# Bertram v. Briggs

> District Court, M.D. Pennsylvania · August 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10410602

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 20, 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/10410602

## How later opinions describe it (automated extraction)

- affirming that as a matter of law, non-physician prison officials could not be considered deliberately indifferent for this reason
- affirming dismissal of prisoner’s deliberate indifference claim against non-medical prison officials
- holding that the failure to immediately order an MRI upon prisoner’s request does not demonstrate deliberate indifference

## Opinion text

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

KEVIN BERTRAM, : CIVIL ACTION NO. 1:20-CV-1284
:
Plaintiff : (Judge Conner)
:
v. :
:
WARDEN GREGORY BRIGGS, :
:
Defendant :

MEMORANDUM

Plaintiff Kevin Bertram (“Bertram”) commenced this action pursuant to
42 U.S.C. § 1983 alleging that he received inadequate medical care for an injury
sustained at the Dauphin County Prison, in Harrisburg, Pennsylvania. (Doc. 1).
The sole named defendant is Warden Gregory Briggs. Before the court is
defendant’s Rule 12(b) motion (Doc. 17) to dismiss. For the reasons set forth below,
the court will grant the motion.
I. Factual Background & Procedural History
On or about September 18, 2019, Bertram alleges that he slipped and fell in
the shower at the Dauphin County Prison. (Doc. 1 at 6). He contends that the
shower stalls are not cleaned regularly, there was a soapy residue on the shower
floor that caused him to slip and fall, and there are no shower mats or safety
handrails. (Id.) As a result of the fall, Bertram allegedly injured his ankle, hip,
back, and shoulder. (Id. at 6-7). He alleges that defendant Briggs “knowingly
delayed proper medical and psychological treatment, then immediately moved the
Plaintiff out of the dayroom to a top-tier cell after injury was sustained.” (Id. at 7).
Specifically, Bertram asserts that defendant Briggs improperly delayed ordering
x-rays and misinformed him that he would be permitted to undergo magnetic
resonance imaging (“MRI”). (Id.)

Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 17). The motion is fully briefed and ripe for resolution.
II. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6),
the court must “accept as true all [factual] allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)
(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is
generally limited in its review to the facts contained in the complaint, it “may also
consider matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the
face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See
Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step,
“the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’”
Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal

elements of a claim should be separated; well-pleaded facts must be accepted as
true, while mere legal conclusions may be disregarded. Id.; see also Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual
allegations have been isolated, the court must determine whether they are sufficient
to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550
U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient
to “raise a right to relief above the speculative level”). A claim “has facial

plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
III. Discussion
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.

The statute provides, in pertinent part, as follows:
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.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege
“the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A. Lack of Personal Involvement
Defendant Briggs seeks dismissal of the complaint based on a lack of
personal involvement. (Doc. 18 at 9-11). Individual liability will be imposed
under § 1983 only if the state actor played an “affirmative part” in the alleged
misconduct. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Liability “cannot be predicated
solely on the operation of respondeat superior.” Id. In other words, defendants in

§ 1983 civil rights actions “must have personal involvement in the alleged wrongs
. . . shown through allegations of personal direction or of actual knowledge and
acquiescence.” Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003); Rode, 845 F.2d
at 1207-08. Acquiescence requires both contemporaneous knowledge of the alleged
wrongdoing and direct supervisory authority over the subordinate actor. Atkinson,
316 F.3d at 271; Rode, 845 F.2d at 1207-08. Such allegations, however, must be

made with appropriate particularity in that a complaint must allege the particulars
of conduct, time, place, and person responsible. Evancho, 423 F.3d at 354; Rode,
845 F.2d at 1207-08. When a plaintiff merely hypothesizes that an individual
defendant may have had knowledge of or personal involvement in the deprivation
of his or her rights, individual liability will not follow. Atkinson, 316 F.3d at 271;
Rode, 845 F.2d at 1207-08.
Bertram alleges that the shower stalls at the Dauphin County Prison are not
cleaned regularly and there are no shower mats or safety handrails, which directly
contributed to his slip-and-fall. He generally asserts that Dauphin County Prison

staff are “careless and openly negligent resulting in many accidents.” (Doc. 1 at 7).
Bertram’s complaint fails to allege any personal involvement of defendant Briggs
and fails to set forth any factual averments that identifies how he was involved in
the alleged wrongdoing. Bertram’s claims against defendant Briggs consist of little
more than assertions of respondeat superior liability. As a matter of law, these
assertions do not suffice to state a claim against defendant Briggs.
With respect to defendant Briggs’ role as a supervisor, “there are two

theories of supervisory liability, one under which supervisors can be liable if they
established and maintained a policy, practice or custom which directly caused the
constitutional harm, and another under which they can be liable if they participated
in violating plaintiff’s rights, directed others to violate them, or, as the persons in
charge, had knowledge of and acquiesced in their subordinates’ violations.”
Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (quotation and

alteration marks omitted). Completely absent from the complaint are allegations
that defendant Briggs established and maintained a policy, practice, or custom
which directly caused the constitutional harm, or that he participated in violating
Bertram’s rights, directed others to violate them, or acquiesced in any
unconstitutional conduct by his subordinates. For these reasons, defendant’s
motion to dismiss the complaint will be granted based on a lack of personal
involvement.
B. Eighth Amendment Claim
In order to establish an Eighth Amendment medical claim, a plaintiff “must
show (i) a serious medical need, and (ii) acts or omissions by prison officials that

indicate deliberate indifference to that need.” Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197
(3d Cir. 1999)). A serious medical need is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a lay person would
recognize the necessity for a doctor’s attention.” Monmouth Cnty. Corr.
Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, “if
unnecessary and wanton infliction of pain results as a consequence of denial or

delay in the provision of adequate medical care, the medical need is of the serious
nature contemplated by the eighth amendment.” Id. (citation omitted). A prison
official acts with deliberate indifference to an inmate’s serious medical needs when
he “knows of and disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Assuming arguendo that Bertram’s injuries rise to the level of a serious
medical condition for purposes of the Eighth Amendment analysis, the court
must determine whether Bertram has pled a deliberate indifference to that need.
Bertram alleges that defendant Briggs exhibited deliberate indifference because he
delayed ordering x-rays, misinformed Bertram that he would undergo an MRI, and
placed him on a top-tier housing block. (Doc. 1 at 4, 7). However, Bertram also
confirms that he underwent x-rays at the Dauphin County Prison and at the
Hershey Medical Center and underwent physical therapy at the Hershey Medical
Center. (Id. at 8). The allegations reflect that Bertram received medical treatment

for his injuries. Any brief delay in undergoing medical treatment does not rise to
the level of deliberate indifference and thus does not violate the Eighth
Amendment. See Rhines v. Bledsoe, 388 F. App’x 225, 228 (3d Cir. 2010) (holding
that the failure to immediately order an MRI upon prisoner’s request does not
demonstrate deliberate indifference). Additionally, Bertram alleges no facts to
suggest that the decision to place him on a top-tier housing block was based on
improper motives. Nor does he allege that there was a medical basis prohibiting

his assignment to a top tier or that he was classified as requiring a bottom tier
assignment. The complaint is devoid of any facts showing that defendant Briggs
acted with deliberate indifference towards a serious medical need.
Moreover, defendant Briggs is not a medical professional, and therefore
cannot be considered deliberately indifferent simply because he “failed to respond
directly to the medical complaints of a prisoner who was already being treated by

the prison doctor.” Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (affirming
that as a matter of law, non-physician prison officials could not be considered
deliberately indifferent for this reason); see also Smith v. O’Boyle, 251 F. App’x 87,
89 (3d Cir. 2007) (affirming dismissal of § 1983 claim against prison officials because
“[p]rison officials who are not physicians are entitled to defer to the medical
judgment of staff physicians”). Absent a “belief or actual knowledge that medical
personnel mistreated or failed to treat a prisoner,” defendant Briggs, a non-medical
prison official, cannot be charged with the Eighth Amendment scienter
requirement of deliberate indifference. Innis v. Wilson, 334 F. App’x 454, 456-57 (3d
Cir. 2009) (affirming dismissal of prisoner’s deliberate indifference claim against

non-medical prison officials). Bertram failed to allege this belief or actual
knowledge. For all the foregoing reasons, the court will grant defendant Briggs’
motion to dismiss the Eighth Amendment Claim.
C. Qualified Immunity
Even if Bertram had stated a colorable constitutional claim, defendant Briggs
is nevertheless entitled to qualified immunity from this claim for damages. In order
to establish a civil rights claim, Bertram must show the deprivation of a right

secured by the United States Constitution or the laws of the United States.
However, government officials performing “discretionary functions,” are insulated
from suit if their conduct did not violate a “clearly established statutory or
constitutional right[] of which a reasonable person would have known.” Wilson
v. Layne, 526 U.S. 603, 609 (1999).
“The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation
marks omitted). “Qualified immunity balances two important interests—the need
to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Id. It “provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986). “Thus, so long as an official reasonably believes that his
conduct complies with the law, qualified immunity will shield that official from

liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555
U.S. at 244). Although qualified immunity is generally a question of law that should
be considered at the earliest possible stage of proceedings, a genuine dispute of
material fact may preclude summary judgment on qualified immunity. Giles, 571
F.3d at 325-26.
A qualified immunity determination involves a two-pronged inquiry: (1)
whether a constitutional or federal right has been violated, and (2) whether that

right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled
in part by Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion
in deciding which of the two Saucier prongs should be addressed first). As stated,
the court finds that Bertram failed to establish the violation of a constitutional right.
Defendant Briggs simply could not have recognized that his actions would violate a
“clearly established statutory or constitutional right[] of which a reasonable person

would have known.” Wilson, 526 U.S. at 609. Therefore, defendant Briggs is
protected from liability by qualified immunity.
D. Municipal Liability Claim
Defendant next seeks to dismiss the purported municipal liability claim.
(Doc. 18 at 18-20). A municipality may be held liable under § 1983 “if the
governmental body itself ‘subjects’ a person to a deprivation of constitutional rights
or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson,
563 U.S. 51, 60 (2011) (quoting Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658,
692 (2018)). Thus, a plaintiff seeking to impose constitutional liability on a
municipality must meet the difficult burden of proving that an “action pursuant to

official municipal policy” caused their injury. Monell, 436 U.S. at 691, 694. This
requires the plaintiff to identify an official or unofficial municipal policy—including
“decisions of a government’s lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force of law,”
Connick, 563 U.S. at 61 (citations omitted), and demonstrate that said policy was the
“moving force” behind his injury, Berg v. County of Allegheny, 219 F.3d 261, 275-76
(3d Cir. 2000) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).

The complaint fails to identify any policymaker effectuating an official policy
which was the moving force behind the alleged constitutional violation. (See Doc.
1). In fact, the complaint fails to reference any policy or procedure that was
allegedly violated. Consequently, Bertram’s claim in the form of a violation of a
municipal policy under Monell will be dismissed.
IV. Leave to Amend
When a complaint fails to present a prima facie case of liability, district courts
must generally grant leave to amend before dismissing the complaint. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d
113, 116-17 (3d Cir. 2000). Specifically, the Third Circuit Court of Appeals has
admonished that when a complaint is subject to dismissal for failure to state a claim,
courts should liberally grant leave to amend “unless such an amendment would be
inequitable or futile.” Phillips, 515 F.3d at 245 (citing Alston v. Parker, 363 F.3d 229,
235 (3d Cir. 2004)). The defects in Bertram’s pleading are substantial, but they are
factual in nature and thus conceivably could be cured by an amended pleading. We

will thus dismiss Bertram’s complaint with leave to amend.
V. Conclusion
We will grant defendant’s motion (Doc. 17) to dismiss. An appropriate order
shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania

Dated: August 20, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410602. Public record. Not legal advice.