# ABNEY v. WETZEL

> District Court, E.D. Pennsylvania · November 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10400011

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** November 23, 2020
- **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/10400011

## How later opinions describe it (automated extraction)

- holding that district court properly dismissed claims against prison medical department because it was not a person under § 1983
- holding that official’s mere negligence is not actionable under § 1983 because “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAREY ABNEY, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 20-CV-4680
:
JOHN WETZEL, et al., :
Defendants. :
MEMORANDUM
JONES, J. NOVEMBER 23, 2020
Plaintiff Carey Abney, a prisoner currently incarcerated at SCI Phoenix, brings this civil
action pursuant to 42 U.S.C. § 1983 based on allegations that his constitutional rights were
violated with respect to his medical care. Abney seeks leave to proceed in forma pauperis. For
the following reasons, the Court will grant Abney leave to proceed in forma pauperis and
dismiss his Complaint with leave to amend.
I. FACTUAL ALLEGATIONS
Abney’s Complaint raises claims pursuant to 42 U.S.C. § 1983 against John Wetzel
(identified in the Complaint as the “Pa. DOC. Secretary”), K. Sorber (SCI Phoenix
Superintendent), Well-Path (a/k/a Correct Care Solutions), Ms. Sipple (Deputy Superintendent
for Centralization at SCI Phoenix), Ms. G. Orlando (SCI Phoenix Grievance Coordinator), SCI
Phoenix Medical Department, and Ms. Dorina Verner (Pa.DOC Grievance Official) in their
official and individual capacities. (ECF No. 2 at 3-5, 30-31.)1 According to his Complaint,
although the “entire medical deliberate indifference” to his medical needs commenced a few

1 The Court adopts the pagination assigned to the Complaint by the CM/ECF system.
years prior to his commencement of this action, the indifference became very severe in May of
2019 when “it became apparent [that] all defendants acts and omission . . . could trigger [his]
untimely death.” (Id. at 32.) Abney avers that he infinitely complained to “all defendants” that
he was suffering extreme pain in his groin and abdominal region. (Id.) Abney further asserts

that during the summer and fall of 2019, Sipple made medical decisions that were “a direct link
to the deliberate indifference” he experienced because Sipple lacked the proper skills, education,
and training to make medical decisions. (Id. at 32-33.)
Abney saw his urologist, Dr. Manfrey, on March 27, 2019 but contends that his doctor
“couldn’t do anything because a medical order for a CT-scan was not complied” with. (Id. at
34.) However, Abney notes that a CT-scan was conducted on May 1, 2019, and he was
examined at Hahnemann Hospital on May 17, 2019. (Id.) On June 28, 2019, Abney saw Dr.
Manfrey who “diagnosed [him] with a cyst on [his] kidney.” (Id.)
Because his pain was “unbearable,” Abney submitted a medical grievance (No. 834390)
on November 10, 2019. (Id. at 33.) On November 18, 2019, his medical grievance was denied

by Sipple, and affirmed by Orlando. (Id.) The Superintendent of SCI Phoenix affirmed Sipple’s
findings on December 10, 2019 and Abney subsequently appealed to the Pennsylvania
Department of Corrections. (Id.) On January 29, 2020, the Pennsylvania Department of
Corrections affirmed “with no further action.” (Id.) According to the Complaint, Abney
followed up with further appeals and documents on January 30, 2020, February 4, 2020, and
April 1, 2020. (Id. at 33-34.)
Abney states that the urological symptoms he experienced “are often indicative of a
serious urologic condition (one that can not be identified by non-medical defendants like Sipple,
Orlando, the Warden and Dorina) . . . which could have long term consequences to [his] health.”
(Id. at 34.) Abney further asserts that he “may be suffering correlating symptoms, severe pain,
voiding difficulties, passing blood instead of urine, bladder, or prostate cancers and infection,
incontinence and urethral strictures.” (Id.) Abney contends that the defendants “failed to follow
doctors orders” and prevented him from receiving “adequate care and treatment” which could

have “long term consequences” to his health and quality of life. (Id. at 34-35.) Abney asserts
that there was “no medical reason to delay” him from referral to “a urologist beyond at least a
two week period.” (Id. at 35.) Abney states that the “significant delay in referring [him] to a
urologist is due to the multi-layered extensive BUREAUCRATIC authorization protocol” at SCI
Phoenix where medical treatment has “to be approved by higher level authority.” (Id.) Abney
further avers that he is under a conservative plan of treatment and the delay in medical care is “a
DEVIATION from general accepted standards and protocol” and decisions were made “by non-
medical factors and authorization.” (Id.) Abney avers “pain and suffering for over two years”
and seeks $50,000 in money damages as well as “punitive damages upon any and all matters this
court [deems] would be appropriate to receive.” (Id. at 6.)

Abney has attached a copy of his Official Inmate Grievance (No. 834390) dated
November 10, 2019 to his Complaint. (Id. at 36.) The grievance form indicates that Abney has
“complained about pain in [his] lower left abdomen and groin area” from March 16, 2016
through October 30, 2019. (Id.) In the grievance, Abney asserts that he has received treatment
from several medical personnel during that time period, but he needs “medical treatment that the
Medical Department here, either will not or cannot provide” and states that his “medical
condition requires immediate attention because the pain is getting worse.” (Id.)
Abney has also attached a copy of an Initial Review Response to his grievance dated
November 18, 2019. (Id. at 24-25.) The response notes that Abney’s medical chart was
reviewed, and he is seen regularly by providers for sick call and chronic clinic for several
unresolved chronic conditions. (Id. at 24.) Abney has a small hernia and has been referred for
an ultrasound of the left inguinal pending authorization from Wellpath and “[s]everal physicians
have recommended the use of a hernia belt for which [Abney] refuse[s] to accept or use.” (Id.)

Based on recent examinations and testing, it was noted that Abney was not in immediate danger
and was receiving routine medical treatment and pain management assistance. (Id.) His
grievance was denied by Sipple and approved by Orlando. (Id.) The response further indicates
that Abney was not adhering to prescribed durable medical devices and was not fully medication
compliant. (Id.) Abney disagreed with Sipple’s assessment of the circumstances and appealed
the decision (Id. at 26-27), but the denial of the grievance was upheld by Ferguson on December
10, 2019. (Id. at 28).
II. STANDARD OF REVIEW
The Court will grant Abney leave to proceed in forma pauperis because it appears that he
is incapable of paying the fees to commence this civil action.2 Accordingly, 28 U.S.C.

§ 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a
claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),
see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). Conclusory allegations do not suffice. Id. As Abney is proceeding pro

2 However, as Abney is a prisoner, he will be obligated to pay the filing fee in installments in
accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).
se, the Court construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir.
2011).
III. DISCUSSION
“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.” West v. Atkins, 487 U.S. 42, 48 (1988).
A. Claims Against the SCI Phoenix Medical Department

Abney names as a Defendant the SCI Phoenix Medical Department. A state prison’s
medical department may not be sued under § 1983 because it is not a person. See Ruff v. Health
Care Adm’r, 441 F. App’x 843, 845-46 (3d Cir. 2011) (holding that district court properly
dismissed claims against prison medical department because it was not a person under § 1983);
see also Baumbach v. Mills, Civ. A. No. 18-15008, 2019 WL 360532, at *2 (D.N.J. Jan. 29,
2019) (citing Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973)); United States ex rel.
Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969). Accordingly, the SCI
Phoenix Medical Department is dismissed with prejudice.
B. Official Capacity Claims

The Eleventh Amendment bars suits against a state and its agencies in federal court that
seek monetary damages. 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). 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.3 A.W., 341 F.3d at 238; see

3 However, state officials sued in their individual capacities are “persons” within the meaning of
Section 1983. See Hafer, 502 U.S. at 31. Thus, the Eleventh Amendment does not bar suits for
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). Because the Pennsylvania Department of Corrections is a part of the executive
department of the Commonwealth of Pennsylvania, its employees share in the Commonwealth’s
Eleventh Amendment immunity to the extent that they are sued in their official capacities. See

Will, 491 U.S. at 71; see also Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000). As
the Commonwealth has not waived its Eleventh Amendment immunity for lawsuits filed in
federal court, see 42 Pa. Cons. Stat. § 8521-22, it and its departments, as well as its officials sued
in their official capacities, are immune from suits filed in federal court. Accordingly, the Court
will dismiss with prejudice Abney’s damages claims against the individual Defendants in their
official capacities.
C. Claims Against Well-Path

The claims Abney seeks to pursue against Well-Path (a/k/a Correct Care Solutions) must
be dismissed pursuant to § 1915(e)(2)(B). The United States Court of Appeals for the Third
Circuit has held that “a private health company providing services to inmates ‘cannot be held
responsible for the acts of its employees under a theory of respondeat superior or vicarious
liability.’” Sims v. Wexford Health Sources, 635 F. App’x 16, 20 (3d Cir. 2015) (quoting Natale
v. Camden County Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003)). Rather, in order to hold a
private health care company like Well-Path liable for a constitutional violation under § 1983,
Abney must allege the provider had “a relevant . . . policy or custom, and that the policy caused
the constitutional violation [he] allege[s].” Natale, 318 F.3d 575, 583-84 (citing Bd. of the Cty.
Comm’rs of Bryan Cty., Oklahoma v. Brown, 520 U.S. 397, 404 (1997)); see also Lomax v. City

monetary damages brought under Section 1983 against state officials in their individual
capacities. Id.
of Philadelphia, Civ. A. No. 13-1078, 2017 WL 1177095, at *3 (E.D. Pa. Mar. 29, 2017)
(“Because [defendant] is a private company contracted by a prison to provide health care for
inmates, . . . it can only be held liable for constitutional violations if it has a custom or policy
exhibiting deliberate indifference to a prisoner’s serious medical needs.”) (citations and

quotations omitted). To assert a plausible claim under § 1983 against this type of entity, the
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, PA, 564 F.3d 636, 658 (3d Cir.
2009) (citation omitted).
Abney fails to allege any facts demonstrating that any perceived deficiency in his medical
treatment resulted from Well-Path’s policies, practices, or customs, or that any such policy or
custom was the “moving force behind the injury alleged.” Berg v. County of Allegheny, 219 F.3d
261, 275-76 (3d Cir. 2000) (quoting Board of County Comm’rs of Bryan County v. Brown, 520
U.S. 397, 404 (1997)) (“Once a § 1983 plaintiff identifies a municipal policy or custom, he must
‘demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind

the injury alleged.’”). Abney has not tied any of the conduct or conditions of which he
complains to a custom or policy of Well-Path and has not alleged that Well-Path failed to
supervise, train or discipline any individual involved in the deprivation of Abney’s rights.
Accordingly, Abney has not stated a plausible claim against Well-Path and the claims against it
must be dismissed. However, because the Court cannot say at this time that Abney could never
state a plausible claim based on a policy or custom, the claims will be dismissed without
prejudice, and Abney will be granted leave to file an amended complaint to attempt to cure the
defects discussed above.
D. Claims Based Upon Medical Treatment

Abney asserts medical deliberate indifference claims against “all defendants.” However,
other than some factual assertions as to Sipple in connection with the denial of a grievance,
Abney has made no substantive allegations concerning these defendants. Abney is obligated to
explain how each individual named as a Defendant was personally involved in the violation of
his constitutional rights, whether due to the prison official’s own misconduct or the official’s
deliberate indifference to known deficiencies in a policy or procedure that violated Abney’s
rights. See Barkes v. First Corr. Med., Inc., 766 F.3d 307, 320 (3d Cir. 2014), reversed on other
grounds, Taylor v. Barkes, 135 S. Ct. 2042 (2015).
In a § 1983 action, the personal involvement of each defendant in the alleged
constitutional violation is a required element, and, therefore, a plaintiff must allege how each
defendant was involved in the events and occurrences giving rise to the claims. Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Baraka v. McGreevey, 481 F.3d 187, 210 (3d
Cir. 2007) (quotations omitted); see also Iqbal, 556 U.S. at 676 (explaining that “ [b]ecause

vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.”). Abney has made no allegations describing how any of the individual defendants
were personally responsible for any alleged constitutional violations with respect to his medical
care. Thus, the allegations are insufficient to put that person on notice to prepare a defense, and
the Complaint does not ensure that the Court is sufficiently informed of the facts to determine the
relevant legal issues.
In order to state a constitutional claim based on the failure to provide medical treatment, a
prisoner must allege facts indicating that a defendant was deliberately indifferent to his serious
medical needs. 4 See Farmer v. Brennan, 511 U.S. 825, 835 (1994). 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.” Id. at

837. “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.” Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987) (internal quotations omitted).
Deliberate indifference is properly alleged “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.” Bearam v. Wigen, 542 F. App’x 91, 92 (3d Cir.
2013) (per curiam) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)); see also
Montgomery v. Aparatis Dist. Co., 607 F. App’x 184, 187 (3d Cir. 2015) (per curiam) (“Delay or

denial of medical care violates the Eighth Amendment where defendants are deliberately
indifferent to a prisoner’s serious medical need.”). Moreover, “if a prisoner is under the care of
medical experts . . . , a non-medical prison official will generally be justified in believing that the
prisoner is in capable hands.” See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004); see also

4 It is unclear from the Complaint whether Abney was a pretrial detainee or convicted inmate at
the time of the events in question. (ECF No. 2 at 21.) If he was a pretrial detainee, the
Fourteenth Amendment governs his claims. See Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir.
2005). However, the standard under the Eighth Amendment and Fourteenth Amendment for
claims related to a prisoner’s medical needs is essentially the same for purposes of the analysis.
See Parkell v. Morgan, 682 F. App’x 155, 159 (3d Cir. 2017) (per curiam); see also Moore v.
Luffey, No. 18-1716, 2019 WL 1766047, at *3 n.2 (3d Cir. Apr. 19, 2019) (declining to address
whether a new standard applies to claims raised by pretrial detainees based on issues related to
medical care).
Carter v. Smith, 483 F. App’x 705, 708 (3d Cir. 2012) (per curiam) (“Prison officials cannot be
held to be deliberately indifferent merely because they did not respond to the medical complaints
of a prisoner who was already being treated by the prison medical staff.”). “[A]bsent 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.” Id. at 236.
Allegations of medical malpractice and mere disagreement regarding proper medical
treatment are insufficient to establish a constitutional violation. See Spruill v. Gillis, 372 F.3d
218, 235 (3d Cir. 2004). Simple negligence is not a sufficient basis for a constitutional claim.
See Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding that official’s mere negligence is not
actionable under § 1983 because “the Due Process Clause is simply not implicated by a negligent
act of an official causing unintended loss of or injury to life, liberty, or property”).
Abney’s deliberate indifference claims are not plausible as pled. He attempts to assert
claims against “all defendants” without specifying which named Defendant personally acted to

violate his rights and how each Defendant violated his rights. (ECF No. 2 at 32.) It is not clear
from Abney’s pleading what treatment he has received thus far, what treatment he is currently
receiving, what treatment he believes he should receive that has been delayed, and what role
each Defendant played in denying him that necessary medical care or treatment. That Abney
appears to be raising claims based on a series of events spanning several years against multiple
Defendants, possibly related to multiple medical conditions, adds to the difficulty in determining
the factual basis upon which his deliberate indifference claims against each Defendant rests.
For those Defendants against whom Abney raises allegations, the allegations are too
generalized to state a claim. For instance, he alleges that Sipple improperly made medical
decisions concerning his care, but he does not clarify what those decisions were or how they
exhibited deliberate indifference to his medical needs by denying him necessary medical
treatment. In sum, because Abney has failed to plausibly allege that the Defendants were aware
of his need for medical care and how each was personally involved in the alleged delay or denial

of medical care, his claims cannot proceed.
E. Claims Regarding Grievances

Moreover, to the extent that Abney alleges a violation of his rights with respect to the
denial of his grievance, this Court notes that claims based on the handling of prison grievances
fail because “[p]rison inmates do not have a constitutionally protected right to a grievance
process.” Jackson v. Gordon, 145 F. App’x 774, 777 (3d Cir. 2005) (per curiam); see also
Caldwell v. Beard, 324 F. App’x 186, 189 (3d Cir. 2009) (per curiam). Accordingly, if Abney is
attempting to raise claims based solely on the denial of his grievances, those claims are not
plausible and will be dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Abney leave to proceed in forma pauperis
and dismiss his Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Abney’s claims against the SCI Phoenix Medical Department will be dismissed with prejudice.
His claims against Well-Path and the individual defendants will be dismissed without prejudice
because they are not plausible as alleged. The Court cannot, however, state that Abney could
never allege plausible claims against Well-Path and the individual defendants in question.
Accordingly, Abney will be permitted to file an amended complaint against these Defendants
within thirty (30) days in the event he can state a plausible claim. See Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
An appropriate Order follows.
BY THE COURT:

/s/ C. Darnell Jones, II
C. Darnell Jones, II J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400011. Public record. Not legal advice.