Cummings v. Schickvam

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM CUMMINGS, : CIVIL ACTION NO. 1:21-cv-1006

Plaintiff : (MANNION, D.J.)

(CARSLON, M.J.)

v. :

J. SCHICKVAM, et al., :

Defendants :

MEMORANDUM

Presently before the court is Magistrate Judge Martin C. Carlson’s

March 22, 2022 report and recommendation (hereinafter “report”), (Doc. 97),

which recommends the granting of the motion to dismiss filed by defendant

Dr. Andrew Newton regarding the 8th Amendment claims raised against him

by the pro se prisoner William Cummings in his amended complaint, (Doc.

63). Specifically, plaintiff alleges that Dr. Newton, along with other medical

staff at the prison, periodically deprived him of a safety blanket for four years,

(2018-2021), when he was housed in a psychiatric observation cell despite

the fact that he was entitled to a blanket under DOC policy.

I. BACKGROUND

Since the complete background of this case is stated in Judge

Carlson’s reports, (Docs. 67, 86 & 97), as well as in the court’s prior

Memorandum, (Doc. 74), it will not be fully repeated herein.

As a brief backdrop, the court has only allowed this case to proceed

with respect to the allegations contained in paragraphs 9, 15-17, 19, 21, 22,

23, 30, 31, 32, 39 and 46 of the plaintiff’s amended complaint, and against

only 22 out of the 137 individual defendants named in the pleading. On

January 4, 2022, the court adopted the prior report of Judge Carlson, in its

entirety, (Doc. 67), recommending that only the stated allegations and

defendants proceed and, the plaintiff’s objections to it were overruled.

Additionally, with respect to all of the claims and allegations which were

subject to dismissal, the court dismissed them with prejudice and without

further leave to amend since plaintiff had already filed two pleadings. Also,

plaintiff’s motion for leave to file a second amended complaint was denied.

The amended complaint was then served upon the remaining defendants to

respond to the remaining claims.

Dr. Newton then filed his instant motion to dismiss on January 18,

2022, (Doc. 83), seeking the court dismiss the claims against him. Dr.

Newton simultaneously filed his brief in support of his motion. (Doc. 84). To

date, no brief in opposition to Dr. Newton was filed by the plaintiff.

After Judge Carlson recommended that Dr. Newton’s motion be

granted, plaintiff filed objections to the report and a brief in support of his

objections. (Docs. 98 & 99). For the following reasons, the report will be

adopted and plaintiff’s objections will be overruled.

II. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court reviews de novo those portions of the

report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue,

649 F.3d 193, 195 (3d Cir. 2011). Although the standard of review is de novo,

the extent of review is committed to the sound discretion of the district judge

and the court may rely on the magistrate judge’s recommendations to the

extent it deems proper. Rieder v. Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report to which no objection is made, the court

should, as a matter of good practice, “satisfy itself that there is no clear error

on the face of the record in order to accept the recommendation.” Fed. R.

Civ. P. 72(b), advisory committee notes. See also Univac Dental Co. v.

Dentsply Int’l Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citing

Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining that

judges should give some review to every report and recommendation)).

Nonetheless, regardless of whether or not timely objections are made to the

report, the district court may accept, not accept, or modify, in whole or in part,

the magistrate judge’s findings or recommendations. 28 U.S.C. §636(b)(1);

Fed. R. Civ. P. 72(b)(3).

III. DISCUSSION

The instant report states all of the correct legal standards with respect

to its recommendations, and they will not be repeated herein.

The report states three reasons why Dr. Newton’s motion to dismiss

should be granted.

First, the report recommends that since the plaintiff failed to file a timely

brief in opposition to the Dr. Newton’s motion, he should be deemed as not

opposing it, and the motion should be granted. In his objections, plaintiff

responds that although he received the court’s Order directing him to

respond to the motion to dismiss, (Doc. 89), he has been in and out of a

psychiatric observation cell at the prison after he received the Order

seemingly making it difficult to file his opposition brief. In any event, plaintiff

states that he did give his brief to prison staff to mail to the court about

February 5, 2022, but he contends that the defendants stopped his brief from

going to the court.

Although plaintiff offers no support for his allegations that defendants

thwarted his opposition brief to Dr. Newton’s motion from being filed, the

court will not grant the motion to dismiss based on plaintiff’s failure to oppose

the motion.

Second, the report recommends that dismissal of Dr. Newton is

warranted under Fed.R.Civ.P. 41(b) for plaintiff’s failure to prosecute his

case against this defendant. The report then correctly analyzes the Poulis

factors and concludes that all of the factors balance in favor the dismissal of

plaintiff’s case with respect to Dr. Newton.

Similar to the court’s finding regarding the first basis in the report to

grant Dr. Newton’s motion, the court will refrain from granting the motion

based on Rule 41(b) since plaintiff has responded to the report and offered

an explanation as to why his opposition brief was not filed. It is thus clear

that plaintiff has not abandoned his case and that his conduct was allegedly

not willful disobedience of the court’s Order directing him to respond to the

motion to dismiss.

The third reason discussed in the report for recommending that Dr.

Newton’s motion be granted is based on the merits and finds that the

plaintiff’s allegations against this defendant fail to state a cognizable 8th

Amendment claim. In his brief filed with his objections to the report, (Doc.

99), plaintiff argues why his 8th Amendment claim against Dr. Newton should

proceed.

The court will construe plaintiff’s present brief as his opposition to Dr.

Newton’s motion to dismiss. As such, the court will consider the report to the

extent it analyzes the motion to dismiss on its merits.

The court will adopt the report insofar as it recommends that Dr.

Newton’s motion to dismiss be granted on its merits. As the report states,

plaintiff’s sole allegation against Dr. Newton is contained in paragraph 19 of

his amended complaint, (Doc. 63). Since the report states the allegations of

paragraph 19, they are not fully repeated. (Doc. 97 at 12). Suffice to say that

plaintiff alleges that contrary to DOC Policy, “on several occasions [over a 4-

year period], Nurses, Dan Zaremba, Chad Yordy, Poccione, Turner, Robert

Cress, W. Knappenberg, and Doctor[s] Newton and Chuma refused to issue

[him] a [safety] blanket” when he was housed in a psychiatric observation

cell.

After correctly discussing the legal standards of an 8th Amendment

claim, the report concludes that “Cummings’ complaint simply describes

several instances over a four year period in which it is alleged that the plaintiff

did not receive a blanket, Cummings has not set forth well-pleaded facts

showing that he was denied the minimal measure of life’s necessities and

this Eighth Amendment claim fails as a matter of law.” (Doc. 97 at 14).

The report correctly recommends the dismissal the deliberate-

indifference claims against Dr. Newton. “The Eighth Amendment prohibits

prison officials from being deliberately indifferent to an inmate’s serious

medical needs” and, “[t]o act with deliberate indifference to serious medical

needs is to recklessly disregard a substantial risk of serious harm.” Hayes v.

Gilmore, 802 Fed.Appx. 84, 88 (3d Cir. 2020) (internal citations omitted).

Even if plaintiff’s mental health needs were serious, Dr. Newton’s motion to

dismiss will be granted because the deprivation of a blanket occasionally

over a 4-year period does not state a plausible claim of deliberate

indifference.

Additionally, plaintiff’s allegations against Dr. Newton do not sufficiently

state his personal involvement with respect to the 8th Amendment claim.

“Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence”, and “[a]llegations of

participation or actual knowledge and acquiescence ... must be made with

appropriate particularity.” Id. at 87. (internal citation omitted). There is no

particularity with respect to plaintiff’s allegations against Dr. Newton.

Finally, plaintiff does not allege that his psychiatric treatment by Dr.

Newton fell below any professional standards of care, and he fails to state

any actionable constitutional violation by the doctor.

The court will not allow plaintiff to amend his claims against Dr. Newton

any further since he has had already been allowed to file amended pleadings

and any additional amendment would be unduly prejudicial to Dr. Newton.

The court has considered the findings in Judge Carlson’s report

recommending that Dr. Newton’s motion to dismiss be granted on its merits,

and finds no clear error of law. As such, the court agrees with the sound

reasoning which has led Judge Carlson to the conclusions in his report.

IV. CONCLUSION

Based upon the above reasoning, the court will adopt Judge Carlson’s

report and recommendation, (Doc. 97), to the extent that it recommends that

Dr. Newton’s motion to dismiss be granted on its merits, and overrule

plaintiff’s objections, (Docs. 98 & 99). Dr. Newton’s motion to dismiss

plaintiff’s claims against him, (Doc. 83), will be granted, and this defendant

will be dismissed from this case. An appropriate order follows.

s/Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: April 4, 2022

21-1006-04