United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION ECF NOS. 37, 42, 49
PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
before the Court in this § 1983 civil rights action are
Motions to Dismiss filed by the following Defendants: Dr.
Cairns, Joseph H. Dupont, Jamie Ferdarko, Renee Foulds, I
Gustafson, Anthony Miorelli, Keri Moore, Derrick Oberlander,
Michael Overmyer, Gary Prinkey, J. Sawtelle, Cheryl Scott,
Joseph Silva, Dr. Bruce Simons, Kim Smith, Tracey Smith,
Trevor Wingard (ECF No. 37); Dawn Ducote, Dr. Eisenberg,
Richard Ellers, Lisa Lamoreaux, Heather McKeel (ECF No. 42);
and Dr. Hasper (ECF No. 49).
reasons discussed below the Motions will be disposed of as
follows: The Motion to Dismiss filed by Dr. Hasper (ECF No.
49) will be granted in part and denied in part. The Motion
will be granted as it relates to Plaintiff's claim for
delay/denial of medical care, and denied as it relates to
Plaintiff's claim for retaliation.
Motion to Dismiss filed by Dawn Ducote, Dr. Eisenberg,
Richard Ellers, Lisa Lamoreaux, Heather McKeel (ECF No. 42)
will be granted.
Motion to Dismiss filed by Dr. Cairns, Joseph H. Dupont,
Jamie Ferdarko, Renee Foulds, I Gustafson, Anthony Miorelli,
Keri Moore, Derrick Oberlander, Michael Overmyer, Gary
Prinkey, J. Sawtelle, Cheryl Scott, Joseph Silva, Dr. Bruce
Simons, Kim Smith, Tracey Smith, Trevor Wingard (ECF No. 37)
will be granted in part and denied in part. It will be
granted as to the following claims: All official capacity
claims and claims for declaratory and injunctive relief;
claims against Defendants Silva, Cairns, I. Gustafson, K.
Smith, Fedarko, Prinkey and Dr. Simons, Overmyer, Moore;
Foulds, Miorelli and Scott for lack of personal involvement
relating to the grievance process; claims against T. Smith
and Wingard relating to Plaintiff's religious diet
accommodation claim; and the retaliation claim as it relates
to the delay/denial of medical care against Defendants
Prinkey, K. Smith, Ferdarko, Overmyer and Moore. It will be
denied as to the following claims: The claim against Overmyer
and Dupont with respect to their involvement in reviewing
Plaintiff's appeals from an administrative custody
placement; the cell illumination claim, the due process claim
relating to Plaintiff's confinement in administrative
custody; and the retaliation claims relating to the removal
of Plaintiff's Z-code status and confinement in
Mustafa Ali (“Plaintiff”) is currently in the
custody of the Pennsylvania Department of Corrections
(“DOC”) at the State Correctional Institution at
Retreat (“SCI-Retreat”). In summary, the Complaint
names several DOC officials and employees assigned to his
place of prior confinement, the State Correctional
Institution at Forest (“SCI-Forest”). Plaintiff
also names DOC-contracted medical providers and alleges that
he suffered from foot pain and was not provided with
appropriate medical care. Plaintiff also raises issues with
respect to the handling of inmate grievances and other
written complaints. In addition, Plaintiff asserts claims of
illegal confinement concerning his placement in the Restrict
Housing Unit (“RHU”); denial of religious diet
accommodation; Z-Code relating to the removal of his single
cell status; cell illumination and noise; retaliation in the
form of falsified misconducts; and retaliation for filing a
PREA [Prison Rape Elimination Act] complaint against a staff
seeks declaratory and injunctive relief, along with
compensatory and punitive damages.
United States Court of Appeals for the Third Circuit
summarized the standard to be applied in deciding motions to
dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in
Rule 8 of the Federal Rules of Civil Procedure, a plaintiff
must come forward with “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” As explicated in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), a claimant must state a
“plausible” claim for relief, and “[a]
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Although “[f]actual allegations must be
enough to raise a right to relief above the speculative
level, ” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff “need only put forth
allegations that raise a reasonable expectation that
discovery will reveal evidence of the necessary
element.” Fowler, 578 F.3d at 213 (quotation
marks and citations omitted); see also Covington v.
Int'l Ass'n of Approved Basketball Officials,
710 F.3d 114, 117-18 (3d Cir. 2013).
Thompson v. Real Estate Mortg. Network, 748 F.3d
142, 147 (3d Cir. 2014).
Se Legal Standard
considering pro se pleadings, a court must employ less
stringent standards than when judging the work product of an
attorney. Haines v. Kerner, 404 U.S. 519, 520
(1972). When presented with a pro se complaint, the court
should construe the complaint liberally and draw fair
inferences from what is not alleged as well as from what is
alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d
Cir. 2003). In a § 1983 action, the court must
“apply the applicable law, irrespective of whether the
pro se litigant has mentioned it by name.” Higgins
v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting
Holley v. Dep't of Veteran Affairs, 165 F.3d
244, 247-48 (3d Cir. 1999)). See also Nami v.
Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this
is a § 1983 action, the [pro se] plaintiffs are entitled
to relief if their complaint sufficiently alleges deprivation
of any right secured by the Constitution.”).
Notwithstanding this liberality, pro se litigants are not
relieved of their obligation to allege sufficient facts to
support a cognizable legal claim. See,
e.g., Taylor v. Books A Million, Inc., 296
F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon,
83 F.3d 1197, 1202 (10th Cir. 1996).
1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the
District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or any other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress .
. . .
42 U.S.C. § 1983. To state a claim for relief under this
provision, a plaintiff must demonstrate that the conduct in
the complaint was committed by a person or entity acting
under color of state law and that such conduct deprived the
plaintiff of rights, privileges or immunities secured by the
Constitution or the laws of the United States. Piecknick
v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56
(3d Cir. 1994). Section 1983 does not create rights; it
simply provides a remedy for violations of those rights
created by the United States Constitution or federal law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
MOTION TO DISMISS FILED BY DR. HASPER
allegations relating to his Eighth Amendment claim are
limited. He identifies Dr. Hasper as a psychiatrist at
SCI-Forest. (Complaint, ECF No. 3 at ¶ 9.) He alleges
that on April 17, 2017, he covered his body in feces to
“camouflage himself from the demons” which
resulted in him being “again staffed for a
Z-code.” (ECF No. 3 at ¶ 100.) Plaintiff alleges
that on this date he was seen by a nurse who contacted a
physician and advised Plaintiff that he would be seen by Dr.
Hasper the next morning. (Id.) Plaintiff alleges
that “Dr. Hasper didn't call for Plaintiff until
after 1:00 p.m., some 10 hours later.” (Id.)
Eighth Amendment protects individuals against the infliction
of “cruel and unusual punishments.” U.S. Const.
amend. VIII. This protection, enforced against the States
through the Fourteenth Amendment, guarantees incarcerated
persons humane conditions of confinement. In this regard,
prison officials must ensure that inmates receive adequate
food, clothing, shelter and medical care, and must
“take reasonable measures to guarantee the safety of
the inmates.” Farmer v. Brennan, 511 U.S. 825,
832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517,
context of medical treatment, an inmate must prove two
elements: (1) that he was suffering from a “serious
medical need, ” and (2) that prison officials were
deliberately indifferent to the serious medical need.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
first showing requires the court to objectively determine
whether the medical need was “sufficiently
serious.” A medical need is “serious” if it
is one that has been diagnosed by a physician as mandating
treatment, or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor's
attention. Monmouth Cnty. Corr. Inst. Inmates v.
Lanzara, 834 F.2d 326, 347 (3d Cir. 1987). Dr. Hasper
does not appear to dispute that Plaintiff's medical needs
were serious. (Brief in Support of Motion to Dismiss, ECF No.
50 at 7.)
second prong requires a court subjectively to determine
whether the officials acted with a sufficiently culpable
state of mind. Deliberate indifference may be manifested by
an intentional refusal to provide care, delayed medical
treatment for non-medical reasons, a denial of prescribed
medical treatment, or a denial of reasonable requests for
treatment that results in suffering or risk of injury.
Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir.
1993). The United States Court of Appeals for the Third
Circuit has acknowledged that “‘if necessary
medical treatment [i]s . . . delayed for non-medical reasons,
a case of deliberate indifference has been made
out.'” Monmouth Cnty. Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (quoting
Ancata v. Prison Health Serv., Inc., 769 F.2d 700,
704 (11th Cir. 1985), and citing Archer v.
Dutcher, 733 F.2d 14 (2d Cir. 1984) (“allegation
that emergency medical care to pregnant inmate was delayed in
order to make her suffer states a claim of deliberate
indifference under Estelle”)). See Brooks
v. Kyler, 204 F.3d 102, 105 n.4 (3d Cir. 2000) (quoting
Lanzaro, 834 F.2d at 346) (delay of medical care
will state an Eighth Amendment claim where the temporary
denial exposes inmate “to undue suffering or the threat
of tangible residual injury.”).
prisoner must demonstrate that the official acted with more
than mere negligence. Estelle, 419 U.S. at 105. To
act with deliberate indifference, a prison official must both
know of and disregard an excessive risk to inmate health or
safety. Farmer, 511 U.S. at 837. It is a
“well-established rule that mere disagreements over
medical judgment do not state Eighth Amendment claims.”
White v. Napoleon, 897 F.2d 103 (3d Cir. 1990).
Moreover, “[a] court may not substitute its own
judgment for diagnosis and treatment decisions made by prison
medical staff members.” Inmates of Allegheny Cnty.
Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979).
liberally construing Plaintiff's Complaint and affording
him every favorable inference from the facts alleged,
Plaintiff is unable to state a claim for deliberate
indifference to medical needs. In his responsive brief,
Plaintiff directs the Court to the fact that Dr. Hasper is a
ranking member of the Psyshological Review Team. (ECF No. 71
at 6.) His complaints focus on Dr. Hasper's alleged
involvement with Plaintiff's Z-Code status rather than
his alleged delay in treating Plaintiff's mental health
issues. Plaintiff does not allege or suggest that he was
somehow injured or made to suffer as a result of the alleged
delay in seeing Dr. Hasper. He was seen by a nurse and
subsequently by Dr. Hasper. Instead, Plaintiff's
allegations suggest that Plaintiff disagrees with the
conclusions of Dr. Hasper as they related to the ultimate
determination as to his Z-Code status. Disagreement with a
physician's conclusions does not establish an Eighth
Amendment violation. White, 897 F.2d at 110.
Dr. Hasper's Motion to Dismiss Plaintiff's Eighth
Amendment claim for delay of medical treatment will be
granted. Any attempt to amend would be futile.
Responsive Brief also suggests that he is making a claim for
retaliation relating to the denial of his Z-Code status. He
states that Dr. Hasper's actions in
“sabotaging” Plaintiff's efforts for
placement in the Special Assessment Unit and Special
Management Unit “were in retaliation for filing
numerous complaints against [him] with the Bureau of
Professional and Occupational Affairs” as related to
Dr. Hasper's professional license. (Plaintiff's
Responsive Brief, ECF No. 71 at 6.) Plaintiff alleges no
facts in his Complaint to state a retaliation claim against
Dr. Hasper, and as a consequence, Dr. Hasper does not move to
dismiss on this issue. In light of Plaintiff's pro se
status, the Court will consider a claim for retaliation
against Dr. Hasper.
order to state a claim for retaliation, Plaintiff must aver
the following: 1) the conduct leading to the alleged
retaliation was constitutionally protected; 2) that he
suffered an adverse action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights;
and 3) that his protected conduct was a substantial or
motivating factor in the decision to discipline him.
Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
assuming that filing a complaint with the Bureau of
Professional and Occupational Affairs as related to Dr.
Hasper's professional license is a constitutionally
protected activity, Plaintiff has alleged a prima facie case
the Court is mandated by the United States Court of Appeals
for the Third Circuit to construe pro se pleadings liberally,
the Court will allow this claim for retaliation to move
forward. Plaintiff's Eighth Amendment claim for
delay/denial of medical care against Dr. Hasper will be