United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
The plaintiff, Devine Marks, fell and injured his back during a seizure, and he claims that the defendants were negligent and violated his constitutional rights by assigning him to a cell on the second tier of the prison even though he suffers from epileptic seizures. The six remaining defendants filed a motion to dismiss the amended complaint. For the reasons that follow, we recommend that the motion to dismiss be granted in part and denied in part.
II. Background and Procedural History.
Marks, a state prisoner proceeding pro se, commenced this civil rights action by filing a complaint in the United States District Court for the Western District of Pennsylvania. He also filed an application for leave to proceed in forma pauperis, and the case was transferred to this court. Marks named as defendants Corizon Health Care, Inc. (Corizon) and six individuals. We reviewed the complaint in accordance with 28 U.S.C.
§ 1915A, and we concluded that it failed to state a claim upon which relief may be granted against Corizon. We recommended that Marks’s application for leave to proceed in forma pauperis be granted, that the claim against Corizon be dismissed, and that Marks be granted leave to file an amended complaint. Judge Brann adopted that Report and Recommendation and granted Marks leave to file an amended complaint.
On June 24, 2013, Marks filed an amended complaint. He again names Corizon as a defendant as well as the following six individuals: (1) Ed Shoop, a health care administrator; (2) L. Harris, a registered nurse supervisor; (3) Janeen Davis, a nurse supervisor; (4) Sergeant Hunsberger; (5) Teresa Law, a health care administrator; and (6) Major Leggore.
Marks alleges that on the day that he arrived at the State Correctional Institution at (SCI-Camp Hill), he told nurses about his epilepsy, and they told him that it would be noted in his file so that every staff member would know that he has seizures and that he should have a bottom bunk on a bottom tier. He also alleges that he was told that it would be put in the computer that he was to receive a bottom bunk/bottom tier (BB/BT) assignment.
On October 22, 2012, Marks went to L-Block and discovered that his “card” was wrong. So, Marks alleges, he notified Sergeant Hunsberger and told him that he has epilepsy, that he has seizures, and that he can’t be housed on a top tier. According to Marks, without calling or checking with anyone, Hunsberger told Marks that he knows what he is doing and that Marks should just go to the cell being assigned to him. So as to avoid being placed in the hole, Marks complied. Marks alleges that defendant Hunsberger is a sergeant, is medically trained, and should know that a person with epilepsy can be hurt or killed if they have a seizure and fall and hit something. Nevertheless, Marks alleges that Hunsberger forced him to go to a top-tier cell even though there were at least ten cells on the bottom tier that were open.
Marks alleges that the same day that Hunsberger moved him to the top tier, he wrote to defendants Leggore, Davis, Law, and Harris asking for help, and he explained that he has epilepsy, that he has seizures, that he was placed on a top tier, that he told Hunsberger about his situation, that Hunsberger did not care, and that it is hazardous for him to be on the top tier.
Marks alleges that on November 6, 2012, he had a seizure and he fell on the metal stairs on the top tier. He alleges that he injured his back and that he was rushed to the hospital. According to Marks, he suffered contusions and abrasions to his lower back, and he was issued a cane and a back brace. Marks alleges that after his fall, “everybody” wrote him back and stated that he is now on BB/BT status.
Marks attached to his amended complaint a request slip dated October 23, 2012, addressed to defendant Leggore. Doc. 19 at 6. He outlined in that request slip his interaction with defendant Hunsberger, and he asked Leggore to help with the situation. Id. In a response dated November 7, 2012, Leggore stated that at the time Marks spoke to Sergeant Hunsberger on October 22nd he was not on BB/BT status. Id. Leggore further states: “Presently and since that date your status has been changed to reflect LT/LB status, therefore, you will be provided an appropriate cell to accommodate your status.” Id.
Marks also attached to his amended complaint a request slip dated October 24, 2012, addressed to defendant Davis, asking for help. In that request slip, Marks stated that he has epilepsy, that he was moved from one cell to another, that he explained to the sergeant that he has seizures and cannot be on the top tier, and that he wrote to the major of the guard about the situation. Doc. 19 at 8. The response to the request slip, which was dated November 16, 2012, and which appears to be signed by defendant Harris, provided: “On 10/17/12 PA-C [illegible] wrote for you to have lower bunk and ground level housing. It’s [sic] looks as if you are on LB10 cell-bottom bunk, bottom tier.” Id. According to Marks, although that response stated that he was to be on the BB/BT status at the time of the cell assignment by defendant Hunsberger, defendant Leggore’s response to Marks’s request slip says he was not on BB/BT status at the time.
Marks also attached to his amended complaint, a request slip dated October 26, 2012, and addressed to defendant Law. Doc. 19 at 9. In this request slip, he stated that his record states that he has epilepsy and that he should be on BB/BT. Id. He further stated in this request that his “card” said B-13-2, that he told that sergeant that he is BB/BT, that the sergeant took his card “and crossed it out, ” and that the sergeant wrote B-471 on L Block. According to the request slip, Marks then told the sergeant that was still wrong, and the sergeant responded that he knows what he is doing that Marks should just go. Id. Marks stated in this request slip that he wrote to Major Leggore and Nurse Supervisor Davis, but he had not received a response. Id. In a response dated November 16, 2012, defendant Harris stated that this is a duplicate request and that his request was already answered. Id.
Marks further attached to his amended complaint a response to a grievance that he filed. Doc. 19 at 7. That response, which appears to be signed by defendant Shoop, is dated December 11, 2012, and stated that Marks’s grievance was dated November 27, 2012. The response provided:
The following is a review of your medical record:
You disclosed to the intake nurse that you had a history of a seizure dis. You were ordered a lower bunk and tier due to your medical condition. You stated that the intake nurse informed you that you would receive a “substitute” for your seizure medications. The nurse cannot order medications and you were referred to the PAC. Reviewing your medication administration record, you were ordered the medications you requested. You were moved to L Block. On 10-24-2012 you submitted an inmate to staff request. The request was answered by RNS Harris and you were informed that you did have a lower bunk and tier order. I cannot answer for the actions of staff that I do not supervise.
The review of your medical record indicates that you received proper medical ...