is no indication of deliberate indifference on the part of the Primecare defendants. In fact, the only claim of involvement by defendant Toolan was that he agreed with defendant Fishel that the root would either dissolve or push out by itself. As to defendant Fishel, according to the plaintiff's complaint, she performed the procedure and provided the plaintiff with pain medication. Although she indicated that she would return to schedule the plaintiff for a consult with an oral surgeon, she did not. Instead, she followed up with the plaintiff and, upon examination, opined that the plaintiff did not need an oral surgeon consult. In the meantime, while the plaintiff was awaiting the follow-up, his complaint indicates that he was provided with pain medication and antibiotics. There is no indication from the plaintiff's complaint that defendant Fishel was made aware of the grievances filed by him in which he indicated that he was having pain and headaches due to his condition. In light of all of this, there is no indication that defendant Fishel was deliberately indifferent to the plaintiff's medical needs. Instead, it appears that the plaintiff is simply disagreeing with the treatment provided by defendant Fishel. On this basis, his complaint should be dismissed.

With respect to the motion to dismiss filed on behalf of defendant DeRose, he too argues that the plaintiff's complaint should be dismissed for his failure to exhaust administrative remedies. For the reasons set forth above, defendant DeRose's motion to dismiss on this basis should be denied.

Moreover, defendant DeRose argues that the plaintiff has failed to state a claim against him upon which relief can be granted in that the plaintiff has failed to set forth any allegations in the body of his complaint which would indicate that defendant DeRose violated the plaintiff's constitutional rights.

To state a claim under §1983, the plaintiff must show that the defendants, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C. §1983; Morse v. Lower Merion School District, 132 F.3d 902 (3d Cir. 1997); Maine v. Thiboutot, 448 U.S. 1 (1980). Liability under §1983 is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Moreover, relief cannot be granted against a defendant pursuant to §1983 based solely on the theory of respondeat superior or the fact that the defendant was the supervisor or superior of the person whose conduct actually deprived the plaintiff of one of his federally protected rights under color of state law. Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976); Goode v. Rizzo, 506 F.2d 542, 550 (3d Cir. 1974), rev'd on other grounds, Rizzo v. Goode, 423 U.S. 362 (1976).

Upon review of the plaintiff's complaint, other than naming defendant DeRose in the caption of his complaint, the plaintiff has failed to set forth any allegations with respect to him. It would appear that the plaintiff is attempting to name defendant DeRose based upon a theory of respondeat superior. As such, defendant DeRose's motion to dismiss the plaintiff's complaint should be granted on this basis.

On the basis of the foregoing, IT IS RECOMMENDED THAT:

(1) the Primecare defendants' unopposed motion to dismiss the plaintiff's complaint, (Doc. No. 17) , be DENIED to the extent it is argued that the plaintiff failed to exhaust his administrative remedies and GRANTED to the extent it is argued that the plaintiff has failed to state a claim upon which relief can be granted; and (2) defendant DeRose's unopposed motion to dismiss the plaintiff's complaint, (Doc. No. 21) , be DENIED to the extent that it is argued that the plaintiff failed to exhaust his administrative remedies and GRANTED to the extent that it is argued that the plaintiff has failed to state a claim upon which relief can be granted.

Malachy E. Mannion

MALACHY E. MANNION United States Magistrate Judge

Not Reported in F.Supp.2d, 2007 WL 4233500 (E.D.Pa.) (Cite as: 2007 WL 4233500 (E.D.Pa.)) Gary's Motion to Dismiss pursuant to Fed R. Civ. Only the Westlaw citation is currently available. P. 12(b)(6) (Docket No. 56) and Plaintiff's Declaration in Opposition (Docket No. 69); Defendant United States District Court, Taylor's Motion to Dismiss pursuant to Fed R. Civ. E.D. Pennsylvania. P. 12(b)(6) (Docket No. 57) and Plaintiff's Declara-Dana CARTER, Plaintiff, tion in Opposition (Docket No. 67); Defendant v. Carey's Motion to Dismiss pursuant to Fed R. Civ. Ronald MORRISON, Manny Arroyo, Bernon Lane, P. 12(b)(6) (Docket No. 61) and Plaintiff's Declara- Pamela Brown, Patricia Johnson, Lenora King, tion in Opposition (Docket No. 68); and Defendants Lauren Troppauer, Junius Russell, Community Community Education Centers and Monique Ro-Education Centers, Monique Rogers, Jose Al- gers's Motion for Joinder of Defendants King, varado, Elda Casillas, Freddie Harris, Thomas Troppauer, Russell, Morrison, Arroyo, Lane, and Costa, Paul O'Connor, Lawrence Murray, Dale Johnson's Motion to Dismiss pursuant to Evans, Lauren Taylor, Mark Carey, Willie Jones, Fed.R.Civ.P. 12(b)(6) and Motion to Strike the Julie Stowitzky, Thomas Pekar, Jeffrey Beard, Amended Complaint pursuant to Fed.R.Civ.P. 12(f)

Evans Gary, Defendants. . For the reasons stated below, Defendants' Motions to Dismiss are GRANTED in part and DENIED in

Civil Action No. 06-3000. part, and the Motion to Strike the Amended Com-Nov. 28, 2007. plaint is DENIED.

Dana Carter, Philadelphia, PA, pro se. I.


Carla P. Maresca, Sheryl L. Brown, Deasey, Ma- Plaintiff, Dana Carter, proceeding pro se, honey & Valentini, Ltd., Philadelphia, PA, for De- makes a number of claims against twenty-three defendants. fendants. These claims arise out of Plaintiff's confinement in the Joseph E. Coleman Center (the Beth Anne Smith, Office of Attorney General, Phil- "Coleman Center"), a halfway house (known as a adelphia, PA, for Defendants. community corrections center) where Plaintiff was serving a portion of his criminal sentence imposed in Pennsylvania state court.



*1 Presently before the Court are Defendants Because these motions are filed under Rule of O'Connor, Alvarado, and Casillas's Motion to Dis- Civil Procedure 12(b)(6), the Court must accept as miss, in part, pursuant to Fed.R.Civ.P. 12(b)(6) ( true all of Plaintiff's allegations.FN1 Docket No. 41), Plaintiff's Answer thereto (Docket No. 46), and Defendants O'Connor, Alvarado, and FN1. The Coleman Defendants have arCasillas's Reply to Plaintiff's Answer (Docket No. gued that the amended complaint should be 47); Defendants King, Troppauer, Russell, Morris- stricken under Federal Rule of Civil Proon, Arroyo, Lane, and Johnson's Motion to Dismiss cedure 12(f) because it is a supplement to pursuant to Fed.R.Civ.P. 12(b)(6) and Motion to the original complaint, and procedure re-Strike the Amended Complaint pursuant to quires one cohesive complaint. (Mem. Fed.R.Civ.P. 12(f) ( Docket No. 55), and Plaintiff's Supp. Defs.' Morrison, Arroyo, Lane, Declaration in Opposition (Docket No. 70); De- Johnson, King, Troppauer and Russell's fendants Costa, Murray, Stowitzky, Beard, and Mot. Strike Pursuant to F.R.C.P. 12(f),or © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Mot. Dismiss Pursuant F.R.C.P. 12(b) (6), During his stay at the Center, Plaintiff volunat 7-8.) Because Plaintiff proceeds pro se, teered in the kitchen. There was no bathroom in the and courts have an obligation to read a pro kitchen, and kitchen workers who needed to use the se litigant's pleadings liberally, this motion bathroom were directed to go outside, behind a is denied, and the Court will read dumpster. On July 21, 2004, Plaintiff was bitten by Plaintiff's amended complaint as he inten- a spider while relieving himself. The spider bite ded, as a supplement to the original com- resulted in abscesses that required medical treat-plaint. ment, including minor surgery. (Id. ¶¶ 26-30.) This risk was well known, yet Defendants Arroyo, MorOn March 1, 2004, Plaintiff was paroled to the rison, and Lane, all Center employees, as well as Coleman Center (the "Center") from the State Cor- the Community Education Center (CEC), rerectional Institute at Greene (SCI-Greene), a state peatedly refused to install a restroom. (Pl.'s Aff. 2.) penitentiary. (Compl.¶ 9.) Upon his arrival, he was After this incident, Plaintiff filed a grievance about given the Resident Handbook, which listed the Cen- the lack of a restroom, which went unanswered. ter's policies, procedures, and services. (Id. ¶ 9.) (Compl.¶¶ 28-29.) Plaintiff was bitten by another Plaintiff immediately began to question why certain spider on October 21, 2005, this time in his sleep-services were not being offered as promised in the ing quarters. He filed another grievance that again Handbook. Plaintiff also assisted other residents in went unanswered. That bite also resulted in abs-filing grievances about policy violations and un- cesses and medical treatment. (Pl.'s Aff. 5-6.) provided services. Writing to local politicians on his own behalf and on the behalf of others, Plaintiff On September 1, 2004, Defendants Alvarado advocated for change at the Center. (Pl.'s Aff. 1.) and Casillas arrested Plaintiff for technical parole violations. (Compl.¶¶ 31-33.) Plaintiff was held in a On July 1, 2004, Defendants Arroyo, King, and cold, smelly cell without access to a telephone, be-Brown, all employees at the Center, called Plaintiff fore being moved more than a day later to the State into King's office. They told Plaintiff that he was Correctional Institute at Graterford becoming a problem, and they suggested that he (SCI-Graterford) while he awaited a parole hearing. stop the "complaining and adjust like the rest." (Pl.'s Aff 3.) On September 8, 2004 Alvarado vis-Plaintiff did not stop raising his concerns, however. ited Plaintiff and advised him to plead guilty in or(Compl.¶ 17.) der to avoid a twelve month "parole hit." Plaintiff refused. (Compl.¶¶ 38.) He remained at SCI-*2 On the morning of July 11, 2004, Plaintiff Graterford until January 19, 2005, when he was heard a gunshot as he was leaving the Center on a transferred to SCI-Greene-still awaiting his parole social pass. He telephoned the police from a pay hearing. Upon arriving at SCI-Greene, Plaintiff was phone and then left for the day. When he returned, told he would be reparoled to the Coleman Center, he learned that a resident had been killed. Upon again under the supervision of Alvarado. No hear-seeing Defendant Alvarado, his parole agent, ing was ever given, and Plaintiff was not found Plaintiff told Alvarado that he had reported the guilty of any parole violations. (Compl.¶¶ 42-45.) shooting to the police, and because the shooting Plaintiff later determined that the technical viola-frightened him, Plaintiff requested a transfer. Al- tions that had been asserted were not violations at varado replied that Plaintiff should have minded his all, that in fact the complaint had been entirely fabown business and that he would not be transferred. ricated to retaliate against him for raising concerns Plaintiff then sent an official transfer application to at the Center. (Pl.'s Aff. 4.)

Arroyo, who was the Director of the Center.

Plaintiff never received a response. (Id. ¶¶ 19-25.) Upon his return to the Center, King told Plaintiff that he would have to start over at phase withdrew twenty percent of Plaintiff's earnings one at the Coleman Center, meaning the progress from each paycheck. There was nothing in the he made and privileges he attained prior to the pa- Handbook that mandated these deductions. Plaintiff role violation arrest were lost. Plaintiff protested asserts that Center employees were keeping these this decision since he had not been convicted of any funds for themselves. (Compl.¶¶ 11-14.) parole violations. King told Plaintiff that the decision had been made by Arroyo. Yet other resid- On July 14, 2005, Plaintiff was again arrested ents in similar situations were permitted to stay in for technical violations, this time on the false their previous phase. On February 10, 2005, charge that a phone was found by Defendant King Plaintiff requested that King ask Arroyo why he in Plaintiff's bed. The Center confined Plaintiff in had to start over from phase one. King asked Ar- the PennCapp unit, a part of the Coleman Center royo, but no reason was ever provided. Plaintiff where violators are confined and receive counsel-again formally requested from Arroyo that he be ing. On July 20, 2005, Alvarado visited Plaintiff. transferred. His request again went unanswered. ( He urged Plaintiff to plead guilty and thus avoid Id.) another stay at SCI-Graterford where he might remain until the expiration of his maximum sentence. *3 The stress from these events mounted and Under Alvarado's pressure, Plaintiff pleaded guilty. culminated in April 2005 when Plaintiff checked As a result, Plaintiff spent ninety days in the Pen-himself into the psychiatric ward at Episcopal Hos- nCapp program. (Compl.¶¶ 62-65.) While he was at pital where he stayed for one week. The hospital PennCapp, Arroyo and Morrison did not allow treated Plaintiff for depression and prescribed drugs Plaintiff to leave for doctors' appointments even that Plaintiff continues to take on a regular basis. though they permitted others in PennCapp to keep (Compl.¶¶ 53-56.) their appointments. (Id. ¶¶ 68-69.)

During this time, and at other times throughout In August, 2005, Arroyo resigned as Director his residence at the Coleman Center, Plaintiff sub- of the Coleman Center. Defendant Lane replaced mitted home plans. Based on the Court's best under- him. (Pl.'s Aff. 5.) standing of Plaintiff's allegations, a home plan consists of a request by a resident to be allowed to live Alvarado visited Plaintiff in PennCapp on outside the Center while on parole. The Center em- September 19, 2005. Plaintiff pleaded with Alployees and/or the parole agents then investigate varado to be transferred once he finished his ninety the plan to ensure that the resident will be moving days there. Alvarado agreed. However, when into a stable home. Plaintiff submitted many home Plaintiff was released, he once again had to report plans that were never investigated by anyone. (Id. ¶ to the Coleman Center-with Alvarado as his parole 57.) agent and phase one as his starting point. Defendant Troppauer was his new counselor. In response to

In May 2005, Plaintiff completed a course in his complaints about starting over again, Lane and waste removal. Thereafter, he began working at the Alvarado merely told him that he was lucky not to Philadelphia Naval Base, where he was paid $12.00 be back in prison. (Id.; compl. ¶¶ 71-74.) an hour. After just his third paycheck, Alvarado forced Plaintiff to quit his job, stating inaccurately *4 The problems persisted after Plaintiff's re-that Plaintiff was required to quit because the Naval turn. On December 13, 2005, Plaintiff was punished Base was unaware of his parole status. As a result, for unsubstantiated complaints made to the Center Plaintiff returned to his previous position in a fur- by Plaintiff's acquaintance from outside the Center. niture factory, earning $5.50 an hour. (Pl.'s Aff. As a result, Plaintiff was confined at the Center 4-5.) At all times during his residence, the Center during the holiday season. (Pl.'s Aff. 6.)

Also in December, a supervisor was fired in re- On April 25, 2006, Plaintiff had his parole response to complaints by Plaintiff and other resid- vocation hearing. Plaintiff still awaits the final deents, which created rising tension between the staff termination from this hearing. (Id.) and residents at the Center. Those who had complained about the fired supervisor were systematic- Plaintiff commenced this action on July 10, ally forced to leave the Center-sent back to prison 2006. or to PennCapp. (Id.) On January 9, 2006, Defendant Russell-who had only been hired as an Opera- B. THE CLAIMS tions Counselor as of December 19, 2005-searched After a review of Plaintiff's pleadings and De-Plaintiff as he arrived back to the Center from fendants' responses, the Court has determined that classes. Russell's search was "unprofessional and Plaintiff is making the following claims: rude." (Id.). Plaintiff filed another grievance. When 1. A series of damages claims and requests for Russell found out about the grievance, he filed a declaratory relief under 42 U.S.C. § 1983 for vi"special report" falsely claiming that Plaintiff and olations of Plaintiff's First, Fourth, Fifth, Eighth, two other residents had threatened him while con- and Fourteenth Amendment rights; ducting the search. Morrison assisted in filing the special report. On January 11, Plaintiff, along with *5 2. A damages claim under 42 U.S.C. § several others, was arrested for making the threats. 1985(3) for conspiracy; (Id. at 7.) Alvarado and Casillas were also involved in this plan to arrest those who had complained. Of 3. A claim under the Privileges and Immunities those arrested, at least three were African Americ- Clause of Article IV of the U.S. Constitution; an. Unlike residents of other races, they were not given the opportunity to have a case conference or 4. A request that the Court declare unconstitu-explain themselves. After the arrest, Plaintiff was tional 37 Pa. Cons.Stat. §§ 71.1(a) and 94.3; taken back to SCI-Graterford. (Id.) 5. A damages claim under the Racketeer Influ-

Alvarado visited Plaintiff, and he again sugges- enced and Corrupt Organizations Act (RICO), 18 ted that U.S.C.FN2 Plaintiff plead guilty, this time with the §§ 1961 et seq; promise to spend forty-five days at SCI-Graterford and return "back on track." Plaintiff refused. (Id.) FN2. Plaintiff now concedes that his On January 24, 2006 there was an initial parole claims under the Privileges and Immunity hearing. Russell gave testimony, and the charges Clause of Article IV, under RICO, and his were not dismissed. After the hearing, Defendant request that the Court declare 37 Pa. Harris, another Center employee, told Plaintiff that Cons.Stat. §§ 71.1(a) and 94.3 unconstitu"they have wanted to get you for a long time." Har- tional all lack merit. (See Pl.'s Answer to ris would not say who "they" were. Plaintiff learned Original Commonwealth Defs.' Mot. Dis-from his follow residents that Morrison had a list of miss Pl.'s Am. Compl. 3, 10.) Therefore, residents he wanted removed from the Center. these claims are dismissed as to all the de-Those who had complained about the fired super- fendants. visor were each on this list. (Id.) On January 26, 2006, Plaintiff sent a letter to the Center asking for 6. A series of damages claims under state law, inan update on his grievance of January 9, 2006 and cluding breach of duty, abuse of authority, abuse for his belongings and money the Center allegedly of process, malicious prosecution, false arrest, still owed him. No response ever came. (Id. at 8.) false imprisonment, intentional infliction of mental and emotional distress, defamation, breach of contract, and conversion.FN3 Pl.'s Compl.)

FN3. The Court has interpreted Plaintiff's FN4. Plaintiff now concedes that his claims of "destruction of property" and claims against O'Connor lack merit. (See "unauthorized appropriation of funds" as a Pl.'s Answer to Original Commonwealth conversion claim. Defs.' Mot. Dismiss Pl.'s Am. Compl. 12.)

Therefore, all the claims against O'Connor

7. A request for injunctive relief requiring De- are dismissed. fendants to return Plaintiff's lost wages and property; to end Defendants Alvarado's and Casillas's The second group, referred to as the oversight of Plaintiff; and to prevent the defend- "Additional Commonwealth Defendants," includes ants from committing "further misconduct, retali- Jeffrey A. Beard and Evans Gary, Officials in the ation, racial discrimination, or official abuse." DOC; and Lawrence Murray, Julie Stowitzky, and (Am.Compl.8.) Thomas Costa, Parole Board employees. These defendants were added in Plaintiff's Amended Com-C. THE DEFENDANTS AND THE GROUNDS plaint. (Am.Compl.¶¶ 5-6.)


Nineteen Defendants have submitted motions The motion to dismiss on behalf of the Addito dismiss under Federal Rule of Civil Procedure tional Commonwealth Defendants is largely the Rule 12(b)(6). In some cases, the arguments over- same, with the following additional arguments set lap, and in others, groups of defendants make dif- forth: (1) that Plaintiff fails to state a claim for fering arguments. This section delineates the groups which relief may be granted under the First and of defendants and their asserted grounds for dis- Fourth Amendments; and (2) that Plaintiff's section missal. 1983 claims fail against the Additional Commonwealth Defendants because they do not state any The first group, referred to as the personal involvement by the Additional Common-"Commonwealth Defendants," includes Paul wealth Defendants in the alleged constitutional O'Connor, the Director of the Bureau of Com- wrongdoing. (See Additional Commonwealth Defs.' munity Corrections within the Department of Cor- Mot Dismiss Pl.'s Am. Compl.) rections (DOC); Jose Alvarado, a Parole Agent for the Pennsylvania Board of Probation and Parole *6 Defendants Lauren Taylor and Mark Carey (the "Parole Board"); and Elda Casillas, a Parole each submitted their own motions to dismiss. In Supervisor for the Parole Board. each case, they set forth the same general arguments, but these parties argue additionally that beThe Commonwealth Defendants assert (1) that cause there are no allegations of personal involve-Plaintiff fails to state a claim upon which relief may ment, the section 1983 claims must fail. (See Def. be granted under the Fifth, Eighth, and Fourteenth Taylor's Mot Dismiss Pl.'s Am. Compl.; Def. Amendments, the Privileges and Immunities Carey's Mot Dismiss Pl.'s Am. Compl.)

Clause, and RICO; (2) that Plaintiff's conspiracy claim under section 1985(3) fails because the com- The third group, referred to as the "Coleman plaint and amended complaint lack the required Defendants," consists of Ronald Morrison, Manny specificity; and (3) that sovereign immunity bars Arroyo, Bernon Lane, Nicole Johnson, Lenora Plaintiff's state law claims. In addition, the Com- King, Lauren Troppauer, and Junius Russell, all of monwealth Defendants assert that there are no cog- whom were employed at the Coleman Center durnizable claims whatsoever against O'Connor.FN4 ( ing at least some portion of the period of Plaintiff's See Commonwealth Defs.' Mot Dismiss, in Part, allegations.

This group has generally asserted the same 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). grounds for dismissal as those above, with the fol- Courts must apply the applicable law, regardless of lowing additions: (1) that Plaintiff failed to pursue whether the pro se litigant cited the applicable law and exhaust administrative remedies; (2) to the ex- or referenced it by name. Holley, 165 F.3d at 248. tent that there are claims stemming from activity A complaint filed by a pro se party should not be prior to July 10, 2004, that Plaintiff failed to timely dismissed under Rule 12(b)(6) "unless it appears commence this action under the statute of limita- beyond doubt that the Plaintiff can prove no set of tions; and (3) that Plaintiff's intentional infliction of facts in support of his claim which would entitle emotional distress claim fails as a matter of law. ( him to relief." Hughes v. Rowe, 449 U.S. 5, 10, 101 See Defs. Morrison, Arroyo, Lane, Johnson, King, S.Ct. 173, 66 L.Ed.2d 163 (1980).

Troppauer, and Russell Mot. Strike and Mot Dismiss.) The Coleman Defendants have not, however, III. DISCUSSION claimed that Plaintiff's state law claims are barred by sovereign immunity.


This group also now includes Monique Rogers *7 The Coleman Defendants argue that all of and the Community Education Centers (CEC), who Plaintiff's claims arising out of conduct prior to Ju-have joined the Coleman Defendants' motion to dis- ly 10, 2004 should be dismissed for failure to miss. In addition, the CEC argues that, as a muni- timely commence this action under the statute of cipal organization, it cannot be held liable under limitations. This part of the Coleman Defendants' section 1983 because Plaintiff does not allege that a Motion to Dismiss is denied because, even assum-decision maker with final authority either instituted ing that the Coleman Defendants' analysis of the or approved others' decision to institute unconstitu- statute of limitations is correct, the Court concludes tional policies. (See Joinder Mot. Defs. Rogers and that none of Plaintiff's claims rely on conduct prior Community Educations Center to Defs. Morrison, to July 10, 2004. The only references to events pri-Arroyo, Lane, Johnson, King, Troppauer, and Rus- or to this date are merely background in nature and sell Mot. Strike and Mot Dismiss.) as such do not form the basis of any of Plaintiff's claims. (See Pl.'s Aff. 1-2.)

A motion to dismiss pursuant to Federal Rule B. EXHAUSTION OF ADMINISTRATIVE of Civil Procedure 12(b)(6) tests the legal suffi- REMEDIES ciency of a complaint. Conley v. Gibson, 355 U.S. Under the Prison Litigation Reform Act 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The (PLRA), a prisoner who is "confined in any jail, motion "may be granted only if, accepting all well- prison, or other correctional facility" may not bring pleaded allegations in the complaint as true, and a claim "with respect to prison conditions under viewing them in the light most favorable to section 1983 of this title, or any other Federal law, plaintiff, plaintiff is not entitled to relief." Maio v. until such administrative remedies as are available Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000). The are exhausted." 42 U.S.C. § 1997e(a). Failure to ex-defendant bears the burden of persuading the Court haust administrative remedies is an affirmative de-that no claim has been stated. Gould Elecs., Inc. v. fense that the defendants must plead and prove. Ray United States, 220 F.3d 169, 178 (3d Cir.2000). v. Kertes, 285 F.3d 287, 295 (3d Cir.2002). Furthermore, "[t]he PRLA does not require exhaustion of The Court notes that it has an obligation to read all remedies. Rather, it requires exhaustion of such a pro se litigant's pleadings liberally. Holley v. administrative remedies 'as are available.' " Brown Dept. of Veterans Affairs, 165 F.3d 244, 247-48 (3d v. Croak, 312 F.3d 109, 111 (3d Cir.2002) (quoting Cir.1999) (citing Haines v. Kerner, 404 U.S. 519, 42 U.S.C. § 1997e(a)).


The issue here is whether Plaintiff exhausted considered whether a plaintiff had exhis "available" administrative remedies by filing hausted his remedies when after filing an grievances to which he received no response. The initial grievance he received no response. Coleman Defendants assert that exhaustion "means completing all available appeals, even if prison of- Turning to the facts here, Plaintiff has alleged ficials do not respond." (Mem. Law Supp. Defs. that he repeatedly filed grievances that went un-Morrison, Arroyo, Lane, Johnson, King, Troppauer, answered. He repeatedly filed requests that he be and Russell Mot. Strike and Mot Dismiss 9.) The transferred; they too went unanswered. Therefore, cases they cite, however, do not support this pro- noting that we are at the motion to dismiss stage position.FN5 The Third Circuit has not answered and we must accept Plaintiff's allegations as true, this question squarely. In Croak, the Third Circuit the Court will not dismiss any of his claims for fail-held that a plaintiff had exhausted his remedies ure to exhaust. where officers misleadingly told him he was not required to file a grievance. In such a circumstance, C. STATE TORT CLAIMS the court concluded, the plaintiff exhausted his 1. SOVEREIGN IMMUNITY remedies because, in essence, the grievance procedure had not been "available." Croak, 312 F.3d at *8 All of the defendants except the Coleman 112-13; see also Mitchell v. Horn, 318 F.3d 523, Defendants seek to dismiss Plaintiff's state law 529 (3d Cir.2003) (concluding that a prisoner claims based on sovereign immunity. Under the lacked an "available" administrative remedy where doctrine of sovereign immunity, plaintiffs are prison officials refused to provide him with the ne- barred from bringing state tort claims against emcessary forms). A number of other circuits have ployees of Commonwealth agencies who are acting concluded that a plaintiff who files grievances and within the scope of their duties unless the case falls receives no response has exhausted his or her rem- under one of several enumerated exceptions. FN6 1 edies. See Carroll v. Gricewich, No. Pa. Cons.Stat. § 2310; 42 Pa. Cons.Stat. § 8522; 1:07-cv-00070, 2007 WL 1521473, at *2 (E.D.Cal. McGrath v. Johnson, 67 F.Supp.2d 499, 511 May 22, 2007) (noting that the Fifth, Sixth, Sev- (E.D.Pa.1999). enth, Eighth, and Tenth Circuits have all concluded that administrative remedies are exhausted when FN6. The exceptions are as follows: (1) grievances receive no reply). This Court concurs vehicle liability; (2) medical-professional with this view. liability; (3) care, custody, or control of personal property; (4) Commonwealth real FN5. The Coleman Defendants cite two estate, highways, and sidewalks; (5) cases. In Davis v. Warman, the Third Cir- potholes and other dangerous road condicuit held that simply because language set- tions; (6) care, custody, or control of animting forth rules for filing grievances was als; (7) liquor store sales; (8) National permissive, the plaintiff was not excused Guard activities; and (9) toxoids and vac-from meeting the PLRA's exhaustion re- cines. 42 Pa. Cons.Stat. § 8522. It might be quirements. 49 Fed. Appx. 365, 367 (3d argued that the third of these exceptions Cir.2002). In Brown v. Morgan, a Sixth applies because Plaintiff alleges that the Circuit case that is not at all relevant here, Coleman Center and its employees failed the Court held that the statute of limita- to return his property and took a portion of tions tolled while the plaintiff exhausted his earnings. However, these allegations his available administrative remedies. 209 implicate only the Coleman Defendants, F.3d 595, 596 (6th Cir.2000). Neither case who have not raised the sovereign im-munity defense. Abington Twp., 131 Pa.Cmwlth. 637, 571 A.2d 543 (Pa.Commw.Ct.1990). Here, all the employees as-Plaintiff concedes that the Commonwealth De- serting the defense of sovereign immunity are Comfendants, the Additional Commonwealth Defend- monwealth employees, not local agency employees, ants, Mark Carey, and Lauren Taylor are all em- and thus this exception does not apply. ployees of either the Department of Corrections or the Parole Board. (See Amended Compl.¶¶5, 6a.) Therefore, because all of the alleged conduct They are thus entitled to the protection afforded by took place within the scope of the defendants' em-sovereign immunity. See Maute v. Frank, 441 ployment and because none of the enumerated exPa.Super. 401, 657 A.2d 985, 986 ceptions applies to this case, Plaintiff's state law (Pa.Super.Ct.1995) (applying sovereign immunity claims must be dismissed as to the Commonwealth defense on behalf of state prison officials); Wilson Defendants, the Additional Commonwealth De-v. Marrow, 917 A.2d 357 (Pa.Commw.Ct.2007) fendants, Defendant Carey, and Defendant Taylor. (applying sovereign immunity defense on behalf of parole board officials). Additionally, as set forth in 2. PLAINTIFF'S STATE LAW CLAIMS the complaint, the acts for which the defendants are AGAINST THE COLEMAN DEFENDANTS being sued were clearly conducted within the scope *9 While the Coleman Defendants do not raise of their duties as employees of the Department of a sovereign immunity defense, they still argue that Corrections or Parole Board. Plaintiff does not dis- all of the state law claims should be dismissed. pute this conclusion. They argue that the "only state law claim that can be attributable to [the] Coleman Defendants is the Plaintiff does, however, make two arguments claim for Intentional Infliction of Emotional Disfor why the sovereign immunity defense does not tress." (Mem. Law Supp. Defs. Morrison, Arroyo, apply here. First, he argues that sovereign immunity Lane, Johnson, King, Troppauer, and Russell Mot. does not preclude his state law claims to the extent Strike and Mot Dismiss 22 n. 1.) And as to the in-that they seek damages from defendants in their in- tentional infliction of emotional distress claim, they dividual capacities. (Pl.'s Answer to Original Com- argue that the Pennsylvania Supreme Court has not monwealth Defs.' Mot. Dismiss Pl.'s Am. Compl. recognized this cause of action, or, in the alternat-10-12.) This argument is unavailing because, con- ive, that Plaintiff has failed to establish the eletrary to his contentions, sovereign immunity does ments of the claim. (Id.) "bar [ ] monetary relief claims against state defendants acting in their individual capacity." Story v. While it is true that the Pennsylvania Supreme Mechling, 412 F.Supp.2d 509, 519 (W.D.Pa.2006) Court has not definitively determined the viability (citing Maute, 657 A.2d at 986). Second, Plaintiff of an intentional infliction of emotional distress argues that the defense does not apply because his claim, the Third Circuit has generally concluded allegations "constitute a crime, actual fraud, actual that Pennsylvania law does recognize the tort. See, malice or willfull misconduct." (Pl.'s Answer to e.g., Brown v. Muhlenberg Twp., 269 F.3d 205, Original Commonwealth Defs. 10-12.) This argu- 218-19; Cox v. Keystone Carbon Co., 861 F.2d 390, ment also fails. Commonwealth employees are im- 394-95 (3d Cir.1988). The elements of this claim mune from liability even for intentional torts. La are "(1) the conduct must be extreme and out-Frankie v. Miklich, 152 Pa.Cmwlth. 163, 618 A.2d rageous; (2) the conduct must be intentional or 1145, 1149 (Pa.Commw.Ct.1992). It is only local reckless; (3) it must cause emotional distress; and agency employees who lose their immunity defense (4) the distress must be severe." Chuy v. Phil-when their actions constitute a crime, actual fraud, adelphia Eagles Football Club, 595 f.2d 1265, actual malice, or willful misconduct. See Cassidy v. 1273 (3d Cir.1979) (citing Restatement (Second) of Torts § 46).

The Coleman Defendants argue that Plaintiff's without merit. To the extent that Plaintiff states allegations fail to establish the first and last of these cognizable claims for breach of duty, abuse of au-elements. Plaintiff has alleged that he spent one thority, abuse of process, false arrest and imprison-week in a psychiatric ward of a hospital as a result ment, and conversion,FN7 the facts clearly implicof-at least in part-the Coleman Defendants' con- ate at least some of the Coleman Defendants.FN8 It duct. Such allegations, if proved true, could meet is the Coleman Defendants who allegedly took the element of severe emotional distress. As to the twenty percent of Plaintiff's earnings in addition to element of outrageous conduct, under Pennsylvania other property without authorization and the Cole-law, a plaintiff must allege conduct that is " 'so out- man Defendants who allegedly engineered the rageous in character, and so extreme in degree, as scheme to keep Plaintiff incarcerated by falsely acto go beyond all possible bounds of decency, and to cusing him of making threats. Therefore, the state be regarded as atrocious, and utterly intolerable in a claims against the Coleman Defendants will not be civilized society.' " Hoy v. Angelone, 554 Pa. 134, dismissed. 720 A.2d 745, 754 (Pa.1998) (quoting Buczek v. First Nat'l Bank of Mifflintown, 366 Pa.Super. 551, FN7. The Coleman Defendants, it should 531 A.2d 1122, 1125 (Pa.Super.Ct.1987)). "As a be noted, do not argue that any of Plaintiffs preliminary matter, it is for the court to determine if state law claims, other than the intentional the defendant's conduct is so extreme as to permit infliction of emotional distress claim, fails recovery." Cox, 861 f.2d at 395. Third Circuit as a matter of law. Therefore, the Court courts have, for example, refused to dismiss inten- will not consider whether Plaintiff has altional infliction of emotional distress claims leged the elements of these claims to the brought by prisoners based on allegations that pris- extent that they are cognizable. on officials failed to protect inmates from sexual assaults, see, e.g., White v. Ottinger, 442 F.Supp.2d FN8. To the extent that Plaintiff makes a 236, 251 (E.D.Pa.2006); Belt v. Geo Group, Inc., claim of defamation, the claim is dismissed No. 06-1210, 2006 WL 1648971, at *3 (E.D.Pa. against all defendants because sovereign June 12, 2006), and failed to take seriously a pris- immunity protects all the defendants exoner's medical problems. See Rodriguez v. Smith, cept the Coleman Defendants, and the No. 03-3675, 2005 WL 1484591, at *9 (E.D.Pa. Coleman Defendants are not implicated in June 21, 2005). Additionally, "Pennsylvania courts Plaintiff's defamation claims. To the extent have ... indicated that they will be more receptive that Plaintiff claims there was a breach of [to intentional infliction of emotional distress contract, this too is dismissed as to all de-claims] where there is a continuing course of con- fendants. A breach of contract claim would duct." Williams v. Guzzardi, 875 F.2d 46, 52 (3d be frivolous because Plaintiff has not alCir.1989). This Court concludes that at this stage of leged the formation of a contract. the litigation, where Plaintiff claims that he was C. SECTION 1983 CLAIMS continuously prevented from completing the Center A plaintiff may bring a claim under 42 U.S.C. program and systematically retaliated against for § 1983 by alleging that a person acting under color exercising his rights, the Court cannot dismiss of state law deprived him of rights, privileges, or Plaintiff's intentional infliction of emotional dis- immunities secured by the Constitution. Kost v. tress claim. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993). Sec- *10 The Coleman Defendants' assertion that tion 1983 is not itself a source of substantive rights; Plaintiff's other state law claims should be dis- to establish a claim, a plaintiff must allege a viola-missed because they are not attributable to them is tion of federal rights established "elsewhere in the Constitution or the federal laws." Kneipp v. Ted- der, 95 F.3d 1199, 1204 (3d Cir.1996) grievances and, aside from receiving no response, the Defendants retaliated against him by, among Liability under section 1983 cannot rest solely other things, arresting him for parole violations, on respondeat superior. A defendant must have per- forcing him to start over within the Coleman Censonal involvement in the alleged constitutional viol- ter's program, refusing to perform home studies, ation to be held liable. Rode v. Dellarciprete, 845 and otherwise preventing him from completing his F.2d 1195, 1209 (3d Cir.1988). However, " sentence. '[a]ctual knowledge and acquiescence' suffices for supervisory liability because it can be equated with The Coleman Defendants argue that Plaintiff 'personal direction' and 'direct [action] by the su- did not engage in constitutionally protected conpervisor.' " Robinson v. City of Pittsburgh, 120 duct. However, the Third Circuit has clearly held F.3d 1286, 1294 (3d Cir.1997), abrogated on other that when prisoners file complaints or grievances grounds by Burlington N. & Santa Fe Ry. Co., --- they are engaging in constitutionally protected U.S. ----, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) activity. See Robinson v. Taylor, 204 Fed. Appx. (quoting Andrews v. City of Phila., 895 F.2d 1469, 155, 157 (3d Cir.2006) ("[Plaintiff's] filing of a 1478 (3d Cir.1990)). grievance to complain about [Defendant's] behavior is constitutionally protected conduct."); Mitchell v. Plaintiff claims that the defendants violated his Horn, 318 F.3d 523, 530 (3d Cir.2003) First, Fourth, Fifth, Eighth, and Fourteenth Amend- ("[Plaintiff's] allegation that he was falsely charged ment rights. Plaintiff alleges the same facts as the with misconduct in retaliation for filing complaints bases for each of these claims and has failed to ex- against Officer Wilson implicates conduct protected plain in detail how the defendants' conduct de- by the First Amendment."); Smith v. Mensinger, prived each individual right. The Court has ex- 293 F.3d 641, 653 (3d Cir.2002) ("We have ... held amined each claim and has applied the most relev- that falsifying misconduct reports in retaliation for ant law based on Plaintiff's allegations. Plaintiff has an inmate's resort to legal process is a violation of withdrawn his claim under the Fifth Amendment. ( the First Amendment's guarantee of free access to See Pl.'s Answer to Original Commonwealth Defs.' the courts.").

Mot. Dismiss 3.) The others are considered in turn.

Plaintiff's allegations also establish the second

1. FIRST AMENDMENT element-that the defendants took adverse action. The only viable First Amendment claim by Specifically, Plaintiff has alleged that he was arres- Plaintiff appears to be that he was retaliated against ted three times, twice being sent back to prison and for making constitutionally protected statements. once being confined in PennCapp. As the Third The elements for a retaliation claim under the First Circuit has stated, "several months in disciplinary Amendment are as follows: confinement would deter a reasonably firm prisoner from exercising his First Amendment rights."

(1) constitutionally protected conduct, (2) an ad- Mitchell, 318 F.3d at 530. Moreover, this Court verse action by prison officials 'sufficient to de- concludes that by forcing Plaintiff to start over at ter a person of ordinary firmness from exercising "phase one," and refusing to do a "home study," dehis [constitutional] rights,' and (3) 'a causal link fendants may have taken further adverse acts. It is between the exercise of his constitutional rights not entirely clear what it means to have to start and the adverse action taken against him.' from phase one, but there is at least an issue of fact *11 Mitchell v. Horn, 318 F.3d 523, 530 (3d that by starting the program from the start, Cir.2003) (quoting Rauser v. Horn, 241 F.3d 330, Plaintiff's overall confinement was lengthened sig-333 (3d Cir.2001)). Plaintiff alleges that he filed nificantly because he had to proceed through the stages that he had already completed. Similarly, cision to force Plaintiff to start from phase one of when the Defendants refused to perform a home the program again appears to have been made by study, it appears that they contributed to Plaintiff's Lane and Troppauer this time. The final alleged ar-continued confinement. The Court makes no find- rest, made January 11, 2006, implicates several ing here as to whether these are in fact adverse acts, more defendants. Plaintiff alleges that Morrison, only that at the motion to dismiss stage it is disput- Russell, Alvarado, and Casillas conspired to retaliable that they would deter a reasonably firm prison- ate against plaintiff for filing a grievance concerner from exercising his First Amendment rights. ing Russell's search of Plaintiff.

Plaintiff's allegations have also established the Because Plaintiff does not allege personal infinal element of a retaliation claim-a causal nexus volvement, either directly or by showing direct between the constitutionally protected activity and knowledge or acquiescence, the First Amendment the adverse action. In Mitchell, a case that reversed claim is dismissed as to Taylor and Carey; all of the a district court's finding that the plaintiff's claims Additional Commonwealth Defendants; the CEC; were frivolous, the Third Circuit determined "that and Johnson and Rogers of the Coleman Defend-the word 'retaliation' in [Plaintiff's] complaint suf- ants. ficiently implies a causal link between his complaints and the misconduct charges filed against 2. FOURTH AMENDMENT him." Id. The court noted that it would have "prefer Plaintiff's allegations conceivably implicate the [red] that [Plaintiff's] complaint be more detailed, Fourth Amendment in a few ways. The Fourth [but] we take seriously our charge to construe pro Amendment generally prohibits unreasonable se complaints nonrestrictively." Id. Here, not only searches. Defendant Russell searched Plaintiff on does Plaintiff state the word retaliation, but he January 9, 2006. However, a prisoner does not have makes allegations that various defendants warned the same expectation of privacy as free individuals him not to make grievances; that he was told that and therefore "the Fourth Amendment proscription certain defendants were angry with him for his against unreasonable searches does not apply." grievances; and that other residents were treated Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. differently, suggesting that the defendants may 3194, 82 L.Ed.2d 393 (1984). To promote the se-have targeted Plaintiff specifically. curity of a prison and the safety of inmates, random searches of inmates are considered necessary. Id. at *12 While Plaintiff has alleged a cause of ac- 529. The reasoning of this rule applies equally to tion for retaliation in violation of his First Amend- halfway houses. Plaintiff does not allege that the ment rights, he has not alleged "personal involve- search was conducted unreasonably other than asment" on the part of all the defendants. The first al- serting that Russell was unprofessional and rude. leged retaliatory act occurred on September 1, 2004 Therefore, this search does not provide a basis for when Plaintiff was arrested and as a result was sent relief under the Fourth Amendment. back to prison for several months. Plaintiff's allegations implicate only Alvarado and Casillas. On his Plaintiff also alleges that his three "arrests" return to the Center, Plaintiff had to start again at were not supported by probable cause. To the ex-phase one. The allegations indicate that defendants tent that Plaintiff brings a Fourth Amendment mali-King and Arroyo were involved in making this de- cious prosecution claim, this claim must be discision. The second alleged arrest again implicates missed because he has not alleged the necessary Alvarado and Casillas, but also implicates King, element that there was a " 'termination of [a] prior whom Plaintiff alleges manufactured the story of a criminal proceeding in favor of the accused.' " Do-cell phone found in Plaintiff's possession. The de- nahue v. Gavin, 280 F.3d 371, 383 (3d Cir.2002) (quoting Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). Additionally, tee the safety of the inmate." Farmer v. Brennan, Plaintiff's "arrests" occurred while he was in the 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d state prison system. He was serving a portion of his 811 (1994) (internal quotation marks omitted). To sentence in one facility-the Coleman Center. He state a claim under the Eighth Amendment, there was then charged three times with technical viola- are two elements: (1) an objective elementtions, which resulted in removal from the Coleman "whether the constitutional deprivation was suffi-Center to another facility. This type of "arrest" is ciently serious;" and (2) a subjective element-not a seizure for Fourth Amendment malicious pro- "whether the official had a 'sufficiently culpable secution purposes. See Rauso v. Romero, No. state of mind.' " McGrath v. Johnson, 67 F.Supp.2d 03-5810, 2005 WL 1320132, at *2 (E.D.Pa. June 2, 499, 513 (E.D.Pa.1999) (quoting Young v. Quinlan, 2005) ("[P]laintiff did not sustain a 'deprivation of 960 F.2d 351, 360 (3d Cir.1993)). To be a suffi-liberty consistent with the concept of a seizure' in ciently serious deprivation, the conditions must fail connection with the hearing or the rescission of pa- to meet "the minimal civilized measure of life's ne-role [from a Community Corrections Center,] since cessities." Farmer v. Brennan, 511 U.S. 825, he was already in prison at the time." (quoting 834-35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) Donohue v. Gavin, 280 F.3d 371, 380 (3d Cir.2002) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, ); see also Holmes v. Grant, No. 03 Civ. 3426, 2006 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). As to the WL 851753, at * 14 (S.D.N.Y. Mar. 26, 2006) ("An question of what is a sufficiently culpable state of inmate already incarcerated has not suffered any mind, "the named defendants in a case [must] have, unconstitutional deprivation of liberty as a result of and disregard, actual knowledge of a serious risk of being charged with new criminal offenses and be- harm" to the inmates. Kemp v. Hatcher, No. 96-7, ing forced to appear in court to defend himself."). 1996 WL 612834, at *2 (E.D.Pa. Oct.25, 1996).

*13 Plaintiff may also be bringing a false arrest Plaintiff appears to argue that the conditions at claim in connection with these three arrests. the Coleman Center were unsanitary and inhumane "[W]here the police lack probable cause to make an as evidenced by the fact that he was twice bitten by arrest, the arrestee has a claim under § 1983 for spiders, once when going to the bathroom outside false imprisonment based on a detention pursuant to the kitchen, and another time while in his sleeping that arrest." Groman v. Twp. of Manalapan, 47 F.3d quarters. He alleges that the spider bites caused him 628, 636 (3d Cir.1995). However, if an arrest with- injuries requiring hospital treatment. He further alin the prison system does not constitute a seizure leges that he made complaints about the spiders for purposes of malicious prosecution, the logic ex- after each incident, yet no action was taken tends to a false arrest claim as well. Therefore, both the malicious prosecution and false arrest claims Plaintiff's allegations are not sufficiently seriare without merit. ous to withstand a motion to dismiss. Plaintiff volunteered as a kitchen worker and knew that there Accordingly, Plaintiff's Fourth Amendment were no restroom facilities. Because he was not claims are dismissed as to all Defendants. forced to be in the kitchen, the conditions there do not constitute cruel and unusual punishment. See

3. EIGHTH AMENDMENT Holmes v. Sheldon-Kloss, No. 07-cv-00740, 2007 The Eighth Amendment, which prohibits cruel WL 2753173, at *1 ( E.D.Pa. Sept.20, 2007)

and unusual punishment, imposes a duty on prison (concluding that an injury caused by voluntary jan-officials to "provide humane conditions of confine- itorial work did not constitute cruel and unusual ment; prison officials must ensure that inmates re- punishment); see also Ward v. Lamanna, No. ceive adequate food, clothing, shelter, and medical 04-11, 2007 WL 791130, at *8 (W.D.Pa. Mar.14, care, and must take reasonable measures to guaran- 2007) (noting some disagreement among other 2007 WL 2907209, at *31 (W.D.Pa. courts as to whether voluntarily engaging in an Sept.28, 2007) ("The generalized, impre-activity forecloses a cruel and unusual punishment cise notion of 'substantive due process' is claim and concluding in that case that it did). One inapplicable where a particular provision spider bite in Plaintiff's sleeping quarters also does of the Bill of Rights is directly applicable not constitute a sufficient deprivation in and of it- to a claim." (citing Albright v. Oliver, 510 self. Even if it did, there are no allegations that any U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d of the Defendants had actual knowledge of an in- 114 (1994)). festation in the sleeping quarters of the Coleman Center prior to Plaintiff being bitten. Therefore, Here, Plaintiff has alleged that he was deprived Plaintiff's Eighth Amendment claim is dismissed as of a liberty interest when on three occasions his pato all Defendants. role status in a halfway house was revoked.FN10

Courts in the Third Circuit, following the Supreme

4. FOURTEENTH AMENDMENT Court, have held that "[t]he conditional freedom of *14 Plaintiff also raises claims under the Due a parolee is a liberty interest protected by the due Process and Equal Protection Clauses of the Four- process clause of the Fourteenth Amendment." See, teenth Amendment. To establish a procedural Due e.g., Hawkins v. Pa. Bd. of Prob. and Parole, No. Process claim FN9 a plaintiff must allege (1) the 07-0552, 2007 WL 1852822, at *4 (E.D.Pa. June existence of a protected liberty interest that has 26, 2007) (citing Morrissey v. Brewer, 408 U.S. been interfered with by the state and (2) procedures 471, 482-88, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) related to the deprivation that were constitutionally ). However, the Third Circuit, again applying Su-insufficient. Sample v. Diecks, 885 F.2d 1099, 1113 preme Court precedent, has stated that a "prisoner (3d Cir.1989). As to the first of these elements, does not have a liberty interest in remaining in a "[s]uch a 'liberty interest' may be derived from one preferred facility within a state's prison system." of two sources: The interest may be of such a fun- See Asquith v. Dep't of Corr., 186 F.3d 407, 411 damental nature that it inheres in the Constitution (3d Cir.1999) (citing Montanye v. Haymes, 427 itself or it may be created by state law." McGrath, U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 67 F.Supp.2d at 514. (1976)). The Third Circuit has concluded that living in a halfway house aligns more closely with being FN9. To the extent that Plaintiff raises a in prison because it "amount[s] to institutional con-substantive due process claim, it is without finement," and "while a prisoner remains in institu-merit. The only specific substantive due tional confinement, the Due Process Clause does process right cited by Plaintiff is access to not protect his interest in remaining in a particular the courts. (Pl.'s Answer to Original Com- facility." Id. Thus Plaintiff has alleged no liberty monwealth Defs.' Mot. Dismiss Pl.'s Am. interest that inheres in the Constitution. Nor is there Compl. 6.) But Plaintiff does not allege a viable state law-created right implicating the due anywhere in his pleadings that he was process clause. See Ogrod v. United States, No. denied access to the courts. To the extent 06-5496, 2007 WL 2319766, at *3 (E.D.Pa. August that his other claims might rest on sub- 10, 2007) (concluding that there could be no state-stantive rights guaranteed by the Due Pro- created due process right involving revocation of cess Clause, they are better considered un- parole status from a halfway house because a deder other provisions of the Bill of Rights cision to revoke was not an " 'atypical and significand state law, such as the First Amendment ant hardship on the inmate in relation to the ordinand Eighth Amendment, considered above. ary incidents of prison life' " (quoting Sandin v. See Goldhaber v. Higgins, No. 06-134J, Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995))). Therefore, Plaintiff's proced- to providing case conferences when there was a ural due process claim is dismissed as to all De- problem and performing home visits to more fendants because he has not alleged the deprivation quickly transition them out of the Coleman Center. of a liberty interest. Plaintiff also alleges that some of the defendants arrested him and others in part based on racial animFN10. To the extent that Plaintiff is ar- us. These allegations sufficiently state a claim unguing that his missing property constitutes der the Equal Protection Clause. Compare Thomas a deprivation under the Due Process v. Independence Twp., 463 F.3d 285, 297-98 (3d Clause, this too fails. Where there exists an Cir.2006) (concluding that Plaintiff stated a cogniz-applicable state tort remedy-in this case able equal protection claim where the complaint conversion-a claim brought under the Due averred that defendants "engaged in ... misconduct Process Clause is inappropriate. See Meyer 'solely based upon Mr. Thomas' race and ancestry,'

v. Dep't of Corr., No. 06-117, 2006 WL and that plaintiffs are 'subject to the exercise of po-890917, at *1 (D.Del. Mar.27, 2006) lice and official power and actions to which simil(concluding that because Plaintiff "has arly situated persons are not subject' " (quoting the available to her the option of filing a com- complaint)), with Williams v. Wickiser, 2007 WL mon law claim for conversion of prop- 3125019, at * 9 (M.D.Pa.2007) (dismissing an erty," she "cannot maintain a cause of ac- equal protection claim where Plaintiff did not altion pursuant to § 1983." (citing Hudson v. lege either that "he was being treated differently Palmer, 468 U.S. 517, 535, 104 S.Ct. than other similarly situated inmates ... [or] that De-3194, 82 L.Ed.2d 393 (1984)). fendants treated him differently ... based on his race, gender, or nationality"). Plaintiff's Fourteenth Amendment equal protection claim, however, will not be dismissed. The Plaintiff alleges the personal involvement of Equal Protection Clause "prohibits selective en- Alvarado, Casillas, King, Arroyo, Lane, Morrison, forcement of the law based on considerations such Russell, and Troppauer only-the same group that he as race." Whren v. United States, 517 U.S. 806, alleged retaliated against him. Therefore, Plaintiff's 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).To equal protection claim is dismissed against Taylor successfully allege an equal protection claim, a and Carey; all of the Additional Commonwealth plaintiff must show the following: Defendants; the CEC; and Johnson and Rogers of the Coleman Defendants.

(1) the complaining person, compared with others similarly situated, was selectively treated, and (2) D. SECTION 1985(3) CONSPIRACY CLAIM the selective treatment was motivated by an in- To state a claim under section 1985(3), a tention to discriminate on the basis of impermiss- plaintiff must allege four things: (1) a conspiracy; ible considerations, such as race or religion, to (2) motivated by a racial or class-based discriminat-punish or inhibit the exercise of constitutional ory animus designed to deprive, directly or indir-rights, or by a malicious or bad faith intent to in- ectly, any person or class of persons of the equal jure the person. protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or prop-*15 Sabatini v. Reinstein, No. 99-2393, 1999 erty or the deprivation of any right or privilege of a WL 636667, at *2 (E.D.Pa. Aug.20, 1999). Here, citizen of the United States. Herring v. Chichester Plaintiff has alleged that he and others were treated Sch. Dist., No. 06-5525, 2007 WL 3287400, at *8 differently because they were African American. (E.D.Pa. Nov.6, 2007). The Supreme Court has Plaintiff alleges that others who were not African stated "that there must be some racial, or perhaps American were treated more favorably with respect otherwise class-based, invidiously discriminatory AND NOW, this 28th day of November, 2007, animus behind the conspirators' action" to state a upon consideration of Defendants O'Connor, Al-claim under section 1985. Bray v. Alexandria Wo- varado, and Casillas's Motion to Dismiss, in part, men's Health Clinic, 506 U.S. 263, 113 S.Ct. 753, pursuant to Fed.R.Civ.P. 12(b)(6) (Docket No. 41), 122 L.Ed.2d 34 (1993). As discussed above with re- Plaintiff's Answer thereto (Docket No. 46), and Despect to Plaintiff's equal protection claim, Plaintiff fendants O'Connor, Alvarado, and Casillas's Reply has sufficiently alleged that certain defendants were to Plaintiff's Answer (Docket No. 47); Defendants racially motivated in taking adverse actions against King, Troppauer, Russell, Morrison, Arroyo, Lane, him. and Johnson's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b) (6) and Motion to Strike the The focus of the various defendants' arguments Amended Complaint pursuant to Fed.R.Civ.P. 12(f) is that Plaintiff fails to plead with particularity, as (Docket No. 55), and Plaintiff's Declaration in Op-required in a section 1985(3) claim. "To plead con- position (Docket No. 70); Defendants Costa, Murspiracy under Section 1985(3), a complaint must al- ray, Stowitzky, Beard, and Gary's Motion to Dislege specific facts suggesting there was a mutual miss pursuant to Fed R. Civ. P. 12(b) (6) (Docket understanding among the conspirators to take ac- No. 56) and Plaintiff's Declaration in Opposition tions directed toward an unconstitutional end." (Docket No. 69); Defendant Taylor's Motion to Lamb Found. v. North Wales Borough, No. 01-950, Dismiss pursuant to Fed R. Civ. P. 12(b)(6) 2001 WL 1468401, at *15 (E.D.Pa. Nov.16, 2001). (Docket No. 57) and Plaintiff's Declaration in OpThe Court concludes that Plaintiff has alleged suffi- position (Docket No. 67); Defendant Carey's Mocient facts to satisfy section 1985(3)'s pleading re- tion to Dismiss pursuant to Fed R. Civ. P. 12(b)(6) quirements. He has alleged that people of other (Docket No. 61) and Plaintiff's Declaration in Op-races were treated differently, that groups of de- position (Docket No. 68); Defendants Community fendants at various times threatened him for filing Education Centers and Monique Rogers's Motion grievances, and he has further alleged that he was for Joinder of Defendants King, Troppauer, Russell, told that certain defendants had conspired to have Morrison, Arroyo, Lane, and Johnson's Motion to him removed from the Center back to prison. At Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and Mo-this stage, these allegations provide enough detail tion to Strike the Amended Complaint pursuant to to support a conspiracy claim under section 1985(3) Fed.R.Civ.P. 12(f), it is hereby ORDERED: .

1. The Motion to Strike the Amended Com-*16 This claim implicates the same defendants plaint (Docket No. 55) is DENIED; as the equal protection claim-Alvarado, Casillas, King, Arroyo, Lane, Morrison, Russell, and Trop- 2. Defendant Taylor's Motion to Dismiss pauer. Therefore, the section 1985(3) claim is dis- (Docket No. 57) is GRANTED as to all of missed as to Taylor and Carey; all of the Additional Plaintiff's claims;

Commonwealth Defendants; the CEC; and Johnson and Rogers of the Coleman Defendants. 3. Defendant Carey's Motion to Dismiss (Docket No. 61) is GRANTED as to all of

IV. CONCLUSION Plaintiff's claims; For the reasons stated above, the Court grants

Defendants' Motions to Dismiss in part, and denies 4. Defendants Costa, Murray, Stowitzky, the Motions in part. An Order consistent with this Beard, and Gary's Motion to Dismiss (Docket No. Memorandum follows. 56) is GRANTED as to all of Plaintiff's claims;

ORDER 5. Defendant O'Connor's Motion to Dismiss

(Docket 41) is GRANTED as to all of Plaintiff's Not Reported in F.Supp.2d, 2007 WL 4233500 claims; (E.D.Pa.)

6. Defendants Alvarado and Casillas's Motion END OF DOCUMENT to Dismiss (Docket No. 41) is DENIED as to Plaintiff's claims brought under 42 U.S.C. § 1983 and the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment; and Plaintiff's claim brought under 42 U.S.C. § 1985(3). As to all of Plaintiff's other claims, Defendants Alvarado and Casillas's Motion to Dismiss is GRANTED.

7. Defendants Morrison, Arroyo, Lane, Troppauer, King, and Russell's Motion to Dismiss (Docket No. 55) is DENIED as to all of Plaintiff's state law claims other than his Defamation and Contract claims; Plaintiffs section 1983 claims brought pursuant to the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment; and Plaintiff's claim brought under 42 U.S.C. § 1985(3). As to all of Plaintiff's other claims-including his Defamation and Contract claims-Defendants Morrison, Arroyo, Lane, Troppauer, King, and Russell's Motion to Dismiss is GRANTED.

*17 8. Defendant Johnson's Motion to Dismiss (Docket No. 55) is DENIED as to all of Plaintiff's state law claims other than his Defamation and Contract claims. As to all of Plaintiff's other claims-including his Defamation and Contract claims-Defendant Johnson's Motion to Dismiss is GRANTED.

9. Defendants Rogers and the Community Education Center's Motion to Dismiss (Docket Nos. 55, 68) is DENIED as to all of Plaintiff's state law claims other than his Defamation and Contract claims. As to all of Plaintiff's other claims-including his Defamation and Contract claims-Defendants Rogers and the Community Education Center's Motion to Dismiss is GRANTED.


Carter v. Morrison

Not Reported in F.Supp.2d, 2000 WL 1522855 (E.D.Pa.) (Cite as: 2000 WL 1522855 (E.D.Pa.)) set of facts in support of his claims which would

Only the Westlaw citation is currently available. entitle him to relief." Conley v. Gobson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Addi-United States District Court, E.D. Pennsylvania. tionally, pro se complaints must be liberally con-Maxcell CLARK, Jr., strued. See Haines v. Kerner, 404 U.S. 519, 520, 92 v. S.Ct. 594, 30 L.Ed.2d 652 (1972). Dr. John DOE, MD, et al.


No. CIV. A. 99-5616.

Plaintiff commenced this action on November Oct. 13, 2000. 9, 1999, and leave to proceed in forma pauperis was granted on December 16, 1999. Plaintiff's com-plaint contained 180 paragraphs asserting a series O'NEILL. of incidents involving alleged medical misconduct


*1 Plaintiff Maxcell Clark, an inmate at SCI- between June, 1997 and May 1999, all of which Somerset, has brought this pro se action under 42 took place at Wackenhut Corrections Corporation U.S.C. § 1983 alleging violations of his civil rights Delaware County Prison ("Wackenhut"). FN1 under the Eighth Amendment to the United States Constitution. Plaintiff also asserts a number of state FN1. While it is not clear from plaintiff's law negligence and medical malpractice claims. complaint it appears that Clark has been Clark has hepatitis C and the human immunodefi- temporarily housed at the Wackenhut facilciency virus (HIV) and makes a number of allega- ity on a number of separate occasions. The tions concerning his treatment for these illnesses, incidents Clark alleges occurred at Wack-mostly involving a failure to properly administer enhut cover the following time periods: medication. Defendants Dr. John Doe, M.D., Stacey May 14-27, 1999; January 24-February 12, Miles, R.N., Irwin Goldberg, Cynthia Ward, R.N., 1999; May 25-June 23, 1998; January Joanne Cranston, R.N., and Jane Doe # 1, # 2, and # 14-30, 1998; June 25-August 4, 1997. 3 have moved to dismiss plaintiff's complaint pursuant to Fed. R. of Civ. P. 12(b)(6) or in the altern- Plaintiff's allegations include a number of inative for a more definite statement under cidents where his requests for a medical examinaFed.R.Civ.P. 12(e). Plaintiff has moved pursuant to tion were delayed. For example, on June 25, 1997 Fed.R.Civ.P. 15(a) for leave to file an amended plaintiff asked to see a physician. He was told an complaint and has requested the appointment of appointment had been made but he was never ex-legal counsel. My attempts to obtain legal counsel amined. On July 6 plaintiff renewed his request and for plaintiff have not been successful. received a response the next day asking for a more detailed explanation of his medical problem. On JuI. STANDARD OF REVIEW ly 13, plaintiff submitted a more specific request In resolving a motion to dismiss all well-plead and was seen by a physician on or around July 15, factual allegations in the complaint are presumed to 1997. (Pl.'s Comp. ¶¶ 155-165). be true and all reasonable inferences are to be drawn in favor of the non-moving party. See H.J. Mr. Clark also objects to the manner and Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, course of his treatment while an inmate at Wacken-249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).A hut. Specifically, plaintiff alleges that double por-court should not dismiss a complaint "unless it ap- tion meals were required by his condition and were pears beyond doubt that the plaintiff can prove no improperly denied by prison authorities. (¶ 167).

When Clark complained to prison officials he was (¶ 17). Lastly, Clark states that the nursing staff at told that double meals would be reinstated if after Wackenhut treated his "oral thrush" FN2 with alcore-evaluating his lab reports and weight the doctor hol swabs instead of the medication plaintiff had thought it advisable. (¶¶ 169, 173). Clark also un- understood the doctor had prescribed. (¶ 19). derstood that many of his medications were not to be taken on an empty stomach and therefore milk, FN2. Described as open blisters on rather than water, would be provided when the plaintiff's gums and throat. drugs were administered. (¶¶ 59, 111, 132, 167). On a number of occasions milk was not provided. (¶¶ III. DISCUSSION 60-65, 133-154). After notifying prison authorities *2 Clark asserts claims against defendants for Clark was told that the drug administration sched- damages and injunctive relief under 42 U.S.C. § ule could not revolve around one inmate; however, 1983, alleging violations of the Eighth Amend-a "keep on person" privilege might be extended to ment's prohibition on cruel and unusual punish-him so that Clark could carry pills with him and ment. It is well settled that inmates are entitled to take them at meal times. (¶ 115). Plaintiff maintains reasonable medical care and may hold prison offihis medications must be taken at specific times of cials liable under the Eighth Amendment if such the day, some of which are not at meal times. (¶ care is inadequate. See Estelle v. Gamble, 429 U.S.

72). Plaintiff also requested certain drugs to relieve 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). headaches, back pain, sore muscles, colds, and However, in order to establish that his treatment fevers. In response plaintiff was told that Tylenol rose to the level of a constitutional violation, and other similar medicines were available at the plaintiff must demonstrate that defendants exhibited prison commissary. (¶¶ 175-179). "deliberate indifference to [his] serious medical needs." Petrichko v. Kurtz, 52 F.Supp.2d 506, 507

A number of plaintiff's allegations revolve (E.D.Pa.1999). Clark's HIV-positive status is around changes in treatment when he was tempor- without question a medically "serious" one. See, arily transferred from SCI-Camp Hill to Wackenhut e.g., Freed v. Horn, No. 95-CV-2824, 1995 WL from May 14, 1999 to May 27, 1999. Clark alleges 710529 (E.D.Pa. Dec.1, 1995); Taylor v. Barnett, he received no medical treatment at all for the first 105 F.Supp.2d 483 (E.D.Va.2000); Walker v. forty-eight hours after his arrival. (¶ 22). At Camp Peters, 989 F.Supp. 971 (N.D.Ill.1997). However, I Hill Clark received 800 milligrams of ibuprofen but hold that plaintiff's allegations, if proved, do not Wackenhut officials refused to provide such medic- amount to deliberate indifference to his condition. ation. When he complained a nurse told Clark that his prescription had expired. (¶ 36). Another nurse In Estelle the Supreme Court established a suggested he take four Advil instead. (¶ 12). framework for evaluating the viability of inmate Plaintiff alleges that other medications necessary to claims alleging inadequate medical care. The Es-treat his illnesses were discontinued as well. This telle Court noted: change in treatment took place following a medical [I]n the medical context, an inadvertent failure examination by Wackenhut officials on May 19 (¶¶ to provide adequate medical care cannot be said to 4,9). Clark put in a request for these additional constitute "an unnecessary and wanton infliction of drugs and received a written response stating that pain" or to be "repugnant to the conscience of manWackenhut prison officials had verified his medica- kind." Thus, a complaint that a physician has been tions with Camp Hill medical personnel who stated negligent in diagnosing or treating a medical condi-that such drugs were not part of his course of treat- tion does not state a valid claim of medical misment. (¶ 28). Plaintiff also alleges he received two treatment under the Eighth Amendment. Medical unnecessary injections; one a test for tuberculosis. malpractice does not become a constitutional viola-tion merely because the victim is a prisoner. In or- (W.D.N.Y.1991) (holding that the occasional fail-der to state a cognizable claim, a prisoner must al- ure of a correctional facility to provide an HIVlege acts or omissions sufficiently harmful to evid- positive inmate with her AZT medication was due ence deliberate indifference to serious medical to a negligent medication delivery system and did needs. It is only such indifference that can offend not violate the Eighth Amendment). Clark main-"evolving standards of decency" in violation of the tains that the double sized meals he had received at Eighth Amendment. Camp Hill prison were improperly denied by Wackenhutt officials. Wackenhutt medical personnel Estelle, at 106-07. In applying this standard agreed to reinstate larger portion meals if they felt courts have consistently rejected Eighth Amend- that it was necessary following an examination. ment claims where an inmate has received some Similarly, Clark expected the sores in his mouth to level of medical care. See Wilkins v. Owens, Civ. A. be treated with medication prescribed by a doctor. No. 87-0954, 1987 WL 11940 (E.D.Pa. May Instead alcohol swabs were used. Although Clark 29,1987). Inmates' disagreements with prison med- does not agree with the medical staff about the kind ical personnel about the kind of treatment received of treatment he received such "disagreement does have also generally have not been held to violate not give rise to a claim for deliberate indifference the Eighth Amendment. See Wright v. Collins, 766 to serious medical needs." Perkins v. Kansas Dept. F.2d 841, 849 (4th Cir.1985). The required of Corrections, 165 F.3d 803, 811 (10th Cir.1999). "deliberate indifference" may be demonstrated by either actual intent or reckless disregard on the part Further, it appears that prison officials conof defendants. See Miltier v. Beorn, 896 F.2d 848, sidered and acted upon almost all of Clark's com-851 (4th Cir.1990). However plaintiff must demon- plaints and requests, even if he was not satisfied strate that defendants' acts or omissions were "[s]o with the answers he received. When he wanted grossly incompetent, inadequate or excessive as to higher doses of ibuprofen he was told that his pre-shock the conscience or to be intolerable to funda- scription had run out and that he could take smaller mental fairness." Id. I recognize that a pro se com- more frequent doses of Advil. When he requested plaint, "however inartfully pleaded," must be held medical attention he generally was seen in a reason-to "less stringent standards than formal pleadings able amount of time. When he complained about drafted by lawyers," Haines v. Kerner, 404 U.S. not having milk with his medications he was told to 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); but ac- take them at meal times. When he requested that he cepting all Clark's allegations as true there is noth- be given his medication at different times he was ing in his compliant to indicate that defendants' acts told the schedule could not be altered for one inor omissions rose to the level of "deliberate indif- mate. While this was not what he wanted Clark can ference" required under Estelle. hardly be said to have been deprived of "the minimal civilized measures of life's necessities" required *3 Most of Clark's allegations center around to establish a violation of the Eighth Amendment. differences of opinion as to the proper course of his Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. treatment. Clark believed that certain medications 2392, 69 L.Ed.2d 59. should not have been discontinued when he arrived at Wackenhut; prison officials disagreed. Even if *4 Finally, even if Clark received inadequate this change in medication seriously threatened medical treatment he must actually suffer some de-plaintiffs health-a conclusion not supported by the gree of harm in order to allege he has been the vic-complaint-Clark still must establish that the defend- tim of cruel and unusual punishment. In affirming ants were sufficiently deliberately indifferent. See that the plaintiff had not established a constitutional Nolley v. County of Erie, 776 F.Supp. 715, 740 violation for unreasonable medical care the Fifth Circuit in Mayweather v. Foti, 958 F.2d 91 (5th plaint would be futile.FN3 Cir.1992), stated: "[plaintiff's] [t]reatment may not have been the best that money could buy, and occa- FN3. In his motion for leave to file an sionally a dose of medication may have been for- amended complaint, filed March 14, 2000, gotten, but these deficiencies were minimal, they do Clark includes a proposed amended comnot show an unreasonable standard of care, and plaint that is simply a list of the various they fall far short of establishing deliberate indiffer- causes of action under which he intends to ence by the prison authorities." Id. Clark is simil- proceed, and refers to his lack of legal arly unable to establish deliberate indifference on training and in forma pauperis status. It is the part of defendants. The only injuries that Clark clear that plaintiff is attempting to respond alleges are sporadic "pain and sitting posture diffi- to defendants' motion to dismiss or in the culty" after he was denied 800 hundred milligrams alternative for a more definite statement, of ibuprofen (Pl.'s Comp. ¶ 20, ¶ 37) and a general filed February 12, 2000. While Clark's concern that his "health [was] in danger because complaint is repetitive and not listed in any [he was] not getting the medical treatment [he] de- sort of chronological order his allegations serve[d]." (¶ 179). Such injuries are insufficient to concerning his medical treatment are suffi-establish a constitutional violation. See Burton v. ciently clear for me to conclude that they Cameron, Tex., 884 F.Supp. 234, 238-39 (rejecting are well below the standard for deliberate a prisoner with AID's claim that medical person- indifference established in Estelle. Allow-nel's erratic treatment increased his risk of injury ing plaintiff to more precisely plead these after a doctor testified that the delays in getting allegations in an amended complaint would medication did not effect his physical or mental be futile. heath). I recognize the serious nature of plaintiff's con-

With respect to plaintiff's motion for leave to dition and do not condone a number of the actions amend his complaint, the Federal Rules of Civil attributed to defendants. Plaintiff should not have Procedure provide that leave to amend "shall be gone without medical attention for forty-eight hours freely given when justice so requires." Fed.R.Civ.P. from May 14 to May 16. Plaintiff should also not 15(a). The Supreme Court has held that in the ab- have been forced to make repeated requests for sence of any apparent reason not to, "this mandate medical examinations and I am concerned over is to be heeded." Forman v. Davis, 371 U.S. 178, Clark's allegations that at times his pain medication 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A court was inadequate. Even when taken in the light most may however, justify the denial of a motion to favorable to the plaintiff however, Clark's allega-amend where the amendment would be futile. See tions at best suggest nothing more than negligenceFN4

In Re Burlington Coat Factory, 114 F.3d 1410 (3d on the part of defendants. They simply may not Cir.1997). In making this determination a court be construed to constitute the "deliberate indiffer"applies the same standard of legal sufficiency as ence" to plaintiff's health or the "unnecessary and applies under Fed.R.Civ.P. 12(b)(6)," taking all wanton infliction of pain" so as to be "repugnant to facts in the complaint as true and viewing them in the consciousness of mankind" required under Es-the light most favorable to the plaintiff. Id. at 1434. telle. Defendant's motion to dismiss will therefore As discussed above, Clark's complaint alleges no be granted. facts that might raise defendants' conduct to the level of deliberate indifference required to bring a FN4. I agree with the court in Walker claim of cruel and unusual punishment under the however, which noted the possible distinc-Eighth Amendment. Any amendment to his com- tion between a failure to treat a prisoner with back pain (as in Estelle ) and a failure to treat a prisoner who is HIV positive. 989 F.Supp. at 976 n. 3. A failure to treat an HIV positive inmate will almost certainly shorten that inmate's life. Like the court in Walker I do not hold that there is no qualitative difference between HIV and other illnesses, and I acknowledge that a complete refusal to treat an HIV positive inmate might rise beyond the level of mere negligence or medical malpractice. Id.

*5 An appropriate Order follows.

ORDER AND NOW, this ______ day of October, 2000, in consideration of defendants' motion to dismiss, plaintiff's response thereto, and plaintiff's motion to file an amended complaint, it is ORDERED that:

1. Plaintiff's motion for leave to amend the complaint is DENIED.

2. Defendants' motion to DISMISS the complaint is GRANTED and the complaint is DISMISSED WITH PREJUDICE.


Clark v. Doe Not Reported in F.Supp.2d, 2000 WL 1522855 (E.D.Pa.)

269 Fed.Appx. 149, 2008 WL 683933 (C.A.3 (Pa.)) (Not Selected for publication in the Federal Reporter) (Cite as: 269 Fed.Appx. 149, 2008 WL 683933 (C.A.3 (Pa.)))

310k191 Particular Conditions and Treat-This case was not selected for publication in the ments Federal Reporter. 310k193 k. Dental Conditions and Treatment. Most Cited Cases

Not for Publication in West's Federal Reporter See (Formerly 310k17(2)) Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or Sentencing and Punishment 350H 1546 after Jan. 1, 2007. See also Third Circuit LAR, App. I, IOP 5.7. (Find CTA3 App. I, IOP 5.7) 350H Sentencing and Punishment

350HVII Cruel and Unusual Punishment in Gen-United States Court of Appeals, eral

Third Circuit. 350HVII(H) Conditions of Confinement Jackie HAM, Appellant 350Hk1546 k. Medical Care and Treat-v. ment. Most Cited Cases Gary F. GREER; Dr. Clark; Gregory K. Baker. Dentists did not exhibit deliberate indifference to prisoner's serious medical needs, as required for No. 07-4834. Eighth Amendment cruel and unusual punishment Submitted for Possible Dismissal Pursuant to 28 civil rights claim, by not rendering kind or quality

U.S.C. § 1915(e)(2)(B) or Summary Action of treatment that prisoner would have preferred; Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 even if dentists were negligent in services they

March 6, 2008. provided, prisoner consistently received prompt Filed: March 14, 2008. medical attention, except in those instances where prisoner himself declined treatment. U.S.C.A.

Background: Federal prisoner brought Bivens ac- Const.Amend. 8; 42 U.S.C.A. § 1983. tion against dentists asserting violations of his constitutional rights under Eighth Amendment. The United States District Court for the Western Dis- *149 On Appeal from the United States District trict of Pennsylvania, Terrence F. McVerry, J., Court for the Western District of Pennsylvania 2007 WL 4248490, summarily dismissed action. (D.C. Civil No. 2:06-cv-1692), District Judge: Hon-Prisoner appealed. orable Terrence F. McVerry.

Holding: The Court of Appeals held that dentists Before: AMBRO, FUENTES and JORDAN, Circuit did not exhibit deliberate indifference to prisoner's Judges. serious medical needs by not rendering kind or quality of treatment that prisoner would have preferred. OPINION

Summarily affirmed. PER CURIAM.

West Headnotes United States District Court for the *150 Western

District of Pennsylvania granting Appellees' mo-Prisons 310 193 tions to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). Appellees 310 Prisons have filed motions for summary affirmance of the

310II Prisoners and Inmates District Court's order. Because Ham's appeal does

310II(D) Health and Medical Care not present a substantial question, we will grant the

**1 Jackie Ham appeals from the order of the pending motions and summarily affirm the judg- Based upon this series of events, Ham, proment of the District Court. See 3d Cir. L.A.R. 27.4; ceeding pro se, brought a civil action against Greer, I.O.P. 10.6. Clark and Baker in the United States District Court for the Western District of Pennsylvania. He asser- I. ted violations of his constitutional rights under the We have jurisdiction over this appeal pursuant Eighth Amendment, see Bivens v. Six Unknown to 28 U.S.C. § 1291. We exercise plenary review of Named Agents of Fed. Bureau of Narcotics, 403 the District Court's dismissal for failure to state a U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), claim. Angstadt v. Midd-West Sch. Dist., 377 F.3d and raised state law negligence claims by invoking 338, 342 (3d Cir.2004). Because we are reviewing the District Court's supplemental jurisdiction. the District Court's dismissal of his claims, we take the allegations of Ham's Amended Complaint as II. true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, Defendants Greer, Clark, and Baker each filed 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); Es- Motions to Dismiss the Amended Complaint pursu-telle v. Gamble, 429 U.S. 97, 99, 97 S.Ct. 285, 50 ant to Federal Rule of Civil Procedure 12(b)(6).On L.Ed.2d 251 (1976). November 2, 2007, Magistrate Judge Caiazza reviewed the motions and responses and issued a Re- Ham is a prisoner at the Federal Corrections In- port and Recommendation that the District Court stitute McKean ("FCI McKean"). Greer, a dental dismiss Ham's Bivens claims for failure to state a officer for FCI McKean, conducted a routine dental claim upon which relief can be granted. The Magis-exam for Ham on April 28, 2006. At that time, trate Judge also recommended that the District Greer advised that Ham required an extraction and Court decline to exercise discretionary jurisdiction a filling, and Greer scheduled a follow-up proced- over Ham's state law negligence claims. Judge ure to take place in May. McVerry conducted a de novo review of the pleadings, together with the Magistrate's Report and ReOn May 16, 2006, Greer performed the extrac- commendation and the parties' objections and *151 tion but not the filling. During the extraction pro- responses thereto. On December 3, 2007, 2007 WL cedure, Greer left two of three roots behind and 4248490, Judge McVerry entered an Order adopt-chipped a different tooth. The next day, after com- ing the Report and Recommendation as the opinion plaints of pain and bleeding, Clark examined Ham of the District Court, dismissing Ham's claims, and and informed him that two roots remained behind. closing the case. Ham timely appealed from the That same day, Clark performed a procedure that District Court's final judgment. removed one of the two remaining roots.


Beginning in June 2006, Ham began to experi- **2 The Eighth Amendment's prohibition on ence symptoms relating to the chipped tooth. Dent- "cruel and unusual punishments" proscribes delibal staff informed Ham that Greer would perform erate indifference to prisoners' serious medical treatment, and Ham requested an alternate dentist. needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 The request was denied, and Ham declined treat- S.Ct. 285, 50 L.Ed.2d 251 (1976). Therefore, to ment from Greer on several occasions throughout state a claim against a prison official under the June and July 2006. After repeated complaints from Eighth Amendment, the prisoner must allege both Ham, FCI McKean's alternate dentist, Baker, ex- (1) the existence of serious medical needs; and (2) amined Ham on August 7, 2006. The next day, the official's deliberate indifference to those needs. Baker performed procedures to remove the third See Rouse v. Plantier, 182 F.3d 192, 197 (3d root of the previously extracted tooth and to extract Cir.1999). Because the District Court determined, the chipped tooth. and we agree, that Ham alleged a sufficiently seri- Because the District Court appropriately disous medical need, our primary focus is on the delib- missed Ham's Bivens claims, no independent basis erate indifference aspect of Ham's Eighth Amend- for federal jurisdiction remains. In addition, the ment claim. District Court did not abuse its discretion in declining to address the state law negligence claims. 28 A prison official demonstrates deliberate indif- U.S.C. § 1367(c)(3); see United Mine Workers of ference if he knows of and disregards an excessive Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 risk to the inmate's health or safety. See Farmer v. L.Ed.2d 218 (1966); Tully v. Mott Supermkts., Inc., Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 540 F.2d 187, 196 (3d Cir.1976).

L.Ed.2d 811 (1994). This requires showing a sufficiently culpable state of mind, such as reckless dis- Accordingly, we agree with the District Court regard to a substantial risk of serious harm. Id. at that Ham's claims should be dismissed. We there-836, 114 S.Ct. 1970. In contrast, allegations of fore grant the motions for summary affirmance and simple negligence or medical malpractice-without summarily affirm the judgment of the District an associated culpable state of mind-do not consti- Court. tute deliberate indifference, and therefore do not rise to the level of an Eighth Amendment violation. C.A.3 (Pa.),2008.

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999). Ham v. Greer 269 Fed.Appx. 149, 2008 WL 683933 (C.A.3 (Pa.))

Applying this standard, the District Court properly dismissed Ham's Eighth Amendment claims. END OF DOCUMENT The District Court held, and we agree, that although Ham may have properly raised claims of negligence against one or more of the defendants, Ham failed to allege facts that, if proved, would be sufficient to permit the Court to infer that any of the three Defendants exhibited deliberate indifference to Ham's serious medical needs.

To the contrary, the Amended Complaint establishes that Ham consistently received prompt medical attention, except in those instances where Ham himself declined treatment. Ham's primary dispute, in essence, is that he did not receive the kind or quality of treatment that he would have preferred. This simply does not rise to the level of a violation of a constitutionally protected right. See, e.g., Inmates of Allegheny Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979) ("Courts will 'disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment ... (which) remains a question of sound professional judgment.' " (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977)).


Not Reported in F.Supp.2d, 2007 WL 3033865 (M.D.Pa.) (Cite as: 2007 WL 3033865 (M.D.Pa.)) housed in the Restricted Housing United ("RHU")

Only the Westlaw citation is currently available. at SCI-Camp Hill. (Id. ¶ 3.) The Defendants are David G. White, a dentist employed by the United States District Court, Pennsylvania Department of Corrections at SCI-M.D. Pennsylvania. Camp Hill; Robert J. Marsh, a Unit Manager em-Purcell BRONSON, Plaintiff, ployed at the SMU at SCI-Camp Hill; and David E. v. Patton, a Deputy Superintendent for Centralized David G. WHITE, DDS; Robert J. Marsh; and Dav- Services employed at SCI-Camp Hill. (Id. ¶ 2.) id E. Patton, Defendants.

FN1. Although Plaintiff has denied certain

No. 1:05-CV-2150. paragraphs of the Defendants' Statement of Oct. 15, 2007. Material Undisputed Facts, he has not pointed to record evidence to support such Purcell Bronson, Camp Hill, PA, pro se. denials. Therefore, pursuant to Local Rule Raymond W. Dorian, Office of Chief Counsel, 56.1, those material facts are deemed to be Camp Hill, PA, for Defendants. admitted.

On June 23, 2004, Plaintiff was transferred from the State Correctional Institution at Fayette

A. RICHARD CAPUTO, United States District ("SCI-Fayette") to the SMU at SCI-Camp Hill. (Id. Judge. ¶ 3.) Prior to being housed at SCI-Fayette, the *1 Presently before the Court is Magistrate Plaintiff was housed at the State Correctional Insti-Judge J. Andrew Smyser's Report and Recommend- tute at Pittsburgh ("SCI-Pittsburgh"). While housed ation (Doc. 66), and Plaintiff's Objections to the at SCI-Pittsburgh, Plaintiff saw a dentist approxim-August 10, 2007 Report and Recommendation. ately twice a year, and received a cleaning at least (Doc. 67.) The Magistrate Judge recommended that once a year. (Id.) Plaintiff periodically reveived xthe Court grant Defendants' motion for summary rays of his teeth at SCI-Pittsburgh. (Id. ¶ 4.) While judgment and decline to exercise jurisdiction over at SCI-Pittsburgh, the dental staff told the Plaintiff the Plaintiff's state law claims. For the reasons set that his teeth were going bad due to improper care. forth below, Plaintiff's Objections to the Magistrate (Id. ¶ 3.) The dental staff also told him that he Judge's Report and Recommendation will be over- should floss and brush his teeth more often. (Id.) ruled, the Court will adopt the Report and Recom- However, Plaintiff was not permitted to have dental mendation, and grant Defendants' motion for sum- floss while in the RHU at SCI-Pittsburgh. (Id.) mary judgment. (Doc. 47.) While at SCI-Pittsburgh, Plaintiff did not have any cavities. (Id. ¶ 4.)


Plaintiff Purcell Bronson is a prisoner incarcer- Plaintiff was only housed at SCI-Fayette for six ated at the State Correctional Institution at Camp (6) months. (Id.) While Plaintiff was there, he was Hill ("SCI-Camp Hill"). (Defs.' Statement of Un- given a toothbrush, which he used. (Id.) He was not disputed Material Facts in Supp. of Mot. for Summ. permitted to have dental floss at SCI-Fayette. (Id.)

J. ¶ 1, Doc. 50.) FN1 From June 23, 2004 until October 13, 2006, Plaintiff was housed in the Special When Plaintiff arrived at the SMU in SCI-Management Unit ("SMU") at SCI-Camp Hill. (Id. Camp Hill, he received a toothbrush with a short ¶ 15.) Since October 13, 2006, Plaintiff has been handle. (Id. ¶ 5.) Plaintiff used the toothbrush ap-proximately twice per day, but was not permitted to The SMU is a specialized housing unit within have dental floss. (Id.) SCI-Camp Hill which houses disruptive and violent inmates. (Id. ¶ 25.) There are five phases in the Defendant White provides dental care to in- SMU. (Id. ¶ 26.) Each inmate begins his tenure in mates at SCI-Camp Hill in his capacity as the dent- the SMU at the most restrictive phase, but can proist in that facility. (Id. ¶ 15.) As part of his duties, gress to a less restrictive phase of housing based Defendant White is familiar with Plaintiff Bronson, upon behavior. (Id.) As inmates progress through and treated Plaintiff during his time in the SMU at the phases, their access to privileges and services is SCI-Camp Hill from June 23, 2004 until October increased. (Id.) 13, 2006. (Id. ¶ 15.) Defendant White treated Plaintiff numerous times in 2005 and 2006. (Id. ¶ All SMU inmates are provided with a modified

16.) toothbrush for dental hygiene. (Id. ¶ 27.) However, until recently, all SMU inmates were denied the use *2 On February 16, 2005, Defendant White of dental floss for security purposes. (Id.) It was de-treated Plaintiff and diagnosed him with a period- termined at that time that dental floss could be used ontal abscess and generalized moderate periodontis. to fashion weapons, garrote staff and other inmates, (Id. ¶ 17.) Periodontal disease affects the area sur- and interfere with locking mechanisms. (Id.)Asof rounding the teeth, including the gums. (Id.) The approximately January 2007, SMU inmates have gums become inflamed due to a buildup of plaque. ( been permitted to have short dental floss strips due Id.) This is usually the result of poor dental hy- to a revision in Department policy. (Id.) giene, such as lack of regular brushing and flossing. (Id.) Defendant White prescribed penicillin and ad- As the Unit Manger assigned to the SMU at vised Plaintiff to brush and floss when floss was SCI-Camp Hill during the relevant time period, De-available to him. (Id.) fendant Marsh was responsible for unit security and treatment programs within the SMU. (Id. ¶ 25.) On On subsequent visits, Defendant White noted or about March 20, 2005, Plaintiff submitted a re-that the swelling in Plaintiff's gums had subsided quest to Defendant Marsh to be permitted dental after improved dental hygiene by the Plaintiff. (Id. floss in his cell. (Id. ¶ 29.) On April 13, 2005,

¶ 18.) On December 9, 2005, Defendant White saw Marsh responded that dental floss was a security Plaintiff, at which time the Plaintiff requested den- concern, and therefore his request would be denied. tures. (Id. ¶ 19.) Defendant White advised the (Id.) Defendant Marsh does not recall any conver-Plaintiff that he was not eligible for dentures under sations with Plaintiff on this matter. (Id.) This was the Department of Corrections policy. (Id.) Under the extent of Defendant Marsh's interaction with the the Department's Access to Health Care Procedures Plaintiff.

Manual, inmates are eligible for dentures based upon the number and type of missing teeth. (Id.) *3 While working as Deputy Superintendent Plaintiff has two missing teeth on his upper right for Centralized Services at SCI-Camp Hill, Defend-side and a missing wisdom tooth on his lower right ant Patton had managerial responsibilities for cer-side, which Defendant White stated did not qualify tain services at the institution, including medical him for dentures. (Id.) The dentist at SCI-Pittsburgh services. (Id. ¶ 33.) On or about July 7, 2005, the told Plaintiff the same thing. (Id. ¶ 11.) Defendant Plaintiff wrote to Defendant Patton seeking permis-White further advised Plaintiff that, in his experi- sion to use dental floss in the SMU. (Id. ¶ 34.) Deence, dentures tend to worsen periodontal disease, fendant Patton also declined this request, stating "I which Plaintiff had been diagnosed with several do not approve dental items for inmates. Dental months earlier. (Id. ¶ 18.) floss is not on the approved items for the SMU. I suggest that you improve your behavior to the point that you can be released to general population." (Id. jections are both timely and specific, Goney v. ) This was the extent of Defendant Patton's interac- Clark, 749 F.2d 5, 6-7 (3d Cir.1984). In making its tion with the Plaintiff. (Id.) de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or Defendant Patton's understanding was that legal conclusions of the magistrate judge. See 28 dental floss was not permitted to SMU inmates at U.S.C. § 636(b)(1); Owens v. Beard, 829 F.Supp. that time for security reasons, as the floss could be 736, 738 (M.D.Pa.1993). Although the review is de used as a weapon, or in malfunctioning electronic novo, the statute permits the Court to rely on the re-components such as locks on the cell doors. (Id. ¶ commendations of the magistrate judge to the ex-35.) tent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76, 100 S.Ct. 2406, 65 L.Ed.2d On October 21, 2005, Plaintiff filed his Com- 424 (1980); Goney, 749 F.2d at 7; Ball v. United plaint, claiming violations of the Eighth Amend- States Parole Comm'n, 849 F.Supp. 328, 330 ment of the United States Constitution and state (M.D.Pa.1994). Uncontested portions of the report law. (Doc. 1.) On January 20, 2006, the Defendants may be reviewed at a standard determined by the filed a motion to dismiss the Complaint. (Doc. 16.) district court. See Thomas v. Arn, 474 U.S. 140, Magistrate Judge Smyser issued a Report and Re- 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Goney, commendation (Doc. 20) on April 25, 2006, in 749 F.2d at 7. At the very least, the Court should which he recommended denying the Defendants' review uncontested portions for clear error or mani-motion to dismiss. By Order dated August 2, 2006, fest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. the Court adopted the April 25, 2006 Report and 375, 376-77 (M.D.Pa.1998).

Recommendation, thereby denying Defendants' motion. II. Summary Judgment Standard

*4 Summary judgment is appropriate if "the Defendants thereafter filed an Answer to the pleadings, depositions, answers to interrogatories, Complaint (Doc. 28) and a motion for summary and admissions on file, together with the affidavits, judgment. (Doc. 47.) On August 10, 2007, Magis- if any, show that there is no genuine issue as to any trate Judge Smyser issued the present Report and material fact and that the moving party is entitled to Recommendation ("the R & R") (Doc. 66), recom- a judgment as a matter of law." FED. R. CIV. P. mending that the Defendants' motion for summary 56(c). A fact is material if proof of its existence or judgment be granted. Plaintiff filed an objection to nonexistence might affect the outcome of the suit theR&Ron August 30, 2007. (Doc. 67.) Defend- under the applicable substantive law. See Anderson ants did not file an objection to theR&R. v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.

The summary judgment motion is fully briefed 2505, 91 L.Ed.2d 202 (1986). and ripe for disposition. The Report and Recom- Where there is no material fact in dispute, the mendation is likewise ripe for disposition. moving party need only establish that it is entitled

LEGAL STANDARDS to judgment as a matter of law. Where, however,

I. Review of a Magistrate Judge's Report and there is a disputed issue of material fact, summary Recommendation judgment is appropriate only if the factual dispute

Where objections to the magistrate judge's re- is not a genuine one. See id. at 248. An issue of ma-port are filed, the Court must conduct a de novo re- terial fact is genuine if "a reasonable jury could review of the contested portions of the report, Sample turn a verdict for the nonmoving party." Id. v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989) Where there is a material fact in dispute, the (citing 28 U.S.C. § 636(b)(1)(c)), provided the ob- moving party has the initial burden of proving that:

(1) there is no genuine issue of material fact; and that his Eighth Amendment rights were violated

(2) the moving party is entitled to judgment as a based upon his failure to receive dentures as part of matter of law. See CHARLES ALAN WRIGHT & his dental treatment. He has further alleged that his ARTHUR R. MILLER, FEDERAL PRACTICE Eighth Amendment rights were violated when his AND PROCEDURE: CIVIL 2D § 2727 (2d request for dental floss was rejected by prison offied.1983). The moving party may present its own cials at the SMU. evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that A. Request for Dentures "the nonmoving party has failed to make a suffi- *5 In order to establish an Eighth Amendment cient showing of an essential element of her case violation, the Plaintiff must first demonstrate evid...." Celotex Corp. v. Catrett, 477 U.S. 317, 323, ence that the Defendants acted with deliberate in-106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). difference. Deliberate indifference may be manifested by "intentionally denying or delaying access to All doubts as to the existence of a genuine is- medical care or intentionally interfering with the sue of material fact must be resolved against the treatment once prescribed ." Estelle, 429 U.S. at moving party, and the entire record must be ex- 104-05. Mere negligence does not violate the amined in the light most favorable to the nonmov- Eighth Amendment. Id. at 106. Even an act constiing party. See White v. Westinghouse Elec. Co., 862 tuting medical malpractice may be insufficient to

F.2d 56, 59 (3d Cir.1988). Once the moving party establish an Eighth Amendment violation. Id. If the has satisfied its initial burden, the burden shifts to prison medical staff relating to the exercise of prothe nonmoving party to either present affirmative fessional judgment, even if they constitute medical evidence supporting its version of the material facts malpractice, are not necessarily violative of the or to refute the moving party's contention that the Eighth Amendment. Id. at 107. facts entitle it to judgment as a matter of law. See Liberty Lobby, 477 U.S. at 256-57. "[M]ere disagreement as to the proper medical treatment" is likewise insufficient to establish an The Court need not accept mere conclusory al- Eighth Amendment violation. Monmouth County legations, whether they are made in the complaint Corr. Institutional Inmates v. Lanzaro, 834 F.2d or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 326, 346 (3d Cir.1987) (citing Bowring v. Godwin, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 551 F.2d 44, 48 (4th Cir.1977)). Rather, grossly 695 (1990). In deciding a motion for summary negligent behavior constitutes deliberate indiffer-judgment, "the judge's function is not himself to ence, as can a doctor's choice for " 'an easier and weigh the evidence and determine the truth of the less efficacious treatment' of the inmate's condition matter but to determine whether there is a genuine ." Id. at 347 (quoting West v. Keve, 571 F.2d 158, issue for trial." Liberty Lobby, 477 U.S. at 249. 162 (3d Cir.1978)). The Third Circuit has specifically found deliberate indifference to exist when: (1) DISCUSSION a prison official knows of the prisoner's need for

I. Eighth Amendment Claims treatment but intentionally refuses to provide it; (2) The Supreme Court has held that the govern- the prison official delays necessary medical treat- ment has an "obligation to provide medical care for ment for non-medical reasons; or (3) the prison of-those whom it is punishing by incarceration." Es- ficial prevents a prisoner from receiving needed or telle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 recommended treatment. Rouse v. Plaintier, 182 L.Ed.2d 251 (1976). For Plaintiff to establish an F.3d 192, 197 (3d Cir.1999) (citations omitted). Eighth Amendment violation, he must establish that the Defendants acted with deliberate indifference to In this case, Plaintiff has merely alleged a difhis serious medical needs. Id. Plaintiff has alleged ference in personal opinion as to the proper treat-ment regarding his missing teeth. This fails to es- Therefore, no reasonable juror could find that tablish deliberate indifference. In James v. Defendants acted with deliberate indifference to Pennsylvania Dep't of Corr., 230 Fed. App'x 195 Plaintiff's dental needs with respect to his request (3d Cir.2007), an inmate at a Pennsylvania correc- for dentures. As Plaintiff has failed to demonstrate tions institute brought a § 1983 claim regarding the a deliberate indifference on the part of the Defend-dental care he received for an abscessed tooth. The ants, the question of whether there was a serious Appellant inmate's complaint alleged that extrac- medical need will not be addressed. tion of the abscessed tooth should not have been employed, and that the dentist should have used an B. Prison Regulation Regarding Dental Floss alternative method. Id. at 196. The dentist noted Plaintiff further alleges that his Eighth Amend-that antibiotics were not a viable alternative, and ment rights were violated by the failure of prison that the only possible procedure to save the tooth officials to provide him with dental floss. The pris-would have been a root canal, but noted that the on officials refused to provide him with dental floss particular type of root canal necessary was not per- based upon a security regulation in force at the time mitted by the Department of Corrections policy. of the request.

Id. 196-97. The Third Circuit Court of Appeals upheld the dismissal of this complaint, noting that In Turner v. Safley, 482 U.S. 78, 107, 107 S.Ct. "[the appellant's] preference alone cannot establish 2254, 96 L.Ed.2d 64 (1987), the Court held that "a deliberate indifference as such second-guessing is prison regulation impinges on inmates' constitution-not the province of the courts." Id. at 197. al rights, the regulation is valid if it is reasonably related to legitimate penological interests." In de-

In this case, Plaintiff has demonstrated only termining reasonableness, the court should look to: that he has a preference for dentures, and not that (1) the rational relationship between the regulation he was treated with deliberate indifference when he and the government interest put forth to justify it; failed to receive them. As in James, there is no in- (2) the existence of alternative means to exercise dication that Defendant White acted with an ulterior the asserted right; (3) the impact on prison remotive beyond routine patient care within the con- sources of accommodating the asserted right; and fines of the Department of Corrections' policies re- (4) the existence of "ready alternatives' to accomgarding dentures. Id. at 198. Although Plaintiff dis- modate the asserted right at "de minimus" cost to agrees with Defendant White about the proper valid penological interests. Id. course of treatment, such disagreement is not tantamount to a constitutional violation. The first Turner factor requires the Court to look at the rational relationship between the ban-

*6 Plaintiff has similarly failed to demonstrate ning of dental floss and the government's justifica-evidence regarding the deliberate indifference of tion based upon security interests. There is clearly a Defendants Marsh and Patton. Non-medical prison rational relationship between the banning of dental officials cannot be charged with deliberate indiffer- floss and security. The government has alleged that ence to a serious medical need by a prisoner being dental floss could be used to fashion weapons or treated by medical personnel absent " 'reason to be- pick locks. An inmate in the SMU is placed in that lieve (or actual knowledge) that prison doctors or housing based upon violent and disruptive tenden-their assistants are mistreating (or not treating) a cies. Therefore, the government has an interest in prisoner.' " Id. (quoting Spruill v. Gillis, 372 F.3d banning instruments in the SMU that could be used 218, 236 (3d Cir.2004)). As Plaintiff was not being in a violent manner. mistreated, Defendants cannot be charged with deliberate indifference on this claim. The second Turner factor requires the Court to determine if the prison has provided inmates with alternative avenues. In this case, the Plaintiff was lated to legitimate penological interests. supplied with a modified toothbrush for his dental needs. The Plaintiff was also provided with access Furthermore, the Plaintiff has failed to demon-to a dentist when necessary. Therefore, the Plaintiff strate evidence that the failure to provide dental did have alternative means of dental care available floss was due to deliberate indifference to a serious to him, although he was not permitted dental floss. medical need. First, Plaintiff has demonstrated no facts regarding Defendant White's role in the refus-Under the third Turner factor, the Court must al to provide dental floss. Defendant White's role consider how accommodating the Plaintiff would encompassed diagnosing and treating the Plaintiff, impact guards and other inmates. If the Plaintiff and no evidence is demonstrated that Defendant were given dental floss, this could have a severe White ever had any role in the provision of dental impact on the guards and other inmates. Other in- floss. mates could try to steal or borrow the floss to use as a weapon or to pick locks. Because of this possibil- Plaintiff has also failed to demonstrate any ity, the guards would have to be on constant vigil- evidence regarding the deliberate indifference of ance for the use of the floss in this manner. Even Defendants Marsh and Patton. Non-medical person-permitting one person to have dental floss could nel cannot be held to be deliberately indifferently lead to a security concern for the rest of the inmates merely because they fail to respond to the comand the guards. plaints of an inmate who is already being treated by prison medical staff. Gusman v. Bureau of Prisons, *7 The final factor is whether there is an ab- 231 Fed. App'x 179, 181 n. 1 (3d Cir.2007). But, sence of "ready alternatives" to the regulation. At non-medical prison officials can be charged with this time, the inmates are now permitted to have deliberate indifference to a serious medical need by dental floss in short strips, which is a ready altern- a prisoner being treated by medical personnel if ative to long strings of floss. Although such an al- there is " 'reason to believe (or actual knowledge) ternative presently exists, this alternative was not that prison doctors or their assistants are mistreat-available at the time the Plaintiff requested dental ing (or not treating) a prisoner.' " James., 230 Fed. floss. App'x at 198 (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.2004)). Furthermore, once a prison

In balancing the four factors of the Turner test, grievance examiner becomes aware of the treat-the Plaintiff has failed to show that the ban on dent- ment, the Eighth Amendment only requires that the al floss was not reasonably related to legitimate official " 'review[ ] ... [the prisoner's] complaints penological interests. Inmates were provided other and verif[y] with the medical officials that [the alternative measures for their dental hygiene. Fur- prisoner] was receiving treatment." Id. (quoting thermore, there were legitimate security concerns Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.2005) regarding the use of traditional dental floss as a (citing Spruill, 372 F.3d at 236)). Therefore, "[i]f a weapon or means to disrupt the prison locks. See prisoner is under the care of medical experts ... a Burke v. Webb, No. Civ. A. 707-CV-00017, 2007 non-medical prison official will generally be justiWL 419565 (W.D.Va. Feb.1, 2007) (holding that fied in believing the prisoner is in capable hands." "[i]n light of the potential security threat the pres- Spruill, 372 F.2d at 236. ence of dental floss presents to institutional staff and other inmates ... the prison's policy [is reason- *8 In this case, Defendants Marsh and Patton able]."). Although short strips of dental floss are received requests from Plaintiff for dental floss now available to inmates at the SMU, this alone based upon his dental treatment. Plaintiff's first redoes not outweigh all other factors in determining quest to Defendant Marsh stated that "the dentist whether the ban on dental floss was reasonably re- has recommended that I use dental floss to properly clean my teeth or I will end up losing my teeth." Court will grant summary judgment on all of the (Doc. 48 at 31.) Defendant Patton then received an- Plaintiff's federal claims, the Court will decline to other request, which asked for dental floss based on exercise supplemental jurisdiction over the "medical grounds." (Doc. 48 at 32.) These requests Plaintiff's state law claims. 28 U.S.C. § 1367(c)(3). were both denied. However, these requests were not denied based upon deliberate indifference to the CONCLUSION serious medical needs of the Plaintiff. Rather, these For the reasons stated above, Magistrate Judge requests were denied based upon the security risk to J. Andrew Smyser's Report and Recommendation the other inmates and staff in the SMU. See Perez- will be adopted. Plaintiff's Objections will be over-Gutierrez v. Lampert, No. Civ. 00-1689-HA, 2002 ruled. Defendants' motion for summary judgment WL 31689536, at *9 (D.Or. Sept.30, 2002) (finding will be granted and the Court will decline to exer-that there was no deliberate indifference to the seri- cise supplemental jurisdiction over the Plaintiff's ous medical needs of an inmate when a prison offi- state law claims. cial removed excess dental floss from a cell based upon security interests of the facility). An appropriate Order follows.

There is no evidence provided that dental floss ORDER was ever ordered by any dentist as a medical neces- NOW, this 15th day of October, 2007, upon resity. See id. at *10 (noting that the plaintiff was au- view of Magistrate Judge J. Andrew Smyser's Rethorized to receive dental floss pursuant to a physi- port and Recommendation (Doc. 66), IT IS cian's order). Furthermore, Defendant White's re- HEREBY ORDERED that: port of December 9, 2005 notes that "[Plaintiff] was *9 1. The Report and Recommendation (Doc. advised that he needs to brush up and down and 66) is ADOPTED. floss when the floss is available to him to help slow down the periodontal disease." (Doc. 48 at 50.) De- 2. Defendants' motion for summary judgment fendant White made no notation that dental floss (Doc. 47) is GRANTED . was to be a requirement for Plaintiff's dental needs-rather, he should floss "when the floss is available 3. The Clerk of the Court shall mark this case to him." CLOSED.

The Plaintiff did receive treatment from Dr. REPORT AND RECOMMENDATION White. The Defendants were justified in believing J. ANDREW SMYSER, Magistrate Judge. that the Plaintiff was in capable hands. They had no The plaintiff, a prisoner proceeding pro se, order from Defendant White to permit Plaintiff to commenced this action by filing a complaint on Oc-have special access to dental floss. Therefore, the tober 21, 2005. The defendants are a dentist, a Defendants were justified in their actions. deputy superintendent and a unit manager at the State Correctional Institution at Camp Hill

For these reasons, summary judgment will be (SCI-Camp Hill). The plaintiff claims that the de-granted for Defendants White, Patton, and Marsh fendants violated the Eighth Amendment of the on the Eighth Amendment claims. United States Constitution and state law by denying him dentures and dental floss.

II. State Law Claims

In his Complaint, the Plaintiff alleges that his On September 14, 2006, the defendants filed an claims are also based on state law. The Defendants answer to the complaint. have not addressed any state law claims. The Court agrees with Magistrate Judge Smyser that, as the On March 8, 2007, the defendants filed a mo-tion for summary judgment. That motion has been was employed as the Deputy Superintendent for briefed, is ripe for decision and is addressed in this Centralized Services at SCI-Camp Hill. Defendants' Report and Recommendation. Statement of Material Facts at ¶¶1&2and the Plaintiff's Response to Defendants' Statement of Summary judgment is appropriate if the Material Facts at ¶¶1&2.FN1 "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, FN1. We note that although the plaintiff if any, show that there is no genuine issue as to any has denied certain paragraphs of the de-material fact and that the moving party is entitled to fendants' statement of material facts he has judgment as a matter of law." Fed.R.Civ.P. 56(c). not pointed to record evidence to support "The moving party bears the initial burden of such denials. Pursuant to Local Rule 56.1, demonstrating the absence of any genuine issue of the material facts set forth in the defend-material fact, though the non-moving party must ants' statement of material facts are make a showing sufficient to establish the existence deemed to be admitted. of each element of his case on which he will bear the burden of proof at trial." Huang v. BP Amoco *10 On June 23, 2004, the plaintiff was trans-Corp., F.3d 560, 564 (3d Cir.2001); Celotex Corp. ferred from the State Correctional Institution at v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, Fayette (SCI-Fayette) to the SMU at SCI-Camp 91 L.Ed.2d 265 (1986). Hill. Id. at ¶ 3. Prior to being housed at SCI-Fayette, the plaintiff was housed at the State Cor"A factual dispute is material if it bears on an rectional Institution at Pittsburgh (SCI-Pittsburgh). essential element of the plaintiff's claim, and is Id. While at SCI-Pittsburgh, the plaintiff saw a genuine if a reasonable jury could find in favor of dentist approximately twice a year and the dental the nonmoving party." Natale v. Camden County staff there told the plaintiff that his teeth were go-Correctional Facility, 318 F.3d 575, 580 (3d ing bad due to improper care. Id. They also told Cir.2003). In determining whether an issue of ma- him that he should floss and brush his teeth more terial fact exists, the court must consider all evid- often. Id. However, the plaintiff did not have any ence in the light most favorable to the non-moving cavities while at SCI-Pittsburgh. Id. at ¶ 4. The party. White v. Westinghouse Electric Co., 862 F.2d plaintiff was not permitted to have dental floss 56, 59 (3d Cir.1988). "Our function at the summary while in the Restricted Housing Unit at SCI-judgment stage is not to weigh the evidence and de- Pittsburgh. Id. at ¶3. termine the truth of the matter, but to determine whether there is a genuine issue for trial." Federal The plaintiff was only at SCI-Fayette for six Home Loan Mortgage Corp. v. Scottsdale Ins. Co., months. Id. at ¶ 4. While there, he was given a 316 F.3d 431, 443 (3d Cir.2003). toothbrush. Id. The plaintiff was not allowed dental floss at SCI-Fayette. Id.

Unless noted otherwise, the following facts are not in dispute. When the plaintiff arrived in the SMU, he received a toothbrush with a short handle. Id. at ¶5. At all times material hereto, the plaintiff was He used the toothbrush to brush his teeth approximan inmate incarcerated in the Special Management ately twice a day. Id. Unit (SMU) at SCI-Camp Hill, defendant White was a dentist employed by the Pennsylvania De- As part of his duties as the dentist at SCI-Camp partment of Corrections at SCI-Camp Hill, defend- Hill, defendant White is familiar with the plaintiff, ant Marsh was employed as the Unit Manager of who was housed in the SMU at SCI-Camp Hill the SMU at SCI-Camp Hill, and defendant Patton from June 23, 2004 until October 13, 2006. Id. at ¶ 15. Defendant White has examined and treated the Pittsburgh had told the plaintiff the same thing. Id. plaintiff on a number of occasions since his arrival Defendant White also told the plaintiff that the denat SCI-Camp Hill. Id. at ¶ 16. tures could aggravate his gums. Id. No dentist has told the plaintiff that he needs or should have denOn February 16, 2005, defendant White saw tures. Id. at ¶¶ 6 &8. the plaintiff and diagnosed him with periodontal abscess and generalized 5 moderate periodontitis. *11 In his capacity as the former SMU Unit Id. at ¶ 17. Periodontal disease is a disease of the Manager, defendant Marsh was responsible for unit area surrounding the teeth including the gums. Id. security and treatment programs within the SMU. The gums become inflamed due to the buildup of Id. at ¶ 25. The SMU is a specialized housing unit plaque. Id. It is normally the result of poor dental within SCI-Camp Hill which houses disruptive and hygiene, such as lack of regular brushing and violent inmates during their incarceration. Id. The flossing. Id. Defendant White prescribed penicillin SMU houses both Administrative Custody (AC) for the plaintiff and advised him to brush and floss and Disciplinary Custody (DC) inmates. Id. when floss was available to him in order to slow down the periodontal disease. Id. The SMU consists of five phases or levels. Id. at ¶ 26. All inmates entering the SMU who have On subsequent visits, defendant White noted DC sanctions levied by a hearing examiner start out that the swelling in the plaintiff's gums had sub- at Phase V, which is the most restrictive custody sided. Id. at ¶ 18. This was due in part to improved level. Id. Inmates received on AC status start in dental hygiene on the plaintiff's part. Id. Phase IV. Id. Long Term Segregation Unit (LTSU) graduates begin on Phase III. Id. Depending on his On December 9, 2005, defendant White saw behavior, an inmate can progress out of his initial the plaintiff again. Id. at ¶ 19. At that time, the reception phase to less restrictive phases. Id. There plaintiff stated that nothing was bothering him right are restrictions on privileges and possession of now but that he wanted dentures. Id. Defendant property in the SMU. Id. As an inmate progresses White advised the plaintiff that he was not eligible through the phases, his access to privileges and serfor dentures under Department of Corrections vices is increased. Id. The purpose of the restric-policy. Id. Defendant White further advised the tions is to modify inmate behavior. Id. Inmates in plaintiff that it was White's opinion that dentures Phases IV and V have limited commissary priv-would not improve the plaintiff's periodontal dis- ileges. Id. at ¶ 27. They are permitted to purchase ease but that, in his experience, dentures tend to only writing supplies. Id. All SMU inmates are supworsen periodontal disease. Id. at ¶ 20. On the oth- plied with a modified toothbrush for their dental er hand, chewing stimulates the gums and is good hygiene. Id. for them. Id.

Until recently, all SMU inmates were denied

The plaintiff believes that he needs dentures, the use of dental floss for security reasons. Id. It because he is missing two teeth on the right side of was felt that dental floss could be used to fashion this mouth. Id. at ¶ 6. The plaintiff believes that weapons, to garrote staff and other inmates or to indentures would relieve stress on the left side of his terfere with locking mechanisms. Id. As of approx-mouth. Id. at ¶ 8. Defendant White has informed imately January 2007, inmates in the SMU have the plaintiff that he is not a proper candidate for been permitted to have short dental floss strips, due dentures. Id. at ¶ 11. He told the plaintiff that he to a revision in Department policy. Id. did not meet the criteria for dentures and that he had to have a certain number of teeth missing and As part of his former duties as the SMU Unit in a certain arrangement. Id. The dentist at SCI- Manager, defendant Marsh is familiar with the plaintiff. Id. at ¶ 28. The plaintiff initially started in fendants acted with deliberate indifference to his Phase III of the SMU as an LTSU graduate. Id. serious medical needs. Estelle v. Gamble, 429 U.S. However, he quickly received a misconduct which 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). resulted in DC sanctions levied by the hearing examiner and his placement on Phase V. Id. The The concept of serious medical need has two plaintiff then vacillated between Phases V and IV components, one relating to the consequences of a before being declared a failure of the SMU pro- failure to treat and the other relating to the obvious-gram. Id. ness of those consequences. Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir.1991).

On or about March 20, 2005, the plaintiff sub- The condition must be such that a failure to treat mitted a request to staff member form to defendant can be expected to lead to substantial and unneces-Marsh in which he asked to be permitted to have sary suffering, injury or death. Id. Also, the condi-dental floss in his cell. Id. at ¶ 29. On April 13, tion must be one that has been diagnosed by a doc-2005, defendant Marsh responded to the plaintiff's tor as requiring treatment or one that is so obvious request by indicating that dental floss was a secur- that a lay person would easily recognize the need ity concern and that he was not allowed to retain it for a doctor's attention. Id. in his cell in the SMU. Id. This is the extent of defendant Marsh's interaction with the plaintiff on this Mere medical malpractice does not give rise to issue. Id. at ¶ 30. a violation of the Eighth Amendment. White v. Napoleon, 897 F.2d 103, 108 (3d Cir.1990). "While Defendant Patton is also familiar with the the distinction between deliberate indifference and plaintiff. Id. at ¶ 34. On or about July 7, 2005, the malpractice can be subtle, it is well established that plaintiff wrote to him seeking permission to use as long as a physician exercises professional judg-dental floss in the SMU. Id. Defendant Patton de- ment his behavior will not violate a prisoner's conclined the plaintiff's request on security grounds. Id. stitutional rights." Brown v. Borough of Chambers-In his reply to the plaintiff, defendant Patton wrote: burg, 903 F.2d 274, 278 (3d Cir.1990). The Third "I do not approve dental items for inmates. Dental Circuit has "found 'deliberate indifference' in a floss is not on the approved items for the SMU. I variety of circumstances, including where the pris-suggest that you improve your behavior to the point on official (1) knows of a prisoner's need for med-that you can be released to general population ." Id. ical treatment but intentionally refuses to provide it; This was the extent of defendant Patton's involve- (2) delays necessary medical treatment based on a ment with the plaintiff on this issue. Id. non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treat-*12 Defendant Patton understood that dental ment." Rouse v. Plantier, 182 F.3d 192, 197 (3d floss was not permitted to SMU inmates at that time Cir.1999). The Third Circuit has also "found for security reasons. Id. at ¶ 35. It was felt that 'deliberate indifference' to exist when the prison dental floss could be used as a weapon/instrument official persists in a particular course of treatment to garrote staff, themselves, or another inmate. Id. 'in the face of resultant pain and risk of permanent In addition, the floss can be used to cause malfunc- injury.' " Id. (quoting White v. Napoleon, 897 F.2d tioning of electronic components such as locks on 103, 109 (3d Cir.1990)). Prison medical authorities the cell doors. Id. SMU inmates are inmates who are given considerable latitude in the diagnosis and have been determined to be security risks prior to treatment of medical problems of inmates and their placement in the SMU. Id. courts will "disavow any attempt to second guess the propriety or adequacy of a particular course of In order for the plaintiff to establish an Eighth treatment ... which remains a question of sound pro-Amendment violation he must establish that the de- fessional judgment." Little v. Lycoming County, claims are also based on state law. The defendants 912 F.Supp. 809, 815 (M.D.Pa.1996) (quoting In- have not addressed any state law claims. However, mates of Allegheny County Jail v. Pierce, 612 F.2d since we will recommend that the defendants be 754, 762 (3d Cir.1979)). Mere disagreement as to granted summary judgment on the plaintiff's federal the proper medical treatment does not support an claims, we will also recommend that the court de-Eighth Amendment claim. Monmouth County Cor- cline to exercise supplemental jurisdiction over the rectional Institutional Inmates v. Lanzaro, 834 F.2d plaintiff's state law claims. 28 U.S.C. § 1367(c)(3) 326, 346 (3d Cir.1987) ("Courts, determining what ("The district courts may decline to exercise sup-constitutes deliberate indifference, have consist- plemental jurisdiction over a claim under subsecently held that mere allegations of malpractice do tion (a) if-... the district court has dismissed all not raise issues of constitutional import.... Nor does claims over which it has original jurisdiction."); mere disagreement as to the proper medical treat- United Mine Workers v. Gibbs, 383 U.S. 715, 726, ment support a claim of an eighth amendment viol- 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (holding that ation."); White, supra, 897 F.2d at 110 (mere dis- when federal causes of action are dismissed, federal agreement over proper treatment does not state a courts should not separately entertain pendent state claim upon which relief can be granted). claims).

*13 Since no dentist has told the plaintiff that Based on the foregoing, it is recommended that he needs or should have dentures, and since there is the defendants' motion (doc. 47) for summary judgno evidence in the record of any professional opin- ment be granted, that the court decline to exercise ion that the plaintiff needs dentures, the plaintiff supplemental jurisdiction over the plaintiff's state has not established that he had a serious medical law claims and that the case file be closed. need for dentures. In light of defendant White's opinion that the plaintiff did not meet the criteria M.D.Pa.,2007. for dentures and that dentures could actually ag- Bronson v. White gravate the plaintiff's gums, no reasonable trier of Not Reported in F.Supp.2d, 2007 WL 3033865 fact could conclude that defendant White was delib- (M.D.Pa.) erately indifferent to the plaintiff's dental needs.

The recent change in policy to allow SMU inmates access to short pieces of dental floss indicates that there were ways to address the security concerns presented by SMU inmates' possession of dental floss. Nevertheless, given the security concerns associated with dental floss for disruptive inmates and the fact that the plaintiff had a toothbrush to maintain his dental health, we conclude that a reasonable trier of fact could not conclude that the defendants' refusal to provide the plaintiff with dental floss while in the SMU amounted to deliberate indifference to his dental needs.

The defendants are entitled to summary judgment on the plaintiff's Eighth Amendment claims.

In his complaint, the plaintiff indicates that his 36 Fed.Appx. 228, 2002 WL 1273649 (C.A.8 (Ark.)) (Not Selected for publication in the Federal Reporter) (Cite as: 36 Fed.Appx. 228, 2002 WL 1273649 (C.A.8 (Ark.))) cordance with 28 U.S.C. § 1915(b); and affirm the

This case was not selected for publication in the judgment of the district court. Federal Reporter.

FN1. The Honorable Jerry W. Cavaneau,

Not for Publication in West's Federal Reporter See United States Magistrate Judge for the Fed. Rule of Appellate Procedure 32.1 generally Eastern District of Arkansas, to whom the governing citation of judicial decisions issued on or case was referred for final disposition by after Jan. 1, 2007. See also Eighth Circuit Rules consent of the parties pursuant to 28 28A, 32.1A. (Find CTA8 Rule 28A and Find CTA8 U.S.C. § 636(c).

Rule 32.1A)

We review the grant of summary judgment de United States Court of Appeals, novo, see Cooper v. Olin Corp., 246 F.3d 1083, Eighth Circuit. 1087 (8th Cir.2001), and we may affirm the judg-Arthur Dale TAYLOR, Appellant, ment on any ground supported by the record, see v. Miller v. Benson, 51 F.3d 166, 170 (8th Cir.1995). Larry NORRIS, Director, Arkansas Department of After thoroughly reviewing the record, we conclude Correction; Max Mobley, Deputy Director, Arkan- that there were no genuine issues of material fact sas Department of Correction; Grant Harris, concerning defendants' liability. Taylor's claims Warden, Pine Bluff Unit, ADC; Maggie Capel, As- against defendants Nurse Wendy Maglothin and Insistant Warden, Pine Bluff Unit, ADC; Rebekah firmary Administrator Rebekah Davis boil down to Davis, Site Administrator, Infirmary, Pine Bluff a disagreement as to the recommended treatment Unit, ADC; Wendy Maglothin, R.N., Director of for his hernias and with Nurse Maglothin's decision

Nursing, Pine Bluff Unit, ADC, Appellees. not to schedule him for a doctor's appointment. See Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th No. 02-1846. Cir.1995) (disagreement as to proper course of Submitted May 21, 2002. treatment is not actionable under Eighth Amend-Filed June 10, 2002. ment). Further, there was no proof that the remaining defendants were involved in the medical treat- Appeal from the United States District Court for the ment decisions. See Keeper v. King, 130 F.3d 1309, Eastern District of Arkansas. 1314 (8th Cir.1997) (prison official not involved in

Before McMILLIAN, RICHARD S. ARNOLD, and treatment decisions made by medical unit's staff BYE, Circuit Judges. cannot be liable for medical staff's diagnostic decisions).

[UNPUBLISHED] Accordingly, we affirm. See 8th Cir. R. 47A(a).


**1 Arthur Dale Taylor, an Arkansas inmate, C.A.8 (Ark.),2002. appeals from the district court's FN1 adverse grant Taylor v. Norris of summary judgment in his 42 U.S.C. § 1983 ac- 36 Fed.Appx. 228, 2002 WL 1273649 (C.A.8 tion. Taylor moves for preparation of a transcript at (Ark.)) government expense and for permission to proceed END OF DOCUMENT in forma pauperis (IFP) on appeal. We deny him the transcript; grant him leave to appeal IFP, leaving the fee-collection details to the district court in ac-


Any party may obtain a review of the magistrate judge's above proposed determination pursuant to Rule 72.3 , M.D.PA, which provides: 7 2 . 3 REVIEW OF REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGES ADDRESSING CASE DISPOSITIVE MOTIONS Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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