Opinion
Civil Action 20-808
05-06-2022
LAMONT BULLOCK, Plaintiff, v. MIKE HICE, DEPARTMENT OF CORRECTIONS, WILLIAM NICHOLSON, STEPHANY WOODS, MARK DIALESANDRA, SUPERINTENDENT ROBERT GILMORE, SUPERINTENDENT MICHAEL ZAKEN, TRACEY SHAWLEY, JOHN WETZEL, JOHN MCANANY, DR. SMYTH, JAYAKUMAR, DR. JAY, DR. PARKS, RONALD LONG, PHYSICIAN ASSISTANT MARK HAMMER, CORRECTIONAL OFFICER ANGELO, CORRECTIONAL OFFICER W.T. HENRY, CORRECTIONAL OFFICER MCCRACKEN, CORRECTIONAL OFFICER MASCETTA, PHYSICIAN ASSISTANT FETTERMAN, DR. BAIRD, JOHN POKOL, STANLEY FALOR, CHARLES ROSSI and SAFETY MANAGER, Defendants.
LAMONT BULLOCK ALL COUNSEL OF RECORD VIA CM/ECF.
LAMONT BULLOCK ALL COUNSEL OF RECORD VIA CM/ECF.
J. NICHOLAS RANJAN, DISTRICT JUDGE
REPORT AND RECOMMENDATION RE: ECF NO. 63
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Lamont Bullock (“Plaintiff”), an inmate presently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”), brings this pro se action against twenty-eight defendants arising out of allegations that he was deliberately exposed to contaminated foods and other harmful substances, and that he was denied proper medical treatment. ECF No. 20.
Presently before the Court is a Motion to Dismiss Plaintiff's Amended Complaint or in the Alternative Motion for Summary Judgment (“Motion to Dismiss”) filed by Defendants Dr. Baird (“Baird”), CRNP James Fetterman (“Fetterman”), PA Mark Hammer (“Hammer”), Michael Hice (“Hice”), and Dr. Smyth (“Smyth”) (collectively, “Medical Defendants”), ECF No. 63. For the reasons that follow, it is respectfully recommended that the Motion to Dismiss be granted.
The Medical Defendants move in the alternative for summary judgment. Because the Court should dismiss Plaintiff's claims under the Federal Rule of Civil Procedure 12(b)(6) standard for the reasons discussed below, it is not necessary to convert this motion into a motion for summary judgment.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Amended Complaint
In his Amended Complaint, Plaintiff brings claims against numerous defendants arising out of allegations spanning the course of over 20 years at 8 different correctional institutions.ECF No. 20. Broadly, Plaintiff claims that prison officials poisoned him by feeding him contaminated foods and beverages; used dirty needles to draw blood; and exposed him to harmful odors and dusts. Id. ¶¶ 23-25, 30, 59, 48, 52-56. As a result, Plaintiff alleges that he developed various illnesses. Id. ¶¶ 23, 56, 59.
Plaintiff claims that he was diagnosed with Hepatitis-C and denied treatment as early as 1998. ECF No. 20 ¶¶ 3739. He was incarcerated at the State Correctional Institutions at Huntington, Smithfield, Greene, Pittsburgh, Graterford, Houtzdale, Fayette and Dallas. Id. ¶¶ 23, 35, 62, 67, 69 and 70.
Plaintiff claims that his medical records have been fabricated to conceal his illnesses and to falsely indicate that he suffers from paranoid thinking. Id. ¶¶ 31, 33, 36. He has been denied proper treatment, testing and diagnoses for those illnesses. Id. ¶¶ 22, 32-43, 56-64. Plaintiff also claims that the DOC transferred him to various institutions to cover up what happened. He believes that individuals at SCI-Greene, including Hice and Smyth, are plotting to cause his death. Id. ¶ 152.
The Medical Defendants worked in various positions related to the provision of medical care at SCI-Greene. Based on his Amended Complaint, Plaintiff was incarcerated at SCI-Greene at two times: (1) March 1998 to January 2002 (“First SCI-Greene Incarceration”); and (2) December 2014 to present (“Second SCI-Greene Incarceration”). Id. ¶¶ 37, 38, 62, 78. As detailed below, Plaintiff alleges that he frequently sought medical treatment at SCI-Greene; however, the Medical Defendants did not provide him with appropriate care for a variety of illnesses.
Plaintiff notes that he was briefly housed at SCI-Somerset between March 22, 2018 and March 29, 2018. ECF No. 20 ¶ 121.
a. Hice
Hice was the Medical Administrator at SCI-Greene. Id. at 1. During his First SCI-Greene Incarceration, Plaintiff claims that various individuals, including Hice, “had plaintiff[']s medical records read that plaintiff exhibited paranoid thinking that poison was in his food” in order to conceal Plaintiff's exposures to contaminated substances. Id. ¶ 31. He could not receive treatment for various illnesses because individuals, including Hice, refused to treat or test him, or to allow physician assistants to provide any “real treatment.” Id. ¶¶ 57, 59.
Upon Plaintiff's return to SCI-Greene in 2014, he experienced respiratory and other symptoms, which Plaintiff attributed to improper cell ventilation. He broadly claims that Hice and Corrections Healthcare Administrator William Nicholson (“Nicholson”) directed sick-call physicians not to provide relevant treatment, and they did not approve required tests for up to years at a time. Id. ¶¶ 88-89. Plaintiff also claims that he repeatedly requested treatment for Hepatitis- C, but Hice and Nicholson told him that he would not be treated because he did not have this disease. Id. ¶ 108.
Plaintiff alleges that he was diagnosed with Hepatitis-C in 1998 while incarcerated at SCI-Huntington. He received Interferon treatment for a period of time, but he claims that Defendants Stanley Falor and Charles Rossi determined that he no longer needed the treatment and discontinued it before he received the full course of treatment. ECF No. 20 ¶¶ 37-40.
Hice was responsible for scheduling inmates for sick calls. Id. ¶ 163. On various occasions, Plaintiff claims that Hice did not schedule him for sick-call or doctor visits that he requested on specific dates for various medical issues he experienced. Id. ¶¶ 134-136, 145-147, 156-164, 179-184, 209-214, 234-238. He also believes that he was not called in for a scheduled eye doctor appointment on April 10, 2019 because of Hice. Id. ¶¶ 210-212.
On April 4, 2018, Plaintiff sought further treatment for ongoing symptoms following a cystoscopy procedure. Hice and Mary Ellis (“Ellis”) told Plaintiff that he was “malingering” and would not receive further treatment. Id. ¶¶ 125-128. Plaintiff claims that one of the doctors suggested that Plaintiff may require a transurethral resection of the prostate (“TURP”) procedure. Id. ¶¶ 129-130. Although Plaintiff later was scheduled for a TURP procedure, Hice did not send Plaintiff back to the doctor who recommended it. Id. ¶¶ 130, 197-98.
On May 22, 2018, Ellis diagnosed Plaintiff with maxillary sinus disease. Plaintiff claims Ellis, Hice and Nicholson did not order any treatment for this illness, and that Hice did not approve a re-order for his nasal spray Flonase. Id. ¶¶ 92-96.
On May 30, 2018, Hice and Ellis had Plaintiff placed in solitary confinement after Plaintiff refused to go to the infirmary for three days, saying that Plaintiff had refused medical treatment. Id. ¶ 134.
An eye doctor had ordered Erythromycin eye drops for Plaintiff's eye infection, but Hice “discontinued” this order in October 2018. Id. ¶ 214.
Dr. Santos ordered various medical tests on July 25, 2018. Hice, Nicholson, and others did not call Plaintiff to report the results, which Plaintiff believes “could not have been negative.” Plaintiff signed up for sick call to get the results of his tests, and Hice and Hammer told Plaintiff that he did not have any disease, including AIDS. Id. ¶¶ 156-160.
On April 12, 2019, Hice told Plaintiff that he had glaucoma, but that there was no treatment for it. Id. ¶¶ 219-220.
On April 22, 2019, Hice rejected Plaintiff's sick-call request because Plaintiff refused to sign a cash slip. Contrary to DOC policy, Nicholson and Hice told Plaintiff that he would be charged for all medical visits, including for chronic and intermittent care. Id. ¶¶ 181-185.
On January 24, 2020, Plaintiff was brought into a room with Hice and Baird for a sick call visit. When Baird asked Plaintiff about his sinusitis and bronchitis, Hice intervened and said that Plaintiff did not have those illnesses. Baird then examined Plaintiff. She diagnosed him with a cold, prescribed him Guaifenesin, and referred him to a psychologist. Id. ¶¶ 254-257.
b. Baird
Baird is a medical doctor. Id. ¶ 279. Plaintiff's only allegations involving Baird relate to the January 24, 2020 sick visit, discussed above, in which she treated him for a cold. Id. ¶¶ 254257.
c. Hammer
Hammer is a physician assistant. Id. ¶ 21. Plaintiff alleges that Hammer was assigned to his sick-call visit on June 19, 2018 to counsel Plaintiff regarding the TURP procedure and to treat his ongoing tonsilitis and bladder infection. However, Plaintiff did not want Hammer to treat him because “he was identified by African American inmates to deny treatment to.” Id. ¶¶ 139-140.
Plaintiff also claims that he sought treatment from Hammer for various symptoms on June 12, 2018, March 3, 2019, April 1, 2019, July 2019, and November 2019, but Hammer told him there was nothing wrong or no treatment was required. Id. ¶¶ 131-133, 188-190, 205-208, 238.
On July 10, 2018, Hammer was supposed to see Plaintiff for a sick-call visit. However, Hammer arrived while Plaintiff was in the yard, so he had to sign up for another visit. Id. ¶¶ 141144.
On March 11, 2019, Plaintiff signed up for a sick-call visit to be seen for roughly 8 separate issues. Although Hammer saw Plaintiff the next day, he told Plaintiff to “pick a new problem” because he would only address Plaintiff's tonsil issues or what was specifically listed on the sick-call slip. Id. ¶¶ 192-93.
Plaintiff saw Hammer for a sick-call visit on April 19, 2019 to ask why his eye doctor's prescription for Erythromycin was discontinued. Hammer ordered Erythromycin Topical Solution USP and told Plaintiff to use it in his eyes, but the product instructions indicated that it should not be used in the eyes. Plaintiff believes that Hice and Hammer were trying to harm him. Id. ¶¶ 215217.
On April 22, 2019, Plaintiff saw Hammer for another sick-call visit. Although Plaintiff attempted to get treatment for Hepatitis-C, HIV, diabetes, tonsilitis, maxillary and gum diseases, Hammer did not order any treatment. Id. ¶¶ 200-201.
On September 17, 2019, Plaintiff sought treatment for a recurring bronchitis cough, pain in his feet, and numbness in his legs and ankles. Plaintiff was seen by Hammer, despite Plaintiff's request to be seen by a different physician assistant. Hammer told Plaintiff that “he couldn't interfere with what other PA's do,” and he ordered a medication for Plaintiff's plantar fasciitis and charged him for the visit. Id. ¶¶ 243-244.
d. Fetterman
Fetterman is a physician assistant. Id. ¶ 278. On October 14, 2019, prison officials sent Plaintiff to medical for emergency care because he reported feeling “extremely ill.” Plaintiff's blood pressure was high, and Fetterman re-ordered Plaintiff's blood pressure medication. Fetterman found candidiasis on Plaintiff's throat and tongue and advised him to stop taking Prednisone. Fetterman did not renew Plaintiff's vitamin B or prostate medications. Id. ¶¶ 246247.
On November 17, 2019, Plaintiff reported finding a spot of blood on his underwear. Fetterman said that he performed a dip-stick and found no blood in Plaintiff's urine. Id. ¶ 250.
e. Smyth
Smyth was the Medical Director at SCI-Greene. Id. ¶ 16. On April 16, 2018, Plaintiff signed up for sick call to request a non-smoking cell assignment as a result of his diagnoses with bronchitis, asthma, emphysema, and his allergy to tobacco smoke. Smyth and Ellis told Plaintiff they no longer did DC-75 orders, but they would speak to prison official John McAnany (“McAnany”). McAnany denied Plaintiff's request to be housed with non-smoking cellmates. Id. ¶¶ 170-72.
As discussed, Plaintiff was placed in solitary confinement on May 30, 2018. When Plaintiff asked Smyth why he was placed in solitary confinement, she told him that it was “something about a test that she wanted to order” and a phlebotomist would arrive on Monday to draw blood. Id. ¶ 137. But the phlebotomist did not come on Monday. Id. ¶ 138.
2. Legal claims
Plaintiff brings claims under the First, Eighth and Fourteenth Amendments, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act, along with claims under Pennsylvania law for battery, assault and negligence. Id. at 1, ¶¶ 22, 268-273.
However, he only specifically pleads four of those claims against the Medical Defendants. Plaintiff brings claims under the Eighth Amendment and ADA against all of the Medical Defendants. Id. ¶¶ 270, 272, 273. He also pleads claims for assault and battery under Pennsylvania law against Hice, Baird and Hammer. Id. ¶ 272.
3. Prior Lawsuits
Plaintiff has initiated over 50 lawsuits in federal court. Of note, he previously brought lawsuits arising out of similar claims that he was exposed to diseases, was denied treatment, and that his medical records have been fabricated.
Based on a PACER Case Locator search, the Court has located approximately fifty-seven lawsuits initiated by Plaintiff Lamont Bullock in federal courts in Pennsylvania, with two additional lawsuits under the name Carlton L. Bullock.
Generally, in resolving a motion to dismiss, courts may consider only the allegations set forth in the complaint, any exhibits submitted with the complaint and matters of public record. Pension Benefit Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). “[J]udicial opinions and docket sheets are public records, of which this court may take judicial notice in deciding a motion to dismiss.” Zedonis v. Lynch, 223 F.Supp.3d 417, 422 (M.D. Pa. 2017).
For example, Plaintiff filed a lawsuit over fifteen years ago against various defendants in the United States District Court for the Eastern District of Pennsylvania. Bullock v. Arias, 055665 (E.D. Pa. Nov. 21, 2016). As here, he claimed that prison officials deliberately fed him contaminated meals, which caused various illnesses. Id. at ECF No. 21 ¶ 34. He also claimed that individuals at SCI-Greene refused to treat his illnesses before to his transfer to SCI-Pittsburgh in 2002. Id. at ECF No. 21 ¶ 38.
In 2010, Plaintiff brought another lawsuit in the United States District Court of the Middle District of Pennsylvania against various defendants. Bullock v. Dreibelbis, No. 10-1032 (M.D. Pa. May 14, 2010), at ECF No. 1. He similarly claimed that defendants were denying him medical treatment for various illnesses, including HIV, diabetes, and herpes, and that his medical records had been fabricated. Id. at 3-4.
In 2015, Plaintiff initiated another lawsuit in this Court, Bullock v. Berrier, No. 15-00001 (W.D. Pa. Jan 15, 2015) against multiple defendants, including Hice. Again, he claimed that defendants “placed the plaintiff in circumstances creating imminent danger of serious physical injury and ongoing danger based on defendants['] repeated denials of treatment for plaintiff's HIV, HEPATITUS LIVER DIEASES, HERPIE SIMPLEX VIRUS, [and] DIABETES,” and that defendants “fabricated medical records and test results to cover up their willful[] and deliberate conduct.” Id. at ECF No. 1-1.
Plaintiff filed Dreibelbis and Berrier under the name “Carlton L. Bullock.” Because his prisoner identification number for these lawsuits is the same as in this case (AS-1035), it is clear these cases were filed by the same individual.
In Berrier, the Court denied Plaintiff's IFP Motion because he had three strikes under the Prison Litigation Reform Act (“PLRA”), and he was not under imminent danger of serious physical injury. Id. at ECF No. 21 (adopting Report and Recommendation, ECF No. 6). Based on affidavits from medical professionals who were familiar with Plaintiff's medical history, the Court found that “it is clear that Plaintiff is being treated appropriately for diseases that he has, and he has been tested for other diseases, which tests show he does not have, such as HIV, herpes and diabetes.” Id. at ECF No. 6. Because Plaintiff did not submit the filing fee and was not granted leave to proceed IFP, the action ultimately was dismissed.
This decision was affirmed on appeal. Bullock v. Berrier, No.15-3731 (3d Cir. 2016).
4. Procedural History
Plaintiff initiated this lawsuit on June 3, 2020, by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 3. After the Court identified certain deficiencies with Plaintiff's filing, he requested multiple extensions of time to submit the requisite filing fee instead of proceeding IFP. ECF Nos. 3, 7.
Plaintiff eventually paid the filing fee, and his original Complaint was filed on March 30, 2021. ECF Nos. 15 and18. The operative Amended Complaint was filed on June 21, 2021. ECF No. 20.
5. Motion to Dismiss
Multiple Defendants have filed pending dispositive motions. ECF Nos. 59, 63 and 77.The Medical Defendants filed the instant Motion to Dismiss and Brief in Support on December 27, 2021. ECF Nos. 63 and 64.
The undersigned has submitted Reports and Recommendations relative to the other dispositive motions at ECF Nos. 59 and 77. ECF Nos. 100 and 102.
On March 10, 2022, Plaintiff filed an Omnibus Brief in Opposition to all of the pending dispositive motions, including the Medical Defendants' Motion to Dismiss. He also filed a Statement of Material Facts and Declaration in further support. ECF No. 91 and 92.
The Medical Defendants filed a Reply Brief and Response to Plaintiff's Statement of Material Facts. ECF Nos. 96 and 97.
The Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow 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); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Because Plaintiff is proceeding Pro se, the Court will liberally construe his Complaint and employ less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
C. DISCUSSION
1. Statute of Limitations
In support of the Motion to Dismiss, the Medical Defendants argue that any claims arising out of conduct that occurred on or before May 27, 2018 are barred by a two-year statute of limitations. ECF No. 64 at 7-9.
In response, Plaintiff argues that the statute of limitations does not bar his claims because he has been subjected to continuing, never-ending wrongs, and the statute of limitations does not commence until those wrongs have ceased. ECF No. 90 at 12. He also argues that the Court should entertain Plaintiff's claims because he raises “extraordinary circumstances,” and his claims against all Defendants arise out of the same series of transactions or occurrences. Id. at 13.
Plaintiff's Eighth Amendment, ADA and tort claims are subject to a two-year statute of limitations. Specifically, Plaintiff brings his Eighth Amendment claim under 42 U.S.C. § 1983. Section 1983 and ADA claims are both governed by the limitations period applicable to personal injury actions of the state where the cause of action arose. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (Section 1983); Disabled in Action of Pa. v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008) (ADA). Under Pennsylvania law, personal injury claims must be brought within two years of the accrual of the claim. 42 Pa. Const. Stat. § 5524(7). Under Pennsylvania law, claims for assault and battery are also governed by a two-year statute of limitations. Id. § 5524(1). Thus, a two-year statute of limitations applies relative to Plaintiff's claims against the Medical Defendants.
Statute of limitations is an affirmative defense. Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (citing Fed.R.Civ.P. 8(c)(1)). In the Third Circuit, a limitations defense may be raised by a motion under Rule 12(b)(6) “only if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)) (internal quotations omitted). “However, ‘[i]f the bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).'” Id. (quoting Robinson, 313 F.3d at 134-35.)
Upon review, the Court should find that claims arising out of any conduct during Plaintiff's First SCI-Greene Incarceration are barred by the statute of limitations. In particular, this includes Plaintiff's allegations that Hice fabricated Plaintiff's medical records and blocked certain medical treatment during this time. See ECF No. 20 ¶¶ 31, 57, 59. At the latest, this conduct occurred in February 2002-more than eighteen years before this lawsuit was initiated. Because Plaintiff has filed prior lawsuits arising out of similar allegations, it is clear he was on notice of these allegations more than two years ago.
The Medical Defendants argue that Plaintiff's claims are time barred relative to any conduct that occurred prior to May 20, 2018. Under the Prison Litigation Reform Act (“PLRA”), however, the statute of limitations applicable to § 1983 actions should be tolled while a prisoner pursues the mandated remedies. Wisniewski v. Fisher, 857 F.3d 152, 158 (3d Cir. 2017). Based on the face of the Amended Complaint, the Court cannot state with certainty whether the statute of limitations as to certain conduct in 2018 may have been tolled while Plaintiff exhausted his administrative remedies.
There is no apparent basis for tolling the statute of limitations relative to conduct that occurred during the First SCI-Greene Incarceration. Although Plaintiff refers the Court to the continuing violations doctrine, this doctrine does not apply. Under the continuing violations doctrine, “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991). For this doctrine to apply, “[f]irst, [the plaintiff] must demonstrate that at least one act occurred within the filing period ....Next, the plaintiff must establish that the [alleged wrong] is more than the occurrence of isolated or sporadic acts.” Kimes v. Univ. of Scranton, 126 F.Supp.3d 477, 492 (M.D. Pa. 2015) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995), superseded in part by statute Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009)). Moreover, this theory does not apply if plaintiff is aware of the injury at the time it occurred. Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003).
Here, Plaintiff cannot satisfy either prong. While Plaintiff claims that he had been denied proper medical treatment on numerous occasions, his allegations involve discrete acts during his first incarceration at SCI-Greene. Thus, his claims arising out of his First SCI-Greene incarceration are not timely. For these reasons, the Court should grant the Motion to Dismiss to the extent that Plaintiff's claims arise out of the First SCI-Greene Incarceration.
2. Eighth Amendment Claims
Plaintiff brings Eighth Amendment claims against all of the Medical Defendants under 42 U.S.C. § 1983. In support of the Motion to Dismiss, the Medical Defendants argue that Plaintiff fails to state a viable Eighth Amendment claim. In particular, they argue that Plaintiff received ongoing medical treatment, and that mere disagreement with medical decisions does not establish a violation of the Eighth Amendment. ECF No. 64 at 19-22.
In response, Plaintiff argues that the Defendants have not proffered any evidence to refute his allegations. He argues that Defendants denied him treatment for HIV, Hepatitis A, B, C and D, herpes simplex, syphilis, diabetes and hypoglycemia, and that his Interferon treatment for Hepatitis-C was improperly discontinued. He also argues that Defendants fabricated his medical records and test results. As a result, he claims that diseases are spreading through his body and causing symptoms. ECF No. 90 at 14-18.
In the medical context, prison officials violate the Eighth Amendment when they are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976).
Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.” Id. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “Deliberate indifference may be manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, . . . or ‘persistent conduct in the face of resultant pain and risk of permanent injury.'” Josey v. Beard, No. 06-265, 2009 WL 1858250, at *6 (W.D. Pa. June 29, 2009) (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990) (internal citations omitted)).
Conversely, mere negligent misdiagnosis or treatment does not violate the Eighth Amendment because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 16. Likewise, “mere disagreement as to the proper treatment” is insufficient to establish an Eighth Amendment claim. Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67. “[W]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Williams v. Ferdarko, 807 Fed.Appx. 177, 180 (3d Cir. 2020) (quoting United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n. 2 (3d Cir. 1979)). Thus, “deliberate indifference is generally not found when some level of medical care has been offered to the inmate.” Josey, 2009 WL 1858250, at *6 (citing Clark v. Doe, No. 99-5616, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000) (“[C]ourts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.”)).
Upon review, the Court should dismiss Plaintiff's Eighth Amendment claims against the Medical Defendants. While his specific allegations vary, Plaintiff broadly alleges that: (1) he did not receive various diagnoses, tests, or treatments that he believed to be appropriate; (2) that he was not scheduled for certain medical visits or tests when he either requested or expected; and (3) that he was improperly charged for medical visits.
Based on Plaintiff's allegations, however, he received frequent, ongoing medical treatment during his Second SCI-Greene Incarceration. Plaintiff describes that he “frequented sickcalls,” and he chronicles the details of numerous medical visits and testing with multiple providers, occurring sometimes just days apart, relative to his symptoms. Although Plaintiff disagrees with the Medical Defendants' findings, or the timing of his appointments, such allegations are not sufficient to establish a violation of Plaintiff's Eighth Amendment rights.
While Plaintiff broadly claims that Hice would not approve “required test[s]” or “relevant treatments,” it is not clear to what tests or treatments he is referring, who deemed them to be required, and whether this conduct related to any serious medical need. See ECF No. 20 ¶¶ 88, 89, 104-106.
As for Plaintiff's allegations that he was charged for medical treatments, this does not establish a per se violation of his Eighth Amendment rights. Reynolds v. Wagner, 936 F.Supp. 1216, 1223 (E.D. Pa. 1996) (“Although the government must provide medical care, the Supreme Court has never held the government must pay for it”), aff'd Reynolds v. Wagner, 128 F.3d 166, 164 (3d Cir. 1997) (fee for medical services is not per se unconstitutional). While Plaintiff believed this to be improper under DOC policy, there is no indication that he did not receive medical care as a result. For these reasons, the Court should grant the Motion to Dismiss Plaintiff's Eighth Amendment claims against the Medical Defendants.
3. State Law Tort Claims (Assault and Battery)
Plaintiff brings claims for assault and battery under Pennsylvania law against Hice, Baird and Hammer arising out of their alleged fabrication of Plaintiff's medical records to conceal that he suffered from certain diseases. ECF No. 20 ¶ 272. Plaintiff also claims that Hice is liable for assault and battery by failing to honor sick-call requests and recommended treatments. Id. ¶ 273.
Plaintiff also refers to a negligence claim on the first page of his Complaint, and the Moving Defendants move to dismiss this claim based on Plaintiff's failure to file a certificate of merit. ECF No. 20 ¶ 22; ECF No. 64 at 26. Because he does not specifically plead this claim against any of the Medical Defendants, it is not necessary to consider this claim in resolving the Motion to Dismiss. However, any such professional negligence claim would be properly dismissed based on Plaintiff's failure to file a certificate of merit. See Pa.R.C.P. 1042.3 (a certificate of merit is required to be filed within sixty days after the complaint “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard . . .”); Crawford v. McMillan, 660 Fed.Appx. 113, 116 (3d Cir. 2016) (noting that Rule 1042.3 is a substantive law, which must be applied by the federal courts).
In support of the Motion to Dismiss, the Medical Defendants argue that Plaintiff's allegations fail to state a claim for assault or battery. ECF No. 64 at 25. To the extent his allegations arise out of conduct before 2018, they also argue that his claims are barred by the statute of limitations. Id. at 7-9.
In response, Plaintiff argues that “assault and battery is the most common state law claim for physical abuse by [the] prison state,” and that it encompasses any treatment that would injure or impair the health of a prisoner. ECF No. 90 at 27-28.
In this case, Plaintiff's claims for assault and battery should be dismissed. Under Pennsylvania law, “[a]ssault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (quoting Cohen v. Lit Bros., 70 A.2d 419, 421 (1950)). Plaintiff's allegations of fabricating medical records or not providing medical treatment do not amount to assault or battery. Therefore, the Motion to Dismiss should be granted relative to Plaintiff's claims for assault and battery.
4. ADA claim
Plaintiff asserts an ADA claim against Hice, Smyth, Baird, Hammer and Fetterman arising out of allegations that they denied him proper medical care. ECF No. 20 ¶ 270. In support of the Motion to Dismiss, the Medical Defendants argue that they are not among the class of defendants against whom an ADA or Rehabilitation Act claim may be brought because such claims cannot be brought against individual defendants. ECF No. 64 at 24.
In response, Plaintiff argues that he is “handicapped” under these statutes based on his HIV-positive status and infectious diseases. ECF No. 90 at 26.
Upon review, the Court should dismiss Plaintiff's ADA claim on this basis. Title II of the ADA prohibits only “public entit[ies] from excluding or discriminating against individuals with disabilities.” 42 U.S.C. § 12132. Because an individual sued in his or her individual capacity is not considered a ‘public entity,' individual liability claims are not permitted under Title II of the ADA. Powell v. Wetzel, No. 1:12-cv-02455, 2015 WL 1513888, at *2 (M.D. Pa. Mar. 27, 2015). Therefore, the Court should grant the Motion to Dismiss Plaintiff's ADA claims against Hice, Smyth, Baird, Hammer and Fetterman.
The Medical Defendants also argue that Plaintiff's claims under the Rehabilitation Act and Fourteenth Amendment should be dismissed. Because Plaintiff does not specifically plead those claims against the Medical Defendants, it is not necessary to consider those arguments.
Plaintiff does not specify under which Title of the ADA he is proceeding. Because the correctional facility where Plaintiff is incarcerated is a “public entity” subject to Title II of the ADA, the Court considers Plaintiff's claim under Title II. See Harris v. Lanigan, No. 11-1321, 2012 WL 983749, at *4 (D.N.J. March 22, 2022).
The Medical Defendants also argue that Plaintiff's claims should be dismissed because he did not fully exhaust his administrative remedies. ECF No. 64 at 9-19. Because Plaintiff's claims should be dismissed for the reasons discussed, it is not necessary to consider this argument.
D. CONCLUSION
For the foregoing reasons, the Court should grant the Medical Defendants' Motion to Dismiss, ECF No. 59. “If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236.
For the reasons discussed, Plaintiff should not be granted leave to amend relative to his assault, battery, and ADA claims. Considering Plaintiff's Pro se status, however, he should be granted leave to amend to the extent he can assert a viable Eighth Amendment claim.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.