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Zamichieli v. Pennsylvania Department of Corrections

United States District Court, W.D. Pennsylvania

June 5, 2018




         This is a civil rights action brought under 42 U.S.C. § 1983 by plaintiff Lamont Zamichieli against the Pennsylvania Department of Corrections (“PA-DOC”); ten individual PA-DOC Defendants: William Nicholson, Tina Staley, Mr. Spiker, C/O Liptak, C/O Price, Karen Sokol, Mark DiAlesandro, Dan Caro, Robert Gilmore and Tracy Shawley; and four individual Medical Defendants: Natalie D. Austin, PA-C, Lori Ridings, CRNP, Mike Hice, and Robert Valley, M.D. The Defendants are sued in their individual and official capacities.

         Mr. Zamichieli claims that while an inmate at the State Correctional Institute at Greene (“SCI-Greene”) prison and medical staff violated his rights by failing to timely move him to a lower tier cell to accommodate his seizure condition. On the day he was moving to the lower tier he had a seizure while descending the stairs, fell, and suffered injuries. He also alleges that during the course of his stay at SCI-Greene he was physically assaulted by a prison employee; sexually assaulted by a medical employee; and fabricated misconduct reports were filed against him. He asserts claims of deliberate indifference in violation of his rights under the Eighth Amendment to the United States Constitution; retaliation in violation of his rights under the First Amendment; and violations of both the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

         Mr. Zamichieli filed a Complaint on July 20, 2017 (ECF No. 9), followed by a Supplement to the Complaint on October 10, 2017 (ECF No. 21). On October 31, 2017, medical employees Natalie D. Austin, Mike Hice, and Lori Ridings filed a motion to dismiss. ECF No. 29. On November 30, 2017, Robert Valley, M.D. filed a motion to dismiss. ECF No. 37. The motions to dismiss were rendered moot when Mr. Zamichieli filed an Amended Complaint on December 5, 2017, which incorporated exhibits attached to his original Complaint. ECF No. 40.

         The PA-DOC Defendants filed an Answer to the Amended Complaint (ECF No. 55). Ms. Austin, Mr. Hice, and Ms. Ridings (ECF No. 44) and separately, Robert Valley, M.D. (ECF No. 49) (collectively referred to as the “Medical Defendants”) filed separate motions to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below the motions will be granted in part and denied in part.

         I. Factual Background

         Plaintiff Lamont Zamichieli is an inmate who has been housed at various institutions in the Pennsylvania State Correctional system since he was first processed by the PA-DOC on January 29, 2015. Am. Compl. ¶ 29. Mr. Zamichieli was transferred to SCI-Greene, where the events relevant to this case occurred, on December 22, 2016. Am. Compl. ¶ 30. He is currently housed at SCI-Huntingdon. Am. Compl. ¶ 97. The Medical Defendants are Robert Valley, M.D.; Natalie D. Austin, a Physician's Assistant-Certified; Lori Ridings, a Certified Registered Nurse Practitioner; and Mike Hice, an office administrator. The moving Medical Defendants are employees of Correct Care Solutions, LLC, hired to provide medical care to inmates at SCI-Greene.

         A. Requests for Lower Tier Housing

         At Mr. Zamichieli's prior institution, he had a medical housing recommendation, dated March 15, 2015, for a lower bunk on a lower tier as an accommodation for his seizure disorder and mild scoliosis. Am. Compl. ¶ 29. Upon transfer to SCI-Greene he was temporarily housed in the administrative custody unit before being released to a bed in the general population. Am. Compl. ¶ 30. When he was released to the general population on December 30, 2016, he was given a lower bunk located on the upper, second tier, not the lower tier. Am. Compl. ¶ 34.

         Mr. Zamichieli began making requests to both prison and medical staff on December 31, 2016, that he needed to be moved to the lower tier in accord with his disability accommodation. Am. Compl. ¶ 46 (and throughout the Amended Complaint). He was initially told by the Unit Counselor, Mr. Spiker, that medical approval was needed to authorize the move, and that in any event no lower tier, lower bunks were available at the time. Am. Compl. ¶ 46.

         Mr. Zamichieli alleges he made his first request to medical staff for a lower tier housing assignment on January 3, 2017, during a sick call visit with physician assistant Natalie Austin. Am. Compl. ¶ 48. He asked Ms. Austin to have the medical department notify the Block Officers, Unit Manager, and Unit Counselor that due to Mr. Zamichieli's seizure disorder he requires a lower tier, lower bunk assignment. Am. Compl. ¶ 48. Ms. Austin agreed to make the notification, however, Mr. Zamichieli avers that Ms. Austin did not make the notification as the Unit Manager and Unit Counselor denied his request. Am. Compl. ¶ 48.

         Two days later, on January 5, 2017, Mr. Zamichieli attended another sick call with Ms. Austin to address an increase in his seizure medication. Am. Compl. ¶ 49. During this visit Ms. Austin said she would notify Defendant Nicholson to request that he verify with the Unit Manager and Unit Counselor for a move to a lower tier. Am. Compl. ¶ 49.

         On January 11, 2017, Mr. Zamichieli attended a sick call regarding his blood pressure and again requested a lower tier assignment. Am. Compl. ¶ 50. At this visit, Ms. Austin noted that Mr. Zamichieli's computer records indicated that he was on medication for seizures, (“Kepra”) and that he had an order for lower tier, lower bunk housing, but there was nothing in the record indicating that that he could not use stairs. Am. Compl. ¶ 50. She also told Mr. Zamichieli that Mr. Nicholson was aware that he was taking medication for seizures but he did not know about an order for lower tier housing. Am. Compl. ¶ 50.

         During a sick call on January 17, 2017, Ms. Austin told Mr. Zamichieli that she had submitted a request to the central office for reapproval of his accommodation for lower tier housing. Am. Compl. ¶ 51. She also said that she would see if Mr. Zamichieli could be moved to the lower tier pending formal approval of his accommodation. Am. Compl. ¶ 51. On unspecified dates thereafter, Mr. Zamichieli alleges that he continued to make requests to Ms. Austin, Ms. Ridings, Mr. Hice, and Dr. Valley to be moved to the lower tier. Am. Compl. ¶ 54.

         Mr. Zamichieli alleges that other inmates were accommodated with cell changes based on their disabilities. Am. Compl. ¶ 60. Mr. Zamichieli also alleges that at certain times lower bunks were available on the lower tier during the time he sought a move. Am. Compl. ¶ 40. Mr. Zamichieli further claims that because he was housed on the second tier he was forced to either use the staircase and risk falling, or not use the stairs and lose access to access to medications, appointments, programs, services, meals, church, and other activities. Am. Compl. ¶¶ 55, 60, 63-64.

         B. Move to Lower Tier Housing and Seizure on Stairs

         On the morning of February 13, 2017, while in line to receive medication a nurse noticed that Mr. Zamichieli's eyes were dilated and suspected he had just had, or was about to have, a seizure. Am. Compl. ¶ 68. His vital signs indicated that his blood pressure was 162 over 102, and his pulse was 136. Am. Compl. ¶ 68; Progress Notes, Feb. 13, 2017, attached as Ex. M to Am. Compl (ECF No. 40-1). He was referred to Dr. Valley for evaluation. ECF No. 40-1. Dr. Valley noted the vital signs and reported that Mr. Zamichieli had a headache and abdominal pain. Am. Compl. ¶ 68. Dr. Valley sent Mr. Zamichieli for evaluation and treatment to the local hospital, Washington Hospital Greene. Am. Compl. ¶ 68. Progress Notes indicate that Mr. Zamichieli returned to the prison about 4:45 P.M., with improved vital signs. Progress Notes, Feb. 13, 2017, attached as Ex. N to Am. Compl (ECF No. 40-2). He was sent back to general population. Am. Compl. ¶ 68.

         Sometime after he returned to general population on February 13, 2017, Mr. Zamichieli went to Mr. Spiker's office. Am. Compl. ¶ 69. Mr. Spiker said Mr. Hice, Ms. Ridings, and Ms. Austin informed him that Mr. Zamichieli had been transported to the hospital. Am. Compl. ¶ 69. Mr. Spiker agreed to move Mr. Zamichieli to a lower tier cell, however it would have to wait until the next day as an appropriate bed was not available at the time. Am. Compl. ¶ 69.

         The next morning, February 14, 2017, while descending the staircase to move his property from the second tier to a lower tier cell, Mr. Zamichieli had a seizure and fell down the stairs suffering injuries. Am. Compl. ¶¶ 56, 70-71; see also Progress Notes, Apr. 14, 2017, ECF No. 40-3.

         C. Sexual Assault and Retaliation Allegations

         During the January 5, 2017 sick call visit, Mr. Zamichieli alleges that Ms. Austin flirted with him in a sexual manner and also asked him about his misconduct history. Am. Compl. ¶ 49. He alleges that Ms. Austin flirtatiously said that now that she had learned his misconduct history she could use that information to fabricate believable misconducts against him. Am. Compl. ¶ 49.

         On January 11, 2017, Mr. Zamichieli alleges that Ms. Austin again flirted with him in a sexual manner and performed a sexual act on him without his consent. Am. Compl. ¶ 50. Mr. Zamichieli said he told Mr. Hice about the incident, but Mr. Hice did not believe him and told Mr. Zamichieli that he must be hallucinating. Am. Compl. ¶ 50.

         During the January 17, 2017 sick call, Ms. Austin complained to Mr. Zamichieli about him having told Mr. Hice on her, and noted that Mr. Hice did not believe Mr. Zamichieli's allegation. Am. Compl. ¶ 52. Ms. Austin then allegedly threatened Mr. Zamichieli that she would file fabricated misconducts against him unless he allowed her to perform a sexual act on him. Am. Compl. ¶ 52. Mr. Zamichieli did not consent to the act. Am. Compl. ¶ 52. On February 24, 2017, Ms. Austin again threatened Mr. Zamichieli in an unnamed manner and sexually assaulted him. Am. Compl. ¶¶ 73-74.

         Mr. Zamichieli also claims that Mr. Hice, Mr. Nicholson, and Dr. Valley failed to protect him from Ms. Austin's sexual assaults because they knew that he was to be seen by male staff only, supporting the allegation with a handwritten notation on a medical department “Problem List” attached to the Amended Complaint. Am. Compl. ¶ 76; Problem List, Jan. 29, 2015 & Apr. 24, 2017, ECF No. 40-11, at 25. The “Problem List” contains an entry dated April 24, 2017, with the notation “Alleged sexual abuse non penetrative”, and at the bottom of the page the notation, “*to be seen by male staff* only”. ECF No. 40-11, at 25.

         Mr. Zamichieli generally alleges that Ms. Austin and Ms. Ridings filed fabricated misconducts against him in retaliation for Mr. Zamichieli having filed grievances, complaints, and lawsuits. Am. Compl. ¶¶ 84, 104. He specifically alleges that on April 8, 2017, Ms. Ridings filed a fabricated misconduct report against him in retaliation for Mr. Zamichieli not withdrawing a grievance he filed against Ms. Austin. Am. Compl. ¶ 85. He alleges that the retaliatory misconducts eventually led to his transfer to another prison. Am. Compl. ¶¶ 84, 104. Finally, Mr. Zamichieli alleges that Ms. Ridings retaliated against him by turning him away from a sick call visit based on his sick call slip being inappropriately completed and therefore denying him access to medical treatment. Am. Compl. ¶ 85.

         II. Standard of Review

         When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations of a complaint must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “This [standard] ‘does not impose a probability requirement at the pleading stage, ' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element.” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).

         In addition to the complaint, courts “may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case” when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). “When ruling on a defendant's motion to dismiss, the District Court may consider a document explicitly relied upon in the complaint without converting the motion to dismiss to a summary judgment motion.” In re: Rockefeller Center Properties, Inc. Securities Litigation, 184 F.3d 280, 287 (3d Cir. 1999).

         Importantly, the Court must liberally construe the factual allegations of the Complaint because pleadings filed by pro se plaintiffs are held to a less stringent standard than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Therefore, if the Court “can reasonably read [the] pleadings to state a valid claim on which [plaintiff] could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or [plaintiff's] unfamiliarity with pleading requirements.” Wilberger v. Ziegler, No. 08-54, 2009 WL 734728, at *3 (W.D. Pa. March 19, 2009) (citing Boag v. MacDougall, 454 U.S. 364 (1982) (per curiam)). Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal conclusions cast in the form of factual averments. Morse v. Lower Merion School District, 132 F.3d 902, 906, n. 8 (3d Cir.1997).

         Finally, if the court decides to grant a motion to dismiss for failure to state a claim upon which relief can be granted, the court must next decide whether leave to amend the complaint must be granted. The Court of Appeals has “instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236 (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002)).

         III. Discussion

         The Medical Defendants primarily argue that Mr. Zamichieli has failed to allege sufficient facts necessary to establish each of the causes of action in his Amended Complaint. As discussed below, a review of the allegations of the Amended Complaint demonstrate that Mr. Zamichieli has sufficiently stated an ADA claim against each of the Medical Defendants in their official capacities insofar as Mr. Zamichieli seeks prospective injunctive relief;[2] a claim against each of the Medical Defendants under the Eighth Amendment for deliberate indifference to his serious medical need that he be housed on a lower tier; a claim against Ms. Austin under the Eighth Amendment for sexual assault; a claim against Ms. Ridings and Mr. Hice under the Eighth Amendment for failing to protect Mr. Zamichieli from sexual assault; and claims under the First Amendment for retaliation against Ms. Austin and Ms. Ridings. He is unable to state a ...

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