Opinion
Civil No. 3:17-CV-491
03-01-2019
IRVING MURRAY, Plaintiff, v. JOHN E. WETZEL, et al. Defendants.
(Judge Rambo)
( ) REPORT AND RECOMMENDATION
I. Introduction
This is an action filed by the pro se plaintiff, Irving Murray, who was formerly incarcerated in the Pennsylvania Department of Corrections ("DOC") at the State Correctional Institution at Mahanoy. Murray brings his claims pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his First and Eighth Amendment rights when they denied him adequate treatment for his Hepatitis C, failed to accommodate his need for a top bunk, and retaliated against him for filing grievances.
Several defendants in this case have now filed a motion to dismiss, or in the alternative, summary judgment. Defendants Cowan, Palmigiano, and Miller contend that Murray's claims against them are unexhausted, and that his complaint fails to sufficiently allege First and Eighth Amendment violations. For the reasons that follow, we will recommend that the defendants' motion be granted in part and denied in part.
The defendants filed the instant motion as a motion to dismiss, or alternatively, as a motion for summary judgment. (Doc. 144). Ordinarily the court should consider converting the motion to dismiss into a motion for summary judgment if it considers matters outside the pleadings. Pension Benefit Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). In this case, however, as we construe this motion, the defendants' challenge the legal sufficiency of the plaintiff's constitutional claims based solely upon the sufficiency of the pleadings. Therefore, the only extraneous matters that we are asked to consider are Murray's past grievances, which are relevant to the defendants' claims that Murray has not fully and properly exhausted his administrative grievances before proceeding to federal court as he is required to do by law. Because the parties each rely on the exhibits attached to the plaintiff's complaint and the plaintiff's grievance records attached to the defendants' motion, (Doc. 1-1, Doc. 145-1), we will treat the instant motion as a motion to dismiss, considering only the complaint, documents attached thereto, and "undisputedly authentic document[s]" that the defendants attach to their motion if the plaintiff's claims are based on those documents. Id. This approach is in accord with settled case ;law which recognizes that: "Given that the exhaustion issue turns on the indisputably authentic documents related to [the inmate's]s grievances, we . . . may also consider these without converting it to a motion for summary judgment." Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004)
II. Background
Irving Murray was incarcerated at SCI Mahanoy in October 2016 after he violated his parole. (Doc. 1, at 15). On October 25, Murray was moved from the Restricted Housing Unit ("RHU") to general population, and claims he was told to occupy the top bunk in his cell. (Id., at 16). According to Murray, when he asked the officer on duty if he could be assigned to the bottom bunk because of his epilepsy and fall precautions, he was told that he had no medical restrictions in his file. (Id.) The next day, the plaintiff experienced a sleeping seizure, during which he fell out of the top bunk and was injured. (Id.) Murray claims that he was not given proper treatment for his injuries, even though the grievances attached to his complaint indicate that he was seen the same day and given x-rays and Ibuprofen for the pain. (Doc. 1-1, at 47). Murray further alleged that he was subjected to retaliation after filing grievances about his housing and bunk concerns. (Doc. 1, at 19).
In addition to his claim concerning his fall and subsequent injuries, Murray also alleges that he had Hepatitis C, and that the defendants failed to treat his condition. Fairly construed, Murray's complaint asserts that the DOC had access to new medications to treat Hepatitis C, but that the prison's policy was to monitor inmates whose conditions were not as severe as others. (Id., at 21-22). Murray claims that he repeatedly requested testing, liver biopsies, and anti-viral medications, but was denied these treatments in favor of a protocol to "monitor" inmates' conditions. (Id., at 27-28). He contends that the defendants chose to monitor inmates rather than treat them because of the cost of the medications used to treat Hepatitis C. (Id., at 29). Murray filed several grievances about his treatment, but only appealed one grievance to final review, which was denied.
Finally, scattered throughout the plaintiff's complaint are allegations that the defendants retaliated against him for filing grievances. He claims that certain correctional defendants retaliated against him after he filed a grievance about the fall from his bunk. (Id., at 19). Murray alleges that these defendants moved him to a new unit, effectively denying him mental health programming, and that he was warned by the defendants to "drop the grievances." (Id.) Additionally, Murray also asserts that some of the defendants falsified his medical records in order to deny him treatment. (Id., at 29).
Murray initiated this action on March 20, 2017. (Doc. 1). His complaint contains allegations against twenty-two defendants, including correctional and medical staff, some of whom have been dismissed from this action. On April 11, the plaintiff filed a motion for a preliminary injunction, which was denied by this court on January 10, 2018. (Docs. 13, 109). Subsequently, on March 29, the moving defendants filed the instant motion to dismiss. (Doc. 144). The motion has been fully briefed and is ripe for resolution. (Docs. 145, 214).
III. Discussion
A. Standard of Review - Motion to Dismiss
The defendants have moved to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "failure to state a claim upon which relief can be granted." With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S. Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
Two years after Fowler, the Third Circuit further observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint
satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. (1955)). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.'"Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S. Ct. at 1947. 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. Finally, "where 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.Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8(a).
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
B. With One Exception , The Defendants' Motion to Dismiss Should Be Granted.
In the instant case, Murray alleges that the defendants violated his First Amendment rights when they retaliated against him for filing grievances, and when they falsified his medical records. Additionally, Murray brings claims under the Eighth Amendment, alleging that the defendants were deliberately indifferent to his Hepatitis C and failed to assign him to a top bunk, knowing that he had epileptic seizures.
For their part, the defendants first argue that the plaintiff's claims have not been properly exhausted through the prison grievance system. Moreover, they contend that the plaintiff 's complaint, on its face, failed to state Eighth Amendment claims against them due to the lack of personal involvement in any wrongdoing by the defendants and the fact that this pleading reveals that Murray was receiving adequate medical treatment. We will address each of the defendants' arguments in turn.
(1)Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act ("PLRA"), a prisoner must pursue all avenues of relief available within a prison's grievance system before bringing a federal civil rights action concerning prison conditions. 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement is mandatory. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that the exhaustion requirement of the PLRA applies to grievance procedures "regardless of the relief offered through administrative procedures"); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). Moreover, "it is beyond the power of [any] court . . . to excuse compliance with the exhaustion requirement." Nyhuis, 204 F.3d at 73 (quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998)).
To exhaust administrative remedies, an inmate must comply with all applicable grievance procedures and rules. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). The PLRA requires not only technical exhaustion of administrative remedies, but also substantial compliance with procedural requirements. Id. at 227-32; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
An inmate's failure to comply with the exhaustion requirement prescribed by the PLRA is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216 (2007), and the burden of proving a failure to exhaust rests with the defendants, Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
The Pennsylvania Department of Corrections Inmate Grievance Policy provides for a three-step process that provides inmates with a means of seeking review of problems that may arise during the course of confinement. Pursuant to DC-ADM 804, after an attempt to resolve problems informally, an inmate may submit a written grievance to the institution's Grievance Coordinator for initial review. This must occur within 15 days after the events upon which the claims are based. "The text of the grievance must be legible, understandable, and presented in a courteous manner. The inmate must include a statement of the facts relevant to the claim. The statement of facts shall include the date, approximate time and location of the event(s) that gave rise to the grievance. The inmate shall identify individuals directly involved in the event(s)." DC-ADM 804, § 1(A)(11).
Within 15 days of an adverse decision by the Grievance Coordinator, an inmate may appeal to the Facility Manager of the institution. Thereafter, within 15 days of an adverse decision by the Facility Manager, the inmate may file a final appeal to the Secretary's Office of Inmate Grievances and Appeals. An appeal to final review cannot be completed unless an inmate complies with all established procedures. Thus, an inmate must exhaust all three levels of review and comply with all procedural requirements of the grievance review process in order to fully exhaust an issue. See Booth, 206 F.3d at 293 n.2 (outlining Pennsylvania's grievance review process); Ingram v. SCI Camp Hill, 448 F. App'x 275, 279 (3d Cir. 2011) (same).
Of potential relevance to the instant action, "to the extent the identity of a defendant was 'a fact relevant to the claim,' Pennsylvania's prison grievance policy mandate[s] that the identification [of a defendant] be included in the inmate's statement of facts on the grievance form. And, . . . in the absence of any justifiable excuse, a Pennsylvania inmate's failure to properly identify a defendant constitute[s] a failure to properly exhaust his administrative remedies under the PLRA." Williams v. Pennsylvania Dep't of Corr., 146 F. App'x 554, 557 (3d Cir. 2005) (non- precedential). At the same time, although the policy requires inmates to "identify the individuals directly involved in the event(s)," the Supreme Court has observed that "nothing in the [PLRA] imposes a 'name all defendants' requirement." Jones v. Bock, 549 U.S. at 217.
Although Williams is a non-precedential opinion, it is nevertheless persuasive as a "paradigm of the legal analysis [the court] should . . . follow." Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 n.12 (3d Cir. 1996).
At the outset, we note that the defendants concede that Murray exhausted his administrative remedies with respect to his "top bunk" claim against Defendant Miller. However, as the defendants point out, Cowan and Palmigiano are not alleged to have taken any part in denying the plaintiff top bunk status, or in his care after he fell from the top bunk. Thus, to the extent that Murray attempts to bring this specific claim against Cowan and Palmigiano, the claim should be dismissed.
Moreover, a review of the grievance records attached to the complaint indicates that Murray did not file any grievances related to his claim that the defendants falsified his medical records. While it seems that Murray may have mentioned some of these complaints in several Inmate Requests to Staff Members, (Doc. 1-1, at), none of these complaints were ever mentioned in an initial grievance. Additionally, while there is a record of Grievance No. 664187, which mentions an allegation of retaliation by staff members for filing grievances (Id., at 69), this grievance was never appealed to final review. Thus, these claims appear to be unexhausted and should be dismissed.
However, in our view, it cannot be determined as a matter of law that Murray failed to exhaust his administrative remedies with respect to his grievance concerning his Hepatitis C treatment. The exhaustion requirement of the PLRA is one of "proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 84 (2006). Failure to comply with the procedural requirements of the available grievance system will result in a claim being deemed procedurally defaulted. Id., at 90; Spruill, 372 F.3d at 227-32. An inmate cannot circumvent the PLRA's exhaustion requirement by failing to properly exhaust the prison's administrative review process, or by waiting until such remedies are no longer available to him. Woodford, 548 U.S. at 95. However, if an inmate shows that the actions of prison officials directly caused the inmate's procedural default of a grievance, the inmate will not be held to strict compliance with the exhaustion requirement. Brown, 312 F.3d at 112-13. Likewise, "[w]here [the inmate] failed to receive even a response to the grievances addressing the ... incidents, much less a decision as to those grievances, the [administrative remedy] process was unavailable to him." Small v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013). Further, while issues regarding the availability of grievance procedures must be resolved by the court as a matter of law, it is conceded that these questions may often entail judicial fact-finding and cannot be determined on the pleadings alone. Id.
Proper exhaustion of a grievance means that a prisoner must refrain both from acting too soon or waiting until it is too late to act. Thus, "[a]n 'untimely or otherwise procedurally defective administrative grievance or appeal' does not satisfy the mandatory exhaustion requirement of the PLRA." Barrick v. Prison Health Sys./Med., 335 F. App'x 153, 155 (3d Cir. 2009) (internal citations omitted). Similarly, the procedural default component of the PLRA's proper exhaustion requirement does not permit "the filing of a suit before administrative exhaustion, however late, has been completed." Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (citing Perez v. Wis. Dep't of Corr., 182 F.3d 532, 534-35 (7th Cir. 1999) (observing "Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit ")); Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) (holding that a prisoner may not fulfill the PLRA's exhaustion requirement by exhausting administrative remedies after filing her complaint in federal court). Accord Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997).
In this case, we cannot conclude as a matter of law that Murray failed to exhaust his administrative remedies with respect to Grievance No. 651442, the grievance which complains about the lack of treatment he received for his Hepatitis C. (Doc. 1-1, at 7). Murray received an Initial Review Response to this grievance on November 29, 2016, informing him that his labs revealed that he was "not in imminent danger" and that "the final decision for Hepatitis treatment is not made by the staff at SCI-Mahanoy." (Id., at 83). Murray appealed this to the facility manager, who denied his appeal on December 14, 2016. (Doc. 145-1, at 28-30). This decision was appealed to SOIGA on December 15, and Murray received a notice that his appeal was being referred to the Bureau of Health Care Services on December 30. (Id., at 33). Five months later, on May 25, 2017, Murray received a Final Review Response, which denied his appeal. (Id., at 136).
The defendants contend that, because Murray filed his complaint in the district court on March 30, 2017—two months before he received the final review response but three months after Murray had been told that his concerns had simply been referred elsewhere—his grievance is unexhausted. However, the five-month delay between the DOC's referral of the grievance and the final review response in our view raises factual issues that preclude us from determining at this stage whether the grievance process was "available" to Murray. In particular, this delay may have reasonably led Murray to conclude that the grievance process was no longer available to him. Thus, dismissal of this claim on exhaustion grounds would be inappropriate. Accordingly, we recommend that the defendants' motion be denied with respect to the plaintiff's Hepatitis C treatment Eighth Amendment claims, but granted with respect to the plaintiff's Eighth Amendment bunk assignment claims lodged against defendants Cowen and Palmigiano, any First Amendment claim and any claims regarding the falsification of medical records.
It is worth noting that because Murray did receive a Final Review Response to his grievance on May 25, 2017, his grievance has already been properly exhausted. Thus, any attempts to dismiss this claim on exhaustion grounds at a later time would be futile, making nay victory on this issue for the defense, at best, a Pyrrhic victory..
(2)Eighth Amendment Claims
Murray brings two claims against the defendants under the Eighth Amendment. First, he contends that the defendants were deliberately indifferent to his serious medical needs when they failed to secure "bottom bunk status" for him due to his seizures, and with respect to the medical care he received after he fell from his top bunk. Additionally, the plaintiff asserts an Eighth Amendment claim against the defendants arising from the DOC's policy with respect to inmates with Hepatitis C, which called for the "monitoring," rather than treatment, of inmates whose condition was not as severe as others.
The plaintiff faces an exacting burden in advancing these Eighth Amendment claims against these defendants in their individual capacities. To sustain such a claim, he must plead facts that:
[M]eet two requirements: (1) "the deprivation alleged must be objectively, sufficiently serious;" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994) (quotations marks and citations omitted). In prison condition cases, "that state of mind is one of 'deliberate indifference' to inmate health or safety." Id. "Deliberate indifference" is a subjective standard under Farmer—the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
These principles apply with particular force to Eighth Amendment claims premised upon inadequate medical care. In the medical context, a constitutional violation under the Eighth Amendment occurs only when officials are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976). To establish a violation of his constitutional right to adequate medical care in accordance with this standard, an inmate is required to point to evidence that demonstrates (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). Deliberate indifference to a serious medical need involves the "unnecessary and wanton infliction of pain . . . . This is true whether the indifference is manifested by prison doctors in response to their prisoner's needs or by prison guards in intentionally denying or delaying access to medical care." Estelle, 429 U.S. at 104-05. Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, 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).
However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106. "Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Thus, such complaints fail as constitutional claims under § 1983 since "the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g., 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')." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997). "The key question . . . is whether defendants have provided plaintiff with some type of treatment, regardless of whether it is what plaintiff desires." Little v. Lycoming Cnty., 912 F.Supp. 809, 816 (M.D. Pa. 1996) (internal quotations and citations omitted).
Moreover, it is well-settled that "a defendant in a civil rights action must have personal involvement in the alleged wrongs." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)). A defendant cannot be held liable in a § 1983 action on the theory of respondeat superior. Id.; Flowers v. Phelps, 514 F. App'x 100, 102 (3d Cir. 2013). Instead, a plaintiff must allege that the defendant either directed or had actual knowledge of and acquiesced in the alleged conduct. See Atkinson v. Taylor, 316 F.3d 257, 270 (3d Cir. 2003) (citing Rode, 845 F.2d at 1207). A court may infer that the defendant had contemporaneous knowledge from the surrounding circumstances; however, "the knowledge must be actual, not constructive." Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995)).
(a)Murray's Eighth Amendment Claim Regarding His Placement in and Fall From the Top Bunk of His Cell Should Be Dismissed.
Turning to the allegations in the plaintiff's complaint, in our view, Murray has not sufficiently alleged a claim of deliberate indifference against the moving defendants regarding the incident concerning his fall from the top bunk. First, Murray does not name Cowan or Palmigiano either in his grievance relating to this incident or in his complaint with respect to this claim, nor do the facts suggest that these two defendants played any part in this incident at all. Moreover, while Murray claims that Miller knew of his seizures and still placed him on the top bunk rather than the bottom bunk, the responses to Murray's grievance indicate that Murray did have bottom bunk status, and that because his cell mate was occupying the bottom bunk, he voluntarily chose to take the top bunk. Indeed, the Initial Review Response to his grievance stated: "As far as bottom bunk status, you have been on the bottom bunk since you arrived at SCI-Mahanoy according to cell history. Upon receiving your grievance, I called your housing unit and verified that you are and have been bottom bunk status since arriving on FA housing unit." (Doc. 1-1, at 47). Additionally, the Final Review Response from SOIGA stated that there was "an active medical order for bottom bunk status while at Mahanoy." (Id., at 53). Thus, Murray's contention that Miller denied his request for bottom bunk status is unfounded.
In addition, we note that Murray alleges a single isolated failure by staff, in that he claims he fell one day after this erroneous bunk assignment. Thus, while this single decision may have been negligent given Murray's medical restrictions we cannot say that this alleged error, in violation, rose to the level of deliberate indifference to a serious medical risk.
Furthermore, these grievance responses, along with the plaintiff's own allegations, demonstrate that Murray was treated for his injuries after he fell from his top bunk. Murray was triaged by nursing on the day of his fall, and x-rays were ordered due to the plaintiff complaining of a sore shoulder. (Id., at 47). He was also given Ibuprofen for his pain, after which he was told that he would need to purchase any additional medication at the commissary. (Doc 1., at 18). Ultimately, the Bureau of Health Care Services found that Murray received adequate treatment. On this score, given that Miller ordered x-rays and pain medication after Murray's fall, we cannot say that Miller was deliberately indifferent to Murray's medical needs. Accordingly, we recommend that this claim be dismissed.
(b)Murray's Eighth Amendment Claim Concerning His Hepatitis C Treatment Should Not Be Dismissed.
Murray also brings a claim of deliberate indifference against the defendants for a failure to treat his Hepatitis C. He alleges that the DOC had a policy of "monitoring" inmates, rather than treating them, unless their symptoms presented as severe. He claims that the DOC's reason for doing so was because of the cost of the anti-viral drugs used to treat inmates with Hepatitis C. For their part, the defendants contend that Murray received adequate medical care by way of lab tests and monitoring. Further, they argue that the policy regarding the treatment of inmates with Hepatitis C was a DOC policy, and the defendants are not employees of the DOC. Finally, they assert that Murray has not alleged any personal involvement in his treatment by the moving defendants.
It is a stark medical reality of life in prison that ailments like Hepatitis C are chronic and endemic in certain components of the inmate population. This prison medical fact of life, in turn, inspires a legal truth: When considering Eighth Amendment claims, like those advanced by Murray, based upon an alleged failure to treat an inmate's Hepatitis C, we do not write upon a blank slate. Quite the contrary, numerous courts have considered the application of the Eighth Amendment in this specific legal-medical context.
Several guiding principles emerge from these cases. First, as a medical matter:
Hepatitis C is one of six identified hepatitis viruses-the others are A, B, D, E and G. All cause the liver to become inflamed, which interferes with its ability to function. Hepatitis C is generally considered to be among the most serious of these viruses. Over time, a hepatitis C infection, can lead to liver cancer, liver failure or cirrhosis, an irreversible and potentially fatal scarring of the liver.Lee v. Beard, No. 03-1026, 2008 WL 744736, *3 (M.D. Pa. March 18, 2008). Given the severity of its symptoms, and its potential for serious and fatal injuries to those afflicted by this disease, it is clear that Hepatitis C constitutes the type of "serious medical need" which triggers Eighth Amendment scrutiny in a corrections context. See, e.g., Henry v. Maue, No. 06-1439, 2008 WL 5188834, *3 (W.D. Pa, Dec. 10, 2008) (Hepatitis C constitutes a serious medical need); Henry v. Wilson, No. 06-1439, 2008 WL 131164, *4 (W.D. Pa. Jan. 9, 2008) (same); Christy v. Robinson, 216 F.Supp.2d 398, 413 (D.N.J. 2002) (same). Because Hepatitis C is a grave medical concern, and constitutes a serious medical need, it follows that a complaint which adequately alleges deliberate indifference by prison medical staff to an inmate's Hepatitis C cannot be summarily dismissed at the outset of a lawsuit. See Henry v. Wilson, 2008 WL 131164 (denying Rule 12(b)(6) motion relating to Eighth Amendment deliberate indifference claim concerning Hepatitis C treatment); Thomas v. Arias, No. 06-291, 2007 WL 210097 (E.D. Pa. Jan. 23, 2007) (same).
Yet, while such claims cannot be routinely disposed of as a matter of law on a motion to dismiss, the principles that guide analysis of Eighth Amendment medical claims generally apply with equal force to inmate medical claims premised on prison medical treatment of Hepatitis C. Thus, where it is undisputed as a factual matter that prison medical staff have been providing forms of treatment to an inmate, and the inmate's complaint in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's allegations may ultimately fail as a constitutional claim under § 1983. See, e.g., Hodge v. U.S. Department of Justice, 372 F. App'x. 264 (3d Cir. March 25, 2010) (affirming summary judgment on inmate Eighth Amendment claim relating to treatment of Hepatitis C); Palmer v. Carroll, 640 F.Supp.2d 542 (D. Del. 2009) (summary judgment in favor of defendants on inmate Eighth Amendment claim regarding Hepatitis C treatment); Moshier v. United States, No. 05-180, 2007 WL 1703536 (W.D. Pa. June 11, 2007) (same); Jordan v. Delaware, 433 F.Supp.2d 433 (D. Del. 2006) (same); Christy, 216 F.Supp.2d 398 (same). However, it is also clear that such claims are more appropriately addressed through a motion for summary judgment, where the court may consider matters beyond the pleadings.
In the past, when considering inmate Eighth Amendment claims brought by Pennsylvania state prisoners complaining about the Hepatitis C treatment afforded to them in prison, some courts had held in favor of defendants when the undisputed facts showed that the inmates were treated in accordance with the DOC's Hepatitis C treatment protocol, finding that compliance with this treatment protocol either rebuts any claim of deliberate indifference to serious medical needs, Henry v. Maue, 2008 WL 5188834, Lee, 2008 WL 744736; or concluding that prison officials who complied with this protocol were entitled to qualified immunity from damages. Josey v. Beard, No. 06-265, 2009 WL 1858250 (W.D. Pa. June 29, 2009).
Yet, while some courts have, in the past, at summary judgment considered compliance with the DOC's Hepatitis C treatment protocol as a potential defense to any Eighth Amendment claim, an intervening legal development now casts substantial doubt upon the degree of reliance which can be placed upon this protocol as a complete defense to federal civil rights liability. In Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL 4574646, at *13-14 (M.D. Pa. Aug. 31, 2016), this court indicated that the interim Hepatitis C treatment protocol adopted by the DOC violated the Eighth Amendment, stating that:
[T]here is a sufficient basis in the record to find that DOC's current protocol may well constitute deliberate indifference in that, by its own terms, it delays treatment until an inmate's liver is sufficiently cirrhotic that a gastroenterologist determines, at the end of a lengthy, multi-step evaluation procedure taking place over a long period of time, that inmate has esophageal varices. In the words of Dr. Noel, DOC's Chief of Clinical Services, the presence of these esophageal varices signifies that inmates have "pass[ed] ... into advanced disease, and ... are at risk for the varices rupturing and having a severe and critical bleed, because they're [sic] platelet counts are low, so they don't clot very well, and you could have a catastrophe." (Findings of Fact, supra, ¶ 52; Noel Test., Dec. 23, 2015, at 112:10-23). In the Court's view, the effect of the protocol is to delay administration of DAA medications until the inmate faces the imminent prospect of "catastrophic" rupture and bleeding out of the esophageal vessels. Additionally, by denying treatment until inmates have "advanced disease" as marked by esophageal varices, the interim protocol prolongs the suffering of those who have been diagnosed with chronic Hepatitis C and allows the progression of the disease to accelerate so that it presents a greater threat of cirrhosis, hepatocellular carcinoma, and death of the inmate with such disease.
The protocol put forth by the Hepatitis C Treatment Review Committee exposes inmates in the care of DOC to
these risks, despite knowing that the standard of care is to treat patients with chronic Hepatitis C with DAA medications such as Harvoni or Sovaldi, regardless of the stage of disease. The DOC Defendants' own expert, Dr. Jay Cowan, acknowledges that the standard of care is to treat every patient for whom treatment with direct-acting antiviral medications is not medically contraindicated, regardless of disease progression or status as an incarcerated person. (See Findings of Fact, supra, at ¶¶ 18-21). The interim protocol does not do that; instead it opts for a desultory monitoring of patients who are afflicted with chronic hepatitis C, with active treatment, as indicated above, being delayed until the disease has progressed to the point that scarring of the liver has turned to cirrhosis and liver malfunction. Given that the DOC Defendants' expert Dr. Cowan acknowledges that "[v]ery often, you can't predict the rate of progression" of the disease, (Findings of Fact, supra, ¶ 9; Cowan Test., Dec. 22, 2015 at 208:15-20), this monitoring approach leaves inmates vulnerable to a "substantial risk of deteriorating health and death." B.E. v. Teeter, No. C16-227-JCC, 2016 WL 3033500, at *5 (W.D. Wash. May 27, 2016).Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL 4574646, at *13-14 (M.D. Pa. Aug. 31, 2016) (footnote omitted). Indeed, based upon these findings the court subsequently entered a preliminary injunction, enjoining reliance upon this treatment protocol. See Abu-Jamal v. Wetzel, No. 3:16-CV-2000, 2017 WL 34700, at *20 (M.D. Pa. Jan. 3, 2017), appeal dismissed sub nom. Abu-Jamal v. Sec'y PA Dept. of Corr, No. 17-1125, 2017 WL 3123434 (3d Cir. Apr. 13, 2017), and appeal dismissed sub nom. Abu-Jamal v. Sec'y PA Dept. of Corr, No. 17-1156, 2017 WL 3160959 (3d Cir. Apr. 14, 2017).
Beyond the doubt cast upon the constitutionality of this agency treatment protocol by Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL 4574646, at *13-14 (M.D. Pa. Aug. 31, 2016), we are also constrained to note that resolution of the constitutionality of care decisions relating to treatment of Hepatitis C in a prison setting is often a fact-bound determination which is not subject to resolution on a motion to dismiss, where we are limited to a consideration of the pleadings alone. Thus, even in those cases where Eighth Amendment Hepatitis C treatment claims have been rejected, the courts' inquiry went beyond an assessment of the pleadings, to a consideration of the undisputed material facts of the case. In these instances, the resolution of the merits of the case awaited a properly documented motion for summary judgment. Compare Henry v. Wilson, No. 06-1439, 2008 WL 131164 (W.D. Pa. Jan. 9, 2008) (denying Rule 12(b)(6) motion relating to Eighth Amendment deliberate indifference claim concerning Hepatitis C treatment), with Henry v. Maue, No. 06-1439, 2008 WL 5188834 (W.D. Pa. Dec. 10, 2008) (granting summary judgment on same claim).
In short, given the development of the law in this field alleged compliance with the agency's Hepatitis C treatment protocol, standing alone, does not have the talismanic effect of compelling dismissal of any inmate's Eighth Amendment medical deliberate indifference claims on the pleadings. Instead, a myriad of factual considerations outside the pleadings must be taken into account in determining whether the care afforded to a prisoner was so inadequate that it constituted deliberate indifference to serious medical needs, or fell below generally acceptable standards of medical practice, and thus constituted malpractice.
In the instant case, Murray has alleged factual assertions claiming that he was denied medical care for his Hepatitis C due to the DOC's protocol of prioritizing inmates for treatment based on the severity of the inmate's condition. He claims that this prioritization was done because the anti-viral medications used to treat Hepatitis C are costly. Thus, fairly construed, Murray's complaint alleges that the defendants deliberately chose to monitor his condition, rather than treat it, even though they knew of the dangers that could come from delaying treatment of Hepatitis C, including liver damage and scarring, cirrhosis, and respiratory complications. Further, it is alleged that this delay in treatment was done for a non-medical reason—mainly, the cost of the treatment to the prison.
The defendants argue that they had no personal involvement in the decision to monitor Murray rather than treat him, and thus the Eighth Amendment claim should be dismissed. With respect to Palmigiano, we agree, as there are no factual allegations concerning her involvement with the plaintiff at all, let alone concerning his Hepatitis C treatment. However, Defendant Miller is specifically named in the plaintiff's grievance concerning his Hepatitis C treatment. Further, the DOC admitted that a "higher authority" or organization determines what type of treatment the inmates receive, (Doc. 1-1, at 83), and the plaintiff has alleged that Defendant Cowan is part of the Bureau of Health Care Hepatitis C Committee. In our view, at this stage Murray has sufficiently alleged the involvement of these two defendants with respect to his Eighth Amendment Claim. Accordingly, we recommend that the plaintiff be permitted to pursue this Eighth Amendment claim against Miller and Cowan.
C. The Plaintiff Should Be Permitted to Move Forward with His Claims for Monetary Damages Against the Defendants in Their Individual Capacities.
Finally, the plaintiff has filed a "motion for relief," in which he asks this court to grant judgment in his favor and award him compensatory and punitive damages against the defendants. (Doc. 161). While this court cannot grant plaintiff the immediate relief he requests at this stage in the litigation, we recommend that he be permitted to pursue these damages against the remaining defendants in their individual capacities.
Pursuant to the Eleventh Amendment, states, state agencies and state officials who are sued in their official capacity are generally immune from lawsuits in federal courts brought against them by citizens. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). Moreover, the plaintiff cannot bring a damages action against state officials in their official capacity since it is also well-settled that a state, a state agency, or a state official acting in an official capacity is not a "person" within the meaning of 42 U.S.C. § 1983, the principal federal civil rights statute. Will v. Michigan Dep't. of State Police, 491 U.S. 58, 71 (1989). In the instant case, Murray has brought his claims against the defendants in both their individual and official capacities. Thus, to the extent he seeks monetary damages against these defendants in their official capacities, these claims should be dismissed. See Owens-Ali v. Pennell, 672 F.Supp.2d 647, 652-53 (D. Del. 2009). However, this immunity does not apply to the claims for monetary damages against the defendants in their individual capacities. See Jones v. Culinary Manager II, 30 F.Supp.2d 491, 496 (E.D. Pa. 1998); Marrow v. Pennsylvania, 2018 WL 4963982, at *14 (M.D. Pa. Oct. 15, 2018) (Rambo, J.).
Additionally, we recommend that the plaintiff be permitted at this stage to pursue his claims for punitive damages against the defendants. The Supreme Court has held that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). On this score, courts in this circuit have allowed claims for punitive damages to survive where a plaintiff has alleged a claim of deliberate indifference under the Eighth Amendment. See e.g., Tenon v. Dreibelbis, 190 F.Supp.3d 412, 418 (M.D. Pa. 2016) (permitting a punitive damages claim to survive a motion to dismiss because "the standard to show 'deliberate indifference' is substantially the same as the standard to show 'reckless or callous indifference'"); Jackson v. Fauver, 334 F.Supp.2d 697, 739-40 (D.N.J. 2004) (permitting a punitive damages claim to survive summary judgment where the plaintiffs had sufficiently alleged a claim for deliberate indifference against prison medical officials under the Eighth Amendment). Thus, in our view, because Murray has sufficiently alleged a claim of deliberate indifference regarding his Hepatitis C treatment, this court should not dismiss the plaintiff's claim for punitive damages at this early juncture in this litigation.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion to dismiss the plaintiff's complaint (Doc. 144) be GRANTED IN PART AND DENIED IN PART as follows: IT IS RECOMMEND THAT the motion be DENIED with respect to the plaintiff's Eighth Amendment claim against Defendants Miller and Cowan for the failure to treat his Hepatitis C, and that the motion be GRANTED in all other respects. IT IS FURTHER RECOMMENDED THAT the plaintiff's claims of First Amendment retaliation and falsification of medical records be dismissed with prejudice for his failure to exhaust his administrative remedies. IT IS FURTHER RECOMMENDED that the plaintiff's motion for relief, (Do. 161) be GRANTED, in part, but only insofar as the plaintiff is not precluded from seeking damages at the outset of this lawsuit
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 1st day of March 2019.
S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge