Weston v. Lensbower

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANK A. WESTON, : CIVIL ACTION NO. 1:19-CV-1212

:

Plaintiff : (Judge Conner)

:

v. :

:

JUSTIN H. LENSBOWER, et al., :

:

Defendants :

MEMORANDUM

Plaintiff Frank Weston (“Weston”), an inmate who was housed at all relevant

times at the Franklin County Jail, in Chambersburg, Pennsylvania, commenced this

action pursuant to 42 U.S.C. § 1983 asserting that defendants failed to provide him

adequate medical care for his back pain. (Doc. 1). Named as defendants are Justin

H. Lensbower and Sierra Helser (together, “PrimeCare defendants”), and Deputy

Warden Weller, Lieutenant Elliott, Officer Kirby, Officer Shindlerdecker, Officer

Metzler, and Officer French (collectively, “Franklin County defendants”). Before

the court are two Rule 12(b) motions (Docs. 20, 25) to dismiss filed by the PrimeCare

defendants and the Franklin County defendants, respectively. For the reasons set

forth below, the court will grant each pending motion.

I. Factual Background & Procedural History

Weston alleges that on December 7, 2017, he was getting out of the shower

when his back “gave out” and he began to experience back pain. (Doc. 1, at 4).

Weston proceed to walk “in a bent-over position” to his housing unit. (Id. at 4-5).

Weston claims that he asked defendant Kirby to call the medical department. (Id.

at 5). Defendant Kirby advised Weston that unless it was an emergency, he would

have to submit a sick call. (Id.) When defendant Kirby’s shift ended, he was

relieved by defendant Metzler around 10:30 a.m. (Id.) Weston asked defendant

Metzler to call the medical department. (Id.) Defendant Metzler called the medical

department at 12:30 p.m. (Id.)

At approximately 2:25 p.m., defendant nurse Helser came to the block, took

Weston’s vital signs, and requested that a wheelchair be brought to the cell block.

(Id. at 7). Weston was transported by wheelchair to the medical department where

he underwent an electrocardiogram (“EKG”) test and a urinalysis. (Id.) The EKG

revealed that Weston’s vital signs were normal, and the urine sample was abnormal.

(Id.) Weston was then taken by wheelchair back to his cell block. (Id.)

Weston asserts that he had difficulty ambulating around the cell block. (Id.)

Weston further alleges that defendant Helser subsequently asked to see him in the

classroom on the housing unit. (Id.) Weston claims that it was a struggle for him to

walk to the classroom. (Id.) Later that evening, medication was administered to

inmates on Weston’s housing unit. (Id.) Weston requested that he be provided his

medication in his cell as opposed to going the medication line. (Id.) Defendant

Helser allegedly denied his request to receive his medication in his cell because he

was “alright” and able to walk to the medication line. (Id. at 8, 11). Weston

protested that he did not want his medication brought to his cell, shouted expletives

to the nurse in charge, and demanded that he be transported to the hospital. (Id.)

Weston ultimately received a misconduct for his behavior. (Id. at 8, 10-11).

Weston filed a grievance concerning the medical treatment that he received.

(Id. at 6-8). Defendant Lensbower responded to the grievance as follows:

Your medical record was reviewed in response to your grievance

received. You claim you were not treated appropriately for your

complaint of back pain. You were assessed by medical by protocol.

You were told to rest by lying down. You were observed in dayspace

after this assessment sitting in a chair in dayspace. You had difficulty

ambulating during these times as noted on observation reports.

Medication was administered to you per protocol and policy. If you

have any further medical or mental health concerns, please feel free to

submit a sick call slip, the process for which can be found in your

inmate handbook.

(Id. at 9).

Defendants move to dismiss Weston’s complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6). (Docs. 20, 25). Weston failed to respond to defendants’

motions and the time for responding has now passed.1 Therefore, the motions are

deemed unopposed and ripe for resolution.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief can be granted.

FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6),

the court must “accept as true all [factual] allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them in the light most

favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)

1 Weston was directed to file a brief in opposition to defendants’ motions and

was admonished that failure to file an opposition brief would result in defendants’

motions being deemed unopposed. (Doc. 30) (citing M.D. PA. LOCAL RULE OF

COURT 7.6). (See also Doc. 7, Standing Practice Order in Pro Se Plaintiff Cases, at

2).

(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is

generally limited in its review to the facts contained in the complaint, it “may also

consider matters of public record, orders, exhibits attached to the complaint and

items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide “the

defendant notice of what the . . . claim is and the grounds upon which it rests.”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the

face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See

Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step,

“the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’”

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal

elements of a claim should be separated; well-pleaded facts must be accepted as

true, while mere legal conclusions may be disregarded. Id.; see also Fowler v.

UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual

allegations have been isolated, the court must determine whether they are sufficient

to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550

U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient

to “raise a right to relief above the speculative level”). A claim “has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

III. PrimeCare Defendants’ Motion

In order to establish an Eighth Amendment medical claim,2 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. Corr. Facility,

318 F.3d 575, 582 (3d Cir. 2003) (citing 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 lay person would recognize the

necessity for a doctor’s attention.” Monmouth Cty. Corr. 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. (citation omitted). 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

2 It is unclear whether Weston was a pretrial detainee or convicted prisoner

during his time at the Franklin County Jail. Pretrial detainees are protected by the

Due Process Clause of the Fourteenth Amendment, not the Cruel and Unusual

Punishment Clause of the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520,

535 n.16 (1979). However, the Fourteenth Amendment provides “at least as much

protection as does the Eighth Amendment,” and in cases involving allegations of

inadequate medical care, the Third Circuit Court of Appeals typically reviews both

claims using the Eighth Amendment standard. Gannaway v. Berks Cty. Prison,

439 F. App’x 86, 89 n.2 (3d Cir. 2011) (nonprecedential) (citing Natale v. Camden

Cty. Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003)). Thus, the court will address

Weston’s deliberate indifference claim pursuant to the Eighth Amendment

standard.

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). 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. See Farmer v. Carlson,

685 F. Supp. 1335, 1339 (M.D. Pa. 1988); see also McCracken v. Jones, 562 F.2d 22, 24

(10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976), cert. denied, 450

U.S. 1041 (1981).

Individual liability can be imposed under Section 1983 only if the state actor

played an “affirmative part” in the alleged misconduct and “cannot be predicated

solely on the operation of respondeat superior.” Evancho, 423 F.3d at 353 (quoting

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). “A defendant in a civil

rights action must have personal involvement in the alleged wrongs. . . . Personal

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

knowledge and acquiescence.” Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode,

423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Such allegations,

however, must be made with appropriate particularity in that a complaint must

allege the particulars of conduct, time, place, and person responsible. Evancho,

423 F.3d at 354; Rode, 845 F.2d at 1207-08. Alleging a mere hypothesis that an

individual defendant had personal knowledge or involvement in depriving the

plaintiff of his rights is insufficient to establish personal involvement. Rode, 845

F.2d at 1208.

A. Defendant Lensbower

In the complaint, Weston fails to set forth any allegations against defendant

Lensbower and fails to demonstrate any personal involvement on the part of

Lensbower. The only reference to defendant Lensbower pertains to his denial of a

grievance, which was submitted as an attachment to the complaint. (Doc. 1, at 9).

To the extent that Weston attempts to hold defendant Lensbower liable based on

his involvement in the grievance procedure, this claim fails. It is well-established

that the “failure of a prison official to provide a favorable response to an inmate

grievance is not a federal constitutional violation.” Flanagan v. Shively, 783 F.

Supp. 922, 931-32 (M.D. Pa. 1992), aff’d, 980 F.2d 722 (3d Cir. 1992). Thus, insofar as

Weston’s claims against defendant Lensbower are premised on his denial of a

grievance, dissatisfaction with responses to an inmate’s grievances does not support

a constitutional claim. See Alexander v. Gennarini, 144 F. App’x 924 (3d Cir. 2005)

(concluding that involvement in the post-incident grievance process is not a basis

for § 1983 liability). Defendant Lensbower is entitled to dismissal from this action

based on lack of personal involvement in the alleged wrongful conduct.

B. Defendant Helser

Weston alleges that nurse Helser provided inadequate medical care for his

back pain when he was housed at the Franklin County Jail. Prison medical

personnel may be found to have acted with deliberate indifference where they

“prevent[ed] an inmate from receiving recommended treatment for serious medical

needs.” Lanzaro, 834 F.2d at 346-47. Weston can also establish deliberate

indifference by alleging facts showing that defendant Helser “den[ied] reasonable

requests for medical treatment . . . and such denial expose[d] [him] to undue

suffering or the threat of tangible residual injury.” Id. If the alleged inadequate

care “was a result of an error in medical judgment,” then Weston’s claims must fail.

Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). If, however, the failure to

provide adequate care was deliberate, and motivated by non-medical factors, then

Weston’s claims are actionable.

Weston alleges that defendant Helser ordered that he be transported by a

wheelchair after he injured his back, she performed diagnostic testing including an

EKG and urinalysis, and denied his request to receive medication in his cell. Based

on these allegations, defendant Helser did not exhibit a wanton disregard of

Weston’s medical needs, did not fail to provide any medical treatment, and did not

deny any requests for medication3. To the extent that Weston disagrees with

defendant Helser’s decision that he was required to obtain his medication on the

medication line, such disagreement does not give rise to a constitutional claim given

the considerable latitude afforded prison authorities in the treatment of prisoners.

See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (holding that “mere

disagreement as to the proper medical treatment” is insufficient to state a

constitutional violation); Hartman v. Corr. Med. Serv., 366 F. App’x 453, 455 (3d Cir.

2010) (dismissing plaintiff’s complaint as not based on an Eighth Amendment

deliberate indifference theory when “his allegations reflect . . . his disagreement

with the manner in which defendant . . . directed that all of [plaintiff]’s medications

3 Weston does not allege that he failed to receive his medication. (See Doc.

1).

be administered by medical staff”). Weston fails to allege facts from which it can

reasonably be inferred that defendant Helser exhibited a deliberate indifference to

his medical needs. The claims against defendant Helser will be dismissed.

IV. Franklin County Defendants’ Motion

A. Defendants Weller, Elliot, and Shindlerdecker

Weston’s claims against defendants Weller, Elliott, and Shindlerdecker must

be dismissed because his complaint is devoid of facts showing how they were

involved in his allegedly defective medical treatment.

With respect to defendant Weller, the Deputy Warden of the Franklin County

Jail, the complaint contains no allegations whatsoever as to her involvement in the

alleged inadequate medical care. (See Doc. 1). Aside from naming Deputy Warden

Weller as a defendant, Weston sets forth no allegations against her. A claim of a

constitutional deprivation cannot be premised merely on the fact that the named

defendant was the prison warden, or a prison supervisor, when the incidents set

forth in the complaint occurred. See Rode, 845 F.2d at 1207. Additionally, to the

extent that Weston attempts to hold defendant Weller liable based on her

supervisory role as Deputy Warden, it is well-established that officials may not be

held liable for unconstitutional conduct of their subordinates under a theory of

respondeat superior. See Rode, 845 F.2d at 1207. Accordingly, defendant Weller is

entitled to dismissal from this action.

As to defendant Elliott, Weston alleges that Officer Johns called Elliott when

Weston began yelling at the nurse administering medication on his housing unit.

Regarding defendant Shindlerdecker, Weston alleges that he was present when

defendant French told Weston that he must stand in the medication line to receive

his medication. The complaint does not set forth any further allegations against

defendants Elliot and Shindlerdecker and does not allege that they directly treated

or monitored Weston’s medical needs. Weston fails to allege sufficient facts to

establish that defendants Elliott and Shindlerdecker were personally involved in

the alleged inadequate medical care he received. Weston has thus failed to state a

claim against defendants Elliott and Shindlerdecker.

B. Defendants Kirby, Meltzer, and French

As stated supra, 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, 318 F.3d at 582

(citing Rouse, 182 F.3d at 197). 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 recognize the necessity for a doctor’s attention.” Lanzaro, 834 F.2d at

347.

In the complaint, Weston alleges that his back “gave out.” (Doc. 1, at 4).

Assuming arguendo that Weston’s back pain rises to the level of a serious medical

condition for purposes of the Eighth Amendment analysis, the court must

determine whether Weston has pled a deliberate indifference to that need. The

allegations in the complaint demonstrate that defendants Kirby, Meltzer, and

French were not deliberately indifferent to Weston’s serious medical need.

Weston’s single allegation that defendants Kirby and Meltzer failed to immediately

call the medical department does not state a constitutional claim upon which relief

may be granted. Weston alleges that he fell in the shower on the morning of

December 7, 2017 and received treatment later that afternoon. (Doc. 1, at 4). This

brief delay in Weston’s medical treatment does not rise to the level of deliberate

indifference and thus does not violate the Eighth Amendment. See Rhines v.

Bledsoe, 388 F. App’x 225, 228 (3d Cir. 2010) (holing that the failure to immediately

order an MRI upon prisoner’s request does not demonstrate deliberate

indifference); Bickel v. Miller, 2011 WL 4526960 (3d Cir. 2011) (holding that the

allegation of a brief delay in providing unspecified medicine to an inmate does not

state an Eighth Amendment claim).

Additionally, after defendant Metzler called the medical department, every

other allegation against the Franklin County defendants pertains to the time period

after Weston was being treated by prison medical staff. None of the Franklin

County defendants are medical professionals, and therefore cannot 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

doctor.” Durmer, 991 F.2d at 69 (affirming that as a matter of law, non-physician

prison officials could not be considered deliberately indifferent for this reason); see

also Smith v. O’Boyle, 251 F. App’x 87, 89 (3d Cir. 2007) (nonprecedential) (affirming

dismissal of § 1983 claim against prison officials because “[p]rison officials who are

not physicians are entitled to defer to the medical judgment of staff physicians”).

Absent a “belief or actual knowledge that medical personnel mistreated or failed to

treat a prisoner,” the Franklin County defendants, as non-physicians, cannot be

charged with the Eighth Amendment scienter requirement of deliberate

indifference. Innis v. Wilson, 334 F. App’x 454, 456-57 (3d Cir. 2009) (affirming

dismissal of prisoner’s deliberate indifference claim against non-medical prison

officials). Weston failed to allege this belief or actual knowledge. Further,

defendant French’s refusal to accommodate Weston’s request to receive his

medication in his cell fails to establish deliberate indifference because defendant

French was entitled to defer to the medical professional’s determination that

Weston was able to walk to the medication line. See Smith, 251 F. App’x at 89.

For all the foregoing reasons, Weston’s claims against defendants Kirby,

Meltzer, and French will be dismissed.

C. Qualified Immunity

Even if Weston had stated a colorable deliberate indifference claim, the

Franklin County defendants are nevertheless entitled to qualified immunity from

this claim for damages. In order to establish a civil rights claim, Weston must show

the deprivation of a right secured by the United States Constitution or the laws of

the United States. However, government officials performing “discretionary

functions,” are insulated from suit if their conduct did not violate a “clearly

established statutory or constitutional right[ ] of which a reasonable person would

have known.” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818

(1999).

“The doctrine of qualified immunity protects 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) (internal quotation

marks omitted). “Qualified immunity balances two important interests—the need

to hold public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson, 555 U.S. at 231. It “provides ample

protection to all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “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). Although qualified immunity is generally a

question of law that should be considered at the earliest possible stage of

proceedings, a genuine dispute of material fact may preclude summary judgment

on qualified immunity. Giles v. Kearney, 571 F.3d 318, 325-26 (3d Cir. 2009).

A qualified immunity determination involves a 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). As stated,

the court finds that Weston failed to establish the violation of a constitutional right.

The Franklin County defendants could not have recognized that their actions of

initially informing Weston to submit a request slip to the medical department, and

requiring Weston to walk to the medication line (as advised by medical personnel),

would violate “clearly established statutory or constitutional right[ ] of which a

reasonable person would have known.” Wilson, 526 U.S. at 609. Therefore, the

Franklin County defendants are protected from liability by qualified immunity.

V. Leave to Amend

When a complaint fails to present a prima facie case of liability, district courts

must generally grant leave to amend before dismissing the complaint. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d

113, 116-17 (3d Cir. 2000). Specifically, the Third Circuit Court of Appeals has

admonished that when a complaint is subject to dismissal for failure to state a claim,

courts should liberally grant leave to amend “unless such an amendment would be

inequitable or futile.” Phillips, 515 F.3d at 245 (citing Alston v. Parker, 363 F.3d 229,

235 (3d Cir. 2004)). For the reasons set forth above, Weston’s claims against the

defendants are legally and factually flawed and thus incurable. Therefore, the court

concludes that curative amendment would be futile.

VI. Conclusion

We will grant defendants’ motions (Docs. 20, 25) to dismiss. An appropriate

order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: July 8, 2020