The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEITH BRANCH, : CIVIL ACTION NO. 1:20-CV-2448
:
Plaintiff : (Judge Conner)
:
v. :
:
DEPARTMENT OF CORRECTIONS, :
PREA ALLEGATIONS, BUREAU OF :
TREATMENT SERVICES, and :
MEDICAL DEPARTMENT, :
:
Defendants :
MEMORANDUM
Plaintiff Keith Branch, a prisoner presently confined at the State
Correctional Institution at Benner Township, in Benner Township, Pennsylvania,
has filed an amended complaint pursuant to 42 U.S.C. § 1983 alleging a First
Amendment access to the courts claim and an Eighth Amendment medical claim.1
(Doc. 28). The court previously dismissed plaintiff’s complaint because some claims
were barred by the statute of limitations, the named defendants were not proper
defendants in an action pursuant to § 1983, and the other individuals referenced in
the complaint lacked any personal involvement in the claims alleged. (See Docs. 23,
24). The court has screened the amended complaint, and for the following reasons,
the court will dismiss the amended complaint with leave to amend.
1 Plaintiff has also filed motions for leave to proceed in forma pauperis, which
the court will grant. (Docs. 5, 10, 13).
I. Screening Provisions of the Prison Litigation Reform Act
The Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (Apr.
26, 1996), authorizes a district court to review a complaint in a civil action in which a
prisoner is proceeding in forma pauperis or seeks redress against a governmental
employee or entity. See 28 U.S.C. § 1915(e)(2)2; 28 U.S.C. § 1915A.3 The court is
required to identify cognizable claims and to sua sponte dismiss any claim that is
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
§ 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
II. Allegations in the Amended Complaint
Plaintiff is presently incarcerated at SCI Benner Township. (Doc. 1 at 2). He
does not specifically name any defendants in his amended complaint; however, a
2 Section 1915(e)(2) of Title 28 of the United States Code provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-
-
(A) the allegation of poverty is untrue; or
(B) the action or appeal --
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
3 Section 1915A(b) of Title 28 of the United States Code provides:
(b) On review, the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
Dr. Kevin Kollman and a Dr. Jones are referenced in the factual allegations. (See
Doc. 28). He also references a “PA nurse” and “PA doctor.” (See id.)
Like his original complaint, the majority of the allegations of the amended
complaint remain nonsensical and many words are illegible. Plaintiff does not write
in complete sentences and his word structure makes the intent of his allegations
often impossible to discern. For example, in August 2013, plaintiff saw “PA doctor”
for a chronic care appointment and to update his medical heath. At that
appointment, plaintiff alleges “example believe calories built PA doctor statement
medical record does show any calories - gangrene, cancer, diabetic - patient none
about statement – once again believe diagnosis are calorie status.” (Id. at 3). The
allegations apparently describe each medical appointment that plaintiff had at his
various places of incarceration between May 2010 and August 2019, but rarely
identify the name of the person with whom plaintiff interacted.
During this time, plaintiff sought to receive a certain test in order to have his
unspecified medical condition diagnosed and treated. (See id. at 2, 5). Plaintiff was
either refused the test or told that no such test exists. (See id.) Plaintiff’s condition
worsened during this time, with his foot and leg getting larger, which made walking
extremely difficult. (Id. at 6). Plaintiff received an x-ray of his leg, and also ace
bandages and a cane to assist with his walking. (Id. at 7).
Plaintiff also details more recent interactions with the medical staff. For
example, in January 2019, plaintiff saw “PA nurse” for sick call because he was
unable to sleep and had pain and suffering. (Id. at 7). The nurse prescribed an
unknown medication to plaintiff, who was to take “three a day.” (Id.) In February
2019, plaintiff again saw the nurse at sick call and reiterated the same complaint,
which had worsened. (Id.) He then saw Dr. Kevin Kollman who prescribed plaintiff
an unknown medication and directed him to soak his feet. (Id.) On February 28,
2019, plaintiff met with Dr. Kollman again and it appears they discussed “outside
medical center disease vein/vascular surgery.” (Id.) On March 7, 2019, plaintiff had
an appointment for “cat test” from which he received the diagnosis he initially
sought. (Id.) It is not clear what the diagnosis is as plaintiff states “perfect proof
fact diagnose calories.” (Id.) On March 28, 2019, plaintiff had a wound care
appointment at Mount Nittany Medical Center. (Id.)
On May 24, 2019, plaintiff had vascular surgery for a diseased vein and “blood
block.” (Id.) Then, on May 29, 2019, plaintiff had orthopedic surgery to remove his
left foot. (Id. at 7, 8). Dr. Jones performed one of the surgeries, although it is not
clear which one. (See id.)
On June 24, 2019, plaintiff went to the Mount Nittany Medical Center and
either stayed there for or was prescribed six weeks of treatment. (Id. at 8). On July
5, 2019, however, he alleges that he was given the wrong antibiotic medication for
four months and was admitted to the infirmary. (Id. at 11). He then had wound
care sometime in August at Mount Nittany Medical Center. (Id.)
The amended complaint appears to allege that plaintiff has been incorrectly
diagnosed and erroneously treated for diabetes, yet he suffers from another
unspecified medical condition. Plaintiff apparently alleges that as a result of the
lack of diagnosis and treatment, he has lost his foot and now needs to wear a
prosthesis—“special shoe, boot . . . .” (Id. at 8). Plaintiff avers that he would not
accept any diabetic treatment or medication because he is not diabetic, and that he
never received the test that he needed to be correctly diagnosed until March 17,
2019. (Id. at 9). Plaintiff alleges that he knew what was wrong with him, but that
the medical staff would not believe him or listen to him. (See id. 8-9.)
Attached to the amended complaint are 207 pages of exhibits which generally
document plaintiff’s attempts to exhaust his claims. (Docs. 28-1, 28-2, 28-3).
III. Discussion
Plaintiff has brought his constitutional 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, 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.” Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). “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.’” Nicini v. Morra, 212 F.3d 798, 806 (3d
Cir. 2000) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).
We perceive an attempt on the part of plaintiff to assert an Eighth
Amendment claim for deliberate indifference to serious medical needs. Estelle
v. Gamble, 429 U.S. 97, 106 (1976). Eighth Amendment claims, however, must be
timely. The statute of limitations for an action brought pursuant to § 1983 in
Pennsylvania is two years. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). A
cause of action accrues and thus the statute of limitations starts to run “when the
plaintiff knew or should have known of the injury upon which [his] action is based.”
Kach, 589 F.3d at 634 (citations omitted).
According to our interpretation of plaintiff’s stream of consciousness
allegations, he knew for quite some time that he was not receiving the correct
diagnosis or treatment for his medical condition. Any claims for medical deliberate
indifference that occurred before December 10, 2018, i.e., two years before this
action was initiated, are time barred. At this procedural juncture, it is unclear
whether the statute of limitations would reach claims based upon conduct or events
occurring after December 10, 2018.
Turning now to plaintiff’s timely allegations, “[i]n 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.” Estelle, 429 U.S. at 106. “[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.” Rouse
v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). This standard affords considerable
latitude for medical professionals within a prison to diagnose and treat the medical
problems of inmate patients. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d
754, 762 (3d Cir. 1979); Little v. Lycoming County, 912 F. Supp. 809, 815 (M.D. Pa.
1996). Some of the more common situations in which “deliberate indifference” has
been found include when the defendant knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it, delays necessary medical
treatment based on a non-medical reason, and prevents a prisoner from receiving
needed or recommended medical treatment. Id.
Plaintiff alleges that the PA nurse met with him in January 2019 about his
pain and prescribed him medication, and that when he complained of the issue
worsening in 2019, plaintiff saw Dr. Kollman. Plaintiff alleges that Dr. Kollman
prescribed him medication in February 2019 and directed him to soak his feet, and
discussed vascular surgery with him on February 28, 2019. As to Dr. Jones, plaintiff
alleges that he performed surgery on him. At no point did the unidentified PA
nurse, Dr. Kollman, or Dr. Jones refuse to provide plaintiff with treatment, delay
necessary treatment based on non-medical reasons, or prevent him from receiving
treatment.
Plaintiff abruptly alleges that he received the wrong medication in July 2019;
however, he fails to allege who caused the prescription error. Even if plaintiff had
identified the person responsible, plaintiff does not allege that he was intentionally
provided with the wrong medication or that it was done with deliberate
indifference. At best, such allegations would plead a claim of malpractice or
negligence, which is insufficient to support an Eighth Amendment constitutional
violation. See White v. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990) (citing Estelle,
429 U.S. at 106).
IV. Leave to Amend
The court recognizes that the sufficiency of this pro se pleading must be
construed liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89
(2007). The federal rules allow for liberal amendments in light of the “principle
that the purpose of pleading is to facilitate a proper decision on the merits.” Foman
v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotation marks omitted).
Consequently, a complaint should not be dismissed with prejudice for failure to
state a claim without granting leave to amend, “unless such an amendment would
be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir.
2008) (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)).
The court previously granted plaintiff leave to file an amended complaint,
explaining that in any amended complaint, plaintiff “should write legibly and clarify
what his claims are, against whom he seeks to assert his claims, how those
individuals were involved in his claims, and when and where those claims
occurred.” Plaintiff has not complied with this directive. Specifically, plaintiff has
not provided clear allegations of the nature of his Eighth Amendment claims,
against whom he seeks to assert these claims, and, in many instances, fails to
identify the persons involved in the conduct of which he complains. As written, the
amended complaint is a rambling series of abbreviated notes, and it is largely
unintelligible. It fails to name the defendant parties, fails to state the nature of his
claim against each defendant, and fails to set forth in clearly worded factual
allegations the basis for his claims. In short, it utterly fails to state a claim upon
which relief may be granted. Because plaintiff is proceeding pro se, the court will
provide him a final opportunity to amend his claims.
V. Conclusion
Based on the foregoing, the court finds that plaintiff has failed to state a claim
upon which relief may be granted. In deference to his pro se status, the court will
provide plaintiff with a final opportunity in which to file an amended complaint
regarding his deficient claims.
An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: June 30, 2021