# ROMAN v. LITTLE

> District Court, E.D. Pennsylvania · December 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10398079

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** December 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10398079

## How later opinions describe it (automated extraction)

- finding equal protection claim not pled where plaintiff failed to “allege facts showing that he was similarly situated to the inmates who received wheelchair footrests, crutches and canes, or that there was no rational basis for his different treatment”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALEXSANDRO ROMAN, CIVIL ACTION
Plaintiff, :

v. NO. 19-5204
DR. LITTLE, et al.
Defendants. :
MEMORANDUM
KEARNEY, J. December 4, 2019
Inmate Alexsandro Roman pro se sues the Pennsylvania Department of Corrections and
certain prison officials and medical staff employed at SCI-Chester alleging their August and
September 2018 delay in medical care including in a three-day postponement of a sick call
appointment caused him injury. Mr. Roman seeks leave to proceed in forma pauperis. We grant
Mr. Roman leave to proceed in forma pauperis but dismiss the Complaint with the exception of
the deliberate indifference and negligence claims against medical professionals Dr. Little and
Physician Assistant Nicholson. We also grant him leave to replead the dismissed claims if he can
do so consistent with this Memorandum other than civil rights and state law claims against the
Department of Corrections, against state actors in their official capacity, and for disability
discrimination against the individual state actors.
I. Pro se allegations
Alexsandro Roman is a “Hispanic-Spanish speaking prisoner who was physically disabled
and suffering from a serious medical condition of a dislocated disc, arthritis, and infection in the
bone at L-2 and L-3” which required immediate medical treatment during his confinement at SCI-

Chester.! Before he began to serve a prison term at SCI-Chester, Temple University Medical
Hospital prescribed medication for these ailments.”
Medical treatment in August 2018.
On August 1, 2018, Hahnemann Hospital discharged Mr. Roman to SCI-Chester in extreme
physical pain.? Mr. Roman gave his Hahnemann records to prison Medical Director Dr. Little and
Physician Assistant Nicholson, who reviewed them.* Mr. Roman told SCI-Chester’s medical
intake staff, including Dr. Little and Physician Assistant Nicholson, about his injuries and medical
needs.> On August 1, 2018, and for many days thereafter, Mr. Roman suffered excruciating
physical pain.® He asked Dr. Little and Physician Assistant Nicholson for “medications for pain,
a cane to walk with, bottom bunk status, and [a] no stairs status.”’ They “intentionally and
deliberately disregarded [his] requests for medical assistance.”*
Mr. Roman’s September 10, 2018 sick call is cancelled
but gets his medicine three days later.
Over five weeks later, on September 6, 2018, Mr. Roman submitted a sick call request, and
SCI-Chester scheduled a sick call for September 10, 2018.? Upon arriving for the sick call,
Correctional Officer Dixon told Mr. Roman of no more available sick call services for the
remainder of the day.!° As Mr. Roman now concedes, SCI-Chester had just returned to normal
operations after a lockdown.!! Mr. Roman told Officer Dixon and Lieutenant White of his “serious
physical injuries”, “extreme and severe physical pain” and “urgent” need to be seen by medical
staff.!* Lieutenant White assisted Officer Dixon “in refusing [him] medical care even though [he]
had a scheduled appointment for medical services at sick call” and both sent him “back to his
housing unit still suffering in pain from his physical injuries without any medical care.”
Mr. Roman grieved the denial of medical services on September 10, 2018.'* He also
“brought his medical issues to the attention of Deputy Superintendent Walls.”!° The Deputy

Superintendent scheduled him for a September 13, 2018 sick call at which time SCI-Chester
reordered his medications.
I. Analysis
Mr. Roman pro se sues state actors employed with SCI-Chester claiming they deprived
him of civil rights in delaying medical care between August 1 and September 13, 2018. He sues
Medical Director Dr. Little, Physician Assistant Nicholson, Officer Dixon, Lieutenant White and
the Pennsylvania Department of Corrections. He pleads Dr. Little and Physician Assistant
Nicholson intentionally and maliciously denied and/or delayed his medical care and medications
for many days; knowingly and intentionally disregarded the medication prescription orders from
Temple University Medical Hospital; and, failed to have him sign a medical records release
authorization so that they could properly and appropriately treat his serious medical conditions.'®
He also alleges the individual Defendants treated him unfairly and in a discriminatory manner
based on his inability to speak English, his Puerto Rican descent, and his physical disabilities!”
Mr. Roman alleges he “personally observed all other similarly situated inmates at SCI-Chester
being treated appropriately who spoke English, [and were] of a different ethnicity, and not
physically disabled.”'®
In addition to the cruel and unusual punishment and equal protection theories, Mr. Roman
attempts to raise claims under the Americans with Disabilities Act as a qualified individual with a
physical disability while confined at SCI-Chester.!® He alleges Defendants “denied programs,
services, and activities on the account of his physical disabilities.”*°
Mr. Roman claims these constitutional torts exacerbated the pain of his dislocated disc,
more arthritis in L-2 and L-3, increased infection due to lack of prescribed medication, extreme
suffering without cane and medication, exposure to “M[RS]A and staph” infections, and

deterioration of health.2!_ He seeks $75,000 in compensatory damages and $100,000 in punitive
damages from each Defendant.”
A. We grant Mr. Roman leave to proceed in forma pauperis.
Mr. Roman seeks leave to proceed without paying the filing fees under 28 U.S.C. § 1915.
We grant Mr. Roman leave to proceed in forma pauperis as the sworn filings confirm he is an
inmate incapable of paying the fees to commence this civil action.”
B. Mr. Roman may only proceed on the deliberate indifference claim against Dr.
Little and Physician Assistant Nicholson.
In waiving his filing fees, Congress requires us to review and dismiss the Complaint if he
fails to state a claim. We determine whether the complaint contains “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.””4 Conclusory allegations
do not suffice.2> As Mr. Roman is proceeding pro se, we construe his allegations liberally.”
1. We dismiss Mr. Roman’s claims against the Pennsylvania Department
of Corrections with prejudice.
Mr. Roman sued the Pennsylvania Department of Corrections for civil rights violations
under 42 U.S.C. § 1983. Mr. Roman cannot maintain his claims against the Department of
Corrections as an arm of the Commonwealth sharing in the Commonwealth’s immunity and is not
a “person” liable under section 1983.7” We dismiss Mr. Roman’s civil rights claims against the
Department of Corrections with prejudice.
2. We dismiss Mr. Roman’s civil rights claims against state officials in
their official capacity with prejudice.
Mr. Roman sues the state officials in their official and individual capacities. We dismiss
the official capacity claims with prejudice. The Eleventh Amendment bars suits against a state
and its agencies in federal court that seek monetary damages.”*® As noted above, “[bJecause the
Commonwealth of Pennsylvania’s Department of Corrections is a part of the executive department

of the Commonwealth, it shares in the Commonwealth’s Eleventh Amendment immunity.””? Suits
against state officials acting in their official capacities are really suits against the employing
government agency, and as such, are also barred by the Eleventh Amendment.*°
As Mr. Roman’s official capacity claims are essentially claims against the Department of
Corrections barred by the Eleventh Amendment, we dismiss these official capacity claims with
prejudice.
3. Mr. Roman has plead deliberate indifference claims against Dr. Little
and Physician Assistant Nicholson but has not plead deliberate
indifference by Lieutenant White or Officer Dixon.
Mr. Roman sues Dr. Little, Physician Assistant Nicholson, Lieutenant White and Officer
Dixon in their individual capacities for deliberate indifference under the Eighth Amendment. After
review of the preliminary record, he may proceed against the medical professionals but not against
Lieutenant White or Officer Dixon.
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.’?' To state an Eighth Amendment claim
based on the failure to provide medical treatment, a prisoner must allege facts showing prison
officials deliberately indifferent to his serious medical needs.*” A prison official is not deliberately
indifferent “unless the official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”?
“A medical need is serious, . . . if it is 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.”°4 Deliberate indifference has been found “where the prison official (1)

knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from
receiving needed or recommended medical treatment.”3° But allegations of medical malpractice
and mere disagreement regarding proper medical treatment are insufficient to establish a
constitutional violation.> “Absent a reason to believe (or actual knowledge) that prison doctors
or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will
not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.”?”
Mr. Roman alleges Dr. Little and Physician Assistant Nicholson have medical training, and
the most knowledge of Mr. Roman’s injuries and condition, and are the most capable of taking
action related to his medical treatment. Liberally construing his Complaint, Mr. Roman alleged
facts suggesting these two medical professionals observed, examined, and knew of his injuries and
the extent of those injuries, and either did not provide medical treatment or did not provide the
required treatment. Liberally construing his Complaint and taking all inferences as true as we
must do at this stage, Mr. Roman alleges sufficient facts to proceed on his deliberate indifference
Eighth Amendment claims against these two medical Defendants.
We cannot find the same plead facts showing a deliberate indifference claim as to
Lieutenant White and Officer Dixon. Mr. Roman’s allegations against Lieutenant White and
Officer Dixon do not state a plausible claim against them. Mr. Roman alleges Officer Dixon,
working at the desk at the medical department on September 10, 2018, told him the “medical staff
was not providing any more sick call services for the day.”28 Mr. Roman told Officer Dixon and
Lieutenant White of “serious physical injuries” and “in extreme and severe physical pain” and
“urgently needed to be seen by medical staff.”?? Mr. Roman alleges Lieutenant White assisted
Officer Dixon “in refusing [him] medical care even though [he] had a scheduled appointment for

medical services at sick call” and both Lieutenant White and Officer Dixon sent him “back to his
housing unit still suffering in pain from his physical injuries without any medical care.” The
responses to grievances confirm a lockdown at the same time.
Mr. Roman’s brief and conclusory allegations do not support a plausible claim of deliberate
indifference to his serious medical needs by the prison officials. Although Mr. Roman alleges he
spoke with Lieutenant White and Officer Dixon on September 10, 2018, his plead facts do not
support a plausible claim against either of them for deliberate indifference to his serious medical
needs. Mr. Roman has not alleged sufficient facts suggesting either Lieutenant White or Officer
Dixon knew his medical condition, the extent of his medical condition, or his alleged need for
medication. We cannot find they would be able to draw an inference of a substantial risk of serious
harm existing if he did not see the doctor that day.*! Nor does Mr. Roman allege facts suggesting
he presented with such an obvious or immediate need for medical care to allow us to infer
Lieutenant White or Officer Dixon acted with deliberate indifference.
Mr. Roman’s allegations against Lieutenant White and Officer Dixon are not sufficiently
developed to support a plausible claim against either. We dismiss Mr. Roman’s deliberate
indifference claim against those Defendants without prej udice.
4. Mr. Roman does not plead a disabilities claim.
Mr. Roman sues the Department of Corrections and individual state actors for
discriminating against him under the Americans with Disabilities Act (Act). He cannot sue these
individuals. He also fails to state a claim against these Defendants under the Act. The Supreme
Court directs “Title II of the [Act], which prohibits a ‘public entity’ from discriminating against a
‘qualified individual with a disability’ on account of that individual’s disability, covers inmates in
state prisons.” To state a claim under the Act, “a plaintiff must show (a) that he has a disability,

(b) that he was either excluded from participation in or denied the benefits of some entity’s
services, programs, or activities, and (c) that such exclusion, denial of benefits, or discrimination
was by reason of h[is] disability.”
Although our Court of Appeals has not addressed the issue precedentially, most courts hold
“Title II does not authorize suits against government officers in their individual capacities.”
Because the individual defendants are not public entities subject to suit, Mr. Roman cannot assert
disability discrimination claims against them.** We dismiss the disability discrimination claims
against the individual defendants with prejudice.
We dismiss Mr. Roman’s disability claims against the Department without prejudice.
“[D]ecisions about a prisoner’s medical treatment generally do not give rise to a claim under
the [Act].’“° To the extent Mr. Roman bases his disability discrimination claims on something
other than medical care, his allegations are too vague and conclusory to plead a claim against the

Department. It is not clear from his allegations whether the Department excluded him from
participation in or denied him the benefits of its services, programs, or activities, on account of a
disability. We dismiss his disabilities discrimination claims against the Department without
prejudice.

5. Mr. Roman does not plead Equal Protection claims.
Mr. Roman also suggests the Defendants violated his rights under the Equal Protection
Clause of the Fourteenth Amendment. He has not plead an Equal Protection claim. We dismiss
these claims without prejudice. To state a claim for equal protection, a plaintiff must allege facts
showing he received different treatment than others similarly situated and the treatment was due
to membership in a protected class.*”

Mr. Roman pleads the individual Defendants treated him unfairly and in a discriminatory
manner based on his inability to speak English, his Puerto Rican descent, and his physical
disabilities.*® Mr. Roman pleads he “personally observed all other similarly situated inmates at
SCI-Chester being treated appropriately who spoke English, [and were] of a different ethnicity,
and not physically disabled.”’*?
Mr. Roman’s single allegation, which forms the sole basis for his Equal Protection claim,
amounts to nothing more than a formulaic recitation of the elements of an Equal Protection claim.
He has not specifically alleged a fact regarding who would be considered similarly situated parties
nor has he alleged he was the only inmate to have been subjected to inappropriate treatment. He
does not state an equal protection claim.*°
6. We dismiss Mr. Roman’s state law claims.
Mr. Roman refers to possible state law claims without pleading facts corresponding to each
alleged claim.°! To the extent Mr. Roman asserts a state law claim against the Department, those
claims are barred under the Eleventh Amendment.°? The Eleventh Amendment bars suits against
a state and its agencies in federal court seeking monetary damages.°? Under the doctrine of
sovereign immunity, we also dismiss Mr. Roman’s state law claims against the Department. The
Commonwealth has not waived sovereign immunity for such claims, and dismissal is proper.™
Mr. Roman alleges the individual Defendants are liable for “negligence” and “intentional
infliction of emotional distress” caused by “extreme and outrageous” conduct.°> Mr. Roman
pleads the individual Defendants appear to be Commonwealth employees.°® As such they are
entitled to sovereign immunity to the extent they are acting within the scope of their duties.*”
But “a Commonwealth party who is a healthcare employee may be liable for medical
malpractice. § 8522(b)(2).”°® Under this recognized exception and at this early stage of the

litigation, we permit Mr. Roman to proceed on his medical negligence claim against Dr. Little and
Physician Assistant Nicholson, as healthcare employees. We dismiss Mr. Roman’s medical
negligence claim as to Lieutenant White and Officer Dixon with prejudice. To proceed on a
medical negligence claim against Dr. Little and Physician Assistant Nicholson, he may need a
certificate of merit for medical negligence claims.
We dismiss Mr. Roman’s claims for intentional infliction of emotional distress against the
individual Defendants. Mr. Roman must “demonstrate intentional outrageous or extreme conduct
by the defendant, which causes severe emotional distress” to state a claim for intentional infliction
of emotional distress.** He must plead conduct “so outrageous in character, so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in civilized society.”©’ Mr. Roman’s brief and conclusory allegations do not provide
facts to support “extreme and outrageous” conduct allowing us to find a plausible state law claim
for intentional infliction of emotional distress. We dismiss Mr. Roman’s emotional distress claim
with prejudice.
III. Conclusion
We grant Mr. Roman leave to proceed in forma pauperis, and he may proceed on his
deliberate indifference and state law medical negligence claims against Dr. Little and Physician
Assistant Nicholson in their individual capacities. But we dismiss with prejudice all the civil rights
and state law claims against the Pennsylvania Department of Corrections and the civil rights claims
against all Defendants in their official capacity. We dismiss without prejudice his civil rights
claims and state law claims against Lieutenant White and Officer Dixon in their individual
capacities, his equal protection claims against all individual Defendants, his disability claims, and

10

his claims for intentional infliction of emotional distress against Dr. Little and Physician Assistant
Nicholson.
Mr. Roman may timely file an amended complaint to cure these plead deficiencies.°! If he
chooses not to file an amended complaint, we will then direct service on Dr. Little and Physician
Assistant Nicholson on the deliberate indifference.

! ECF Doc. No. 3 at 8.
2 Id. at 8-9.
3 Id. at 9.
4 Id.
> Id.
6 Id.
"Id. at 9-10.
8 Id.
Id. at 10.
10 I
"Td at 21.
2 Td at 11.
13 Iq
14 Ig
1S
'® Td, at 11-12.
Td. at 12.

11

18 Tg
19 Td
20 Td.
21 Td. at 7.
22 Td.
23 As Mr. Roman is a prisoner, he is obligated to pay the filing fee in installments under the Prison
Litigation Reform Act. See 28 U.S.C. § 1915(b).
4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
25 Td.
26 Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
27 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66 (1989); Lavia v. Pa. Dep’t of Corr.,
224 F.3d 190, 195 (3d Cir. 2000).
28 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984); A.W. v. Jersey
City Public Schs., 341 F.3d 234, 238 (3d Cir. 2003).
29 Lavia, 224 F.3d at 195.
30 4. W., 341 F.3d at 238; see also Hafer v. Melo, 502 U.S. 21, 25 (1991); Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 70-71 (1989).
31 West v. Atkins, 487 U.S. 42, 48 (1988).
32 See Farmer v. Brennan, 511 U.S. 825, 835 (1994).
33 Td. at 837.
34 Monmouth Cty. Corr. Inst’l Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal
quotations omitted).
35 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
36 See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
37 Td. at 236.
38 ECF Doc. No. 3 at 10.
12

39 Id. at 11.
40 Id
41 See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (“Neither of these defendants, however,
is a physician, and neither can be considered deliberately indifferent simply because they failed to
respond directly to the medical complaints of a prisoner who was already being treated by the
prison doctor.”).
42 Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 208 (1998) (quoting 42 U.S.C. §§ 12131 & 12132)
(internal quotations omitted).
43 Matthews v. Pa. Dep’t of Corr., 613 F. App’x 163, 167 (3d Cir. 2015) (citing 42 U.S.C. § 12132).
44 Williams v. Hayman, 657 F. Supp. 2d 488, 502 (D.N.J. 2008); see also Bowens v. Wetzel, 674
F. App’x 133, 136 (3d Cir. 2017) (per curiam) (“[T]he District Court could have properly followed
the holdings of those circuits which have concluded that there is no individual damages liability
under Title II of the ADA, which provides an additional basis to affirm the dismissal of this
claim.”).
4° See Matthews, 613 F. App’x at 169.
46 Nunez v. Prime Care Health, Inc., No. 19-859, 2019 WL 1400466, at *1 n.3 (E.D. Pa. Mar. 27,
2019) (citing cases); see also Kokinda v. Pennsylvania Dep’t of Corr., 663 F. App’x 156, 159 (3d
Cir. 2016) (“The District Court was also correct to conclude . . . that Kokinda’s ADA claims fail
because the ADA prohibits disability-based discrimination, not inadequate treatment for the
disability.” (footnotes and internal quotations omitted)); Brown v. Pennsylvania Dep’t of Corr.,
290 F. App’x 463, 467 (3d Cir. 2008) (per curiam) (rejecting disabilities claim where inmate
alleged “that the prison ignored his alleged disabilities in order to justify his placement in the
LTSU—not that they placed him in the LTSU because of discriminatory animus based on his
alleged mental disabilities.”).
47 See Farug v. McCollum, 545 F. App’x 84, 87 (3d Cir. 2013) (“To state a claim for race- or
religion-based discrimination, [plaintiff] needed to show specifically that he received different
treatment from that received by other similarly situated inmates.” (citing Williams v. Morton, 343
F.3d 212, 221 (3d Cir. 2003)). “[T]o state a claim for ‘class of one’ equal protection, a plaintiff
must at a minimum allege that he was intentionally treated differently from others similarly
situated by the defendant and that there was no rational basis for such treatment.” Phillips v. Cty.
of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
48 ECF Doc. No. 3 at 12.
49 Id.
°° See Perano v. Twp. Of Tilden, 423 F. App’x 234, 238-39 (3d Cir. 2011) (“Without more specific
factual allegations as to the allegedly similarly situated parties, he has not made plausible the
13

conclusion that those parties exist and that they are like him in all relevant aspects.”); Carson v.
Mulvihill, 488 F. App’x 554, 563 (3d Cir. 2012) (finding equal protection claim not pled where
plaintiff failed to “allege facts showing that he was similarly situated to the inmates who received
wheelchair footrests, crutches and canes, or that there was no rational basis for his different
treatment”).
5! ECF Doc. No. 3 at 13.
52 Lavia, 224 F.3d at 195.
3 See Pennhurst, 465 U.S. at 99-100; A.W., 341 F.3d at 238; see also Beckett v. Pennsylvania
Dep’t of Corr., 597 F. App’x 665, 667 (3d Cir. 2015) (Eleventh Amendment barred claims for
injunctive relief against the DOC and for money damages against the DOC’s defendants in their
official capacities) (citing Will, 491 U.S. at 71).
4 See Beckett, 597 F. App’x at 667 (citing 42 Pa. Cons.Stat. § 8522; McCool v. Dep’t of Corr.,
984 A.2d 565, 570 (Pa. Commw. Ct. 2009)).
55 ECF Doc. No. 3 at 13.
Mr. Roman pled all individual Defendants are employed by the Department at SCI Chester.
ECF No. 3 at 3-4.
57 See Pennsylvania Const. Art. 1, § 11; 1 Pa. C.S.A. § 2310; 42 Pa. Cons. Stat. § 8522.
58 Davis v. Corizon Health, Inc., No. 14-1490, 2015 WL 518263, at *9 n. 28 (E.D. Pa. Feb. 9,
2015); see also McCool v. Dep’t of Corr., 984 A.2d 565, 571 (Pa. Commw. Ct. 2009); Williams v.
Syed, 782 A.2d 1090, 1096 (Pa. Commw. Ct. 2001).
Wilson v. Jin, 698 F. App’x 667, 673 (3d Cir. 2017) (citing Reeves v. Middletown Athletic Ass’n,
866 A.2d 1115, 1122 (Pa. Super. Ct. 2004)).
6° Id, (quoting Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)).
6! See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10398079. Public record. Not legal advice.