Johnson v. Tritt

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RAHEEM JOHNSON, :

Plaintiff :

: No. 1:18-cv-203

v. :

: (Judge Rambo)

DEPUTY TRITT, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to the motion for summary judgment

filed by Defendants Deputy Tritt (“Tritt”), Superintendent Brittain (“Brittain”),

Nurse Holly (“Holly”), C.O. Dowd (“Dowd”), Superintendent Delbalso

(“Delbalso”), C.O. Mros (“Mros”), Bowser (“Bowser”), Captain Moore (“Moore”),

Secretary Wetzel (“Wetzel”), and the Department of Corrections (“DOC”).1 (Doc.

No. 62.)2 After receiving an extension of time (Doc. Nos. 74, 75), pro se Plaintiff

Raheem Johnson (“Plaintiff”) filed his response on March 13, 2020 (Doc. No. 79).

Defendants filed a reply brief on March 26, 2020. (Doc. No. 81.) On April 15, 2020,

Plaintiff filed a motion for an extension of time to file a surreply. (Doc. No. 82.)

1 Plaintiff named Brittian and Delbaso as Defendants in his complaint. However, Defendants’

filings indicate that the correct spelling of these Defendants’ names is Brittain and Delbalso. The

Court, therefore, will direct the Clerk of Court to amend the docket to reflect the correct spelling.

2 Plaintiff has also named Dr. Pandya as a Defendant in the above-captioned case. Dr. Pandya

filed his answer to the complaint on February 18, 2020. (Doc. No. 77.) Plaintiff and Dr. Pandya,

therefore, are currently engaged in discovery, which closes on August 18, 2020. See M.D. Pa.

L.R. 26.4.

The Court will deny Plaintiff’s motion (Doc. No. 82), concluding that a surreply is

not necessary for resolution of the motion for summary judgment. Accordingly, the

motion for summary judgment is ripe for disposition.

I. BACKGROUND

Plaintiff, who is currently incarcerated at the State Correctional Institution in

Chester, Pennsylvania (“SCI Chester”), initiated the above-captioned action in

January 2018 by filing a complaint pursuant to 42 U.S.C. § 1983 against Defendants

in the United States District Court for the Eastern District of Pennsylvania. (Doc.

No. 5.) On January 26, 2018, the Eastern District of Pennsylvania transferred the

action to this Court for further proceedings. (Doc. No. 3.)

Plaintiff alleges that he arrived at SCI Frackville on December 22, 2015.

(Doc. No. 5 ¶ 17.) After intake, he was sent to a housing unit and found that he had

a “hard time going up the hills a[t] SCI Frackville, due to [his] previous knee

injuries.” (Id. ¶ 18.) Plaintiff subsequently submitted a sick call request. (Id. ¶ 19.)

Physician’s Assistant Iannuzzi prescribed medication “to help relief some pain and

swelling of [Plaintiff’s] knees.” (Id.) On February 1, 2016, Plaintiff’s “left knee

completely bucked and gave out.” (Id. ¶ 20.) He filed another sick call request and

was seen by Iannuzzi on February 4, 2016. (Id. ¶ 21.) Iannuzzi evaluated Plaintiff’s

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knees and prescribed a permanent walker to help Plaintiff “keep stable while walking

up and down the hills.” (Id.)

Plaintiff alleges that his medication was stopped by Defendant Pandya after

thirty (30) days had passed. (Id. ¶ 23.) Plaintiff avers that Defendant Pandya stopped

his medication because of Plaintiff’s actions of submitting requests and filing

grievances. (Id.) On April 4, 2016, Plaintiff was called to the medical department,

where he was told that his walker was being taken away and he would receive a cane

in its place for thirty (30) days. (Id. ¶ 25.) Plaintiff was also advised to do workouts

in his cell. (Id.) Plaintiff refused the workouts, alleging that he was in too much

pain and “could hardly walk let alone do a workout.” (Id.)

Plaintiff experienced more pain in his knees after the walker was taken away.

(Id. ¶ 26.) The pain “severely limited and impaired [his] ability to walk, sleep, and

perform manual task[s].” (Id.) Plaintiff asked to be provided a chair “to use to

shower as [he] could no longer stand without a device to help him.” (Id.

¶ 27.) He also sought permission to use a chair while he used the phone and asked

to be provided pain medication again. (Id.) His requests were denied, and Plaintiff

filed a grievance. (Id. ¶¶ 27-28.)

On June 29, 2016, Plaintiff filed an Americans with Disabilities Act (“ADA”)

request after being told that he could do so by the facility manager in his response to

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Plaintiff’s grievance. (Id. ¶¶ 29-30.) Defendant Holly also responded to his

grievance, telling Plaintiff that his request for a chair needed to be addressed with

his unit management team. (Id. ¶ 31.) Plaintiff alleges that Defendant Dowd

continued to deny him a chair, telling Plaintiff that she had asked medical and the

deputy, both of which had to approve the chair. (Id. ¶ 32.) Plaintiff avers that he

“further injured himself while showering, as a direct result of being denied [use of]

a chair in a non-[handicap] accessible prison.” (Id. ¶ 33.)

Plaintiff was sent out to see a therapist on February 17, 2017. (Id. ¶ 34.) The

therapist noted that Plaintiff was in a wheelchair and that his knees were swollen.

(Id.) Plaintiff told the therapist that he was “in sever[e] pain.” (Id.) The therapist

suggested that Defendant Pandya provide Plaintiff with pain medications, crutches,

and new braces because Plaintiff’s “old brace was broken and wor[n] out.” (Id.)

Defendant Pandya, however, told Plaintiff that he would not receive crutches and

pain medication. (Id. ¶ 35.)

On February 22, 2017, Plaintiff was called to medical to pick up his new brace

from Defendant Pandya. (Id. ¶ 36.) Defendant Pandya “continued to deny [him]

crutches, or pain medication, or anything to reduce swelling.” (Id.) On February

24, 2017, Plaintiff filed a grievance about the denial of crutches, as well as his pain

and the inability to use a chair while showering. (Id. ¶ 37.) He also “continued his

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argument to be placed in a handicap accessible prison.” (Id. ¶ 38.) On March 1,

2017, Plaintiff received crutches, but his other requests were denied. (Id. ¶ 39.)

On April 11, 2017, Plaintiff fell again in the shower. (Id. ¶ 40.) He “felt there

was something much more damaged after this fall” because he was in severe pain

and had more trouble walking, even with crutches. (Id. ¶ 41.) Plaintiff avers that

his pain became so severe that he had to stop going to the dining hall for breakfast,

lunch, and dinner from February 2016 until June 12, 2017. (Id. ¶ 42.) Plaintiff avers

that he was unable to travel up and down the hills to and from the dining hall because

the walking caused his knees to give out. (Id.) Plaintiff maintains that on April 11,

2017, his ADA request was denied with a note that his disability was already

reasonably accommodated. (Id. ¶ 72.)

Plaintiff maintains that in August 2016, he requested to go to the gym “in

order to try to build the muscle tone in [his] knees and ankles.” (Id. ¶ 44.) On April

24, 2017, Plaintiff was informed that an exercise wheel had been ordered for him to

use. (Id. ¶ 45.) That same day, he received a response to a grievance from the

superintendent stating that Defendant Pandya was still evaluating whether Plaintiff

needed an MRI. (Id. ¶ 46.) The response also stated that Plaintiff had been seen by

a specialist and received physical therapy. (Id.) Plaintiff avers that he was never

seen by a patella specialist and never received the exercise wheel. (Id. ¶¶ 47-48.)

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On April 12, 2017, Plaintiff received a brace for his right knee. (Id. ¶ 50.)

Plaintiff also underwent MRIs of both knees. (Id. ¶ 51.) Plaintiff’s left knee showed

mild effusion of the joint, a “laterally subluxed” patella, and patellofemoral arthritis.

(Id. ¶ 52.) The MRI also noted “chronic lateral patella instability.” (Id.) Plaintiff’s

right knee also showed signs of moderate patellofemoral arthritis. (Id. ¶ 53.)

Plaintiff avers that staff at SCI Frackville were made aware of his difficulties.

(Id. ¶ 63.) Defendants, however, “made no accommodations to enable Plaintiff to

receive his meals in his cell as was done for others.” (Id. ¶ 64.) Plaintiff informed

Defendant Tritt of his difficulties and asked to be transferred to a prison that could

accommodate his disabilities. (Id. ¶ 66.) Defendant Tritt responded by telling

Plaintiff that OPM decides where inmates are placed and that medical would need

to support his “need for accommodations other [than] the norm.” (Id. ¶ 67.)

Plaintiff filed a grievance which was upheld in part to the extent that medical

staff would direct that Plaintiff be transferred to a single-level facility. (Id. ¶ 56.)

Plaintiff was transferred to SCI Mahanoy on June 12, 2017. (Id. ¶ 57.) He avers

that on August 11, 2017, Defendant Mros denied him use of the handicap-accessible

shower because he was upset that Plaintiff “had just mere days before filed a

grievance on [him] for denying Plaintiff . . . a shower.” (Id. ¶ 74.) Plaintiff maintains

that he fell in the non-handicap-accessible shower “when his crutches slipped from

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up under him.” (Id. ¶ 75.) He landed on the ledge of the shower, hurting his knees,

back, and neck. (Id.) Staff eventually removed Plaintiff from the shower and placed

him in a wheelchair. (Id. ¶ 76.) Plaintiff claims that he only received a few Motrin

and was charged $10.00 for the medical service. (Id. ¶ 77.) Plaintiff grieved the

issue, and his grievance was denied at all levels. (Id. ¶¶ 80-84.)

Based on the foregoing, Plaintiff alleges that Defendants violated his Eighth

Amendment rights by demonstrated deliberate indifference to his medical needs.

(Id. ¶¶ 91-92.) Plaintiff also alleges that Defendants violated his rights under the

ADA, the Rehabilitation Act, and the constitution and laws of Pennsylvania by

failing to accommodate his disability and provide proper medical care. (Id. ¶¶ 93-

95.) Plaintiff also suggests that Defendant Mros violated his First Amendment right

by retaliating against him for filing a grievance. Plaintiff seeks compensatory and

punitive damages, as well as declaratory relief. (Id. at 19.)

II. STANDARD OF REVIEW

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

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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). 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.

8

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.”

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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).

III. STATEMENT OF MATERIAL FACTS3

3 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 background herein is derived from Defendants’ Rule 56.1

statement of material facts. (Doc. No. 63.) While Plaintiff’s brief in opposition to the motion for

summary judgment contains a response to Defendants’ statement of facts (see Doc. No. 79 at 19-

22), Plaintiff has not fully complied with Local Rule 56.1 in that he failed to specifically respond

to all the numbered paragraphs in Defendants’ statement of material facts. Because of this,

Defendants ask that the Court strike Plaintiff’s statement. (Doc. No. 81 at 10-12.) However, to

the extent Plaintiff’s statement does not respond to the numbered paragraphs in Defendants’

statement, those numbered paragraphs will be deemed admitted. See, e.g., Liddick v. Tritt, No.

1:14-CV-01813, 2017 WL 4211051, at *1 (M.D. Pa. Aug. 31, 2017) (concluding same), Report

and Recommendation adopted, 2017 WL 4180111 (M.D. Pa. Sept. 21, 2017); Joyner v. District of

Columbia, No. 04-cv-489, 2009 WL 2224757, at *3 n.5 (M.D. Pa. July 23, 2009) (deeming the

moving party’s statement of facts admitted where the non-moving party’s response failed to

provide individual responses to each of the numbered paragraphs contained therein). Plaintiff’s

verified complaint, however, may be treated as an affidavit in opposition to Defendants’ motion

for summary judgment. See Ziegler v. Eby, 77 F. App’x 117, 120 (3d Cir. 2003) (noting that “the

complaint was not verified, thereby precluding the District Court from treating it as the equivalent

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Plaintiff was incarcerated at SCI Frackville from December of 2015 until June

of 2017. (Doc. No. 63 ¶ 1.) Plaintiff had pre-existing knee injuries when he arrived

at SCI Frackville. (Id. ¶ 2.) “Plaintiff had a knee brace, which was replaced while

he was at [SCI] Frackville.” (Id. ¶ 3.)4 In June of 2017, Plaintiff was transferred to

SCI Mahanoy. (Id. ¶ 4.)

During the relevant time, Defendants Tritt and Brittain responded to

Plaintiff’s grievances and inmate requests. (Id. ¶¶ 5-6.) Defendant Delbalso

responded to his grievance appeals. (Id. ¶ 7.) Defendant Bowser “assisted in

obtaining an order to have the Plaintiff transferred to a single-level facility.” (Id.

¶ 8.) Plaintiff also “saw medical staff on numerous occasions, receiving a walker, a

cane, a knee brace, crutches, and pain medication at various times.” (Id. ¶ 10.)5 On

of an affidavit for purposes of Federal Rule of Civil Procedure 56(e)”); Reese v. Sparks, 760 F.2d

64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion);

see also Boomer v. Lewis, No. 06-850, 2009 WL 2900778, at *2 n.4 (M.D. Pa. Sept. 9, 2009) (“A

verified complaint may be treated as an affidavit in support of or in opposition to a motion for

summary judgment if the allegations are specific and based on personal knowledge.”).

Accordingly, the Court sets forth the undisputed facts above with footnotes setting forth the

parties’ relevant factual disputes.

4 Plaintiff avers that his knee brace was not replaced until after February 17, 2017, when he saw a

therapist. (Doc. No. 79 at 19.) The therapist recommended that Plaintiff receive crutches, pain

medication, and two (2) new knee braces, but he “was dismissed without receiving any of the

items.” (Id.) Plaintiff received a brace for his right knee on February 22, 2017. (Id. at 19-20.)

5 Plaintiff maintains that his “walker was removed for no reason when [it] was to be permanent.”

(Id. at 20.) He avers that Defendants Pandya and Holly “had a part in removing [his] walker” and

that he “only received crutches after he filed a grievance.” (Id.) Plaintiff states further that he did

not receive pain medication at times and that Defendant Pandya retaliated against him for filing

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August 11, 2017, Plaintiff was “given the choice of either using a non-handicapped

shower or not showering; [he] chose to use the non-handicapped shower and slipped

in that shower.” (Id. ¶ 11.)6

IV. DISCUSSION

A. Claims Pursuant to 42 U.S.C. § 19837

1. Deliberate Indifference to Medical Needs

In the context of medical care, the Eighth Amendment “requires prison

officials to provide basic medical treatment to those whom it has incarcerated.”

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). To establish an Eighth

Amendment deliberate indifference claim, a claimant must demonstrate “(i) a

serious medical need, and (ii) acts or omissions by prison officials that indicate

grievances “by removing [his] medication and as long as [P]laintiff remained under [Defendant

Pandya’s] care [he] never received any more medication.” (Id. at 20-21.)

6 Plaintiff avers that he had to choose between taking a shower “after not having a shower for

days” or waiting until the next Monday to take a shower. (Id. at 21.) Plaintiff maintains that

Defendant Mros forced him to make this decision in retaliation for Plaintiff filing a grievance

“against Mros 4-days prior for Mros denying [P]laintiff a shower.” (Id.)

7 As noted above, Plaintiff has named the DOC as a Defendant in this matter. Moving Defendants,

however, have not specifically addressed Plaintiff’s claims against the DOC in their brief

supporting their motion for summary judgment. Nevertheless, the DOC is “entitled to Eleventh

Amendment immunity from suit and [is] not [a] person[] subject to suit under 42 U.S.C. § 1983.

See Foye v. Wexford Health Sources, Inc., 675 F. App’x 210, 2510 (3d Cir. 2017) (citations

omitted). Accordingly, the DOC is entitled to summary judgment with respect to Plaintiff’s

§ 1983 claims.

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deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d

575, 582 (3d Cir. 2003).

Deliberate indifference has been found “where the prison official (1) knows

of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2)

delays necessary medical treatment based on a non-medical reason; or (3) prevents

a prisoner from receiving needed or recommended medical treatment.” Rouse, 182

F.3d at 197. The “deliberate indifference” prong of the Eighth Amendment test

requires that the defendant actually know of and disregard “an excessive risk to

inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Circumstantial evidence can establish subjective knowledge if it shows that the

excessive risk was so obvious that the official must have known about it. See Beers-

Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at

842)). Moreover, “[i]f a prisoner is under the care of medical experts . . . a non-

medical prison official will generally be justified in believing that the prisoner is in

capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Accordingly,

“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 with the Eighth Amendment scienter requirement of

deliberate indifference.” Id.

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The second prong of the Eighth Amendment inquiry is whether the plaintiff’s

medical needs were serious. A serious medical need is “one that has been diagnosed

by a physician as requiring treatment or one that is so obvious that a lay person would

easily recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr. Inst.

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Not every condition is a

serious medical need; instead, the serous medical need element contemplates a

condition of urgency, namely, one that may produce death, degeneration, or extreme

pain. See id. Moreover, because only egregious acts or omissions can violate this

standard, mere medical malpractice cannot result in an Eighth Amendment violation.

See White v. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990); see also Estelle v.

Gamble, 429 U.S. 97, 106 (1976) (“medical malpractice does not become a

constitutional violation merely because the victim is a prisoner”).

Additionally, prison medical authorities are given considerable latitude in the

diagnosis and treatment of inmate patients, see Young v. Kazmerski, 266 F. App’x

191, 194 (3d Cir. 2008), and a doctor’s disagreement with the professional judgment

of another doctor is not actionable under the Eighth Amendment. See White, 897

F.2d at 108-10. Furthermore, it is well settled that an inmate’s dissatisfaction with

a course of medical treatment, standing alone, does not give rise to a viable Eighth

Amendment claim. See Taylor v. Norris, 36 F. App’x 228, 229 (8th Cir. 2002);

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Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-25 (7th Cir. 1996); Sherrer v.

Stephens, 50 F.3d 496, 497 (8th Cir. 1994); Brown v. Borough of Chambersburg,

903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional

judgment his behavior will not violate a prisoner’s constitutional rights.”); see also

Pearson v. Prison Health Servs., 850 F.3d 526, 535 (3d Cir. 2017) (“[W]hen medical

care is provided, we presume that the treatment of a prisoner is proper absent

evidence that it violates professional standards of care.”).

In the instant case, Defendants do not challenge whether Plaintiff had a serious

medical need. Rather, they assert that Defendants Tritt, Brittain, Delbalso, Bowser,

Moore, and Wetzel are entitled to summary judgment because they were not

personally involved in the alleged violations of Plaintiff’s constitutional rights.

(Doc. No. 64 at 4-7.) They maintain further that Defendants Holly, Dowd, and Mros

are entitled to summary judgment because they did not demonstrate deliberate

indifference to Plaintiff’s medical needs. (Id. at 8-9.) The Court considers each

argument in turn below.

a. Defendants Tritt, Brittain, Delbalso, Bowser, Moore,

and Wetzel

Under § 1983, individual liability may be imposed only if the state actor

played an “affirmative part” in the alleged misconduct. Evancho v. Fisher, 423 F.3d

347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

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Cir. 1998)). Liability “cannot be predicated solely on the operation of respondeat

superior.” Id. In other words, defendants “must have personal involvement in the

alleged wrongs . . . shown through allegations of personal direction or of actual

knowledge and acquiescence.” Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003);

Rode, 845 F.2d at 120-08. Moreover, the filing of a grievance, participation in

“after-the-fact” review of a grievance, or dissatisfaction with the response to an

inmate’s grievance, does not establish the involvement of officials and

administrators in any underlying constitutional deprivation. See Pressley v. Beard,

266 F. App’x 216, 218 (3d Cir. 2008) (“The District Court properly dismissed these

defendants and any additional defendants who were sued based on their failure to

take corrective action when grievances or investigations were referred to them.”);

Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006) (holding that allegations that

prison officials responded inappropriately to inmate’s later-filed grievances do not

establish the involvement of those officials and administrators in the underlying

constitutional deprivation); Ramos v. Pa. Dep’t of Corr., No. 06-1444, 2006 WL

2129148, at *3 (M.D. Pa. July 27, 2006) (“[C]ontentions that certain correctional

officials violated an inmate’s constitutional rights by failing to follow proper

procedure or take corrective action following his submission of an institutional

grievance are generally without merit.”); Wilson v. Horn, 971 F. Supp. 943, 947

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(E.D. Pa. 1997) (noting that a complaint alleging that prison officials failed to

respond to the inmate-plaintiff’s grievance does not state a constitutional claim),

aff’d, 142 F.3d 430 (3d Cir. 1998); see also Rode, 845 F.2d at 1207 (concluding that

where a defendant, after being informed of the violation through the filing of

grievances, reports, or appeals, failed to take action to remedy the alleged wrong is

not enough to show that the defendant had the necessary personal involvement);

Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (concluding that a mere “linkage

in the prison chain of command” is not sufficient to demonstrate personal

involvement for purposes of a civil rights action).

With respect to supervisory liability, there are two theories: “one under which

supervisors can be liable if they established and maintained a policy, practice or

custom which directly caused the constitutional harm, and another under which they

can be liable if they participated in violating plaintiff’s rights, directed others to

violate them, or, as the persons in charge, had knowledge of and acquiesced in their

subordinates’ violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d

Cir. 2010 (quotation and alteration marks omitted). As to the second theory, a

plaintiff must show that each defendant personally participated in the alleged

constitutional violation or approved of it. See C.N. v. Ridgewood Bd. of Educ., 430

F.3d 159, 173 (3d Cir. 2005); see also Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

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With respect to the first, “the plaintiff must establish that: (1) existing policy or

practice creates an unreasonable risk of constitutional injury; (2) the supervisor was

aware that the unreasonable risk was created; (3) the supervisor was indifferent to

that risk; and (4) the injury resulted from the policy or practice.” Merring v. City of

Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing Sample v. Diecks,

885 F.2d 1099, 1118 (3d Cir. 1989)).

Plaintiff alleges that Defendant Wetzel “failed to establish or implement

adequate policies, practices and procedures, to protect and accommodate individuals

with injuries and/or disabilities and to provide them with adequate medical care.”

(Doc. No. 5 ¶ 86.) As noted above, a plaintiff may establish supervisory liability if

he demonstrates that a supervisor established and maintained a policy, practice, or

custom that directly caused the constitutional harm. Santiago, 629 F.3d at 129 n.5.

Here, however, Plaintiff asserts the opposite—that his constitutional rights were

violated because of the lack of such policies. He maintains that Defendant Wetzel

had a “duty to have a policy in place to keep correctional officers from forcing

handicap inmates to [choose] between no shower or risk of injury.” (Doc. No. 79 at

7.) Plaintiff, however, has not demonstrated that Defendant Wetzel knew of any

unreasonable risk and was indifferent to that risk by failing to implement such a

policy. See Merring, 558 F. Supp. 2d at 547. Moreover, Plaintiff fails to establish

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that Defendant Wetzel personally participated in any alleged constitutional violation

or approved of it. See C.N., 430 F.3d at 173. Accordingly, the Court will grant

Defendant Wetzel summary judgment with respect to Plaintiff’s Eighth Amendment

claims.

Plaintiff seeks to hold Defendants Tritt, Brittain, Delbalso, and Moore liable

based upon their responses to his grievances and grievance appeals. As noted above,

these Defendants’ participation in review of Plaintiff’s grievances and appeals does

not establish personal involvement in the alleged constitutional violations. See

Pressley, 266 F. App’x at 218. In his brief opposing summary judgment, Plaintiff

avers that Defendants Tritt, Brittain, Delbalso, and Moore should be held liable

because they failed to take corrective action after receiving several grievances from

him regarding alleged recurring violations of his rights, particularly his belief that

he continued to be denied adequate medical care for his disabilities. (Doc. No. 79 at

7-9.) Several courts within the Third Circuit have concluded that supervisory

officials may be held liable stemming from the review of a grievance alleging an

ongoing violation because the official “is personally involved in that violation

because he is confronted with a situation he can remedy directly.” Mayo v. Oppman,

No. CV 17-311, 2018 WL 1833348, at *4 (W.D. Pa. Jan. 23, 2018), Report and

Recommendation adopted, 2018 WL 943528 (W.D. Pa. Feb. 20, 2018); Talley v.

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Wetzel, No. 2:18-cv-230, 2018 WL 6198364, at *2-3 (W.D. Pa. Nov. 28, 2018)

(concluding that the inmate plaintiff had stated plausible supervisory liability claims

because he submitted grievances for each day he was subjected to the challenged

conditions); Gibbs v. Univ. Corr. Healthcare, No. CV 14-7138 (MAS) (LHG), 2016

WL 6595916, at *2 (D.N.J. Nov. 7, 2016); Whitehead v. Rozum, No. 11-102, 2012

WL 4378193, at *2 (W.D. Pa. Aug. 7, 2012).

Even if the Court were to conclude that Plaintiff presented Defendants Tritt,

Brittain, Delbalso, and Moore with grievances intended to correct ongoing

violations, the record before the Court leads to a conclusion that these Defendants

were not deliberately indifferent to Plaintiff’s medical needs. As noted supra, “[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.” Spruill, 372

F.3d at 236. Accordingly, “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 with the Eighth Amendment

scienter requirement of deliberate indifference.” Id. Here, the record before the

Court indicates that Defendants Tritt, Brittain, Delbalso, and Moore relied upon the

opinions and records of Plaintiff’s medical providers as to the adequacy of his

medical care when responding to his grievances. Plaintiff has not demonstrated that

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these Defendants had reason to believe or actual knowledge that his medical

providers were mistreating or failing to treat him. The Court, therefore, will grant

summary judgment to Defendants Tritt, Brittain, Delbalso, and Moore as to

Plaintiff’s Eighth Amendment claim.

Finally, with respect to Defendant Bowser, Plaintiff’s sole allegation is that

she, along with Defendants Holly and Pandya, had agreed to a medical order

directing Plaintiff’s transfer to a “single level prototypical facility.” (Doc. No. 5

¶ 56.) The Court agrees with Defendants that it “would be illogical to hold

Defendant Bowser liable for helping the Plaintiff to obtain the very relief he sought.”

(Doc. No. 64 at 7.) In response, Plaintiff asserts that he “believes” that Defendant

Bowser was the one who denied his ADA request form. (Doc. No. 79 at 9.) He

argues that “without further discovery and a deposition, [he] can’t be sure of

[Defendant] Bowser[’s] full involvement.” (Id.) Plaintiff’s argument, however,

goes toward his claims for relief under the ADA and the Rehabilitation Act, not his

claims regarding the denial of adequate medical care pursuant to § 1983.8

8 Plaintiff never moved for an extension of the discovery period, nor has he filed a declaration

pursuant to Rule 56(d) of the Federal Rules of Civil Procedure explaining why discovery is

necessary. Rule 56(d) “allows, in certain circumstances, for supplemental discovery after a motion

for summary judgment has been filed.” See Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014)

(citing Fed. R. Civ. P. 56(d)). “Rule 56(d) states that ‘[i]f a nonmovant shows by affidavit or

declaration that, for specific reasons, it cannot present facts essential to justify its opposition, the

court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or

21

Accordingly, the Court will grant summary judgment with respect to Plaintiff’s

Eighth Amendment claims against Defendant Bowser.

b. Defendants Holly, Dowd, and Mros

Plaintiff next alleges that Defendants Holly, Dowd, and Mros demonstrated

deliberate indifference to his medical needs. Plaintiff maintains that Defendants

Holly and Mros denied him use of a chair to use while talking on the phone or

showering. (Doc. No. 5 ¶¶ 31-32.) He also appears to suggest that Defendant Mros

was deliberately indifferent by forcing him to choose between using a non-

handicapped shower or not showering at all. (Id. ¶¶ 74-75.)

Defendants Holly, Dowd, and Mros are not medical personnel. See Thomas

v. Dragovich, 142 F. App’x 33, 39 (3d Cir. 2005) (noting that CHCAs, such as

Defendant Holly, “are undisputably administrators, not doctors”). The record before

the Court indicates that Plaintiff was under the care of medical personnel at SCI

Frackville when Plaintiff asked Defendants Holly and Dowd for the use of a chair.

However, because neither of them is a physician, Defendants Holly and Dowd “can

be considered deliberately indifferent simply because they failed to respond directly

to the medical complaints of a prisoner who was already being treated by the prison

declarations or to take discovery; or (3) issue any other appropriate order.’” Shelton v. Bledsoe,

775 F.3d 554, 565-66 (3d Cir. 2015) (quoting Fed. R. Civ. P. 56(d)).

22

doctor.” Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1991); see also Foreman v.

Bureau of Prisons, No. 06-1274, 2007 WL 108457, at *4-5 (3d Cir. Jan. 16, 2007)

(concluding that non-medical personnel were entitled to qualified immunity

regarding inmate’s Eighth Amendment claim that he was deprived of a specific

shower chair). Plaintiff has not demonstrated that these Defendants had reason to

believe or actual knowledge that his medical providers were mistreating or failing to

treat him. Likewise, Plaintiff has not demonstrated that Defendant Mros had reason

to believe or actual knowledge that medical providers at SCI Mahanoy were

mistreating or failing to treat him. See Spruill, 372 F.3d at 236. Accordingly, the

Court will grant summary judgment to Defendants Holly, Dowd, and Mros with

respect to Plaintiff’s Eighth Amendment claims.

2. Retaliation

Plaintiff also alleges that Defendant Mros violated his rights under the First

Amendment by denying him use of a handicap-accessible shower, while Plaintiff

was on crutches, in retaliation for Plaintiff filing a grievance against Defendant Mros

“just mere days before.” (Doc. No. 5 ¶ 74.) To state a retaliation claim under the

First Amendment, a plaintiff bears the burden of satisfying three (3) elements. First,

a plaintiff must prove that he was engaged in a constitutionally protected activity.

See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Second, a plaintiff must

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demonstrate that he “suffered some ‘adverse action’ at the hands of prison officials.”

Id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This requirement

is satisfied by showing adverse action “sufficient ‘to deter a person of ordinary

firmness’ from exercising his First Amendment rights.” Id. (quoting Suppon v.

Dadonna, 2013 F.3d 228, 235 (3d Cir. 2000)). Third, a prisoner must prove that

“his constitutionally protected conduct was ‘a substantial or motivating factor’ in the

decision to discipline him.” Rauser, 241 F.3d at 333-34 (quoting Mount Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

The mere fact that an adverse action occurs after either a complaint or

grievance is filed is relevant, but not dispositive, for the purpose of establishing a

causal link between the two events. See Lape v. Pennsylvania, 157 F. App’x 491,

498 (3d Cir. 2005). Only when the facts of a particular case are “unusually

suggestive” of a retaliatory motive will temporal proximity, on its own, support an

inference of causation. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.

1997). The Third Circuit has noted that an inmate can satisfy this burden “with

evidence of either (1) an unusually suggestive temporal proximity between the

protected activity and the allegedly retaliatory action or (2) a pattern of antagonism

coupled with timing that suggests a causal link.” Watson v. Rozum, 834 F.3d 417,

422 (3d Cir. 2002).

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If a prisoner establishes a prima facie case of retaliation, the burden shifts to

prison officials to show, by a preponderance of the evidence, that “they would have

made the same decision absent the protected conduct for reasons reasonably related

to a legitimate penological interest.” Rauser, 241 F.3d at 334. “This is often referred

to as the ‘same decision defense.’” Watson, 834 F.3d at 422. If the prison officials

can make this showing, it defeats the retaliation claim. See Carter v. McGrady, 292

F.3d 152, 159 (3d Cir. 2002).

The filing of grievances constitutes protected activity. See Mearin v.

Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011). Defendants argue, however, that

Plaintiff has not established either that adverse action was taken by Defendant Mros

against him or the existence of a causal connection between such adverse action and

Plaintiff’s protected activity. (Doc. No. 64 at 10-12; Doc. No. 81 at 7-10.) The

Court considers these arguments in turn below.

a. Adverse Action

To be actionable under § 1983, the adverse action “need not be great” but

“must be more than de minimus.” See McKee v. Hart, 436 F.3d 165, 170 (3d Cir.

2006). Moving Defendants assert that Plaintiff cannot establish adverse action

because: (1) “being denied a single shower does not rise to the level of an adverse

action” and (2) “Plaintiff was not even denied a shower; the evidence of record

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indicates that he was given the choice of showering in the non-handicapped shower

or not showering on that particular day.” (Doc. No. 64 at 10.) The Court agrees that

the loss of a single shower is too de minimis to constitute adverse action “because it

would not deter a similarly situated individual from exercising his or her

constitutional rights.” Coit v. Garman, No. 1:17-cv-1438, 2019 WL 2612703, at *9

(M.D. Pa. June 26, 2019); see also Phelan v. Durniak, No. 9:10-CV-666 (FJS/RFT),

2014 WL 4759937, at *16 (N.D.N.Y. Sept. 24, 2014); Hursey v. Klinesmith, No.

1:10-cv-1277, 2011 WL 2580403, at *7 (W.D. Mich. June 28, 2011). In the instant

case, however, Plaintiff claims that Defendant Mros retaliated against him by giving

him the choice of either not showering or using the non-handicapped shower.

Similar “Hobson’s choices” have been presumed to constitute sufficient adverse

action for purposes of a retaliation claim. See Johnson v. Piper, No. 2:14-cv-173-

RWS-JCF, 2017 WL 11493976, at *7-8 (N.D. Ga. Aug. 25, 2017) (assuming that

being provided the “Hobson’s choice” of “confinement in Max-Iso or separation

from his legal materials” was adverse action”).

Defendants maintain that “even if denial of a single shower were considered

an adverse action,” qualified immunity shields Defendant Mros from liability

because “it cannot reasonably be said that this right was ‘clearly established.” (Doc.

No. 81 at 8; Doc. No. 64 at 11-12.) “The doctrine of qualified immunity protects

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government officials from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). This

immunity “balances two important interests—the need to hold public officials

accountable when they exercise their power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties

reasonably.” Id. at 231. “Thus, so long as an official reasonably believes that his

conduct complies with the law, qualified immunity will shield that official from

liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555

U.S. at 244).

Determining whether qualified immunity applies involves the following two-

pronged inquiry: (1) whether a constitutional or federal right has been violated; and

(2) whether that right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201

(2001), overruled in part by Pearson, 555 U.S. at 236 (permitting federal courts to

exercise discretion in deciding which of the two Saucier prongs should be addressed

first). Defendants assert that “[t]he question here is whether forcing a prisoner to

use either a non-handicapped shower or to go without showering at all is ‘beyond

debate’ as a constitutional question” and aver that “the answer to this question is far

from settled.” (Doc. No. 64 at 12.) Defendants, however, misconstrue the nature of

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the right at issue for purposes of Plaintiff’s retaliation claim. The Third Circuit has

recognized that, for purposes of a retaliation claim, “an action which on its own

would not violate the Constitution could be actionable if motivated by retaliation.”

Collazo v. Rozum, 646 F. App’x 274, 276 n.5 (3d Cir. 2016). In the instant case, the

question is not whether Defendant Mros violated Plaintiff’s rights by forcing him to

choose between using a non-handicapped shower or not showering at all. Rather,

the question is whether Defendant Mros retaliated against Plaintiff for filing a

grievance against him. It is clearly established that such action, if proven, is not

lawful. See Atkinson v. Taylor, 316 F.3d 257, 270 (3d Cir. 2003) (citing Milhouse

v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981)). The Court, therefore, concludes

that Defendants are not entitled to qualified immunity and finds that Plaintiff has

satisfied the second prong for his retaliation claim.

b. Causal Connection

While causation may be established by direct or circumstantial evidence,

“motivation is almost never subject to proof by direct evidence.” Watson, 834 F.3d

at 422. Thus, motivation is typically demonstrated by “evidence of either (1) an

unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing that

suggests a causal link.” Id.

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Defendants assert that Plaintiff cannot demonstrate causation because

Defendant Mros was not named in Plaintiff’s grievance and because Plaintiff “points

to no evidence showing that Defendant Mros actually knew about the grievance.”

(Doc. No. 81 at 9.) While Defendants are correct that Plaintiff did not refer to

Defendant Mros by name in his initial grievance submitted on August 7, 2017,

Plaintiff later learned that Defendant Mros had been involved in denying him a

shower on that date. (Doc. No. 81-1.) Moreover, as noted supra, Plaintiff’s verified

complaint may be treated as an affidavit in opposition to Defendants’ motion. See

Reese, 760 F.2d at 76; Boomer, 2009 WL 2099778, at *2 n.4. In his complaint,

Plaintiff avers that Defendant Mros was upset that Plaintiff had filed a grievance

against him and, therefore, made Plaintiff choose between using the non-

handicapped shower or not showering at all on August 11, 2017. (Doc. No. 5 ¶¶ 74-

75.) Furthermore, in his deposition, Plaintiff averred that Defendant Mros was made

at him and “made [him] get in the non-handicapped shower and put a person that

wasn’t handicapped in a handicapped shower.” (Doc. No. 63-1 at 39-40.)

In light of the evidence presented by the parties, it is the Court’s view that

there are genuine issues of material fact regarding whether the adverse action

Plaintiff suffered is causally connected to Plaintiff’s grievance against Defendant

Mros. Plaintiff’s averments, as well as the passage of four (4) days between when

29

Plaintiff filed a grievance against Defendant Mros and when he maintains Defendant

Mros made him choose between using the non-handicapped shower or not

showering at all, could permit a reasonable juror to conclude that Defendant Mros

gave Plaintiff this choice because of Plaintiff’s conduct in filing a grievance against

him. Such issues of fact, however, will likely turn on a credibility assessment, a task

in which this Court may not partake at the summary judgment stage. See Anderson,

477 U.S. at 252. Accordingly, the Court will deny summary judgment as to

Plaintiff’s retaliation claim against Defendant Mros.

B. Claims Under the ADA and the Rehabilitation Act

Plaintiff also alleges that Defendants violated Title II of the ADA as well as

the Rehabilitation Act by failing to provide the proper accommodations for his

disabilities. (Doc. No. 5 ¶ 94.)9 Title II of the ADA, “which prohibits ‘a public

entity’ from discriminating against a ‘qualified individual with a disability’ on

account of that individual’s disability, covers inmate in state prisons.” Pa. Dep’t of

9 Plaintiff also claims that Defendants’ actions violated Title III of the ADA. (Doc. No. 5 ¶ 94.)

Title II states that “[n]o individual shall be discriminated against on the basis of disability in the

full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation.” 42 U.S.C. § 12182. Public

accommodations include service establishments such as hospitals, gas stations, laundromats, etc.,

“if the operations of such entitles affect commerce.” Id. § 12181(7)(F). Nothing in the record

before the Court suggests that SCI Frackville and SCI Mahanoy and, by extension, the DOC, could

be considered service establishments. See Harris v. Lanigan, No. 11-1321 (MLC), 2012 WL

983749, at *4 (D.N.J. Mar. 22, 2012) (concluding same regarding correctional facilities in New

Jersey). The Court, therefore, will only consider Plaintiff’s claims pursuant to Title II of the ADA.

30

Corr. v. Yeskey, 524 U.S. 206, 208 (1998) (quoting 42 U.S.C. §§ 12141 & 12132).

The Rehabilitation Act provides that “[n]o otherwise qualified individual with a

disability in the United States . . . shall, solely by reason of his or her disability, be

excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.”

29 U.S.C. § 794(a). The Third Circuit has explained that “[t]he substantive standards

for determining liability under the Rehabilitation Act and the ADA are the same.”

Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 275 (3d Cir. 2014) (quoting Ridley

Sch. Dist. v. M.R., 680 F.3d 260, 282-83 (3d Cir. 2012)). Therefore, to maintain a

claim under either the ADA or the Rehabilitation Act, Plaintiff must demonstrate

“that he is a qualified individual with a disability, who was precluded from

participating in a program, service, or activity, or otherwise was subject to

discrimination, by reason of his disability.” Furgess v. Pa. Dep’t of Corr., 933 F.3d

285, 289 (3d Cir. 2019).

While the Third Circuit has not addressed the issue precedentially, most courts

“have held that Title II does not authorize suits against government officers in their

individual capacities.” Williams v. Hayman, 657 F. Supp. 2d 488. 502 (D.N.J. 2008);

see also Bowens v. Wetzel, 674 F. App’x 133, 136 (3d Cir. 2017) (noting that “the

District Court could have properly followed the holdings of those circuits which

31

have concluded that there is no individual damages liability under Title II of the

ADA, which provides an additional basis to affirm the dismissal of this claim”);

Matthews v. Pa. Dep’t of Corr., 613 F. App’x 163, 169-70 (3d Cir. 2015) (agreeing

with the Second and Eighth Circuits that “Title II of the ADA does not provide for

suits against state officers in their individual capacities”). Likewise, individuals who

are employees of entities who receive federal funds are not subject to individual

liability under the Rehabilitation Act. See Olschefski v. Red Lion Area Sch. Dist.,

No. 1:12-cv-871, 2012 WL 6003620, at *8 (M.D. Pa. Nov. 30, 2012). Plaintiff,

therefore, cannot maintain his ADA and Rehabilitation Act claims against the

individual Defendants in their individual capacities.

The Court must next consider Plaintiff’s claims against the individual

Defendants, as well as the DOC, in their official capacities. Under Title II of the

ADA, plaintiffs may sue for prospective injunctive relief against state officials. See

Koslow v. Commonwealth, 302 F.3d 161, 179 (3d Cir. 2002) (noting that “federal

ADA claims for prospective injunctive relief against state officials are authorized by

the Ex Parte Young doctrine”). Moving Defendants assert that any claims for

prospective injunctive relief under the ADA and Rehabilitation Act are now moot

because of Plaintiff’s transfer to SCI Chester. (Doc. No. 64 at 7-8.) The Court

agrees with Defendants. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003)

32

(noting that “[a]n inmate’s transfer from the facility complained of generally moots

the equitable and declaratory claims” for relief); see also Reaves v. Dep’t of Corr.,

392 F. Supp. 3d 195, 210 (D. Mass. 2019) (concluding that inmate’s transfer mooted

his claims pursuant to Title II of the ADA and the Rehabilitation Act). Accordingly,

the Court will grant Defendants summary judgment with respect to any claims

Plaintiff raises seeking prospective injunctive relief under the ADA and the

Rehabilitation Act.

This Court has noted, however, that “the Supreme Court has held that the

Eleventh Amendment does not bar actions against state entities for monetary

damages brought under Title II of the ADA for conduct that violates the Fourteenth

Amendment.” Thomas v. Lawler, No. 1:10-cv-2437, 2016 WL 4366941, at *4 (M.D.

Pa. Aug. 16, 2016). Likewise, under the Rehabilitation Act, “States waive their

immunity when they accept federal funds.” Haybarger v. Lawrence Cty. Adut Prob.

and Parole, 551 F.3d 193, 195 (3d Cir. 2008). Plaintiff’s claims for damages against

Defendants in their official capacities are, therefore, cognizable. Defendants,

however, have not addressed such claims, and at this juncture, the Court cannot

properly consider the issue absent briefing from the parties. Accordingly, the Court

will deny the motion for summary judgment without prejudice to moving

Defendants’ right to file a renewed motion addressing Plaintiff’s claims for damages

33

against Defendants in their official capacities under Title II of the ADA and the

Rehabilitation Act.

C. State Law Claims

Plaintiff also raises several tort claims against Defendants pursuant to

Pennsylvania state law. (Doc. No. 5 at 1.) Specifically, he alleges “the torts of

[n]egligence, [r]ecklessness, and intentional infliction of distress.” (Id.) Moving

Defendants assert that the Court should decline to exercise supplemental jurisdiction

over these claims. (Doc. No. 64 at 13.) In the alternative, Defendants state that were

the Court to not dismiss all pending federal claims or decide against declining

supplemental jurisdiction, the Court “should grant summary judgment in the

Defendants’ favor, in any event, as his ‘state law’ claims appear to be a mere

rehashing of his federal claims.” (Id.)

“It is well established that in an action with both federal and state claims, ‘if

the federal claims are dismissed before trial, even though not insubstantial in a

jurisdictional sense, the state claims should be dismissed as well.’” Chernavsky v.

Twp. of Holmdel Police Dep’t, 136 F. App’x 507, 511 (3d Cir. 2005) (quoting United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)). The Court, however, has

not dismissed all of Plaintiff’s pending federal claims, as Plaintiff’s claims for

damages against Defendants in their official capacities under the ADA and

34

Rehabilitation Act, his retaliation claim against Defendant Mros, and his claims

against Defendant Pandya remain. Therefore, at this time, the Court cannot decline

to exercise supplemental jurisdiction. Moving Defendants, however, have not

sufficiently addressed Plaintiff’s state law claims, and at this juncture, the Court

cannot properly consider the issue absent briefing from the parties. Accordingly, the

Court will deny the motion for summary judgment without prejudice to moving

Defendants’ right to file a renewed motion addressing Plaintiff’s state law claims.10

V. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for an extension of time to file a

surreply (Doc. No. 82) will be denied. Defendants’ motion for summary judgment

(Doc. No. 62) will be granted in part and denied in part. The motion will be granted

with respect to Plaintiff’s Eighth Amendment claims against Defendants, his claims

under the ADA and Rehabilitation Act against Defendants in their individual

capacities, as well as any claims for prospective injunctive relief under the ADA and

the Rehabilitation Act against Defendants in their official capacities. The motion

will be denied with respect to Plaintiff’s claims for monetary damages against

Defendants in their official capacities under the ADA and Rehabilitation Act,

10 If appropriate, Defendants may reassert their request that the Court decline to exercise

supplemental jurisdiction over these claims.

35

Plaintiff’s First Amendment retaliation claim against Defendant Mros, and

Plaintiff’s state law claims against Defendants. Defendants will be permitted to file

a second motion for summary judgment addressing Plaintiff’s remaining ADA and

Rehabilitation Act claims, as well as his state law claims. An appropriate Order

follows.

s/ Sylvia H. Rambo

United States District Judge

Date: April 20, 2020

36