United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
CYNTHIA REED EDDY UNITED STATES MAGISTRATE JUDGE
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
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
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.
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.
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.
Requests for Lower Tier Housing
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.
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.
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.
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.
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.
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.
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.
Move to Lower Tier Housing and Seizure on Stairs
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.
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.
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
Sexual Assault and Retaliation Allegations
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.
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.
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.
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.
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.
Standard of Review
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).
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).
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
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)).
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; 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 ...