United States District Court, E.D. Pennsylvania
OPINION DEFENDANTS' MOTION TO DISMISS, ECF NO.
9-GRANTED IN PART AND DENIED IN PART
F. LEESON, JR. JUDGE
Ronell Nichols is a pro se inmate who suffers pain from a
surgically-implanted femur rod and bullet fragments embedded
in his thigh. In this § 1983 case, the second he has
filed as a result of his condition, he claims that two prison
physicians violated his constitutional rights when they chose
to give him pain medication instead of surgically removing
the bullet and femur rod. He also claims that a prison guard
who was a defendant in the first lawsuit retaliated against
him by repeated searches of his cell that culminated in
verbal abuse and the guard throwing Nichols's personal
property in the cell's toilet. Nichols also brings claims
against various prison administrators and the entity that
operates the prison for failing to respond to his grievances
and properly train prison employees. Defendants move to
dismiss all claims.
Nichols's claim against the physician defendants
expresses only his disagreement with their chosen treatment
method, he alleges, at best, medical negligence, and has not
stated a constitutional claim. However, Nichols has alleged
that he suffered an adverse action because of his prior
lawsuit, so Defendants' motion to dismiss the retaliation
claim against the prison guard is denied. Because Nichols has
not alleged that any of the prison administrators were
personally involved in the alleged violations of his rights
and has not alleged any policy or custom of unconstitutional
conduct, this Court dismisses the failure to train claims
against the administrative defendants.
30, 2017, Nichols filed a pro se complaint under 42 U.S.C.
§ 1983 alleging violations of his constitutional rights.
ECF No. 6. He brings claims of negligence, retaliation, and
deliberate indifference and alleges that Defendants Dr.
Ronald Phillips and Dr. Bob Rawlins acted with deliberate
indifference to his medical needs, that Defendant Sergeant
Sabintino denied him grievance forms, yelled at him,
repeatedly searched his cell, and threw his personal property
in the toilet, and that Defendants Superintendent John
Reilly, Warden David Byrne, Deputy Warden Mario Collucci, and
Nurse Administrator Kristen Grady failed to remedy the wrongs
he suffered and respond to his grievances, .
moved to dismiss the complaint on August 28, 2017. ECF No. 9.
On October 2, 2017, Nichols filed a “Motion to Dismiss
Defendants' Motion to Dismiss, ” ECF No. 13, which
the Court construes as an opposition. In his opposition,
Nichols clarifies that he brings a claim against Defendants
Reilly, Byrne, Colucci, Grady, and the GEO Group, Inc., which
operates the prison, based on failure to train, supervise,
and discipline prison employees. Pl.'s Opp. Mot. Dismiss
Ronell Nichols, while incarcerated at George W. Hill
Correctional Facility, presented to two prison doctors,
Defendant Dr. Phillips and Defendant Dr. Rawlins, complaining
of pain in his leg caused by embedded bullet fragments and a
surgically-implanted femur rod. Compl. 1, 4. Nichols alleges
that the bullet is “moving throughout my thigh
area” and the femur rod “is poking out my hip
bone area, ” causing pain so severe that he cannot
sleep on his right side. Compl. 4.
had been scheduled for surgery to remove the femur rod on
March 1, 2017, but was arrested on February 27, 2017. Compl.
13. On March 13, after examining Nichols, Dr. Rawlins
concluded that the rod had not healed completely, even though
prior to Nichols's incarceration, his orthopedist had
said it had healed completely and was ready to be removed.
Compl. 13. Dr. Phillips and Dr. Rawlins did not examine x-ray
films that had been taken of Nichols's thigh on March 9.
Compl. 13. Dr. Phillips felt the fragment in Nichols's
thigh and said he would have the bullet surgically removed,
but Dr. Rawlins convinced him not to. Compl. 12-13. The
doctors provided Nichols with Advil for four days. Compl. 12.
filed a previous lawsuit in 2015 against Defendant Byrne,
Defendant Sabintino, and another prison official. Compl. 7.
This lawsuit settled in January 2017. Compl. 8. Subsequently,
Sabintino searched Nichols's cell every time Sabintino
was on Nichols's cell block, made threats related to
Nichols's lawsuit, and made other harassing comments,
such as calling Nichols a “suing little bastard.”
Pl.'s Opp. Mot. Dismiss 9. He refused Nichols grievance
forms and, on one occasion in particular, searched
Nichols's cell for his legal paperwork, cursed at him,
and threw Nichols's “towel-n-rag” in the
cell's toilet. Compl. 4. Nichols had to hide his legal
materials in his cellmate's belongings so that Sabintino
would not find them. Pl.'s Opp. Mot. Dismiss 9.
wrote numerous grievances, including to Defendant Reilly,
Defendant Byrne, Defendant Colucci, and Defendant Grady, but
did not receive any response. Compl. 12. He has not received
mail, although his family informs him that they have sent it.
STANDARD OF REVIEW
rendering a decision on a motion to dismiss for failure to
state a claim, this Court must “accept all factual
allegations as true [and] construe the complaint in the light
most favorable to the plaintiff.” Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)) (internal quotation marks omitted). Only if
“the ‘[f]actual allegations . . . raise a right
to relief above the speculative level'” has the
plaintiff stated a plausible claim. Id. at 234
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540,
555 (2007)). However, “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense”). The defendant bears the
burden of demonstrating that a plaintiff has failed to state
a claim upon which relief can be granted. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing
Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d
1406, 1409 (3d Cir. 1991)).
Eighth Amendment Deliberate Indifference
claims that his treating physicians were deliberately
indifferent to his medical needs because they gave him pain
medication instead of surgically removing the rod and bullet
fragments in his leg. To state a § 1983 claim based on
deliberate indifference, a plaintiff must allege (1) that he
had a serious medical need and (2) acts or omissions of
prison officials showing deliberate indifference to that
need. Natale v. Camden Cty. Corr. Facility, 318 F.3d
575, 582 (3d Cir. 2003). “Deliberate
indifference” requires highly culpable conduct-although
prison systems have a duty to provide prisoners with adequate
medical care, simple medical malpractice does not create a
constitutional violation. Estelle v. Gamble, 429
U.S. 97, 104-106 (1976); see also Monmouth County
Correctional Institution Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987). Indeed, prison authorities have
considerable latitude in the diagnosis and treatment of
prisoners, and courts defer to a physician's professional
judgment. See Inmates of Allegheny County Jail v.
Pierce,612 F.2d 754, 762 (3d Cir. 1979); see also
White v. Napoleon,897 F.2d 103, 110 (3d Cir. 1990)
(“Certainly, no claim is presented when a
doctor disagrees with the professional judgment of
another doctor. There may, for example, ...