Showers v. Rodgers, M.D.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RUSSELL SHOWERS, :

Plaintiff : CIVIL ACTION NO. 3:20-1868

v. : (JUDGE MANNION)

DR. COURTNEY RODGERS, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Russell Showers, an inmate confined in the Mahanoy State

Correctional Institution, Frackville (“SCI-Mahanoy”), Pennsylvania, filed

the above caption civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1).

On April 5, 2021, Plaintiff filed an amended complaint, (Doc. 33) and on

May 3, 2021, Plaintiff filed a supplemental complaint. (Doc. 39). The

named Defendants are Correct Care Solutions and the following SCI-

Mahanoy employees: Dr. Courtney Rodgers, Medical Director/Supervising

Physician; John Steinhart, Health Care Administrator; John O’Brien,

Physician Assistant; and Registered Nurses Kim Minarchick, Brenda

Houser, and Patricia Howell. Id. Plaintiff seeks compensatory and punitive

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damages for Defendants’ alleged deliberate indifference to Plaintiff’s

serious back pain. Id.

Presently before the Court are Defendants’ motions to dismiss

Plaintiff’s complaint. (Docs. 36, 44). Defendants argue, inter alia, that

Plaintiff failed to exhaust administrative remedies prior to filing the instant

action. Id. For the reasons set forth below, the Court will grant Defendants’

motions to dismiss Plaintiff’s complaint for Plaintiff’s failure to exhaust his

administrative remedies.

II. Standard of Review

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure

to state a claim upon which relief can be granted.” Under Rule 12(b)(6),

we must “accept all factual allegations as true, construe the complaint in

the light most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to

relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009)(quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.

2008)). While a complaint need only contain “a short and plain statement

of the claim,” Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not

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required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a

complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Id. at 570. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that

a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662

(2009) (quoting Twombly, 550 U.S. at 556). “[L]abels and conclusions” are

not enough, Twombly, 550 U.S. at 555, and a court “is not bound to accept

as true a legal conclusion couched as a factual allegation.” Id. (quoted

case omitted). Thus, “a judicial conspiracy claim must include at least a

discernible factual basis to survive a Rule 12(b)(6) dismissal.” Capogrosso

v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir.

2009) (per curiam).

In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a

claim, “a court must consider only the complaint, exhibits attached to the

complaint, matters of public record, as well as undisputedly authentic

documents if the complainant's claims are based upon these documents.”

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d

Cir. 1993)). A court may also consider “any ‘matters incorporated by

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reference or integral to the claim, items subject to judicial notice, matters

of public record, orders, [and] items appearing in the record of the case.’ ”

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006)

(quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice &

Procedure §1357 (3d Ed. 2004)); see also Pryor v. Nat’l Collegiate Athletic

Ass’n, 288 F.3d 548, 560 (3d Cir. 2002) (noting that when considering a

motion to dismiss, courts may consider “documents whose contents are

alleged in the complaint and whose authenticity no party questions, but

which are not physically attached to the pleading”).

In the context of pro se prisoner litigation specifically, the court must

be mindful that a document filed pro se is “to be liberally construed.” 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” and can only be dismissed for failure to state

a claim if it appears beyond a doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief. Haines v.

Kerner, 404 U.S. 519, 520-21 (1972).

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III. Statement of Facts

The Pennsylvania Department of Corrections’ administrative

remedies for inmate grievances are provided for in Department of

Corrections Administrative Directive 804. See www.cor.state.pa.us, DOC

Policies, DC-ADM 804, Inmate Grievance System Policy (“DC-ADM 804”).

This policy establishes the Consolidated Inmate Grievance Review

System, through which inmates can seek to resolve issues relating to their

incarceration. Id. The first step in the inmate grievance process is initial

review. Id. Grievances must be submitted for initial review within 15

working days after the event upon which the grievance is based. Id. After

initial review, the inmate may appeal to the superintendent of their

institution. Id. Upon completion of the initial review and the appeal from

the initial review, an inmate may seek final review with the Chief of the

Secretary’s Office of Inmate Grievances and Appeals (SOIGA). Id.

On May 8, 2020, Plaintiff filed Grievance No. 867174 regarding the

medical treatment received for the herniated disks in his lower back and

neck area. (Doc. 44-1 at 5, Official Inmate Grievance).

By Response dated May 28, 2020, Nurse Minarchick denied

Plaintiff’s grievance as follows:

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In review of your medical record, I see that you have been

assessed by multiple providers here at SCI-Mahanoy and

have been to pain management offsite. On 12/23/19, they saw

you. An outside specialist can make recommendations but are

not able to prescribe medications in the institution. The

medical director reviews any recommendations and then

orders what they deem appropriate here in the institution.

On 3/2/2020, Dr. Rodgers assessed you upon return after a

visit to neurosurgery. He informed you that if the specialist

recommended repeat studies, he would have to present it to

the Wellpath committee for approval. He notes you understood

his explanation. The notes were uploaded the next day. The

recommendation was to obtain an x-ray and MRI for you. Our

medical director ordered the x-ray. He placed a consult for the

MRI. You do have an upcoming appointment for the MRI but

you must understand that offsite diagnostics such as this may

be delayed due to the COVID pandemic. This is beyond our

control of the institution. The x-ray of your spine revealed that

you had no fractures, some demineralized bony structures,

appropriate vertebral body heights, mild disc space narrowing.

Spondylolysis not confirmed. It is noted that further evaluation

by an MRI may be used for further evaluation since x-rays are

limited evaluation tools.

On 5/6/20, sick call was expedited due to COVID 19. The

practitioner reviewed your medication renewal requests did

order them for you with the applicable co-pay fee. Medications

used to treat pain are subject to the standard copay fees. Pain

is not treated in chronic clinic such as hypertension or

diabetes. These chronic illnesses require life-sustaining

medications. Medications for pain are not in this category. It is

your responsibility to be aware of your expiration dates and

sign for sick call to allow a practitioner to evaluate you for

continued use. Pain medications are not automatically

renewed.

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You have been provided with medications, diagnostic tests,

evaluations, and have seen outside specialists to manage your

complaints of pain. This is appropriate care. Again, the

recommendations of any outside doctor are reviewed by the

physician here and deemed appropriate or not for use here

and for your treatment. You need to be aware of your

prescription start and stop dates so you can pursue evaluation

for renewal in sick call. We are waiting for your appointment of

the MRI, but this is based on the schedule of the outside

facility’s available appointment. This again is out of the control

of the institution.

The medical department cannot force a practitioner to order

medications for you. Their orders are based on their judgment

and can only be rendered by the licensed professional. The

medical department does not address monetary demands.

The allegations in this grievance are found to be without merit.

The grievance is denied.

(Doc. 44-1 at 7, Initial Review Response).

On June 30, 2020, Plaintiff appealed the initial review response to

the Facility Manager, (Doc. 44-1 at 9), who, on July 21, 2020, upheld the

decision of the grievance officer, finding “RNS Minarchik properly

investigated [Plaintiff’s] claims and provided [him] with a clear, thorough

and proper response” and that “the medical care [he is] receiving is

appropriate.” Id.

On July 28, 2020, Plaintiff filed his final appeal to the Secretary’s

Office of Inmate Grievances & Appeals (SOIGA). (Doc. 44-1 at 12,

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Appeal). By Notice to Inmate dated August 17, 2020, the SOIGA notified

Plaintiff that the final review decision would be delayed pending their

referral to the Bureau of Health Care Services as follows:

In this grievance, Inmate Showers is stating that he suffers

from herniated disks in his lower back and neck area which he

claims are causing him severe pain, loss of bodily functions,

numbness in this right arm and possible permanent nerve

damage. He claims that Dr. Rodgers and the SCI-MAH

medical staff are aware of his condition yet continue to

deny/delay proper and effective treatment. He also claims that

on 5/5/20 he was informed during pm pill line that his

prescription for a nerve blocking medication (Gabapentin) had

expired. He claims that Dr. Rodgers purposely let this expire,

as there’s no way he didn’t realize his prescription was about

to expire because he had been sending him numerous request

slips asking that his dosage of medication be increased, which

he claims was a recommendation by the Geisinger Hospital’s

Neurosurgeon. The inmate is requesting that his dosage be

increased, and Dr. Rodger’s be reprimanded. Please review

and advise.

(Doc. 44-1 at 4).

By Final Appeal decision dated November 18, 2020, the SOIGA

denied Plaintiff’s appeal as follows:

The staff at the Bureau of Health Care Services reviewed your

concern of not being provided proper medical care. They have

thoroughly reviewed your medical record and has determined

that the medical care provided was reasonable and

appropriate. Their findings concur with the initial review

response.

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Your attending practitioner makes these clinical decisions. You

are encouraged to participate in your treatment plan and to

discuss your concerns or changes of condition with your

practitioner. They found no evidence of wrongdoing.

Therefore, this office upholds the responses provided to you

and your requested relief is denied.

(Doc. 44-1 at 1, Final Appeal Decision).

IV. Discussion

The Prison Litigation Reform Act (“PLRA”) requires that a prisoner

pursue all available administrative remedies within the prison's grievance

system before bringing a civil rights action concerning prison conditions in

federal court. See 42 U.S.C. §1997e(a); Ross v. Blake, 578 U.S. 632, 136

S.Ct. 1850, 1855 (2016). “[T]he PLRA's exhaustion requirement applies to

all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

The PLRA also requires “proper exhaustion,” demanding that the

inmate follow all steps and procedural prerequisites of the applicable

institutional administrative review process. Jones v. Bock, 549 U.S. 199,

218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). “Proper

exhaustion demands compliance with an agency’s deadlines and other

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critical procedural rules because no adjudicative system can function

effectively without imposing some orderly structure on the course of its

proceedings.” Woodford, 548 U.S. at 90–91. The failure to follow the

procedural requirements of the prison’s grievance system will result in a

procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227–32 (3d

Cir. 2004).

An inmate’s failure to exhaust his administrative remedies is an

affirmative defense the defendants must plead and prove. See Jones, 549

U.S. at 216; Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018).

Once defendants establish that administrative remedies were not

exhausted prior to the inmate filing the action, the inmate must establish

that administrative remedy procedures were either unavailable to him

under Ross, or present evidence demonstrating that he did exhaust his

administrative remedies. Rinaldi, 904 F.3d at 268.

“Because of the important policies fostered by this exhaustion

requirement, it has been held that there is no futility exception to §1997e’s

exhaustion requirement.” Washington-El v. Collins, 2016 WL 5338709, at

*5 (M.D. Pa. June 21, 2016), report and recommendation adopted, 2016

WL 5339733 (M.D. Pa. Sept. 22, 2016). “Instead, courts have typically

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required across-the-board administrative exhaustion by inmate plaintiffs

who seek to pursue claims in federal court.” Id.

Additionally, the PLRA strictly requires exhaustion prior to the filing

of his complaint. See Ahmed v. Dragovich, 297 F.3d 201, 209, n. 9 (3d.

Cir. 2002); see also Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d.

Cir. 2006) (non-precedential) (“[T]here appears to be unanimous circuit

court consensus that a prisoner may not fulfill the PLRA’s exhaustion

requirement by exhausting administrative remedies after the filing of the

complaint in federal court”).

Defendants have properly raised the matter of exhaustion of

administrative remedies with respect to Plaintiff’s claims. Plaintiff’s

grievance history reveals that while Plaintiff began the administrative

process on May 8, 2020, prior to filing the instant action, he failed to wait

for the Final Appeal Decision on November 18, 2020 and, instead, filed

the instant action on October 9, 2020, prior to fully exhausting his

administrative remedies regarding his claims. Plaintiff does not dispute

this. In fact, Plaintiff states in his Supplemental Complaint that “[s]ince

October, when this action was brought by Plaintiff, new claims arised (sic)

and Plaintiff had to exhaust his administrative remedies pursuant to the

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PLRA before raising the allegations within this complaint.” (Doc. 39 at 1).

Consequently, Defendants’ move to dismiss Plaintiff’s complaint for

Plaintiff’s admitted failure to exhaust his administrative remedies as

required under the PLRA. Additionally, in his brief in opposition, Plaintiff

attempts to demonstrate that he exhausted administrative remedies,

specifically, with respect to Defendant O’Brien. (Doc. 52). Again,

unfortunately, Plaintiff’s attempt to exhaust did not occur prior to filing the

instant action, in that his initial grievance directed to Defendant was filed

on December 29, 2020, more than two months after the October 9, 2020

filing of the instant action. Id. Thus, given his submissions and admission,

it is clear that the grievance process was not complete when Plaintiff filed

this action and, therefore, dismissal for failure to exhaust is warranted. The

complaint will be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B).

In Spruill, our Court of Appeals held that congressional policy

objectives were best served by interpreting the statutory “exhaustion

requirement to include a procedural default component.” The court further

ruled that procedural default under §1997e(a) is governed by the

applicable prison grievance system, provided that the “prison grievance

system’s procedural requirements [are] not imposed in a way that offends

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the Federal Constitution or the federal policy embodied in §1997e(a).” Id.

at 231, 232.

In this case, Plaintiff’s grievance history reveals that he failed to

exhaust any administrative remedy prior to filing the instant action. Thus,

Plaintiff has sustained a procedural default.

Spruill cited with approval the Seventh Circuit decision in Pozo v.

McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Spruill, 372 F.3d at 231.

In Pozo, the Seventh Circuit ruled that “to exhaust remedies, a prisoner

must file complaints and appeals in the place, and at the time, the prison's

administrative rules require.” Pozo, 286 F.3d at 1025 (emphasis added).

Thus, Plaintiff is now foreclosed from litigating his claims in this Court.

In Spruill, the Third Circuit found that a procedural default

component to the exhaustion requirement served the following

congressional objectives: “(1) to return control of the inmate grievance

process to prison administrators; (2) to encourage development of

administrative record, and perhaps settlements, within the inmate

grievance process; and (3) to reduce the burden on the federal courts by

erecting barriers to frivolous prisoner lawsuits.” 372 F.3d at 230. In Pusey

v. Belanger, No. Civ. 02-351, 2004 WL 2075472 at *2-3 (D. Del. Sept. 14,

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2004), the court applied Spruill to dismiss an inmate's action for failure to

timely pursue an administrative remedy over the inmate's objection that he

did not believe the administrative remedy program operating in Delaware

covered his grievance. In Berry v. Kerik, 366 F.3d 85, 86-88 (2d Cir. 2004),

the court affirmed the dismissal of an inmate’s action with prejudice where

the inmate had failed to offer appropriate justification for the failure to

timely pursue administrative grievances. In Ross v. County of Bernalillo,

365 F.3d 1181, 1186 (10th Cir. 2004), the court embraced the holding in

Pozo, stating that “[a] prison procedure that is procedurally barred and

thus is unavailable to a prisoner is not thereby considered exhausted.”

These precedents support this Court’s decision to dismiss the complaint

for failure to exhaust administrative remedies.

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V. Conclusion

For the reasons set forth above, the Court will grant Defendants’

motions to dismiss for Plaintiff’s failure to exhaust administrative remedies.

A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 17, 2022

20-1868-01

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