# Covert v. Houser

> District Court, M.D. Pennsylvania · January 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10409701

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409701

## How later opinions describe it (automated extraction)

- affirming the dismissal of one defendant because the complaint did not provide any basis for a claim against him
- explaining that when dismissing a complaint pursuant to § 1915A, “a court employs the motion to dismiss standard set forth under Federal Rule of Civil Procedure 12(b)(6)”
- concluding that the plaintiff’s collective use of the word “Defendants” failed to adequately plead which specific defendant engaged in the specific conduct alleged by the plaintiff

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN COVERT, :
Plaintiff :
: No. 1:20-cv-02022
v. :
: (Judge Kane)
RN BRENDA HOUSER, et al., :
Defendants :

MEMORANDUM

On November 2, 2020, pro se Plaintiff John Covert (“Plaintiff”), who is presently
incarcerated at the State Correctional Institution Mahanoy in Frackville, Pennsylvania (“SCI
Mahanoy”), initiated the above-captioned case by filing a complaint pursuant to 42 U.S.C.
§ 1983 against Defendants RN Brenda Houser (“Houser”), Ms. White (“White”), Ms. B. Mason
(“Mason”), and Prison Health Services (“PHS”). (Doc. No. 1.) Plaintiff has also filed a motion
for leave to proceed in forma pauperis. (Doc. No. 5.) Pursuant to the Prison Litigation Reform
Act of 1995 (“PLRA”),1 the Court will perform its mandatory screening of Plaintiff’s complaint.
For the reasons set forth below, the Court will grant Plaintiff’s motion for leave to proceed in
forma pauperis and dismiss his complaint with leave to amend.
I. BACKGROUND
In his complaint, Plaintiff asserts that he has exhausted all his resources to attempt “to get
the medication and physical [therapy] that [he needs] for [his] plantar fasciitis.” (Doc. No. 1 at
1-2.) Plaintiff avers that his doctor and foot and ankle specialist submitted paperwork to SCI
Mahanoy regarding what Plaintiff “need[s] done to [his] feet.” (Id. at 2.) According to Plaintiff,

1 See The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26,
1996).
the medical staff at SCI Mahanoy only provide him 600mg of Ibuprofen; Plaintiff avers that he is
supposed to be receiving 600mg of Gabapentin as well as physical therapy. (Id.) He further
maintains that an unnamed female staff member has “been trying to take [him] off all [his] pain
[medications]” and states that she cannot help Plaintiff “at all.” (Id. at 5.) As relief, Plaintiff

requests that he be provided medications and physical therapy and that the medical staff “do
what was [recommended] by doctors and [specialists].” (Id.)
II. LEGAL STANDARD
A. Screening and Dismissal of Prisoner Complaints
Under 28 U.S.C. § 1915A, federal district courts must “review . . . a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” See 28 U.S.C. § 1915A(a). If a complaint fails to state a claim upon
which relief may be granted, the Court must dismiss the complaint. See id. § 1915A(b)(1).
District courts have a similar screening obligation with respect to actions filed by prisoners
proceeding in forma pauperis and prisoners challenging prison conditions. See id.

§ 1915(e)(2)(B)(ii) (“[T]he [C]ourt shall dismiss the case at any time if the [C]ourt determines
that . . . the action or appeal . . . fails to state a claim on which relief may be granted . . . .”); 42
U.S.C. § 1997e(c)(1) (“The [C]ourt 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 . . . by a
prisoner confined in any jail, prison, or other correctional facility if the [C]ourt is satisfied that
the action . . . fails to state a claim upon which relief can be granted.”).
In dismissing claims under §§ 1915(e), 1915A, and 1997e, district courts apply the
standard governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See, e.g., Smithson v. Koons, No. 15-01757, 2017 WL 3016165, at *3 (M.D.
Pa. June 26, 2017) (“The legal standard for dismissing a complaint for failure to state a claim
under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c)(1) is the same as that for dismissing a
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.”); Mitchell v.
Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010) (explaining that when dismissing a complaint

pursuant to § 1915A, “a court employs the motion to dismiss standard set forth under Federal
Rule of Civil Procedure 12(b)(6)”). To avoid dismissal under Rule 12(b)(6), a civil complaint
must set out “sufficient factual matter” to show that its claims are facially plausible. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009). The plausibility standard requires more than a mere possibility that the defendant is
liable for the alleged misconduct. “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P.
8(a)(2)). When evaluating the plausibility of a complaint, the Court accepts as true all factual
allegations and all reasonable inferences that can be drawn from those allegations, viewed in the

light most favorable to the plaintiff. See id. at 679; In re Ins. Brokerage Antitrust Litig., 618
F.3d 300, 314 (3d Cir. 2010). However, the Court must not accept legal conclusions as true, and
“a formulaic recitation of the elements of a cause of action” will not survive a motion to dismiss.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Based on this standard, the United States Court of Appeals for the Third Circuit has
identified the following steps that a district court must take when reviewing a Rule 12(b)(6)
motion: (1) identify the elements that a plaintiff must plead to state a claim; (2) identify any
conclusory allegations contained in the complaint that are “not entitled” to the assumption of
truth; and (3) determine whether any “well-pleaded factual allegations” contained in the
complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010). In addition, in the specific context of pro se prisoner
litigation, a district court must be mindful that a document filed pro se is “to be liberally
construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however

inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by
lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted)
(quoting Estelle, 429 U.S. at 106).
B. Section 1983 Standard
Section 1983 is the vehicle by which private citizens may seek redress for violations of
federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute
states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, 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.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means through which “to
vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon,
331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85
(2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the
conduct complained of was committed by persons acting under color of state law; and (2) the
conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United
States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West
v. Atkins, 487 U.S. 42, 48 (1988)).
III. DISCUSSION
A. Plaintiff’s Complaint
As noted supra, Plaintiff names Houser, White, Mason, and PHS as Defendants in the
above-captioned case. However, for a § 1983 claim to survive a motion to dismiss, the plaintiff

must sufficiently allege that the defendant was personally involved in the act or acts that the
plaintiff claims violated his rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988); Solan v. Ranck, 326 F. App’x 97, 100 (3d Cir. 2009). In the instant case, Plaintiff has not
adequately pled facts regarding how the named Defendants were personally involved in the
alleged violations of his constitutional rights. See Lawal v McDonald, 546 F. App’x 107, 113
(3d Cir. 2014) (concluding that the plaintiff’s collective use of the word “Defendants” failed to
adequately plead which specific defendant engaged in the specific conduct alleged by the
plaintiff); Hudson v. City of McKeesport, 244 F. App’x 519, 522 (3d Cir. 2007) (affirming the
dismissal of one defendant because the complaint did not provide any basis for a claim against
him). While Plaintiff avers that “she has been trying to take [him] off all [his] pain

[medications],” the Court cannot discern to whom Plaintiff refers at this time. Without more, the
Court cannot proceed on Plaintiff’s claims against Defendants as pled.
Moreover, under § 1983, a private corporation, such as PHS, contracted to provide
healthcare for inmates cannot be held liable pursuant to respondeat superior; instead, a plaintiff
must allege that the entity had a policy, practice, or custom that caused his or her injury. See
Shade v. Stanish, No. 1:19-cv-1429, 2020 WL 869748, at *7 (M.D. Pa. Feb. 21, 2020); see also
Carpenter v. Kloptoski, No. 1:08-cv-2233, 2010 WL 891825, at *8 (M.D. Pa. Mar. 10, 2010)
(concluding that a § 1983 claim against a private medical service solely on the basis that it was
responsible for providing health care is subject to dismissal). Here, Plaintiff fails to allege any
facts suggesting that the alleged deficiencies in his medical care were the result of PHS’s
policies, customs, or practices.
It also appears that Plaintiff seeks to proceed against Defendants White and Mason based
upon their respective supervisory positions as Deputy Superintendent and Superintendent at SCI

Mahanoy. Supervisors, however, “may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.” See Iqbal, 556 U.S. at 676. The Third
Circuit has noted that there are two theories of supervisory liability applicable to claims brought
pursuant to § 1983: (1) “a supervisor may be personally liable under § 1983 if he or she
participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in his subordinates’ violations”; and (2) policymakers
may also be liable under § 1983 “if it is shown that such defendants, ‘with deliberate indifference
to the consequences, established and maintained a policy, practice[,] or custom which directly
caused [the] constitutional harm.’” See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr.,
372 F.3d 572, 586 (3d Cir. 2004). With respect to the second theory of liability, the plaintiff

must allege that “(1) existing policy or practice creates an unreasonable risk of constitutional
injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor
was indifferent to that risk; and (4) the injury resulted from the policy or practice.” See Merring
v. City of Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing Sample v. Diecks, 885
F.2d 1099, 1118 (3d Cir. 1989)). In the instant case, Plaintiff’s complaint fails to set forth
plausible supervisory liability claims against Defendants White and Mason. He has pled no facts
suggesting that they participated or acquiesced in the alleged violation of his rights, and he has
not identified any policy that allegedly caused the violation of his rights. See McTernan v. City
of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009).
Notwithstanding the deficiencies set forth above, Plaintiff fails to set forth a plausible
Eighth Amendment claim against Defendants at this time. The Eighth Amendment prohibits the
infliction of cruel and unusual punishment on prisoners. In the context of medical care, the
Eighth Amendment “requires prison officials to provide basic medical treatment to those whom

it has incarcerated.” See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). To establish an
Eighth Amendment claim based on a prison’s denial of medical care, an inmate must allege acts
or omissions by prison officials that were sufficiently harmful to evidence deliberate indifference
to a serious medical need. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). The relevant inquiry is whether
the defendant (1) was subjectively deliberately indifferent to (2) the plaintiff’s objectively
serious medical needs. See Farmer, 511 U.S. at 834, 837; Chavarriaga v. N.J. Dep’t of Corr.,
806 F.3d 210, 226 (3d Cir. 2015).
The “deliberate indifference” prong of the Eighth Amendment test requires that the
defendant actually know of and disregard “an excessive risk to inmate health or safety.” See

Farmer, 511 U.S. at 837. Circumstantial evidence can establish subjective knowledge if it shows
that the excessive risk was so obvious that the official must have known about it. See Beers-
Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842). The
Third Circuit has found deliberate indifference when a prison official: (1) knows of a prisoner’s
need for medical treatment and intentionally refuses to provide it; (2) delays necessary medical
treatment for a non-medical reason; or (3) prevents a prisoner from receiving needed or
recommended medical treatment. See Rouse, 182 F.3d at 197.
Because only egregious acts or omissions can violate this standard, mere medical
malpractice cannot result in an Eighth Amendment violation. See White v. Napoleon, 897 F.2d
103, 108-10 (3d Cir. 1990); see also Pearson v. Prison Health Servs., 850 F.3d 528, 535 (3d Cir.
2017) (“[W]hen medical care is provided, we presume that the treatment of a prisoner is proper
absent evidence that it violates professional standards of care.”); Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises

professional judgment[,] his behavior will not violate a prisoner’s constitutional rights.”). If
there is a dispute over the adequacy of the received treatment, courts have consistently been
reluctant to second-guess the medical judgment of the attending physician. See Caldwell v.
Luzerne Cty. Corr. Facility Mgmt. Emp., 732 F. Supp. 2d 458, 472 (M.D. Pa. 2010) (“Courts
will not second guess whether a particular course of treatment is adequate or proper.”); Little v.
Lycoming Cty., 912 F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996).
Therefore, a mere difference of opinion between the prison’s medical staff and the inmate
regarding the diagnosis or treatment that the inmate receives does not support a claim of
deliberate indifference. See Pearson, 850 F.3d at 535; Monmouth Cty. Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). Moreover, a prison doctor’s use of a treatment

regimen different than that prescribed by a private physician does not necessarily amount to
deliberate indifference. See Johnson v. Cash, 557 F. App’x 102, 104 (3d Cir. 2013) (citing
McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977)). The question is, therefore, “whether the
defendant has provided the plaintiff with some type of treatment, despite whether it is what
plaintiff wants.” See Jacobs v. Lisiak, Civ. No. 15-00686, 2016 WL 344431, at *4 (M.D. Pa.
Jan. 28, 2016); Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988).
In the instant case, Plaintiff has not set forth a plausible Eighth Amendment claim against
Defendants at this time. In his complaint, Plaintiff maintains that his doctor and foot and ankle
specialist have recommended that he receive physical therapy and 600mg of Gabapentin for his
plantar fasciitis. (Doc. No. 1 at 1-2.) He avers that despite these recommendations, medical staff
at SCI Mahanoy are providing only 600mg Ibuprofen. (Id. at 2.) Plaintiff’s complaint, as pled,
fails to suggest that Defendants were aware of Plaintiff’s medical condition and completely
refused or delayed treatment. As pled, Plaintiff’s complaint at most sets forth a disagreement as

to the care provided to him, and such disagreement is not sufficient to maintain an Eighth
Amendment claim. See Hemingway v. Gosa, No. 19-cv-583, 2020 WL 2556914, at *16 (M.D.
Pa. May 20, 2020) (collecting pertinent authority).
B. Leave to Amend
Due to the applicable liberal pleading standard, a plaintiff should generally be granted
leave to amend before a Court dismisses a claim that is merely deficient. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Federal Rules of Civil Procedure
allow for amendments to be granted liberally in light of the “principle that the purpose of
pleading is to facilitate a proper decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182
(1962). The Court may deny a motion to amend where there is “undue delay, bad faith[,] or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment.” See id. The Court must also determine whether a
proposed amendment would be futile if the complaint, as amended, would not survive a motion
to dismiss for failure to state a claim upon which relief may be granted. See In re NAHC, Inc.
Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002).
Based on the foregoing, the Court will permit Plaintiff to file an amended complaint
against Defendants that corrects the deficiencies identified herein. Plaintiff is advised that the
amended complaint must be complete in all respects. It must be a new pleading that stands by
itself without reference to the original complaint or any other document already filed. The
amended complaint should set forth Plaintiff’s claims in short, concise, and plain statements as
required by Rule 8 of the Federal Rules of Civil Procedure. Each paragraph should be
numbered. It should specify which actions are alleged as to which defendants and sufficiently

allege personal involvement of the defendant in the acts that he claims violated his rights. Mere
conclusory allegations will not set forth a cognizable claim.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Plaintiff’s motion for leave to proceed in
forma pauperis (Doc. No. 5) and dismiss his complaint (Doc. No. 1) for failure to state a claim
upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court will
afford Plaintiff thirty (30) days from the date of the Order accompanying this Memorandum in
which to file an amended complaint, consistent with the Court’s discussion herein. An
appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409701. Public record. Not legal advice.