United States District Court, E.D. Pennsylvania
HARVEY M. SHANER, JR., Plaintiff,
WARDEN SEAN MARLER, et al., Defendants.
R. PADOVA, J.
matter comes before the Court by way of a Complaint (ECF No.
1), brought by Plaintiff Harvey M. Shaner, Jr., a prisoner at
the Federal Detention Center (“FDC”) in
Philadelphia, who is proceeding pro
se. The Complaint raises claims pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 397 (1971), for deliberate
indifference to Shaner's serious medical needs. Also
before the Court is Shaner's Motion for Leave to Proceed
In Forma Pauperis and Prisoner Trust Fund Account
Statement (ECF Nos. 5 & 6). Because it appears that
Shaner is unable to afford to pay the filing fee, the Court
will grant him leave to proceed in forma pauperis.
For the following reasons, the Court will dismiss
Shaner's claims pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), for failure to state a claim. Shaner will
be permitted to file an amended complaint in the event he can
cure the defects in his Complaint.
named as Defendants Warden Sean Marler, Deputy Warden D.
Knox, Dr. Raeph Laughingwell, and Nurse Christine Nelson, all
of whom are employed at the FDC. The Complaint indicates that
Shaner has been diagnosed with cancer. He alleges that,
between July 16, 2019 and October 29, 2019 “the medical
staff refused to treat [his] condition, even after [he] had 2
mini strokes.” (Compl. ECF No. 1 at 5.) As a result,
Shaner claims that his “cancer spread and tumor
grew.” (Id.) As relief, Shaner asks “to
get the [unspecified] operations needed” and for $5
million in damages. (Id.)
STANDARD OF REVIEW
Court will grant Shaner leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fees to commence this civil action. Accordingly, 28
U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss
the Complaint if it fails to state a claim. Whether a
complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999), which requires the Court to determine
whether the complaint contains “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) (quotations omitted). Conclusory
allegations do not suffice. Id. As Shaner is
proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
its passage of 42 U.S.C. § 1983, which provides a cause
of action where a state actor violated a plaintiff's
civil rights, Congress did not create “a specific
damages remedy for plaintiffs whose constitutional rights
were violated by agents of the Federal Government.”
Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017).
Following Bivens, the Supreme Court recognized an
implied cause of action where prison officials are
deliberately indifferent to a prisoner's serious medical
needs. See Carlson v. Green, 446 U.S. 14, 17-18
(1980). Here, Shaner invokes Bivens based on the
Defendants' alleged deliberate indifference to his
serious medical needs. See Farmer v. Brennan, 511 U.S.
825, 835 (1994).
prison official is not deliberately indifferent “unless
the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.” Id. at 837. “A
medical need is serious, . . . if it is one that has been
diagnosed by a physician as requiring treatment or one that
is so obvious that a lay person would easily recognize the
necessity for a doctor's attention.” Monmouth
Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987) (internal quotations omitted).
Deliberate indifference is properly alleged “where the
prison official (1) knows of a prisoner's need for
medical treatment but intentionally refuses to provide it;
(2) delays necessary medical treatment based on a non-medical
reason; or (3) prevents a prisoner from receiving needed or
recommended medical treatment.” Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Allegations
of medical malpractice and mere disagreement regarding proper
medical treatment are insufficient to establish a
constitutional violation. See Spruill v. Gillis, 372
F.3d 218, 235 (3d Cir. 2004). Additionally, “absent a
reason to believe (or actual knowledge) that prison doctors
or their assistants are mistreating (or not treating) a
prisoner, a non-medical prison official . . . will not be
chargeable with the Eighth Amendment scienter requirement of
deliberate indifference.” Id. at 236.
defendant in a civil rights action must have personal
involvement in the alleged wrongs” to be liable.
See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988); see also Iqbal, 556 U.S. at 676
(“Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.”). There are “two general ways in
which a supervisor-defendant may be liable for
unconstitutional acts undertaken by subordinates.”
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316
(3d Cir. 2014), reversed on other grounds by Taylor v.
Barkes, 135 S.Ct. 2042 (2015). First, a supervisor may
be liable if he or she “‘with deliberate
indifference to the consequences, established and maintained
a policy, practice or custom which directly caused [the]
constitutional harm.” Id. (quoting A.M. ex
rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d
572, 586 (3d Cir. 2004) (alteration in original)).
“Second, a supervisor may be personally liable . . . if
he or she participated in violating the plaintiff's
rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in the
subordinate's unconstitutional conduct.”
Shaner has failed to allege any facts connecting the named
Defendants to the delay in cancer treatment constituting the
factual basis for his claims. He has not alleged facts
establishing that each of the Defendants were aware of his
condition and delayed treatment knowing it would cause harm.
He also has failed to allege facts describing the symptoms
with which he presented or provide detail on when and how he
was diagnosed. Shaner also has not explained how the Warden
and Deputy Warden, who are not doctors and who are high-level
supervisory officials, could be held responsible for any
delay in medical care. In sum, Shaner has not stated a
plausible claim against any of the Defendants because he has
not alleged facts showing that they acted with deliberate
indifference to his serious medical needs.
foregoing reasons, the Court will grant Shaner leave to
proceed in forma pauperis and dismiss his Complaint
for failure to state a claim. Shaner will be given leave to
file an amended complaint in the event he can state a
plausible basis for a claim against an appropriate