Brown v. Wolf

Full title: ALTON D. BROWN, also known as POLITICAL PRISONER, Plaintiff, v. TOM WOLF…

Court: United States District Court, W.D. Pennsylvania

Date published: Feb 19, 2021

Civil Action 2:16-cv-1081 (W.D. Pa. Feb. 19, 2021)

Opinion

Civil Action 2:16-cv-1081

02-19-2021

ALTON D. BROWN, also known as POLITICAL PRISONER, Plaintiff, v. TOM WOLF, et al, Defendants.

Cynthia Reed Eddy, Chief United States Magistrate Judge.

Marilyn J. Horan, United States District Judge.

REPORT AND RECOMMENDATION

Cynthia Reed Eddy, Chief United States Magistrate Judge.

I. RECOMMENDATION

Defendant Dr. Arthur Santos, the Commonwealth Defendants, ¹ and the Medical Defendants² have each filed motions seeking to strike the Amended Complaint (ECF No. 304) or have the claims dismissed for failure to state a claim. (ECF Nos. 321, 326, and 331.) For the reasons that follow, it is recommended that each of these motions be granted in part and denied in part. Further, it is recommended that Plaintiff, Alton Brown, not be granted leave to further amend his complaint.

1 The Commonwealth Defendants are Pennsylvania Department of Corrections officials and employees from DOC's Central Office, the State Correctional Institution at Fayette, and the State Correctional Institution at Greene. Also named as defendants are the Governor of the Commonwealth of Pennsylvania and the Secretary of the Department of Corrections. The motion to dismiss has been brought on behalf of the following served Commonwealth Defendants: Daniel Burns, S. Buzas, Mark Capozza, L. Cutler, Deputy Dialesandro, J. H. Dupont, Capt. Durco, T.A. Funk, Jayme E. Gardner, R.N. Felton, Dean Geehing, Robert Gilmore, Margaret Gordan, Nedra Grego-Rice, C.O. E.T. Gumbert, Kyle Guth, M. Haines, Mike Hice, Rhonda A. House, C.O. Imhoff, B. Jordan, CO Keller, Major Leggett, John McAnany, Lt. Medvic, A.J. Morris, William Nicholson, Paul Noel, C.H. Oppmon, M. Oppman, Karen Patterson, K. Petty, Lori Ridings, Capt. Schrader, Tracy Shawley, S. Silbaugh, Tricia Silbaugh, Joseph J. Silva, Lt. Stickles, Sgt. Tikey, Sgt. Trout, Michael Troyan, Dr. Robert Valley, Dorina Varner, Irma Vihlidal, Nurse J. Watson, Rich Wenhold, John E. Wetzel, Tamara Whitmeyer, Tom Wolf, and Mike Zaken.

2 The Medical Defendants are medical providers contracted by the DOC to provide medical care and treatment to inmates. The motion to dismiss has been has been brought by the following served Medical Defendants: Dr. Alpert, Pa N. Austin, Correct Care Solutions, Jay Cowan, Darla Cowden, Mike Hice, Byunghak Jin, Dr. Carl Keddie, S. Liberatore, Dr. Malhi, Dr. Miceli, Elon Mwaura, and Dr. Park.

II. REPORT

A. Procedural History

Plaintiff, Alton Brown, a self-proclaimed Political Prisoner, is an inmate under the custody of the Pennsylvania Department of Corrections (“DOC”), currently confined at SCI-Fayette. Through his Amended Complaint, it appears that Mr. Brown has sued almost every staff member he has come in contact with while confined at SCI-Greene and SCI-Fayette. Defendants include the Governor of the Commonwealth of Pennsylvania, numerous DOC officials, DOC staff members employed at SCI-Greene and SCI-Fayette, DOC employees employed at the DOC Central's office, a corporate entity contracted with the DOC to provide medical services to DOC prisoners, and numerous contract medical staff providing medical services to DOC prisoners.

Generally speaking, Mr. Brown claims that Defendants are part of a wide overarching conspiracy to harm him by denying him medical care and, through this conspiracy, Defendants have failed to appropriately treat his prostate cancer and related health problems, fabricated his medical records to reflect that he is refusing treatment, failed to properly manage his pain and symptoms, failed to allow him access to his medical records so that he can make informed decisions about his treatment and care, and have engaged in retaliatory conduct specifically related to his medical care and treatment (including conduct allegedly designed to discourage Mr. Brown from accepting medical care).

The case encompasses three cases brought by Mr. Brown which were consolidated: Civil Action Nos. 16-1081, 17-0321, and 18-1130, with Civil Action 16-1081 being designated the lead case. The central allegations in Civil Action Nos. 16-1081 and 18-1130, concern ongoing medical treatment for Mr. Brown's prostate cancer and other health issues (the allegations in Civil Action 18-1130 pick up chronologically where the allegations in Civil Action 16-1081 end) and the central allegations in Civil Action No. 17-0321 are that Mr. Brown's medical providers are ignoring his many requests to obtain pain relief.

Familiarity with all prior proceedings is presumed; however, a brief history of this case is necessary to outline what has occurred since the case was filed in 2016. Although this case has a long procedural history, as evidenced by the number of docket entries, this case has not proceeded smoothly and Mr. Brown has filed a plethora of motions and objections / appeals to the District Judge assigned to this case and an appeal to the United States Court of Appeals for the Third Circuit.

Mr. Brown commenced Civil Action No. 16-1081 on July 19, 2016, while he was incarcerated at SCI-Greene, by filing a request to proceed in forma pauperis (“IFP”) accompanied by a complaint under 42 U.S.C. § 1983. The request to proceed IFP was denied pursuant to 28 U.S.C. § 1915(g) as the Court found that Mr. Brown's submissions did not show that he was in imminent danger. (ECF Nos. 2, 3, and 8). Mr. Brown appealed this denial to the United States Court of Appeals for the Third Circuit. (ECF No. 9). On August 7, 2017, the court of appeals, in a non-presidential opinion, remanded the case finding that, even though Mr. Brown had three strikes, he had alleged a claim of imminent danger of serious physical injury through his allegation that Defendants had denied him access to his medical records and that Defendants had not provided him with enough information to enable him to give informed consent for a prostate biopsy. Brown v. Wolf, et al., No. 16-4136, 705 Fed.Appx. 63 (3d Cir. 2017). The appellate court specifically expressed no opinion as to the merits of Mr. Brown's allegations. Id. at 66.

Upon remand, this Court then granted Mr. Brown's Motion for Leave to Proceed IFP on August 31, 2017, and the Complaint was filed on September 1, 2017. (ECF Nos. 15 and 16).

The handwritten eighteen-page Complaint raised sixteen claims and named forty-five defendants, including the Governor of the Commonwealth of Pennsylvania, various officials and employees of the DOC, Correct Care Solutions, LLC, and numerous medical personnel employed by Correct Care Solutions, LLC. Throughout the Complaint, Mr. Brown alleged that while at SCI-Greene, tests results indicated that he had prostate cancer, but that Dr. Alpert suggested a prostate biopsy before treatment would commence. Mr. Brown stated that he requested the following in order to make an informed decision, but his requests were denied:

(i) access to his medical record; (ii) access to his medical books; (iii) access to the law library computer (to conduct medical research); and (iv) protection from the continuous abusive attacks he had been subjected to by retaliation security and medical staff since his 5/11/15 incarceration at SCI-Green (said attacks also partially motivated by racial hate.)

Complaint at ¶ 10. Distilled to its essence, Mr. Brown alleged that he was refusing treatment because he had not been given enough information to allow him to give his informed consent. Mr. Brown further alleged that he suffers from numerous symptoms related to prostate cancer and that medical staff have wrongfully falsified his medical records to suggest that he “refused” care and that Defendants do not want him to undergo treatment in order to save money.

Mr. Brown commenced Civil Action No. 17-0321 on March 9, 2017, while he was incarcerated at SCI-Greene, by filing a request to proceed IFP. The motion was granted and, after the Court received the required financial documents from Mr. Brown, the Complaint was filed on May 4, 2017. (ECF No. 6). The fourteen page handwritten Complaint raised ten claims and named seven defendants: Correct Care Solutions, LLC and six contract prison medical staff. Mr. Brown's claims relate to his pain associated with his prostate cancer and his allegation that he is not receiving proper medical treatment to manage his pain. Defendants filed a Motion to Consolidate Civil Action No. 17-321 into Civil Action No. 16-1081, and without objection from Mr. Brown or the Commonwealth Defendants, by Order of December 11, 2017, both actions were consolidated into Civil Action No. 16-1081 pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure.

On December 8, 2017, Mr. Brown filed a request for an extension of time in which to file an amended complaint (ECF No. 47), which request was granted and Mr. Brown was granted leave until January 8, 2018, to file an amended complaint. (ECF No. 48). Thereafter, on January 5, 2018, Mr. Brown sought an additional extension of time in which to file an amended complaint in light of the consolidation of the two cases. (ECF No. 61).

The Court granted that request and provided a generous extension until April 2, 2018. Mr. Brown was cautioned that the opportunity to file an amended complaint was not an invitation to enlarge the lawsuit by filing new allegations not related to 16-cv-1081 or 17-cv-0321 or by adding defendants not related to the allegations in those original complaints. He was warned that failure to comply with the Order of Court would result in the dismissal of the amended complaint. (ECF No. 66). This extension was followed by two more requests for extensions by Mr. Brown. (ECF No. 79 and 82). Each of these requests was granted. The last request was granted by Order dated May 30, 2018, and Mr. Brown was given an extension until June 29, 2018, to file an amended complaint. (ECF No. 89). Mr. Brown failed to file an Amended Complaint by that deadline. However, on August 1, 2018, Mr. Brown again requested an extension to file the amended complaint. The undersigned relented and gave Mr. Brown an extension until August 24, 2018, to file an amended complaint. Mr. Brown was again advised that the opportunity to file an amended complaint was not an invitation to enlarge the lawsuit by filing new allegations and claims unrelated to those set forth in the original complaints. (ECF No. 113).

On September 13, 2018, Mr. Brown's overdue “Amended Complaint” was filed. (ECF No. 116). The “Amended Complaint” was 108 handwritten pages, named 382 defendants, made allegations dating back to 2004, and vastly expanded the scope of the original complaints filed in Case Nos. 16-1081 and 17-0321. By Order of September 18, 2018, the undersigned ordered that the Amended Complaint filed at ECF No. 116 be stricken from the docket. (ECF No. 117). The Court determined that Mr. Brown's attempt to vastly expand his lawsuit was an abuse of the Prison Litigation Reform Act (“PLRA”) as it was an attempt by Mr. Brown to circumvent the grant of his IFP status to address his claims of imminent danger and an abuse of the judicial process. Mr. Brown appealed this decision to the District Judge (ECF No. 124) and on December 20, 2018, Judge Marilyn J. Horan dismissed the appeal finding that the Memorandum Opinion and Order dated September 18, 2018, was neither clearly erroneous nor an abuse of discretion. (ECF No. 145).

The third case, Civil Action No. 18-1130, was commenced in this Court on August 27, 2018, when Defendants Correct Care Solutions, LLC; Dr. Jay Cowan, Mathew Miceli, Dr. Byunghak Jin, and Darla Cowden removed the case from the Court of Common Pleas of Fayette County. It appears that Mr. Brown filed that complaint in the Court of Common Pleas of Fayette County on November 9, 2017. In this complaint, entitled “Complaint in Mandamus & Equity, ” Mr. Brown makes allegations pertaining to his continuing treatment for prostate cancer and related issues at SCI-Fayette, following his transfer from SCI-Greene on August 9, 2017, and access to his medical information. He claims that he was “transferred from SCI-Greene to SCI Fayette on August 9, 2017 for the sole purpose of sabotaging his attempt to obtain medical care for prostate cancer and other serious medical illnesses, sabotage his active litigation, take pressure off the Greene County Judicial District, and continue their major retaliation campaign that begun in earnest in July, 2013, after his transfer to SCI-Smithfield.” Complaint at ¶ 7. The thirty-page handwritten complaint names approximately thirty-three medical and corrections employees, many of whom were already named in Civil Action No. 16-1081. Defendants filed a Joint Motion to Consolidate seeking to consolidate Civil Action No. 18-1130 into Civil Action No. 16-1081. (ECF No. 25). By Order of February 12, 2019, the action was consolidated into Civil Action No. 16-1081 pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure. Mr. Brown appealed the decision to Judge Marilyn J. Horan. Upon appeal, the decision to consolidate was found to be neither clearly erroneous nor an abuse of discretion, and the appeal was denied. (ECF No. 45).

After consolidation, Mr. Brown's operative pleading was the complaint filed at Case No. 16-1081 (ECF No. 16), together with the supplemental complaints filed at ECF Nos. 118 and 175.³ All Defendants filed motions to dismiss. (ECF Nos. 186, 188, 220, and 232). Mr. Brown was granted an extension of time until July 8, 2019, to respond to the motions or to file an Amended Complaint. (ECF No. 235). On August 7, 2019, instead of filing a response or an Amended Complaint, Mr. Brown filed a motion for extension of time to file an amended complaint. (ECF No. 245).

3 The original complaints filed at 17-0321 and 18-1130 were treated as supplemental complaints.

The undersigned conducted a Telephonic Status Conference on October 1, 2019, after which the undersigned placed the matter in administrative suspense while the Court sought to obtain pro bono counsel for Mr. Brown. (ECF No. 252). On May 4, 2020, the parties were advised by the Court that its efforts to secure counsel were unsuccessful and, as a result, the Court reopened the case. (ECF No. 256). By Memorandum Order entered on May 6, 2020, Mr. Brown was directed to file an Amended Complaint by July 7, 2020, (ECF No. 258). Mr. Brown was advised that he was permitted to encompass claims and allegations from Civil Action Nos. 16-1081, 17-1321, and 18-1130, that the Amended Complaint must adhere to Federal Rule of Civil Procedure 8, and he was reminded that he could not circumvent the grant of his IFP status by adding claims that did not relate to his imminent danger claims. (ECF Nos. 258, 268). Thereafter, Mr. Brown continued his pattern of repeatedly filing motions for extension of time (ECF No. 268, 285, 290, and 302).

On September 17, 2020, Mr. Brown filed the instant Amended Complaint. (ECF No. 304). It is a sprawling narrative comprised of eighty-two handwritten pages and contains 232 paragraphs with allegations ranging from 2015 through 2020 and spanning several state correctional institutions. It names eighty-seven defendants who were not previously named in the three underlying actions, ⁴ in addition to the approximately eighty-four defendants who were already named, for a total of 171 defendants. In summary form, the Amended Complaint sets forth the following causes of action:

4 Mr. Brown has not provided service documents to the Court for these newly added defendants and, as a result, these new defendants have yet to be served.

Count I - Per Se Negligence

Against Defendants CCS and staff for failing to comply with the terms of their contract with the DOC, specifically by not complying with the Healthcare Codes and Standards contained therein that governs the type, quality, standards and manner (timeliness) in which health care must be provided to the Commonwealth prisoners. (Am. Comp., ¶ 219).

Count II - Unnecessary Use of Force

Against unnamed defendants for “gasing of the Plaintiff (directly and indirectly), physical beatings and severe assaults, punitive diets, assignments to harmful and dangerous cells, and contamination of food (inter alia), all constitute corporal punishment and/or unnecessary use of force, in violation of the Eighth Amendment. (Am. Compl., ¶ 220).

Count III - Denial of Medical Care

Against “Defendants” for refusing to provide Mr. Brown with access to “a pain / palliative specialist and/or equivalent health care provider for his painful (mental and physical) conditions” in violation of the Eighth Amendment. (Am. Compl., ¶ 221).

Count IV - Denial of Medical Care

Against “Defendants” for refusing to provide Mr. Brown with medical care for his prostate cancer, including care for the adverse side effects of the hormone therapy, oxycodone, and other related conditions of the cancer. (Am. Compl., ¶ 222).

Count V- Denial of Medical Care

Against “Defendants” for refusing to allow Mr. Brown access to medical marijuana and supplements. (Am. Compl., ¶ 223).

Count VI - Intentional Infliction of Emotional Distress

Against unnamed defendants for their “attacks” against Mr. Brown including “Defendants' scheme to discourage him from participating in their cancer treatment plans, which resulted in Plaintiff's cancer going untreated for years and allowing it to grow and spread beyond the prostate and further resulting in Plaintiff suffering severe episodes of stress ....” (Am. Compl., ¶ 224).

Count VII - Denial of Medical Care

Against “Defendants” for their “mistreatment that involves the 9/10/18 prostate biopsy, the intentional infections, extreme pain and nerve damage, the prescription of harmful antibacterial medications and refusal to conduct a culture to determine the proper antibacterial medicine, and the refusal to adequately diagnose and treat the nerve and other damage done during the surgery, ” all in violation of the Eighth Amendment. (Am. Compl., ¶ 225).

Count VIII - Retaliation

“The tactics, schemes, and conspiracies that resulted from Defendants' desire to punish the Plaintiff because of his exercise of his patient and prisoner rights constitutes retaliation in violation of the First Amendment (access to the courts, freedom of speech, and freedom of association). (Am. Compl., ¶ 226).

Count IX - Denial of Medical Care

Against “Defendants” for their use of the POC's to prevent Mr. Brown from receiving medical care for the bacteria infections that he contracted during the prostate surgery in violation of the Eighth Amendment. (Am. Compl., ¶ 227).

Count X - Cruel and Unusual Punishment

Against “Defendants” for use of POC's to prevent Mr. Brown from accessing health care for serious illnesses in violation of the Eighth Amendment. (Am. Compl., ¶ 228).

Count XI - Denial of Medical Care

Against Defendants Miceli, Brukovich, Saavedra and Duncan for refusing “to provide medical care in accordance with Policy 13.8 and the Settlement Agreement with the Disability Network, in violation of the Eighth Amendment (Am. Compl., ¶ 229).

Count XII - First Amendment

Against “Defendants” for “sabotaging” Mr. Brown's legal endeavors in violation of the First Amendment. (Am. Compl., ¶ 230).

Count XIII - Political Prisoner

Against unnamed prison officials for “the isolation of Plaintiff from the general prison population, denial of due process in his criminal trials and appeals, refusal of government agencies to intervene in the ongoing abuse Plaintiff has been subjected to for the past 23 years while confined in a cage, Defendants' notice that he will never be released to open population, the Court's refusal to intervene in prison staff plans to murder Plaintiff via medical neglect and/or forced suicide” in violation of the Fourteenth Amendment. (Am. Compl., ¶ 231).

Count XIV - Corporate Negligence

Against “Defendants” for failing to select and train competent physicians, and to formulate, adopt, and enforce adequate rules and practices to ensure care of patients. (Am. Compl., ¶ 232).

Attached to the Amended Complaint are twenty-two pages of exhibits, which include several pages of medical progress notes from Mr. Brown's medical records (from 2015 and 2017), medical journal articles, a photograph, newspaper articles, a DOC memorandum dated 4/5/2000 approving the request to place Mr. Brown in the Long Term Segregation Unit at SCI-Pittsburgh, and various grievance documents.

In response, Defendant Santos, the Commonwealth Defendants, and the Medical Defendants filed the motions currently before the Court. (ECF Nos. 321, 326, and 331). Mr. Brown filed responses to all three of motion to dismiss / motion to strike (ECF No. 368, 370, and 372), ⁵ to which the Medical Defendants and Defendant Santos filed Reply Briefs. (ECF Nos. 370 and 375). The motions are fully briefed and ripe for resolution.

5 The Court notes that within his responses, Mr. Brown often makes a number of disparaging comments and statements directed toward the Court and the Defendants. Mr. Brown is cautioned that he must act with civility and respect towards all parties to the lawsuit and to the Court. Disparaging comments will not be tolerated.

B. Factual Background ⁶

6 The following background facts are taken from Plaintiff's Amended Complaint (ECF No. 304). Because the case is presently before the Court on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all allegations in the amended complaint and all reasonable inferences that can be drawn therefrom. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). In addition, the Court views all well pleaded factual averments and reasonable inferences in the light most favorable to the non-moving party.

In response to Defendants' motions to dismiss the original complaint, Mr. Brown filed an Amended Complaint, which was received by the Court on September 17, 2020. (ECF No. 304). Despite the Court's admonition that the claims in the Amended Complaint must relate to imminent danger and must be set forth in short and plain statements identifying the person and the dates on which the conduct at issue occurred, Mr. Brown again provides virtually no detail as to who did what and when. Moreover, Mr. Brown attempts to add eighty-seven new individuals who were not named in any of the three consolidated complaints, and asserts new factual assertions and claims which do not relate to his original imminent danger claims. The 218 paragraphs of factual allegations contained in the Amended Complaint are summarized by event and/or claim as follows.

1. Claims Stemming from Time Housed at SCI-Greene

The first part of the Amended Complaint is entitled “Cancer, Retaliation, and Related Conditions (SCI-Greene & PA DOC).” (Am. Compl., at pp. 5 - 45) (ECF No. 304). According to the Amended Complaint, Mr. Brown was transferred to SCI-Greene from SCI-Smithfield on May 11, 2015. (Id., at ¶ 7). He contends that he

was well known and hated by SCI-Greene staff and Defendants at the time of his May 2015 transfer, as he was previously at SCI-Greene from July, 1999 to April, 2000 (he also had been twice temporarily housed at SCI-Greene while attending local court appearances), and that housing resulted in two (2) criminal trials and three (3) civil trials against said staff and Defendants; and he had a trial date in another pending matter (Brown v. Blaine, et al, #194-2002 (Greene County)) at the time of the second transfer, making him well-known for his litigious behavior since all his trial and legal efforts were handled pro se.⁷

As a result of his prior legal activities against SCI-Greene staff, coupled with well known legal activities against prison staff at other institutions, he was classified as a trouble maker by the Central office and SCI-Greene staff, and was specifically transferred to SCI-Greene to be disciplined / punished, and for the purpose of breaking his behavior which they considered to be offensive.

Id. at ¶¶ 11 and 12.

7 Mr. Brown indicates that at the time he initiated his case in Fayette County on November 9, 2017, “he had over forty (40) active legal matters pending in various Pennsylvania state and federal courts.” See Complaint at ¶ 13, Civil Action No. 18-1130 (ECF No. 1-2).

On January 16, 2016, Dr. Alpert informed Mr. Brown that test results indicated that he “was contaminated with cancer, ” which Dr. Alpert wanted to treat with a pill following a prostate biopsy. (Id. at ¶ 5). On October 26, 2015, test results showed Mr. Brown's prostatespecific antigen (“PSA”) levels were gradually increasing from 30.76 on February 11, 2013, to 57.65 on October 26, 2015, which were “very suggestive of prostate cancer with probable metastatic disease, but he needs tissue diagnosis.” (Am. Compl., Exh. A). Mr. Brown contends that he sought information in order to make an informed decision about “the offered healthcare” but his requests were denied. (Am. Compl., at ¶ 6). Mr. Brown contends, inter alia, that the

medical defendants involved in this matter is hindered by a conflict of interest since it is the Department of Corrections who pay them for their services and the evidence in this case reflects that these medical defendants chose to devote their loyalty in the first instance to the people that pay their wages. (Indeed, for example, Plaintiff submitted over forty medical related grievances while confined at SCI-Greene and at no time did these medical personnel side with the Plaintiff, and even denied any claim. Another glaring example was the security staff cutting Plaintiff's Nutritional Supplements on January 7, 216, and getting Dr. Alpert to sign off on this cut, on the ridiculous and false grounds that Plaintiff was storing the drink and keeping the bottles, thereby posing a security risk.

Id. at ¶ 10. Mr. Brown contends that as a result of him “being subjected to medical abuse, ” he has “very little trust in the prison medical staff, who had a history of denying medical care, delaying medical care, allowing the security staff to intervene and sabotage his medical care, and who treated Plaintiff as if he was a pest and enemy.” Id. at ¶ 20. In a long litany of factual allegations, Mr. Brown contends that the “Greene Defendants⁸ . . . have intentionally and sadistically interfered with Plaintiff's efforts to obtain medical care for his cancer and related diseases . . . during Plaintiff's confinement at SCI-Greene.” Id. at ¶ 21. Specifically, Mr. Brown alleges that the actions of the “Greene Defendants, ” with the exception of Defendants Wetzel, Gilmore, Burns, and DiAlesandro, prevented him from making decisions about submitting to cancer related medical care, especially the prostate biopsy, for years....” Id. at ¶ 22. He also contends that the SCI-Greene Defendants conspired to falsify his medical records and omit key facts, “in order to construct and support a defense to Plaintiff's claim to make it appear that Plaintiff flatly refused the medical care offered by them to treat his cancer and related conditions.” Id. at ¶ 15(ii).

8 The “Greene Defendants” are identified in the Amended Complaint as “Wetzel, Burns, Gilmore, DiAlesandro, A. J. Morris, Zaken, Trout, Durco, Silbaugh, Shawley, Varner, Stickles, Jordan, Mihalsky, Amhoff, Lt. Williams, Lt. DePhillips, Lt. Lewis, Finley, Young, Smith, Eagle, Carter, R. King, Sgt. Nelson, R.L. Barnhart, Stella, McCracken, Karfelt, Longstreth, Lt. Baurnlich, Lt. Harvilla, Gumberic, Gumbert, and other unknowns).” Am. Compl. at ¶ 21. The Court notes that although Mr. Brown identifies Randolph, Woods, Gumberic, and Baurnlich as defendants, these individuals were not named in the caption of the Amended Complaint. A number of other “Greene Defendants” have not been served as Mr. Brown has provided no service documents for these individuals.

Mr. Brown further contends that until his transfer to SCI-Fayette on August 8, 2017, he suffered:

severe stress and anxiety as a result of the Defendants ongoing attacks at SCI-Greene until his transfer including, but not limited to sexual assaults; confiscation of law and medical books (approximately twenty-five); numerous bogus misconducts and convictions; food contamination; punitive diets; sabotaging medical diets; interfering with medical care; denial of medical care; bogus and illegal restrictions to personal hygiene items; bogus grievance restrictions; refusal to investigate and comply with PA DOC Policies that govern the complaints by Plaintiff in accordance with PA DOC Policies: DC-ADM 804; DC-ADM 001; DC-ADM 008; D-ADM 004; DC-ADM 006; and others, which was done so that they could maintain the retaliatory pressure on Plaintiff, with the ultimate hopes of causing serious / irreparable injury and/or death.

Id. at ¶ 29. Additionally, Mr. Brown contends Defendants refused to mail his legal documents, confiscated his outgoing and incoming mail, tampered with outgoing and/or incoming mail (i.e., removing pages, removing lines, etc.), refusing to provide crucial photocopies of exhibits for criminal and civil legal matters, denial of access to legal documents, and sabotaging court proceedings by falsely informing the court that he refused to attend the proceedings. Id. at ¶ 30. He contends that his pain, suffering, and cancer worsened substantially while at SCI-Greene due to Defendants' “stress related/production attacks and their failure to provide proper and/or timely medical care....” Id. at duplicate at ¶ 38, p. 20. He also contends that while housed in Cell F/D1 he was denied his medication for two weeks, had his hand slammed in the metal box, was repeatedly denied access to sick call, denied access to the POD television, had his food contaminated on 1/20/17 “with some type of chemical, ” had his mail thrown into the cell, had “a brown liquid placed on his eggs and toast on 2/12/17, and “had many other attacks.” Id. at duplicate ¶ 38, at p. 22. Mr. Brown goes on to allege that the SCI-Greene Defendants, including Central Office Defendants, “also committed numerous other acts designed to keep Plaintiff tensed, upset, fearful, and full of hate, in hopes of causing permanent emotional damage (inter alia). Id. at ¶ 42. The Amended Complaint then identifies 160 grievances Mr. Brown filed while at SCI-Greene. He contends that over 100-named defendants, as well as others unknown, were involved/participated in these unconstitutional acts. See id. at ¶¶ 14, 15, 21, 23, 24 and 31.

2. Claims Stemming from Time Housed at SCI-Fayette

The next section of the Amended Complaint is entitled “SCI-Fayette & PA DOC.” (Am. Compl., at pp. 44 - 66). Mr. Brown states that he was transferred to SCI-Fayette on August 8, 2017. He alleges that the “staff focus appeared to be aimed at discouraging him from submitting to diagnosis and treatment for his cancer disease and related prostate issues.” Id. at ¶ 62. He contends that the “[t]he same playbook was employed against Plaintiff at SCI-Fayette that was employed against him at SCI-Greene, only the players differed.” Id. at ¶ 65. He alleges that upon transfer to SCI-Fayette, his “property, person and emotions” were “viciously attacked” because his property was not properly inventoried pursuant to DC-ADM 815.

He next alleges that the “next major attack on the Plaintiff was the continuation of the SCI-Greene attacks that was focused on preventing Plaintiff from having his cancer diagnosed and treated.” Id. at ¶ 68. Specifically, he alleges that “Defendants Wolf, Wetzel, Barns, Grego-Rice, CCS, Miceli, House, Varner, Capozza, Noel, Silva, Cowden, Dobish, Allen, Nickelson, Wellpath, Spavedra, Herbik, Burkovich, Wood, Bright, and other unknown, either directly interfered with Plaintiff's inability to receive the diagnosis and treatment for his cancer, and/or supported same by failing to intervene into the attacks.” Id. at ¶ 69.⁹

9 Although Mr. Brown refers to Spavedra as a defendant, this individual is not named in the caption of the Amended Complaint and Mr. Brown has not requested service or provided service documents for this individual. Additionally, the following named defendants have not been served as Mr. Brown has neither requested they be served nor provided service documents: Dobish, Allen, Nickelson, Wellpath, Herbik, Burkovich, Wood, and Bright.

Mr. Brown contends that upon his arrival at SCI-Fayette, he agreed to accept the offer of a prostate biopsy if he could see his medical records and “escape being housed in a Psychiatric Observation Cell during any medical procedures.” “Plaintiff was also seeking information about Hormone Therapy, a treatment Defendant Miceli wanted to use to fight the cancer.” Id. at ¶ 71. Mr. Brown contends that Defendant Miceli,

[i]n September, 2017, Defendant sought to begin the hormone therapy before the cancer had actually been diagnosed and Plaintiff wanted to wait until he could do some research on the drugs Miceli wanted to use and wait until the cancer had actually been diagnosed. Dr. Miceli's unorthodox manner of attempting to treat Plaintiff's cancer before a cancer diagnosis, worked to increase Plaintiff's suspicions about Defendants' true intentions with regards to their office of “invasive” diagnosis and treatment for the cancer.

Id. at ¶¶ 72-73. According to Mr. Brown, Dr. Miceli became upset each time Mr. Brown sought to review his medical records or questioned his treatment plans. Further, Mr. Brown states that Dr. Miceli's statements and responses gave him a “feeling that he would have no problems using prisoners for experimental drugs and/or treatments, and also increased Plaintiff's suspicions about PA DOC true intentions with regards his offered diagnosis and treatment.” Id. at ¶ 78.

Mr. Brown alleges that Defendants Grego-Rice, Miceli, Herbik, Capozza, Varner, Burns, Wetzel, Dialesandro, CCS, Randolph, House, Woods, Noel, Silva, Cowan, and other unknowns played a major role in either personally denying him access to the medical files he “needed to view prior [to] submitting to the biopsy, or supported the denial, which resulted in a substantial delay in, inter alia, the unchecked growth of the disease.” Id. at ¶ 80. He contends he submitted at least five grievances in an attempt to gain access to his medical information, and his attempts were sabotaged by these defendants, as well as Defendants Maksin, Sherwood and others unknowns. Id. at ¶ 81.¹⁰

10 Although Mr. Brown refers to Woods and Randolph as defendants, neither individual was named in the caption of the Amended Complaint and Mr. Brown has not requested service or provided service documents for these individuals. Additionally, while Herbik, Maksin, and Sherwood are named in the caption of the amended complaint, Mr. Brown has neither requested they be served nor provided service documents for these individuals.

On October 2, 2017, Mr. Brown was allowed to what he refers to as an “incomplete access to his medical files, ” and that his attempts to obtain a complete and meaningful access have been repeatedly denied. Id. at ¶ 93(x) - (xii).

Next, Mr. Brown alleges that “yet another egregious and blatant attack occurred against this Plaintiff-Patient on the ‘popular' date of 4/27/18 when Plaintiff's attempts to prevent the sabotaging of his biopsy failed” by placing him in one of the prison's Psychiatric Observation Cells (“POC”) to be prepared for surgery. Id. at ¶¶ 95-96. Despite Mr. Brown's specific instructions to Defendant Grego-Rice not to have him brought to a POC, he contends he was “forced into the POC simply for punishment reasons.” Id. at ¶ 97. This again, according to the Amended Complaint, delayed “the all important biopsy.” Id. at ¶ 98. Mr. Brown contends that Defendants Capozza, Miceli, and Grego-Rice responded to his grievance by incorrectly stating that he had “refused” the biopsy and had refused any prep and medical procedures while confined in a POC, id. at ¶ 103, and that “Defendants have a practice of twisting facts and keeping the real reasons out of Plaintiff's medical files when he does not appear at medical appointments, with false refusals being the main reasons for his failure to appear.” Id. at ¶ 104. He further alleges that Defendants Capozza, House, Varner, Wetzel, Randolph, Noel, Cowan, and Silva all considered Mr. Brown's refusal to submit to medical procedures in a POC as a refusal to submit to a biopsy, when he had made “several reasonable suggestions that would not require invasive preparation in a POC.” Id. at ¶ 105. He contends that “Defendants' refusal to diagnose and treat Plaintiff's cancer for reasons involving trivial preparations for the prostate biopsy while flatly refusing even to consider any of the numerous alternatives mentioned aforesaid, clearly borders on the barbarous.” Id. at ¶ 111.¹¹

11 It appears that Mr. Brown eventually was allowed to prepare for the biopsy in his cell, but he contends that “medical defendants (Herbik, Miceli, Cowden, Randolph, Woods, Grego-Rice and other unknowns) intentionally refused to ensure that Plaintiff was provided the other preparation prescriptions, which resulted in contracting bacterial infections during the surgery.” Am. Compl., at ¶ 116(ix). The surgery occurred on 9/10/18, and Mr. Brown contends that “Defendants Miceli, Herbik, CCS, Wellpath, and/or other unknowns, somehow got Dr. Shuyler to aid their cause, which he did by intentionally causing nerve damage and contaminating his body with at least two (2) different bacteria infections.” Id. at ¶ 116(xxii).

Mr. Brown alleges that the “PA DOC and SCI-Fayette Defendants pretty much adopted the same playbook employed by their comrades at SCI-Greene to punish and/or retaliate against Plaintiff because of the continued exposure of their racist, unlawful, barbaric and sadistic (inter alia) behavior ” that is routinely employed against africans and other minorities under their care.” Id. at ¶ 114.

Mr. Brown also contends that fifty-four named Defendants “and other unknowns” also retaliated against him because of his exercise of his First Amendment rights. Id. at ¶ 115. He alleges a myriad of retaliatory actions including, but not limited to, denial of food and/or food items, punitive meals, physical abuse/assaults, filthy food trays, denial / delay of medical care, denial of access to medical appointments, prescribing harming medications, refusal to treat at least two bacterial infections he contracted during his prostate surgery, retaliatory and destructive cell searches, denial of new shaving razors since January 2020, all of which has resulted in Mr. Brown filing over 200 grievances. See id. ¶¶ 116(xviii).

The Amended Complaint reflects that Mr. Brown last saw Dr. Miceli in June 2020. He states that he was forced to stop the Hormone Therapy after Dr. Miceli told him that the medication was causing his legs to swell. Mr. Brown has refused new medication in order “to give his body a chance to heal as the medication was causing substantial side effects.” Id. at ¶ 120. According to the Amended Complaint, as of September 14, 2020, Mr. Brown “is receiving no healthcare for his cancer and related illnesses.” Id. at ¶ 125.

3. Claims Stemming from Being Held in Isolation

In the third section of the Amended Complaint, entitled “Isolation, ” Mr. Brown contends that he has been in isolation “since day one of his incarceration, allegedly because of escape risk and assaultive nature of his crimes.” Id. at ¶ 126. He contends that “Defendants are using this status to force him to accept his medical care in a POC and security staff are allowed to sabotage his medical appointments.”¹² Id. at ¶ 131. He further contends that solitary-isolation and attacks by trained staff have caused him to suffer mentally and emotionally and pose on ongoing threat. Id. at ¶ 134.

12 According to Mr. Brown, he has been prevented from receiving treatment for the bacteria infections he received from the prostate biopsy because DOC medical staff require that the treatment be in a POC, id. at ¶ 131, which he contends are “inherently filthy with human body waste, blood, food and other matter, and have a sick smell (the one's at SCI-Fayette also have fruit flies.).” Id. at ¶ 100.

4. Claims Stemming from Alleged Denial of Pain Relief

In the fourth section of the Amended Complaint, entitled “Pain Relief, ” Mr. Brown contends that he has been on the same dose of oxycodone for the past ten months, that his pain is progressively worsening, that he has repeatedly complained to Defendants “for a better medication or increased dose” and yet Defendants Miceli, Herbik, Noel, Cowan, and Silver refuse to consider medications “that are better or schedule him to see a pain specialist.” Id. at ¶¶ 146 - 151.

5. Political Prisoner

The fifth section of the Amended Complaint is entitled “Political Prisoner.” In this section, Mr. Brown first states that “[w]hile looking back to his arrest, Plaintiff can see how he was being set up to be a political prisoner and the various roles played by the Court, the prosecutor, and his attorney (alleged). The table was already set.”¹³ Id. at ¶ 155. Further, according to Mr. Brown, “[i]t was clear later that the Government simply wanted an excuse to isolate him from the general population so they could more easily prevent him from obtaining relief from his obvious illegal convictions, for crimes he did not commit.” Id. at ¶ 157. He states that the manner in which he has been treated “with regards to his cancer constitute a different variation of [the PA DOC staff] pressured suicide tactics, which places the Plaintiff in imminent/danger of serious physical injury if the Court does not intervene to prevent this particular deadly attack by the PA DOC and/or their agents or employees.” Id. at ¶ 168. Last, Mr. Brown states that, “[i]t remains to be seen whether or not the Courts' will support Pennsylvania's plans to murder the Plaintiff via medical neglect.” Id. at ¶ 166.

13 Mr. Brown states that he “was sentenced to a total of 216 years for crimes he did not commit in gross violation of his due process rights, under both the Pennsylvania and United States Constitution.” Complaint at ¶ 11, No. 16-cv-1081.

6. Claims Stemming from Defendants' Alleged Sabotaging of Legal Efforts

In the sixth section of the Amended Complaint, Mr. Brown lists at least ten “tactics” which he alleges employees at both SCI-Greene and SCI-Fayette have engaged in an effort to sabotage his legal efforts. He argues that Defendants' interference with his rights of free speech and association, and access to the Courts, has prevented him “from effectively litigating this and other prior legal matters that seeks relief from the Defendants' denial of cancer related medical care and related psychological attacks/games that aided their goals.” Id. at ¶¶ 169 - 171.

7. Incorporation

In this section of his Amended Complaint, Mr. Brown states that due to his “extremely poor health and the Defendants' various sabotaging tactics designed to interfere with Plaintiff's preparation of his Amended Complaint, ” he incorporates by reference the complaints filed at Civil Action Nos. 16-1081, 17-0321, and 18-1130, as well as all the documents he has filed in support of his request for injunctive relief.

8. Injuries

In the last titled section of the Amended Complaint, Mr. Brown states he began experiencing substantial and sometimes disabling pain in June 2017, and Defendants have waited long periods of time to provide any type of pain relief. His claims in this section appear to be directed to CCS and its medical staff. He alleges, inter alia, that,

• CCS and Dr. Keldie have allowed their staff to implement numerous types of retaliation tactics that are designed to sabotage his attempts to maintain satisfactory pain relief;

• Defendants have falsely accused him of hoarding his medication in an effort to support their retaliation tactics;

• Defendants Cowden, Miceli, CCS, and Herbik not only refused to provide a palliative specialist for Mr. Brown's multiple pain conditions, but have also refused to provide devices and appropriate therapy to aid pain relief and prevent aggravation of his illnesses.

Id. at ¶¶ 173 - 178.

In addition to physical pain, Mr. Brown contends that he has suffered “psychologically and emotionally due to the facts that he is well aware that he is being denied appropriate healthcare for retaliation and cost saving purposes.” Id. at ¶ 186. Further, he states that he has exhibited signs and symptoms of depression since his confinement at SCI-Greene, which the Defendants have intentionally aggravated or supported such aggravations. He contends that CCS and its staff utilize cost cutting schemes, resulting in substandard medical care, and that CCS has failed “to train and/or supervise its employees in the proper provisions of health care to prisoners, and in accordance with their rights as a patient and prisoner.” Id. at ¶¶ 212 - 218.

Mr. Brown's multi-faceted Amended Complaint has inspired multi-faceted motions to strike/ motions to dismiss. Each of the motions challenge Mr. Brown's claims on a host of grounds. The motions will be addressed seriatim.

C. Standard of Review

Three relevant standards of review are at issue in Defendants' motions to dismiss / motion to strike / motions for summary judgment: Federal Rule of Civil Procedure (“Rule”) 12(b)(6), Rule 12(f), and Rule 56.

1. Motion to Dismiss For Failure to State a Claim

A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The Supreme Court has issued two decisions that pertain to the standard of review for failure to state a claim upon which relief could be granted. In Ashcroft v. Iqbal, the Supreme Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “ ‘naked assertion[s]' devoid of ‘further factual enhancement.' ” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679. The Court of Appeals for the Third Circuit has summarized the inquiry as follows:

To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Although this Court must accept the allegations in the Amended Complaint as true, it is “not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baroka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).

“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). When matters outside of the pleadings are presented to the Court on a Rule 12(b)(6) motion, the Court has the discretion to exclude such matters from consideration. Fed.R.Civ.P. 12(d); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 905 n.3 (3d Cir. 1997). If matters outside the pleadings are presented to, and not excluded by, the court, a motion to dismiss must be converted to a motion for summary judgment. See Fed.R.Civ.P.12(d).

2. Motions to Strike

Federal Rule of Civil Procedure 12(f) that “[t]he Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Courts have broad discretion in resolving motions to strike. Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir. 1986)). “The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid necessary forays into immaterial matters.” Simmons v. Nationwide Mut. Fire Ins. Co., 788 F.Supp.2d 404, 407 (W.D. Pa. 2011) (quoting McInerney v. Moyer Lumber & Hardware, Inc., 244 F.Supp.2d 393, 402 (E.D. Pa. 2000) (internal quotation marks omitted). However, even where the challenged material is redundant, immaterial, impertinent, or scandalous, a motion to strike should not be granted unless the presence of the surplusage will prejudice the adverse party.

In deciding the present motions, the Court must also bear in mind that generally, motions to strike under Rule 12(f) are highly disfavored. Garlanger v. Verbeke, 223 F.Supp.2d 596, 609 (D.N.J. 2002) (“Because of the drastic nature of the remedy, . . . motions to strike are usually ‘viewed with disfavor' and will generally ‘be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues.'”) (citing Tonka Corp. v. Rose Art Indus., Inc., 836 F.Supp. 200, 281 (D.N.J. 1993)).

3. Motion for Summary Judgment

Under Rule 56, summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the record indicates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element to that party's case and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence or the lack thereof that demonstrates the absence of a genuine issue of material fact. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52). If a court, having reviewed the evidence with this standard in mind, concludes that “the evidence is merely colorable . . . or is not significantly probative, ” then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Finally, while any evidence used to support a motion for summary judgment must be admissible, it is not necessary for it to be in admissible form. See Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990).

In reviewing a motion for summary judgment, the Court does not make credibility determinations, and summary judgment is “inappropriate when a case will turn on credibility determinations.” El v. Southeastern Pennsylvania Transp. Authority, 479 F.3d 232 (3d Cir. 2007) (citing Anderson, 477 U.S. at 255).

D. Discussion

Defendants present several arguments in support of striking or dismissing the Amended Complaint. Before beginning its analysis, though, the Court notes that throughout the Amended Complaint, Mr. Brown predominantly makes generalized references to “Defendants, ” without making any differentiation between them. In the few instances where Mr. Brown does identify certain Defendants by name, he recites a long list of Defendants and then makes general, vague, and conclusory allegations regarding their conduct as a whole. See, e.g., ¶¶ 14, 21, 23, 41, 69, 80, 102, 115. The Court has endeavored where possible to identify specific allegations against the various defendants.

First, the Court will analyze under Rule 12(f) whether the Amended Complaint should be stricken, either in its entirety or partially. Then, if the Amended Complaint survives the Rule 12(f) challenge, the Court will analyze under Rule 56 whether Defendant Santos is entitled to judgment on Mr. Brown's claims based on failure to exhaust his administrative remedies. Last, the Court will consider, Defendants' arguments that under Rule 12(b)(6) the claims of the Amended Complaint should be dismissed for failure to state a claim upon which relief can be granted.

1. Motion to Strike

All Defendants argue that the Amended Complaint should be stricken as it does not comply with the Federal Rules of Civil Procedure or comport with the many Orders of this Court regarding the filing of an amended complaint.

“Pleadings must be construed so as to do justice.” Fed.R.Civ.P. 8(e). This already liberal standard is ‘even more pronounced' where a plaintiff files the complaint without the assistance of counsel.” Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam)), cert. denied, -- U.S. --, 140 S.Ct. 1611 (2020). “[A] court must make reasonable allowances to protect pro se litigants from the inadvertent forfeiture of important rights due merely to their lack of legal training.” Id. Thus, “[c]ourts are more forgiving of pro se litigants for filing relatively unorganized or somewhat lengthy complaints.” Id.

Liberally construing Mr. Brown's Amended Complaint, the Court nevertheless concludes that the Amended Complaint does not satisfy the requirements of Federal Rule of Civil Procedure 8, which requires, among other things, that a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” and that “[e]ach allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2), 8(d)(1). Taken together, Rules 8(a) and 8(d) underscore the emphasis placed on clarity and brevity by the federal pleading rules.

First, the Court considers Rule 8's “short” statement requirement. As our court of appeals stated, [c]ertainly, there can be no single “proper length” for stating a particular claim. The level of factual detail will vary with the complexity of the claim asserted. Moore, supra, § 8.04[1][d]. But a district court acts within its discretion when it dismisses an excessively prolix and overlong complaint, particularly where a plaintiff declines an express invitation to better [his] pleading.

Garrett, 938 F.3d at 93. Here, Mr. Brown was instructed on numerous occasions that his amended complaint must adhere to Rule 8(a)(2) and that the opportunity to file an amended complaint was not an invitation to enlarge the lawsuit by filing new allegations and claims unelated to those set forth in the original complaints. Further, Mr. Brown repeatedly was reminded that he had been granted in forma pauperis status because he had alleged a claim of imminent danger of serious physical injury due to the lack of medical treatment for a serious medical condition - prostate cancer - and he could not include new parties, claims, or allegations not related to the original Complaints and which do not involve any threat of imminent danger.

Under Fed.R.Civ.P. 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief ....” The words “short and plain” are themselves short and plain, and they mean what they say: A complaint must be concise, and it must be clear. Rule 8 was not promulgated to provide helpful advice; it has the force of law, and it must be followed.

While “there can be no single ‘proper length' for stating a particular claim, ” it cannot be said that Mr. Brown's Amended Complaint meets the requirements of Rule 8(a)(2). It is not “short” as it sprawls across eighty-two handwritten pages, and contains approximately 232 paragraphs, some of which span entire pages and contain multiple events within each paragraph. It appears that Mr. Brown has sued almost every staff member he has come in contact with while housed at SCI-Greene and SCI-Fayette and often lumps them together in bald, conclusory allegations that offer no specifics and few dates.

Along those lines, it also cannot be said that the Amended Complaint meets the “plain” statement requirement of Rule 8, “which prompts [the Court] to ask whether, liberally construed, a pleading ‘identifies discrete defendants and the actions by these defendants' in regard to the plaintiff's claims.” Garrett, 938 F.3d at 93 (citing Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir. 2019) (per curium)). Throughout the Amended Complaint, Mr. Brown predominately recites a long list of defendants and then makes general, vague and conclusory allegations regarding their conduct as a whole. See, e.g, ¶ 14 (“The following Defendants either directly participated in the attacks against Plaintiff and or supported some after he appealed them for relief and compensation” and then names 130 defendants); ¶ 41 (identifies seventy defendants by name who allegedly “participated in the ‘stress-production' attacks on the Plaintiff while he was confined at SCI-Greene”); ¶ 115 (identifies fifty-four defendants by name whose “retaliation against the Plaintiff is also motivated by the desire to punish him because of his exercise of his first Amendment Rights.”).

The Amended Complaint also violates Fed.R.Civ.P. 20, which governs permissive joinder of parties. “For courts applying Rule 20 and related rules, ‘the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.' ” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)). Still, the liberal policy of joinder under Rule 20 does not mean that unrelated claims and defendants can be joined in one action. Rather, the requirements of Rule 20(a)(2) regarding joinder of defendants must be satisfied, and that Rule provides that persons may be joined in one action as defendants if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and . . . any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2). Courts have broad discretion in applying Rule 20 to reduce inconvenience, delay, and added expense to the parties and to the court, and to promote judicial economy. 7 Charles Alan Wright, et al., Federal Practice and Procedure § 1653 at 410-12 (3d ed. 2001).

Here, the Amended Complaint is best described as a “kitchen sink” or “shotgun” complaint - a complaint in which a plaintiff brings every conceivable claim against every conceivable defendant. Such complaints are troublesome for many reasons. For one thing, complaints like the instant one unfairly burden defendants and courts. The plaintiff who files such a shotgun complaint shifts onto the defendant and the court the burden of identifying the plaintiff's genuine claims and determining which of those claims might have legal support. This is not the job of either a defendant or the Court.

It is important to note that a “kitchen-sink” or “shotgun” complaint also harms the plaintiff who brings it. In most cases, a genuine dispute that supports a viable legal claim underlies a plaintiff's complaint. But this genuine dispute becomes almost impossible to discern when it is buried in pages of various allegations, some of which may not rise to the level of a viable claim.

Many of the allegations in Mr. Brown's Amended Complaint do not include sufficient factual information to provide the grounds on which Brown's claims rest, and do not raise a right above a speculative level. See Twombly, 550 U.S. at 555-56, n.3. Other allegations clearly lack the facial plausibility to survive a motion to dismiss. See, e.g., ¶ 78 (“Miceli's beliefs gives Plaintiff a feeling that he would have no problems using prisoners for experimental drugs and/or treatments, and also increased Plaintiff's suspicions about Pa. DOC true intentions with regard [to] the offered diagnosis and treatment”); ¶ 116(xxii) (Mr. Brown alleges that “on 9/10/18, Defendants' (Miceli, Herbik, CCS, Wellpath, and/or other unknowns, somehow got Dr. Shuyler to aid their cause, which he did by intentionally causing nerve damage, and contaminating [Brown's] body with at least two (2) different bacteria infections.” A district court abuses its discretion when a pro se complaint is dismissed “merely because it contains repetitious and irrelevant matter, ” so long as that “disposable husk [surrounds] . . . a core proper pleading.” Garrett, 938 F.3d at 94 (quoting Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001)) (footnote omitted). Further, “dismissal of pro se complaints ‘is usually reserved for those cases in which the complaint is so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised.” Garrett, 938 F.3d at 93 (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).

Keeping in mind these principles, the Court is hesitant to recommend that the Amended Complaint be stricken in its entirety. Mr. Brown has raised serious allegations and was granted IFP status based on these imminent danger allegations: (1) his inability to make informed decisions due Defendants failure to provide him access to his medical records; (2) the treatment, or lack thereof, he has received for his prostate cancer and other serious medical issues; and (3) Defendants alleged denial to provide him appropriate pain / palliative care. Because it appears a “disposable husk [surrounds] . . . a core of proper pleading, ” the undersigned will recommend that the motions to strike be granted in part and denied in part. Garrett, 938 F.3d at 94 (quoting Ruby Foods, 269 F.3d at 820) (footnote omitted).

It is recommended that the motions to strike be granted as all Defendants on Counts II, V, XI, and XIII. These are brand new causes of action which were not pled in the original complaints and do not relate to any claims of imminent danger for which Mr. Brown has been granted IFP status.

It is further recommended that the motion to strike be denied as to the remaining counts in the Amended Complaint. The Court will now turn to the motions to dismiss filed by the Defendants.

2. Motion to Dismiss filed by Defendant Santos ¹⁴

14 Mr. Brown acknowledges in his response to Defendant Santos's motion that the claims in Counts II, X, XII, XIII, and XIV of the Amended Complaint do not relate to Defendant Santos. (ECF No. 372 at 10).

First, the Court will analyze under Rule 56 whether Defendant Santos is entitled to judgment on Mr. Brown's claims because he failed to exhaust his administrative remedies. And then, the Court will consider, if necessary, whether under Rule 12(b)(6) the claims against Defendant Santos should be dismissed for failure to state a claim upon which relief can be granted.

a. Rule 56 - The Administrative Exhaustion Requirement

Defendant Santos argues that the claims against him should be dismissed because Mr. Brown failed to fully exhaust his administrative remedies. As the parties were advised, this motion to dismiss was converted to a motion for summary judgment on this issue only. (ECF No. 333).

Under the Prison Litigation Reform Act (“PLRA”), a prisoner is required to pursue all avenues of relief available to him within the prison's grievance system before bringing a federal civil rights actions. 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000), aff'd, 532 U.S. 731 (2001). Failure to exhaust administrative remedies under the PLRA is an affirmative defense that must be pleaded and proven by defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).

Moreover, the PLRA also requires “proper exhaustion” meaning that a prisoner must complete the administrative review process in accordance with the applicable procedural rules of that grievance / appeal system and a procedurally defective administrative grievance or appeal precludes action in federal court. Fennell v. Cambria County Prison, 607 Fed.Appx. 145, 149 (3d Cir. 2015) (citing Woodford v. Ngo, 548 U.S. 81, 84, 90-91 (2006) and Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2008)).

In support of his motion, Defendant Santos has submitted Mr. Brown's SOIGA records for the time period 2015 through 2017 which he received pursuant to a subpoena served by co-defendants.¹⁵ (ECF No. 322 at 14). Defendant Santos argues that of these records, only one, Grievance 639213 dated 8/17/2016, was submitted to final review. The Grievance states as follows:

15 The Court notes that while Defendant Santos represents that these records are copies are Mr. Brown's complete SOIGA records for the time period from 2015 - 2017, the records submitted to the Court are not certified nor are they accompanied by a copy of the subpoena served on SOIGA, or a Declaration stating that the records are in fact the complete SOIGA file.

I complain of abuse/torture and conspiracy to murder, by medical and security staff at SCI-Greene. Jurisdiction is invoked pursuant to DC-ADM 001 and DC-ADM 004 (not 008). Staff directly involved in these attacks whom I have identified, or who have supported and/or attempted to cover up the abuse/torture, are as follows: Superintendent Gilmore, Deputy Zaken, Deputy Dialesandro; CHCA Guth, CHCA Vihlidal; T. Shawley; Dr. Valley; Dr. Santos; the Pharmacist; Nurse Petty; Nurse Watson; Nurse Superior Grego; Nurse Supervisor McAnany; PA Mwaura; PA Liberatore; C.O. Amhoff; C.O. Carter; Sgt. Tikey; Lt. Morris; Lt. Silbaugh; Cap. Durro; and other unknowns.

Grievant is being retaliated against by the aforesaid staff because of his litigious and iconoclastic behavior, and prisoner rights activism, which includes numerous grievances exposing the aforesaid staff barbaric, sadistic and racist practices (inter alia), criminal complaints.

...

As a result of Grievant's behavior and activity, the aforesaid staff has committed the following acts/inactions with the intent to cause pain and speed his death: (1) refused any request for medical information relating to my disease (prostate cancer) and the treatments and diagnostic tests ordered at the 8/3/16 teleconference with the neurologist and Dr. Valley (such information is required by policy 13.1.1), (2) refusal to treat and diagnose the cause of bacteria infections, which are extremely painful and bleed large amounts of blood and pus, which appear to be Staphylococcus aureus (I sought help and bandages from Dr. Valley on 8/3/16 and 8/6/16); filed sick call requests on 8/11/16; 8/14/16; and 8/16/16 (See Attachment 1, 2, and 3) and was seen by PA Mwaura and Dr. Santos; yet they seemed to be happy about my suffering and only made false promises prescribing antibiotics, providing bandages, and testing blood); (3) sabotaging my subscription for pain-medication that was prescribed on 8/3/16 by Neurologist; causing extreme delays; not providing sufficient amount; aggravating my GERD and assaulting my throat and taste buds by crushing the medication prior to giving it me; and by not providing me with the vital details of the subscriptions, including a subscription label (the crushing of the medication also prevents me from identifying what I am putting in my body!).

Grievance 639213, ECF No. 322-1 at 119-20 (underlining in original).

Defendant Santos argues that while the Grievance mentions Dr. Santos, it does not relate to the allegations against him that are raised in the Amended Complaint. Mr. Brown responds that he filed a number of other grievances pertaining to his medical treatment in which he named Defendant Santos and which are also related to the claims in this case. (ECF No. 372 at 4).

At this time, the state of the record is such that the Court finds it would be inappropriate to enter judgment in favor of Defendant Santos. It is, therefore, recommended that Defendant Santos's motion for summary judgment be denied without prejudice to Defendant Santos renewing his request for summary judgment after the parties complete discovery.

b. Rule 12(b)(6) - Failure to State a Claim

The Court will now address Defendant Santos's remaining arguments under the well-known 12(b)(6) motion to dismiss standard of review.

i. Medical Deliberate Indifference Claims - Counts III, IV, VII, and IX

Where a prisoner, such as Mr. Brown, receives some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgment. See Young v. Quinlan, 960 F.2d 351, 358 n.18 (3d Cir. 1992) (stating that an inmate's disagreement with prison personnel over the exercise of medical judgment does not state a claim for relief under section 1983); Brownlow v. Chavez, 871 F.Supp. 1061, 1064 (S.D. Ind. 1994) ("The Eighth Amendment does not guarantee a prisoner's choice of a physician, a mode of treatment or a place of treatment, nor does or could it guarantee a particular outcome or level of comfort in the face of physical maladies." (internal citations omitted).

Defendant Santos argues that Mr. Brown's claims do not reflect a violation of his Eighth Amendment right to medical care, but rather are bald and conclusory allegations which reflect a disagreement about the medical treatment provided to him. Defendant Santos states that his care of Mr. Brown ended in 2016; as such, the Court recognizes that Defendant Santos cannot be found liable for events which occurred after his care ended. Moreover, Mr. Brown acknowledges that his claims against Defendant Santos arise only from allegations concerning Mr. Brown's medical treatment while at SCI-Greene. (ECF No. 372, at 10).

As stated above, through his Amended Complaint, Mr. Brown alleges that Defendants have (i) denied him access to his medical records which prevents him from making informed decisions; (2) failed to provide him appropriate treatment for his prostate cancer and other serious medical issues; and (3) denied him appropriate pain / palliative care.

At this early stage of the litigation, and accepting Mr. Brown's allegations as true, it cannot be determined whether Defendant Santos deliberately disregarded an excessive risk to Mr. Brown's health or safety. Therefore, it is recommended that Defendant Santos's motion to dismiss Counts III, IV, VII, and IX be denied.

ii. Intentional Infliction of Emotional Distress (Count VI)

Defendant Santos argues that the Amended Complaint reveals no facts which reveal Dr. Santos acted with outrageous and extreme conduct towards Mr. Brown nor does the Amended Complaint set forth sufficient facts to establish some form of physical harm Mr. Brown suffered as a result of any alleged emotional distress caused by Defendant Santos.

At this stage of the litigation, the Court finds that the Amended Complaint sufficiently pleads enough facts to state a claim for intentional infliction of emotional distress. Accepting the alleged facts to be true and drawing all inferences in Mr. Brown's favor, as the Court must do on a motion to dismiss, the undersigned recommends that Mr. Brown's claim for intentional infliction of emotional distress, though extremely tenuous, be allowed to proceed.

iii. Retaliation (Counts VIII and XII)

Defendant Santos argues that any retaliation claims against him should be dismissed as the Amended Complaint offers no facts to suggest that Dr. Santos took any retaliatory actions which infringed upon Mr. Brown's ability to exercise his freedom of expression. After a thorough review of the allegations contained in the Amended Complaint, the Court finds Dr. Santos's arguments persuasive and, therefore, recommends that all retaliation claims brought against Defendant Santos be dismissed.

It is well settled that “government actions, which standing alone, do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quoting Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000)). In order to state a prima facie case of retaliation, a prisoner / plaintiff must demonstrate (1) that the conduct in which he engaged was constitutionally protected, (2) he suffered an “adverse action” at the hands of prison officials; and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Although there is not a heightened pleading standard in civil rights cases and liberal standards are to be applied to pro se pleadings, a § 1983 complaint must still comply with the Federal Rules of Civil Procedure, and must contain at least a modicum of factual specificity, identifying the particular conduct of each defendant that is alleged to have harmed the plaintiff, so that a defendant has adequate notice to frame an answer.

In the instant case, any retaliation claim against Defendant Santos is stated in wholly conclusory terms. Mr. Brown attempts to cast a wide net, making a bald assertion of retaliation -in essence claiming that every action taken by every defendant was done in retaliation for Mr. Brown engaging in constitutionally protected activity. These threadbare, conclusory allegations are insufficient to state a claim for First Amendment retaliation. Under these circumstances, it is recommended that Defendant Santos's motion to dismiss Counts VIII and XII be granted.

iv. Punitive Damages

Defendant Santos's final argument is that Mr. Brown's claim for punitive damages should be dismissed. As a general rule, courts deem motions to dismiss punitive damage claims to be premature and inappropriate where, as here, the complaint alleges reckless conduct or callous indifference to the federally protected rights of others. Moreover, because the question of whether punitive damages are proper often turns on the defendants' state of mind, this question frequently cannot be resolved on the pleadings alone, but must await the development of a full factual record at trial. Therefore, where a plaintiff's right to punitive damages may turn on the significance afforded to disputed factual questions, defendants are not entitled to a judgment in their favor on the plaintiff's punitive damages claims as a matter of law at the outset of the litigation.

Here, Mr. Brown, through his Amended Complaint, has presented the Court with allegations of the individual defendants being deliberately indifferent to his medical needs, knowingly participating in the systemic denial of medical care for cost-saving reasons, and breaching their duty to provide the standard of care. For this reason, the undersigned finds that Defendant Santos's motion to dismiss Mr. Brown's punitive damages claims is premature, and recommends that Defendant Santos's request to deny the claim for punitive damages be denied.

3. Motion to Dismiss filed by the Commonwealth Defendants

a. Lack of Personal Involvement

The Commonwealth Defendants argue that Mr. Brown has named over 130 prison officials but has failed to present any specific factual allegations of personal involvement by any of the Commonwealth Defendants. Instead, the Amended Complaint often refers to “Defendants” generally or identifies a general claim and then lists a series of Defendants who are responsible for this conduct.

While the Court observes that the Amended Complaint is unnecessarily complicated and verbose, it does not find that the Amended Complaint in its entirety fails to state a claim against all the Commonwealth Defendants. Certainly, to the extent that there are no particularized allegations against an individual Commonwealth Defendant, that individual should be dismissed. But to the extent Mr. Brown has provided factual allegations setting forth particularized descriptions of actions by individual defendants, as discussed below, many of those claims should survive the Commonwealth Defendants' challenge.

As to the claims against Governor Wolf, though, the Court finds that Mr. Brown's contention of personal involvement is not “plausible on its face ” See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The Court finds it implausible, without more, that the Chief Executive of the Commonwealth would have known of or had personal involvement with Mr. Brown or with his requests (or denials) for medical treatment. Accordingly, it is recommended that the Amended Complaint insofar as it alleges § 1983 liability against Governor Wolf be dismissed.

Similarly, the Court finds it implausible, without more, that Defendant Wetzel, as the Secretary of the DOC, and Defendant Burns, as Deputy Secretary of the DOC, had personal involvement in any denial of medical care to Mr. Brown. Accordingly, it is recommended that the Amended Complaint insofar as it alleges § 1983 liability against Defendants Wetzel and Burns be dismissed.

b. Retaliation (Counts VIII and XII) ¹⁶

16 Mr. Brown also alleges retaliation in Count XIII (“Political Prisoner”) but that claim is among the claims the undersigned has recommended be stricken.

The same analysis applies to the retaliation claims against the Commonwealth Defendants as that applied to the retaliation claims against Defendant Santos. See supra. Therefore, it is recommended that the retaliation claims of Counts VIII and XII of the Amended Complaint also be dismissed against the Commonweal Defendants.

c. Medical Deliberate Indifference Claims - Counts III, IV, VII, and IX

The Commonwealth Defendants argue that any claims arising from or relating to Mr. Brown's medical care and treatment asserted against the Commonwealth Defendants should be dismissed. The Court at this stage is unwilling to recommend such a broad dismissal.

The Court finds it plausible that many of the named Commonwealth Defendants may have played a role in the administration of medical care provided to Mr. Brown and may have had some control over the extent to which those services were made available to Mr. Brown.

Although invited to better tailor his pleading, the vast majority of the paragraphs in the Amended Complaint continue to fail to set forth the personal involvement of the majority of the Commonwealth Defendants. With that said, however, and without evaluating the underlying merits of the claim, after a thorough combing of the Amended Complaint, the Court finds that Mr. Brown has pleaded sufficient facts against the following Commonwealth Defendants on his claims of deliberate indifference to his serious medical needs:

Mark Capozza	CO Imhoff	S. Silbaugh
Deputy Dialesandro	CO Keller	Joseph J. Silva
J. H. Dupont	Major Leggett	Lt. Stickles
Capt. Durco	John McAnany	Sgt Tikey
R.N. Felton	Lt. Medvic	Sgt. Trout
T.A. Funk	A.J. Morris	Michael Troyan
Jayme Gardner	William Nicholson	Dr. Robert Valley
Dean Geehing	Paul Noel	Irma Vihlidal
Robert Gilmore	C.H. Oppmon	Nurse Watson
Margaret Gordan	Karen Patterson	Rich Wenhold
Nedra Grego-Rice	K. Petty	Tamara Whitmeyer
C.O. E. T. Gumbert	T. Poziviak	Mike Zaken
Kyle Guth	Lori Ridings
	Capt. Schrader

d. Access to Court (Count XII)

In Count XII of the Amended Complaint, Mr. Brown names thirty-three Commonwealth Defendants “and others” and alleges that they have “made continuous attacks on Plaintiff's attempts to obtain relief from their attacks from Pennsylvania courts (state and federal), government agencies, lawyers, organizations, and numerous free-world contacts that assist prisoners in obtaining relief from prison related abuses ....” Am. Compl., at ¶ 169. The Commonwealth Defendants argue that Mr. Brown has failed to allege any specific action or conduct on the part of any Commonwealth Defendant or point to any particular date or incident when this alleged interference occurred.

The focus of any right of access analysis is whether the defendant's actions denied the plaintiff adequate, effective, and meaningful access to the courts. The Court of Appeals for the Third Circuit has explained:

[A] denial of access claim is available where the state officials “wrongfully and intentionally conceal information crucial to a person's ability to obtain redress through the courts, and do so for the purpose of frustrating that right, and that concealment and the delay engendered by it substantially reduce the likelihood of one's obtaining the relief to which one is otherwise entitled.

Gibson v. Superintendent of N.J. Dep't of Law & Pub. Safety - Div. of State Police, 411 F.3d 427, 445 (3d Cir. 2005) (emphasis in original) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir. 2003)), overruled on other grounds by Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010). Importantly, a plaintiff must demonstrate actual injury stemming from the denial of access. Lewis v. Casey, 518 U.S. 343 (1996). A plaintiff must allege both an underlying cause of action, whether anticipated or lost, and official acts frustrating the litigation. Christopher v. Harbury, 536 U.S. 403 (2002). Prisoners have a constitutional right to “adequate, effective and meaningful” access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). In order for Mr. Brown to support his access to courts claim, he is required to demonstrate that he has lost the opportunity to pursue a nonfrivolous or arguable underlying legal claim, that there is no other remedy available to him, and that the Defendants had the requisite intent to deny his constitutional right of access to courts.

Other than providing broad and conclusory allegations of interference, the Amended Complaint contains no allegations which show actual injury to Mr. Brown's “litigation efforts that has resulted in being shut out of court.” Barlow v. Ebbert, No. 1:18-cv-00716, 2018 WL 346554, at *5 (footnote omitted). Thus, the Court finds that Mr. Brown is unable to show that any action on the part of the Commonwealth Defendants denied him the right to pursue a “nonfrivolous” or “arguable” underlying claim, as is required to establish an access to courts claim. For these reasons, it is recommended that the Commonwealth Defendants' motion to dismiss Count XII be granted.

e. Claims Related to Mr. Brown's Efforts to File Grievances

The law is well established that “the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.” Sears v. McCoy, 2017 WL 4012658, *3 (M.D.Pa. 2017) (citing Pressley v. Beard, 266 Fed.Appx. 216, 218 (3d Cir. 2008) (“The District Court properly dismissed these defendants and any additional defendants who were sued based on their failure to take corrective action when grievances or investigations were referred to them”). Mr. Brown appears to have named a number of Commonwealth Defendants whose only involvement arises from reviewing Mr. Brown's grievances about his medical care and, therefore, should be dismissed.

Similarly, to the extent that Mr. Brown asserts a claim based upon his dissatisfaction with the grievance procedure itself, no cognizable claim is presented as prisoners do not have a “freestanding constitutional right to an effective grievance process.” Woods v. First Correctional Medical, Inc., 446 Fed.Appx. 400, 403 (3d Cir. 2011) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). And, to the extent that Mr. Brown contends that any Commonwealth Defendant placed him on grievance restriction or otherwise failed to answer or respond to his grievances, such a claim fails to state a cognizable claim.

For all these reasons, it is recommended that the Commonwealth Defendants' motion to dismiss on this basis be granted. Unfortunately, the Commonwealth Defendants do not identify for the Court which Commonwealth Defendants involvement arises only from reviewing Mr. Brown's grievances. Based on the Court's reading of the Amended Complaint, it appears the involvement of Defendants Rhonda A. House, Tracy Shawley, and Dorina Varner was limited to reviewing Mr. Brown's grievance and, as a result, it is recommended that these three defendants be dismissed. If there are additional Commonwealth Defendants whose involvement arises only from reviewing Mr. Brown's grievances, the Commonwealth Defendants should file a motion seeking to have those defendants, identified by name, dismissed as well.

f. Civil Conspiracy

Although not specifically set forth in any count, throughout the Amended Complaint, Mr. Brown makes general allegations that implies he may be seeking to recover damages for an alleged civil conspiracy among and between corrections officials and medical providers. Civil conspiracy can be a state claim, a Section 1983 claim, or both.

To state a civil conspiracy under § 1983, a plaintiff must demonstrate (i) an agreement of two or more conspirators (2) to deprive the plaintiff of a constitutional right, (3) under color of state law. Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 686, 700 (3d Cir. 1993). The Court of Appeals for the Third Circuit has made it clear that “‘[b]road and conclusory' statements ‘unsupported by factual allegations' are not sufficient to support a cause of action under the Civil Rights Act.” Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir. 1971) (citing Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967).

While incarcerated at SCI-Graterford, Mr. Brown brought similar claims of conspiracy.

In dismissing the conspiracy claim, the court stated:

In the Complaint, plaintiff attempts to present a claim that the defendants conspired to violate his constitutional rights. See, e .g., Compl. ¶ ¶ 54, 61, 79. However, plaintiff has failed to sufficiently allege such a claim. “In order to demonstrate the existence of a conspiracy under § 1983, the ‘prisoner has to show, inter alia, that the conspirators reached an agreement to deprive him of a constitutional right under color of law.'” Burgos, 641 F.Supp.2d at 458-59 (quoting Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993)). Plaintiff states that certain defendants conspired, or worked in concert, yet plaintiff's Complaint does not set forth any facts to show that the Medical Defendants entered into an agreement to deprive plaintiff of his constitutional rights. Plaintiff merely makes conclusory allegations which are insufficient to state a claim upon which relief can be granted. See Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989) (allegations of conspiracy must be sufficient to ‘describe the general composition of the conspiracy, some or all of its broad objectives, and the defendant's general role in that conspiracy.”); Brown v. Deparlos, 492 Fed.Appx. 211, 215 (3d Cir. 2012) (not precedential) (conclusory allegation that prison employees, including guards and a nurse, agreed to act to deprive prisoner of medical care is insufficient to sustain a conspiracy claim). See also Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991) (conspiracy claims based on pro se prisoner's subjective suspicions and unsupported speculation were properly dismissed). As such, plaintiff's conspiracy claim should be dismissed.

Brown v. Prison Health Services, No. 12-3578, 2013 WL 6139646, at *8 (E.D.Pa. Nov. 20, 2013). The Court finds that the conspiracy claims raised in the instant matter are strikingly similar to those raised in Mr. Brown's prior case. The undersigned, adopting the reasoning of the opinion issued in Brown v. Prison Health Services, recommends that the conspiracy claims in the instant case be dismissed.

g. Claims for Injunctive Relief Related to Claims Arising out of SCI-Greene

The Commonwealth Defendants' last request is that any request for injunctive relief related to claims arising out of SCI-Greene be dismissed. Mr. Brown was transferred from SCI-Greene to SCI-Fayette on August 9, 2017. “An inmate's transfer from the facility complained of generally moots the equitable and declaratory claims.” Therefore, to the extent that Mr. Brown is seeking injunctive and declaratory relief against officials or employees employed at SCI-Greene, such requests have been rendered moot by his transfer and it is recommended that same be dismissed.

4. Motion to Dismiss filed by The Medical Defendants

a. Medical Deliberate Indifference Claims - Counts III, IV, VII, and IX

Similar to Defendant Santos's arguments, the Medical Defendants argue that the exhibits attached to Mr. Brown's Amended Complaint, reflect that at all relevant times, Mr. Brown has been provided appropriate medical care for his prostate cancer, including pain management, and that Mr. Brown's claims amount to nothing more than his disagreement with the treatment he has been provided and the recommendations of his doctors.

At this early stage of the litigation, and accepting Mr. Brown's allegations as true, it cannot be determined whether the Medical Defendants deliberately disregarded an excessive risk to Mr. Brown's health or safety. Without evaluating the underlying merits of the claim, but noting the deference traditionally afforded to pro se plaintiffs, and after a painstaking review of the Amended Complaint, the Court finds that Mr. Brown has pleaded sufficient facts against the following Medical Defendants on his claims of deliberate indifference to his serious medical needs and recommends that the claims in Counts III, IV, VII, and IX be allowed to proceed against the following Medical Defendants: Correct Care Solutions, ¹⁷ Dr. Alpert, Natalie Austin, Jay Cowan, Byunghak Jin, Dr. Carl Keldie, Dr. Malhi, Dr. Miceli, Dr. Park, Darla Cowden, Mike Hice, S. Liberatore, and Elon Mwaura.

17 Mr. Brown appears to be claiming that Correct Care Solutions instituted cost-saving policies and practices regarding the delay or denial of requests for medical treatment and that the individual Medical Defendants knowingly acquiescence in the systemic denial of medical care for cost-saving reasons.

b. Retaliation (Counts VIII and XII)

The same analysis applies to the retaliation claims against the Medical Defendants as that applied to the retaliation claims against Defendant Santos and the Commonwealth Defendants. See supra. Therefore, it is recommended that the retaliation claims of Counts VIII and XII of the Amended Complaint also be dismissed against the Medical Defendants.

c. Conspiracy

The same analysis applies to any conspiracy claims against the Medical Defendants as that applied to the conspiracy claims against Defendant Santos and the Commonwealth Defendants. See supra. Therefore, it is recommended that any conspiracy claims in the Amended Complaint be dismissed against the Medical Defendants.

d. Negligence Per Se^[18] and Corporate Negligence (Counts I and XIV)

[18] The Court notes that the Medical Defendants are correct in their position that “negligence per se” is not a cause of action, but rather is a method of proving a claim of negligence.

Pennsylvania law requires that a certificate of merit accompany a claim for professional liability against designated licensed professions, including health care providers, unless expert testimony is unnecessary for the prosecution of the claim. See Pa. R. Civ. P. 1042.3(a)(3). Mr. Brown asserts that expert testimony is not necessary in this case. (ECF No. 194). The Court finds that Mr. Brown's argument is without merit.

Expert testimony generally is necessary to support malpractice claims against a medical provider whose care is alleged to have deviated from the acceptable professional standard. Because the negligence of a medical provider “encompasses matters not within the ordinary knowledge and experience of laypersons, a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.” Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003). There is a very narrow exception to the requirement of expert testimony “where the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even non-professional persons.” Id. (quoting Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997)).

The Court finds that Mr. Brown's case is not the type of case that is so simple or the lack of care so obvious as to fall within the narrow exception to the requirement of expert testimony. Mr. Brown, therefore, is required to file certificates of merits attesting that an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care provided by the Medical Defendants fell outside acceptable professional standards and that such conduct was a cause in bringing about Mr. Brown's harm. Because Mr. Brown has failed to do so, it is recommended that Counts I and XIV be dismissed.

e. Intentional Infliction of Emotional Distress (Count VI)

The same analysis applies to the intentional infliction of emotional distress claims against the Medical Defendants as that applied to the intentional infliction of emotional distress claims against Defendant Santos. See supra. Therefore, it is recommended that the intentional infliction of emotional distress claim of Count VI of the Amended Complaint, though extremely tenuous, proceed against the Medical Defendants.

F. Leave to Amend

The Court must allow amendment by the plaintiff in a civil rights case brought under § 1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile). The undersigned is cognizant of these holdings, but finds that allowing for amendment by Mr. Brown would be futile.

Defendants' motions to dismiss the Amended Complaint placed Mr. Brown on notice of the deficiencies in his complaint. Moreover, Mr. Brown has been repeatedly advised by the Court that the Amended Complaint must conform to the Court's prior Orders and the Federal Rules of Civil Procedure. Yet, Mr. Brown continues to fail to comply with these instructions. This case was filed in 2016 and has yet to move beyond the motion to dismiss stage. Mr. Brown has raised serious allegations and the Court is endeavoring to expedite this matter as these allegations need to be substantively addressed.

III. CONCLUSION

For the reasons stated above, it is respectfully recommended that the motions to strike/ motions to dismiss be granted in part and denied in part as follows:

1. The Motions to Strike be granted as to Counts II, V, and XIII and denied as to the remaining counts in the Amended Complaint;

2. The Motion for Summary Judgment filed by Defendant Santos be denied without prejudice to refiling same after discovery has been completed;

3. The Motion to Dismiss filed by Defendant Santos be granted as to Counts VIII and XII and denied as Counts III, IV, VI, VII, IX, X, and XI.

4. The Motion to Dismiss filed by the Commonwealth Defendants be granted as to Counts VIII and XII and denied as to Counts III, IV, VI, VII, IX, X, and XI.

5. The following Commonwealth Defendants are dismissed based on lack of personal involvement: Governor Tom Wolf, Secretary John E. Wetzel, Deputy Secretary Burns, Rhonda A. House, Tracey Shawley, and Dorina Varner.

6. The Motion to Dismiss filed by the Medical Defendants be granted as to Counts I, VIII, XII, and XIV and denied as to Counts III, IV, VI, VII, IX, X, and XI.

It is further recommended that any claims in the Amended Complaint sounding in civil conspiracy be dismissed and that any request for injunctive relief related to claims arising out of SCI-Greene be denied as moot.

It is further recommended that Plaintiff not be granted leave to amend as further amendment would be futile.

In summary, it is recommended that only the following claims remain in this lawsuit: (i) Deliberate Indifference to Medical Needs set forth in Counts III, IV, VII, IX, X, and XI of the Amended Complaint; and (ii) Intentional Infliction of Emotional Distress set forth in Count VI of the Amended Complaint. It is further recommended that these claims shall proceed against only the following: (i) Defendant Santos, (ii) the Commonwealth Defendants specifically identified on Page 42 of this Report and Recommendation, and (iii) the Medical Defendants specifically identified on Page 48 of this Report and Recommendation. All other defendants, both served and not served, should be dismissed.

Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Mr. Brown, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by March 8, 2021, and Defendants, because they are electronically registered parties, must file objections, if any, by March 5, 2021. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).