Whitehurst v. Lackawanna County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

AMIR WHITEHURST, :

Plaintiff : CIVIL ACTION NO. 3:17-903

v. : (JUDGE MANNION)

LACKAWANNA COUNTY, :

et al.,

:

Defendants

:

MEMORANDUM

Pending before the court is the report of Magistrate Judge Joseph F.

Saporito, Jr., which makes recommendations as to each of four motions for

summary judgment filed by the various defendants in this action.1 (Doc. 128).

1 The plaintiff has named thirty-three (33) defendants who are sorted

into four groups. The first group is the “County Defendants” which includes

Lackawanna County, Lackawanna County Commissioners Patrick O’Malley,

James Wansacz and Ed Staback, and Robert McMillian, warden of the

Lackawanna County Prison. The second group is the “Corrections

Defendants” which includes the following corrections officers: Sean Sayer,

Nicholas Hughes, Mark Johnson, Donald Lavin, Brian Hughes, Robert

Mazzino, Trent Antoine, Jason Ortona, Joseph Aloe, John Trama, Lee

Myers, Jeffrey Robinson, Robert Gerrity, Paul Soprinski, Joseph Doughty,

Bryan Ancherani, John Delfino Jr., Joseph Gorton, (first name unknown

Cole, and (first name unknown) Kaczmarek. The third group is the “Medical

Defendants” which includes Corrections Care, Inc. (“CCI”), Dr. Edward

Zaloga, a physician and the president and chief medical officer of CCI, Alexis

Mortizkat, nurse supervisor, and nurses Amy Collarini, Raenn Rodriguez,

Nicole Ortona and Ken (last name unknown). The final “group” is actually a

(footnote continued on next page)

Based upon the court’s review of the record, Judge Saporito’s report will be

ADOPTED IN ITS ENTIRETY.

Judge Saporito has summarized the factual background of this action

as follows:2

The plaintiff, Amir Whitehurst, was arrested by Scranton

police and taken to the emergency room at Moses Taylor

Hospital on May 23, 2015. He had fallen from a wall while

attempting to evade arrest. He suffered only superficial injury. He

was discharged from the E.R. and police brought him to

Lackawanna County Prison.

Upon arrival, Whitehurst was assessed by a nurse to

determine if he had any specific medical needs and for

completion of a suicide risk assessment. The record documents

that Whitehurst was uncooperative, and he was placed in a

“camera cell” as a result. A nurse noted in his record that he had

been using spice, but Whitehurst denies this, contending that he

was instead suffering from a mental health crisis. Whitehurst also

refused the DPT vaccine, which is required before inmates can

be placed in general population at Lackawanna County Prison.

Whitehurst remained in isolation and under observation in

the camera cell until June 9, 2015. During that period, Whitehurst

was placed in a restraint chair several times for misbehavior. On

multiple occasions he was kept in the restraint chair for

significantly more than eight hours. Based on logbooks kept by

corrections officers and nursing staff, it does not appear that he

was monitored by corrections staff every 15 minutes as required

by policy, or that his medical condition was evaluated by a nurse

every two hours as required by policy.

On May 24, 2015, Whitehurst refused his breakfast and

lunch trays. On June 4, 2015, Whitehurst refused food loaf when

offered. On June 7, 2015, Whitehurst refused his breakfast tray

lone defendant, Dr. Satish Mallik, an independent contractor providing part-

time psychiatric services for inmates of the Lackawanna County Prison.

2 No party has objected to Judge Saporito’s summarization of the facts.

or food loaf. On June 9, 2015, Whitehurst refused his breakfast

tray.

Throughout this period, Whitehurst refused to take his

medications. He was observed by nurses at least three times per

day during medication pass, but Whitehurst denies that any

meaningful medical evaluation or treatment was performed.

Whitehurst was also seen by the prison psychiatrist, Dr. Mallik,

during the doctor’s rounds every two or three days, but

Whitehurst denies that any meaningful psychiatric evaluation or

treatment was performed. Dr. Mallik repeatedly assessed

Whitehurst as suffering from psychosis, and he prescribed

medications, which Whitehurst apparently refused to take.

At 9:00 a.m. on June 9, 2015—one day after he was last

seen by Dr. Mallik—a corrections officer summoned a nurse

because Whitehurst was “not looking too good.” The nurse found

Whitehurst on the floor of his cell, naked and in a puddle of

liquid.3 The nurse noted that Whitehurst was confused and,

although awake and alert, he was not oriented to person, place,

or time. His skin was moist and cold. He had a body temperature

of 84.9 degrees, a pulse of 66, respiration of 18, and blood

pressure of 70/40. An O2 monitor did not register. The nurse

called Dr. Zaloga, who ordered him taken to an outside hospital

by ambulance for evaluation and treatment. Later that day, the

nursing staff was advised by the hospital that Whitehurst had

been admitted to the intensive care unit.

Whitehurst was discharged from the hospital and returned

to the prison on June 24, 2015. He had final diagnoses of:

pneumomediastinum, uremia, acute renal failure, elevated

creatine phosphokinase/rhabdomyolysis, hyperphosphatemia,

normocytic anemia, metabolic acidosis, hypothermia due to non-

environmental cause, substance abuse, tobacco abuse,

pneumoretroperitoneum, protein-calorie malnutrition,

schizophrenia, and drug induced thrombocytopenia. He also

eventually developed subacute bacterial endocarditis, which

required PICC line insertion and a prolonged course of

3 Judge Saporito notes that some evidence characterizes the liquid as

water, while other evidence characterizes it as urine and vomit. (Doc. 128,

p. 5 n.4).

intravenous antibiotics. Whitehurst was successfully treated, and

his endocarditis resolved.

(Doc. 128, pp. 3-6).

Based upon the facts alleged in his complaint, the plaintiff brought the

instant action seeking damages from defendants for the use of excessive

force and deliberate indifference to his serious medical needs pursuant to 42

U.S.C. §1983, for unlawful discrimination in violation of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §12101, et seq., and for medical and

corporate negligence under state law. Each of the four groups of defendants

moved for summary judgment. In considering the motions and the record as

a whole, Judge Saporito recommends as follows:

1. Defendants “John/Jane Doe(s)” be DISMISSED from this action

sua sponte pursuant to Rule 21 of the Federal Rules of Civil

Procedure;

2. All claims against defendants in their official capacity be

DISMISSED sua sponte as redundant, pursuant to the Court’s

inherent authority to control its docket and avoid duplicative claims;

3. All claims against defendants Patrick O’Malley, James Wansacz,

Ed Staback, Robert McMillian, Alexis Mortizkat, Amy Collarini,

Raenn Rodriguez, Nicole Ortona, Nurse Ken, Sean Sayer,

Nicholas Hughes, Mark Johnson, Donald Lavin, Brian Hughes,

Robert Mazzino, Trent Antoione, Jason Ortona, Joseph Aloe, John

Trama, Lee Myers, Jeffrey Robinson, Robert Gerrity, Paul

Soprinski, Joseph Doughty, Bryan Ancherani, John Delfino Jr., and

Joseph Gorton in their personal capacity be DISMISSED sua

sponte for failure to state a claim upon which relief can be granted,

without leave to amend, pursuant to 28 U.S.C. §1915A(b)(1) and

42 U.S.C. §1997e(c)(1);

4. The plaintiff’s claim for punitive damages against Lackawanna

County be DISMISSED sua sponte for failure to state a claim upon

which relief can be granted, pursuant to 28 U.S.C. §1915A(b)(1) and

42 U.S.C. §1997e(c)(1);

5. The defendants’ motions for summary judgment (Doc. 97; Doc. 99;

Doc. 101; Doc. 104) be GRANTED in part and DENIED in part;

6. The Clerk be directed to enter JUDGMENT in favor of the

defendants and against the plaintiff with respect to (a) the plaintiff’s

ADA claims against all defendants, (b) his §1983 First Amendment

retaliation claims against defendants Cole and Kaczmarek, and (c)

his state-law vicarious liability claims against defendants CCI, Dr.

Edward Zaloga, and Dr. Satish Mallik; and

7. The plaintiff’s §1983 Fourteenth Amendment deliberate indifference

claims against Dr. Zaloga and Dr. Mallik, his §1983 Monell

municipal and corporate liability claims against Lackawanna County

and CCI, his state-law medical negligence claims against Dr. Zaloga

and Dr. Mallik, and his state-law corporate liability claim against CCI

be set down for trial.

(Doc. 128, pp. 60-62).

Four sets of objections have been filed to the report and

recommendation.4 (Doc. 129-30, 131, 132, 133-34). When objections are

timely filed to the report and recommendation of a magistrate judge, the

district court must review de novo those portions of the report to which

objections are made. 28 U.S.C. '636(b)(1); Brown v. Astrue, 649 F.3d 193,

4 The County Defendants, Medical Defendants, defendant Mallik and

the plaintiff have each filed objections to Judge Saporito’s report. The

Correctional Defendants have not filed objections to the report.

195 (3d Cir. 2011). Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge, and the court may rely

on the recommendations of the magistrate judge to the extent it deems

proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing

United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, Asatisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

'636(b)(1); Local Rule 72.31.

The County Defendants have filed the first set of objections in which

they object to the Monell liability analysis of Judge Saporito. Specifically, they

object to the conclusion that, with respect to the provision of the medical and

psychiatric services to inmates at Lackawanna County Prison, the County

can be liable under Monell to the same extent as CCI. A parallel issue was

addressed in Ponzini v. Monroe County, 2015 WL 5123720 (M.D.Pa. Aug.

31, 2015). In that case, Monroe County argued that it could not be held liable

under Monell where the inmate’s medical care “is turned over to trained

healthcare providers employed by [a contract medical provider]” at intake. In

addressing that argument, the court found:

Monroe County has a constitutional obligation to “provide food,

clothing, shelter and medical treatment for inmates.” White v.

Napoleon, 897 F.2d 103, 113 (3d Cir. 1990). At the time of

Barbaro’s death and incarceration, it is undisputed that Monroe

County had chosen to fulfil its medical treatment obligation to the

inmate population of MCCF by contracting with a third-party

medical provider. Its duty, however,

is not absolved by contracting with an entity

such as [PrimeCare Medical, Inc.]. Although

[PrimeCare] has contracted to perform an obligation

owed by the county, the county itself remains liable

for any constitutional deprivations caused by the

policies or customs of [PrimeCare]. In that sense, the

county’s duty is non-delegable.

Id. at **10-11 (quoting Ancata v. Prison Health Servs., Inc., 769 F.2d 700,

705 (11th Cir. 1985)).

While recognizing that that prison officials cannot be required to

second guess the judgment of medical staff in treating an inmate, the court

found that the County’s contractual position with PrimeCare was a different

type of relationship than that between medical and correctional staff in the

facility. Further, the court found that the County cannot immunize itself from

liability for constitutional harm by delegating the provision of medical care to

an independent entity. The court noted that its findings did not run afoul of

Monell because the County’s potential liability came from its policy of

contracting away of a nondelegable duty coupled with its alleged failure to

ensure that the contract was properly carried out and the nondelegable duty

met.

This court agrees with the reasoning set forth in Ponzini. The court

further finds that there are questions of fact about Lackawanna County’s

vigilance in supervising its contract with CCI which are for the jury to decide.

To this extent, the plaintiff has put forth facts indicating that the County had

a policy, custom or practice of ignoring known complaints of seriously subpar

medical treatment being provided by CCI at the Lackawanna County Prison.

As such, summary judgment in favor of the County would be inappropriate

at this time, and the County Defendants’ objections to the report will be

overruled.

The Medical Defendants have filed the next set of objections. Initially,

they argue that the summary judgment record does not support the

conclusion that the plaintiff suffered a serious medical need prior to June 9,

2015 when he was taken to the hospital.5 In his report, Judge Saporito noted

that the plaintiff “has proffered expert opinion testimony that the deterioration

of [plaintiff’s] medical condition would have taken more than 24 or 48 hours

to progress to the critically ill state he had reached when prison officials

finally responded and transferred him to an outside hospital.” Based upon

this opinion, as well as the expert’s deposition testimony, Judge Saporito

found that “a reasonable jury could conclude that [plaintiff’s] serious medical

needs began days earlier, and that the failure of Dr. Mallik and the medical

staff supervised by Dr. Zaloga to take action at an earlier date constituted

deliberate indifference.” The Medical Defendants argue that, although it may

5As set forth by Judge Saporito:

[T]he concept of a serious medical need . . . has two

components, one relating to the consequences of a failure to

treat and one relating to the obviousness of those consequences.

The detainee’s condition must be such that a failure to treat can

be expected to lead to substantial and unnecessary suffering,

injury, or death. Moreover, the condition must be “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.”

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir.

1991) (quoting Monmouth Cty. Corr. Institutional Inmates v.

Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).

(Doc. 128, p. 36).

be true that the plaintiff’s condition took more than 24 to 48 hours to develop,

this does not show that there was any evidence of a deterioration of the

plaintiff’s medical condition prior to June 9, 2015 so as to constitute a serious

medical need. In fact, it is the dearth of evidence relating to the plaintiff’s

medical condition during this time that is part of the issue in this case. While

medical notes demonstrate that the plaintiff was seen by medical staff on

May 24, 2015, the day of his intake, and on May 26, 2015 and May 27, 2015,

when he was placed in a restraint chair by corrections staff, a review of the

record shows there are no medical notes whatsoever for the period of May

28, 2015 through June 9, 2015, when he was discovered on the floor of his

cell and taken to the hospital. While the Medical Defendants argue that the

plaintiff was seen by nursing staff each day during this time for medication

pass, there is nothing in the record to reflect that any of these nurses had

any extensive interaction with or evaluated the plaintiff and, in fact, the

plaintiff contends they had not. The Medical Defendants also argue that the

plaintiff saw Dr. Mallik, the prison psychiatrist, on May 28, May 30, June 1,

June 4, June 6, and June 8, 2015, who noted that the plaintiff was psychotic

and impulsive, but did not note any concerns regarding the plaintiff’s medical

condition. However, the plaintiff has provided deposition testimony which

indicates that, although Dr. Mallik saw him on the foregoing occasions, he

does not recall ever actually speaking with Dr. Mallik. Instead, the plaintiff

testified that Dr. Mallik would stand off to the side while the plaintiff spoke

with the individual who made rounds with Dr. Mallik. This calls into question

how much Dr. Mallik actually interacted with or observed the plaintiff and his

medical condition such that he would be able to make any assessment with

respect to same. Considering all of the evidence in a light most favorable to

the non-moving plaintiff, the court finds that there is a question of fact as to

whether the plaintiff suffered a serious medical need prior to June 9, 2015.

As such, the Medical Defendants’ objections will be overruled on this basis.

Relying on the same argument as above, i.e., that the plaintiff was seen

by various nurses and Dr. Mallik throughout the time leading up to his

hospitalization none of who noted anything out of the ordinary, the Medical

Defendants also argue that they cannot be found deliberately indifferent to

the plaintiff’s medical needs. In addressing this argument, Judge Saporito

found:

The plaintiff . . . has proffered expert opinion testimony that the

medical and psychiatric care received by [him] at the prison

during the sixteen-day period before he was hospitalized was

deficient and so far below the appropriate standard of care that

it constituted reckless disregard for his safety and well-being.6

6Here, Judge Saporito notes:

(footnote continued on next page)

Based upon the evidence of record, viewed in a light most

favorable to the non-moving plaintiff, a reasonable jury could

conclude that Dr. Mallik, his treating psychiatrist while

incarcerated, and Dr. Zaloga, his treating physician while

incarcerated, were deliberately indifferent to [plaintiff’s] serious

medical needs.

(Doc. 128, p. 41).

This court agrees that the evidence presented by each of the parties

creates a material issue of fact as to whether the Medical Defendants were

deliberately indifferent to the plaintiff’s serious medical needs. Thus, the

issue is one for the jury to resolve. The Medical Defendants’ objections will

be overruled on this basis.

The Medical Defendants next argue that there is insufficient evidence

to support supervisory and Monell claims against CCI and Dr. Zaloga for

failing to ensure adequate staffing to provide basic medical and psychiatric

The defendants argue that they were not deliberately indifferent

because [plaintiff] was provided with “some” medical treatment,

and not “ignored,” because Dr. Mallik and various nurses saw

[plaintiff] at regular intervals while he was in isolation. The

plaintiff’s evidence, however, suggests that, rather than a mere

difference in opinion between medical or psychiatric

professionals, Zaloga and Mallik provided no meaningful medical

or psychiatric care during this period in isolation, effectively

denying treatment altogether for [plaintiff’s] serious medical

needs. This is a disputed factual issue appropriate for a jury to

resolve.

(Doc. 128, p. 41).

care or failing to ensure adequate training or supervision of nurses and

corrections staff in reckless disregard for plaintiff’s well-being. The Medical

Defendants again rely on the fact that the plaintiff was seen by medical staff

and provided medication on various occasions. Plaintiff’s experts’ testimony

indicating that Dr. Zaloga and Dr. Mallik failed to ensure adequate staffing to

provide basic medical and psychiatric care or to ensure adequate training or

supervision of his staff in reckless disregard for inmate safety, as well as

plaintiff’s evidence relating to prior incidents involving subpar medical

treatment of inmates, suggest there is a question of fact for the jury to decide

here. As such, the Medical Defendants’ objections will be overruled on this

basis.

Finally, the Medical Defendants argue that a claim for punitive

damages against CCI and Dr. Zaloga is not supported by the record because

the evidence does not support a finding that the Medical Defendants’ acts

amounted to intentional, willful, wanton or reckless conduct. The court

agrees with Judge Saporito that at this juncture, viewing all of the evidence

in a light most favorable to the non-moving plaintiff, a jury could find an award

of punitive damages to be warranted. As such, the Medical Defendants’

objections will be overruled on this basis as well.

Dr. Mallik has filed the third set of objections in which he argues, as did

the Medical Defendants, that there is insufficient evidence to support the

deliberate indifference and/or serious medical need claims against him.7

Here, Dr. Mallik argues that Judge Saporito relied exclusively on the report

and testimony of Dr. Evans, the plaintiff’s internal medicine and addiction

medicine expert, to conclude that the record demonstrated questions of fact

as to whether the plaintiff had serious medical needs with respect to his

mental health and whether Dr. Mallik was deliberately indifferent to those

needs. Dr. Mallik argues that the plaintiff’s allegations against him require

testimony from an expert in the same specialty area and that the plaintiff’s

psychiatric expert, Dr. Joy, did not offer the same opinion as Dr. Evans.

Upon review, based upon the report and testimony of Dr. Evans, Judge

Saporito did initially group Dr. Mallik in with the Medical Defendants finding

that a reasonable jury could conclude that the plaintiff’s serious medical

needs began days earlier, and that the failure of Dr. Mallik and the medical

7 The court notes that Dr. Mallik’s objections are untimely as they were

due to be filed on or before March 19, 2020 and were not filed until March

23, 2020. In each case, procedural deadlines serve the purpose of keeping

a case moving forward. Where a party is unable to meet set deadlines, the

party is to request an extension of the deadline rather than submit late filings.

Otherwise, the party risks having their filing stricken as untimely. In this

instance, the court will consider Dr. Mallik’s objections in order to clear the

record and keep this case moving forward.

staff supervised by Dr. Zaloga to take action at an earlier date constituted

deliberate indifference. However, Judge Saporito went on to rely on the

report of the plaintiff’s psychiatric expert, Dr. Joy, in finding that, despite the

plaintiff suffering from bi-polar disorder and schizophrenia, he received no

meaningful mental health evaluation or treatment at all. In fact, after

extensive discussion of what was, in her opinion, Dr. Mallik’s substandard

handling of the plaintiff’s situation, Dr. Joy concluded:

[Plaintiff] received substandard psychiatric care, including the

following breaches, as described above in more detail:

• Inadequate documentation and communication of psychiatric

status and needs, including in the chart, with correctional staff,

with medical staff, et al.

• Inadequate assessment and treatment, including medication

choices (type, dosage, route etc.), informed consent, treatment

planning, follow up intervals, et al.

• Inadequate monitoring, including of time spent in restraint chair,

changes in psychiatric and medical status, et al.

• Inadequate supervision, including nursing staff.

The substandard staffing, training, policy implementation, quality

assurance, use of restraints, documentation, and

professionalism all contributed to the substandard care provided

to [plaintiff’s] obvious serious mental and physical needs.

(Doc. 99-8, p. 12). It was in light of this opinion, as well as other evidence in

the record including the plaintiff’s deposition testimony, that Judge Saporito

concluded that viewing the evidence in a light most favorable to the plaintiff

as the non-moving party a reasonable jury could conclude that the plaintiff

suffered a serious psychiatric medical need and that Dr. Mallik was

deliberately indifferent to that need. The court finds this conclusion is

supported by the evidence of record and therefore Dr. Mallik’s objections will

be overruled on this basis.

In addition, like the Medical Defendants, Dr. Mallik argues that there is

no evidence to support a supervisory liability claim against him. Dr. Mallik

argues that Judge Saporito does not cite to any references in the record that

he was involved in the adoption and implementation of any polices or

procedures that were in place at the prison and he, in fact, was not involved

in any such policies. However, as stated by Judge Saporito, the plaintiff is

not attempting to hold either the Medical Defendants or Dr. Mallik responsible

for the adoption or implementation of any formal policy, but for the failure of

these supervisory defendants to implement practices with respect to staffing

and training. As noted by Judge Saporito, the plaintiff has presented expert

testimony indicating that Dr. Mallik failed to ensure adequate staffing to

provide for basic psychiatric care and to ensure adequate training of staff,

and that they did so in reckless disregard for the safety and well-being of

inmates. The court agrees that, based upon this evidence, this claim should

be allowed to proceed. As such, Dr. Mallik’s objections will be overruled on

this basis.

Finally, although Dr. Mallik concedes that the issue of punitive

damages is one for the jury, he argues that no reasonable jury could find that

plaintiff has set forth a viable claim for punitive damages against him. As with

the medical defendants, given all of the evidence of record including, but not

limited to, the plaintiff’s experts’ reports and depositions, the medical records

and the plaintiff’s own deposition testimony, the court finds that there is a

question of fact remaining for the jury as to the punitive damages claim

against Dr. Mallik. As such, his objections on this basis will be overruled as

well.

The plaintiff has filed the final set of objections.8 In his objections, the

plaintiff argues that the John/Jane Doe defendants should not have been

dismissed sua sponte from this action. To this extent, the plaintiff argues that

because of a raid at the Lackawanna County Prison he did not have access

to documents during discovery that would have identified the John/Jane Doe

defendants involved in the claims alleged in his complaint. Despite this

argument, the plaintiff goes on to state that he was going to obtain these

documents through a subpoena for use at the time of trial. The plaintiff

indicates that he would have done this sooner if he had known that

8 As were Dr. Mallik’s objections, the plaintiff’s objections are untimely

as they were not filed until April 2, 2020. See n.7.

identification of the John/Jane Doe defendants was an issue but, since the

defendants did not raise the issue, he deemed it unnecessary.

This court has previously found that “[t]he use of John Doe defendants

is permissible in certain situations until ‘reasonable discovery permits the

true defendants to be identified.’” King v. Mansfield Univ. of Pa., 2014 WL

3734551, at *1 n.1 (M.D. Pa. July 28, 2014) (quoting Blakeslee v. Clinton

County, 336 F. App’x 248, 250 (3d Cir. 2009). However, district courts within

the Third Circuit have held that “if reasonable discovery fails to unveil the

true identities” of the John Doe defendants, the John Doe defendants should

be dismissed. Id. (dismissing a plaintiff’s claims against John Doe

defendants at summary judgment stage because the true identities of those

individuals were not made known after a “lengthy period of discovery,” and

they had not been served by the plaintiff); see also Aponte v. Karnes, 2008

WL 360879, at *1 n.1 (M.D. Pa. Feb. 8, 2008) (“Absent compelling reasons,

a district court may dismiss [John or Jane Doe] defendants if the plaintiff,

after being granted a reasonable period of discovery, fails to identify them.”);

Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37 (E.D. Pa. 1990) (“[Doe

defendants] must eventually be dismissed, if discovery yields no identities.”).

Whether or not the defendants raised the issue, the Federal Rules of

Civil Procedure provide plaintiff notice that failure to identify and serve the

John/Jane Doe defendants within a certain period of time could result in sua

sponte dismissal of the claims against these defendants. See Fed.R.Civ.P.

4(m). Moreover, the plaintiff was made aware of his need to amend his

complaint and join any additional parties on or before June 1, 2018, pursuant

to an order of court. He neither complied with the court’s order, nor did he

seek an extension of time to do so. (Doc. 53). The plaintiff failed to meet his

obligations with respect to the John/Jane Doe defendants despite having

ample opportunity to do so.9 As a result, Judge Saporito was well within his

authority to recommend dismissal of the plaintiff’s complaint as to these

defendants. See Fed.R.Civ.P. 21. The plaintiff’s objections with respect to

the John/Jane Doe defendants will be overruled.

The plaintiff’s only other objection is to the sua sponte dismissal of his

claims against individual defendants O’Malley, Wansacz, Staback,

McMillian, Mortizkat, Collarini, Rodriguez, Ortona, Nurse Ken, Sayer,

Hughes, Johnson, Lavin, Hughes, Mazzino, Antoine, Ortona, Aloe, Trama,

Myers, Robinson, Gerrity, Soprinski, Doughty, Ancherani, Delfino and

9 The plaintiff filed this action on May 22, 2017. Based upon the parties’

submissions, they were given until June 1, 2018 to join additional parties or

amend their pleadings, and fact discovery closed December 1, 2018. The

plaintiff admittedly had a method by which to obtain the information

necessary to identify the John/Jane Defendants yet failed to utilize that

method to identify those defendants.

(footnote continued on next page)

Gorton.10 As to the dismissal of these defendants, the plaintiff argues that

Judge Saporito erred in considering dismissal pursuant to the screening

provision of 28 U.S.C. §1915A at the time of summary judgment.

Judge Saporito relied on two provisions of the Prison Litigation Reform

Act: 28 U.S.C. §1915A and 42 U.S.C. §1997e. Pursuant to §1915A, a court

“shall review, before docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or employee of a

governmental entity,” and dismiss any portion of the complaint which “fails to

state a claim upon which relief may be granted.” 28 U.S.C. §1915A(a)-(b)(1).

Along a similar line, §1997e provides that a court “shall on its own motion or

on the motion of a party dismiss any action brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility if the court

is satisfied that the action . . . fails to state a claim upon which relief can be

granted.” 42 U.S.C. §1997e(c)(1).

10 Although Judge Saporito dismissed these defendants sua sponte,

the court notes that both the Correctional Defendants (Doc. 102, p. 5) and

the Medical Defendants (Doc. 97-2, pp. 12-13) each argued in relation to

their motions for summary judgment that the plaintiff failed to make specific

allegations against each of the individual defendants and failed to produce

sufficient evidence supporting such claims.

Even assuming as the plaintiff argues that §1915A cannot be used as

a basis to screen a claim at the summary judgment stage and must be used

at an earlier stage, §1997e(c) applies throughout the litigation and provided

Judge Saporito with the authority to review the plaintiff’s claims against the

dismissed individuals, regardless of the stage of the case. Grayson v.

Mayview State Hosp., 293 F.3d 103, 109 n.11 (3d Cir. 2002) (citation and

internal quotation marks omitted) (explaining that “the PLRA sets up a two-

step dismissal process by which dismissal can occur early for the facially

inadequate complaints pursuant to [28 U.S.C. §1915A] or can occur later” if

it becomes apparent that the dismissal provision of 42 U.S.C. §1997e(c) is

satisfied). See Beenick v. LeFebvre, 684 F. App’x 200, 204-05 (3d Cir. 2017).

Therefore, the court will overrule the plaintiff’s objections on this basis.

As to these defendants, the plaintiff also argues that dismissal for

failure to state a claim pursuant to 28 U.S.C. §1997e was improper because

these defendants were generally referred to in his complaint as “Individual

Corrections Defendants” and “Individual Medical Defendants” and the

complaint alleges what these general groups of defendants did to violate his

constitutional rights.

Judge Saporito dismissed the foregoing Corrections Defendants and

Medical Defendants based upon the plaintiff’s failure to establish their

personal involvement in the claims against them. Specifically, Judge

Saporito found that while each of the defendants was named in the caption

of the complaint and identified once in the body of the complaint, the plaintiff

failed to allege any conduct engaged in by any of the listed individual

defendants.

Individual liability under §1983 requires a plaintiff to show that the

individual defendant was personally involved in the alleged constitutional

violations. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Personal involvement can be established by showing that the defendant

actually participated in the alleged violation or knew of and acquiesced in the

violation. Rode, 845 F.2d at 1207. The Third Circuit has previously found

persuasive the observation that “[v]ague references to a group of

‘defendants,’ without specific allegations tying the individual defendants to

the alleged unconstitutional conduct[,]” cannot show the necessary personal

involvement or meet the notice pleading standards of Federal Rule of Civil

Procedure 8(a). Park v. Temple Univ., 757 F. App’x 102, 109 (3d Cir. 2018)

(citing E.g., Engel v. Buchan, 710 F.3d 698, 710 (7th Cir. 2013) (quoting

Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008) ); Marcilis v. Twp.

of Redford, 693 F.3d 589, 596-97 (6th Cir. 2012)). The Third Circuit went on

to provide that “[a] court must be able to discern ‘who is responsible for what’

from the operative pleading. Id. (citing Engel, 710 F.3d at 710). Because the

plaintiff set forth generalized allegations against individual Corrections

Defendants and Medical Defendants who were simply lumped into a group,

the court finds that Judge Saporito was justified in dismissing those

defendants for the plaintiff’s failure to state a claim upon which relief can be

granted. As such, the plaintiff’s objections will be overruled on this basis.

Finally, the plaintiff takes issue with Judge Saporito finding that

allowance of amendment would be futile based, in part, on the summary

judgment record. In doing so, Judge Saporito found that “based on the facts

alleged in the complaint and the additional evidence proffered by the parties

in connection with summary judgment, it is clear that amendment would be

futile.”11 The plaintiff argues that the record submitted to the court on

summary judgment is relevant only to the specific issues raised by the

defendants and that had the defendants sought dismissal of the claims

against the foregoing individual defendants he would have submitted

evidence in support of those claims.

11 Judge Saporito cited specifically to the plaintiff’s own deposition

testimony in which he, in large part, could not identify any specific actions

taken by the various defendants let alone actions which would rise to the

level of a constitutional violation.

Initially with respect to this objection, as noted previously, both the

Corrections Defendants and the Medical Defendants took issue in their

motions for summary judgment with the plaintiff’s failure to state a claim with

regard to the foregoing defendants. The plaintiff failed to respond to the

defendants’ arguments in any manner. Moreover, although there is no

apparent precedent from the Third Circuit on the matter, other courts have

found that, although evidence outside of the pleadings cannot be considered

for purposes of deciding a motion to dismiss, evidence outside of the

pleadings may be considered for the limited purpose of deciding whether to

grant leave to amend. Further, at least one other court in this district has

recently adopted a report by Judge Saporito setting forth this same. See Bell

v. Rothrock, 2020 WL 1244595 (March 15, 2020 M.D.Pa.) adopting 2020 WL

1288484 (Jan. 30, 2020 M.D.Pa.).12 Finally, as to any amendment with

respect to these defendants, 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). Even if not futile,

to allow the plaintiff leave to amend his complaint at this juncture, well after

the time for discovery and amendment of the pleadings has passed, would

12 The court notes that in Bell no objections were filed. As such, the

court was reviewing the report and recommendation for clear error.

be both inequitable and prejudicial to the defendants. As such, denial of

leave to amend was justified and the plaintiff’s objections will be overruled

on this basis as well.

With the exception of the above, the parties have filed no other

objections to Judge Saporito’s report and recommendation. The court has

reviewed Judge Saporito’s reasoning with respect to the remaining

recommendations and finds no clear error of record. Therefore, the court will

adopt those recommendations in all respects.

Based upon the foregoing, an appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: October 15, 2020

17-903-01