Hymer v. Kross

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES F. HYMER, :

Plaintiff : CIVIL ACTION NO. 3:22-1531

v. : (JUDGE MANNION)

:

DR. TIMOTHY KROSS, et al.,

:

Defendants

MEMORANDUM

Plaintiff, Charles F. Hymer, an inmate formerly confined in the Benner

State Correctional Institution, Bellefonte, Pennsylvania1, filed the above

captioned civil rights action pursuant 42 U.S.C. §1983. (Doc. 1). The named

Defendants are Drs. Boland, Kross, and Kollman, Nurse McCormick,

Grievance Officer Ardery, Facility Grievance Coordinator Burd and Chief

Grievance Officer Varner. Id. Plaintiff complains of a November 9, 2020

incident in which he was removed from the Medication-Assistance Program

(“MAT Program”) for diverting his medication. Hymer seeks to proceed in

forma pauperis. (Doc. 2.) The complaint is presently before the Court for

preliminary screening pursuant to 28 U.S.C. §§1915(e)(2)(B) and 1915A to

1 Plaintiff is currently confined in the Chester County Prison, West

Chester, Pennsylvania.

determine whether it should be dismissed as frivolous or malicious, for failure

to state a claim upon which relief may be granted or because it seeks

monetary relief from a defendant who is immune from suit. For the following

reasons, the Plaintiff’s complaint will be dismissed for failure to state a claim.

I. Standards of Review

A federal court may properly dismiss an action sua sponte under the

screening provisions of 28 U.S.C. §1915(e)(2)(B) and §1915A(b) if “the

action is frivolous or malicious, fails to state a claim upon which relief may

be granted, or seeks monetary relief from a defendant who is immune from

such relief.” Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).

In dismissing claims under §§1915(e)(2) and 1915A, district courts

apply the standard governing motions to dismiss brought pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. See, e.g., Smithson v.

Koons, Civ. No. 15-01757, 2017 WL 3016165, at *3 (M.D. Pa. June 26, 2017)

(stating “[t]he legal standard for dismissing a complaint for failure to state a

claim under §1915A(b)(1), §1915(e)(2)(B)(ii), or §1997e(c)(1) is the same as

that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure.”); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa.

2010) (explaining that when dismissing a complaint pursuant to §1915A, “a

court employs the motion to dismiss standard set forth under Federal Rule

of Civil Procedure 12(b)(6)”); Tourscher v. McCullough, 184 F.3d 236, 240

(3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for

failure to state a claim under §1915(e)(2)(B)).

In rendering a decision on a motion to dismiss, a court should not

inquire “whether a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416

U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The

court must accept as true the factual allegations in the complaint and draw

all reasonable inferences from them in the light most favorable to the plaintiff.

See Phillips v. Cty of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). In addition

to considering the facts alleged on the face of the complaint, the court may

consider “documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor

Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

However, “[t]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory statements,

do not suffice.”). “Under the pleading regime established by Twombly and

Iqbal, a court reviewing the sufficiency of a complaint must take three steps.

First, it must ‘tak[e] note of the elements [the] plaintiff must plead to state a

claim.’ Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second, it should identify

allegations that, ‘because they are no more than conclusions, are not entitled

to the assumption of truth.’ Id. at 679, 129 S.Ct. 1937. See also Burtch v.

Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements

of the elements of a claim are not entitled to the assumption of truth.” (citation

and editorial marks omitted)). Finally, ‘[w]hen there are well-pleaded factual

allegations, [the] court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.’ Iqbal, 556 U.S. at

679, 129 S.Ct. 1937.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d

Cir. 2016) (footnote omitted). Deciding whether a claim is plausible is a

“context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 681.

Because Hymer proceeds pro se, his pleading is liberally construed

and his complaint, “however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (citations omitted).

II. Factual Background

On November 19, 2020, Hymer filed Grievance No. 902736, claiming

that he was erroneously removed from the MAT program for allegedly

“attempt[ing] to divert Suboxone when it was administered to [him] by

medical treatment on 11-9-2020.” (Doc. 1 at 9, Official Inmate Grievance).

On January 20, 20212 Grievance No. 902736 was denied as follows:

I am in receipt of your Official Inmate Grievance dated 12/3/2020

in which you report being removed from the MAT program by Dr.

Kross for being accused of diverting your medication which you

report was not true. You report reading your Inmate Handbook

and cannot find any section that pertains to the medical

procedure and diverting of medications. You report speaking with

Dr. Kross at a video conference with Dr. Kollman present and

explained to both of them that you did not divert your medication.

You report you were informed that if you had any disagreements

with this decision, you could appeal it through the proper channel

which is why this grievance was initiated. You also report you

followed all the directions given by the nurse to drink water prior

to having the medications dumped under your tongue. You gave

the medication time to dissolve and took another drink of water

as instructed. You then report allowing the nurser to do a mouth

check and the nurse told you to take another drink of water and

swoosh it around because you still had some medication in your

teeth. You report another mouth check by the nurse and were

told you were good to go.

After speaking with the medical staff involved and reviewing your

medical chart it was noted on 11/9/2020 that Suboxone had been

2 On December 29, 2020, the Facility Grievance Coordinator issued an

initial level extension, notifying Hymer that “staff has been authorized to

extend the response time by 10 additional working days” as “an extension is

necessary in order to appropriately investigate and respond to [Plaintiff’s]

grievance.” (Doc. 1 at 11, Initial Level Extension).

administered by the medical staff. It was also noted that you

appeared very anxious during the administration process. After

initiating the mouth check you attempted to leave the area when

you were stopped again by medical to recheck your mouth where

it was noted that medication had been packed behind your front

teeth. It was reported that you immediately shut your mouth. Dr.

Kollman was made aware of this incident per his documentation.

It was noted on 11/12/20 you were seen by Dr. Kross for a

teleconference with Dr. Kollman present and were told that due

to the attempted diverting of the medication you were being

removed from the program. You were placed on tapering doses

of Suboxone and also placed on Clonidine as needed for

withdrawal which was administered. Since tapering of

medication there has been no adverse reaction reported by

yourself or documented by medical staff.

In light of this information, your grievance is denied. Please utilize

the sick call process for any medical needs.

(Doc. 1 at 12, Initial Review Response).

On February 1, 2021, Plaintiff filed an appeal to the Facility Manager,

(Doc. 1 at 15), which was upheld in part and denied, in part, as follow:

I have reviewed your Official Inmate Grievance, Initial Grievance

Response, Grievance Appeal, and facts surrounding your

complaint.

In your Grievance Appeal, you state that on November 12, 2020,

you were removed from the MAT Program by Dr. Kross. You say

that it was explained to Dr. Kross that you tried to supposedly

divert, vacate, or remove your Suboxone when it was

administered by the medical staff on November 9, 2020. You

state that Lt. Berry and Nurse McCormick were present during

this treatment line. You were advised by Dr. Kollman and Dr.

Kross to appeal the removal from the MAT Program to

Superintendent Marsh. You advise that prior to filing a grievance,

you wrote numerous Inmate Requests to Staff explaining the

situation. You state that you followed the direction that was given

while the Suboxone was being administered. You further state

that you never received a Misconduct Report for this incident, nor

was there medication found on you person or in your cell. In

addition, there is no DIVAR Video Footage present nor, did your

monthly urinalysis testing come back positive. You lastly, wish to

address the fact that you did not receive a response to your Initial

Grievance in a timely manner.

As previously advised within your Initial Grievance, on November

9, 2020, while staff were administering your Suboxone, you

appeared to be anxious during the administration process. While

attempting to do mouth checks, it was discovered that you had

Suboxone packed behind your front teeth. It should be noted that

because you attempted to divert your medication, Dr. Kross and

Dr. Kollman removed you from the program.

In investigating the issues in which you claim, it is my decision to

uphold in part/deny in part. I am upholding in part based on the

fact that your Initial Grievance Response was not provided to you

in a timely manner. I am deny (sic) in part based on the fact that

you attempted to divert your Suboxone during the administration

process. As notated in previous Inmate Requests to Staff, the

decision to have you removed from the MAT Program was a

medical provider decision and this decision cannot be

overridden. Your request for relief is also denied.

(Doc. 1 at 16, Facility Manager’s Appeal Response).

On November 5, 2021, Hymer’s appeal to final review was denied as

follows:

A review of the record was conducted by the Bureau of Health

Care Services regarding your concern of not being provided

proper medical care. Your medical record was reviewed, and it

was determined that the medical care provided was reasonable

and appropriate. The findings of this review concur with the Initial

Review Response. These clinical decisions are made by your

attending practitioner. You are encouraged to participate in your

treatment plan and to discuss your concerns or changes of

condition with a practitioner. No evidence of wrongdoing was

identified. Your grievance and requested relief are denied.

(Doc. 1 at 18, Final Appeal Decision).

Plaintiff now files the instant action claiming Defendants “Dr. Timothy

Kross, Dr. Kollman, Dr. Boland and Nurse Katherine McCormick acted under

color of state and/or local law where they, directly violated Plaintiff’s right to

proper medical care and failed to protect Plaintiff from consequences which

would be reasonably expected to occur as a result of the lack of medical care

where they ceased medical treatment for an opiate addiction based on false

unsubstantiated accusations which caused Plaintiff to be subjected to

physical and mental suffering and relapse that ended in an overdose on April

14, 2021. (Doc. 1). Plaintiff also claims that Defendants “J. Burd, K. Ardery

and Doris Varner acted under color of state and/or local law where they

directly violated Plaintiff’s right to Due Process protected by the Fourteenth

Amendment of the United States Constitution where they failed to respond,

address, and/or act in a timely manner as required by the Due Process

Protection set out in DOC Policy DC-ADM 804, which furthered and/or failed

to relieve Plaintiff’s pain and suffering of which they were made aware.” Id.

For relief, Plaintiff seeks compensatory and punitive damages as well

as to be “placed back into treatment/MAT Program.” Id.

III. Legal Standard

Pursuant to the screening provisions of 28 U.S.C. §1915(e)(2), the

Court is required to screen in forma pauperis complaints prior to service and

“shall dismiss the case at any time if the court determines that ... the action

... (i) is frivolous or malicious [or] (ii) fails to state a claim upon which relief

may be granted.” 28 U.S.C. §1915(e)(2)(B)(i) and (ii). An action is “frivolous

where it lacks an arguable basis in either law or fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). Factual allegations are “clearly baseless” if they

are “fanciful,” “fantastic,” or “delusional,” Neitzke, 490 U.S. at 328, or where

“the facts alleged rise to the level of the irrational or the wholly incredible.”

Denton v. Hernandez, 504 U.S. 25, 33 (1992). “[A] finding of factual

frivolousness is appropriate when the facts alleged rise to the level of the

irrational or the wholly incredible, whether or not there are judicially

noticeable facts available to contradict them.” Id. at 33.

Title 28 U.S.C. §1915’s failure to state a claim standard mirrors Rule

12(b)(6) of the Federal Rules of Civil Procedure, which authorizes the

dismissal of a complaint for “failure to state a claim upon which relief can be

granted.” Fed.R.Civ.P. Rule 12(b)(6). Rule 8 of the Federal Rules of Civil

Procedure provides that a pleading must set forth a claim for relief, which

contains a short and plain statement of the claim, showing that the pleader

is entitled to relief. The complaint must provide the defendant with fair notice

of the claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The

issue in a motion to dismiss is whether the plaintiff should be entitled to offer

evidence to support the claim, not whether the plaintiff will ultimately prevail.

See Phillips v. Cnty. of Allegheny, 515 F. 3d 224, 232 (3d Cir. 2008) (the

Rule 8 pleading standard “simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of the necessary element.”);

Nami v. Fauver, 82 F. 3d 63, 65 (3d Cir. 1996).

The onus is on the plaintiff to provide a well-drafted complaint that

alleges factual support for his claims. “While a complaint attacked by a Rule

12(b)(6) motion to dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(alteration in original and internal citations omitted). The court need not

accept unsupported inferences, Cal. Pub. Employees Ret. Sys. v. The

Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), nor legal conclusions cast

as factual allegations, Twombly, 550 U.S. at 556. Legal conclusions without

factual support are not entitled to the assumption of truth. See Ashcroft v.

Iqbal, 556 U.S. 662, 677-679 (2009) (“Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not” satisfy

the requirements of Rule 8).

Once the court winnows the conclusory allegations from those

allegations supported by fact, which it accepts as true, the court must engage

in a commonsense review of the claim to determine whether it is plausible.

This is a context-specific task, for which the court should be guided by its

judicial experience. The court must dismiss the complaint if it fails to allege

enough facts “to state a claim to relief that is plausible on its face.” Iqbal, 556

U.S. at 677 (quoting Twombly, 550 U.S. at 570). A “claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 677. Lastly, a pro se complaint is 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 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).

IV. Discussion

A. Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff

must show “(i) a serious medical need, and (ii) acts or omissions by prison

officials that indicate deliberate indifference to that need.” Natale v. Camden

Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one

that has been diagnosed by a physician as requiring treatment, or one that

is so obvious that a layperson would recognize the need for a doctor's

attention. Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton

infliction of pain results as a consequence of denial or delay in the provision

of adequate medical care, the medical need is of the serious nature

contemplated by the eighth amendment.” Id.

A prison official acts with deliberate indifference to an inmate’s serious

medical needs when he “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). Thus, a complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”

Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision

not to order an X-ray, or like measures, does not represent cruel and unusual

punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s

long as a physician exercises professional judgment his behavior will not

violate a prisoner’s constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's

disagreement with the professional judgment of another doctor is not

actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,

or medical malpractice does not give rise to a §1983 cause of action, and an

inmate's disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.

1993).

Further, a prison administrator cannot be found deliberately indifferent

under the Eighth Amendment because he or she fails to respond to the

medical complaints of an inmate being treated by a prison physician, or

because, as non-physicians, they defer to the medical judgment of the

inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical

prison personnel had “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner,” liability

may be imposed. Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

A mere difference of opinion between the prison’s medical staff and

the inmate regarding the diagnosis or treatment which the inmate receives

does not support a claim of cruel and unusual punishment. Farmer v.

Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v.

Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113

(10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received

treatment, courts have consistently been reluctant to second guess the

medical judgment of the attending physician. Little v. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key

question is whether the defendant has provided the plaintiff with some type

of treatment, regardless of whether it is what the plaintiff desires. Farmer v.

Carlson, 685 F. Supp. at 1339.

The documentation attached to Plaintiff’s complaint clearly

demonstrates that Plaintiff received medical attention, and that the attention

he received lacks the requisite deliberate indifference to support a Section

1983 claim. Once it was determined that Plaintiff was to be removed from

the MAT program for diverting medication on November 9, 2020, Plaintiff

was placed on tapering doses of Suboxone, as well as placed on Clonidine

for withdrawal. Plaintiff’s own documentation demonstrates that “since

tapering of medication there has been no adverse reaction reported by

[Plaintiff] or documented by medical staff.” (Doc. 1 at 12).

At best, Plaintiff’s complaint demonstrates his disagreement with being

removed from the program and taken off the Suboxone. Though he may

have wished to remain in the program and on Suboxone, his disagreement

with the course of action that Defendants took based on the diversion of

mediation on November 9, 2020, is not enough to state a §1983 claim.

Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989). This is particularly so

in light of the fact that there are no allegations in the complaint that any of

the Defendants intentionally withheld medical treatment from Plaintiff in order

to inflict pain or harm upon Plaintiff. Farmer, 511 U.S. at 837; Rouse, 12 F.3d

at 197. Thus, the allegations in the Plaintiff's complaint amount to nothing

more than Plaintiff's subjective disagreement with the treatment decisions

and medical judgment of the medical staff at the prison. To the extent that

Plaintiff alleges that he had “a relapse that ended in an overdose on April 14,

2021,” the Court finds Plaintiff’s allegation tenuous, at best, that Plaintiff’s

November 12, 2020 removal from the MAT Program and medically

monitored tapered removal from Suboxone resulted in an overdose some

five months later. Again, the Court finds the allegations in the Plaintiff’s

complaint amount to nothing more than Plaintiff’s subjective disagreement

with the treatment decisions and medical judgment of the medical staff at the

prison to remove Plaintiff from the MAT Program.3

B. Fourteenth Amendment Due Process

Plaintiff claims that Defendants J. Burd, K. Ardery and Doris Varner

violated his Fourteenth Amendment Due Process protections when they

“failed to respond, address and/or act in a timely manner as required by

D.O.C. Policy DC-ADM 804.” (Doc. 1 at 20).

According to the DC-ADM 804, “[t]he inmate must submit a grievance

to the Facility Grievance Coordinator ... within 15 working days after the

event upon which the claim is based.” See www.cor.pa.gov › Documents ›

804 Inmate Grievances. Upon receipt, the Facility Grievance Coordinator

3A prisoner does not have a constitutional right of access to particular

treatment programs. See, e.g., Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976)

(finding that a prisoner could not state a due process claim either for transfer

to a “substantially less agreeable prison” or because he had not been given

access to prison rehabilitation programs since “Congress has given federal

prison officials full discretion to control the conditions of confinement [citation

omitted], and petitioner has no legitimate statutory or constitutional

entitlement sufficient to invoke due process.”); Groppi v. Bosco, 208

Fed.Appx. 113, 115 (3d Cir.2006) (finding that a prisoner “does not have a

constitutional right to participate in the drug treatment program”).

assigns the grievance a tracking number and enters it into the Automated

Inmate Grievance Tracking System (“AIGTS”). Id. If the Facility Grievance

Coordinator “determines that the grievance is properly submitted according

to th[e] procedures manual, the Facility Grievance Coordinator will designate

a staff member to serve as the Grievance Officer for that grievance.” Id. The

Grievance Officer’s ruling on the grievance “shall be provided to the inmate

within 15 working days from the date the grievance was entered into the

[AIGTS].” Id. If “the investigation of the grievance is ongoing,” that deadline

can be extended by 10 working days upon a request by the Grievance Officer

to the Facility Grievance Coordinator. Id. If the Facility Grievance

Coordinator grants the Grievance Officer’s extension request, the inmate

must be notified in writing. Id.

Plaintiff’s documentation reveals that Plaintiff initially attempted to

resolve his issues informally by submitting two Inmate’s Request to Staff

Member, one on November 12, 2020 and one on November 18, 2020. (Doc.

1 at 7, 8). When Plaintiff’s informal resolutions did not yield a desired result,

Plaintiff filed Grievance No. 902736 on December 3, 2020, where it was

received by the Facility Grievance Coordinator on December 7, 2020. (Doc.

1 at 9). Although a response should have been provided to Plaintiff within

fifteen days of December 7, 2020, or by December 22, 2020, it was not until

December 29, 2020, that the Facility Grievance Coordinator Burd granted

the Grievance Officer an enlargement of time of ten additional working days

within which to issue a decision. (Doc. 1 at 11). Plaintiff was provided notice

of this extension of time. Id. Although the calculation of ten additional working

days would have been January 13, 2021, Grievance Officer Ardery’s Initial

Review Response was not issued until seven days later, on January 20,

2021. (Doc. 1 at 12). On appeal, Facility Manager Marsh recognized this

delay in responding and upheld part of Plaintiff’s appeal based on the fact

that the Initial Grievance Response was not provided in a timely manner.

(Doc. 1 at 16).

To establish a due process violation a plaintiff must show that he was

deprived of a liberty interest protected by the Constitution or a statute. Sandin

v. Conner, 515 U.S. 472, 479 n.4, 483-84 (1995). Here, the Facility Manager

found in Plaintiff’s favor that his Initial Review Response was untimely

delivered. Moreover, Plaintiff cannot demonstrate any prejudice as a result

of the untimely decision as he was not prevented in any way from exercising

his rights through the grievance system, or in bringing the instant action.

Thus, Plaintiff’s alleged due process violation lacks merit.

Finally, Courts have routinely held that the “failure of a prison official to

provide a favorable response to an inmate grievance is not a federal

constitutional violation.” Flanagan v. Shively, 783 F. Supp. 922, 931-32 (M.D.

Pa. 1992), aff’d, 980 F.2d 722 (3d Cir. 1992). Dissatisfaction with responses

to an inmate’s grievances does not support a constitutional claim. See

Alexander v. Gennarini, 144 F. App’x 924 (3d Cir. 2005) (concluding that

involvement in the post-incident grievance process is not a basis for §1983

liability). Because the claims against Defendants Burd, Ardery and Varner

are premised on their respective roles in the grievance process, they are

entitled to dismissal.

V. 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 Plaintiff’s pro se complaint and

his attached exhibits 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.

VI. Conclusion

Based on the forgoing, the complaint will be dismissed pursuant to 28

U.S.C. §§1915(e)(2)(B)(ii).

A separate Order will be issued.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: December 28, 2022

22-1531-01