# Forrest v. Wetzel

> District Court, M.D. Pennsylvania · September 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10412275

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 22, 2022
- **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/10412275

## How later opinions describe it (automated extraction)

- finding the filing of a grievance is not enough to show the actual knowledge necessary for personal involvement
- explaining that Universal Declaration is simply a statement of principles and not a treaty or international agreement that would impose legal obligations.

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL FORREST, : Civil No. 3:17-cv-01777
:
Plaintiff, :
:
v. :
:
JOHN WETZEL, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court are cross-motions for summary judgment, and Plaintiff’s
motion for a protective order. Plaintiff brings claims under 42 U.S.C. § 1983
based on his medical treatment and housing while he was incarcerated at the State
Correctional Institute Mahanoy, in Frackville, Pennsylvania (“SCI-Mahanoy”).
Plaintiff alleges that he required medical equipment to ambulate safely in the
institution’s general population and he was denied this equipment. Since he was
denied this equipment, he refused to be placed in the general population. Since he
refused to be placed in the general population, Plaintiff was placed in the restricted
housing unit (“RHU”), which he amounts to solitary confinement. He also alleges
that he was denied proper treatment for his other medical impairments, including
Hepatitis C. The court has reviewed the evidence submitted by the parties and
their briefing. While the court understands the frustration Plaintiff experienced
due to his continued detainment in the RHU for what he felt was a punishment for
being disabled, he has failed to present evidence to establish that Defendants
violated his constitutional rights. Furthermore, he repeatedly refused treatment and

refused to be placed in general population. Therefore, the damages he alleges were
the result of his own refusals rather than the result of Defendants’ actions.
Therefore, the court will deny Plaintiff’s motion for summary judgment and grant

Defendants’ motions for summary judgment. Additionally, the court will deny
Plaintiff’s motion for protective order as it is concerned with his current housing at
SCI-Coal Township, which is not at issue before the court.
PROCEDURAL BACKGROUND

Plaintiff, an inmate previously housed at SCI-Mahanoy,1 initiated this action
in October of 2017 and is proceeding in form pauperis. (Docs. 1, 16.) Plaintiff
filed an amended complaint in November of 2017. (Doc. 9.) The amended
complaint names eight defendants: (1) John Wetzel, Secretary of the Pennsylvania

Department of Corrections (“Wetzel”); (2) Theresa Delbalso, Superintendent of
SCI-Mahanoy (“Delbalso”); (3) Deputy Mason, Deputy of Regional Eastern
District of Pennsylvania Department of Corrections (“Mason”); (4) Richard D.

Roller,2 Corrections Facility Maintenance Unit Manager at SCI-Mahanoy

1 Plaintiff is currently housed at the State Correctional Institute at Coal Township, Pennsylvania.

2 In his responsive briefing, Plaintiff argues that he never named “Roller” as a defendant and
argues that “Silvas” was named as a defendant before the case was transferred to the undersigned
judicial officer. (Doc. 353, p. 15.) Plaintiff’s amended complaint clearly sets forth the eight
defendants named above. He identifies Defendant Roller as “Richard D. Holle”, but also
(“Roller”); (5) Christopher Oppman,3 Director of Burueau of Healthcare Services
at Pennsylvania Department of Corrections (“Oppman”); (6) Carl Keldie, Chief

Medical Officer of Correct Care Solutions (“Keldie”); (7) Correct Care Solutions,
Corporate Medical Health Care Provider (“CCS”); and (8) Shaista Khanum,4
Clinical Physician Employed at SCI-Mahanoy (“Khanum”). (Doc. 9, pp. 2–4.)5

Despite not being a named defendant in the amended complaint, SCI-Mahanoy
was served with the amended complaint and is represented by counsel. (Docs. 30,
40.)
In the amended complaint, Plaintiff brings First, Fourth, Eighth and

Fourteenth Amendment claims. (Doc. 9, ¶¶ 30–33.) Additionally, Plaintiff raises a
claim under the Universal Declaration of Human Rights, Article Five, Covenant
Against Torture. (Id., ¶ 31.)

On May 21, 2020, Plaintiff was granted leave to file a supplement to his
amended complaint for the limited purpose of raising a First Amendment

provides his title as Corrections Facility Maintenance Unit Manager at SCI-Mahanoy. (Doc. 9.)
Richard Roller was the Corrections Facility Maintenance Unit Manager at SCI-Mahanoy through
May 2018. (Doc. 254-4, p. 3.) Therefore, he is a named defendant in Plaintiff’s amended
complaint. A Joseph Sliva was named as a defendant in Plaintiff’s supplemental complaint.
(Doc. 258.) However, that pleading was stricken from the record. (Doc. 392.) Therefore,
Joseph Sliva is not a defendant in this case.

3 Plaintiff misspelled this Defendant’s surname as “Cappman.”

4 Defense counsel for the contract medical care provider and its employees, has identified “Dr.
K” as Dr. Shaista Khanum.

5 For ease of reference, the court utilizes the page numbers from the CM/ECF header.
retaliation claim against Defendants. (Doc. 247.) Plaintiff filed a pleading that far
exceeded this limited purpose by naming an additional ten defendants and raising

claims previously excluded by the court. (Doc. 258.) On April 22, 2021, the court
entered an order striking the supplemental complaint from the record. (Doc. 392.)
Plaintiff has filed a motion for summary judgment and brief in support.

(Docs. 403, 435.) Likewise, Defendants have filed motions for summary judgment
and briefs in support. (Docs. 521, 523, 525, 532.) The parties have had an
opportunity to respond and reply and the cross-motions are ripe to be addressed by
this court.

JURISDICTION AND VENUE
The court has federal question jurisdiction over the complaint as it asserts
claims under 42 U.S.C. § 1983. See 28 U.S.C. § 1331. Venue is appropriate
because all actions detailed in the amended complaint occurred within the Middle

District of Pennsylvania. 28 U.S.C. § 1391(b)(2).
STANDARD
A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of
the dispute “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is
not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A
dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.” Thomas v.
Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts
in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288
(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”
or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the
court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.
The party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or
denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that
there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).
Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
A. Facts Material to Plaintiff’s Claims6
1. Plaintiff

Plaintiff was transferred to SCI-Mahanoy as a permanent transfer on
September 15, 2015. (Doc. 526, ¶ 2.) He was 56 years old and his conditions
included seizures, right leg paralysis, blindness in left eye, and
questionable/possible glaucoma. (Id.) On September 18, 2015, Plaintiff requested

his back and leg braces from Albert Einstein Medical Center and reported that he
required name brand prescriptions for his epilepsy. (Doc. 525-2, p. 229.) The
chart notes state that Plaintiff’s past medical records were reviewed and there were

conflicting motor and sensory exams and indications of possible manipulation and
malingering. (Id., pp. 226–27.)
While at the Albert Einstein Healthcare Network in February of 2007,

Plaintiff needed a back brace, a right leg brace, and crutches. (Doc. 403-9, p. 3.)
However, in subsequent physician’s orders while in state custody, it is noted that
he requires a wheelchair for long distances, but no braces or crutches are
mentioned. (Doc. 403-3, pp. 19, 23 & Doc. 403-5, p. 52.)

6 In accordance with the court’s Local Rules, Defendants have filed their respective statements of
material facts. (Docs. 522, 526.) Plaintiff included a statement of alleged facts in his brief in
support of his motion for summary judgment. (Doc. 535.) From those statements, and the
evidence submitted by the parties, the court has culled the facts in this matter and has set forth
those facts in this section.
Upon transfer to SCI-Mahanoy, Plaintiff was referred to chronic clinic and
assigned to the RHU. (Doc. 526, ¶ 2.) Plaintiff was initially seen by Physician

Assistant Jennifer Porta in the RHU on September 18, 2015. (Id., ¶ 3.) He
provided her with is medical history and she planned on requesting his medical
records from the Albert Einstein Medical Center. (Id.) While at SCI-Mahanoy,

Plaintiff was offered treatment for his back pain, epilepsy, and other complaints.
(Doc. 525-2, pp. 1–229.) Plaintiff repeatedly refused treatment from the medical
providers while at SCI-Mahanoy. (Id., pp. 168, 185–86, 218–19, 221, 223.) He
also failed to attend clinic. (Id., p. 221.) Specifically, Plaintiff refused treatment

for Hepatitis C. (Id., p. 185.)
Plaintiff states that he cannot walk or take care of himself in the general
population. (Doc. 524-1, pp. 10–11.) He refuses to be placed in general

population. (Id., p. 10.) He was written up for refusing to follow orders. (Id., p.
10; Doc. 535-1, pp. 7–19.) He views the time in his handicapped cell as solitary
confinement because of the restrictions and limitations involved. (Doc. 524-1, p.
10.)

2. John Wetzel
Defendant Wetzel is the Secretary of the Department of Corrections.
Defendant Wetzel has not diagnosed or medically treated Plaintiff. (Doc. 524-1, p.
10.) In his deposition, Plaintiff stated that he had written letters from Defendant
Wetzel regarding his medical treatment. (Id., p. 14.) Plaintiff provided multiple
grievance appeals addressed to Defendant Wetzel. (Docs. 208-7, 208-8.)

3. Theresa DelBalso
In his deposition, Plaintiff stated that Defendant DelBalso “denied all of my
appeals knowing that I required treatment.” (Doc. 524-1, p 15.) He stated that she
could see his mistreatment on the cameras, she answered the grievances, gave him

the misconducts, and refused him placement in general population. (Id.) He
asserts that Defendant DelBalso “has a vote or something. In other words not her
on her own, but all those officials that I’m suing them in the lawsuit, including

DelBalso, are in positions of regulation and process, so she had to know what was
going on with me and failed to act with deliberate indifference with my medical
care and treatment, and also long-term solitary confinement.” (Doc. 524-1, p. 15.)
Plaintiff provided multiple grievance appeals addressed to Defendant DelBalso and

grievance decisions signed by Defendant Delbalso. (Docs. 208-7, 208-8.) He also
stated that Defendant DelBalso would go to all the other cells when making her
rounds, but she would not come to his cell. (Doc. 524-1, p. 15.)

Defendant DelBalso has not medically diagnosed or treated Plaintiff. (Id.)
4. Richard D. Roller
As noted above, there is some inconsistency regarding the identity of
Defendant Roller. In his amended complaint, Plaintiff names “Richard D. Holle”
as a defendant and provides his title as Corrections Facility Maintenance Unit
Manager at SCI-Mahanoy. (Doc. 9.) Richard Roller was the Corrections Facility

Maintenance Unit Manager at SCI-Mahanoy through May 2018. (Doc. 254-4, p.
3.) In his deposition, Plaintiff referred to this Defendant as Holle, but considering
Richard Roller was the Corrections Facility Maintenance Unit Manager at SCI-

Mahanoy, this is the party identified in the suit.
In his deposition, Plaintiff stated that “Holle” never came to see him. (Doc.
524-1, p. 16.) Plaintiff confirmed that Defendant Roller has never medically
diagnosed or treated him. (Id., p. 17.)

5. Defendant Oppman
Plaintiff stated in his deposition that he had letters from Defendant Oppman
regarding records from the prison where Plaintiff was housed before SCI-
Mahanoy. (Doc. 524-1, pp. 8, 14.) Plaintiff confirmed that he has never met

Defendant Oppman personally. (Id., p. 15.) Defendant Oppman states he is not
aware of Plaintiff or his claims. (Doc. 524-3, p. 3.) Plaintiff confirms that
Defendant Oppman has never medically diagnosed or treated him. (Doc. 524-1, p.

17.)
6. Defendant Mason
Plaintiff asserts that Defendant Mason’s name was on several documents he
received. (Doc. 524-1, p. 16.) Defendant Mason stated that she was part of the
PRC Program Review Committee, but did not answer misconduct appeals. (Doc.
524-6, p. 3.) Plaintiff stated that when Defendant Mason does her rounds, she

walks past his cell and does not stop. (Doc. 524-1, p. 16.) Defendant Mason has
never medically diagnosed or treated Plaintiff. (Id., p. 17.)
7. Carl J. Keldie, M.D.
Defendant Keldie is the Chief Clinical Officer for Wellpath, LLC. (Doc.

525-5, p. 1.) He has never treated Plaintiff. (Id.)
8. Shaista Khanum, M.D.
Defendant Khanum was a physician at SCI-Mahanoy until March 17, 2018.

(Doc. 525-7, p. 7.) She treated Plaintiff in 2017. (Doc. 524-2, pp. 175–90.)
However, the medical records reflect that Plaintiff sometimes refused treatment
form Defendant Khanum. (Id., pp. 186–87, 190.)
B. Claims Against SCI-Mahanoy Will be Dismissed

As stated above, SCI-Mahanoy was not a named defendant in the amended
complaint. (Doc. 9.) However, the facility was served, and an attorney entered an
appearance on its behalf. (Docs. 30, 40.) To the extent that the complaint can be
liberally construed as raising claims against the facility for the deprivation of

Plaintiff’s constitutional rights under 42 U.S.C. § 1983, those claims will be
dismissed.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that
misconduct was committed by a person acting under color of state law; and that as

a result, he was deprived of rights, privileges, or immunities secured by the
Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988)
(emphasis added). It is well-settled that neither a state nor its agencies are

considered to be a “person” as that term is defined under § 1983 and, therefore,
they are not subject to a § 1983 suit. Hafer v. Melo, 502 U.S. 21, 25–27 (1997).
Similarly, neither a prison nor a department within a prison are “persons” subject
to suit under § 1983. Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973); Edwards

v. Northampton County, 663 Fed. Appx. 132, 136 (3d Cir. 2016) (extending
Fischer to include county prisons).
Therefore, to the extent that Plaintiff raised constitutional claims against

SCI-Mahanoy in his amended complaint, those claims will be dismissed.
C. Defendants Will be Granted Judgment on Plaintiff’s Fourth
Amendment Claims
Plaintiff alleges that Defendants violated his Fourth Amendment rights.
(Doc. 9, ¶ 32.) The Fourth Amendment protects “[t]he right of the people to be
secure in their persons . . . against unreasonable searches and seizures.” U.S.

Const. amend. IV. An inmate has some constitutional protection under the Fourth
Amendment, but an inmate’s rights are limited by the need to maintain prison
security. Bistrian v. Levi, 696 F.3d 352, 373 (3d. Cir. 2012); see also Bell v.
Wolfish, 441 U.S. 441, 558–60 (1979). Rather, the Fourth Amendment’s
application to prison settings has been narrowly constrained to issues regarding

bodily integrity. Parkell v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016) (“We
conclude that a right to privacy in one's own body, unlike a right to maintain
private spaces for possessions, is not fundamentally inconsistent with

imprisonment and is so fundamental that society would recognize it as reasonable
even in the prison context.”).
Here, Plaintiff failed to allege any bodily searches in his complaint and
failed to present any evidence in furtherance of a Fourth Amendment claim.

Therefore, the Defendants’ motions for summary judgment will be granted in
regards to any alleged Fourth Amendment violations.
D. Defendants Will be Granted Judgment on Plaintiff’s First
Amendment Claims
Plaintiff’s amended complaint references “censorship” by defendants and
“deliberate indifference towards medical treatment, care and appropriate placement

for historically disabled paraplegic-epileptic” plaintiff as violations of his First
Amendment Rights. (Doc. 9, ¶ 32.)
The First Amendment states that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.” U.S. Const.
amend I. Despite generally alleging censorship, there is no factual allegation in the
amended complaint that implicates a First Amendment violation of free speech.

The complaint also made a generic allegation of retaliation. (Doc. 9, ¶ 32.)
A prisoner asserting a retaliation claim must allege the following elements: (1) he
engaged in constitutionally protected conduct; (2) he suffered an adverse action

sufficient to deter a person of ordinary firmness from exercising his constitutional
rights; and (3) the constitutionally protected conduct was “a substantial or
motivating factor” for the adverse action. See Rauser v. Horn, 241 F.3d 330, 333
(3d Cir. 2001); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). The

filing of a lawsuit or a prison grievance constitutes protected activity under the
First Amendment. Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015).
DOC Defendants have presented evidence in the form of Plaintiff’s own

testimony that the misconducts filed against him were the results of his own
refusals to join the general population. (Doc. 524-1, p. 10.) Likewise, Medical
Defendants have presented evidence that Plaintiff repeatedly refused treatment.
(Doc. 525-2, pp. 168, 185–86, 218–19, 221, 223.) Plaintiff has failed to counter

Defendants’ evidence with any evidence supporting retaliatory conduct on the part
of Defendants in regards to his confinement to the RHU or the level of medical
care he received. As such, the court will grant Defendants’ motions for summary

judgment with respect to any First Amendment claims.
Following the amended complaint, the court granted leave for Plaintiff to
file a supplemental complaint raising a First Amendment retaliation claim based on

his transfer from SCI-Mahanoy to SCI-Coal Township. (Doc. 247.) However,
because Plaintiff failed to limit his pleading to the issue of the transfer, the
pleading was struck from the record. (Doc. 392.) Therefore, there is no First

Amendment retaliation claim regarding his transfer to SCI-Coal Township before
the court.
E. Defendants Will be Granted Judgment on Plaintiff’s Claim Under
the Universal Doctrine of Human Rights
Plaintiff brings a claim against Defendants arising from a violation of the
Universal Declaration of Human Rights, Article Five, Covenant Against Torture,

arising from his solitary confinement in the RHU. (Doc. 9, ¶ 31.) However,
Plaintiff cannot successfully bring a claim under the Universal Doctrine of Human
Rights. See U.S. v. Chatman, 351 Fed.App’x 740, 741 (3d Cir. 2009); Sosa v.
Alvarez–Machain, 542 U.S. 692 (2004) (explaining that Universal Declaration is

simply a statement of principles and not a treaty or international agreement that
would impose legal obligations.). Therefore, Defendants’ motion for summary
judgment will be granted as to these claims.
F. Defendants Will be Granted Judgment on Plaintiff’s Remaining
Claims Against the DOC Defendants
Defendants Wetzel, DelBalso, Mason, Roller, and Oppman, are all
employees of the DOC. (Doc. 9, ¶¶ 4–8.) Reading the complaint liberally,

Plaintiff raises two remaining claims against these defendants: (1) his solitary
confinement in the RHU that allegedly violates the Fourteenth and Eighth
Amendments, Doc. 9, ¶ 30–31; and (2) the Commonwealth of Pennsylvania’s
“treatment protocol, policy, provision, procedure and practice presents deliberate

indifference to the known risks from untreated chronic hepatitis-c,” that allegedly
violates the Eighth Amendment. (Doc. 9, ¶ 33.)
1. Eighth Amendment Claims
The crux of Plaintiff’s Eighth Amendment deliberate medical indifference

and cruel and unusual punishment claims against the DOC Defendants is that they
were isolating him in solitary confinement because he is disabled. (Doc. 524-1, pp.
10–11.) He states that without medical equipment to assist with ambulation, he

cannot function in the general population. (Id.) This equipment includes braces
and crutches. (Id., p. 6.) He has refused to be placed in the general population
because he does not have this medical equipment and has been written up for
“misconducts” for such refusals and placed in the RHU. (Id., pp. 10–11.) Plaintiff

states that he is deprived of fresh air, sunlight, and making calls, and all his meals
are delivered to him. (Id.) At the time of the deposition, Plaintiff reported that he
still did not have his braces. (Id., p. 17.)

Here, the alleged underlying conduct Plaintiff challenges is two-fold: (1) he
challenges the refusal to give him the medical equipment he feels is necessary for
safe ambulation in the general population; and (2) he challenges the repeated

misconducts he is given for his refusal to be placed in general population. It
appears that Plaintiff was stuck in a frustrating cycle of events: not having the
equipment he feels is necessary to safely ambulate in the general population, then
refusing to enter general population, and then being penalized for this refusal, with

the process repeating itself once he is again asked to enter the general population.
However, Plaintiff has failed to bring his suit against the proper persons.
The DOC Defendants that Plaintiff names are in supervisory roles. Plaintiff has

failed to present evidence that these individuals either refused to give him the
equipment he feels he needed for safe ambulation or wrote him misconducts for
refusing to enter the general population.
“[An individual government] defendant in a civil rights action must have

personal involvement in the alleged wrongdoing; liability cannot be predicated
solely on the operation of [respondent] superior. Personal involvement can be
shown through allegations of personal direction or of actual knowledge and
acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citing Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)).

Defendants Cappman, Holle, and Mason have all presented evidence that
they do not know about Plaintiff’s situation and were not involved with decision-
making regarding his placement. (Docs. 524-3, pp. 3–4; 524-4, pp. 2–11; 524-6,

pp. 2–3, 7.) Plaintiff has been unable to rebut this evidence. Plaintiff states in his
deposition that there are letters and documents with Defendants’ names on them.
But Plaintiff only produced evidence concerning Defendant Mason. He produced
a letter dated July 23, 2018 regarding his medical concerns at SCI-Mahanoy, and

this letter was copied to Defendants DelBalso and Mason. (Doc. 208-7, p.2.) But,
after the fact knowledge is not considered actual knowledge. Rode, 845 F.2d at
1208.

Similarly, Plaintiff has provided multiple grievance appeals addressed to
Defendant DelBalso and grievance decisions signed by Defendant Delbalso.
(Docs. 208-7, 208-8.) Some of the grievance appeals were also addressed to
Defendant Wetzel. (Docs. 208-7, 208-8.) Defendants’ involvement with

Plaintiff’s grievances, is not sufficient to establish personal involvement.
“Participation in the after-the-fact review of a grievance or appeal is not enough to
establish personal involvement.” Rode, 845 F.2d at 1208 (finding the filing of a

grievance is not enough to show the actual knowledge necessary for personal
involvement); see also Brooks v. Beard, No. 05-3196, 2006 WL 332547, 167 F.
App’x 923, 925 (3d Cir. Feb. 14, 2006) (holding that a state prisoner’s allegation

that prison officials and administrators responded inappropriately, or failed to
respond to a prison grievance, did not establish that the officials and administrators
were involved in the underlying allegedly unconstitutional conduct).

Therefore, the court cannot analyze whether the withholding of the medical
equipment or the repeated placements in the RHU for refusing to enter the general
population violate the Eighth Amendment because Plaintiff has failed to provide
evidence that the DOC Defendants named in this suit were personally involved in

committing the alleged constitutional violations resulting from the lack of medical
equipment and repeated placement in RHU.
Additionally, Plaintiff alleges an Eighth Amendment violation premised on

the allegation that the Commonwealth of Pennsylvania’s “treatment protocol,
policy, provision, procedure and practice presents deliberate indifference to the
known risks from untreated chronic hepatitis-c.” (Doc. 9, ¶ 33.) However,
Plaintiff has failed to identify any policy or provision in his briefing. (Docs. 403,

535.) Likewise, he has failed to present any evidence that the Commonwealth’s
has a standing protocol, policy, provision, procedure, or practice regarding
Hepatitis-C in his briefing. (Id.) Attached to Plaintiff’s amended complaint was a

letter referencing a class action in Chimenti v. Pennsylvania Department of
Corrections, No. 2:15-cv-03333-JP (E.D. Pa.). Doc. 9, p. 20. This letter implies
that there was a policy that a number of inmates were challenging, but Plaintiff

failed to present additional evidence in subsequent briefing to show how any
policy violated his Eighth Amendment rights. (Docs. 403, 535.) As such,
summary judgment as to the Eighth Amendment claims will be granted in favor of

the DOC Defendants.
2. Fourteenth Amendment Claims
Plaintiff also brings claims against the DOC Defendants under the
Fourteenth Amendment. (Doc. 9, ¶ 32.) The Fourteenth Amendment provides that

a state shall not “deprive any person of life, liberty, or property, without due
process of law.” See U.S. Const. amend. XIV. “A liberty interest may arise from
the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it
may arise from an expectation or interest created by state laws or policies.”

Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). In order “[t]o establish [a state-
created liberty interest under the Fourteenth Amendment] in the conditions of
confinement context, courts generally require a showing that the alleged liberty

interest is substantial[.]” See Porter v. Pennsylvania Dep’t of Corr., 974 F.3d 431,
438 (3d Cir. 2020) (quoting Williams v. Secretary Pennsylvania Dep’t of Corr.,
848 F.3d 549, 559 (3d Cir. 2017) (some alterations in original). That is, “the right
alleged must confer ‘freedom from restraint which . . . imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life.’” See Porter, 974 F.3d at 438 (quoting Williams, 848 F.3d at 559) (alteration

and emphasis in original)).
In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme Court
held that no liberty interest was implicated by an inmate’s placement in solitary

confinement for thirty days as discipline for disruptive behavior. 515 U.S. at 487;
see also Williams, 848 F.3d at 559-60. This holding was based on the Supreme
Court’s conclusion that disciplinary solitary confinement “did not present the type
of atypical, significant deprivation in which a [s]tate might conceivably create a

liberty interest.” See Sandin, 515 U.S. at 486. A decade later, in Wilkinson, the
Supreme Court made “clear that the touchstone of the inquiry into the existence of
a protected, state-created liberty interest in avoiding restrictive conditions of

confinement is not the language of regulations regarding those conditions but the
nature of those conditions themselves ‘in relation to the ordinary incidents of
prison life.’” Id. at 223 (quoting Sandin, 515 U.S. at 484). Thus, in deciding
whether a protected, state-created liberty interest exists under Sandin, courts must

consider the following two factors: “(1) the duration of the challenged conditions;
and (2) whether the conditions overall imposed a significant hardship in relation to
the ordinary incidents of prison life.” See Williams, 848 F.3d at 560 (citing Shoats

v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)); Mitchell, 318 F.3d at 532 (stating that,
“[i]n deciding whether a protected liberty interest exists under Sandin, [courts are
to] consider the duration of the disciplinary confinement and the conditions of that

confinement in relation to other prison conditions” (citing Shoats, 213 F.3d at
144)).
Here, the court finds that Plaintiff has neither alleged nor shown that he was

subjected to an atypical and significant hardship in relation to the ordinary
incidents of prison life, such that he had a state-created liberty interest protected by
the Due Process Clause of the Fourteenth Amendment. Although Plaintiff alleges
that he was placed in solitary confinement since he was transported to SCI-

Mahanoy, this was not a single period for a single misconduct. Instead, the record
shows that Plaintiff’s placement in the RHU was reviewed every thirty to ninety
days, but he would incur a new misconduct at the end of each period for refusing to

obey an order. (Doc. 535-1, pp. 7–19 & Doc. 524-1, p. 10.) He was then given an
opportunity to file grievances regarding the misconducts. This is evidenced by the
sheer amount of grievances Plaintiff filed that were addressed by DOC staff.
(Docs. 403-10, 403-11, 403-12, 403-13, 403-14.)

However, the issue of what happened to Plaintiff’s medical equipment
remains, and whether a taking of Plaintiff’s property occurred without due process.
Here, the record shows that Plaintiff needed a back brace, a right leg brace, and

crutches as of February 23, 2007, while at the Albert Einstein Healthcare Network.
(Doc. 403-9, p. 3.) However, all subsequent physician orders at state facilities do
not address these braces: February 27, 2013, Doc. 403-3, p. 23; May 30, 2013,

Doc. 403-3, p. 19; and June 21, 2016, Doc. 403-5, p. 52. All that is available in the
evidence are the stated need for the braces in 2007. Plaintiff has failed to provide
evidence that these braces were acquired by or given to him (i.e. were his own

property) and not just prescribed by a provider at the Albert Einstein Healthcare
Network for the duration of his stay at that facility. Therefore, without evidence
that Plaintiff was in possession of these braces prior to his return to a state facility,
there is no evidence to support notion that Plaintiff’s property was taken without

due process under the Fourteenth Amendment. Furthermore, there is evidence that
Plaintiff did not have these braces at the state institutional facility he was housed at
prior to SCI-Mahanoy as they were not prescribed in 2013, Doc. 403-3, p. 19, 23,

and he was not transferred to SCI-Mahanoy until 2015.
For these reasons, the court will grant Defendants’ motions for summary
judgment in regards to the Fourteenth Amendment claims raised against the DOC
Defendants.

G. Defendants Will be Granted Judgment on Plaintiff’s Remaining
Claims Against the Medical Defendants
Defendants Khanum, CCS, and Keldie are collectively known as the
Medical Defendants. Plaintiff brings the same two remaining claims against these
Medical Defendants: (1) Fourteenth and Eighth Amendment claims premised on
his solitary confinement in the RHU, Doc. 9. ¶ 30–31; and (2) an Eighth
Amendment claim premised on the assertion that the Commonwealth of

Pennsylvania’s “treatment protocol, policy, provision, procedure and practice
presents deliberate indifference to the known risks from untreated chronic
hepatitis-c,” violating the Eighth Amendment rights against cruel and unusual

punishment. (Doc. 9, ¶ 33.)
a. Eighth Amendment Claims
Prison officials violate the Eighth Amendment when they act with deliberate
indifference to a prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S.

97, 104–05 (1976). To sustain a constitutional claim under the Eighth Amendment
for inadequate medical treatment, a plaintiff must make (1) an objective showing
that his medical needs were serious, and (2) a subjective showing that the
defendants were deliberately indifferent to those medical needs. See Pearson v.

Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017). A serious medical need is
“one that has been diagnosed by a physician as requiring treatment or is so obvious
that a lay person would easily recognize the necessity for a doctor’s attention.”

Monmouth Cty. Corr. Inst'l Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d Cir.
1987) (citation omitted). A prison official is deliberately indifferent when he
“knows of and disregards an excessive risk to inmate health or safety.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
1. Claims Against Defendant Khanum
Plaintiff brings two Eighth Amendment Claims against Defendant Khanum:

(1) premised on his denial of braces so he can ambulate effectively outside of
solitary confinement in the RHU; and (2) premised on a refusal to treat his
Hepatitis C. (Doc. 9, ¶¶ 30–31, 33.) Here, there is evidence that Plaintiff was
prescribed the braces back in 2007 and was diagnosed with Hepatitis C. (Doc.

403-9, p. 3 & Doc. 403-4, p. 23.) Therefore, there is evidence to establish the first
prong of an Eighth Amendment claim, i.e. a serious medical need. However,
Medical Defendants have presented evidence that Plaintiff repeatedly refused

blood work and treatment for his Hepatitis C and specifically refused treatment
from Defendant Khanum. (Doc. 525-2, pp. 168, 185–86, 218–19, 221, 223.)
Furthermore, Medical Defendants have provided evidence that they offered
treatment for all of Plaintiff’s other impairments. (Doc. 525-2.)

The fact that Plaintiff disagrees with the treatment offered or refused that
treatment does not create an Eighth Amendment claim. See White v. Napolen, 897
F.2d 103, 110 (3d Cir. 1990) (It is a “well-established rule that mere disagreements

over medical judgment do not state Eighth Amendment claims.”). Therefore, there
is no evidence in the record to establish the second prong of the Eighth
Amendment claim, i.e. that a prison official knew of and disregarded an excessive
risk to inmate health or safety. As such, the court will grant Medical Defendants’
motion for summary judgment as to the Eighth Amendment claims.

2. Claims Against Defendant CCS
Plaintiff brings an Eighth Amendment claim against Defendant CCS. (Doc.
9, ¶ 31–33.) In a § 1983 action, a private corporation contracted by a prison to
provide health care for inmates cannot be held liable on a respondeat superior

theory; rather, 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. Natale v. Camden County Correctional Facility, 318 F.3d 575, 583–84 (3d

Cir. 2003). Accordingly, to state a viable § 1983 claim against Defendant CCS,
Plaintiff is required to prove “that [it] had a policy, custom, or practice, and that
the policy, custom, or practice caused the constitutional violation at issue.” See
Sims v. Wexford Health Sources, 635 F. App’x 16, 20 (3d Cir. 2015) (quoting

Natale, 318 F.3d at 583).
Plaintiff’s amended complaint challenges the Commonwealth of
Pennsylvania’s “treatment protocol, policy, provision, procedure and practice

[because it] presents deliberate indifference to the known risks from untreated
chronic hepatitis-c,” which he alleges to be a violation of the Eighth Amendment
prohibition against cruel and unusual punishment. (Doc. 9, ¶ 33.) If this claim is
read liberally as a challenge to the policy, procedure, and practice of CCS, it still
fails as Plaintiff has failed to set forth any policy, procedure, or practice of CCS,
much less one that violates the Eighth Amendment. He fails to provide any

documentation of a state policy or an internal policy of CCS as it pertains to the
treatment of his Hepatitis C. Furthermore, the record demonstrates that Plaintiff
routinely refused blood work and treatment for his Hepatitis C. (Doc. 525-2, pp.

168, 185–86, 218–19, 221, 223.)
Therefore, Plaintiff cannot establish his treatment was denied or delayed by
CCS or its policies. As such, the court will grant the summary judgment claim as
to the Eighth Amendment claim against Defendant CCS.

3. Carl Keldie, M.D.
Defendant Keldie never treated Plaintiff. He is the Chief Clinical Officer for
Wellpath and works at its corporate headquarters in Nashville, Tennessee. (Doc.
525-5, p. 1.) Defendants allege that CCS is the former name for Wellpath. (Doc.

532, p. 19.) In an October 23, 2019 deposition, Plaintiff confirmed that Defendant
Keldie never treated him. He stated that he had never met Defendant Keldie,
confirming he was in the lawsuit as his role as the “mind or the chief behind,

Correct Care Solutions.” (Doc. 525-4, pp. 5–6.) Therefore, Defendant Keldie does
not have the personal involvement required under Rode. For this reason, the court
will grant Defendant’s motion for summary judgment for all Eighth Amendment
claims raised against Defendant Keldie.
H. Fourteenth Amendment Claims
Plaintiff brings a Fourteenth Amendment claim against the Medical

Defendants. (Doc. 9, ¶ 31–32.) As discussed above, to establish a claim under the
Fourteenth Amendment, a plaintiff must demonstrate that he was deprived of a
protected interest in life, liberty, or property. However, Plaintiff has failed to
articulate what interest Medical Defendants allegedly deprived. As noted above, if

the complaint is liberally construed as a deprivation of his braces and crutches,
there is no evidence these braces were in Plaintiff’s possession when he arrived at
SCI-Mahanoy. Furthermore, to the extent that Plaintiff is attempting to use the

Fourteenth Amendment as a vehicle to assert a violation of his Eighth Amendment
rights, such an assertion would be duplicative of his Eighth Amendment claim,
which has been addressed above. See Ramos v. Prime Care Medical, No. 19-3816,
2019 WL 6839943 at *3 (M.D. Pa. Dec. 13, 2019). As such, the court will grant

Medical Defendants’ motion for summary judgment as to the Fourteenth
Amendment claims.
I. Motion for Protective Order Will be Denied
Plaintiff has also filed a motion for a protective order addressing his current

treatment at SCI-Coal Township and requesting sanctions. (Docs. 513, 514.) The
case at hand is concerned with the treatment Plaintiff received a SCI-Mahanoy.
Therefore, this motion will be denied.
CONCLUSION
Based on the foregoing, the court will grant Defendants’ motions for

summary judgment, Docs. 521, 525, deny Plaintiff’s motion for summary
judgment, Doc. 403, deny Plaintiff’s motion for a protective order, Doc. 513, and
enter judgment in favor of Defendants. The Clerk of the Court will be directed to
close this case.

An appropriate order will follow.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania

Dated: September 22, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412275. Public record. Not legal advice.