Opinion
3:22-cv-224
07-19-2023
KEITH ALEXANDER, Plaintiff, v. CASEY THORNLEY, et al., Defendant
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
Pending before the Court are three Motions to Dismiss from (1) Defendants Casey Thornley,Patrick Nagle, Deanna Dellatore, Anne White, Muhammad Naji, and Wellpath LLC (together, the “Houtzdale Medical Defendants”) (ECF No. 21); (2) Defendant Terri Sechrengost (ECF No. 29); and (3) Defendant Stephen Schleicher(ECF No. 56). For the reasons that follow, it is respectfully recommended that the Houtzdale Medical Defendants' motion be granted in part and denied in part, that Defendant Sechrengost's motion be granted in part and denied in part, and that Defendant Schleicher's motion to dismiss should be granted in part and denied in part.
A paragraph in the Complaint indicates that Casey Thornley has changed her last name to “James” after getting married. (ECF No. 4 ¶ 23.) Because she is identified as Casey “Thornley” in the caption, the Court will identify her as “Defendant Thornley”.
Defendant Schleicher is incorrectly identified in the caption and the Complaint as “Schleider.” (ECF No. 48 at 1.) The Court will refer to him as “Defendant Schleicher.”
II. Report
A. Procedural Background
Plaintiff, Keith Alexander (“Alexander”), is a state prisoner who is currently housed at SCI Houtzdale. Alexander commenced this action pro se on December 1, 2022 by filing his complaint (ECF No. 4) and a motion for a preliminary injunction (ECF No. 5).He alleges that the Houtzdale Medical Defendants, Defendant Sechrengost, Defendant Schleicher, and John and Jane Doe Defendants failed to properly treat his rash-like condition, which began as early as 2017. (ECF No. 4.) Alexander alleges that the prolonged use of corticosteroid cream to treat his rash caused other severe issues including “itching, trouble breathing, dark urine, loss of memory and energy, a change in eyesight and balance, and a change in skin color.” (Id.) Alexander brings an Eighth Amendment denial of medical care claim (Count I) against the Houtzdale Medical Defendants (excluding Wellpath LLC), Defendant Sechrengost, and John and Jane Doe Defendants, a negligence/medical malpractice claim against the Houtzdale Medical Defendants (excluding Wellpath LLC), Defendant Sechrengost, Defendant Schleicher, and John and Jane Doe Defendants (Count II), and a Monell claim as to Defendant Wellpath LLC (Count III). (Id.)
Alexander's motion for preliminary injunction was denied by the Court in a Memorandum Order issued on July 5, 2023 (ECF 67.)
Alexander has not asserted a claim against Defendant Schleicher in Count I as he does not appear in the relevant factual allegations. (ECF No. 4 ¶¶ 28-34.)
Each set of named Defendants-the Houtzdale Medical Defendants, Defendant Sechrengost, and Defendant Schleicher-have filed Motions to Dismiss Alexander's Complaint. (ECF Nos. 21, 29 & 58.) These motions are fully briefed and ready for disposition. (ECF Nos. 22, 30, 41, 42, 59 & 68).
B. Relevant Factual Allegations
Alexander's rash appeared in “multiple spots of his body” in September 2017 for which he was prescribed a corticosteroid cream. (ECF No. 4 ¶ 15.) Although the cream began to clear up the rash, when Alexander would stop using it for a few days, the rash would come back to a different location of his body and medical staff would tell him to start using the cream again. (Id. ¶¶ 16-17.) This cycle continued until 2018 when Alexander saw Defendant Schleicher, an outside dermatologist, who ordered a more potent corticosteroid cream as well as a biopsy and follow ups. (Id. ¶ 18.) Between 2018 and 2020, Alexander consulted with Defendant Schleicher, who ordered more biopsies, multiple times. (Id. ¶ 19.) During that time Alexander was also told by the Houtzdale medical staff to continue using the corticosteroid cream. (Id.) After Alexander's dermatologist appointment on July 16, 2020, Alexander was told he would see the specialist again in 90 days and was again instructed by the Houtzdale medical staff to continue using the corticosteroid cream. (Id. ¶ 20.) At this point, Alexander had been using the corticosteroid creams for his rash for two years. (Id.)
In 2020, Alexander made several sick call and inmate requests informing the medical team at Houtzdale that he had “a rash-like condition on his skin, itching, trouble breathing, dark urine, loss of memory and energy, a change in eyesight and balance, and a change in skin color.” (Id. ¶ 21; see also, id. ¶ 32 (alleging that since 2020, Alexander has experienced additional symptoms, including “redness, [it]ching, burning, swollen or blistering spots in multiple locations all over this body including his genitals... [and] trouble breathing, dark urine, loss of memory and energy, bruising and a permanent change in the color of his skin on parts of his body” and that the itching and burning skin “has been so severe it has caused many sleepless nights and even pushed [his] psyche so far to thinking suicide was a possible solution to his problem.”)). Initially, Alexander believed these new symptoms were attributable to another medicine that he was taking at the time. (Id.) In response to his request, Defendant Sechrengost told Alexander that he was seen by Defendant Nagle on August 12, 2020 and that if he was still having trouble to submit a sick call slip. (Id.) Alexander also told Defendant Sechrengost that Defendant Thornley told him that she was tired of seeing him. (Id. (citing ECF No. 4-1 at 1).)
Alexander learned from the instructions for the corticosteroid cream that the use of such creams over a prolonged period of time may require certain testing and could cause topical steroid withdrawal syndrome (“TSW”). (Id. ¶¶ 22-23, 38-46.)
Alexander expressed his concerns and symptoms through another request to Defendant Sechrengost:
“I [was] seen [for a] sick call today on 9/8/[2020] [with] PA Casey Thornley... I was never called over to medical to check if my condition is serious maybe (sic) a stroke, low blood pressure, high blood pressure, [she] never checked my vital signs, my legs and ankles [are] swoll[en] all day. I woke up swoll[en]. I explain[ed] to her also [that] my skin is changing color from the creams. And the side effects [are] change[s] in the skin color. And it says no one should be using this tuff for long periods of time. [Am I] on to see the Dermatologist this month[?]”(Id. ¶ 23.) Alexander also asked Defendant Sechrengost if a doctor should monitor him while he was on the corticosteroids. (Id.) Defendant Sechrengost informed him that he was to see the dermatologist, but he did not see a dermatologist until “quite recently.”(Id.) From 2020 until present, Alexander wrote several request forms to the Houtzdale medical staff and informed them that he needed medical care for his skin conditions and the symptoms that he was suffering from. (Id. ¶ 24.) He also repeatedly sought tests and monitoring that were detailed in the instructions for use for one of his corticosteroids that he had been prescribed. (Id. ¶¶ 24, 26, 38.)
From a review of the Complaint, “quite recently” appears to be October 2022. Alexander's Complaint was filed on December 2, 2022 and he alleges that between 2020 and October 2022, he was denied any opportunity to consult with a dermatologist. (ECF No. 4 ¶ 25.)
C. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). When “accept[ing] all of the complaint's well-pleaded facts as true,” the court “may disregard any legal conclusions.” Id. at 210-11.
To survive a motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Though ‘detailed factual allegations' are not required, a complaint must do more than simply provide ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). In sum, the plaintiff “must plead facts sufficient to show that her claim has substantive plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014).
To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth; (3) look for well-pled factual allegations, assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief. See, e.g., Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). The court's plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
To defeat a motion to dismiss, it is sufficient to allege a prima facie case, see Castleberry v. STI Grp., 863 F.3d 259, 266 (3d Cir. 2017), but it is not necessary. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (cited with approval in Twombly, 550 U.S. at 569-70). The complaint need only allege enough facts to “raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.” Fowler, 578 F.3d at 213 (quoting Phillips, 515 F.3d at 234).
The Supreme Court has stated that “the allegations of [a] pro se complaint [are held] to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).
D. Discussion
1. Exhaustion of Administrative Remedies
The Houtzdale Medical Defendants argue that Alexander “has not exhausted his administrative remedies as to any claims involving the [Houtzdale Medical] Defendants, except for Dr. Naji,” such that Defendants Thornley, Nagle, Dellatorre, White, and Wellpath, LLC should be dismissed. (ECF No. 22 at 18-25.) Defendant Scheicher also argues that Alexander has not exhausted his claim. (ECF No. 59 at 4-5.) Defendant Sechrengost did not move to dismiss on the grounds of exhaustion. (ECF No. 29.)
a. PLRA Requirements
The Prison Litigation Reform Act of 1995 (“PLRA”) (as amended) mandates that an inmate exhaust “such administrative remedies as are available” before bringing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). The exhaustion requirement “applies to all inmate suits about 6 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 Supreme Court has repeatedly observed that the PLRA's exhaustion requirement “is ‘mandatory': An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S 632, 638-39 (2016) (citing Woodfordv. Ngo, 548 U.S. 81, 85 (2006) and Jones v. Bock, 549 U.S. 199, 211 (2007)). Exhaustion is mandatory under the PLRA regardless of the type of relief sought and the type of relief available through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Courts are not given discretion to decide whether exhaustion should be excused, Ross, 578 U.S. at 639, and there is no exception to the exhaustion requirement based on “futility.” Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) (citations omitted).
The PLRA's mandatory exhaustion requirement means not only that a complaint filed before administrative remedies are exhausted is premature and cannot be entertained, but also that a failure to exhaust administrative remedies in accordance with a prison's grievance procedures constitutes procedural default. That is so because “the PLRA's exhaustion requirement requires proper exhaustion.” Woodford, 548 U.S. at 93-95; see also Spruill v. Gillis, 372 F.3d 218, 227-30 (3d Cir. 2004).
Failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, 549 U.S. 199, 216 (2007). Defendants have the burden of proving that Plaintiff failed to exhaust his available administrative remedies. See, e.g., Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The Court of Appeals has explained that if the defendant demonstrates that the inmate failed to exhaust his administrative remedies, then “the inmate plaintiff bears the onus of producing evidence that the on-the-books remedies were in fact unavailable to him or her.” West v. Emig, 787 Fed.Appx. 812, 814 (3d Cir. 2019) (citing Rinaldi, 904 F.3d at 268). Absent a situation where administrative remedies are not “available,” a court may not excuse an inmate's failure to exhaust “irrespective of any ‘special circumstances.'” Ross, 578 U.S. 638.
The Supreme Court explained in Ross that the term “available” means “capable of use” to obtain “some relief for the action complained of.” 578 U.S. at 643 (quoting Booth, 532 U.S. at 738). [It] identified “three kinds of circumstances in which an administrative remedy, although officially on the books,” is not “available” because it is “not capable of use to obtain relief”: (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when it is “so opaque that it becomes, practically speaking, incapable of use,” such as when no ordinary prisoner can discern or navigate it; or (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Rinaldi, 904 F.3d at 266-67 (quoting Ross, 578 U.S. at 643-44). See also Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020) (misleading or deceptive instructions from a prison official, as well as clearly erroneous statements, can render a grievance process unavailable). The Court of Appeals has further held “that as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies, it has made its administrative remedies unavailable and the prisoner has fully discharged the PLRA's exhaustion requirement” but only as to the matters complained of and the relief sought in the grievance. Shifflett, 934 F.3d at 365.
Importantly, the prison's grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill, 372 F.3d at 230-31 (“prison grievance procedures supply the yardstick for measuring procedural default.”). Thus, the procedural requirements for exhaustion in a given case “are drawn from the policies of the prison in question rather than from any free-standing federal law.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Spruill, 372 F.3d at 231).
b. Whether the Houtzdale Medical Defendants were Properly Identified Pursuant to the PLRA
The Houtzdale Medical Defendants argue that out of the four grievances that Alexander pursued to final review, only one properly exhausts his complaints related to his skin rash against Defendant Naji. (ECF No. 22 at 19 (citing ECF No. 21-2 at 11-22 (Grievance No. 977176).) Of the remaining three grievances pursued to final review, one was not about his skin condition and predates the allegations involved in the Complaint (ECF No. 22 at 20 (citing ECF No. 21-2 at 110 (Grievance No. 7534))), and the other two grievances did not identify or name the specific Defendants or request monetary relief, even though they addressed Alexander's skin condition (ECF No. 22 at 20 (citing ECF No. 21-2 at 23-39 (Grievance No. 982836) and 40-59 (Grievance No. 991472))). Finally, the Houtzdale Medical Defendants argue that Grievance No. 983514 referenced in Alexander's Complaint was not pursued to the final stage of review (ECF No. 22 at 21 -22 (citing ECF No. 21-3)).
The grievance also references that Alexander asked a “Dr. in medical” if he could be seen by a dermatologist again, on April 25, 2022. (ECF No. 21-2 at 15.)
In support of their motion, the Houtzdale Medical Defendants attach an exhibit (ECF No. 21-2) consisting of records produced to them from the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”), which is the final stage of appeal in the Pennsylvania Department of Corrections (“DOC”) grievance process. (ECF No. 22 at 18.) They also attach a copy of Grievance No. 983514, which they allege was not properly appealed. (ECF No. 22 at 21-22; ECF No. 213.) The Houtzdale Medical Defendants did not produce copies of the subpoenas or affidavits from grievance officers or record custodians, nor have they provided a copy of the specific grievance procedure that was in place at the time.
The Houtzdale Medical Defendants did not provide the Court with a copy of the specific grievance procedure that was in place at the time. Defendant Schleicher stated that he attached the grievance policy at Exhibit A, ECF No. 59 at 4, however no Exhibit A was filed. (ECF No. 59 at 4 (citing “Exhibit A”).) Despite Defendants' failure to provide a copy of DC-ADM 804, the version quoted by the Court in the body of this opinion has been in place since 2010. Compare Byrd v. Shannon, 715 F.3d 117, 127 n. 5 (3d Cir. 2013) (“The policies of the Pennsylvania Inmate Grievance System were amended in 2010. The provision requiring inmates to identify individuals can now be found at DC-ADM 804, § 1.A.11, which states, in pertinent part: ‘The inmate shall identify individuals directly involved in the event(s).'”) (emphasis added), with Pa. Dep't of Corr. Website, DC-ADM 804, § 1.A.11 (Effective Dated: May 1, 2015) (“The inmate shall identify individuals directly involved in the event(s).”) Footnote continued on next page.. http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmate%20Grievances.pdf (last accessed July 18, 2023).
Alexander argues that failing to name specific defendants in his grievances does not per se mean that he procedurally defaulted and failed to properly exhaustion his claims. (ECF No. 42 at 7-8; and ECF No. 68 at 2-3).
The Pennsylvania DOC grievance procedures require that the prisoner “identify individuals directly involved in the event(s).” DC-ADM 804, § 1.A.11.b. The failure to do identify the individuals directly constitutes a “procedural default.” Spruill, 372 F.3d at 234-35. Notwithstanding, courts have found that “[s]uch a procedural default can be excused by the prison, however, if prison administrators respond to the grievance ‘by identifying the unidentified persons and acknowledg[e] that they were fairly within the compass of the prisoner's grievance.'” Whitehead v. Thomas, No. 3:14-cv-51, 2017 WL 2664490, at *5 (W.D. Pa. May 23, 2017) report and recommendation adopted by 2017 WL 2672646 (W.D. Pa. June 20, 2017). This is because “‘[t]he primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.'” Williams, 482 F.3d at 640 (quoting Jones v. Bock, 549 U.S. 199, 219 (2007)).
The Court has not converted the Houtzdale Medical Defendants' motion to dismiss into motions for summary judgment and declines to do so. Therefore, the issue of lack of exhaustion cannot be resolved at this time. This defense may be renewed, as appropriate, at a later stage based on a complete record, which will allow the Court to understand whether (and which of) the Houtzdale Medical Defendants were identified by Defendants as part of the grievance process. (See e.g., ECF No. 21-2 (various responses to Alexander's grievances noting that Alexander was seen on certain dates for multiple sick calls for his skin condition).)
Further, the Court notes that Defendants' own summary of his Grievance No. 991472 notes that Alexander “asked Mrs. Casey on 07/29/22 if he can be given the tests.” (ECF No. 22 at 20.) Whether this refers to Defendant “Casey Thornley” is unclear without more factual development. But see ECF No. 21-2 at 49 (referring to “Mrs. Casey James” and later “Mrs. Casey.”)
Defendant Schleicher also raises the failure to exhaust administrative remedies. However, the only claim asserted against him is a state-law claim of negligence/medical malpractice. District courts within the Third Circuit have held that state-law claims filed in federal court are not subject to the PLRA's exhaustion requirement since they are not brought “under § 1983, or any other Federal law,” as § 1997e(a) requires. See, e.g., Douglas v. Joseph, No. 1:13-cv-1136, 2016 WL 561944, at *5 (M.D. Pa. Feb. 12, 2016); Giamboi v. Prison Health Servs., No. 3:11-cv-159, 2014 WL 12495641, at *7 (M.D. Pa. Sept. 11, 2014), report and recommendation adopted sub nom., 2015 WL 12159307 (M.D. Pa. Jan. 13, 2015). Thus, issues related to exhaustion of administrative remedies are not relevant as it relates to Alexander's sole state law claim against Defendant Schleicher. As discussed herein, however, Alexander's sole state law claim against Defendant Schleicher should be dismissed on different grounds.
Thus, it is respectfully recommended that the Houtzdale Medical Defendants' motion to dismiss based on the failure to exhaust under the PLRA be denied without prejudice to renew at a later time.
2. Count I - Eighth Amendment Denial of Medical Care
Under the Eighth Amendment, prison officials are required “to provide basic medical treatment to those whom it has incarcerated.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)). To state an Eighth Amendment medical claim, a plaintiff must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. Natale v. Camden Ctv. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse, 182 F.3d at 197).
a. Alexander Has Sufficiently Pleaded a Serious Medical Need
The Third Circuit has explained that “a medical need is ‘serious' for purposes of a denial of medical care claim if it is either ‘one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.'” Mattern v. City of Sea Isle, 657 Fed.Appx. 134, 139 (3d Cir. 2016) (quoting Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
Here, the Houtzdale Medical Defendants argue that Alexander's skin rash does not rise to the level of a serious medical need. (ECF No. 22 at 7-10). Neither Defendant Schleichernor Defendant Sechrengost raise this argument. (ECF Nos. 30 & 59.)
Again, Plaintiff has not asserted a Count I claim against Defendant Schleicher as he is not named in any of the relevant factual allegations (ECF No. 4 ¶¶ 28-34).
The Houtzdale Medical Defendants cite a recent case from the United States District Court of the District of New Jersey that dismissed, with leave to amend, a plaintiff's complaint alleging that he had a spreading rash for more than four year on his buttocks that was not resolving with different creams that were prescribed to him and noted that “[d]istrict courts here and elsewhere, however, have dismissed Eighth Amendment claims involving isolated rashes, eczema, itching, or dry skin.” Ellison v. N.J. State Prison Med. Dep't, 2023 WL 363044, at *1, *4 (D.N.J. January 23, 2023) (collecting cases). However, that same case noted that the “Third Circuit clarified that the skin condition eczema can be a serious medical condition when the skin is so cracked and dry that it bleeds” or “when it is not an isolated occurrence and appears in conjunction with other symptoms that suggest a serious illness or condition.” Id. at *3. In Ellison, because the plaintiff did not allege that “the rash [was] bleeding or infected (i.e. with open sores or wounds),” or “occurred in conjunction with other symptoms that suggest he has a serious illness or condition” (besides plaintiff's self-diagnosis of a potential cancer), the Court dismissed his complaint with leave to amend. Id. at *4, *6.
In this case, the Houtzdale Medical Defendants' argument that Alexander is simply suffering from a “rash” is an exceedingly narrow interpretation of the factual allegations in the Complaint. In his Complaint, Alexander alleges that his condition and symptoms go beyond a persistent rash on different parts of the body. First, the rash appeared in September 2017 and was initially treated with a corticosteroid cream but kept reappearing when the cream was no longer used. (ECF No. 4 ¶ 15.) Although he had regular dermatologist visits up until July 2020, after that time, Alexander had no visits and claims that he started to exhibit serious symptoms including “a rash-like condition on his skin, itching, trouble breathing, dark urine, loss of memory and energy, a change in eyesight and balance, and a change in skin color,” as well as swelling. (Id. ¶¶ 21, 23, 32.) Further, he alleges that the itching, burning, swelling and blistering on his body, including his genitals, caused him many sleepless nights and even pushed him to consider suicide as a possible resolution to his medical problems. (Id ¶ 32.).
Accepting these factual allegations as true, Alexander's rash appears to be “in conjunction with other symptoms that suggest a serious illness or condition,” Ellison, 2023 WL 363044, at *3, such that at this stage of the proceedings, he has plausibly alleged a serious medical need. Thus, it is respectfully recommended that the Houtzdale Medical Defendants' motion to dismiss on the grounds that Alexander has failed to plead a serious medical need be denied.
b. Alexander Has Sufficiently Pleaded That the Houtzdale Medical Defendants and Defendant Sechrengost Acted with Deliberate Indifference
For a prison official “[t]o act with deliberate indifference to serious medical needs [of an inmate] is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)); Farmer v. Brennan, 511 U.S. 825, 836 (1994)). Because deliberate indifference is a “‘subjective standard of liability[,]'. . . a defendant cannot be held liable unless he or she' ‘knows of and disregards an excessive risk to [a complainant's] health or safety.'” Mattern v. City of Sea Isle, 657 Fed.Appx. 13 134, 140 (3d Cir. 2016) (quoting Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)). To be sure, the relevant inquiry “is whether prison officials, acting with deliberate indifference, exposed [the inmate] to a sufficiently substantial risk of serious damage to his future health . . .” Farmer, 511 U.S. at 843.
i. Whether Alexander's Allegations State a Claim for Deliberate Indifference or Whether They Reflect a Mere Disagreement as to the Proper Medical Treatment
The Houtzdale Medical Defendants allege that Alexander merely disagrees with the level of care that is being provided to him, which is insufficient to state a claim of deliberate indifference. (ECF No. 22 at 10-13.) Alexander argues that Defendants have provided him with an easier and less efficacious treatment (only prescribing a cream that caused adverse reactions) and have denied his reasonable requests for medical treatment. (ECF No. 42 at 3-4 (citing Rosa v. Stevens, No. 2:19-cv-1039, 2022 U.S. Dist. LEXIS 6799 (W.D. Pa. Jan. 13, 2022) report and recommendation adopted by Rosa v. Stevens, Docket No. 2:19-cv-1039, ECF No. 133).) As a result, he has suffered significant scarring and discoloration. (Id.)
“It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.'” Rouse, 182 F.3d at 197; Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). Because “courts give prison medical personnel wide latitude in the diagnosis and treatment of inmates,” they should “‘disavow any attempt to second guess the propriety or adequacy of a particular course of treatment. . . which remains a question of sound professional judgment.'” Kennedy v. S.C.I. Rockview Emples., No. 3:10-CV-1764, 2010 WL 4853959, at *4 (M.D. Pa. Nov. 22, 2010) (citing Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). Thus, mere allegations of malpractice or mere disagreement as to the 14 proper medical treatment do not support an Eighth Amendment claim. Id. (citing Monmouth, 834 F.2d at 346 and White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990)).
The Third Circuit has “explained that deliberate indifference is ‘evident' in certain circumstances, including: (i) the denial of reasonable requests for medical treatment that expose the complainant to undue suffering; (ii) knowledge of the need for medical care and the intentional refusal to provide such care; or (iii) the delay of necessary medical treatment for non-medical reasons.” Mattern, 657 Fed.Appx. at 140 (citing Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987)). The Third Circuit has also found “‘deliberate indifference' where prison officials continue a course of treatment they know is painful, ineffective, or entails a substantial risk of serious harm.” Williams v. Kort, 223 Fed.Appx. 95, 100 (3d Cir. 2007) (citing Rouse, 182 F.3d at 197 (3d Cir. 1999) and White, 897 F.2d at 109 (3d Cir. 1990)); see also Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017) (“[T]here are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements. For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for ‘an easier and less efficacious treatment'. . . Nor may ‘prison authorities deny reasonable requests for medical treatment . . . [when] such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.”' And, ‘knowledge of the need for medical care [may not be accompanied by the] . . . intentional refusal to provide that care.'” (internal citations omitted).)
Although the Complaint alleges that Alexander has received some care, it also alleges that over the five years of intermittent treatment for a rash on different parties of the body, Defendants have failed to identify the root cause, persisted in ineffective treatment (that is alleged to be causing significant side effects), and delayed a follow-up appointment scheduled for ninety days to more than two years without explanation. When these allegations are taken as true, although they come 15 close to a mere disagreement over the treatment delivered, it is also plausible on the facts alleged that the Houtzdale Medical Defendants knowingly continued an ineffective treatment or delayed effective treatment, such that they were deliberately indifferent.
Discovery may well reveal that the alleged conduct of the Houtzdale Medical Defendants does not give rise to a deliberate indifference claim, but at this early stage of litigation, the allegations of the Complaint must be accepted as true, and all reasonable inferences must be drawn in Alexander's favor. Thus, it is respectfully recommended that the Houtzdale Medical Defendants' Motion to Dismiss Count I be denied.
ii. Whether The Complaint Alleges that Defendant Sechrengost Was Deliberately Indifferent When Alexander Was Seen by Other Medical Staff
Defendant Sechrengost alleges that because she is a non-medical prison official, she cannot be deliberately indifferent under the Eighth Amendment because Alexander was under the care of medical staff, and she had no reason to believe that he was being mistreated nor did she interfere with his treatment. (ECF No. 30 at 4-5.)
“‘[A] a non-medical prison official' cannot ‘be charge[d] with the Eighth Amendment scienter requirement of deliberate indifference' when the “prisoner is under the care of medical experts' and the official does not have ‘a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.'” Pearson v. Prison Health Serv., 850 F.3d 526, 543 (3d Cir. 2017) (quoting Spruill, 372 F.3d at 236).
In his Complaint, Alexander identifies Defendant Terri Sechrengost as a “Physician's Assistant and is the CHCA and part of the medical staff at SCI-Houtzdale.”(ECF No. 4 ¶ 9.) In his brief, Alexander argues that Defendant Sechrengost has actual knowledge that the medical staff failed to diagnose him and treat his skin condition from 2020 onward, because he sent multiple request forms to the medical department, some of which were signed by Defendant Sechrengost and others of which she ignored. (ECF No. 41 at 2-3.) He further points to another case in this district where Defendant Sechrengost made similar arguments that she could not be deliberately indifferent if an inmate was being treated by medical staff. (ECF No. 41 at 4 (citing Twitty v. Barns, No. 3:20-142, 2021 WL 2419323 (W.D. Pa. May 25, 2021), report and recommendation adopted by 2021 WL 2419303 (W.D. Pa. June 14, 2021).) In that case, plaintiff alleged that he had submitted requests to Defendant Sechrengost on two occasions that he was being “denied access to medical treatment and testing that was ordered by outside gastrointestinal specialists,” that “his sick call request was being ignored,” that “his symptoms were worsening to the point where he believed they were life threatening,” and he had not been rescheduled for a colonoscopy, which was rescheduled and canceled twice and necessary for any future treatment of his symptoms. Id. at *4. The Court denied Defendant Sechrengost's motion to dismiss because she had reason to believe that medical personnel were not providing medical care to plaintiff. Id.
A CHCA is the “Corrections Health Care Administrator - The facility staff member responsible for overseeing the delivery of medical/mental health services to the inmate population via the medical vendor and Department staff.” Policy Statement, Commonwealth of Pennsylvania, Department of Corrections, Management and Administration of Health Care, Policy Number 13.1.1, Procedures Manual Glossary (Jan. 24, 2022) found at www.cor.pa.gov. (last accessed July 18, 2023).
In her alleged administrative capacity, each of alleged instances in the Complaint (and the exhibits attached thereto) appear to show Defendant Sechrengost responding to his requests (id. ¶¶ 21, 23; see ECF No. 4-1), such that, to the extent that Defendant Sechrengost is considered a “nonmedical prison official,” Alexander has not plausibly alleged that she had “‘a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.'” Pearson, 850 F.3d at 543. That being said, any dismissal of such a claim should be without prejudice and with leave to amend, because Alexander may be able to allege facts sufficient to state a claim-indeed, his brief raises for the first time the fact that she has ignored some of his requests. (ECF No. 41 at 2-3.)
There remain a set of allegations that Defendant Sechrengost acted in a medical capacity. Defendant Sechrengost argues that the Complaint's references to Alexander being “‘seen' by Defendant Sechrengost” are “inartful drafting by Plaintiff, whereby he grouped her in a list with his medical providers and that the other allegations and exhibits concerning Defendant Sechrengost make it clear that Plaintiff is not alleging [] she was a member of his treating medical staff or that she had any role other than as CHCA.” (ECF No. 30 at 6 n.3.) However, when taking the factual allegations in the Complaint as true, they contradict Defendant Sechrengost's characterization of her role. For one thing, the Complaint also describes her as a “Physician's Assistant,” and describes her as the “head of the Houtzdale medical staff,” (ECF No. 4 ¶¶ 9, 30.) Additionally, Alexander also expressly identifies her by name (as opposed to a collective noun such as “defendants” or “medical staff”) in several instances in which he alleges inadequate medical care. (See ECF No. 4 ¶ 27 (“Plaintiff has brought his serious medical concerns to the attention of the Houtzdale medical staff and been seen by Defendants Patrick Nagle, Casey James, Deanna Dell[a]Torre, Anne White, Jane/John Doe, Terri Sechrengost, and Muhammad Naji...” 18 (emphasis added)); id. ¶ 36 (“Defendants Patrick Nagle, Casey James, Deanna DellaTorre, Ann White, Jane/John Doe, Terri Sechrengost, Dr. Schleider and Dr. Muhammad Naji have prescribed a course of treatment for the Plaintiff and acquiesced in its (sic) continuation for over 5 years” (emphasis added)); id. (“Defendants Dr. Muhammad Naji, Dr. Schl[eich]er, and Terri Sechrengost are liable for medical malpractice and/or negligence because of the inadequacy of providing medical care for Plaintiff's skin condition that has yet to be diagnosed after 5 years and for prescribing a course of treatment without proper monitoring and testing...” (emphasis added)). Id. ¶ 47.
Thus, it is respectfully recommended that Defendant Sechrengost's motion to dismiss Count I be granted in part and in denied in part. Specifically, any Eighth Amendment claim in which Defendant Sechrengost is alleged to be a non-medical prison official should be dismissed without prejudice with leave to amend. At the same time, Defendant Sechrengost's motion to dismiss the portion of Alexander's Eighth Amendment claim in which Defendant Sechrengost is alleged to be a medical prison official should be denied.
3. Count II - Negligence/Medical Malpractice Claim against Defendants Nagle, Thornley, Dellatorre, White, Sechrengost, Schleicher, and Naji
Although Alexander only lists Defendants Dr. Muhammad Naji, Dr. Schliecher, and Terri Sechrengost as being “liable for medical malpractice and/or negligence because of the inadequacy of providing medical care” in his concluding paragraph of Count II (ECF No. 4 ¶ 47), the beginning of Count II identifies “Patrick Nagle, Casey James, Deanna Della Torre, Ann White, Jan/John Doe, Terri Sechrengost, Dr. Schleicher, and Dr. Muhammad Naji” as providers that have “p[re]scribed a course of treatment for [him] and acquiesced in its continuation for 5 years that is negligent.” making them thus “liable of medical malpractice and negligence. (Id. ¶ 36.) In liberally construing Alexander's pro se pleadings, the Court will consider Count II to be against all Defendants listed in paragraph 36.
Count II is a state law negligence or medical malpractice claim against Defendants. Pennsylvania Rule of Civil Procedure Rule 1042.3(a) provides that “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, . the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit....” See Pa. R. Civ. P. 1042.3(a). “[Rule 1042.3(a)] constitutes substantive law that must be applied by federal courts in professional liability cases arising under Pennsylvania common law.” Nuyannes v. Thompson, 11-2029, 2011 WL 5428720, at *2 (E.D. Pa. Nov. 8, 2011) (collecting cases and noting that “failure to submit a certificate of merit is a possible ground for dismissal under Rule 12(b)(6)”); Young v. Halligan, 789 Fed.Appx. 928, 931 (3d Cir. 2019).
This action was commenced in December 2022. The Court has granted Alexander three extensions of time to file a Certificate of Merit, the latest of which granted an extension until July 5, 2023 (ECF Nos. 19, 43 & 66). Plaintiff did not submit a Certificate of Merit by the July 5, 2023 deadline and admits in his Brief in opposition to Dr. Schleicher's motion to dismiss that he is “unable to comply at this present moment” with providing a Certificate of Merit. (ECF No. 68, p. 4).
Defendant Schleicher argues that expert testimony is required to support Alexander's claim regarding the appropriateness of the medical care he was provided for his skin condition, and therefore, a Certificate of Merit is required. (ECF No. 59 at 5-7.) The Houtzdale Medical Defendants and Defendant Sechrengost reserved their rights to move for dismissal of Count II on the grounds that Alexander has failed to provide a Certificate of Merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3. (ECF No. 22 at 25 -26; ECF No. 30 at 5 n.2.)
Defendant Sechrengost also argued that Count II should be dismissed, because Alexander failed to identify a duty she owed or that she was a proximate cause of his injuries, because she is not a medical staff, nor does she provide medical treatment. (ECF No. 30 at 5-6.) However, because Alexander has failed to produce a Certificate of Merit, the Court need not address this issue.
Because Alexander has failed to produce a Certificate of Merit, Defendant Schleicher's motion to dismiss Count II should be granted. Because the Certificate of Merit requirement also applies to the other Defendants who reserved their right to move to dismiss, Alexander's Count II against them should also be dismissed.
Thus, it is respectfully recommended that Count II be dismissed against all Defendants without prejudice to refile should Alexander be able to acquire a Certificate of Merit. Coyle v. Montgomery Cty., No. 21-4704, 2023 WL 2576843, at *15 n.18 (E.D. Pa. Mar. 20, 2023) (“A dismissal for the failure to file a certificate of merit is usually a dismissal without prejudice” unless the complaint demonstrates that the statute of limitations has run).
4. Count III - Monell claim as to Defendant Wellpath
The Houtzdale Medical Defendants argue that Count III, Alexander's Monell liability claim against Defendant Wellpath LLC, must be dismissed because he was provided with medical care. (ECF No. 22 at 13-18.) They further argue that Alexander fails to identify any policies and procedures through which Wellpath opted for low-cost treatments and only relies on conclusory references to alleged policies. (Id. at 16-17.) Alexander argues that he has sufficiently alleged a policy or custom because his repeated requests related to his skin condition over the years have been ignored or not taken seriously. (ECF No. 42 at 5-7.)
In Monell v. Dep't of Social Services, the United States Supreme Court held that a municipality could be liable under Section 1983 “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts injury that the government as an entity is responsible . . .” 436 U.S. 658, 694 (1978). This liability extends to “[p]rivate corporations like Wellpath . . .,which provide medical services under a contract with the DOC,” but only “if they had a policy or custom 21 causing its agents to deprive care to the level of a constitutional violation” or that Wellpath “failed to train, supervise, or discipline their employees reflect[ing] a deliberate or conscious choice that caused his constitutional injury.” Plummer v. Wellpath, No. 1:22-CV-00039-SPB, 2023 WL 2873883, at *9 (W.D. Pa. Jan. 3, 2023) (citing Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 n.4, 583 (3d Cir. 2003), Johnson v. City of Philadelphia, 975 F.3d 394, 403 (3d Cir. 2020), and Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (internal quotations omitted)).
To establish Section 1983 liability, a plaintiff must prove that a municipal “policy or custom” is the “moving force” of the constitutional violation at issue. Monell, 436 U.S. at. at 694. Thus, to state a claim for liability against Wellpath, Plaintiff must allege that its policies or customs caused the constitutional violations. Id.; Natale, 318 F.3d 575, 583-84 (3d Cir. 2003). Plaintiff “must identify [the] custom or policy, and specify what exactly that custom or policy was” to satisfy the pleading standard. McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009).
“Policy is made when a decisionmaker possessing final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (citation and quotations omitted). Customs are “practices of state officials . . . so permanent and well settled as to virtually constitute law.” Berg v. Cty. of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (citations and quotations omitted). In other words, a custom is “an act ‘that has not been formally approved by an appropriate decisionmaker' but that is so widespread as to have the force of law.” Natale, 318 F.3d at 584 (quoting Board of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)).
a. Whether Alexander Has Sufficiently Alleged a Policy of Saving Money
“[T]he denial of medical care, when based on non-medical factors, may violate the Eighth Amendment.” Winslow v. Prison Health Servs., 406 Fed.Appx. 671, 674 (3d Cir. 2011) (citing Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (“If necessary medical treatment is delayed for non-medical reasons, a case of deliberate indifference has been made out.” (internal quotation marks and alterations omitted))). To state a claim of denial of medical care based on the non-medical factor of cost or saving money, a plaintiff may not rely on conclusory statements. Id.
Defendants argue that Alexander has failed to specify any unconstitutional policies and procedures employed by Wellpath and that Alexander's conclusion that he did not receive treatment is contradicted by the facts he alleges, including his allegations that he had sick-call visits, was given a corticosteroid cream, was sent to a dermatologist who provided him with two other creams and had multiple biopsies to try to solve his problem. (ECF No. 22 at 16 -17; see ECF No. 4.) Defendants further argue that Alexander simply “speculates that Wellpath maintained a policy or custom which took into consideration costs when providing him care.” (ECF No. 22 at 17).
Although Alexander's Complaint sets forth allegations related to Defendants' consideration of the cost of services,his briefs do not address Defendants' arguments that he has failed to state a custom or policy that the Defendants improperly took cost into consideration when providing him care. (ECF No. 42 at 5-7.) Because he has not responded on this issue, and “the naked assertion that Defendants considered cost in treating [a serious medical condition] does not suffice to state a claim for deliberate indifference,” Winslow, 406 Fed.Appx. at 674 (collecting cases), his Monell claim-to the extent it is based solely on the fact that Defendants costs into consideration-should be dismissed.
The Complaint alleges that for the past five years, “[i]nstead of allowing the Plaintiff to see the appropriate specialist to determine the cause and provide necessary treatment, the Defendants have opted for a low-cost treatment for the Plaintiffs symptoms alone,” and “[a]s a result of Defendant WellPath's practice or policy for substituting low-cost treatments for more costly testing and d[i]agnosis, the corticosteroid creams have caused [him] significant and lasting physical and psychological harm.” (ECF No. 4 ¶¶ 50-55.)
However, Alexander's brief raises another custom or policy to support his Monell claim; specifically, he argues that his “multiple sick calls, request forms, and more importantly grievances prove that policymakers and/or decisionmakers within the SCI Houtzdale medical department were aware of [his] medical needs, his medical history, and the adverse reactions to the corticosteroid creams, yet ultimately ignored and denied his request.” (ECF No. 42 at 6.) In doing so, he cites to Shivers v. Connections, where the District Court for the District of Delaware considered a plaintiff's complaint alleging “that he submitted multiple sick calls and grievances that were either ignored or responded to weeks after submission, all relating to the same medical issues,” and that plaintiff alleged that he “suffered from scabies for over two months because he was either denied treatment or received insufficient treatment.” Civil Action No. 17-964-RGA, 2019 WL 568534, at *2 (D. Del. Feb. 11, 2019). The District Court of Delaware found that plaintiff adequately alleged a custom or policy condoned by defendant when he alleged his “requests for medical treatment [were] continually denied or delayed.” Id.; see also Tucker v. Del. Dep't of Corr., No. 16-352-LPS, 2019 WL 1352766, at *4 (D. Del. Mar. 26, 2019) (denying a motion to dismiss where plaintiff alleged defendant's “repeated failure to notice his history of adverse reactions to risperidone, his refusals to take it, and the clarity of his medical history on these points - all of which he alleges to be the result of a policy or practice of Connections.”)
Alexander's brief raises a different policy or custom than the one set forth in Count III of his Complaint, which is based on the cost of treatment. “However, a plaintiff, even a pro se plaintiff, may not amend his complaint except by means of filing an amended complaint.” Noble v. Wetzel, No. 18-cv-1160, WL 4279975, at *1 n.1 (W.D. Pa. Aug. 1, 2019), report and recommendation adopted by, 2019 U.S. Dist. LEXIS 154017, 2019 WL 4279016 (W.D. Pa. Sept. 10, 2019) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n. 9 (3d Cir. 2002) (“For the sake of clarity, a prisoner plaintiff (or any other plaintiff) should not be able effectively to amend a complaint through any document short of an amended pleading.”) and Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”).)
Thus, it is respectfully recommended that Count III be dismissed without prejudice and leave to amend, because when dismissing a civil rights case for failure to state a claim, a court must give a plaintiff the opportunity to amend a deficient complaint, 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); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
E. Conclusion
For all these reasons, it is respectfully recommended that the Houtzdale Medical Defendants' motion be granted in part and denied in part, that Defendant Sechrengost's motion be granted in part and denied in part, and that Defendant Schleicher's motion be granted in part and denied in part. Specifically, it is recommended that:
1. Count II of the Complaint should be dismissed without prejudice as to all Defendants;
2. Defendant Schleicher should be terminated as a defendant;
3. Count III of the Complaint should be dismissed without prejudice and with leave to amend;
4. The Houtzdale Medical Defendants' motion regarding failure to exhaust administrative remedies under the PLRA should be denied without prejudice; and
5. Defendant Sechrengost's motion to dismiss Count I should be granted in part and in denied in part. Specifically, her motion should be granted with leave to amend with respect to any Eighth Amendment claim in which Defendant Sechrengost is alleged to be a non-medical prison official. It should be denied with respect to the portion of Alexander's Eighth Amendment claim in which Defendant Sechrengost is alleged to be a medical prison official.
F. Notice
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).