Reed v. Williams

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER REED, No. 3:18-CV-00377

Plaintiff, (Judge Brann)

v.

WILLIAM WILLIAMS, et al.,

Defendants.

MEMORANDUM OPINION

OCTOBER 21, 2020

Plaintiff, Christopher Reed, a state prisoner, presently confined at the

Rockview State Correctional Institution (“SCI-Rockview”), in Bellefonte,

Pennsylvania, filed this action pursuant to 42 U.S.C. § 1983 alleging violations of

his First, Eighth and Fourteenth Amendment rights, as well as state law claims of

professional medical negligence claims concerning his treatment for a 2007

shoulder injury.1 This cause is before the Court on the following: (1) Defendant

Morris Houser, Nicki Paul, Jeffrey Rackovan, Diana Simpson, and William

Williams’ (the “Commonwealth Defendants”) motion to dismiss;2 (2) Defendant

Dr. Sobolewski, and Somerset Hospital’s (the “Somerset Defendants”) motion to

dismiss;3 and (3) Defendant Physician Assistant (“PA”) Julie Koltay, and Dr.

1 Doc. 22.

2 Doc. 37.

Symons’ (the “Medical Defendants”) motion to dismiss, or in the alternative, for

summary judgment.4 Reed opposes Defendants’ motions which are now ripe for

disposition.5 Having carefully considered the motions and applicable law, the

Court will grant the motions to dismiss and deny Reed further leave to file a third

amended complaint.6

I. BACKGROUND

A. Relevant Procedural History

After filing his complaint in 2018, Reed filed an amended complaint on

February 19, 2019.7 My late colleague, the Honorable A. Richard Caputo,

dismissed the amended complaint upon screening pursuant to 28 U.S.C. § 1915 but

granted Reed leave to file a second amended complaint (“SAC”).8 Reed filed a

SAC, and more than 20 pages of supporting documentation on April 17, 2019.9 As

noted above, all Defendants have filed potentially dispositive motions challenging

the SAC.

4 Doc. 38. Originally filed as a motion to dismiss, the Medical Defendants claimed, inter alia,

the Reed failed to exhaust his administrative remedies in accordance with the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(a). Because their submission asked the Court to

consider matters outside the pleadings in resolving this claim, the Court put the parties on

notice that it would address the exhaustion claim in the context of summary judgment and

gave the parties the opportunity to supplement their filings accordingly. Doc. 45.

5 Docs. 43–44.

6 As the issues presented in the Medical Defendants’ motion to dismiss are dispositive, the

Court need not reach the issue sole issue raised in their summary judgment motion, Reeds’

alleged failure to exhaust his administrative remedies.

7 Docs. 1 and 16.

8 Doc. 19 at 7.

B. Allegations of the Second Amended Complaint

On Friday, March 23, 2007, while in the performance of his inmate job, a

key-box fell on Reed’s right shoulder as he attempted to pry it from a wall.10 A

nurse immediately evaluated Reed’s right shoulder injury and noted limited range

of motion in that arm. She provided Reed with Motrin for pain and referred him to

the physician for further evaluation. On Monday, March 26, 2007, PA Koltay

ordered Reed’s shoulder x-rayed; the results were negative for bone deformities.

Medical staff did not order further diagnostic studies at that time.11

Between 2007 and 2016, Reed was under the care of the contract medical

care providers at SCI-Rockview, including Dr. Symons and PA Koltay. He claims

Dr. Symons and PA Koltay “failed to diagnose and treat [his] deteriorating right

shoulder injury condition”12 even though he received cortisone injections for pain

during this time and an MRI (without contrast) in 2010.13 Corrections Health Care

Administrator (“CHCA”) Williams is faulted for not questioning Reed’s medical

care providers as to why the MRI study was conducted without the use of contrast

dye.14

On February 11, 2016, PA Jamie Ficks (non-defendant) saw Reed for

ongoing complaints of right shoulder pain. She ordered a second MRI study of his

10 Doc. 22 at ¶ 2.

11 Id. at ¶¶ 4–5, 8–9.

12 Id. at ¶ 9.

13 Id. at ¶¶ 6, 8–10.

shoulder, this time with contrast dye. The MRI conducted in March 2016 revealed

structural damage to Reed’s right rotator cuff.15

On February 22, 2016, in accordance with the Department of Corrections’

(“DOC”) Administrative Remedy Grievance Policy, DC-ADM 804, Reed filed

Grievance No. 614614 concerning his March 2007 accident.16 He alleged that Dr.

Symons and “the PA’s” were not “th[o]rough” in their initial treatment of his

injury or investigating the source of his continuing complaints of shoulder pain and

numbness over the course of nine years. He claims the Medical Defendants and

CHCA Williams “should have known to investigate [his injury] further.”17 He also

alleges CHCA Williams should have ordered more tests. The Medical Defendants’

“negligence” caused Reed nine years of pain and lead to the further deterioration of

his shoulder.18

On February 25, 2016, Grievance Coordinator Rackovan rejected the

grievance as untimely filed. He responded that “[i]f you were not satisfied with the

medical care you received in 2007 and 2010, you needed to file a grievance at

those times you may not grieve medical treatment dating 6 to 9 years ago.”19

On July 28, 2016, Dr. Sobolewski, an orthopedic surgeon with privileges at

the Somerset Hospital, examined Reed and recommended the surgical repair of his

15 Id. at ¶¶ 11–12.

16 Id. at ¶¶ 14–15 and 10.

17 Id.

18 Id.

shoulder. Seven weeks later, Reed inquired as to his surgery date. CHCA

Williams advised, “we are waiting for the surgeon to give us a date.”20 Reed filed

No. 644511 on September 22, 2016, with Grievance Coordinator Paul asserting

claims of “medical malpractice”21 and stating “SCI Rockview[’s] medical staff

ha[ve] continuously tr[ie]d to avoid the required medical treatment of my right

shoulder.” Reed also claims PA Reisinger (non-defendant) told him his surgery

date was September 16, 2016, while CHCA Williams told him “the referral has

been made and [they were] waiting for the surgeon to give [them] a date.”22

Deputy Superintendent Houser denied the grievance on October 13, 2016,

noting that Reed “received an appropriate, conservative course of treatment for his

condition” and that the surgeon has set an October 25, 2016 surgery date.23 On

October 31, 2016, SCI-Rockview’s Facility Manager denied Reed’s grievance

appeal.24

Dr. Sobolewski ultimately repaired Reed’s right rotator cuff on October 26,

2016 at the Somerset Hospital. Reed returned to SCI-Rockview the following

day.25

20 Id.

21 Id. at 13–14.

22 Id. at ¶ 19 and 12–14.

23 Id. at ¶ 20 and 15.

24 Id. at 18.

The next time Dr. Sobolewski and Reed spoke was during a December 2,

2016 video conference. Dr. Sobolewski inquired about Reed’s physical therapy.

Reed, who believed physical therapy would start one week after surgery, advised

Dr. Sobolewski that it would not begin until December 21, 2016.26 Reed faults Dr.

Sobolewski for not contacting the DOC or SCI-Rockview Administration as to

why physical therapy was not started earlier. Reed claims Grievance Coordinator

Paul failed to process his December 12, 2016 grievance concerning his lack of

timely physical therapy.27

Reed filed Grievance No. 654538 on November 28, 2016 with Grievance

Coordinator Paul after he received one of the two “venda cards” (used to purchase

photocopies within the institution) he purchased from commissary. He claimed the

withholding the second “venda card” violated his “right to access the court by

withholding the availability of the Prisoner/Petitioner from copying legal

documents for pending litigation.” 28 Grievance Coordinator Paul denied the

grievance as “resolved” because Commissary staff issued him a second venda card

on December 13, 2016.29

On November 28, 2016, Reed sent a request to Grievance Coordinator Paul

to review his medical records. Ms. Paul forwarded the request to Medical Records

26 Doc. 22 at ¶ 25 and 19.

27 Id. at ¶¶25–26 and 19.

28 Id. at 21.

Supervisor, Diana Simpson. A week later, Reed sent Ms. Paul a second request to

review his medical records.30 He filed Grievance No. 660043 on January 8, 2017

claiming staff interfered with his access to the courts by denying him access to his

medical records.31 CHCA Williams denied Grievance No. 660043 on February 7,

2017 advising that Ms. Simpson understood Reed as desiring a copy of his

medical records, something the DOC does not permit. CHCA Williams also noted

Ms. Simpson arranged for Reed to review his medical records which he did on

February 6, 2017.32

On January 13, 2017, Reed requested a copy of his medical records from the

Somerset Hospital. The hospital advised Reed of the copying fee for the requested

records. On February 16, 2017, Dr. Sobolewski requested Reed cease all

communications with him. On April 9, 2017, the hospital’s invoice “was paid by

outside purchase source,” but Reed has never received a copy of his file. 33

On October 18, 2017, Reed filed a medical professional liability complaint

in the Commonwealth Court of Pennsylvania against the same Commonwealth,

Medical, and Somerset Defendants seeking monetary damages related to the

treatment of his March 2007 shoulder injury.34 He also asserted an access to courts

30 Doc. 22 at ¶ 29.

31 Id. at 23; Doc. 52 at 30–36.

32 Doc. 20 at 25.

33 Id. at ¶ 25, ¶ 32, 26.

34 See Reed v. Pa. Dep’t of Corr., 489 MD 2017 (docket sheet, available at

claim based on the denial of access to his DOC and Somerset Hospital medical

records.35 On January 16, 2018, the Commonwealth Court transferred the matter to

the Court of Common Pleas of Centre County.36 “While the Courts were delaying

the process, Mr. Reed filed [his present] 42 U.S.C. § 1983 [action] to preserve [the]

Statute of Limitations. Mr. Reed after finding out the true nature of [his] injury

had 2 years to file said suit.”37 Reed claimed his “right shoulder injury was finally

realized and documented on 2/11/16” when a second MRI (with contrast) was

ordered.38

On October 12, 2018, the Centre County Court of Common Pleas dismissed

Reed’s claims against the Commonwealth Defendants (Jeffrey Rackovan, Nicki

Paul, Morris Houser, William Williamson and Diana Simpson).39 As to his

medical negligence claims, Reed filed supporting Certificates of Merit (“COM”)

on October 30, 2018 as to PA Koltay and Dr. Symons as required by Pennsylvania

Rule of Civil Procedure 1042.3.40 The Medical Defendants filed a motion to strike

Reed’s Certificate of Merit and sought entry of judgment by non-pros. The

Somerset Defendants filed a motion for summary judgment. Both motions

judicial notice of the public docket related to Reed’s similarly based petition for review. See

Doc. 39–2, Pet.for Review.

35 Doc. 39-2.

36 See Doc. 39-3, Reed v. Pa. Dept. of Corr., No. 2018-0548 (Centre Cnty. Ct. Comm. Pl.)

(June 7, 2019, slip op.)

37 Doc. 44 at 2, Reed’s Opp’n to Defs.’ Mot. to Dismiss.

38 Doc. 39-2 at ¶ 20(c).

39 Doc. 39–3 at 2.

attacked Reed’s COM affirming that no expert testimony was necessary in the

case. On June 3, 2019, the Centre County Court dismissed Reed’s medical

malpractice claims against the Medical Defendants (Dr. Symons and PA Koltay)

and the Somerset Defendants (Dr. Sobolewski and Somerset Hospital), finding that

Reed needed expert testimony to pursue his claim that Defendants’ failed to

properly treat his 2007 shoulder injury which caused deterioration to his rotator

cuff ultimately requiring surgery in 2016. The Centre County Court held that “[a]s

a jury would be required to differentiate between injury caused by the initial

incident and injury caused by any alleged negligence on the part of Defendants,

expert testimony is necessary in this case.”41

II. STANDARD OF REVIEW

Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must

set forth a claim for relief which contains a short and plain statement of the claim

showing that the pleader is entitled to relief; the complaint must provide the

defendant with fair notice of the claim.42 When considering a Rule 12(b)(6) motion

to dismiss, the court must accept as true all factual allegations.43 The issue in a

41 Doc. 39–3 at 5; Doc. 39–4.

42 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

motion to dismiss is whether the plaintiff should be entitled to offer evidence to

support the claim, not whether the plaintiff will ultimately prevail.44

The onus is on the plaintiff to provide a well-drafted complaint that alleges

factual support for its claims. “While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation

to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will

not do.”45 The court need not accept unsupported inferences,46 nor legal

conclusions cast as factual allegations.47 Legal conclusions without factual support

are not entitled to the assumption of truth.48

Once the court winnows the conclusory allegations from those allegations

supported by fact, which it accepts as true, the court must engage in a

commonsense review of the claim to determine whether it is plausible. This is a

context-specific task, for which the court should be guided by its judicial

experience. The court must dismiss the complaint if it fails to allege enough facts

“to state a claim for relief that is plausible on its face.”49 A “claim has facial

44 See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (the Rule 8 Pleading

standard “simply calls for enough facts to raise a reasonable expectation that discovery will

reveal evidence of’ the necessary element.”); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

45 Twombly, 550 U.S. at 555 (alteration in original and internal citations omitted).

46 Cal. Pub. Employees Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004).

47 Twombly, 550 U.S. at 556.

48 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of elements of a cause

of action, supported by mere conclusory statements, do not” satisfy the requirements of Rule

8).

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

reasonable inference that the defendant is liable for the misconduct alleged.”50 A

complaint that shows that the pleader is entitled to relief—or put another way,

facially plausible—will survive a Rule 12(b)(6) motion.51

III. DISCUSSION

A. Issue Preclusion Bars Reed’s State Law Professional

Negligence Claims against the Medical and Somerset

Defendants.

Under the Full Faith and Credit Clause, as implemented by 28 U.S.C. §

1738, a federal court must give the same preclusive effect to state court judgments

that those judgments would be given in that state’s own courts.52 The doctrine of

issue preclusion, “sometimes called collateral estoppel,” “precludes a party from

relitigating an issue actually decided in a prior case.”53 This Court must therefore

look to Pennsylvania state law to determine the requirements and effects of issue

preclusion on Reed’s present claims as to his medical negligence claims.

In Pennsylvania, issue preclusion applies where:

(1) the issue decided in the prior adjudication was identical

with the one presented in the later action; (2) there was a

final judgment on the merits; (3) the party against whom

the plea is asserted was a party or in privity with a party to

the prior adjudication; and (5) the party against whom it is

50 Id., 556 U.S. at 678.

51 See Fed. R. Civ. 8(a)(2); Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010).

52 Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see also Walker v.

Horn, 385 F.3d 321, 336 (3d Cir. 2004).

asserted has had a full and fair opportunity to litigate the

issue in question in a prior action.54

Here, the Medical Defendants assert that the doctrine of issue preclusion

bars Reed’s professional medical negligence claims because he brought and lost a

similar suit in the Court of Common Pleas of Centre County, Pennsylvania.55

Curiously, Reed did not address the Medical Defendants’ collateral estoppel

argument in his opposition materials. Be that as it may, the Court has carefully

reviewed Reed’s state court complaint and his second amended complaint in this

matter and find all the requirements for the application of issue preclusion are

present.

Reed advanced professional medical negligence claims against the Medical

Defendants and Somerset Defendants in his prior state action, which the Court of

Common Pleas of Centre County, Pennsylvania dismissed on June 3, 2019.56 Both

actions are based on the same events and allegations; they involve the same

evidence. The Centre County Court stated:

Plaintiff has alleged Defendants did not properly treat an

injury to his shoulder that occurred in 2007 and was

operated on in 2016. Plaintiff contends the injury caused

deterioration over the years. As a potential jury would be

required to differentiate between injury caused by the

initial incident and injury caused by any alleged

54 Walker, 385 F.3d at 337.

55 Doc. 34; The affirmative defense of issue preclusion may be raised upon a Rule 12(b)(6)

motion if the defense is apparent on the face of the complaint as it is here. See Brody v.

Hankin, 299 F.Supp.2d 454, 458 (E.D. Pa. 2004), rev’d on other grounds, 145 F. App’x 768

(3d Cir. 2005).

negligence on the part of the Defendants, expert testimony

is necessary in this case. Plaintiff has filed binding

Certificates of Merit alleging no expert testimony is

necessary.57

This state trial court decision counts as a final judgment on the merits.58 As the

Medical Defendants suggest, Reed’s present action is the proverbial second bite at

the apple with respect to his medical negligence claims. Based on the above,

Reed’s professional medical negligence claims against the Medical and Somerset

Defendants are barred by the doctrine of issue preclusion.

B. Reed’s Eighth Amendment Claim of Deliberate

Indifference to his 2007 Shoulder Injury is Barred by

the Statute of Limitations.

In Pennsylvania, the statute of limitations applicable to a claim brought

pursuant to Section 1983 is two years.59 A Section 1983 cause of action accrues,

and the statute of limitations begins to run, “when the plaintiff knew or should

have known of the injury upon which [his] action is based.”60 “The determination

of the time at which a claim accrues is an objective inquiry; [the court] ask[s] not

what the plaintiff actually knew but what a reasonable person should have known”

57 Id. at 5.

58 See Cruickshank-Wallace v. CAN Financial Corp., 769 F. App’x 77, 81 (3d Cir. 2019)

(dismissal of action after state court disagreed with plaintiffs’ certificate of merit decision

that they did not need the testimony of an expert to prove the merits of their legal malpractice

case constitutes a judgment on the merits for res judicata purposes).

59 See Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (“The statute of limitations

applicable to § 1983 claims in Pennsylvania is two years.”); see also 42 PA. CONS. STAT. §

5524.

concerning his injury.61 Thus, a Section 1983 “cause of action accrues even though

the full extent of the injury is not then known or predictable.”62 In other words, a

cause of action accrues “when the plaintiff has ‘a complete and present cause of

action,’ that is, when ‘the plaintiff can file suit and obtain relief.’”63

With respect to prisoner claims, Section 1983’s statute of limitations period

is tolled while the inmate exhausts his available administrative remedies.64 It is

also tolled where a defendant prevents the plaintiff from filing his action. To merit

tolling in such a situation, the plaintiff must prove: “(1) the defendant actively

mislead the plaintiff; (2) which prevented the plaintiff from recognizing the

validity of h[is] claim within the limitations period; and (3) where the plaintiff’s

ignorance is not attributable to h[is] lack of reasonable due diligence in attempting

to uncover the relevant facts.”65

The “continuing violation doctrine” also presents another exception to the

tolling of the limitations. It provides that, “when a defendant’s conduct is part of a

continuing practice, an action is timely so long as the last act evidencing the

continuing practice falls within the limitations period.”66 “‘A continuing violation

61 Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (emphasis added).

62 Wallace v. Kato, 549 U.S. 384, 391 (2007) (emphasis added).

63 Id., 549 U.S. at 388 (citations omitted).

64 See Pearson v. Sec’y Dept. of Corr., 775 F.3d 598, 603 (3d Cir. 2015) (“[T]he PLRA is a

statutory prohibition that tolls Pennsylvania’s statute of limitations while a prisoner exhausts

administrative remedies.”)

65 Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 509 (3d Cir. 2006).

66 Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting Brenner v. Local 514,

is occasioned by continual unlawful acts, not continual ill effects from an original

violation.’”67 When evaluating whether a defendant’s acts are a continuing

practice or isolated event, the court should consider the “subject matter

jurisdiction–whether the violations constitute the same type of discrimination,

tending to connect them in a continuing violation” and the “frequency–whether the

acts are recurring or more in the nature of isolated incidents.”68 “The continuing

violation doctrine should not provide a means for relieving plaintiffs from their

duty to exercise reasonable diligence in pursuing their claims.”69

The Commonwealth and Medical Defendants argue Reed’s Eighth

Amendment claims are time barred.70 Aside from noting that he finds it

“befuddling” that Defendants would raise the statute of limitations in his action as

they “never brought this up” in the state court, Reed does not address Defendants’

argument.71

Reed, who again was injured on March 23, 2007, received allegedly

unsatisfactory treatment until February 11, 2016, when he “discovered” his injury

67 Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) (per curiam) (abrogated on other

grounds by Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) (citing Ward v. Caulk, 650 F.2d

1144, 1147 (9th Cir. 1981)).

68 Cowell, 263 F.3d at 292; In Cowell, the Third Circuit identified a third factor, “degree of

permanence-whether the act had a degree of permanence which should trigger the plaintiff’s

awareness of and duty to assert his/her right and whether the consequences of the act would

continue even in the absence of a continuing intent to discriminate.” However, in Mandel v.

M&Q Packaging, 706 F.3d 157, 165–66 (3d Cir. 2013) (clarifying that “permanency is not

required to establish a continuing violation” in the context of a Title VII case.)

69 Cowell, 263 F.3d at 295.

70 Docs. 39, 42.

after a non-defendant PA ordered a second MRI of his shoulder. Reed then filed

his action on February 8, 2018, “once he actually knew of [his] injury which was

confirmed in March 2016 by MRI.”72

Unfortunately, a diagnostic confirmation of what Reed already “knew,” or

suspected, for the past nine years was not required for the accrual of his Eighth

Amendment claim of deliberate indifference to his medical needs.73 The law

provides that Reed’s medical claims accrued when a reasonable person knew, or

should have known, of his injury. According to Reed, “[d]espite [his] complaints

of severe pain,” PA Koltay, Dr. Symons and CHCA Williams refused to send him

to a specialist between 2007 and 2016.74 Reed disagreed with the Medical

Defendants’ lack of thoroughness in their examination, diagnostic evaluation,

treatment of his shoulder, and lack of a referral to a specialist each time he was

seen by Dr. Symons or PA Koltay between 2007 through 2016. Reed had all the

facts necessary to put him on notice of his need to investigate and protect his

Eighth Amendment claim long before February 11, 2016.75 As such, any claims

concerning Defendants’ alleged violation of his constitutional rights premised on

events occurring prior to February 8, 2016, two years prior to the date he filed his

72 Doc. 41, ¶ 4.

73 See Wallace, 549 U.S. at 391.

74 Doc. 22 at ¶¶ 7–10.

75 See Doc. 52 at 17 (“From 2010 to 2016 no medical treatment … I am being discriminated

against and also being retaliated against for addressing the (sic) of my shoulder injury which

complaint, are time barred. Specifically, Reed’s Eighth Amendment claim based

on Defendants’ alleged deliberate indifference to his 2007 shoulder injury is

dismissed as time barred.

Moreover, assuming without deciding for the purposes of this memorandum

only, that Reed’s February 22, 2016 Grievance, No. 614614, was timely filed for

the purposes of exhaustion of his administrative remedies, he does not allege the

personal involvement of any Defendant in treatment decisions occurring after

2010.76 This grievance simply challenges the treatment Defendants rendered him,

or failed to provide him, since 2007. More importantly, it does not assert any

actions taken by Defendants during the applicable statute of limitations period,

from February 8, 2016 to February 8, 2018, with respect to the treatment of his

shoulder. Accordingly, Reed’s pre-February 8, 2016, Eighth Amendment claims

against the named Defendants are duly dismissed.77

C. Reed’s Remaining Eighth Amendment Claim is

Subject to Dismissal.

In the SAC, Reed also brings post-February 8, 2016 Eighth Amendment

medical claims pursuant to 42 U.S.C. § 1983, which provides, in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

76 Doc. 22 at 10.

77 The Court notes that not all of Reed’s § 1983 claims are barred by the statute of limitations.

The following claims remain and will be addressed infra: (1) the delay in scheduling his

surgery; (2) delay in starting his physical therapy; and (3) the alleged interference with

Reed’s access to the courts (venda card and denial of medical records.

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.

“To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must demonstrate a

violation of a right secured by the Constitution and the laws of the United States

[and] that the alleged deprivation was committed by a person acting under color of

state law.”78 “The first step in evaluating a section 1983 claim is to ‘identify the

exact contours of the underlying right said to have been violated’ and to determine

‘whether the plaintiff has alleged a deprivation of a constitutional right at all.’”79

The Eighth Amendment “requires prison officials to provide basic medical

treatment to those [individuals who are] incarcerated.”80 “In order to state a

cognizable [medical] claim, a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs. It is only

such indifference that can offend ‘evolving standards of decency’ in violation of

the Eighth Amendment.”81 “[T]o succeed under these principles, plaintiffs must

demonstrate (1) that the defendants were deliberately indifferent to their medical

needs and (2) that those needs were serious.”82

78 Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993).

79 Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting Cnty. of Sacramento v. Lewis,

523 U.S. 833, 841 n.5 (1998)).

80 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

81 Estelle v. Gamble, 429 U.S. 97, 106 (1976).

“[D]eliberate indifference describes a state of mind more blameworthy than

negligence,” and it is clear that mere negligence is not actionable as a

constitutional claim.83 Deliberate indifference requires that prison officials know

of an excessive risk to an inmate’s health or safety and affirmatively disregard that

risk.84 This standard affords considerable latitude to medical professionals within a

prison to diagnose and treat the medical problems of inmate patients.85 Where a

prisoner disputes the adequacy of treatment received, “courts are generally

reluctant to second guess medical judgments and to constitutionalize claims which

sound in state tort law.”86 Some of the more common situations in which

“deliberate indifference” has been found include: (1) defendant’s denial of

reasonable requests for medical treatment, (2) refusal to provide medical care when

a defendant knows it is needed, (3) a delay in providing medical care for non-

medical reasons, and (4) interfering with an inmate’s receipt of recommended

treatment for a serious medical need.87

Here, as previously noted, Reed’s claim that Defendants violated his Eighth

Amendment rights with respect to the diagnosis and treatment of his March 2007

shoulder injury are barred by the statute of limitations. However, his claims that

83 Farmer v. Brennan, 511 U.S. 825, 835 (1994).

84 Farmer, 511 U.S. at 835, 837–38 (1994); Giles v. Kearney, 571 F.3d 318, 330 (2009).

85 Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979); Little v.

Lycoming Cnty., 912 F. Supp. 809, 815 (M.D. Pa. 1996).

86 United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal

quotations and citation omitted).

fall within the applicable statute of limitations, those arising from events following

his February 2016 referral for a second MRI, are not barred. That said, these

claims also do not support an Eighth Amendment claim against the Medical

Defendants.

The SAC details that in February 2016, following ongoing complaints of

shoulder discomfort, medical staff referred Reed for a second MRI of his shoulder,

which he received in March 2016. Once the MRI revealed damage to Reed’s

rotator cuff, the prison medical providers referred him for a surgical consult with

Dr. Sobolewski as described above. Three months after Dr. Sobolewski indicated

surgical repair of Reed’s rotator cuff was needed, it was duly repaired. Two

months after surgery, Reed commenced a program of physical therapy. 88

These actions, as pled by Reed, constitute a pattern of treatment for his

shoulder injury. To the extent Reed disagreed with this course of treatment, the

United States Court of Appeals for the Third Circuit has held, “mere disagreement

as to the proper medical treatment” does not create an Eighth Amendment medical

claim.89 Put another way, when an inmate is provided with medical care and the

dispute is over the adequacy of that care, an Eighth Amendment claim does not

88 See Doc. 22, ¶¶ 11–12, 17, 23, 25, and p. 20.

89 Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979); Little v.

exist.90 Notably, medical negligence and malpractice are also insufficient to state

an Eighth Amendment claim.91

While deliberate indifference can be shown by prison medical care providers

or prison officials for intentionally denying, delaying, or interfering with medical

care once prescribed, Reed’s allegations that any of the Defendants delayed

scheduling his surgery or physical therapy fall short of an Eighth Amendment

violation. Clearly Reed would have preferred not to wait three months for his

surgery once Dr. Sobolewski recommended it; however, he fails to allege that the

delay was due to anything other than mere scheduling issues.92 Reed fails to allege

in the SAC that Medical Defendants or Dr. Sobolewski intentionally ignored

scheduling his surgery, or delayed scheduling his surgery for non-medical reasons

knowing the delay would cause him substantial harm. He also fails to allege

Medical Defendants ignored his complaints of pain or otherwise denied him

medical care for his shoulder during this time.

Furthermore, Reed does not plead any facts that Commonwealth Defendants

believed or concluded that Reed was not being treated appropriately by the

Medical Defendants or Dr. Sobolewski when setting his surgery date. 93 Based on

90 Id.

91 See White v. Napoleon, 897 F.2d 103, 108–10 (3d Cir. 1990) (citing Estelle, 429 U.S. at 106.)

92 Doc. 22 at 12 (CHCA Williams advised Reed on September 5, 2016, that he was “waiting for

the surgeon to give us a date.”)

93 Where non-medical prison officials are aware that prison medical care providers are treating

an inmate, absent a reason to believe that medical staff are mistreating, or failing to treat, the

the allegations of the SAC, there are not facts from which the Court can reasonably

infer that any of the Defendants consciously disregarded Reed’s surgical need for

the repair of his shoulder and then delayed his treatment based on this awareness.

Reed also fails to allege an Eighth Amendment claim against Dr.

Sobolewski regarding the inability to commence physical therapy one week after

surgery.94 As pled, Dr. Sobolewski prescribed physical therapy for Reed. At most,

Reed alleges that Dr. Sobolewski was negligent in not following up with Medical

or Commonwealth Defendants as to whether his physical therapy orders were

timely followed. However, claims of medical malpractice and negligence do not

raise issues of constitutional import.95 The SAC is devoid of any averments that

the Medical or Commonwealth Defendants acted with the necessary Eighth

Amendment scienter when providing him physical therapy outside of the timeline

allegedly set by Dr. Sobolewski. There is no constitutional requirement that

Medical Defendants order physical therapy per Dr. Sobolewski’s direction. At

most, the later than expected commencement of physical therapy demonstrates

Medical Defendants’ disagreement with Dr. Sobolewski’s orders, which does not

state a cognizable Eighth Amendment claim.

medical providers” and are not chargeable of deliberate indifference to a prisoner’s claim of

medical mistreatment under the Eighth Amendment. See Spruill v. Gillis, 372 F.3d 218, 236

(3d Cir. 2004).

94 Id. at ¶ 25.

95 See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (“It is well–settled that claims of

negligence and medical malpractice, without some more culpable state of mind, do not

It is well-established that a doctor’s disagreement with the professional

judgment of another physician is not actionable under the Eighth Amendment.96

The fact that Reed was under the direct care of the prison physician’s following his

shoulder surgery and did not see Dr. Sobolewski until mid-December 2016, does

not demonstrate deliberate indifference on the Medical Defendant’s part by not

initiating physical therapy one week after surgery. Additionally, when a patient

should undergo the next stage of treatment, such as physical therapy, is a medical

decision only physicians are qualified to provide, not non-medical prison staff such

as the Commonwealth Defendants. In sum, Reed has not plead a plausible Eighth

Amendment claim based on the delay in providing him physical therapy against

any of the Defendants.

For these reasons, the Court will grant the Defendants’ motions to dismiss as

to Reed’s Eighth Amendment claims concerning the alleged delay in scheduling

his surgery and post–operative physical therapy.

D. Reed’s Access to Court Claims.

It is well-settled that “prisoners have a constitutional right of access to the

courts.”97 Prisoners are not necessarily “capable of filing everything” but have a

right of access “to attack their sentences, directly or collaterally, and in order to

challenge the conditions of their confinement.”98 The right “must be adequate,

96 See White, 897 F.2d at 110.

97 Bounds v. Smith, 430 U.S. 817, 821 (1977).

effective and meaningful and must be freely exercisable without hindrance or fear

of retaliation.”99

Because an access to the courts claim “is ancillary to the underlying claim,”

a plaintiff “must identify a ‘nonfrivolous,’ “arguable’ underlying claim” that was

lost.100 The complaint “must describe the underlying claim well enough to show

that its ‘more than mere hope,’ and it must describe the ‘lost remedy.’”101 “[A]n

inmate must allege actual injury, such as the loss or rejection of a legal claim.”102

Here, Reed alleges the Commonwealth Defendants’ temporary delay in

providing him with his second “venda card,” and denying him copies of his

medical file, interfered with his access to the courts.103 These claims, as pled, do

not demonstrate Defendants’ interference with Reed’s access to the courts. The

SAC is devoid of any facts or description of the merits of a nonfrivolous or

arguable underlying claim or a lost remedy due to the absence of his “venda card”

or a copy of his prison or Somerset Hospital medical records. Clearly, to the extent

sought to raise a condition of confinement claim with respect to his post-second

MRI care, Reed was able to do so in both state court and this Court. Also, absent

from the SAC is an identifiable injury. Because Reed has not alleged any facts

99 Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981)(internal citations omitted).

100 Christopher v. Harbury, 536 U.S. 403, 415 (2002) (quoting Lewis, 518 U.S. at 353 & n.3).

101 Id. at 416–18.

102 Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997) (citing Lewis, 518 U.S. 343).

concerning the merits of his underlying lost claims, or indicate that he suffered an

actual injury, he fails to state an access to the courts claim.104

E. Reed Fails to State a § 1983 Claim against Somerset

Hospital.

According to the SAC, Somerset Hospital is a Pennsylvania corporation

providing community medical care.105 Reed claims Somerset Hospital took his

money but failed to send him copies of his hospital medical record.

A plaintiff seeking relief under Section 1983 against a private corporation

must show that a policy or custom caused the alleged deprivation of rights. Here,

Reed fails to identify a policy or custom of the hospital that violated his

constitutional rights. At most, he asserts a property claim against the hospital for

failing to provide him with copies of his medical records after he paid the $13.10

copying fee. Reed has consequently failed to state a federal claim concerning

Somerset Hospital.

Pennsylvania has a statute that ensures the rights of patients to access their

own medical records.106 To the extent Reed claims Somerset Hospital has violated

this right by refusing to send him copies of his medical records, he asserts a state

law claim. In the absence of any federal basis for Reed’s suit, the Court declines to

exercise supplemental jurisdiction over this state claim, if indeed the claim against

104 Presbury v. Wetzel, 789 F. App’x 294, 295 (3d Cir. 2020).

105 Doc. 39-2 at 6.

Somerset Hospital is actionable at all.107 Accordingly, Reed’s state claim, should it

exist, will be dismissed without prejudice.

F. Reed’s FTCA Claim

The Federal Tort Claims Act (“FTCA”) is a limited waiver of the federal

government’s immunity from tort lawsuits, allowing plaintiffs to sue the federal

government “for money damages … [for] personal injury or death caused by the

negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment, under circumstances where

the United States, if a private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.”108 The only proper

defendant to an action under the FTCA is the United States.109

Although Reed invokes the FTCA in the conclusion of the SAC,110 he does

name the United States as a defendant. Accordingly, Reed’s FTCA claim will be

dismissed.

IV. CONCLUSION

For the foregoing reasons, the Court will grant the moving Defendants’

motions to dismiss in their entirety. Additionally, all claims against Valerie Senko

107 See 28 U.S.C. § 1367(C)(3).

108 See 28 U.S.C. § 1346(b).

109 CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008).

will be dismissed pursuant to Fed. R. Civ. P. 4(m) due to Reed’s failure to provide

sufficient information to effect service on this individual. The Court will dismiss

Reed’s federal claims for failure to state a claim pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii), and I decline to exercise supplemental jurisdiction over his

possible state law claim.

The Court is required to give Reed leave to amend his second amended

complaint “unless amendment would be inequitable or futile.”111 Here, the Court

previously screened Reed’s amended complaint and dismissed it in its entirety

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), but granted him leave to file a second

amended complaint; the operative complaint in this action has not withstood

Defendants’ Rule 12(b)(6) motions.

The Court will not grant Reed a third opportunity to amend his federal

claims because further attempts at amendment would be inequitable and futile. See

Jones v. Unknown DOC Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir.

2019) (Where inmate plaintiff “has already had two chances to tell his story …

giving him further leave to amend would be futile.”)

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge