MOSES v. SORBER

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSHUA ROY MOSES, CIVIL ACTION

Plaintiff,

NO. 22-3385

v.

JAMIE SORBER et al.,

Defendants.

MEMORANDUM RE: MOTION TO DISMISS

Baylson, J. July 14, 2023

This matter involves the alleged medical mistreatment of an inmate with serious medical

issues. Plaintiff is pro se and a prisoner at SCI-Phoenix, and he alleges staff failed to provide

proper care, including delays in providing access to a doctor, failures to adapt to his medical needs,

and deviations from the medical recommendations of outside doctors. He alleges that, as a result,

Defendants have violated his constitutional rights.

The Motion to Dismiss addresses the following counts with respect to four Defendants listed

in the Complaint:

I. Eighth Amendment Deliberate Indifference to His Medical Care against

Defendants Huner, Sipple, and Sorber

II. Eighth Amendment Deliberate Indifference to His Medical Care against the

Pennsylvania Department of Corrections (“DoC”)

III. Medical Malpractice against Defendant Huner

IV. Negligent Infliction of Emotional Distress against Defendants Huner, Sipple, and

Sorber

I. SUMMARY OF ALLEGED FACTS

In 2009, prior to his incarceration, Plaintiff lost most of his small intestines due to gunshot

wounds. Compl. ¶ 31-35. This condition, short-bowel syndrome, causes a reduced ability to

absorb nutrients, frequent diarrhea, and issues with malnutrition. See Short Bowel Syndrome,

National Institute of Diabetes and Digestive and Kidney Diseases,

https://www.niddk.nih.gov/health-information/digestive-diseases/short-bowel-syndrome (last

updated July 2015).

Plaintiff was taken into federal custody on May 13, 2014. Compl. ¶ 39. After stays at

other incarceration centers, Plaintiff was eventually transported to SCI-Phoenix on November

22, 2021. Id. ¶ 92. At intake, Plaintiff’s gastroesophageal reflux disease (“GERD”) medication,

abdominal binder, and cane were confiscated. Id. Two days later, Plaintiff submitted a request

to Defendant Huner regarding this confiscation, and on December 3, 2021, an employee1 from

Defendant Huner’s office responded to the request and Plaintiff allegedly was returned his

medication. Id. ¶ 93-94.2

Plaintiff attended a sick call with Defendant Dr. Robinson on December 6, 2021 after

experiencing chest pains and the breakdown of his bowel, and vomiting blood. Id. ¶ 97.

Plaintiff alleges that Defendant Dr. Robinson merely looked at his stomach scars, ordered him

Tylenol and an X-Ray, and told him to “keep it simple” when detailing his medical history. Id.

Defendant Robinson allegedly stated that he believed Plaintiff had serious chronic issues, but

that Plaintiff needed to file a grievance to convince the medical director. Id. Plaintiff filed a

grievance in response, to which Defendant Sipple responded by asserting that this sick call never

happened. Id. ¶ 105.

1 It is not fully clear that this individual (M. Savage) worked in Defendant Huner’s office, but

this is the Court’s understanding based on the pleadings.

2 Plaintiff also filed a grievance on this date regarding the confiscation of medication and

requesting accommodations for Plaintiff’s specialized medical needs.

Plaintiff alleges that he was instructed to go through a body scanner on December 12,

2021, which revealed large amounts of clogged stool. Id. ¶ 99. Plaintiff submitted a sick call

request the next day but was not seen by medical staff until twelve days later despite this scan

and reports of vomiting blood. Id. ¶ 99-104. In response to this delay, Plaintiff filed grievances

on December 15 and 18, 2021. Id. ¶ 101. Defendant Jackson allegedly saw Plaintiff and

prescribed Mylanta (a non-prescription antacid) while Defendant Dr. Letizio dismissed any need

for additional follow-up. Id. ¶ 104-05. In response to Plaintiff’s grievance, Defendant Sipple

allegedly insisted that Plaintiff’s overall goal was to obtain a single cell. Id.

On January 5, 2022, after an X-ray was conducted on Plaintiff’s stomach, Plaintiff was

immediately rushed to the emergency room at Einstein Montgomery Hospital on January 5,

2022. Id. ¶ 106. The doctors diagnosed Plaintiff with an ileus due to scar tissue (a serious

gastroenteric condition), small bowel adhesion, and breakdown of the bowel. Id. The physician

instructed the officers to send Plaintiff to another hospital for treatment and recommended single

cell-housing. Id. On January 18, 2022, Plaintiff had a sick call visit with Defendant Dr.

Robinson because he had continued to vomit blood, been constantly dehydrated, and had been

starving himself to help rest and clear his abdomen. Id. ¶ 115. Dr. Robinson said he would

submit a request for specialist consultation. Id. ¶ 115. Six days later, Plaintiff was told no

requests for outside consultations had been submitted and that he had been discontinued from the

chronic care clinic. Id. ¶ 116.3

3 Throughout his stay, Plaintiff filed numerous grievances and appeals of denials of

grievances, complaining of the failures to provide reasonable accommodations and medical

treatment. See Compl. ¶ 95, 98, 101, 103, 108, 109, 111, 119, 120, 127, 129, 132, 140, 143, 145,

153, 155, 159, 163, 166, 171, 175, 177. Their numerosity further supports Plaintiff’s argument

that Defendants were aware of Plaintiff’s complaints.

On January 31, 2022, Plaintiff was taken to the emergency room again after an X-ray

revealed a bowel obstruction. Id. ¶ 123. During this visit, Plaintiff alleges multiple tests were

performed, polyps were removed, and the doctors recommended a follow-up visit and single-cell

housing. Id. ¶ 124. After his return to SCI-Phoenix, Defendant Dr. Letizio allegedly ordered

him to be moved to single-cell housing. Id. ¶ 125. Plaintiff requested access to his pathology

results from this visit at his February 28, 2022 sick call visit with Defendant Walsh, but he

denied this request. Id. ¶ 139. The results were only made available to him on March 22, 2022.

Id. ¶ 146. Plaintiff submitted a request to Defendant McCollough regarding the recommended

follow-up from this emergency room visit on April 6, 2022 with a separate request to another

staff member on April 11, 2022. Id. ¶ 149-51. The response was merely that the plaintiff would

be informed when the follow-up was scheduled. Id. ¶ 151.

Plaintiff began requesting a bathroom pass on June 8, 2022 as he had been experiencing

difficulty accessing the bathroom outside of scheduled movement despite his medical condition.

Id. ¶ 162. The provider Oti-Akenten allegedly informed him that the practice of providing

bathroom passes had been discontinued. Id. Plaintiff submitted a grievance and a request to

Defendant Huner regarding this issue, and an employee in Defendant Huner’s office allegedly

responded that they had brought it to Defendant Huner’s attention and advised the plaintiff to go

to sick call. Id. ¶ 164. In response to the grievance, Plaintiff was informed that medical no

longer gives out bathroom passes and that these concerns would need to go through Plaintiff’s

non-medical Unit Manager. Id. ¶ 171. On July 11, 2022, Plaintiff allegedly raised his concerns

to Defendant Sipple in person, to no avail. Id. ¶ 174. As of August 22, 2022, Plaintiff has yet to

receive the requested bathroom pass or been granted the follow up recommended by doctors

during his previous emergency room visit. Id. ¶ 171, 177.

Defendants at issue in the Motion to Dismiss are Defendant Sorber, Superintendent of

SCI-Phoenix, Defendant Sipple, Deputy Superintendent of SCI-Phoenix, Defendant Huner,

Corrections Health Care Administrator of SCI-Phoenix, and the Pennsylvania DoC.

II. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts all factual

allegations as true and views them in a light most favorable to the plaintiff. Doe v. Univ. of the

Scis., 961 F.3d 203, 208 (3d Cir. 2020). To survive this motion, a plaintiff must include sufficient

facts in the complaint that, accepted as true, “state a claim for relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is insufficient if it suggests

only the “mere possibility of misconduct” or is a “[t]hreadbare recital[ ] of the elements of a cause

of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009) (citing Twombly, 550 U.S. at 555). While a court must assume for purposes of a motion

to dismiss that the plaintiff can prove the facts alleged in the complaint, “it is not . . . proper to

assume that [she] can prove faces that [she] has not alleged[.]” Twombly, 550 U.S. at 563 n.8

(citing Associated Gen. Contractors of Cal. Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).

III. ANALYSIS

Defendants argue Plaintiff’s claims should be dismissed under Rule 12(b)(1), (6) for the

following reasons:

1. The Pennsylvania DoC is entitled to 11th Amendment immunity.

2. The Pennsylvania DoC is not a person subject to suit under § 1983.

3. The complaint fails to allege facts supporting Defendants Huner, Sipple, and Sorber’s

personal involvement in the alleged constitutional violations.

4. Denying a grievance alone does not violate any constitutional right.

5. Plaintiff fails to state an 8th Amendment claim against individual Defendants as they did

not act with deliberate indifference to a serious medical need.

6. The court should decline to exercise supplemental jurisdiction over the plaintiff’s state

law claims as the court has dismissed all claims over which it has original jurisdiction.

A. The PA DoC is Entitled to Eleventh Amendment Immunity from § 1983 Claims

The DoC is immune from suit, including those brought under § 1983, under the 11th

Amendment as a state’s immunity extends to its agencies and departments. Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89, 100 (1984). This immunity is well-established

and ironclad.

However, there is an exception that states may be sued because of violations of the

Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12202; U.S. v. Georgia, 546 U.S. 151,

154 (2006) (“We have accepted [§ 12202] as an unequivocal expression of Congress’s intent to

abrogate state sovereign immunity.”). While no specific ADA claims were present in the

original complaint, Plaintiff did describe himself as qualifying for ADA protection under 42

U.S.C. § 12102(2). Compl. at ¶ 119. More specific allegations are required for these claims, and

therefore the Court will grant the motion to dismiss with respect to Count II with leave to plead

an ADA claim within 30 days. 4

B. The Complaint Alleges Facts Sufficient to Support Individual Defendants’

Personal Involvement

Defendants may not be held liable solely due to supervisory authority; alleged or actual

personal involvement in the alleged wrongs is required. See Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988) (“liability cannot be predicated solely on the operation of respondeat

superior”); Chincello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986) (holding personal liability

4 Further, § 1983 suits must be brought against a “person” which excludes states and individuals

acting in their official capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

Plaintiff claims to merely be suing the individual Defendants in their individual capacities rather

than their official capacities. Resp. ¶ 23. But “[t]he Pennsylvania Department of Corrections is

undoubtedly a state instrumentality . . . .” Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 310 (3d

Cir. 2020). While Eleventh Amendment immunity is sufficient to dismiss Count II, this

argument would provide an alternative adequate basis to dismiss the § 1983 claims against the

Pennsylvania DoC.

requires personal direction or actual knowledge and acquiescence in the deprivation). Personal

involvement can be shown through allegations of personal direction or of actual knowledge and

acquiescence. Rode, 845 F.2d at 1207. “Allegations of participation or actual knowledge and

acquiescence, however, must be made with appropriate particularity.” Id. Further, Plaintiff’s

use of the grievance process is not enough on its own to establish that the Defendant

administrators had actual knowledge of the alleged constitutional violations. Id. at 1208.

However, Plaintiff’s allegations are not limited to Plaintiff’s filing of grievances. A

defendant’s active role in reviewing and responding to the grievances can result in a finding of

actual knowledge of the hardship, even if it is insufficient on its own to establish deliberate

indifference for non-medical staff. See Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003)

(holding that a defendant’s review of and response to a grievance appeal demonstrated active

role in the process and personal involvement); Parkell v. Danberg, 833 F.3d 313, 336 n. 14 (3d

Cir. 2016) (noting that filing of grievance can show actual knowledge if accompanied by

evidence that the defendant reviewed the grievance); see also Atkinson v. Taylor 316 F.3d 257,

271 (3d Cir. 2003) (holding that supervisors with a narrower scope of responsibilities may be

found to have actual knowledge of individual complaints because their narrower roles “logically

demand more particularized scrutiny of individual complaints”).

Plaintiff alleges that each of Defendants Huner, Sipple, and Sorber was actually made

aware of the alleged deficiencies in medical practices and acquiesced to these practices. Plaintiff

alleges that he made direct requests to Defendant Huner regarding his specialized medical needs

which were not responded to until after his second rushed visit to the emergency room. Compl. ¶

11-12; see also id. ¶ 164 (requesting accommodations for his medical needs from Defendant

Huner again). Plaintiff also alleges that Defendant Sipple denied grievances that he submitted

and that he spoke to face to face on July 11, 2022. Compl. ¶ 174. Finally, Plaintiff alleges that

Defendant Sorber denied at least some of his grievances directly. Compl. ¶ 18. These

allegations suggest that these individual Defendants had actual notice of Plaintiff’s allegations of

medical deficiencies.

Not only were the named individual Defendants allegedly aware of the alleged medical

decisions and practices, they were also aware that Plaintiff’s medical condition may have

necessitated accommodations such a bathroom pass, dietary modifications, and single cell

housing and were actually aware (in some cases, actively involved in denying them).5 Plaintiff

alleges Defendant Sipple denied his grievances on the subject and stated Plaintiff was merely

trying to acquire a single cell with no true medical need. Plaintiff has alleged that both

Defendant Huner and Defendant Sipple had authority over medical disability accommodations

such as the bathroom pass policy and single cell housing requirements. He asked them both for

help in acquiring the necessary accommodations for his condition and both – along with

Defendant Sorber – were present on the Inmate Disability Accommodation Committee

(“IDAC”).6

Because the accommodation requests were denied, Plaintiff alleges that inadequate

bathroom access resulted in him soiling himself unnecessarily. Compl. ¶ 15. Allegations that

these Defendants were informed of Plaintiff’s medical circumstances and failed, despite repeated

requests, to accommodate him to prevent this type of indignity state a valid cause of action under

5 As detailed in Section II, supra, the single cell housing issue was allegedly remedied after the

second visit to the emergency room.

6 See Resp. ¶ 29. The Committee’s role is not described beyond having authority over

authorizing single-cell housing requests, although the name of the committee suggests a wider

role in accommodating prisoners with special needs.

the Eighth Amendment.7 These specific allegations that the individual Defendants were aware of

these circumstances and denials – and in some cases actively involved in denying them – are

sufficient to find personal involvement for all three Defendants in the failures to provide

adequate accommodations.

C. The Complaint Alleges Facts Sufficient to Support Individual Defendants’

Deliberate Indifference

Deliberate indifference to an inmate’s serious medical condition is a violation of the Eighth

Amendment and states a cause of action under § 1983. Estelle v. Gamble, 429 U.S. 97, 104-05

(1976). One way of showing deliberate indifference is by establishing a defendant’s subjective

recklessness, including the defendant’s consciousness of the risk. Farmer v. Brennan, 511 U.S.

825, 840 (1994). Deliberate indifference can be found when prison authorities deny reasonable

requests for medical treatment causing undue suffering, or when knowledge of the need for

medical care is accompanied by a deliberate failure to provide that care. Monmouth Cnty. Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Denying inmates access to medical

staff for the purposes of either diagnosis or recommended treatment constitutes deliberate

indifference. See West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978). Mere disagreements between

the inmate and medical staff regarding medical treatment, however, are insufficient when the

7 The Court need not consider whether each of these deprivations, individually, could constitute

an Eighth Amendment violation. It suffices to say that inadequate bathroom access for an

individual suffering from a condition which results in frequent gastroenteric issues, such as

diarrhea, would constitute a violation of “the basic concepts of humanity and decency that are at

the core of the protections afforded by the Eighth Amendment.” Thomas v. Tice, 948 F.3d 133,

146 (3d Cir. 2020) (Greenaway, J., concurring in part, dissenting in part); see also Young v.

Quinlan, 960 F.2d 351, 365 (3d Cir. 1992) (holding that denial of basic sanitation can constitute

cruel and unusual punishment in violation of the Eighth Amendment); Clark v. Coupe, 55 F.4th

167, 183 (3d Cir. 2022) (observing that conditions of confinement that are “foul, inhuman or

totally without penological justification” violate the constitution) (internal quotation marks and

citation omitted).

claims only concern the denial of the inmate’s specific requests. See Boring v. Kozakiewicz,

833 F.2d 468, 473 (3d Cir. 1987).

The alleged denial of the request from both the outside doctors and Plaintiff to schedule a

follow-up visit, to provide Plaintiff with his pathology results, and for additional sick call visits

could constitute deliberate indifference, especially given the severity of the symptoms and how

longstanding and well-established Plaintiff’s medical issues were. Because of these denials,

Plaintiff was prevented from accessing medical care recommended by his emergency room

doctors and left unaware as to any urgent medical needs that may be indicated in his pathology

results. While the defendant responsible for this lapse in care is not named, the recommendation

from outside doctors should have squarely put Defendants on notice that additional medical care

was required. Defendant Huner was allegedly made aware of the delay in receiving care after

Plaintiff’s full body scan revealed large amounts of clogged stool.8 Yet, no remedial action was

taken to provide Plaintiff timely care as he was turned away from sick call two different times

before finally being seen by Defendant Jackson twelve days after the initial scan. The alleged

pattern of repeated failure to provide adequate medical examinations or accommodations despite

the known severity of Plaintiff’s condition, if true, could constitute a violation of Plaintiff’s

Eighth Amendment rights.

Defendants contend that under Spruill v. Gillis, non-medical prison officials cannot be

held responsible for medical treatment plans or decisions that Plaintiff believes are inadequate.

“Absent a reason to believe (or actual knowledge) that prison doctors or their assistants are

mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable

8 Defendants insist that Plaintiff’s requests to Defendant Huner may only have been reviewed by

a subordinate. As the request was allegedly directed to Huner himself and the alleged response

explicitly stated that Huner was made aware of the situation on at least one occasion, the

allegations are sufficient to survive at the motion to dismiss stage. See Compl. ¶ 164.

with the Eighth Amendment scienter requirement of deliberate indifference.” 372 F.3d, 218, 236

(3d Cir. 2004). But in grievances that Defendants read and responded to on multiple occasions,

Plaintiff asserted that prison doctors were not adequately treating him. Plaintiff’s allegations are

not limited to quality of care, but whether Plaintiff would be seen by medical professionals at all.

As discussed above, Plaintiff offers specific allegations that Defendants had actual knowledge of

these alleged deficiencies in medical treatment. See supra Section IV.B. Further, the allegations

related to bathroom access are matters of prison administration, not medical treatment. As

alleged, the inadequate medical treatment and inadequate bathroom accommodations for his

specialized medical needs could potentially sustain an Eighth Amendment claim. Spruill is

inapplicable to the latter.

If the allegations are true, a jury could infer that Defendants were deliberately indifferent,

as the recommendations of outside doctors, grievances reviewed, and direct requests from

Plaintiff placed prison administrators on notice as to Plaintiff’s need for medical

accommodations. Plaintiff alleges insufficient action was taken to address these needs, causing

him to suffer constitutionally impermissible harms, risks, and indignities. These are sufficient

allegations against individual Defendants to survive a motion to dismiss.

IV. CONCLUSION

For the foregoing reasons, the Court will deny the motion to dismiss Count I with respect

to Defendants Sorber, Sipple, and Huner. Count II is barred by the Eleventh Amendment and

cannot proceed in its current form. Thus, the Court will dismiss this Count without prejudice and

with leave to amend. Finally, while Defendants contend that Counts III and IV should be dismissed

for lack of supplemental jurisdiction, Count I, a federal claim, survives this motion and so the

Court retains supplemental jurisdiction. Thus, the Court will also deny the motion with respect to

Counts III and IV.

An appropriate order follows.