BROWN v. BEARD

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Alton D. BROWN, : CIVIL ACTION

: NO. 13-00465

Plaintiff, :

v. :

:

Jeffrey A. BEARD, et al. :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. May 5, 2021

I. INTRODUCTION

Pro se Plaintiff Alton Brown brings this prisoner civil

rights action under 42 U.S.C. § 1983, alleging violations of the

First and Eighth Amendments.1 He names two groups of Defendants.

The “Commonwealth Defendants” are: John Wetzel (Secretary of the

Pennsylvania Department of Corrections),2 David DiGuglielmo

(Superintendent at SCI-Graterford), Dorina Varner (Chief

Grievance Coordinator), Scott Williamson (Deputy

Superintendent), John K. Murray (Deputy Superintendent), George

1 Brown’s Complaint also alleges violations of his Fourteenth Amendment

rights. See Compl. ¶¶ 51, 53, ECF No. 1-46. However, the substance of Brown’s

Complaint and his subsequent briefing indicates that his chief allegations

involve unconstitutional conditions of confinement, denial of medical care,

and retaliation for complaining of those alleged conditions. The Court

therefore presumes that Brown invoked the Fourteenth Amendment not as a

separate cause of action, but because the Amendment incorporates his First

and Eighth Amendment rights against the Commonwealth.

2 In April 2014, the Court granted Brown’s motion to substitute Wetzel as

a Defendant in place of Jeffrey A. Beard. See Order (Apr. 7, 2014), ECF No.

146.

Hiltner (Maintenance Manager), Julie Knaver (Corrections Health

Care Administrator), Myron Stanishefski (Corrections Health Care

Administrator), John Day (Unit Manager), and D. White

(Lieutenant). The Complaint also names William Banta (Unit

Manager) as a Commonwealth Defendant, but Banta was not served

with original process and will therefore be dismissed from this

action.3 The “Medical Defendants” are Prison Health Services,

Inc. (“PHS”) and Felipe Arias, M.D.

Brown alleges the Defendants subjected him to

unconstitutional conditions of confinement, retaliated against

him, and denied him medical care. Both groups of defendants now

move for summary judgment. For the reasons set forth below, the

Commonwealth Defendants’ Motion for Summary Judgment will be

denied. The Medical Defendants’ Motion for Summary Judgment will

be granted as to the issue of Monell liability only and denied

as to all remaining issues.

II. BACKGROUND

A. Factual History4

The instant action arises from Brown’s incarceration at the

State Correctional Institute at Graterford. Brown was

3 The docket from the Western District action indicates that service was

returned unexecuted for Banta. See Docket No. 18, 10-1398 (W.D. Pa.), ECF No.

1 at 7; see also Comm. Defs.’ Mot. Summ. J. 1 n.1, ECF No. 157 (“Defendant

William Banta has not yet been served with original process in this case.”).

4 As required at the summary judgment stage, the Court views these facts

“in the light most favorable” to the nonmoving party and draws “all

transferred to Graterford in January 2006 and imprisoned there

until his transfer to SCI-Smithfield in July 2013. While at

Graterford, Brown was housed on J-Block in the Restricted

Housing Unit. J-Block had no open windows, and its cells had no

air conditioning. Heating units and air ducts were located in

common areas.

J-Block had both “open” and “closed” cells. The open cells

were enclosed by bars, while the closed cells were completely

enclosed, with plexiglass and steel covering the front of the

cell. Brown spent approximately fifty percent of his nearly

eight years at Graterford in closed cells.

Both types of cells had two air vents: one on the floor and

one near the ceiling. The Commonwealth Defendants describe those

vents as “a fire smoke vent and a return vent” and state that

“the bottom return vent allows for air to be drawn into the cell

and out through the return vent.” Comm. Defs.’ Answer ¶ 23, ECF

No. 123. Brown states that during his eight years in J-Block,

“the two (2) vents in the cells he was housed in were both used

as exhaust vents.” Pl.’s Suppl. Resp. Comm. Defs.’ Mot. Summ. J.

17, ECF No. 206.

Brown alleges J-Block’s ventilation system was inadequate.

He filed multiple grievances challenging these conditions during

reasonable inferences” in that party’s favor. Young v. Martin, 801 F.3d 172,

174 (3d Cir. 2015).

the two years before his Complaint in this action was filed

(i.e., between October 22, 2008, and October 22, 2010),

including at least the following:

Date/ Complaint Result

Grievance #

November 3, Brown alleged that staff cut off the Denied. The response

2008 floor vent and ceiling vent on the stated that the system

wing for the sole purpose of was temporarily turned

(#249155) harassment. He stated staff had been off on the day in

playing games with the air flow on question because a

the block. contractor had been

working on the

environmental controls.

Brown filed an appeal to

the superintendent,

which was denied.

December Brown stated that vents in his unit Denied. The response

30, 2008 had been turned off for approximately states that staff

ten days. He stated that staff were checked the system and

(#256289) aware of the fact that he suffered determined it was

greatly from dust and smoke when the operating properly.

vents were cut off, and that he

believed ventilation was cut off as a Brown appealed to the

means of retaliating against him. superintendent, who

upheld the initial

response.

He then filed a final

appeal, which was

denied.

July 28, Brown stated that the top vent in his Resolved. The response

2009 cell had been off for many months and stated that the system

that the bottom vent had recently had been down due to a

(#282716) been turned off, and that the lack of tripped smoke detector,

ventilation was impacting his health. was reset, and was

properly working.

November 3, Brown stated he was having great Denied. The response

2009 difficulty breathing and was being stated that he had not

denied medical care. He stated that signed up for sick call

(#295074) his illness was aggravated by the with any complaint of

lack of circulation and extreme heat trouble breathing.

in his unit. He also stated that he

was seen by a medical staff person on Brown appealed to the

October 29, 2009, who conducted no superintendent, who

tests and ignored his complaints. denied his appeal after

determining Brown failed

to substantiate that he

was being denied medical

care.

Brown then filed a final

appeal, which was denied

on the basis that the

medical care had been

reasonable and

appropriate and there

was no record of a sick

call since November 17,

2009.

December Brown stated that the floor exhaust Denied. The response

15, 2009 had been cut off and that there was stated that the air

no air circulation, aggravating his handlers were shut down

(#300107) pre-existing illnesses. for approximately one

hour at the direction of

the facility maintenance

manager.

Brown filed an appeal to

the superintendent,

which was denied.

He then filed a final

appeal, which was

denied.

October 13, Brown stated that his floor exhaust Resolved. The response

2010 had been disconnected, that his cell stated that a staff

was dusty and lacked ventilation, and member investigated the

(#339210) that these conditions had immediate issue, found the duct

effects on his breathing and lungs. work disconnected, and

The grievance also stated that he had reconnected it.

a chronic lung problem, and that

staff were retaliating against him Brown appealed to the

for filing grievances. superintendent, claiming

the vent was still

broken. The appeal was

denied.

He then filed a final

appeal, which was also

denied.

October 19, Brown stated that he was denied Denied. The response

2010 medical care for his breathing stated that staff placed

problem, had lung pain, and was the barrier in front of

(#340582) coughing up blood. The grievance the cell for security

stated that a staff member would reasons.

recommend placing a fan in front of

his cell, but that the plexiglass Brown appealed to the

enclosing the cell would render the superintendent, who

fan ineffective. denied the appeal.

He then filed a final

appeal, which was

denied.

November 2, Brown complained that he was denied Rejected. The rejection

2010 medical care on October 21, 2010, in form stated that the

response to a sick call in which he grievance did not

(#341631) stated that he needed oxygen. He indicate that Brown was

stated his lack of ventilation in his personally affected by a

cell impacted his lung conditions, department or facility

and that he was having difficulty action or policy.

breathing and was coughing up blood.

Brown filed an appeal to

the superintendent,

which was rejected.

He then filed a final

appeal, which was

dismissed.

Comm. Defs.’ Mot. Summ. J. Exs. D-K, ECF No. 157-2.

Brown avers that he filed more grievances challenging the

conditions of his confinement during this timeframe, but that at

least some of those grievances were unavailable to him when he

prepared his responses to the instant motions “due to

Defendants’ failure to comply with this Court’s discovery

order.” Pl.’s Suppl. Resp. Comm. Defs.’ Mot. Summ. J. 5, ECF No.

206; id. at 17 (“As Plaintiff has already informed the court,

there are other grievances in his property that Defendants

and/or their agents ha[ve] denied him access to.”).

Brown alleges the poor ventilation caused him to breathe

dirt- and dust-filled air, damaged his lungs, and caused him

pain. In September 2010, he had a chest x-ray with the

impression of suspected underlying chronic obstructive pulmonary

disease (COPD). He argues the conditions of his confinement

contributed to his developing the disease. Brown also claims the

Defendants retaliated against him for filing grievances by

worsening his living conditions and denying him medical care.

B. Procedural History

Brown filed this action in the Western District of

Pennsylvania in 2010. The Western District transferred the case

to this district in 2013, and the Court referred the matter to

U.S. Magistrate Judge Rueter for pre-trial purposes.

In this Court, all Defendants filed motions to dismiss for

failure to state a claim. See Defs.’ Mots. Dismiss, ECF Nos. 8,

12. They argued, inter alia, that Brown’s claims were barred by

the applicable statute of limitations. Judge Rueter determined

that the Court “[did] not have sufficient facts to determine

whether the continuing violations doctrine should apply to

plaintiff’s claims and whether plaintiff’s Complaint was timely

filed within the two-year statute of limitations.” See Order

(Apr. 17, 2013), ECF No. 21. He therefore ordered limited

discovery on the dates in which the alleged acts occurred, the

dates on which Brown became aware of the conditions complained

of, and the dates when Brown knew or should have known of the

alleged injuries. See Order (Apr. 17, 2013).

After engaging in limited discovery, both groups of

Defendants filed motions for summary judgment arguing the

statute of limitations barred Brown’s claims. See Defs.’ Mots.

Summ. J., ECF Nos. 44, 49. On the record before him, Judge

Rueter concluded that Brown’s claims accrued well before the

beginning of the limitations period, and he therefore

recommended granting the motions. See R. & R., ECF No. 103.

Brown filed objections. See Pl.’s Objs. R. & R., ECF No. 115.

Upon review of the Report and Recommendation and Brown’s

objections, the Court concluded that the statute of limitations

barred some, but not all, of Brown’s claims. The Court granted

the Defendants’ motions for summary judgment on all claims

arising from conduct occurring before October 22, 2008 (two

years before the Complaint was docketed) but denied summary

judgment on claims arising between that date and the filing of

the Complaint because Brown “alleged that Defendants continued

their harmful actions after October 22, 2008, causing him new

injuries and exacerbating his existing ones.” See Order n.2

(Jan. 16, 2014), ECF No. 120. The Court also determined Brown

could not rely on the continuing violations doctrine to avoid a

strict application of the statute of limitations because he was

fully aware of the conditions allegedly harming him. See Order

n.2 (Jan. 16, 2014).

The parties then conducted additional discovery, which

included written interrogatories and Brown’s deposition. In

2014, the Defendants filed the instant motions for summary

judgment. In 2015, the Court placed the matter in suspense until

Brown was prepared to answer the Motions.5 See Order n.1 (Aug. 4,

5 Brown states that the case was stayed because the defendants “refused

to allow [him] access to his case files,” but that he “was forced to reopen

the case because he is not expected to live much longer as a result of cancer

2015), ECF No. 180. Upon Brown’s motion, the Court removed the

case from suspense in 2019. See Order (July 16, 2019), ECF No.

183. Brown then responded to the motions for summary judgment.

In February 2021, the Court ordered the Defendants to file

supplemental briefing addressing any intervening changes in the

law, inter alia. See Order (Feb. 25, 2021), ECF No. 209. The

Defendants filed supplemental briefing, and Brown responded.

Accordingly, the Defendants’ motions for summary judgment are

ripe for review.

III. LEGAL STANDARD

Summary judgment is “appropriate only when ‘there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Physicians

Healthsource, Inc. v. Cephalon, Inc., 954 F.3d 615, 618 (3d Cir.

2020) (quoting Fed. R. Civ. P. 56(a)). A fact is material “if it

‘might affect the outcome of the suit under the governing law.’”

Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). A factual dispute is genuine “if the ‘evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.’” Id. (quoting Anderson, 477 U.S. at 248).

The moving party bears the initial burden of showing the

absence of a genuine issue of material fact. If the movant meets

that was contracted while under Defendants’ care at SCI-Graterford.” Pl.’s

Suppl. Resp. Comm. Defs.’ Mot. Summ. J. 4, ECF No. 206.

this obligation, the nonmoving party must “set forth specific

facts showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 250. At the summary judgment stage, the

Court must view the facts “in the light most favorable to” the

nonmoving party and “draw all reasonable inferences in favor” of

that party. Young v. Martin, 801 F.3d 172, 174 (3d Cir. 2015).

“A document filed pro se is ‘to be liberally construed,’ .

. . .” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

IV. DISCUSSION

The Commonwealth Defendants argue that, on the record

before the Court, Brown cannot establish an Eighth Amendment

claim for cruel and unusual conditions of confinement.6 The

6 The Court notes that Brown’s Complaint also brings a First Amendment

retaliation claim against at least some of the Commonwealth Defendants. See

Compl. ¶ 11, ECF No. 1-46 (“In most cases, at least two (2), Plaintiff was

assigned to closed cells . . . by Defendant White, in retaliation because of

grievances and complaint[s] filed against him and RHU/Prison staff.”).

Although the Commonwealth Defendants acknowledge Brown’s allegation

that “guards and staff made the living conditions worse in retaliation for

his filing grievances,” including by turning up the heat, turning the heat

off, and not having fans available, they did not move for summary judgment on

the First Amendment claim. See Comm. Defs.’ Mot. Summ. J. 7, ECF No. 157. The

record indicates that the Commonwealth Defendants were aware of this claim,

as their 2013 motion to dismiss argued, inter alia, that Brown failed to

state a claim for First Amendment retaliation. See Comm. Defs.’ Mot. Dismiss

17, ECF No. 12. In his supplemental response to the Commonwealth Defendants’

motion for summary judgment, Brown noted that, in addition to his conditions

of confinement claim, he “also alleged that Defendants retaliated against him

and used the conditions as punishment.” Pl.’s Suppl. Resp. Comm. Defs.’ Mot.

Summ. J. 13, ECF No. 206. Again, the Commonwealth Defendants did not address

the First Amendment claim in their 2021 supplemental briefing. See Comm.

Defs.’ Suppl. Br., ECF No. 213.

The Court also notes that in their 2021 supplemental briefing, the

Commonwealth Defendants raise the issue of exhaustion. See Comm. Defs.’

Medical Defendants argue that Brown failed to exhaust his

administrative remedies, as required by the Prison Litigation

Reform Act (“PLRA”), before filing suit. The Medical Defendants

also argue that, on the record before the Court, Brown cannot

establish a claim for inadequate medical treatment under the

Eighth Amendment, a policy or custom that violated his

constitutional rights, or a First Amendment retaliation claim.

The Court will address the Defendants’ arguments in turn.

A. Commonwealth Defendants

1. Eighth Amendment Claim

The Commonwealth Defendants argue the record cannot support

Brown’s claim that his conditions of confinement violated the

Eighth Amendment of the U.S. Constitution.

“The Eighth Amendment, which applies to the States through

the Due Process Clause of the Fourteenth Amendment, prohibits

the infliction of ‘cruel and unusual punishments’ on those

convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296–97

(1991) (citation omitted). To establish that prison conditions

constitute cruel and unusual punishment, a plaintiff must

satisfy a two-part test. First, he must show that

the conditions to which he has been subjected are “sufficiently

Suppl. Br. 3 n.2 (“If [Brown] did not submit a grievance, the claim should be

dismissed as unexhausted.”). The Commonwealth Defendants did not raise this

argument in their summary judgment motion. See Comm. Defs.’ Mot. Summ. J.

Accordingly, the Court will not reach it here.

serious,” amounting to a denial of “the minimal civilized

measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825,

834 (1994). This is an objective inquiry. Id. Second, the

plaintiff must show that the prison official acted with

“deliberate indifference.” Id. This is a subjective inquiry. Id.

at 837.

a. Sufficiently Serious Deprivation

Conditions “alone or in combination” can amount to an

objective deprivation of sufficient seriousness. Mammana v. Fed.

Bureau of Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (quoting

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). When determining

whether this element is satisfied, courts must consider “[t]he

length of the inmate’s exposure to the alleged unconstitutional

conditions and the totality of the circumstances.” McClure v.

Haste, 820 F. App’x 125, 129 (3d Cir. 2020). The adequacy of

ventilation is a relevant criterion. See, e.g., Nami v. Fauver,

82 F.3d 63, 67 (3d Cir. 1996) (“Relevant considerations include

the length of confinement, the amount of time prisoners must

spend in their cells each day, sanitation, lighting,

bedding, ventilation, noise, education and rehabilitation

programs, opportunities for activities outside the cells, and

the repair and functioning of basic physical facilities such as

plumbing, ventilation, and showers.”).

The Commonwealth Defendants appear to argue that no triable

issue of fact exists on this question because “the record

reflects that open and closed cells on the RHU were provided

with sufficient ventilation.” Comm. Defs.’ Mot. Summ. J. 22, ECF

No. 157. However, Brown offers conflicting evidence that the

ventilation in his cells was insufficient, and that the

condition “existed for years.” Pl.’s Suppl. Resp. Comm. Defs.’

Mot. Summ. J. 22, ECF No. 206. He points to, inter alia, the

2010 declarations of fellow prisoners Mark A. Dixon and Yassin

H. Mohamad, who described inadequate ventilation on J-Block.

Pl.’s Exs. AA-BB, ECF No. 202.

On the record before the Court, a reasonable juror

considering the totality of the circumstances could conclude

that Brown was deprived of adequate ventilation for an extended

period of time. Such a deprivation could be sufficiently serious

as to “amount[] to the denial of the minimal civilized measure

of life’s necessities.” See Farmer, 511 U.S. at 834; cf. Jones

v. Sec’y Pa. Dep’t of Corr., 589 F. App’x 591, 593 (3d Cir.

2014) (affirming grant of summary judgment to defendants on

inadequate ventilation claim where “[t]he record evidence

demonstrate[d] that, despite the tape on the sides and top of

his door, [the plaintiff] had ample ventilation and fresh air in

his cell.”).7

Accordingly, a genuine issue of material fact exists on

this issue.

b. Deliberate Indifference

To prove that an official acted with deliberate

indifference to an inmate’s health or safety, it is insufficient

for the official simply to be “aware of facts from which the

inference can be drawn that a substantial risk of serious harm

exists.” Farmer, 511 U.S. at 837. Instead, the official must

“know[] of and disregard[] 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. A court “may

infer the existence of this subjective state of mind from the

fact that the risk of harm is obvious.” Hope v. Pelzer, 536 U.S.

730, 738 (2002) (citing Farmer, 511 U.S. at 842).

The Commonwealth Defendants argue no record evidence

indicates that they “were aware of any serious medical problems

7 Although the Commonwealth Defendants highlight that Brown has not

offered expert testimony to support his allegation that the ventilation

conditions caused or exacerbated his respiratory issues, they do not

challenge the lack of expert testimony on the air quality or ventilation

conditions. See Comm. Defs.’ Mot. Summ. J. 21, ECF No. 157. Whether expert

testimony is needed for Brown to carry his burden concerning the quality and

the amount of available air may need to be decided by a motion in limine

before trial.

related to the ventilation conditions” or “deliberately

continued to ignore maintenance of the ventilation system.”

Comm. Defs.’ Mot. Summ. J. 21-22, ECF No. 157.8 For his part,

Brown points to record evidence that supports a finding that the

ventilation conditions caused him harm, and that at least some

of the Commonwealth Defendants were deliberately indifferent to

such harm. For example, he points to requests he submitted to

prison staff within the two-year window before he filed the

instant action in which he reported poor circulation in his cell

and stated that the conditions were adversely affecting his

health. Pl.’s Exs. E-G, ECF No. 194. Brown also points to the

multiple grievances in which he stated that he believed the

ventilation conditions to be causing him harm. See supra Section

II.A.

Construed in the light most favorable to Brown, this record

evidence reflects triable issues as to whether Brown suffered

harm as a result of ventilation conditions and whether at least

some of the Commonwealth Defendants were deliberately

indifferent to such harm.

Because Brown has pointed to genuine issues of material

fact with respect to both prongs of the conditions of

8 The Commonwealth Defendants do not distinguish between and among

themselves in their briefing, and they do not address the possibility that

the record supports a finding that some, but not all, of the Commonwealth

Defendants acted with deliberate indifference.

confinement analysis, the Commonwealth Defendants are not

entitled to summary judgment on Brown’s Eighth Amendment claim.

B. Medical Defendants

1. Exhaustion

The Court turns next to the Medical Defendants, who first

argue they are entitled to summary judgment because Brown has

not exhausted his administrative remedies as required by the

PLRA, which provides that “[n]o action shall be brought with

respect to prison conditions under section 1983 . . . by

a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a).

“[T]o properly exhaust administrative remedies prisoners

must ‘complete the administrative review process in accordance

with the applicable procedural rules,’—rules that are defined

not by the PLRA, but by the prison grievance process itself.”

Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford v.

Ngo, 548 U.S. 81, 88 (2006)). The Pennsylvania Department of

Corrections “has a grievance policy involving a three-step

process that an inmate must fully complete in order to

properly exhaust his administrative remedies under the PLRA,”

which includes “an initial written grievance, an appeal to the

Facility Manager, and a final written appeal to the Secretary’s

Office of Inmate Grievances and Appeal.” Jackson v. Carter, 813

F. App’x 820, 823 (3d Cir. 2020) (citing Commonwealth of

Pennsylvania, Department of Corrections, Inmate Grievance

System, Policy No. DC-ADM 804 (effective Feb. 16, 2016)).

“[F]ailure to exhaust is an affirmative defense under the

PLRA,” not a pleading requirement for the plaintiff. See Jones,

549 U.S. at 216. “Furthermore, the defendant must prove that the

prisoner-plaintiff failed to exhaust each of his claims. There

is no ‘total exhaustion’ rule permitting dismissal of an entire

action because of one unexhausted claim.” Small v. Camden Cnty.,

728 F.3d 265, 269 (3d Cir. 2013) (citing Jones, 549 U.S. at 220-

24).

Here, the Medical Defendants argue that Brown “has

submitted numerous grievances over the years but none that named

PHS or Dr. Arias related to medical care at issue in the two

year time period preceding the Complaint that were exhausted to

final review.” Med. Defs.’ Mot. Summ. J. 7, ECF No. 154-2.

Although the Medical Defendants attached several of Brown’s

grievances as exhibits to their motion for summary judgment,

they did not point to a declaration from a prison official or

any other record evidence indicating they performed an

exhaustive search to identify all applicable grievances. See

Med. Defs.’ Mot. Summ. J. 7.

In its order requiring supplemental briefing, the Court

instructed the Medical Defendants to address “the evidence on

which they rely for their contention that Plaintiff has failed

to exhaust his administrative remedies.” Order (Feb. 25, 2021),

ECF No. 209. In response, the Medical Defendants state that they

“cannot prove a negative” and aver that there is no record

evidence that any grievance naming Dr. Arias was exhausted to

final review. See Med. Defs.’ Suppl. Br. 3, ECF No. 212. They

argue “[t]he grievance documentation [Brown] produced or even

referenced does not establish exhaustion of his administrative

remedies.” Med. Defs.’ Suppl. Br. 4.

The Court concludes that the Medical Defendants have not

satisfied their burden of establishing that Brown failed to

exhaust his administrative remedies. See Ray v. Kertes, 130 F.

App’x 541, 543 (3d Cir. 2005) (concluding that a staff member’s

declaration that she had searched a database and determined the

plaintiff did not exhaust his grievance rights did not

“constitute a factual report describing the steps [the

plaintiff] did or did not take to exhaust his grievances” and

therefore was insufficient to establish his failure to exhaust);

cf. Washington-El v. Beard, 562 F. App’x 61, 64 (3d Cir. 2014)

(concluding that an “affidavit prepared by the DOC custodian of

inmate grievance records” indicating the number of grievances

the plaintiff appealed to final review supported a finding that

the plaintiff failed to exhaust his administrative remedies).

Therefore, the Medical Defendants are not entitled to summary

judgment on this ground.

2. Eighth Amendment Claim

Next, the Medical Defendants argue Brown’s Eighth Amendment

claim “should not reach a jury because there is no medical

expert testimony to prove that Dr. Arias or PHS caused any

actual harm.” Med. Defs.’ Mot. Summ. J. 7, ECF No. 154-2. They

also argue Brown cannot establish that Arias and PHS “knew of,

yet disregarded, an excessive risk” to his health and safety.

Med. Defs.’ Mot. Summ. J. 8.

“[P]rison officials violate the Eighth Amendment when they

act deliberately indifferent to a prisoner’s serious medical

needs by ‘intentionally denying or delaying access to medical

care or interfering with the treatment once prescribed.’”

Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)

(quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). “In

order to sustain this constitutional claim under 42 U.S.C. §

1983, a plaintiff must make (1) a subjective showing that ‘the

defendants were deliberately indifferent to [his or her] medical

needs’ and (2) an objective showing that ‘those needs were

serious.’” Id. (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999)).

a. Deliberate Indifference

In Pearson v. Prison Health Service, the Third Circuit

considered, as an issue of first impression, “when medical

expert testimony may be necessary to create a triable issue on

the subjective prong of a deliberate indifference case.” 850

F.3d at 535. In its analysis, the court recognized “a critical

distinction” between cases alleging “inadequate medical

treatment” and those alleging “a complete denial of medical

care.” Id. (quoting United States ex rel. Walker v. Fayette

Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)).

As to adequacy of care cases, the Third Circuit held that

“medical expert testimony may be necessary . . . when the

propriety of a particular diagnosis or course of treatment would

not be apparent to a layperson.” Id. at 537. But as to a

plaintiff’s claims that he was delayed or denied medical

treatment for a non-medical reason, the court determined that

“requiring additional extrinsic proof” in the form of medical

expert testimony “would be inappropriate given the subjective

nature of scienter and our case law on deliberate indifference.”

Id. In such cases, “[a]ll that is needed is for the surrounding

circumstances to be sufficient to permit a reasonable jury to

find that the delay or denial was motivated by non-medical

factors.” Id.

Brown’s claim against the Medical Defendants appears to be

one for denial of care, rather than inadequate medical

treatment. See Compl. ¶ 52, ECF No. 1-46 (“Defendants PHS [and]

Arias . . . have outright denied Plaintiff’s attempts to obtain

medical care from his suffering, or relief from the conditions,

and have fail[ed] to conduct any medical tests on him, or refer

him to a specialist or someone capable of providing adequate

care.”); see also Pl.’s Resp. Med. Defs.’ Suppl. Br. 9 (“The

Complaint in this instant matter clearly refl[e]cts claims

against these two (2) particular Defendants that allege denial

of medical care, and certainly not inadequate medical care.”).

Therefore, medical expert testimony is not necessary to create a

triable issue of fact.

Brown has pointed to surrounding circumstances sufficient

for a reasonable jury to find that the denial of his medical

care was motivated by non-medical factors—i.e., retaliation for

making complaints. Brown points to a letter he wrote to Dr.

Arias on March 2, 2009, which states: “I have filed numerous

prison Grievances and Request Slips seeking medical care for my

problems, including breathing problems, coughing up stuff during

the day, . . . liver pain, and headaches. . . . Please check my

files and come by to see me the next time you are down this

way.” Pl.’s Suppl. Resp. Med. Defs.’ Mot. Summ. J. Ex. 2, ECF

No. 207. He also points to a letter he wrote to the “Chief

Officer” of PHS on December 1, 2008, which states: “I have

repeatedly tried to get medical care from your staff here at

SCI-Graterford, that is caused by the toxic conditions in the

prison hold, including dust [and] dirt.” Pl.’s Suppl. Resp. Med.

Defs.’ Mot. Summ. J. Ex. 1. Brown also states in the letter that

he has “experienced breathing problems, headaches, watery eyes,

voice problems, and others, yet [PHS] staff has simply refused

to even conduct tests to help provide the proper medical care.”

Pl.’s Suppl. Resp. Med. Defs.’ Mot. Summ. J. Ex. 1. He argues

that, notwithstanding these complaints, Arias and PHS did not

provide the necessary medical care.

For the reasons set forth above, Brown has presented

sufficient evidence from which a reasonable jury could find that

Arias and PHS were deliberately indifferent to his medical

needs.9

b. Serious Need

On the issue of whether medical expert testimony is

necessary to create a genuine dispute that a prisoner’s medical

needs are serious, the Third Circuit has held that “a district

court may properly require expert medical opinions when, ‘[a]s

9 The Medical Defendants also point to record evidence of Brown’s

refusing medical treatment on several occasions and aver that this refusal

undermines Brown’s claim that PHS and/or Arias acted with deliberate

indifference. Although PHS and Arias are free to pursue this argument before

the factfinder, Brown has pointed to countervailing record evidence

supporting his claim that he was denied medical care. The issue is therefore

inappropriate for resolution at the summary judgment stage.

laymen, the jury would not be in a position to decide whether

any of the conditions described by plaintiffs could be

classified as “serious.”’” Pearson, 850 F.3d at 535 (alteration

in original) (quoting Boring v. Kozakiewicz, 833 F.2d 468, 473

(3d Cir. 1987)). However, “expert testimony is not necessarily

required to establish the existence of a serious medical need,”

and “[o]ther forms of extrinsic proof—e.g., medical records,

photographs, etc.—may suffice in some cases.” Brightwell v.

Lehman, 637 F.3d 187, 194 n.8 (3d Cir. 2011).

Here, the record evidence includes Brown’s deposition

testimony about his breathing problems, the grievance requests

in which he reported respiratory issues and coughing up blood,

and medical progress notes from October 2010 in which medical

staff recorded Brown’s complaints of breathing issues. See Med.

Defs.’ Mot. Summ J. Ex. 8, at 39-40, ECF No. 154-12. Brown also

points to his COPD diagnosis. Even without medical expert

testimony, a reasonable jury considering this record evidence

could conclude that Brown had a serious medical need.

Because Brown has pointed to triable issues of fact as to

both prongs of the Eighth Amendment analysis, the Medical

Defendants are not entitled to summary judgment on this claim.

3. Municipal Liability

The Medical Defendants next argue that “it is not clear

whether Mr. Brown is attempting to pursue a theory that policies

or customs created a constitutional violation,” but that if the

Court does interpret such a claim, they are entitled to summary

judgment because Brown has failed to establish any policy or

custom violating his constitutional rights. See Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694-95 (1978).

Brown appears to argue both that Arias and PHS are directly

liable for his alleged constitutional deprivations and that PHS

is liable for failure to properly train and supervise its staff.

See Pl.’s Suppl. Resp. Med. Defs.’ Mot. Summ. J. 4, ECF No. 207.

However, to the extent that Brown seeks to establish Monell

liability under a failure-to-train theory, he does not point to

record evidence regarding medical staff training (or lack

thereof), and his principal allegation appears to be that Arias

and PHS directly violated his constitutional rights by denying

him medical care. See supra Section IV.B.2.10

Accordingly, Brown cannot rely on Monell liability to

establish an Eighth Amendment claim against the Medical

Defendants.

10 Nor has Brown submitted an affidavit explaining that he is unable to

present facts essential to justify his opposition to this aspect of the

Medical Defendants’ summary judgment motion. See Fed. R. Civ. P 56(d). The

Court previously informed Brown that if he was unable to oppose the instant

motions without further information, the Court may order additional

discovery. See Order (Mar. 25, 2014), ECF No. 142.

4. First Amendment Claim

Finally, the Medical Defendants argue that, on the record

before the Court, Brown cannot prevail on his First Amendment

retaliation claim.

To establish a prima facie case of First Amendment

retaliation, a prisoner must demonstrate that: (1) “the conduct

which led to the . . . retaliation was constitutionally

protected”; (2) “he suffered some ‘adverse action’ at the hands

of the prison officials”; and there was (3) “‘a causal link

between the exercise of his constitutional rights and the

adverse action taken against him,’ or more specifically, ‘that

his constitutionally protected conduct was “a substantial or

motivating factor” in the decision’ to take that action.” Oliver

v. Roquet, 858 F.3d 180, 190 (3d Cir. 2017) (quoting Rauser v.

Horn, 241 F.3d 330, 333 (3d Cir. 2001)).

A plaintiff can establish the third element with evidence

of “(1) an unusually suggestive temporal proximity between the

protected activity and the alleged retaliatory action, or (2) a

pattern of antagonism coupled with timing to establish a causal

link.” Watson v. Rozum, 834 F.3d 417, 424 (3d Cir. 2016).

“‘[W]here the temporal proximity is not so close as to be

“unduly suggestive,”’ the appropriate test is ‘timing plus other

evidence.’” Id. at 424 (quoting Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 281 (3d Cir. 2000)).

“[E]ven if [the plaintiff] establishes a prima facie case,

prison officials may still prevail if they establish that ‘they

would have made the same decision absent the protected conduct

for reasons reasonably related to a legitimate penological

interest.’” Id. at 422 (quoting Rauser, 241 F.3d at 334).

Brown easily satisfies the first prong of the prima facie

case, as filing grievances is a constitutionally protected

activity. See, e.g., Coit v. Garman, 812 F. App’x 83, 86 (3d

Cir. 2020).

Brown has pointed to a triable issue of fact as to the

second prong, as a reasonable jury considering the record before

the Court could conclude that the Medical Defendants refused

Brown treatment, see supra Section IV.B.2, constituting an

adverse action.

Finally, Brown has also pointed to a triable issue on the

third prong, as a reasonable jury could conclude that the

Defendants’ “pattern of antagonism coupled with timing”

establishes “a causal link.” See Watson, 834 F.3d at 424. Brown

filed at least eight grievances during the applicable timeframe,

see supra Section II.A, and he argues the Medical Defendants

repeatedly denied him the care he required during this window.

Therefore, the Medical Defendants are not entitled to

summary judgment on Brown’s First Amendment claim.

V. CONCLUSION

For the foregoing reasons, the Court will deny the

Commonwealth Defendants’ motion for summary judgment. The Court

will grant the Medical Defendants’ motion for summary judgment

on the issue of Monell liability only and will deny the motion

as to all remaining issues.