Opinion
Case No. 1:18-cv-00228 (Erie)
07-25-2019
DAVID JORDAN, Plaintiff v. LIEUTENANT MURIN, et al., Defendants
Susan Paradise Baxter United States District Judge REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS
[ECF NOS. 38, 44]
I. Recommendation
It is respectfully recommended that the DOC Defendants' motion to dismiss [ECF No. 44] be granted in part and denied in part. It is further recommended that the Medical Defendants' motion to dismiss [ECF No. 38] be denied.
The DOC Defendants in this action are Facility Chaplaincy Program Director Joseph Kosarek, Corrections Officer Zachary Lutz, Licensed Practical Nurse Tammy LaRoche, Lieutenant Jerimy Cochran, Lieutenant Thomas Murin, Corrections Officer Robert Palmer, Registered Nurse Jana Jordan, Corrections Officer Jordan Drayer, Corrections Officer Adam Baumcratz and former Corrections Officer Craig Griffin.
The Medical Defendants in this action are Defendants Alpert, Eslenberg, and McKeel. Defendant Adelekan has not been served, and has not moved for dismissal.
II. Report A. Introduction
Plaintiff David Jordan, a prisoner in the custody of the Pennsylvania Department of Corrections ("DOC"), filed a complaint pursuant to 42 U.S.C. § 1983 for alleged violations of his civil rights under the First and Eighth Amendments to the United States Constitution. ECF No. 3. Presently pending before the Court are (1) DOC Defendants' motion to dismiss [ECF No. 44], and (2) the Medical Defendants' motion to dismiss [ECF No. 38], both of which were filed pursuant to Federal Rule of Civil Procedure 12(b)(6). B. Standard of Review
i. Motion to Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
ii. Pro Se Parties
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Dep't of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Here, because Plaintiff is proceeding pro se, this Court evaluates Plaintiff's Complaint under this more generous standard. C. Material Facts Alleged in Plaintiff's Complaint
On May 1, 2016, at 8:25 am, approximately three months after Plaintiff filed a lawsuit against Defendant Drayer, Plaintiff was assaulted by several prison guards. ECF No. 3, ¶ 21-31; 42. The incident began when Defendants Baumcratz and Griffin arrived at Plaintiff's cell to perform a "security cell inspection." Id. at ¶ 21. They handcuffed Plaintiff, and then kicked around his legal papers while Defendant Griffin told Plaintiff to "stop filing shit." Id. at ¶ 21-22. Defendant Drayer, who smelled like liquor, then arrived on the scene. Id. at ¶ 25. He and Defendant Baumcratz then attacked Plaintiff, first by pushing Plaintiff into a "blindspot" out of view of the security cameras, and then by attempting to pull Plaintiff's shoulder out of its socket, punching him several times in the back of his head, slamming his head against the wall, choking him, twisting his fingers, and then slamming him on the ground. Id. at ¶¶ 26-28. Defendants Cochran, Murin, Lutz, Griffin, and Palmer were all present but failed to intervene. Id. at ¶ 29. Together, those Defendants then "yanked" a tether which was tied to Plaintiff's handcuffs and dragged him backwards a distance of ten feet. Id. at ¶ 35-36. As a result of the incident, Plaintiff suffered extreme pain in his wrists, lower back, knees, and neck, as well as a permanent loss of feeling in his left thumb, and several issues with his cervical spine.
Following the incident, at 8:58 am, Plaintiff lay on the floor of his cell, moaning and crying out for medical assistance. Id. at ¶ 45. Defendant Nurse Jordan arrived and left immediately after Plaintiff told her of the pain in his back, neck, fingers, wrist, and head. Id. at ¶ 46-47. She did not physically examine him or provide any medical assistance. Id. at ¶ 53.
From 9:15 am to 11:37 am, Plaintiff told Defendants Kosarek, Cochran, and LaRoche that he had been attacked by guards and needed medical attention. Id. at ¶ 56-57; 64-66. No medical assistance was provided. Id.
Plaintiff submitted a "sick call request" at an unspecified time on May 1, 2016. Id. at ¶ 69. On May 2, 2016, Defendants McKeel and Adelekan arrived at Plaintiff's cell but refused to physically examine his injuries. Id. at ¶ 71. Defendant Adelekan only permitted Plaintiff to complain about the single subject of his "sick call" and thus would only discuss the extreme pain in Plaintiff's neck and lower back. Id. at ¶ 73-74. The visit lasted 30 seconds. Id. at ¶ 71.
Plaintiff submitted an additional sick call request at an unspecified time. Id. at ¶ 90. On May 5, 2016, Defendant McKeel arrived at Plaintiff's cell but refused to physically examine him or discuss more than one medical issue, despite being aware of the other issues from which Plaintiff was suffering. Id. The visit also lasted 30 seconds. Id.
On May 5, 2016, Plaintiff submitted two additional sick call requests. Id. at ¶ 111-112. Defendant Alpert responded to the request that day, but refused to physically examine Plaintiff. Id. at ¶ 114. This visit again lasted 30 seconds. Id. On May 10, 2016, an x-ray was performed. Id. at ¶ 123.
On May 15, 2016, Plaintiff submitted another sick call request. Id. at 121. It is unclear from Plaintiff's Complaint whether or not Defendant McKeel responded to this request on May 18, 2016. Id. On May 28, 2016, Defendant Dr. Eslenberg ignored Plaintiff's yells for medical attention. Id. at ¶ 136-137.
In Count One of his seven-count complaint, Plaintiff asserts a claim against Defendants Dyer, Baumcratz, Griffin, Cochran, Murin, Lutz, and Palmer for excessive force in violation of the Eighth Amendment. Id. at ¶ 144-55. In Count Two, Plaintiff asserts a claim against Defendants Griffin, Baumcratz, Drayer, and McKeel for retaliation in violation of the First Amendment. Id. at ¶ 156-67. In Count Three, Plaintiff asserts a claim against Defendants Cochran, Griffin, Lutz, and Palmer for failure to intervene in violation of the Eighth Amendment. Id. at ¶ 168-70. In Counts Four, Five, Six, and Seven, Plaintiff asserts a claim against Defendants Cochran, LaRoche, Kosarek, McKeel, Alpert, Eslenberg, and Jordan for deliberate indifference to serious medical needs in violation of the Eighth Amendment. Id. at ¶ 171-87.
The DOC Defendants assert that Plaintiff's claims against them should be dismissed as barred by the statute of limitations [ECF No. 45] while the Medical Defendants argue that the allegations of the Complaint are insufficient to state a claim against them. ECF No. 39. D. Analysis
i. DOC Defendants' Motion
The DOC Defendants argue that the claims against them should be dismissed because the statute of limitations expired before Plaintiff filed the present lawsuit. ECF No. 45. Plaintiff responds by arguing that the statute of limitations was tolled while he exhausted his administrative remedies.
Federal statutory law does not specify a statute of limitations for § 1983 actions so federal courts must look to the statute of limitations applicable to analogous state law causes of action. Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 457 (3d Cir.1996). The most analogous cause of action under Pennsylvania law has been determined to be a tort action for recovery of damages for personal injuries. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The limitations period for personal injury claims in Pennsylvania is two years. See 42 Pa.C.S. § 5524. A cause of action accrues for statute of limitations purposes when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).
In this case, it is undisputed that Plaintiff's injuries occurred no later than May 28, 2016. Because Plaintiff filed suit on August 16, 2018, approximately two years and three months after the date of his injuries, the DOC Defendants assert that his claims are time-barred. Plaintiff responds that equitable tolling principles apply in this case. The Court agrees with Plaintiff that the accrual of his claims was equitably tolled for a period of time sufficient to preserve his claims from dismissal based upon the statute of limitation.
The Prison Litigation Reform Act includes an administrative exhaustion requirement; thus, it has been held that equitable tolling of any statute of limitations is appropriate while an inmate exhausts his administrative remedies. See Adderly v. Eidem, 2016 WL 5661538, at *8 (M.D. Pa. Aug. 18, 2016) (listing cases from other circuits courts). The doctrine of equitable tolling has also been applied by the Third Circuit in non-precedential opinions. See Thompson v. Pitkins, 514 F. Appx. 88, 90 (3d Cir. 2013) (holding that "[b]ecause exhaustion of prison administrative remedies is mandatory under the Prison Litigation Reform Act, the statute of limitations applicable to § 1983 actions may be tolled while a prisoner exhausts"); see also Carter v. Pa. Dep't of Corrections, 2008 WL 5250433, at *11 (E.D. Pa. Dec. 17, 2008) (holding that "[t]he statute of limitations begins to run only when [a] plaintiff has exhausted his administrative remedies under the PLRA").
The doctrine of equitable tolling applies to this case. See Carter, 2008 WL 5250433, at *11. Plaintiff filed his initial grievance on May 6, 2016, and this grievance was finally denied on March 14, 2017. Plaintiff is not deemed to have exhausted his administrative remedies until this final decision on his grievance. See Fennell v. Cambria County Prison, 607 Fed. Appx. 145, 149 (3d Cir. 2015) ("proper exhaustion" means a prisoner's completion of the administrative review process). Accordingly, the accrual of Plaintiff's claims against Defendants Drayer, Murin, Griffin, Lutz, Baumcratz, and Cochran was tolled for a period of ten months while Plaintiff pursued the claims through the grievance process. Based upon this equitable tolling, Plaintiff commenced this action well-within the two-year statute of limitations.
Plaintiff's claims against Defendants Jordan, Kosarek, and LaRoche are also saved by the doctrine of equitable tolling during the grievance process, which lasted approximately five months. Plaintiff filed a flurry of grievances against these Defendants on May 2, May 4, and May 6, 2016. All of these grievances were finally denied on October 6, 2016. Thus, the accrual of the claims against these Defendants and the associated statute of limitations was tolled for approximately five months. Because Plaintiff's claims against Defendants Jordan, Kosarek, and LaRoche were filed only two years and three months after the events which caused his injury, his claims are not time-barred.
Defendant Palmer has also moved for the dismissal of the claims against him on statute of limitations grounds. See ECF Nos. 44, 45. Equitable tolling does not apply to preserve these claims as Plaintiff has not asserted that he filed a grievance against Defendant Palmer. See ECF No. 3. Further, the expiration of the two-year statute of limitations as to claims against Defendant Palmer appears on the face of the Complaint and the docket. Accordingly, Defendant Palmer's motion to dismiss should be granted. See Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (holding that litigants may raise a statute of limitations defense by way of a Rule 12(b)(6) motion when the complaint on its face establishes noncompliance with the limitations period).
Accordingly, it is recommended that the DOC Defendants' motion to dismiss be denied as it pertains to Defendants Jordan, Korasek, LaRoche, Drayer, Murin, Griffin, Lutz, Baumcratz, and Cochran, and granted as it pertains to Defendant Palmer.
ii. Medical Defendants' Motion
The Medical Defendants argue that Plaintiff has failed to state a claim under the First and Eighth Amendments. The Court will first address Plaintiff's Eighth Amendment claim.
1. Eighth Amendment: Deliberate Indifference to Serious Medical Needs
In his Complaint, Plaintiff alleges that each of the Medical Defendants was deliberately indifferent to his serious medical needs by failing to provide him access to timely medical attention and by refusing to physically examine him. The Medical Defendants contend that Plaintiff has received constitutionally appropriate care and that Plaintiff's allegations amount to a mere disagreement regarding the adequacy or propriety of a particular course of treatment. See ECF No. 39. (citing White v. Napoleon, 897 F.2d 103 (3d. Cir. 1990)). In support, they point to the medical records that Plaintiff attached to his Complaint to demonstrate that Plaintiff was regularly examined but caused problems for staff as they responded to his sick call requests.
To establish a violation of his constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of resultant pain and risk of permanent injury." White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
It is well-settled that "an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim." Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional claims because "the exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) ("[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.")).
Likewise, "prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). Thus, "courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care." Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018); see also Wisniewski v. Frommer, 751 Fed. Appx. 192, 195-96 (3d Cir. Oct. 3, 2018) (noting that "there is a critical distinction 'between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment'")
In the present case, Plaintiff has alleged facts sufficient to state an Eighth Amendment claim against each of the Medical Defendants based upon his or her individual personal involvement in providing care that was deliberately indifferent to Plaintiff's serious medical needs. Plaintiff's allegation of a near-total lack of treatment from May 1, the date of the assault, to May 10, when an x-ray was performed, plausibly supports a claim of deliberate indifference to serious medical needs. During the intervening nine days, Plaintiff has alleged that he was never physically evaluated despite complaints of extreme pain in his wrists, lower back, knees, and neck, as well numbness in his left thumb. See Wisniewski, 751 Fed. Appx. 192, 195-96 ("there is a critical distinction between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment."). While visual examinations allegedly lasting thirty seconds were performed numerous times at the cell door, a reasonable inference can be drawn from the facts alleged that the cursory examinations alleged by Plaintiff were so inadequate to assess Plaintiff's condition as to rise to the level of deliberate indifference. For a disagreement over medical judgment to exist, there must first be some exercise that judgment. Here, Plaintiff alleges that nine days passed before diagnostic tests or meaningful treatment was undertaken. Accordingly, based upon the facts alleged in Plaintiff's complaint, and drawing all reasonable inferences in favor of Plaintiff, it is recommended that the Medical Defendants' motion be denied as to this claim.
To the extent that the Medical Defendants rely on the medical notes that Plaintiff has attached to his Complaint to establish constitutionally appropriate medical care, at this stage of the proceedings, the Court must accepted as true Plaintiff's allegation that those medical notes were falsified and do not accurately record the care actually provided.
2. First Amendment: Retaliation
Plaintiff alleged that Defendant McKeel retaliated against him by falsifying the medical reports related to the events that occurred following the assault. Defendant McKeel responds by arguing that the facts alleged in the Complaint fail to state a cognizable retaliation claim.
In order to establish illegal retaliation for engaging in protected activity, a plaintiff must allege that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). An "adverse action" is one that would "deter a person of ordinary firmness" from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). A plaintiff must also allege a causal link between protected conduct and the adverse action taken against him. A causal link is established when the protected conduct "was a substantial or motivating factor in the decision to discipline [a plaintiff]." Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002).
In the present case, Plaintiff has alleged facts sufficient to state a First Amendment claim against the Defendant McKeel based upon her alleged falsification of medical records in retaliation for his filing of grievances related to the assault. First, Plaintiff has sufficiently alleged that he engaged in protected conduct by filing a grievance. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (the filing of a grievance constitutes protected conduct). Plaintiff has also sufficiently alleged that the retaliation constituted an adverse action. Falsifying medical records could plausibly deter a plaintiff of ordinary firmness from filing a grievance because doing so would protect a defendant from subsequent allegations of insufficient medical care, leaving the injured plaintiff without a remedy. Accordingly, it is recommended that Defendant McKeel's motion to dismiss Count Two, the retaliation claim, against her be denied. E. Leave to Amend
In recommending that the retaliation claim survive the motion to dismiss, the undersigned is relying upon Plaintiff's allegations regarding the filing of grievances as protected activity concerning which a causal relationship plausibly exists relative to the alleged falsification of medical records. The undersigned notes that the Complaint alleges that McKeel's falsification of medical records was also in retaliation for his filing of the lawsuit against Defendant Drayer, more than three months earlier. As to this protected activity, the Complaint does not allege that Defendant McKeel was even aware of this lawsuit or any other facts upon which a causal relationship to the retaliatory conduct can be inferred.
Because it is apparent from the face of the Complaint and the docket that Plaintiff's claim against Defendant Palmer was filed outside of the statute of limitations, it is recommended that leave to amend this claim as to Defendant Palmer be denied as futile. F. Conclusion
It is respectfully recommended that the DOC Defendants' motion to dismiss [ECF No. 44] be DENIED as to Kosarek, Lutz, LaRoche, Cochran, Murin, Jordan, Drayer, Baumcratz and Griffin. It is further recommended that DOC Defendants' motion be GRANTED as to Defendant Palmer and that the claims against Defendant Palmer be dismissed with prejudice.
It is also respectfully recommended that the motion to dismiss [ECF No. 38] filed on behalf of Medical Defendants Alpert, Eslenberg, and McKeel be DENIED. G. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE Entered this 25th day of July, 2019.