# HOLLIDAY v. PRIME CARE MEDICAL

> District Court, E.D. Pennsylvania · January 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10400361

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** January 25, 2021
- **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/10400361

## How later opinions describe it (automated extraction)

- explaining that the district court “appropriately disposed of” prisoner’s conditions of confinement claims against Northampton County Prison on the basis that a prison is not a “person” subject to suit under § 1983
- holding that “exposure to the conditions of administrative custody for periods as long as 15 months falls within the expected parameters of the sentence imposed [. . .] by a court of law” and does not constitute a due process violation (quotation omitted)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL HOLLIDAY, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 19-CV-4564
:
PRIME CARE MEDICAL, et al., :
Defendants. :

MEMORANDUM
RUFE, J. JANUARY 25, 2021
Plaintiff Michael Holliday, proceeding pro se, has filed an Amended Complaint (ECF
No. 16). For the following reasons, the Amended Complaint will be dismissed in part pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii), and Holliday will be permitted to proceed on certain claims as set
forth below.
I. FACTUAL ALLEGATIONS1 AND PROCEDURAL HISTORY

Holliday, an inmate currently incarcerated at the Berks County Jail (“BCJ”), brings this
civil rights action pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights
based on the conditions of his confinement during his incarceration from approximately June
2019 through November 2019.2 Holliday names the following Defendants in this action: (1)
PrimeCare Medical; (2) the Berks County Jail System; (3) Dr. Kenneth Wloczewski, a doctor

1 The facts set forth in this Memorandum are taken from Holliday’s Amended Complaint and all the
documents and exhibits attached thereto.

2 At the time the Amended Complaint was initially submitted to the Court, Holliday was incarcerated
at BCJ. However, it seems that he was released sometime in December of 2019. (See Notice of
Change of Address, ECF No. 17 at 1.) Subsequently, though, it appears that Holliday was
reincarcerated at BCJ as of approximately March 13, 2020. (See Motion for Change of Address and
Status Update, ECF No. 18 at 1.) The Court understands the allegations of the Amended Complaint
to relate only to the prior period of his incarceration predating his December 2019 release and not to
his subsequent reincarceration in March of 2020.
with PrimeCare Medical at BCJ; (4) Warden Janine Quigley; (5) Deputy Warden Smith; (6)
Sergeant Acker (or Ackers), Disciplinary Hearing Officer; (7) Sergeant Tassone, Kitchen
Supervisor; (8) Jesse Kirsh, physician’s assistant with PrimeCare Medical at BCJ; (9) Gabriel
Pelaez, physician’s assistant with PrimeCare Medical at BCJ; (10) Nurse Leona, nurse with

PrimeCare Medical at BCJ; (11) Officer Katkowski, Corrections Officer at BCJ; (12) Officer
Almquist, Corrections Officer; and (13) Berks County Probation and Parole. (ECF No. 16 at 2-
6.)
Before detailing the allegations of the Amended Complaint, the Court will briefly recount
the procedural history of this case. Initially, Holliday submitted the original Complaint (ECF
No. 1), but failed to pay the required filing fee or seek leave to proceed in forma pauperis. The
Court subsequently directed Holliday to either pay the $400 filing fee or file a motion to proceed
in forma pauperis in order to proceed with this matter. (ECF No. 3 at 1.) Subsequently,
Holliday filed two Motions for Leave to Proceed In Forma Pauperis (ECF Nos. 4, 12) as well as
a Motion Requesting Additional Time to File In Forma Pauperis (ECF No. 6). Before the Court

had an opportunity to rule on Holliday’s Motions for Leave to Proceed In Forma Pauperis and
screen the original Complaint pursuant to § 1915, Holliday filed four separate motions (ECF
Nos. 7, 9, 10, 13) seeking to add additional facts to his original Complaint. He also sought to
submit additional evidence regarding his original Complaint (ECF No. 8) and filed a series of
Exhibits (ECF No. 11) which included Inmate Communication Forms, Inmate Grievance Forms,
Misconduct Citations, and a Disciplinary Hearing Appeal. As a result of Holliday’s piecemeal
attempt to amend the original Complaint, the Court granted Holliday leave to proceed in forma
pauperis and ordered Holliday to file an amended complaint in this matter so that he could
include all the relevant facts and allegations pertinent to his claims in a single, comprehensive
document so that the Court could properly screen his claims. Holliday’s Amended Complaint
(ECF No. 16) is now before the Court for purposes of conducting the required screening under
28 U.S.C. § 1915.
It appears from the Court’s careful review of the Amended Complaint and all the attached

documents, that nearly all of the factual allegations Holliday sets forth relate to one of six
primary issues Holliday has allegedly encountered with respect to his medical and dietary needs,
and his attempts to seek medical treatment at BCJ. These include: (1) difficulties obtaining the
medication, metoprolol, which Holliday alleges is required for a heart condition he has, known
as tachycardia; (2) inability to obtain catheters required for him to urinate due to a bladder
condition; (3) allegations of intimidation and retaliation by medical personnel for seeking further
medical treatment and filing grievances; (4) lack of treatment for a foot and ankle injury; (5)
failure to diagnose and treat ongoing symptoms Holliday encountered following receipt of
incorrect doses of methadone; and (6) failure to consistently receive gluten-free meals. As a
result of these six primary concerns, which the Court sets forth in more detail below, Holliday

seeks $750,000 in damages, and requests that he receive specific medical treatment including
receiving metoprolol for his tachycardia, an x-ray for his foot injury, a CAT scan or MRI related
to the overdose of methadone, treatment for anxiety and PTSD resulting from these incidents,
and to receive a gluten free diet without mistakes. (Id. at 9.)
A. Inability to Receive Prescribed Medication for Tachycardia
Holliday alleges that at the time of his incarceration at BCJ on or about June 21, 2019, he
spoke with a nurse “who worked in the medical department admitting new inmates.” (ECF No.
16 at 10.) Holliday asserts that he explained to the nurse that he has a heart condition known as
tachycardia, and that he has been “prescribed metoprolol for this condition.” (Id.) It appears that
Holliday submitted several “sick calls” regarding his need for metoprolol, but by July 3, 2019, all
of his “sick calls” on this issue “had been ignored[.]” (Id.) Holliday further alleges that on or
about July 12, 2019, he was “brought down to medical” to speak with Defendant Pelaez, a
physician’s assistant, and that he “notified [Pelaez] that [he] was supposed to be taking

metoprolol for” his tachycardia. (Id. at 12.) During this conversation, Holliday alleges that
another physician’s assistant, Defendant Kirsh “continuously interrupted” Holliday with
inappropriate comments such that Holliday was unable to complete his conversation with
Defendant Pelaez regarding his medical concerns and “an argument ensued.” (Id.; see also id. at
35.) Holliday contends that he signed a release of records as instructed by Defendant Pelaez in
order to release his records from his personal doctor in Reading, but that “they apparently did not
send [it] out” because he has “still not gotten” his tachycardia medication. (Id.)
B. Inability to Obtain Catheters Prescribed for Bladder Condition
Holliday similarly alleges that he also informed the admitting nurse on or about June 21,
2019 that he has “difficulty urinating” at times, particularly when he is asked to comply with a

“drug urine analysis test[.]” (Id. at 10.) As a result of these circumstances, Holliday contends
that his private doctor in Reading previously prescribed the use of “French 14 catheters” to aid
him with respect to his urination issues. (Id.) Despite informing the nurse of his need for
catheters, Holliday claims he was not provided with the necessary catheters which resulted in
him being “found guilty for ‘failure to provide a urine specimen’” on approximately June 25,
2019. (Id.) Holliday asserts that this failure to provide a urine specimen resulted in him
receiving “15 days in disciplinary” where he was placed in “cell 109 and subjected to what
inmates call ‘make it rain’” – a process that involves “inmates on the top tier” of BCJ urinating
down on a pole that is loose in the corner of a cell, causing the urine to seep down to the lower
ceiling. (Id.) Upon complaining to prison officials, Holliday alleges that Defendant Acker told
Holliday “That’s all just part of the experience[.]” (Id.) Holliday claims that he continued to
inform unspecified prison officials about his “bladder condition” and his need for catheters, but
he was still not “supplied with any catheters” and was “still punished for not being able to
urinate due to this medical condition.”3 (Id.)

C. Retaliation for Seeking Medical Care & Filing Grievances for Medical Care
Holliday alleges that as he continued to seek medical treatment by requesting sick calls
and filing grievances related to the medical care provided at BCJ, Defendants Wloczewski and
Pelaez sought to address this issue and dissuade Holliday from seeking additional treatment and
filing additional grievances. (Id. at 12.) Specifically, Holliday claims that on approximately
August 21, 2019, he was “called down to medical to speak with [Defendant] Dr. Kenneth
Wloczewski[.]” (Id.) While Holliday “attempted to explain [his] medical concerns” to
Defendant Wloczewski, Holliday claims that he was “abruptly cut off” and was “basically
warned not to put in anymore sick calls or grievances[.]” (Id.) Holliday contends that Defendant

Wloczewski told him to “quit creating a hard time for [the] medical staff or there [would] be
consequences[.]” (Id. at 33.) Holliday claims that Wloczewski told him they could “make [his]
life hell, and . . . arrange to have [Holliday] put in with an “inmate known throughout the jail for
raping his” cellmates. (Id.) Shortly thereafter, Holliday claims he was “brought to talk with
[Defendant] Pelaez who [also] made a comment about the consequences” if Holliday continued

3 Elsewhere in the Amended Complaint, Holliday asserts that he specifically informed Defendant
Pelaez that he “required the use of catheters” as a result of a “bladder problem” which makes it
difficult for Holliday to urinate at times. (ECF No. 16 at 12.)
to put in additional sick calls or grievances, specifically telling Holliday that if he “did so . . .
[Holliday] could be moved to a cell with an aggressive inmate.” (Id. at 12.)
Following these conversations with Defendants Wloczewski and Pelaez, Holliday asserts
that he made “multiple complaints about a swollen ankle” and was eventually taken down to

medical where he saw Defendant Pelaez on or about September 4, 2019. (Id.) Holliday claims
that upon his arrival, Pelaez asked him, “What did Dr. Wloczewski tell you Holliday?” –
presumably a reference to the prior conversation wherein Wloczewski warned Holliday not to
make additional sick calls or grievances. (Id.) As alleged, Pelaez went on to ask Holliday which
foot was the problem, and upon Holliday pointing to his right foot, Defendant Pelaez “stepped
[down] hard on” his right foot. (Id. at 14.) Holliday claims that he cried out in pain and before
he could leave, Pelaez called Defendant Wloczewski who then “entered the exam area and
warned [Holliday] not to tell anyone[.]” (Id. at 14, 35.) Holliday further claims that Defendant
Wloczewski “made a point” of telling Holliday that he “would not be believed” and that his “life
could be made more difficult.” (Id. at 14.) Holliday alleges that after Pelaez stepped on his foot,

Pelaez told him he could have a bottom bunk, which Holliday claims was his “reward for not
causing trouble[.]” (Id. at 14, 35.) However, Holliday asserts that he still has trouble with his
right foot and it has never been x-rayed. (Id. at 35.)
D. Improper Doses of Methadone and Failure to Treat Complications
In addition to his need for medication for tachycardia, Holliday also alleges that he is on
a methadone detox regimen. (Id. at 14.) Holliday asserts that he reported to medical on
September 23, 2019 to receive his 16 mg dose of methadone, which Defendant Nurse Leona
gave to him and he took. (Id.) Once he returned to his cell, Holliday claims that his cellmate
informed him that “the nurse screwed up and gave you my dose” of methadone. (Id.) Holliday
further claims that he was subsequently “called back down to medical” and told that he was
“given 100 mgs of methadone[.]” (Id. at 16.) Shortly thereafter, Holliday alleges that he became
lethargic and was ultimately put in the medical housing unit in an observation cell for a period of
24 hours. (Id.) During that period, Holliday asserts that he began to shake uncontrollably,

suffered from convulsions, “felt a cold spot in [his] head[,]” and became unconscious for an
unknown amount of time. (Id.) Upon regaining consciousness, Holliday noticed foam around
his mouth and alleges that he felt “different.” (Id.) Holliday claims that upon regaining
consciousness, he “immediately notified [Defendant] Officer Katkowski” of his condition and
his apparent need to be seen by a “doctor or a trained medical professional[.]” (Id.) Holliday
alleges that Defendant Katkowski called him “a liar” and other vulgar names.4 (Id.)
Holliday asserts that the following day he was seen by Defendant Jesse Kirsh, a
physician’s assistant, where he tried to explain his symptoms which included difficulty speaking,
feeling off balance, and problems with his left arm. (Id. at 16, 18.) According to Holliday,
Defendant Kirsh just “laughed it off” and told Holliday “You’ll live[.]” (Id. at 16.) Holliday

further asserts that he has “continued to experience speech problems, an awkward gait, and
weakness in [his] left arm.” (Id. at 18, 21.) Holliday claims that he has “put in several sick calls,
requests, . . . grievances[,]” and appeals relating to these symptoms and the dosage mix-up, but
that Defendants “do nothing to try to find out what damage [Holliday] may have suffered as a

4 In a grievance form attached to his Amended Complaint, Holliday asserted that he complained of
his symptoms after the September 23, 2019 methadone dosage mix up, but that he was not believed
and was left “stuck in the observation cell without receiving any medical attention aside from having
[his] vital signs . . . checked” when he should have received an MRI or a CAT scan. (Id. at 42.)
result” including possible seizures, convulsions, and/or a stroke. (Id.; see also Id. at 21) (“I still
have not been properly treated for the effects from the [dosage] . . . mix up.”)
Holliday claims that the September 23, 2019 dosage mix-up with his methadone was the
first of two such instances. According to the Amended Complaint, on or about November 6,

2019, he was again called down to medical where he should have received just a 2 mg dose of
methadone. (Id. at 21.) Holliday claims that his normal 2 mg dose does not have much of a
taste, but the dose he received on November 6, 2019 had a very strong taste. (Id.) Holliday
further alleges that about “half an hour later [he] began . . . feeling a bit lethargic and [he] started
to nod and drool on [his] shirt.” (Id.) Based on his previous experience in September, Holliday
immediately reported how he was feeling, and he was later sent down to medical, where he
asserts that he learned Defendant Nurse Leona had again given him the incorrect dose of
methadone – a dose intended for another inmate.5 (Id. at 21-22.) Holliday claims that he sent in
a grievance related to this second mix-up but has “yet to be seen by the provider for a follow-
up.” (Id. at 21-22.)

E. Failure to Consistently Receive Gluten Free Meals
According to the Amended Complaint, Defendant Pelaez “prescribed a medically
necessary gluten free diet” for Holliday at some time during his incarceration. (Id. at 20.)
However, Holliday claims that on September 12, 2019, his “diet tray” included “cream of
wheat[.]” (Id.) Holliday asserts that he alerted Defendant Corrections Officer Almquist and
questioned whether cream of wheat is supposed to be considered gluten free, to which Almquist
responded by calling the kitchen to confirm Holliday was on a gluten free diet, and speculating

5 Holliday does not quantify the dose he received during the November 6, 2019 dosage mix-up but
notes the name of the inmate whose dose he received instead of his own. (Id. at 21.)
“maybe it’s gluten free cream of wheat.” (Id.) Beyond this specific incident, Holliday alleges
that on a regular basis, the kitchen staff includes “white bread, pasta and other non-gluten free
diet foods on [his] tray labeling it as ‘gluten free’.” (Id.) He further asserts that when he
complains about such instances, “staff refuses to call the kitchen to get [his] gluten free tray[.]”

(Id.) Holliday claims that he has “eaten things [he] believed to be gluten free only to find out
later that [these foods] were not” and that he has gotten ill at times as a result. (Id.) Holliday
speculates in the Amended Complaint whether the BCJ maintains a “true gluten free menu” and
whether the inmate working in the kitchen handling diet meals is being “properly supervised[.]”
(Id.) Holliday further alleges that Defendant Sergeant Tassone in the kitchen “is well aware of
this” situation. (Id.)
II. STANDARD OF REVIEW
As noted above, the Court previously granted Holliday leave to proceed in forma
pauperis based on his apparent inability to pay the fees to commence this action.6 (See ECF
Nos. 14, 15.) As Holliday is proceeding in forma pauperis, his Amended Complaint is subject

to screening pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires the Court to dismiss the
Amended Complaint if, among other things, it fails to state a claim.7 Whether the Amended
Complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard

6 As Holliday filed this case while incarcerated, he is obligated to pay the $350 filing fee in
installments in accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).

7 The Amended Complaint, once submitted to the Court, serves as the governing pleading in the case
because an amended pleading supersedes the prior pleading. See Shahid v. Borough of Darby, 666 F.
App’x 221, 223 n.2 (3d Cir. 2016) (per curiam) (“Shahid’s amended complaint, however, superseded
his initial complaint.” (citing W. Run Student Hous. Assocs. LLC v. Huntingdon Nat’l Bank, 712 F.3d
165, 171 (3d Cir. 2013)); see also Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019) (“In
general, an amended pleading supersedes the original pleading and renders the original pleading a
nullity. Thus, the most recently filed amended complaint becomes the operative pleading.”) (internal
citations omitted).
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 Amended 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 Holliday is proceeding pro se, the Court
construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
However, “liberal construction of a pro se amended complaint does not mean accumulating
allegations from superseded pleadings.” Argentina v. Gillette, 778 F. App’x 173, 175 n.3 (3d
Cir. 2019).
III. DISCUSSION
In the Amended Complaint, Holliday seeks to bring claims for violations of his civil
rights pursuant to 42 U.S.C. § 1983, the vehicle by which federal constitutional claims may be
brought in federal court. “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). Importantly, “[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs.” See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). Indeed, “[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.” Iqbal, 556 U.S. at 676.
A. Deliberate Indifference Claims Regarding Tachycardia Medication
Holliday’s Amended Complaint primarily raises constitutional claims based on alleged
deliberate indifference to a variety of medical needs. The Due Process Clause of the Fourteenth
Amendment governs claims brought by pretrial detainees.8 Hubbard v. Taylor, 399 F.3d 150,
166 (3d Cir. 2005). To establish a basis for a Fourteenth Amendment violation, a prisoner must
allege that his conditions of confinement amount to punishment. Bell v. Wolfish, 441 U.S. 520,
538 (1979). “Unconstitutional punishment typically includes both objective and subjective

components.” Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007). “[T]he objective component
requires an inquiry into whether the deprivation was sufficiently serious and the subjective
component asks whether the officials acted with a sufficiently culpable state of mind.” Id.
(internal quotations and alterations omitted).
In that regard, “a ‘particular measure amounts to punishment when there is a showing of
express intent to punish on the part of detention facility officials, when the restriction or
condition is not rationally related to a legitimate non-punitive government purpose, or when the
restriction is excessive in light of that purpose.’” Bistrian v. Levi, 696 F.3d 352, 373 (3d Cir.
2012) (quoting Stevenson, 495 F.3d at 68); Steele v. Cicchi, 855 F.3d 494, 504 (3d Cir. 2017).
Courts should consider the totality of the circumstances in evaluating such a claim. Bistrian, 696

F.3d at 373 (“In evaluating a pretrial detainee’s claim of unconstitutional punishment, courts
must examine the totality of the circumstances within the institution.”). Furthermore, “[i]n
determining whether restrictions or conditions are reasonably related to the Government’s
interest in maintaining security and order and operating the institution in a manageable fashion,”

8 Holliday’s Amended Complaint indicates that at the time he submitted it for filing, Holliday was a
pretrial detainee. (Id. at 7.) A review of public records further demonstrates that Holliday was
arrested on June 21, 2019 in Reading, Pennsylvania and charged with retail theft and receiving stolen
property. See Commonwealth v. Holliday, CP-06-CR-0002924-2019 (C.P. Berks) at 1-2. Holliday
entered a guilty plea and was sentenced in that matter on November 18, 2019, just days after he
submitted the Amended Complaint. (Id. at 3, 6.) However, all of the events alleged in the Amended
Complaint occurred during the time that Holliday was a pretrial detainee.
courts are obligated to keep in mind that “such considerations are peculiarly within the province
and professional expertise of corrections officials . . . .” Stevenson, 495 F.3d at 68 n.3.
To state a claim based on the failure to provide medical treatment, a detainee must allege
facts indicating that prison officials were deliberately indifferent to his serious medical needs.

See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Hope v. Warden York Cnty. Prison, No. 20-
1784, 2020 WL 5001785, at *12 (3d Cir. Aug. 25, 2020). “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).
To establish a plausible deliberate indifference claim, “the plaintiff must allege facts which, if
true, would show that the official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference, and then disregarded that
risk.” Farmer, 511 U.S. at 834. 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.” Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999). 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).
In the Amended Complaint, Holliday alleges that he was previously diagnosed with, and
treated for, tachycardia,9 by his personal physician in Reading, Pennsylvania. (ECF No. 16 at

9 “Tachycardia is a faster than normal heart rate. A healthy adult heart normally beats 60 to 100
times a minute when a person is at rest. If [a person has] tachycardia . . ., the rate in the upper
chambers or lower chambers of the heart, or both, are increased significantly.” Raisley v. Astrue,
10.) Holliday specifically asserts that he was prescribed the medication, metoprolol, by his
personal physician and treated for his condition prior to his incarceration at BCJ. (Id.) Holliday
also makes clear that he repeatedly informed prison officials of his need to obtain this medication
for his heart condition, both at the time of his admission to BCJ and throughout his incarceration
via requests for sick call and in person conversations with Defendants Wloczewski10 and Pelaez.

(Id.) However, despite signing a release of records from his personal physician, Holliday alleges
that he did not receive his medication and his requests for medical care on this issue were
ignored.11 (Id.)
Holliday also alleges that medical personnel at BCJ including Defendants Wloczewski
and Pelaez threatened him, and that Defendant Pelaez purposely stepped on Holliday’s injured
foot, in order to stop Holliday from continuing to submit sick calls and grievances regarding his
need for medical treatment, including obtaining metoprolol for tachycardia. (Id. at 12, 33; see
also id. at 31 (alleging that “the jail . . . continues to deny me this Medication and my heart is in
pain and I have constant anxiety and [a] rapid heart rate as a result.”) Taken together and

construing the Amended Complaint liberally at this early stage of the litigation, the facts alleged
by Holliday are sufficient to state a plausible claim for deliberate indifference regarding

Civ. A. No. 12-606, 2013 WL 440971, at *7 (W.D. Pa. Feb. 5, 2013) (citing Mayo Clinic,
Tachycardia, available at http://www.mayoclinic.com/health/tachycardia/DS00929.).

10 According to the Amended Complaint, at one point where Holliday was attempting to explain his
tachycardia condition, Defendant Wloczewski referred to Holliday as the “tachycardia guy[.]” (ECF
No. 16 at 33.)

11 The Amended Complaint alleges that Holliday consistently did not receive metoprolol for his
tachycardia. (See, e.g., ECF No. 16 at 31) (“To this day I have still not gotten my Tachycardia
Medication.”) However, elsewhere in the Amended Complaint Holliday acknowledges “[t]his Jail at
one time gave me Lopressor for the [tachycardia] condition.” (Id.) It thus appears that while he may
have at one time received medication for tachycardia, at some point he stopped receiving the
medication.
Holliday’s need to receive a previously prescribed medication for a diagnosed heart condition.
As alleged, Holliday repeatedly informed Defendants about his need for this medication and
these Defendants prevented him from receiving this prescribed medication. Accordingly,
Holliday will be permitted to proceed on this claim against Defendants Wloczewski and Pelaez.

B. Deliberate Indifference Claims Regarding Catheters
Holliday also seeks to bring a deliberate indifference claim based on the failure to
provide medical treatment with respect to his inability to obtain prescribed catheters to aid him in
urinating, particularly when he is required to provide a sample for urinalysis testing. Like his
claims regarding his tachycardia medication, Holliday similarly alleges that his personal
physician previously diagnosed Holliday as having a “bladder condition” and that his physician
prescribed the use of “French 14” catheters for occasions when Holliday is unable to urinate as
necessary. (ECF No. 16 at 10.) Holliday again specifically asserts his personal physician treated
him for his bladder condition and prescribed the use of catheters prior to his incarceration at
BCJ. (Id.) The Amended Complaint also alleges that Holliday informed prison officials of his

diagnosed bladder condition and his need for catheters at the time of his admission to BCJ and
throughout his incarceration via requests for sick call and in person conversations with
Defendants Wloczewski and Pelaez. (Id. at 10, 12.) However, Holliday alleges that he was
“never supplied any catheters” during his incarceration at BCJ and that his requests for medical
care on this issue and his grievances were ignored. (Id.)
Construed liberally, the Amended Complaint alleges sufficient facts at this screening
stage of the litigation to state a plausible claim for deliberate indifference regarding Holliday’s
need for prescribed catheters when he had difficulty urinating due to a diagnosed bladder
condition. The Amended Complaint asserts that Holliday repeatedly informed Defendants about
his need for catheters and his bladder condition, but that he was ignored. It is also significant
that Holliday’s Amended Complaint contains allegations that Defendants Wloczewski and
Pelaez threatened, intimidated, and retaliated against Holliday as a result of his multiple sick call
requests. Accordingly, Holliday will be permitted to proceed on this claim. See Fleming v.

Allen, Civ A. No. 07-2338, 2009 WL 2215956, at *1, *3-*4 (N.D. Cal. July 23, 2009)
(concluding at screening that pro se prisoner’s amended complaint, read liberally, stated “a
cognizable claim for deliberate indifference to his serious medical needs against” a prison nurse
who failed to supply him with his required weekly catheters).
C. Claims concerning Disciplinary Housing
Holliday also names Sergeant Acker, the Head of the Disciplinary Housing Unit and
Hearing Examiner, as a Defendant. Although it is a bit unclear, the Court understands the
Amended Complaint as seeking to raise a Due Process claim regarding Acker’s decision to
impose a 15-day disciplinary punishment as a result of Holliday’s failure to provide a urine
sample. (ECF No. 16 at 10, 33.) Holliday alleges that he was found “guilty” for failure to

provide a urine specimen, but that in imposing this discipline, Acker disregarded Holliday’s
assertions that he had a bladder condition which required the use of catheters, particular for “on
the spot” urine samples, which he did not receive such that he was unable to comply. (Id.)
Holliday also alleges that his discipline included being put into a cell where he was subjected to
other inmates urinating down into his cell from up above, and that Acker told him that was part
of the “experience.” (Id. at 10.)
“[I]nmates are generally not entitled to procedural due process in prison disciplinary
hearings because the sanctions resulting from those hearings do not usually affect a protected
liberty interest.” Burns v. PA Dep't of Corr., 642 F.3d 163, 171 (3d Cir. 2011) (citing Sandin v.
Conner, 515 U.S. 472, 483-84 (1995)). The sanctions imposed upon Holliday were insufficient
to trigger due process protections. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002)
(“[C]onfinement in administrative or punitive segregation will rarely be sufficient, without more,
to establish the kind of ‘atypical’ deprivation of prison life necessary to implicate a liberty

interest [for purpose of triggering due process protection].” (quoting Sandin, 515 U.S. 472
(1995))); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (holding that “exposure to the
conditions of administrative custody for periods as long as 15 months falls within the expected
parameters of the sentence imposed [. . .] by a court of law” and does not constitute a due process
violation (quotation omitted)). However, to the extent the Amended Complaint may be
construed to allege a conditions of confinement claim based on Holliday’s allegations regarding
the urine coming down from upper cells, the Court will not dismiss the claim at this time, as it is
not clear the extent to which the cell, in which Holliday was housed for 15 days, was so
unsanitary as to violate the prohibition against cruel and unusual punishment. See Taylor v.
Riojas, 141 S. Ct. 52 (2020). Accordingly, Holliday’s due process claim against Sergeant Acker

will be dismissed, but not the claim based on the conditions of confinement.
D. Retaliation Claims for Seeking Medical Care and Filing Grievances
Holliday’s Amended Complaint also appears to be raising retaliation claims against
Defendants Wloczewski and Pelaez. In order to state a plausible First Amendment retaliation
claim, a prisoner must allege that: (1) he engaged in constitutionally protected conduct; (2) he
suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his
constitutional rights; and (3) the constitutionally protected conduct was “a substantial or
motivating factor” for the adverse action. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). A prisoner’s filing of a grievance
constitutes constitutionally protected conduct. See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir.
2016). The timing of the allegedly retaliatory behavior relative to the constitutionally protected
conduct may establish a causal link between the two for purposes of establishing motivation. See
id.

The allegations of the Amended Complaint, construed liberally, set forth a plausible
claim for retaliation against Defendants Wloczewski and Pelaez. Holliday alleges that these
Defendants were aware of not only his multiple sick calls seeking medical treatment but also the
grievances Holliday filed regarding his medical care, or lack thereof, at BCJ. (ECF No. 16 at
12.) Holliday specifically alleges that Defendant Wloczewski “basically warned [Holliday] not
to put in anymore sick calls or grievances[,]” and that Defendant Pelaez subsequently reiterated
this message to Holliday as well. (Id.) Holliday claims that both Defendants made comments
about Holliday facing “consequences” if he continued filing sick calls and grievances –
consequences that apparently included potentially being housed with an aggressive cellmate. (Id.
at 12, 14, 33.)

Further, Holliday alleges that when he sought subsequent medical care for a swollen
ankle, Defendant Pelaez “stepped [down] hard on” his injured right foot in an apparent act of
retaliation, causing Holliday to cry out in pain. (Id. at 14.) Holliday claims that shortly
thereafter, Wloczewski arrived and continued their attempts to threaten and intimidate Holliday
from filing additional grievances by telling him he would not be believed and providing him a
bottom bunk pass as a “reward” for his cooperation. (Id.) The denial of medical treatment when
it was sought, coupled with the infliction of physical pain to the initial injury, and the use of
threats and “rewards” to intimidate and prevent Holliday from speaking out about these events,
clearly represent an “adverse action” and demonstrate a sufficient causal link between the
exercise of Holliday’s constitutional rights and the actions taken against him. Liberally
construed and accepted as true at this stage of the litigation, Holliday’s allegations set forth a
plausible claim for retaliation and that claim will be permitted to proceed.12
E. Deliberate Indifference Claims Arising from Methadone Dosage Mix-Ups

In the Amended Complaint, Holliday alleges that on two separate instances, once in
September and once in November of 2019, Defendant Nurse Leona gave him an incorrect dose
of methadone. (ECF No. 16 at 14, 16, 21-22.) Although he was placed in the medical housing
unit for a 24 hour observation period after the first dosage mix-up, Holliday alleges that he lost
consciousness, suffered seizures, convulsions, and a possible stroke as a result of this mix-up and
that he has ongoing symptoms, including speech problems, an awkward gait, feeling off balance,
and problems with his left arm. (Id. at 16, 18, 21.) Holliday further alleges that he has reported
these ongoing symptoms both in person to Defendant Kirsh, and by way of sick calls,
grievances, and appeals, but he has not received any further treatment or evaluation for these
ongoing symptoms such as an MRI or a CAT scan. (Id. at 16, 21.) Specifically, Holliday alleges

that Defendant Kirsh just “laughed it off” and told him “You’ll live[.]” (Id. at 16.)
Much like Holliday’s other deliberate indifference claims regarding his medical treatment
at BCJ, the Amended Complaint, construed liberally, sets forth a plausible claim that Defendants
Kirsh, Wloczewski, and Pelaez were deliberately indifferent to his serious medical needs

12 The Amended Complaint also sufficiently alleges a plausible claim for excessive force based on
his allegation that Pelaez deliberately inflicted pain upon Holliday by stepping on his injured foot and
for deliberate indifference to his serious medical needs based on allegations that Holliday still has
trouble with his right foot and has not received medical treatment for the initial injury or the
additional injury caused by Defendant Pelaez stepping on his foot. (ECF No. 16 at 35.)
Accordingly, Holliday will also be permitted to proceed on these claims.
following his receipt of incorrect doses of methadone.13 While it appears Holliday was initially
observed in the medical unit following the methadone dosing error, he alleges that he had
ongoing problems after that time including difficulty speaking, an awkward gait, and weakness
in his left arm that were not addressed by the medical providers despite the persistence of these

symptoms. Holliday makes clear that he informed Defendant Kirsh of his concerns, but his
medical issues were “laughed off”, and that his sick calls and grievances on the issue also failed
to bring about additional medical treatment. Accordingly, Holliday’s deliberate indifference
claims regarding failure to receive medical treatment for these ongoing symptoms related to his
methadone dosing errors will be permitted to proceed.
F. Deliberate Indifference Claims Relating to Gluten Free Diet
The Eighth Amendment requires that inmates be served “nutritionally adequate food that
is prepared and served under conditions which do not present an immediate danger to the health
and well being of the inmates who consume it.” Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir.

13 However, the Amended Complaint does not set forth a plausible claim for deliberate indifference
against Defendant Nurse Leona. The Amended Complaint alleges only that Defendant Leona “is
totally mistake prone” and has “made several errors dispensing methadone” (ECF No. 16 at 16, 37.)
As set forth in the Amended Complaint, Holliday has only alleged, at best, that Defendant Leona
acted negligently in mistakenly giving him the wrong doses of methadone. Accordingly, any claims
against Defendant Leona will be dismissed since Holliday’s allegations are insufficient to establish a
constitutional violation. See Spruill, 372 F.3d at 235.
Additionally, to the extent Holliday seeks to bring this claim against Defendant Katkowski based
on vulgar language and names he called Holliday after the methadone dosage incident, these
allegations are insufficient to state a plausible claim against Katkowski based on those comments,
and those the claims against Defendant Kirsh will be dismissed. See, e.g., Ledcke v. Pennsylvania
Dep’t of Corr., 655 F. App’x 886, 888–89 (3d Cir. 2016) (per curiam) (detainee’s “claims of verbal
harassment fail[ed] as a matter of law”); Lindsey v. O’Connor, 327 F. App’x 319, 321 (3d Cir. 2009)
(per curiam) (“Verbal harassment of a prisoner, although distasteful, does not violate the Eighth
Amendment; see also McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (“[A]cts or
omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do
not violate the Eighth Amendment”).
1980). To state a claim, a plaintiff must allege deliberate indifference on the part of defendants
by alleging facts which show that they had knowledge of his serious need for a medically
prescribed diet and that they intentionally refused to provide him with this diet, delayed access to
the diet for a non-medical reason or otherwise prevented him from receiving the diet. See Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Here, Holliday explicitly alleges that he was prescribed a medically necessary gluten free
diet by Defendant Pelaez, and that on a regular basis, the kitchen staff at BCJ included white
bread, pasta, cream of wheat, oatmeal, and other foods that were not gluten free on his diet tray,
“labeling it” as gluten free. (ECF No. 16 at 20.) Holliday further asserts that he has eaten these
foods believing they were gluten free, only to subsequently find out they were not when he
became ill from eating those items. (Id.) Holliday also alleges that when he complained about
this issue, staff “refuse[d] to call the kitchen to get [his] gluten free tray.” (Id.) According to the
Amended Complaint, Defendant Sergeant Tassone, the kitchen supervisor, was aware of
Holliday’s need for a gluten free diet and that fact that he regularly received foods that were not

gluten free. (Id.) Holliday also asserts that Defendant Tassone supervises the inmates who
prepare special diet trays in the kitchen, and he has “been known to punish inmates that receive
special diets for medical needs, by giving them food loaf” which Holliday receives on his tray
and is told it is a rice cake. (Id. at 33.) Construed liberally, these allegations, although limited,
are sufficient to state a plausible claim for deliberate indifference to Holliday’s need to receive
his prescribed gluten free diet, and this claim will be permitted to proceed against Defendant
Tassone.14 See Phillips v. Superintendent Chester SCI, 739 Fed. App’x 125, 128-29 (3d Cir.

14 Holliday also names Corrections Officer Almquist with respect to his claim related to his gluten
free diet. However, the allegations of the Amended Complaint reflect only a one-time brief exchange
between Holliday and Almquist regarding whether or not Cream of Wheat is gluten free. (ECF No.
16 at 20.) The Amended Complaint alleges that Almquist called the kitchen staff to confirm
2018) (reversing the district court’s dismissal of prisoner’s Eighth Amendment claim against
prison kitchen supervisor and others related to prison’s failure to ensure prisoner received meals
that complied with the requirements of his medically prescribed meal regimen to exclude onions,
peppers, and soy-based products).

G. Claims Against the Berks County Jail System and
Berks County Probation and Parole
Holliday names the Berks County Jail System as a Defendant in his Amended Complaint.
However, BCJ is not considered a “person” for purposes of § 1983. See Edwards v.
Northampton Cty., 663 F. App’x 132, 136 (3d Cir. 2016) (explaining that the district court
“appropriately disposed of” prisoner’s conditions of confinement claims against Northampton
County Prison on the basis that a prison is not a “person” subject to suit under § 1983) (citing
Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973)); see also Lenhart v. Pennsylvania, 528 F.
App’x 111, 114 (3d Cir. 2013) (“Westmoreland County Prison is not a person capable of being
sued within the meaning of § 1983.”); see also White v. Knight, 710 F. App’x 260, 262 (7th Cir.
2018). Accordingly, any claim alleged against BCJ itself will be dismissed with prejudice for
failure to state a claim pursuant to § 1915(e)(2)(B)(ii).
Similarly, Holliday also names Berks County Probation and Parole as a Defendant in this
matter, however any claims against Berks County Probation and Parole are barred by the
Eleventh Amendment. The Third Circuit has repeatedly held that “Pennsylvania’s judicial
districts, including their probation and parole departments, are entitled to Eleventh Amendment

immunity.” Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193, 197 (3d Cir.
2008) (citing Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir. 2005)). As

Holliday’s need for a gluten free diet tray, (id.), and these allegations are insufficient to support a
deliberate indifference claim against Defendant Almquist. Accordingly, Holliday’s claims against
Almquist will be dismissed without prejudice.
Pennsylvania has not waived its sovereign immunity, and because Congress has not explicitly
abrogated immunity through authorizing legislation, the Eleventh Amendment operates as a bar
to claims for damages under § 1983 against Berks County Probation and Parole. Moreover,
Berks County Probation and Parole is not a “person” subject to suit under § 1983. See Beaver v.

Del. Ct. Prob. and Parole, Civ. A. No. 15-2784, 2016 WL 4366977, at *3 n.5 (E.D. Pa. Aug. 16,
2016). Accordingly, all claims against Berks County Probation and Parole will also be dismissed
with prejudice.
H. Claims Against the Warden and Deputy Warden
Holliday names Warden Janine Quigley and Deputy Warden Smith as Defendants in this
action. In the Amended Complaint, Holliday asserts that these Defendants knew about the
allegations asserted in his Amended Complaint based on their involvement with, or receipt of,
the many grievances Holliday has filed, but that these Defendants failed to act with respect to his
various issues and need for medical treatment. (See, e.g., ECF No. 16 at 31) (explaining that
Defendant Quigley “was directly notified of my need for Tachycardia [medication] through the

inmate grievance and appeal process, and has failed to act.”).
However, “[m]erely responding to or reviewing an inmate grievance does not rise to the
level of personal involvement necessary to allege an Eighth Amendment deliberate indifference
claim.” Tenon v. Dreibelbis, 606 F. App’x 681, 688 (3d Cir. 2015) (per curiam); Curtis v.
Wetzel, 763 F. App’x 259, 263 (3d Cir. 2019) (per curiam) (“The District Court properly
determined that Defendants Wenerowicz, Lewis, and Shaylor – who participated only in the
denial of Curtis’ grievances – lacked the requisite personal involvement [in the conduct at
issue].” ); Folk v. Prime Care Med., 741 F. App’x 47, 51 (3d Cir. 2018) (per curiam) (“Although
some of these defendants were apparently involved in responding to some of Folk’s prison
grievances, there are no allegations linking them to the underlying incidents and thus no basis for
liability based on those later grievance reviews.”). Moreover, “[i]f 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

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.”).
As alleged in the Amended Complaint, Holliday’s claims against Warden Quigley and
Deputy Warden Smith relate solely to their involvement in the grievance process and their
alleged failure to act after learning about Holliday’s complaints through that process. The
Amended Complaint is devoid of any allegations that these Defendants, who are not medical
personnel, had any personal involvement in the underlying conduct of which Holliday
complains. 15 Accordingly, he has not stated a plausible constitutional claim against either
Warden Quigley or Deputy Warden Smith and his claims against them will be dismissed.

I. Claims Against PrimeCare Medical
Holliday’s Amended Complaint also names PrimeCare Medical as a Defendant. He
alleges only that PrimeCare is a “company that contracts medical staff out to institutions” and “is
known to encourage the very minimum of treatment necessary to save costs[.]” (ECF No. 16 at
31.) According to Holliday, this “creates a Medical Staffing environment where Doctors and
Nurses are encouraged to ignore medical issues and provide subpar treatment.” (Id.) To the

15 Furthermore, “[p]rison inmates do not have a constitutionally protected right to a grievance
process.” See 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, Holliday cannot
state a constitutional claim based solely on the Warden’s (or the Deputy Warden’s) participation in
the grievance process.
extent Holliday seeks to bring a deliberate indifference to serious medical claims against
PrimeCare Medical, the Amended Complaint fails to state a plausible claim against PrimeCare
Medical.
A private corporation under contract to provide prison health services may be liable

under § 1983 only if that entity’s policies or customs caused the alleged constitutional violation.
See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978); Natale v. Camden Cnty.
Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). 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, 564 F.3d 636, 658 (3d Cir. 2009). Even construed liberally, the
Amended Complaint does not state a plausible claim for relief against PrimeCare Medical
because Holliday makes only conclusory allegations that PrimeCare Medical is seeking to save
costs and thereby minimize treatment which encourages medical personnel employed by
PrimeCare to ignore medical issues and not provide treatment. Cf. Yoast v. Pottstown Borough,
437 F. Supp. 3d 403, 441 (E.D. Pa. 2020) (discrediting “conclusory” allegation that PrimeCare

lacked a policy to address inmates’ serious medical conditions). Holliday does not allege any
substantive facts describing any actual policy, custom, or practice PrimeCare maintains that
would have resulted in the constitutional violations he asserts regarding his medical care. See
Shaner v. PrimeCare Med. Inc., Civ. A. No. 19-2442, 2020 WL 1164799, at *4 (E.D. Pa. Mar.
10, 2020) (concluding pro se prisoner failed to allege a plausible § 1983 claim of deliberate
indifference to serious medical needs against PrimeCare and granting PrimeCare’s motion to
dismiss). Accordingly, Holliday’s claims against PrimeCare Medical will be dismissed without
prejudice.16

16 To the extent Prime Care employees are sued in their official capacities, those claims are
essentially claims against Prime Care, so they fail for the same reasons.
IV. CONCLUSION
For the foregoing reasons, the Court will dismiss the Amended Complaint in part
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim with the exception of the
following claims which will be permitted to proceed: (1) Holliday’s Eighth Amendment

deliberate indifference claim regarding his tachycardia medication against Defendants
Wloczewski and Pelaez; (2) Holliday’s Eighth Amendment deliberate indifference claim
regarding his need for catheters against Defendants Wloczewski and Pelaez; (3) Holliday’s claim
based upon the cell conditions against Sgt. Acker; (4) Holliday’s Eighth Amendment deliberate
indifference claim regarding his foot and ankle injury against Defendants Wloczewski and
Pelaez; (5) Holliday’s excessive force claim based on Pelaez’s deliberately stepping on
Holliday’s injured foot and causing additional injury; (6) Holliday’s Eighth Amendment
deliberate indifference claim regarding ongoing symptoms after the methadone dosage mix-up
against Defendants Kirsh, Wloczewski, and Pelaez; (7) Holliday’s retaliation claims against
Defendants Wloczewski and Pelaez; and (8) Holliday’s Eighth Amendment deliberate

indifference claim regarding his gluten free diet claims against Defendant Tassone.
An appropriate Order follows.
BY THE COURT:

/s/ Cynthia M. Rufe

CYNTHIA M. RUFE, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400361. Public record. Not legal advice.