United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION RE: ECF No. 41
MAUREEN P. KELLY, Magistrate Judge.
Plaintiff Roger Judge ("Plaintiff"), an inmate at the State Correctional Institution at Greene ("SCI-Greene"), has presented a second amended civil rights complaint [ECF No. 17] which he has been granted leave to prosecute without prepayment of costs. Plaintiff has named two groups of defendants, (i) the Department of Corrections defendants, which include Nedra Grego, a Registered Nurse Supervisor, SCI-Greene Superintendent Louis Folino, and Chief Grievance Officer Dorina Varner (collectively, "DOC Defendants"); and, (ii) the medical defendants, which include Byunchak Jin, M.D., and L. Moore, Prison Health Service Administrator (collectively, "Medical Defendants").
Pending before the Court is a Motion to Dismiss [ECF No. 41], filed on behalf of the DOC Defendants only, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, is respectfully recommended that the Motion to Dismiss filed by the DOC Defendants, [ECF No. 41], be granted.
A. FACTUAL AND PROCEDURAL BACKGROUND
Roger Judge ("Plaintiff"), is a prisoner currently incarcerated at the Pennsylvania State Corrections Institution at Greene ("SCI-Greene"). Plaintiff was sentenced to death for First Degree Murder, but the death sentence has been the subject of a grant of federal habeas corpus relief based upon Petitioner's sentencing phase claims in Judge v. Beard, No. 2:02-cv-06798 (E.D. Pa. ECF No. 80; ECF No. 122 (filed 11/29/2012)). According to a search on PACER, Plaintiff has previously filed at least five pro se civil actions in the United States District Courts located in Pennsylvania and at least one appeal to the United States Court of Appeals for the Third Circuit. Accordingly, he is well acquainted with the procedures and rules of the federal court system.
On August 21, 2013, the Court issued an order directing Plaintiff to file an amended complaint, ECF No. 13, because his then-operative Amended Complaint, ECF No. 9, violated the joinder rules set forth in Rule 20 of the Federal Rules of Civil Procedure. Plaintiff filed his second Amended Complaint, ECF No. 17, which is the operative complaint.
In his second Amended Complaint, Plaintiff alleges that Defendants violated his constitutional rights under the First, Eighth and Fourteenth Amendments to the United States Constitution by requiring Plaintiff to take blood pressure medication during the day while he was fasting for Ramadan; failing to provide requested medical treatment for leg, foot and stomach issues; failing to provide Plaintiff with his own blood pressure monitor to keep in his cell; failing to permit Plaintiff to leave his cell three times per day to have his blood pressure checked in a triage unit rather than his cell; and, violating his rights to privacy by discussing his medical issues in the presence of other inmates.
In particular, Plaintiff alleges that he has a life threatening high blood pressure condition that requires frequent monitoring. ECF No. 17 at 6, ¶ 15. He also claims that he suffers from a heart murmur and an anxiety disorder that causes frequent panic attacks. Id. at ¶ 16. Plaintiff has been prescribed and is provided several medications to treat his hypertension, and he contends "frequent and daily [blood pressure] monitoring is required." ECF No. 16 at 6, ¶ 14. Plaintiff alleges that the Medical Defendants are not checking his blood pressure as often as he believes necessary (two to three times per day). ECF No. 17 at 7, ¶ 20. In addition, Plaintiff complains that the Medical Defendants are not properly taking his blood pressure readings because on March 7, 2010, an unidentified nurse required Plaintiff to place him arm through the cell door slot, which requires him to kneel down and raise his arm above the shoulder, which according to Plaintiff, alters the test. Id. at ¶¶21 to 25.
Plaintiff desires an in-cell blood pressure monitor so that he can perform self-testing at will. Id. at 7, ¶ 19. Plaintiff alleges he complained several times about the inadequacy of his blood pressure monitoring and lodged several requests for a blood pressure monitor in his cell. Plaintiff complains that Defendants Dr. Jin, Superintendent Louis Folino, Nurse Supervisor Nedra Grego and L. Moore all refused to provide a satisfactory explanation as to why Plaintiff is not permitted an in-cell blood pressure monitor. Id. at 8 to 9, ¶¶ 26-32.
Plaintiff alleges that after making his repeated requests, Dr. Jin retaliated against Plaintiff for filing grievances and complaints about obtaining a blood pressure monitor in his cell. Id. at 9 to 12, ¶¶ 33-51. Among the allegedly adverse actions taken by Dr. Jin is the requirement that Plaintiff to take his blood pressure medication during daylight hours of the month of Ramadan, notwithstanding that Plaintiff is a Muslim who felt he was required to fast, despite receiving a letter from the Muslim Chaplain that Plaintiff's medical condition excused him from the fast requirements. ECF No. 9-6 at 1. Plaintiff asserts further retaliation by Dr. Jin when, on "June 11, 2012, Plaintiff was removed from Ramadan participation for reasons manufactured by the medical department." Id. at 12, ¶ 53.
The DOC Defendants contend that the facts alleged fail are insufficient to state a claim against them as a matter of law.
B. STANDARD OF REVIEW
As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed.R.Civ.P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson , 355 U.S. 41, 45-46 (1957)). Under this standard, the court must, as a general rule, accept as true all factual allegations of the complaint and all reasonable inferences must ...