Whitfield v. Commonwealth of PA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH WHITFIELD, :

Plaintiff : CIVIL ACTION NO. 3:18-1390

v. : (JUDGE MANNION)

COMM. OF PA, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, Joseph Whitfield, an inmate formerly confined at the Dauphin

County Prison, Harrisburg, Pennsylvania, filed the above caption civil rights

action pursuant to 42 U.S.C. §1983.1 (Doc. 1). The named Defendants are

the Commonwealth of Pennsylvania, Dauphin County Sheriff’s Department,

Dauphin County Prison, Warden Brian Clark, PrimeCare Medical, Inc. and

Dr. William Young. Id. Plaintiff, who is sixty years old and “disabled, using a

cane to get around”, alleges that on January 8, 2018, he “fell to the ground

while handcuffed to another inmate” after that inmate “fell on ice that had not

1 Plaintiff is currently housed in the Harrisburg Community Corrections

Center, 27 N. Cameron Street, Harrisburg, Pennsylvania.

been removed prior to being transported from the Dauphin County

Courthouse by the County Sheriff’s Department.” Id. He claims that the

inmate was “taken to the Harrisburg Hospital by ambulance and [he] was told

to go back to the County Jail and see the medical department.” Id. However,

“upon returning [Plaintiff] was told by the Sgt. on duty to go back to his

housing block and tell the C.O. to call medical but was sent back to his cell

without ever being called to medical.” Id. Plaintiff states that “despite many

request slips to the medical dept., [he] did not see a representative until

approximately two weeks later.” Id.

Plaintiff was seen by Dr. Young, who Plaintiff claims “told [Plaintiff] he

wouldn’t be given any pain medicine or treatment for his injuries.” Id. In May

2018, Plaintiff was “seen by a nurse in the Medical Department, who

“prescribed ‘Ben Gay Rubbing Cream’ for his injuries.” Id. On June 18, 2018,

Plaintiff was again seen by Dr. Young and “was told that he will not let the

Plaintiff have a ‘Second Opinion’ and he will have to wait until he is released

on bail or is discharged from the prison by the Court.” Id. On June 29, 2018,

Plaintiff wrote to Mr. John Addison, Directory of Treatment, “explaining to him

what Dr. Young had said to him.” Id. On June 26, 2018, Plaintiff wrote to the

Warden and “also explained to him that he wrote to Mr. Addison, again no

response has been received.” Id.

On July 13, 2018, Plaintiff filed the instant action in which he claims

that he “suffered physical injuries to his left arm, left shoulder and right knee”

when he fell on January 8, 2018. For relief, he seeks damages for “pain and

suffering, medical negligence and cruel and unusual punishment.” Id.

On March 25, 2019, a motion to dismiss was filed on behalf of

Defendants Dr. Young and the Dauphin County Jail Medical Department

(“Medical Defendants”). (Doc. 21). On the same date, a separate motion to

dismiss was filed on behalf of Defendants Brian Clark, Dauphin County Jail

and Dauphin County Sheriff’s Department (“Dauphin County Defendants”),

in which Defendants address the merits, as well as argue that Plaintiff’s

action should be dismissed for Plaintiff’s failure to properly exhaust his

administrative remedies in accordance with the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. §1997e(a). (Doc. 23).

On January 21, 2020, in accordance with Paladino v. Newsome, 885

F.3d 203 (3d Cir. 2018), (holding that the District Court shall provide the

parties notice that it will consider exhaustion in its role as fact finder under

Small v. Camden Cty., 728 F.3d 265 (3d Cir. 2013)), this Court issued an

Order, converting Dauphin County Defendants’ motion to dismiss to a motion

for summary judgment and allowing the parties an opportunity to supplement

the record with supporting evidence relevant to the exhaustion of

administrative remedies. (Doc. 38).

On February 18, 2020, Defendants filed a statement of material facts

in support of their motion for summary judgment. (Doc. 44). On March 5,

2020, Plaintiff filed a brief in opposition to Defendants’ motion for summary

judgment. (Doc. 45).

Defendants’ motions are ripe for disposition. For the reasons set forth

below, the Court will grant Dauphin County Defendants’ motion for summary

judgment and the Medical Defendants motion to dismiss.

II. STANDARDS OF REVIEW

A. Summary Judgment

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence

would affect the outcome of the case under applicable substantive law. Id. at

248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact,

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the party seeking

summary judgment satisfies its burden under Rule 56 of identifying evidence

which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with

affidavits, depositions, answers to interrogatories or the like in order to

demonstrate specific material facts which give rise to a genuine issue.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio,

475 U.S. 574, 586 (1986). When Rule 56 shifts the burden of production to

the nonmoving party, that party must produce evidence to show the

existence of every element essential to its case which it bears the burden of

proving at trial, for “a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d

846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party.

White, 826 F.2d at 59. In doing so, the Court must accept the nonmovant’s

allegations as true and resolve any conflicts in his favor. Id. (citations

omitted). However, a party opposing a summary judgment motion must

comply with Local Rule 56.1, which specifically directs the oppositional party

to submit a “statement of the material facts, responding to the numbered

paragraphs set forth in the statement required [to be filed by the movant], as

to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement

required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard

simply by citing the fact that he is a pro se litigant. These rules apply with

equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL

2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused

from complying with court orders and the local rules of court”); Thomas v.

Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

B. Motion to Dismiss

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to

state a claim upon which relief can be granted.” Under Rule 12(b)(6), we

must “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint

need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.

8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Id. at 570. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels

and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is

not bound to accept as true a legal conclusion couched as a factual

allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must

include at least a discernible factual basis to survive a Rule

12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588

F.3d 180, 184 (3d Cir. 2009) (per curiam).

In resolving the motion to dismiss, we thus “conduct a two-part

analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual

elements from the legal elements and disregard the legal conclusions. Id. at

210-11. Second, we “determine whether the facts alleged in the complaint

are sufficient to show that the plaintiff has a “plausible claim for relief”.” Id. at

211 (quoted case omitted).

III. STATEMENT OF MATERIAL FACTS2

The Dauphin County Prison has an inmate grievance procedure. (See

Doc. 43-4 at 1). The process first requires the inmate to “write out the

complete grievance being as brief but as specific as possible soon after the

alleged occurrence.” Id. The grievance must be submitted to the Warden,

Deputy Warden, or a Security Major. Id. If the grievance is denied, the inmate

can appeal to the Chairman of the Dauphin County Prison Board of

Inspectors. Id. A further appeal can then be taken to the full Prison Board.

Id. Finally, an appeal from the full Prison Board can be taken to the Dauphin

County Solicitor. Id.

2 The Local Rules of Court provide that in addition to filing a brief in

opposition to the moving party’s brief in support of its motion, “[t]he papers

opposing a motion for summary judgment shall include a separate, short and

concise statement of material facts responding to the numbered paragraphs

set forth in the statement [of material facts filed by the moving party]...as to

which it is contended that there exists a genuine issue to be tried.” M.D. Pa.

L.R. 56. 1. The Rule further requires the inclusion of references to the parts

of the record that support the statements. Id. Finally, the Rule states that the

statement of material facts required to be served by the moving party will be

deemed to be admitted unless controverted by the statement required to be

served by the opposing party. See id. Unless otherwise noted, the factual

background herein is taken from Defendants’ Rule 56.1 statement of material

facts. (Doc. 44). Plaintiff did not file a response to Defendants’ statement of

facts in compliance with M.D. Pa. L.R. 56.1. Thus, the Court deems the facts

set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed. R.

Civ. P. 56(e)(2).

On June 26, 2018, Plaintiff submitted a request slip to Warden Brian

Clark stating the following:

On June 19, 2018 [I] Wrote to Mr. J. Addison telling him what

Doctor Young had told me that he will not let me have a second

opinion to go to the hospital about my left shoulder and right leg.

Doctor Young told me to take him to court. He knows that I have

medical problems. He also knows that on Jan. 8, 2018 that [sic]

when I was at the courthouse I was hand-cuff to a inmate and we

fell to the ground hitting the ice. Inmate James Smith was taken

to the hospital and I was taken back to the prison and was told

to see the doctor at the prison. I have been having problems

[since] the courthouse!!! I have not been getting any help from

this prison!!!

(Doc. 43-5 at 1, Plaintiff’s Grievance).

On June 29, 2018, Geoffrey Boblick, Director of Administration,

forwarded Plaintiff’s grievance to the medical department for review. (Doc.

43-5 at 2).

On July 13, 2018, eighteen days after filing his grievance, Plaintiff

filed the instant action. (Doc. 1).

On September 20, 2018, Jennifer Ruble, Assistant Director of

Nursing submitted the following in response to Plaintiff’s grievance:

This memorandum is written in response to the grievance

received from the Warden’s Office of the Dauphin County

Prison for the above mentioned patient on June 29, 2018. The

patient has been in the facility since 8-12-17.

After review of this patient’s chart, Mr. Whitfield has been seen

by medical providers on several occasions and was offered and

ordered several different pain medications. Mr. Whitfield has

been referred to an outside orthopedic practice for further

treatment and care of his left shoulder.

In regard to the issues/concerns outlined in the grievance, he

was seen, treated and appropriate care was provided. If there

are any questions regarding this memorandum, please contact

me at (717) 780-6815.

(Doc. 43-5).

On September 21, 2018, Warden Clark denied Plaintiff’s

grievance as follows:

Please be advised that, as a result of your recent

complaint/grievance regarding medical care, your concerns

were forwarded to the Medical Department, which has reviewed

your complaint/grievance and provided me with a response.

After a review of your medical records, it appears that you have

been seen by the medical providers on several occasions and

were offered and ordered several different pain medications.

You have been referred to an outside orthopedic practice for

further treatment and care of your left shoulder.

After review, it is evident that appropriate care has been

rendered. Based on this review, you have been appropriately

and properly treated. Therefore, your complaint/grievance is

denied.

If you do not agree with the above findings, you may appeal to

the next level. The appeal along with any additional information

should be directed to the Administrative Offices for forwarding

to the Prison Board Chairman at the Chair’s monthly Prison

Board meeting.

(Doc. 43-5 at 4, Memorandum). No further appeal was filed.

IV. DISCUSSION

A. Exhaustion

Under the PLRA, a prisoner must pursue all available avenues for relief

through the prison’s grievance system before bringing a federal civil rights

action. See 42 U.S.C. §1997e(a); Booth v. Churner, 532 U.S. 731, 741 n.6

(2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought

and offered through administrative avenues.”). Section 1997(e) provides, in

relevant part “[n]o action shall be brought with respect to prison conditions

under section 1983 of the Revised Statutes of the United States, or any other

Federal law, 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. §1997(e). The exhaustion requirement is mandatory. Williams v.

Beard, 482 F.3d 637, 639 (3d Cir. 2007); Booth, 532 U.S. at 742 (holding

that the exhaustion requirement of the PLRA applies to grievance

procedures “regardless of the relief offered through administrative

procedures”). Moreover, while Plaintiff was released from prison after filing

the above-captioned case (Doc. No. 10), he is still bound by the exhaustion

requirement because he has raised claims concerning events that occurred

prior to his release. See Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir.

2002).

The United States Court of Appeals for the Third Circuit has further

provided that there is no futility exception to §1997e’s exhaustion

requirement. Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000). Courts have

typically required across-the-board administrative exhaustion by inmates

who seek to pursue claims in federal court. Id. Additionally, courts have

imposed a procedural default component on this exhaustion requirement,

holding that inmates must fully satisfy the administrative requirements of the

inmate grievance process before proceeding into federal court. Spruill v.

Gillis, 372 F.3d 218 (3d Cir. 2004). Courts have concluded that inmates who

fail to fully, or timely, complete the prison grievance process are barred from

subsequently litigating claims in federal court. See e.g., Bolla v. Strickland,

304 F. App’x 22 (3d Cir. 2008); Booth v. Churner, 206 F.3d 289 (3d Cir.

2000).

This broad rule favoring full exhaustion allows for a narrowly defined

exception. If the actions of prison officials directly caused the inmate’s

procedural default on a grievance, the inmate will not be held to strict

compliance with this exhaustion requirement. See Camp v. Brennan, 219

F.3d 279 (3d Cir. 2000). However, case law recognizes a clear “reluctance

to invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the

statute requires.” Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002).

Thus, an inmate’s failure to exhaust will only be excused “under certain

limited circumstances,” Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir.

2005), and an inmate can defeat a claim of failure to exhaust only by showing

“he was misled or that there was some extraordinary reason he was

prevented from complying with the statutory mandate.” Warman, 49 F. App’x

at 368.

In the absence of competent proof that an inmate was misled by

corrections officials, or some other extraordinary circumstances, inmate

requests to excuse a failure to exhaust are frequently rebuffed by the courts.

Thus, an inmate cannot excuse a failure to timely comply with these

grievance procedures by simply claiming that his efforts constituted

“substantial compliance” with this statutory exhaustion requirement. Harris v.

Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005). Nor can an inmate avoid this

exhaustion requirement by merely alleging that the administrative policies

were not clearly explained to him. Warman, 49 F. App’x at 368. Thus, an

inmate’s confusion regarding these grievances procedures does not,

standing alone, excuse a failure to exhaust. Casey v. Smith, 71 F. App’x 916

(3d Cir. 2003); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.

2000) (“[I]t is well established that ‘ignorance of the law, even for an

incarcerated pro se petitioner, generally does not excuse prompt filing.’ ”)

(citations omitted).

Recently, the Supreme Court considered what renders administrative

remedies unavailable to an inmate such that a failure to exhaust can be

excused. See Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted “three

kinds of circumstances in which an administrative remedy, although officially

on the books, is not capable of use to obtain relief.” Id. at 1859. First, an

administrative procedure is not available “when (despite what regulations or

guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved

inmates.” Id. Second, a procedure is not available when it is “so opaque that

it becomes, practically speaking, incapable of use.” Id. Finally, a procedure

is unavailable when “prison administrators thwart inmates from taking

advantage of a grievance process through machination, misinterpretation, or

intimidation. Id. at 1860.

The Third Circuit recently joined other circuits to hold “that

administrative remedies are not ‘available’ under the PLRA where a prison

official inhibits an inmate from resorting to them through serious threats of

retaliation and bodily harm.” Rinaldi v. United States, 904 F.3d 257, 267 (3d

Cir. 2018). To defeat a failure-to-exhaust defense based on such threats, “an

inmate must show (1) that the threat was sufficiently serious that it would

deter a reasonable inmate of ordinary firmness and fortitude from lodging a

grievance and (2) that the threat actually did deter this particular inmate.” Id.

at 269.

Finally, failure to exhaust is an affirmative defense that must be pled

by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). “In a motion for

summary judgment, where the movants have the burden of proof at trial,

‘they [have] the burden of supporting their motion for summary judgment with

credible evidence... that would entitle [them] to a directed verdict if not

controverted at trial’.” Foster v. Morris, 208 F. App’x 174, 179 (3d Cir. 2006)

(quoting In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal

quotations omitted)). If “the motion does not establish the absence of a

genuine factual issue, the district court should deny summary judgment even

if no opposing evidentiary matter is presented.” Id. (quoting Nat’l State Bank

v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1582 (3d Cir. 1992) (internal

quotations omitted)).

Here, Defendants argue that Plaintiff’s grievance record demonstrates

that he failed to properly exhaust his administrative remedies prior to filing

the instant action because he did not wait for a response to his grievance

before filing in federal court, and he made no effort to file an appeal of his

grievance after it was denied.

In opposition, Plaintiff states that he did attempt to file an appeal of the

Warden’s decision to the Prison Board Chairman. (Doc. 45). He attaches to

his brief in opposition an October 4, 2018 Inmate Request Form, which states

the following:

I would like to appeal the September 21, 2018 decision made by Brian

S. Clark, Warden to the Prison Bard Chairman at the Chair’s monthly

Prison Board Meeting.

(Doc. 45 at 7).

The Court finds that while Plaintiff may have attempted to exhaust his

grievance to final review, he did so after he had already filed the above

captioned action in federal court. To that end, the PLRA mandates that

prisoners exhaust all available administrative remedies prior to initiating a

suit under §1983 for the deprivation of Constitutional rights. 42 U.S.C.

§1997e(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006) (finding that prisoners

must pursue their claims through prison channels prior to commencing

related litigation in federal courts). The record is clear that Plaintiff did not

exhaust his administrative remedies prior to filing the instant action, and

Defendants are entitled to summary judgment.

B. Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff

must show “(i) a serious medical need, and (ii) acts or omissions by prison

officials that indicate deliberate indifference to that need.” Natale v. Camden

Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one

that has been diagnosed by a physician as requiring treatment, or one that

is so obvious that a layperson would recognize the need for a doctor's

attention. Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton

infliction of pain results as a consequence of denial or delay in the provision

of adequate medical care, the medical need is of the serious nature

contemplated by the eighth amendment.” Id.

A prison official acts with deliberate indifference to an inmate’s serious

medical needs when he “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). Thus, a complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”

Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision

not to order an X-ray, or like measures, does not represent cruel and unusual

punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s

long as a physician exercises professional judgment his behavior will not

violate a prisoner's constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor’s

disagreement with the professional judgment of another doctor is not

actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,

or medical malpractice does not give rise to a §1983 cause of action, and an

inmate's disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.

1993).

Further, a prison administrator cannot be found deliberately indifferent

under the Eighth Amendment because he or she fails to respond to the

medical complaints of an inmate being treated by a prison physician, or

because, as non-physicians, they defer to the medical judgment of the

inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical

prison personnel had “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner,” liability

may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison’s medical staff and

the inmate regarding the diagnosis or treatment which the inmate receives

does not support a claim of cruel and unusual punishment. Farmer v.

Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v.

Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113

(10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received

treatment, courts have consistently been reluctant to second guess the

medical judgment of the attending physician. Little v. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key

question is whether the defendant has provided the plaintiff with some type

of treatment, regardless of whether it is what the plaintiff desires. Farmer v.

Carlson, 685 F. Supp. at 1339.

Assuming, without deciding, that Plaintiff’s medical needs were serious

in the constitutional sense, the allegations in Plaintiff’s complaint and

Plaintiff’s exhibits clearly demonstrate that Plaintiff received medical

attention, and that the attention Plaintiff received lacks the requisite

deliberate indifference to support a Section 1983 claim.

Additionally, Plaintiff’s own exhibits, filed in opposition to Dauphin

County Defendants’ motion for summary judgment, reveal that Plaintiff has

been referred to an outside orthopedic practice for further treatment and care

of his left shoulder. (See Doc. 45 at 6).

At best, Plaintiff’s complaint demonstrates his disagreement with the

type of treatment rendered. Though he may have disagreed with Dr. Young’s

assessment that no additional treatment was necessary, nor was a second

opinion necessary, his disagreement with the course of action that was taken

is not enough to state a §1983 claim. Sample v. Diecks, 885 F.2d 1099, 1109

(3d Cir. 1989) (citing Estelle, 429 U.S. at 105-06 (in the medical context, an

inadvertent failure to provide adequate medical care cannot be said to

constitute an unnecessary and wanton infliction of pain or to be repugnant to

the conscience of mankind)). This is particularly so in light of the fact that

there are no allegations in the complaint that any of the Defendants

intentionally withheld medical treatment from Plaintiff in order to inflict pain

or harm upon Plaintiff. Farmer; Rouse. To the extent that record

demonstrates that Plaintiff has been referred to an outside orthopedic

practice for further treatment and care of his left shoulder, shows that

Defendants continue to be attentive to Plaintiff's situation. Thus, the

allegations in the Plaintiff’s complaint amount to nothing more than Plaintiff’s

subjective disagreement with the treatment decisions and medical judgment

of the medical staff at the prison. At most, the allegations in the complaint

only rise to the level of mere negligence. As simple negligence cannot serve

as a predicate to liability under §1983, Hudson v. Palmer, 468 U.S. 517

(1984), Plaintiff’s civil rights complaint fails to articulate an arguable claim.

See White, 897 F.2d at 108-110.

C. Defendant PrimeCare Medical, Inc.

Plaintiff asserts a §1983 claim against PrimeCare Medical, a limited

liability company that provides health care services to the Dauphin County

Prison under contract. A private corporation providing health services to

inmates may be liable under §1983 to the extent its policies or customs

exhibit deliberate indifference to a prisoner’s serious medical needs.

Palakovic v. Wetzel, 854 F.3d 209, 232 (3d Cir. 2017) (citing Natale v.

Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (2d Cir. 2003). A plaintiff

must show that a relevant policy or custom cause the constitutional violation

at issue. Natale, 318 F.3d at 583-84, (“In order for PHS to be liable, the

[plaintiffs] must provide evidence that there was a relevant PHS policy or

custom, and that the policy caused the constitutional violation they allege.”).

In the absence of a predicate constitutional injury, however, there can

be no liability on the part of PrimeCare. Cessna v. Corr. Med. Servs., 794

F.Supp.2d 544, 550 (D. Del. 2011)(“The court has concluded that Dr.

Wallace did not violate plaintiff's constitutional rights under the Eighth

Amendment. CMS, therefore, cannot be liable based on the theory that it

established or maintained an unconstitutional policy or custom responsible

for violating plaintiff’s rights.”) (citing Goodrich v. Clinton Cty. Prison, 214 F.

App’x. 105, 113 (3d Cir. 2007)).

Here, Plaintiff has failed to assert facts that could plausibly establish a

violation of his Eighth Amendment rights. Moreover, Plaintiff has not

asserted that his health care providers acted in a manner that was

deliberately indifferent to his serious medical needs. In any event, however,

Plaintiff’s own allegations indicate that he was seen by medical staff on

numerous occasions. During the course of his treatment, Plaintiff was given

pain medication and referred to an outside orthopedic specialist. Based on

the facts alleged, Plaintiff has not demonstrated that prison medical

personnel were deliberately indifferent to his serious medical needs. See

Matthews v. Pa. Dep’t of Corr., 613 F. App’x. 163, 170 (3d Cir. 2015), (prison

medical officials were not deliberately indifferent to plaintiff’s Achilles

tendonitis, where complaint allegations showed that they saw him regularly,

prescribed a cast and crutches, and advised him not to participate in certain

physical activities during his recovery; to the extent they exposed him to

greater risk of injury by refusing to recommend a cell reassignment, their

mistake involved only negligence, not deliberate indifference); Brandner v.

First Corr. Medical, Civil No. 05-3920, 167 F. App’x. 328 (3d Cir. 2006)(per

curiam), (plaintiff inmate who suffered from a swollen and painful knee did

not state an Eighth Amendment claim against correctional medical center,

medical director, or nursing supervisor where plaintiff had been seen by staff

on approximately a monthly basis, medical staff provided pain medication

and performed x-rays, plaintiff was given a cane, a post-complaint MRI

showed that his knee was within “normal range,” plaintiff had continued to

receive medication and joint injections, and he had been referred to an

orthopedic specialist).

Because no Eighth Amendment violation has been asserted,

PrimeCare Medical cannot be liable under §1983. Accordingly, this

Defendant is entitled to dismissal.

D. Defendant Warden Brian Clark

Plaintiff’s Eighth Amendment claim against Warden Clark is predicated

on the theory that he was aware of Plaintiff's medical condition but refused

to do anything about it.

Again, “non-medical prison officials are generally justified in relying on

the expertise and care of prison medical providers.” Spruill, 372 F.3d at 236.

Thus, “[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.” Id. “[A]bsent a reason to believe (or actual knowledge) that

prison doctors or their assistants are mistreating (or not treating) a prisoner,

a non-medical prison official ... will not be chargeable with the Eighth

Amendment scienter requirement of deliberate indifference.” Id.

Here, Plaintiff’s allegations establish that he was under continuous

treatment by the prison’s health care providers. For the reasons previously

discussed, Plaintiff has failed to allege facts that could plausibly establish

deliberate indifference on the part of medical staff members to Plaintiff’s

serious medical needs. It follows that Plaintiff cannot establish liability

against these Defendants for failing to intervene in Plaintiff’s treatment plan.

In addition, Plaintiff’s claims against Clark are also deficient to the

extent they are predicated on Clark’s denial of Plaintiff’s grievance. A prison

official’s participation in the grievance processes, including appeals, fails to

establish the requisite personal involvement.” Brooks v. Beard, 167

Fed.Appx. 923, 925 (3d Cir. 2006) (“Although the complaint alleges that

[prison officials] responded inappropriately to [the plaintiff’s] later-filed

grievances about his medical treatment, these allegations do not establish

[the prison officials’] involvement in the treatment itself.”).

In sum, Plaintiff has failed to plead a plausible constitutional violation

for which Clark could be liable. Even if he had, Clark’s participation in the

grievance process would be insufficient to establish his own personal

involvement in the alleged wrongdoing. And, because Clark is a non-medical

prison official, he was entitled to rely on the professional judgment of

Plaintiff’s health care providers. As such, Defendant Clark is entitled to

dismissal.

E. Defendants Dauphin County Prison and Sheriff’s Department

“On its face, §1983 makes liable ‘every person’ who deprives another

of civil rights under color of state law.” Burns v. Reid, 500 U.S. 478, 497

(1991) (Scalia, J., concurring in part and dissenting in part). In Monell v.

Department of Social Services, 436 U.S. 658 (1978), the Supreme Court of

the United States established that municipalities and other local

governmental units are included among those “persons” subject to liability

under §1983. Id. at 690. However, as a matter of law, the Dauphin County

Prison and the Dauphin County Sheriff’s Department are merely subunits of

their respective municipalities, and not “persons” subject to suit under §1983.

See Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973); Benard v.

Washington County, 465 F. Supp. 2d 461, 470 (W.D. Pa. 2006) (county

sheriff’s office).

There is also no claim by Plaintiff that his constitutional rights were

violated as the result of any policy, custom or practice of the Dauphin County

Prison. See Monell, 436 U.S. at 690-91.

F. Commonwealth of Pennsylvania

The United States Supreme Court has ruled that a civil rights action

brought against a “State and its Board of Corrections is barred by the

Eleventh Amendment unless [the State] has consented to the filing of such

a suit.” Alabama v. Pugh, 438 U.S. 781, 782 (1978). In Will v. Michigan Dep’t

of State Police, 491 U.S. 58 (1989), the Supreme Court established “that the

State and arms of the State, which have traditionally enjoyed Eleventh

Amendment immunity” are not subject to civil rights liability in federal court.

Howlett v. Rose, 496 U.S. 356, 365 (1990). Accordingly, the Commonwealth

of Pennsylvania is not a properly named Defendant in this matter.

V. LEAVE TO AMEND

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be inequitable

or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Here, it is clear from the facts alleged in the pro se complaint that any

attempt to amend the plaintiff’s §1983 claims against the named Defendants

would be futile. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Thus,

the Court will dismiss the Plaintiff’s §1983 claims without leave to amend.

VI. CONCLUSION

For the reasons set forth above, the Court will grant the motion to

dismiss filed on behalf of Defendants PrimeCare Medical Inc., and Dr.

William Young, (see Doc. 21), and the motion for summary judgment, filed

on behalf of Defendants Warden Brian Clark, Dauphin County Jail and

Dauphin County Sheriff’s Department. (Doc. 23). A separate Order shall

issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 30, 2020

18-1390-01