MCCULLOUGH v. RANSOM

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ANTON MCCULLOUGH, :

Plaintiff : CIVIL ACTION NO. 3:21-0279

v. : (JUDGE MANNION)

KEVIN RANSOM, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, Anton McCullough, an inmate confined at the State

Correctional Institution, Dallas (“SCI-Dallas”), Pennsylvania, filed the above

caption civil rights action pursuant to 42 U.S.C. §1983. (Doc. 2). The named

Defendants are SCI-Dallas Superintendent Kevin Ransom, Wellpath, and

Wellpath CEO Jorge Dominicis. Id. Plaintiff complains about conditions at

SCI-Dallas as they relate to the COVID-19 pandemic. Id.

Presently before the Court are Defendants’ motions to dismiss

Plaintiff’s complaint. (Docs. 19, 22). The motions are ripe for disposition. For

the reasons that follow, the Court will grant Defendants’ motions to dismiss.

II. ALLEGATIONS IN COMPLAINT

Plaintiff’s compliant states in toto:

Governor Tom Wolf announced a public health crisis in

Pennsylvania on March 6, 2020, caused by the novel coronavirus

(COVID-19). The World Health Organization announced a

Covid-19 pandemic on March 11, 2020 making the

aforementioned public health crisis worldwide.

At the aforesaid time of occurrence Defendants Ransom,

Wellpath and Dominicis all had actual and constructive

knowledge of COVID-19 causing a public and worldwide health

crisis from reports issued by the Federal Centers for Disease

Control and Prevention and the Commonwealth Department of

Health. All said Defendants, thus, had constitutionally mandated

obligations to take timely reasonable measures to protect

Plaintiff while in their custody, from becoming exposed to and

infected by COVID-19, a disease which was at the time of

occurrence, remote and beyond the perimeter of SCI-Dallas.

However, Defendants were contrarily gross negligent towards

Plaintiff’s safety and general well-being by consciously

disregarding their aforementioned constitutional obligations, in a

careless and reckless manner by way of:

A. Failing to establish and maintain timely and preventive

measures of enforcing their correctional and medical

staff to wear safety masks and social distance while

inside and outside of facility.

B. Failing to establish and maintain timely and preventive

measures of enforcing their correctional and medical

staff to take COVID-19 tests on a routine daily basis

before entering the facility.

By way of the Defendants’ aforesaid acts, and or omissions, on

about the 23rd day of December, 2020, Plaintiff tested positive

with COVID-19. At the time of testing positive with COVID-19,

Plaintiff was housed within the Restricted Housing Unit at SCI-

Dallas without any cellmates, thus, the transmitted disease,

without a doubt, derived from a SCI-Dallas employee.

Ransom additionally failed to:

A. Separate positive and negative cases.

B. Enforce disinfect cleaning of cells, showers, phones,

and handcuffs.

By way of Ransom’s failure to act, aforesaid Plaintiff was forced

to use the same objects and confined areas as those to whom

were positive. Ransom had additionally ceased Plaintiff’s access

to outdoor recreation to which Plaintiff was deprived of fresh air

and exercise since August of 2020. As a result of being deprived

of outdoor recreation for several months without a legitimate

reason, but an exaggerated response to extremely late COVID-

19 preventive measure, Plaintiff:

A. Was deprived of fresh air for his lungs and overall

health.

B. Was confined to a small cell without adequate space

or ventilation for 24 hours a day without being effectively

able to exercise physically.

C. Was forced to remain in a small cell for 24 hours daily

while music blared into this cell from morning to night,

with no ability to concentrate, think or otherwise

rehabilitate effectively due to constantly being

oppressed and irritated.

Wellpath and Dominicis has also failed to obtain vaccines for

Plaintiff from either Pfizer or Moderna, which is drug

manufacturers, or provide him antibody treatment while sick with

COVID-19.

Plaintiff has underlying health conditions and now that he has

contracted COVID-19 he is at risk of severe health complications

and death. As a result of Defendants’ acts and omissions,

Plaintiff was subject to:

A. Contracting COVID-19.

B. Adverse impact upon his overall health.

C. Detriment to his psychological and physical well-

being.

D. Deprivation of outdoor exercise and fresh air for

several months.

E. Incurring future medical expenses.

F. Living under inhumane and health hazardous

conditions.

G. Being denied access to a vaccine or antibody

treatment for the effective treatment of COVID-19.

(Doc. 2, complaint). For relief, Plaintiff seeks compensatory and punitive

damages, as well as declaratory and injunctive relief in the way of release

from prison. Id.

III. DEPARTMENT OF CORRECTIONS (“DOC”)’S RESPONSE TO COVID-19.

The Court takes judicial notice of the preventative measures enacted

by the DOC since the start of the COVID-19 pandemic in early 2020. See

COVID-19 and the DOC, https://www.cor.pa.gov/PAges/COVID-19.aspx.

In-person visitation has been suspended since March 13, 2020. See id. “All

new inmates are being screened before being admitted into prison,” and the

DOC is not accepting inmates with flu-like symptoms from county institutions.

See id. The DOC has provided inmates with disposable masks and “strongly

encourage[s] inmates” to use them. See id. Moreover, inmates “are being

provided materials to clean their cell[s] daily. Materials will be provided to

them on a daily basis.” See id. Institutions are conducting town hall meetings

with inmates “to review sanitation guidelines and COVID-19 information for

awareness.” See id. Correctional Industries has increased the production of

anti-bacterial soap, and soap is provided free of charge to all inmates. See

id.

With respect to staff members, all facilities conduct “enhanced

screening for all individuals entering a facility. No one will be permitted to

enter a facility who has a fever over 100 degrees or exhibits signs of cold or

flu.” See id. Staff are required to wear masks, and “institutions have provided

each staff member with a cloth mask for use.” See id. Daily updates are

provided to all staff members, and PPE has been provided to all staff. See

id. Employees are advised to stay home if they are sick. See id.

Each institution “has plans in place for quarantine if an inmate tests

positive.” See id. All gyms, barber shops, and cosmetology areas have been

closed until further notice, as have the general libraries. See id. DOC officials

have also reduced the inmate population where they can by furloughing

paroled individuals from centers to home plans, maximizing parole releases,

expediting the release process for anyone with a pending home plan, and

reviewing inmates who are beyond their minimum sentences. See id.

The DOC has also begun to vaccinate inmates and staff. “Non-medical

staff and inmates are in Phase 1B, with vulnerable inmates being prioritized.”

See id. All inmates will be offered the vaccine. See id. No one will be required

to receive the vaccine, but the DOC will focus on “encouraging vaccination

for those inmates in the long-term care setting who are most vulnerable.”

See id.

IV. MOTION TO DISMISS

Federal notice and pleading rules require the complaint to provide the

defendant notice of the claim and the grounds upon which it rests. See

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff

must present facts that, accepted as true, demonstrate a plausible right to

relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that

the pleader is entitled to relief,” a complaint may nevertheless be dismissed

under Federal Rule of Civil Procedure 12(b)(6) for its “failure to state a claim

upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court

accepts as true all factual allegations in the complaint and all reasonable

inferences that can be drawn from them, viewed in the light most favorable

to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show

that their claims are facially plausible. See Iqbal, 556 U.S. at 678; 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.’ ” See

Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a

district court must take when reviewing a 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)

(internal citations and quotation marks omitted). The Third Circuit has

specified that 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.”

See 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)).

In the context of pro se prisoner litigation, the 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” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support

of his claim that would entitle him to relief. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972).

V. DISCUSSION

A. Claims Against Defendant Wellpath

Wellpath has contracted with the DOC to provide medical care to

inmates housed at SCI-Dallas and other state institutions. The Third Circuit,

however, has held that “a private health care company providing services to

inmates ‘cannot be held responsible for the acts of its employees under a

theory of respondeat superior or vicarious liability.’” Sims v. Wexford Health

Sources, 635 F. App’x 16, 20 (3d Cir. 2015) (quoting Natale v. Camden Cty.

Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003)). Rather, a plaintiff must

allege that the private healthcare company had “a relevant . . . policy or

custom, and that the policy caused the constitutional violation [he] allege[s].”

Natale, 318 F.3d at 584); see also Lomax v. City of Philadelphia, No. 13-cv-

1078, 2017 WL 1177095, at *3 (E.D. Pa. Mar. 29, 2017) (“Because

[defendant] is a private company contracted by a prison to provide health

care for inmates, . . . it can only be held liable for constitutional violations if it

has a custom or policy exhibiting deliberate indifference to a prisoner’s

serious medical needs.”). Here, Plaintiff fails to allege any facts

demonstrating that the alleged violations of his Eighth Amendment rights

resulted from any policies, practices, or customs set forth by Defendant

Wellpath. See McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009)

(noting that to assert a plausible claim, the plaintiff “must identify [the] custom

or policy and specify what exactly that custom or policy was”). For that

reason alone, Plaintiff’s claims against Defendant Wellpath are subject to

dismissal.

B. Claims Against Defendants Ransom, and Dominicis

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 violates his rights. See Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988); see also Solan v. Ranck, 326 F. App’x

97, 100 (3d Cir. 2009).

Here, it appears that Plaintiff seeks to proceed against Defendants

Ransom and Dominicis based upon their respective supervisory positions as

Superintendent of SCI-Dallas and as Chief Executive Officer for Wellpath.

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 Defendant Ransom. Plaintiff fails to allege

facts indicating that Defendant Ransom personally witnessed staff members

not wearing face masks and taking COVID-19 tests and condoned or

acquiesced in this behavior. Likewise, there are no facts suggesting that

Defendants Ransom directed staff members to not wear face masks and not

take COVID-19 tests. While supervisors cannot encourage constitutional

violations, a supervisor has “no affirmative constitutional duty to train,

supervise or discipline so as to prevent such conduct.” See Chinchello v.

Fenton, 805 F.2d 126, 133 (3d Cir. 1986). The Court, therefore, agrees that

Plaintiff has failed to set forth plausible supervisory liability claims against

Defendant Ransom.

Plaintiff has also named Dominicis, the CEO of Wellpath, as a

Defendant in this matter. The complaint, however, is completely devoid of

any facts alleging how Defendant Dominicis violated Plaintiff’s constitutional

rights. Rather, it appears that Plaintiff has named Defendant Dominicis solely

because of his position as CEO of Wellpath. Plaintiff, therefore, has failed to

allege the requisite personal involvement to state a plausible claim for relief

against Defendant Dominicis. See Foye v. Wexford Health Sources, Inc.,

675 F. App’x 210, 215 (3d Cir. 2017).

C. Eighth Amendment Claims

In order to succeed on a claim as to one’s conditions of confinement,

a plaintiff must establish that: “(1) he was incarcerated under conditions

imposing a substantial risk of serious harm, (2) the defendant-official was

deliberately indifferent to that substantial risk to his health and safety, and

(3) the defendant-official’s deliberate indifference caused him harm.” See

Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2015), abrogated in party on other

grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020). “[T]he Constitution

does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337,

349 (1981). Therefore, conditions of imprisonment violate the Eighth

Amendment only if they, “alone or in combination . . . deprive inmates of the

minimal civilized measures of life’s necessities.” See id. at 347. Such

necessities include “adequate food, clothing, shelter, and medical care.” See

Farmer v. Brennan, 511 U.S. 825, 832 (1994). Thus, “extreme deprivations

are required to make out a conditions-of-confinement claim.” See Hudson v.

McMillian, 503 U.S. 1, 9 (1992). However, “[s]ome conditions of confinement

may establish an Eighth Amendment violation ‘in combination’ when each

would not do so alone, but only when they have a mutually enforcing effect

that produces the deprivation of a single, identifiable human need such as

food, warmth, or exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d

368, 372 (3d Cir. 2019) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)

and Rhodes, 452 U.S. at 347).

In the instant case, Defendants do not dispute that the COVID-19

pandemic constitutes a substantial risk of harm to inmates. (Doc. 20 at 8);

see also Dixon v. United States, No. 20-5994, 2020 WL 3249231, at *3

(D.N.J. June 16, 2020) (concluding that the inmate-plaintiff could meet the

objective prong of an Eighth Amendment claim “because COVID-19 is a very

contagious virus that can cause serious health complications or death in

vulnerable people”). The Court, however, agrees with Defendants that

Plaintiff has failed to allege facts suggesting that Defendants demonstrated

deliberate indifference to the risk posed by COVID-19. As noted supra, the

DOC has adopted detailed preventative steps to mitigate the risk to inmates

and staff and to control the spread of COVID-19 through the state

correctional institutions. The Court may take judicial notice of this

information, as it is publicly available on a governmental website. See

Vanderklok v. United States, 868 F.3d 189, 205 (3d Cir. 2017). “A review of

these steps suggests that DOC officials, including Defendants, have not

acted unreasonably with respect to the threat posed by COVID-19 and

instead have instituted measures to safeguard the entire inmate population,

including Plaintiff.” Bevins v . Kauffman, No. 1:20-cv-2012, 2021 WL 322168,

at *5 (M.D. Pa. Feb. 1, 2021).

While the Court understands Plaintiff’s legitimate concerns regarding

the COVID-19 pandemic, it agrees with the numerous courts throughout the

nation that have concluded that similar allegations do not support a plausible

inference that officials have demonstrated deliberate indifference to inmates’

Eighth Amendment rights. See, e.g., Swain v. Junior, 958 F.3d 1081, 1089

(11th Cir. 2020) (granting defendants’ motion to stay the district court’s grant

of a preliminary injunction on the basis that, inter alia, the plaintiffs had not

demonstrated that defendants were deliberately indifferent to the risk posed

by COVID-19 because the correctional facility had “implemented many

measures to curb the spread of the virus”); Bevins, 2021 WL 322168, at *5;

Allen v. Wetzel, 2021 WL 2254997 at *7 (M.D. Pa. June 3, 2021) (finding that

prison officials did not exhibit deliberate indifference to inmate’s Eighth

Amendment rights); Wilkins v. Wolf, No. 1:20-cv-2450, 2021 WL 1578250,

at *6-7 (M.D. Pa. Apr. 22, 2021) (finding that inmate-plaintiff had failed to

state an Eighth Amendment claim regarding an alleged inadequate response

to the COVID-19 pandemic); Wylie v. Bonner, No. 2:20-cv-2593-TLP-tmp,

2021 WL 261280, at *4-6 (W.D. Tenn. Jan. 26, 2021) (finding that inmate-

plaintiff had failed to state an Eighth Amendment conditions of confinement

claim because he failed to allege that staff knew of and disregarded the risks

posed by COVID-19); Shokr v. LeBlanc, No. 20-488, 2020 WL 8093228, at

* (M.D. La. Dec. 14, 2020) (concluding that the inmate-plaintiff had failed to

state a plausible Eighth Amendment claim because measures were being

taken to combat the COVID-19 virus); Kesling v. Tewalt, 476 F. Supp. 3d

1077, 1086-88 (D. Id. 2020) (concluding that inmate-plaintiff’s amended

complaint failed to set forth a plausible Eighth Amendment claim when prison

officials had developed and instituted policies to curb the spread of COVID-

19); McKissic v. Barr, No. 1:20-cv-526, 2020 WL 3496432, at *6 (W.D. Mich.

June 29, 2020) (concluding that inmate-plaintiff failed to state an Eighth

Amendment claim where defendants had taken “significant measures . . . to

secure prisoner safety and prevent infection” and the plaintiff’s “speculation

about the mere possibility that he will become infected does not rise to the

level of an Eighth Amendment violation”). Indeed, “the Eighth Amendment

does not require perfection on the part of prison officials.” See Wylie, 2021

WL 261280, at *6.

The Court is sympathetic to the fact that Plaintiff contracted COVID-

19. Plaintiff’s complaint, however, is devoid of any allegations that he

experienced any serious symptoms upon contracting COVID-19. From the

complaint, as pled, the Court “cannot conclude that, when faced with a

perfect storm of a contagious virus and the space constraints inherent in a

correctional facility, [Defendants] here acted unreasonably by ‘doing their

best.’” See Swain v. Junior, 961 F.3d 1276, 1289 (11th Cir. 2020). The Court,

therefore, will grant Defendants’ motions to dismiss and dismiss Plaintiff’s

complaint for failure to state a plausible Eighth Amendment claim.

D. Administration Exhaustion

Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner must

pursue all available avenues of relief through the applicable grievance

system before initiating a federal civil rights action. See 42 U.S.C. §1997e(a);

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust

irrespective of the forms of relief sought and offered through administrative

avenues.”). Section 1997e provides, in relevant part, that “[n]o action shall

be brought with respect to prison conditions under [S]ection 1983 of this title,

or any other [f]ederal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” See 42 U.S.C. §1997e(a). The exhaustion requirement is

mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see

also Booth, 532 U.S. at 742 (holding that the exhaustion requirement of the

PLRA applies to grievance procedures “regardless of the relief offered

through administrative procedures”).

The Third Circuit has further provided that there is no futility exception

to Section 1997e’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d

65, 75-76 (3d Cir. 2000). Courts have typically required across-the-board

exhaustion by inmates seeking to pursue claims in federal court. See id.

Additionally, courts have interpreted this exhaustion requirement as

including a procedural default component, holding that inmates must fully

satisfy the administrative requirements of the inmate grievance process

before proceeding with a claim in federal court. See Spruill v. Gillis, 372 F.3d

218 (3d Cir. 2004); see also Oriakhi v. United States, 165 F. App’x 991, 993

(3d Cir. 2006) (providing that “there 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”). Courts have also concluded that inmates who fail to complete

the prison grievance process in a full and timely manner are barred from

subsequently litigating claims in federal court. See, e.g., Bolla v. Strickland,

304 F. App’x 22 (3d Cir. 2008).

This broad rule favoring full exhaustion allows for a narrowly defined

exception; if the actions of prison officials directly caused the inmate’s

procedural default as to a grievance, the inmate will not be required to

comply strictly with this exhaustion requirement. See Camp v. Brennan, 219

F.3d 279 (3d Cir. 2000). However, courts also recognize a clear “reluctance

to invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the

statute requires.” See Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002).

Thus, an inmate’s failure to exhaust will be excused only “under certain

limited circumstances,” see Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir.

2005), and an inmate may defeat a claim of failure to exhaust only by

showing “he was misled or that there was some extraordinary reason he was

prevented from complying with the statutory mandate.” See Warman, 49 F.

App’x at 368.

In the absence of competent proof that an inmate was misled by

corrections officials, or some other extraordinary circumstances warranting

a departure from strict compliance with the exhaustion requirement, courts

frequently reject inmate requests for their failure to exhaust to be excused.

An inmate, therefore, may not excuse a failure to comply with these

grievance procedures in a timely manner by simply claiming that his efforts

constituted “substantial compliance” with this statutory exhaustion

requirement. See Harris, 149 F. App’x at 59. Furthermore, an inmate may

not avoid this exhaustion requirement by merely alleging that the

administrative policies were not clearly explained to him. See Warman, 49

F. App’x at 368. Consequently, an inmate’s confusion regarding

these grievances procedures does not, alone, excuse a failure to exhaust.

See Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003); see also Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that

‘ignorance of the law, even for an incarcerated pro se petitioner, generally

does not excuse prompt filing.’” (citations omitted)).

Recently, the Supreme Court considered what renders administrative

remedies unavailable to an inmate such that a failure to exhaust may be

excused. See Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted “three

kinds of circumstances in which an administrative remedy, although officially

on the books, is not capable of use to obtain relief.” See id. at 1859. First, an

administrative procedure is not available “when (despite what regulations or

guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved

inmates.” See id. Second, a procedure is not available when it is “so opaque

that it becomes, practically speaking, incapable of use.” See id. Finally, a

procedure is unavailable when “prison administrators thwart inmates from

taking advantage of a grievance process through machination,

misinterpretation, or intimidation.” See id. at 1860. However, “once the

defendant has established that the inmate failed to resort to administrative

remedies, the onus falls on the inmate to show that such remedies were

unavailable to him.” See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir.

2018). The Third Circuit recently established that:

to defeat a failure-to-exhaust defense based on a

misrepresentation by prison staff, an inmate must show (1) that

the misrepresentation is one which a reasonable inmate would

be entitled to rely on and sufficiently misleading to interfere with

a reasonable inmate’s use of the grievance process, and (2) that

the inmate was actually misled by the misrepresentation.

Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).

Defendants Wellpath and Dominicis maintain that they are entitled to

dismissal of Plaintiff’s complaint as his grievance history reveals that Plaintiff

has failed to file a single grievance related to his medical care that was

appealed to final review. (Doc. 23-2). Plaintiff does not refute this in his brief

in opposition. Plaintiff, therefore, has not refuted the defense that he failed

to properly exhaust the claims he raises in his instant complaint regarding

the DOC’s response to the COVID-19 pandemic. Accordingly, because the

PLRA requires full and proper exhaustion prior to the initiation of Plaintiff’s

claims in federal court, and this Court cannot excuse compliance with those

requirements, Defendants Wellpath and Dominicis are entitled to dismissal

on the basis that Plaintiff failed to properly exhaust his administrative

remedies.

VI. LEAVE TO AMEND

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be inequitable

or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Here, it is clear from the facts alleged in the pro se complaint that any

attempt to amend the plaintiff’s §1983 claims against the named Defendants

would be futile. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Thus,

the Court will dismiss the Plaintiff’s §1983 claims without leave to amend.

VII. CONCLUSION

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

without leave to amend. (Doc. 19, 22.) A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 17, 2022

21-0279-01