United States District Court, Western District of Pennsylvania
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE
It is respectfully recommended that:
1. The DOC Defendants’ motion to dismiss [ECF No. 13], herein treated, in part, as a motion for summary judgment, be granted in part and denied in part; and
2. The Medical Defendants’ motion to dismiss [ECF No. 28], herein treated as a motion for summary judgment, be granted.
A. Relevant Procedural History
Plaintiff, an inmate incarcerated at the State Correctional Institution at Forest in Marienville, Pennsylvania (“SCI-Forest”), initiated this civil rights action on April 29, 2013, by filing a pro se complaint, pursuant to 42 U.S.C. § 1983, in the Court of Common Pleas of Forest County, Pennsylvania. The action was removed to this Court by Notice of Removal filed on June 24, 2013 [ECF No. 1]. Named as Defendants in Plaintiff’s pro se complaint are: John Wetzel (“Wetzel”), Secretary of the Pennsylvania Department of Corrections (“DOC”); James Barnagle (“Barnagle”), Director of the DOC’s Office of Special Security Investigation; Daniel Burns (“Supt. Burns”), Superintendent at SCI-Forest; Eric Tice (“Tice”), Deputy Superintendent at SCI-Forest; RHU Shift Commanders Major Repko (“Repko”), Capt. Hatchel (“Hatchel”), Capt. Smith (“Smith”), and Capt. Ireland (“Ireland”); RHU Officers Lt. Carter (“Carter”), Lt. Stetnek (“Stetnek”), and Sgt. Lyken (“Lyken”); Corrections Officers Klawuhn (“C/O Klawuhn”), Best (“C/O Best”), and Dickey (“C/O Dickey”); Kim Smith (K.Smith”), Health Care Administrator at SCI-Forest; Nancy McGarvie (improperly designed as “McGarvey”) (“McGarvie”), Medical Director at SCI-Forest; Eileen Summers (“LPN Summers”) and Laurie Cornell (improperly designated as “Conrad”) (“LPN Cornell”), Licensed Practical Nurses at SCI-Forest; Rhonda Sherbine (“Sherbine”), Physician Assistant at SCI-Forest; and Beverly O’Rourke (“O’Rourke”), Certified Registered Nurse Practitioner at SCI-Forest. Defendants McGarvie, Sherbine, and O’Rourke will hereafter be collectively referred to as “Medical Defendants, ” while the remaining Defendants will be collectively referred to as “DOC Defendants.”
In his pro se complaint, Plaintiff claims that Defendants retaliated against him for exercising his constitutional rights, and were deliberately indifferent to his safety and his serious medical needs in violation of the Eighth and Fourteenth Amendments. As relief for his claims, Plaintiff seeks injunctive relief and monetary damages.
On August 1, 2013, the DOC Defendants filed a motion to dismiss [ECF No. 13], arguing that Plaintiff's claims against them should be dismissed in their entirety because they fail to state claims upon which relief may be granted. On October 3, 2013, the Medical Defendants filed their own motion to dismiss [ECF No. 28], also arguing that Plaintiff’s claims against them should be dismissed because they fail to state claims upon which relief may be granted. Attached to the brief in support of the Medical Defendants’ motion are copies of Plaintiff’s medical records for this Court’s review and consideration [ECF No. 29-1 – 29-3]. As a result, the Court issued an Order notifying Plaintiff that Defendants’ motions may be treated as motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, thereby instructing Plaintiff to file with his response any opposing documentary evidence he would like the Court to consider. [ECF No. 30]. To date, however, Plaintiff has not filed any response or documents in opposition to either motion. This matter is now ripe for consideration.
B. Relevant Factual History
On September 9, 2012, Plaintiff filed a notice with the Pennsylvania Board of Probation and Parole regarding a civil action he intended to file for violation of his due process rights, which included claims against his counselor, Lisa Best, and his unit manager, Ms. Ireland. (ECF No. 1-1, Complaint, at ¶ 16). Allegedly as a result of this notice, Lisa Best’s husband, C/O Best, along with C/O/ Klawuhn, began harassing Plaintiff by banging on his cell door and making verbal threats on various occasions, beginning on November 4, 2012. (Id. at ¶¶ 18-19, 30-31, 37, 39).
On November 19 and 21, 2012, C/O Klawuhn and LPN Summers allegedly denied Plaintiff his medications due to his filing of grievances and civil actions. (Id. at ¶¶ 23-27). Plaintiff alleges that he sent numerous request slips to Supt. Burns and letters to Wetzel regarding the conduct of C/O/ Best and C/O Klawuhn, but no action was taken against them. (Id. at ¶ 29).
On January 4 and 10, 2013, C/O Dickey allegedly made racially derogatory remarks and verbal threats to Plaintiff while serving food trays. (Id. at ¶¶ 33-34). On or about January 10, 2013, Carter allegedly denied Plaintiff an interview in connection with a grievance and, instead, stated that Plaintiff refused the interview. (Id. at ¶ 35). On January 14, 2013, Smith allegedly refused Plaintiff’s request to call the abuse hotline to report the conduct of RHU staff. (Id. at ¶ 36). On February 5, 2013, LPN Summers allegedly refused to submit Plaintiff’s sick call slip and delayed medical attention for Plaintiff’s chest pain and respiratory problems, due to Plaintiff’s filing of a grievance against her. (Id. at ¶ 40).
On March 3, 2013, while Plaintiff was retrieving his medication from LPN Summers, C/O Klawuhn allegedly slammed Plaintiff’s finger inside the “pie-slot.” Plaintiff notified Lyken of the injury to his finger and asked him to call medical. (Id. at ¶ 42). The next day, Lyken asked Plaintiff if he had seen someone from the medical department and Plaintiff responded that he hadn’t and again requested to see medical. Lyken stated that he passed Plaintiff’s request on to Stetnek (Id. at ¶ 43).
On March 15, 2013, Plaintiff was seen on sick call by O’Rourke, who looked at Plaintiff’s injury and ordered x-rays. (Id. at ¶ 46). On April 5, 2013, Carter conducted an investigation of Plaintiff’s injury in response to Plaintiff’s request slip to Supt. Burns and his letter to the DOC’s Central Office. (Id. at ¶ 48). According to Plaintiff, Carter wrongfully reported that Lyken was responsible for causing Plaintiff’s injury, and allegedly refused to take pictures of Plaintiff’s finger. (Id. at ¶ 49). On April 10, 2013, Supt. Burns went to Plaintiff’s cell, at which time Plaintiff showed Burns his injury and told him that Carter refused to take pictures as part of his investigation. According to Plaintiff, Hatchel stated that he would take the photographs, but never did. (Id. at ¶ 50).
Sometime after April 10, 2013, Sherbine allegedly went to Plaintiff’s cell to tell him that K. Smith and McGarvie would not file a medical report regarding his injury because of his constant submission of sick call slips. Sherbine also allegedly refused to refer Plaintiff to a doctor and, instead, referred him to a psychiatrist for an evaluation, allegedly in retaliation for his filing of sick call slips. (Id. at ¶¶ 51-53).
C. Standards of Review
1. Motion to Dismiss
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is Arequired to make a 'showing' rather than a blanket assertion of an entitlement to relief" Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "This 'does not impose a probability requirement at the pleading stage, ' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery ...