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Bobby Ray Collins v. Warden Bryan Bledsoe

September 6, 2011

BOBBY RAY COLLINS,
PLAINTIFF,
v.
WARDEN BRYAN BLEDSOE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Plaintiff Bobby Ray Collins ("Collins"), an inmate confined at the United States Penitentiary in Lewisburg ("USP Lewisburg"), Pennsylvania, initiated the above action pro se by filing a Bivens*fn1 -styled civil rights complaint under the provisions of 28 U.S.C. § 1331. Named as Defendants are the following USP Lewisburg employees: Bryan Bledsoe, Warden; Kevin Pigos, Clinical Director; Douglas McClintock, Emergency Medical Technician ("EMT"); Steve Brown, Administrator of Health Services; Mark Peoria, Physician Assistant ("PA"); and Beverly Prince, EMT. Service of Collins' amended complaint (Doc. No. 21) was directed by order dated October 7, 2010. (Doc. No. 20.)

Various motions presently are before the Court for disposition. As more fully explained below, because Collins attached a motion requesting leave to amend along with his proposed second amended complaint (see Doc. No. 35 at 11*fn2 ), which subsequently was docketed as a motion (Doc. No. 49), the Court will deny Defendants' motion to strike his second amended complaint (Doc. No. 45). Also, because Collins filed a motion for leave to file a third amended complaint (Doc. No. 44) and a proposed third amended complaint (Doc. No. 44-1), the Court will deny as moot his motion for leave to file a second amended complaint (Doc. No. 49). Because his proposed third amended complaint (Doc. No. 44-1) contains only minor amendments to his amended complaint (Doc. No. 21), the Court will grant Collins' motion for leave to file a third amended complaint (Doc. No. 44). The Court will also deem Defendants' motion to dismiss, or in the alternative, motion for summary judgment (Doc. No. 42), which was filed in response to the amended complaint (Doc. No. 21), to address the third amended complaint (Doc. No. 44-1), and the motion will be granted. In addition, the Court will deny Collins's motion to strike an exhibit to Defendants' statement of material facts (Doc. No. 74).

Finally, based upon the Court's determination that Defendants are entitled to judgment as a matter of law, Collins's motions for a temporary restraining order (Doc. No. 10), for an order for a physical and mental examination (Doc. No. 29), and to appoint counsel (Doc. No. 32) will be denied as moot.

I. PROCEDURAL BACKGROUND

Collins filed this action on August 31, 2010. This case initially was assigned to the Honorable James F. McClure.*fn3 On September 21, 2010, Collins filed a motion for a temporary restraining order (Doc. No. 10), which was accompanied by exhibits (Doc. Nos. 8, 9) and seven declarations (Doc. Nos. 11-17). On October 1, 2010, Collins filed a motion seeking leave to amend his complaint (Doc. No. 19), which was accompanied by a proposed amended complaint (Doc. No. 19-1). By order dated October 7, 2010, Collins's motion was denied as moot in light of the fact that service of his complaint had not yet been directed, and therefore, leave was not required for him to file an amended complaint. (Doc. No. 20.) The October 7, 2010 order also directed service of Collins's amended complaint (Doc. No. 21) and motion for a temporary restraining order (Doc. No. 10) on Defendants, and directed Defendants to respond to the amended complaint and motion within sixty days from the date of service. (Id.)

The docket reflects that the individual Defendants were served with the amended complaint on October 22, 2010, and that the United States Attorney's Office was served with the amended complaint on October 28, 2010. (Doc. No. 25.)

On November 18, 2010, Collins filed a motion requesting an order for a physical and mental examination (Doc. No. 29), which was accompanied by a supporting brief (Doc. No. 30). On December 6, 2010, he filed a motion to appoint counsel. (Doc. No. 32.) Collins filed a "supplement" to this motion on February 4, 2011.*fn4 (Doc. No. 56.)

On December 17, 2010, Collins filed a second amended complaint (Doc. No. 35), which was accompanied by a motion for leave to file an amended complaint (id. at 11) that was not docketed separately as a motion. On January 7, 2011, Defendants filed a motion to strike Collins's second amended complaint on the basis that he had not sought leave to amend. (Doc. No. 45.) A supporting brief also was filed. (Doc. No. 46.) On January 11, 2011, Collins mailed another copy of his motion for leave to amend that he had included with his proposed second amended complaint at the time of filing on December 17, and the motion was entered on the docket on January 12, 2011. (Doc. No. 49.) On February 8, 2011, Collins filed his brief in opposition to Defendants' motion to strike. (Doc. No. 59.) On January 7, 2011, Collins filed a motion for leave to amend (Doc. No. 44) that was accompanied by a proposed third amended complaint (Doc. No. 44-1).

On December 23, 2010, Defendants filed a brief in opposition to Collins's motion for a temporary restraining order. (Doc. No. 41.) On December 27, 2010, a motion to dismiss, or in the alternative, motion for summary judgment was filed on behalf of Defendants. (Doc. No. 42.) On January 7, 2011, Defendants filed a supporting brief (Doc. No. 48) a statement of material facts (Doc. No. 47), and supporting exhibits (Doc. No. 47-1, 47-2). Following a request for an extension of time, which was granted on February 8, 2011, Collins filed his opposition brief*fn5 (Doc. No. 60) and his "counter statement of facts" (Doc. No. 61-1*fn6 ). On February 22, 2011, Defendants filed a reply brief. (Doc. No. 68.)

On April 6, 2011, Collins filed a motion to strike an exhibit to Defendants' statement of material facts (Doc. No. 74) along with a supporting brief (Doc. No. 75). An opposition brief was filed on behalf of Defendants on April 20, 2011. (Doc. No. 76.)

All motions are fully briefed and ripe for review and will be disposed of herein. We will turn first to a discussion of Defendants' motion to strike the second amended complaint before considering Collins's request to file a third amended complaint.

II. DEFENDANTS' MOTION TO STRIKE

Defendants have filed a motion to strike (Doc. No. 45) Collins's second amended complaint (Doc. No. 35). They argue that Collins's second amended complaint should be stricken because they assert that, at the time Collins filed it on December 17, 2010, he failed to seek leave of court to amend his complaint a second time as is required by Federal Rule of Civil Procedure 15(a). (See Doc. No. 46 at 3.) However, Collins attached a motion for leave to file an amended complaint to his proposed second amended complaint that was not docketed separately as a motion. (See Doc. No. 35 at 11.) This motion subsequently was docketed on January 12, 2011, after Collins re-mailed it to the Clerk of Court on January 11, 2011. (Doc. No. 49.) Accordingly, the Court finds that Collins properly sought leave to amend his complaint a second time, and the Court will therefore deny Defendants' motion to strike. At any rate, because Collins filed a motion for leave to file a third amended complaint (Doc. No. 44) and a proposed third amended complaint (Doc. No. 44-1), the Court will deny his motion for leave to file a second amended complaint as moot.

III. COLLINS'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

The Court now turns to a discussion of Collins's pending motion for leave to file a third amended complaint (Doc. No. 44), which is accompanied by a proposed third amended complaint (Doc. No. 44-1). Upon review of Collins's proposed amendments, the Court concludes that the amendments are so minor that it is appropriate to grant Collins's request to amend and deem Defendants' motion to dismiss, or in the alternative, motion for summary judgment to address Collins's proposed third amended complaint. The Court will summarize the three sets of claims that Collins presents in his amended complaint and will discuss the amendments he proposes in his third proposed amended complaint.

A. Collins's Claims

Collins's first claim in his amended complaint is that staff at USP Lewisburg subjected him to cruel and unusual punishment and excessive force in violation of the Eighth Amendment when on August 22, 2009, on the Z Block of USP Lewisburg where Collins was confined, at the direction of Defendant Warden Bledsoe, Collins was placed in ambulatory restraints. (Doc. No. 21 at 2 ¶ 1.) Collins alleges that Lieutenant Benfer and Correctional Officer Whittaker each wrote an incident report stating that Collins refused to obey an order after he requested cleaning supplies before being transferred to a "hot unsanitized cell" and that Bledsoe then ordered that Collins be placed in hard iron restraints with chemical agents on the belly chain, clothes, and restraints. (Id. at 2 ¶ 1; at 4.) Collins alleges that he brought to Lieutenant Benfer's and Defendant McClintock's attention that there were chemical agents on the belly chain, clothes, and restraints, and also that the restraints were "excessively tight," but that nothing was done to loosen the restraints. (Id. at 4.) He avers that, as a result, he suffered from blisters, cuts, and swelling in the lower legs. (Id.) Collins further alleges that, after he exhausted his administrative remedies, he was subjected to retaliation and harassment by medical staff when they denied him adequate medical treatment by giving him the wrong medications and improperly crushed medications, and also discontinuing his medications. (Id.)

In his second claim, Collins alleges that, following the August 22, 2009 incident where he was placed in restraints, he exhausted his administrative remedies against Defendants McClintock and Bledsoe, Lieutenant Benfer, Corrections Officer Whittaker, and the rest of the administration who were involved in the incident, and that, as a result, he has been subject to harassment and retaliation by Defendants McClintock, Peoria, Prince, Brown, and Pigos in the form of denying him medical treatment and medications. (Doc. No. 21 at 2 ¶ 2; at 5.) He alleges that Defendants McClintock, Prince, and Peoria improperly have provided Collins's medications to him out of the labeled packaging and already crushed and also discontinued his hypertension and "psych medications" through Defendant Pigos as a form of retaliation and harassment. (Id. at 5-6.) He alleges that Defendants Peoria, McClintock, Prince, Pigos and Brown have conspired in an "ongoing campaign" to deny Collins his right to treat his hypertension disease and to be evaluated, diagnosed, and treated by an outside specialist, and have violated the Eighth and Fourteenth Amendments. (Id. at 6.)

In his third claim, Collins alleges that on various dates, he requested to be seen by an outside orthopedist about his right knee and left great toe and to be seen by an outside kidney specialist, but was denied the right to be evaluated, diagnosed, and properly treated by Defendants Peoria, Pigos, and Brown as part of an "ongoing campaign" with the staff at the United States Penitentiary Terre Haute ("USP Terre Haute"), where Collins was housed before he was transferred to USP Lewisburg, to conspire to keep him from getting the treatment he really needs. (Doc. No. 21 at 2 ¶ 3; at 7.) He alleges that, in delaying and denying this medical treatment by an outside specialist, Defendants have been deliberately indifferent in violation of the Eighth Amendment and have denied him Equal Protection in violation of the Fourteenth Amendment. (Id. at 7.) Collins further alleges that Defendant Bledsoe "did nothing" to make sure that Collins receives the treatment he needs, and instead "denied and covered up in order to keep from giving the plaintiff medical treatment." (Id.)

B. Analysis of Collins's Proposed Amendments

Collins's statement of his first claim in his proposed third amended complaint (see Doc. No. 44-1 at 3 ¶ 1; at 4) is identical to his statement in his amended complaint (see Doc. No. 21 at 2 ¶ 1; at 4), and thus he has not proposed any amendments to his first claim.

In his proposed third amended complaint, Collins amends his second claim as to Defendant Peoria by specifying that Peoria was retaliating against him when he denied Collins his medication on November 17, 2009, because Collins had exhausted administrative remedies against him. (See Doc. No. 44-1 at 6.) Collins also eliminates his allegation that Defendants Peoria, McClintock, Prince, Pigos, and Brown conspired to deny him medical treatment, and instead seeks to allege that the "ongoing campaign" by these Defendants to deny him medical care is a form of retaliation. (See id.) In addition, Collins alleges not only that these Defendants are denying him his right to medical treatment for his hypertension, but that they also are denying him his right to medical treatment for "a serious life threatening psychiatric depression illness." (See id.) Finally, whereas in his amended complaint, Collins alleges that Defendants have violated the Eighth and Fourteenth Amendments, in his proposed third amended complaint, he alleges that Defendants' denial of adequate medical treatment violates the First, Fifth, and Eighth Amendments. (See id.)

Collins's proposal to amend his second claim by specifying that Defendant Peoria was retaliating against him when he denied him medication is minor inasmuch as he already had alleged generally in his amended complaint that the discontinuance of his medication by medical staff was "a form of harassment and retaliation in a continuing campaign." (See Doc. No. 21 at 6.) Further, the Court can deem Defendants' motion to address this claim against Peoria inasmuch as Defendants' motion has addressed Collins's retaliation claim relating to denial of medication and improper administration of medication generally as against all Defendants. (See Doc. No. 48 at 21-23.)

As to Collins's request to amend his second claim to add an allegation that he was denied appropriate medical treatment not just for his hypertension, but also for his "serious life threatening psychiatric depression illness" (see Doc. No. 44-1 at 6), the amendment he proposes also is minor as evidenced by the fact that, in their motion addressing the amended complaint, Defendants have argued generally that a dispute over the adequacy of medical care is insufficient to state an Eighth Amendment claim. (See Doc. No. 48 at 26.) Thus, the Court will deem Defendants' motion to address the proposed amended claim that Collins seeks to make as to his treatment for his psychiatric problems.

Finally, although Collins proposes a change to his statement of his constitutional rights that have been violated, and specifically alleges that his First, Fifth, and Eighth Amendment rights have been violated, as opposed to just his Eighth and Fourteenth Amendment rights, his proposed change in identification of the Amendments that have been violated does not alter the core of his allegation, which is that he has been denied adequate medical treatment, and which has been addressed by the arguments raised in Defendants' motion to dismiss, or in the alternative, motion for summary judgment as to the amended complaint. (See Doc. No. 48 at 23-27.)

In his proposed third amended complaint, Collins alters his third claim in that he eliminates references to a violation of equal protection, and instead alleges that the alleged delay and denial of medical treatment "has caused the plaintiff pain and suffering, deliberate indifference and a right to be free from retaliation from exhausting his freedom of speech through grievances." (Doc. No. 44-1 at 7.) Collins therefore alleges that his First, Fifth, and Eighth Amendment rights have been violated. (Id.) Collins also eliminates his claim that Defendants Peoria, Pigos, and Brown are participating in a "conspiracy" with USP Terre Haute staff to deny him access to an outside specialist, and instead alleges that these individuals have participated in an ongoing campaign to "keep the plaintiff from getting the treatment that he really needs." (Id.) In addition, in his proposed third amended complaint, Collins makes a request for "rehabilitational physical therapy." (Id.)

Collins essentially is proposing to amend his third claim by identifying it as a retaliation claim rather than a conspiracy claim. Specifically, instead of alleging that Defendants Peoria, Pigos, and Brown have conspired to deny him a right to be seen by outside specialists in an "ongoing campaign" with the staff at USP Terre Haute, he alleges that this alleged action by Defendants is a form of retaliation. Collins did not explicitly state a retaliation claim in his amended complaint. However, he implied one in his allegation within his statement of his third claim that Defendants are acting in their individual and official capacities in a "campaign" with USP Terre Haute Health Services department to deny him his right to medical treatment, and in identifying the motive for the denial of adequate treatment as Collins's ongoing litigation with the staff at USP Terre Haute in a civil case that was pending in the United States District Court for the Southern District of Indiana. (See Doc. No. 21 at 7.) Thus, because a retaliation claim was already implied, Collins's proposed amendment is of minor significance. Moreover, where in their pending dispositive motion Defendants address Collins's claim that he has been denied adequate medical care in the context of his being given the wrong medication or improperly crushed medication as a retaliation claim (see Doc. No. 48 at 21-23), their motion may be deemed to address Collins's allegation in his proposed third amended complaint that he has been retaliated against in the form of being denied adequate medical care in the context of evaluation and treatment by an outside specialist.

In his proposed amendment to his third claim, Collins also seeks to change his statement of the constitutional amendments that have been violated. (See Doc. No. 44-1 at 7.) As with his second claim, this change by Collins in the identification of the amendments that have been violated does not change the core of his allegation that he has been retaliated against in the form of being provided inadequate medical treatment, and thus is of minor significance. Finally, Collins's proposes amending his third claim to add a request for "rehabilitational physical therapy." (See Doc. No. 44-1 at 7.) Because Collins is requesting an amendment to a request for relief rather than to the claim itself, this proposed amendment has no effect on our analysis of whether he should be permitted to amend the claims contained in his amended complaint.

Based on the foregoing, the Court concludes that, because the amendments in the proposed third amended complaint are minor, the Court will grant Collins's motion to amend (Doc. No. 44), accept his third amended complaint (Doc. No. 44-1), and deem Defendants' motion to dismiss, or in the alternative, motion for summary judgment (Doc. No. 42) to address the third amended complaint. The Court now turns to an analysis of Defendants' dispositive motion.

IV. DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

A. Standards of Review

1. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is warranted only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); seealso Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, - - - U.S. - - - - , - - - -, 129 S. Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).

In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555)). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; seealsoAirborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court also may consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. Moreover, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his or her claims. SeeScheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. Seeid. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. SeeGould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

2. Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that "[t]he Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57. The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).

In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Thus, summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council,676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48.

B. Discussion

1. Motion to ...


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