Horan v. Gross

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PATRICK HORAN, : CIVIL ACTION NO. 1:22-CV-1166

:

Plaintiff : (Judge Conner)

:

v. :

:

THADDEUS GROSS, et al., :

:

Defendants :

MEMORANDUM

This is a prisoner civil rights case filed pursuant to 42 U.S.C. § 1983. Plaintiff,

Patrick Horan, alleges violations of his civil rights arising from his transfer to the

Camp Hill State Correctional Institution (“SCI-Camp Hill”), revocation of his single-

cell status, prison officials’ purported denial of mental health care, prison officials’

deliberate indifference to Horan’s medical needs, and retaliation by prison officials

for his filing of grievances and complaints. Defendants have moved for partial

dismissal through two separate motions. The motion filed by defendant Wanga will

be denied. The motion filed by defendants Gross, Cyrus, Fells, Harry, Jedrzejek,

Murray, and Butler (“DOC defendants”) will be granted in part and denied in part.

I. Factual Background & Procedural History

Horan filed this case in the Cumberland County Court of Common Pleas on

June 23, 2022. (Doc. 1-1). Defendants removed the case to this district on July 27,

2022. (Doc. 1). According to the complaint, Horan was transferred to SCI-Camp

Hill in March 2020 following the closure of SCI-Retreat. (Doc. 1-1 at 5). Horan was

purportedly given a “Z-Code”—a housing classification that allowed him to not have

a cellmate—while he was in SCI-Retreat. (Id.) Upon his transfer to SCI-Camp Hill

his Z-Code was revoked. (Id.) He was housed in SCI-Retreat’s residential

treatment unit prior to the transfer, but was assigned to general population upon

his arrival at SCI-Camp Hill. (Id.)

On April 1, 2020, Horan met with defendant Gross, a psychologist employed

by the prison, and explained that he was not supposed to be housed in SCI-Camp

Hill or general population because his sentencing order required that he be housed

in a secure mental health facility with constant psychiatric care due to the fact that

he pled guilty but mentally ill (“GBMI”). (Id. at 6). Horan filed a request to be

transferred out of the prison. (Id.) Defendant Cyrus, a counselor in SCI-Camp Hill,

purportedly stated he could not be transferred until he had been housed there for

two years. (Id. at 7).

On July 28, 2020, Horan met with Gross at his cell door. (Id.) Cyrus

purportedly interrupted this meeting to inform Horan that his Z-Code had been

revoked. (Id.) Horan filed a grievance on August 2, 2020, complaining that his Z-

Code was revoked despite no staff member assessing how this would affect his

mental health. (Id.) Prison staff denied the grievance based on Horan’s purported

failure to inform staff of his mental health status. (Id.) Horan met with Gross on

August 11, 2020, to discuss the denial and told him he had “taken a whole bottle of

pills and slit [his] wrists.” (Id.) Horan allegedly showed Gross the wounds he

suffered as a result of the self-harm. (Id.) Gross purportedly did nothing in

response. (Id.)

Horan met with Cyrus on September 8, 2020 and with Gross on October 6,

2020 to discuss his mental health. (Id.) On October 21, 2020, he met with Gross to

discuss the constant headaches he was experiencing and his difficulty breathing

while exercising. (Id.) On October 28, 2020, he met with non-party psychologist Ms.

Bowser for an evaluation. (Id. at 8). On November 5, 2020, he met with Gross and

Bowser to discuss his alleged lack of mental health treatment, his housing concerns,

and his headaches and respiratory problems. (Id.) On January 4, 2021, he met with

Gross to discuss his health concerns. (Id.)

The complaint alleges that Horan has had several cellmates since the

removal of his Z-Code. On November 12, 2020, an inmate named Tyrell Bowens

moved into his cell. (Id.) Bowens had previously been confined in the prison’s

Behavioral Modification Unit after purportedly stabbing his cellmate. (Id.) Horan

and Bowens met with prison staff the following day to state they were not

compatible as cellmates. (Id.) Bowens was transferred out of the cell. (Id.) Horan

was subsequently given Matthew Ricketts as a cellmate until January 19, 2021,

when prison staff allegedly transferred him out of the cell in response to Horan

helping him file a grievance regarding the prison’s refusal to place him in a sex

offender program. (Id.) On January 20, 2021, Kyle Sarginger was moved into

Horan’s cell. (Id.) The complaint avers that Sarginger suffers from Hepatitis C.

(Id.) Horan and Sarginger allegedly remained cellmates until February 9, 2021,

when Sarginger was moved out of the cell. (Id.) Jeff McLelland, who had recently

been housed in the infirmary with a suspected COVID-19 infection, was transferred

to the cell the same day. (Id. at 9). Horan and McLelland immediately got into an

argument about McLelland smoking e-cigarettes in the cell. (Id.)

Horan purportedly met with Gross on February 10, 2021, to discuss concerns

that prison staff were putting him in danger by giving him cellmates without

assessing their compatibility. (Id.) On February 25, 2021, approximately 90 inmates

were removed from Horan’s housing block after testing positive for COVID-19. (Id.)

McLelland was exhibiting symptoms of COVID-19 at this time, but did not test

positive for the virus. (Id.) The next day, both Horan and McLelland allegedly

became sick with COVID-19. (Id.)

On March 1, 2021, Horan met with defendant Gross about unspecified threats

made by McLelland. (Id.) On March 2, 2021, Horan met with defendant Wanga, a

psychiatrist in the prison, about threats by McLelland and Horan’s belief that he

was supposed to be housed in a secure mental health facility. (Id.) On March 18,

2021, Horan met with Gross, Wanga, and “Nurse”1 about the threats by McLelland.

(Id.) On March 24, 2021, McLelland allegedly threatened Horan in an unspecified

manner. (Id.) Horan reported the threat to Sgt. Boone, who arranged to have

McLelland transferred out of Horan’s cell. (Id.) Gross allegedly acknowledged on

March 25, 2021 that he “dropped the ball” with respect to the threats made by

McLelland. (Id.) On March 29, 2021, an inmate named Corey Clingerman was

moved into Horan’s cell. (Id. at 10).

1 It is unclear from the complaint whether this is a reference to an individual

named “Nurse” or an unnamed nurse, but we assume the latter.

On April 16, 2021, Horan received an initial review response to a grievance he

filed regarding McLelland’s purported threats. (Id.) The response stated that

Horan had never informed Gross of the threats made by McLelland. (Id.) Horan

spoke with Gross, who confirmed that Horan had informed him about the threats

on March 1, 2021 and March 18, 2021. (Id.)

On April 26, 2021, Horan told an unnamed nurse he was experiencing chest

pain resulting from COVID-19. (Id.) The nurse allegedly told him the chest pain

was not due to COVID-19, but Horan responded that the symptoms had persisted

since his COVID-19 infection began on February 26, 2021. (Id.)

On June 21, 2021, Horan met with a physician’s assistant named Karen to

discuss “relentless body pain” and respiratory problems that Horan attributed to

COVID-19. (Id.) Karen prescribed him Celebrex to treat the symptoms. (Id.) On

June 30, 2021, Horan met with Cyrus for an annual review. (Id.) Cyrus purportedly

spoke “abusively” towards Horan because Horan would not sign paperwork

confirming that he refused a work assignment. (Id.) On July 6, 2021, Horan met

with a physician’s assistant named Amy, who prescribed him Prednisone and said

that Horan’s arthritis pain could be attributed to his chronic Lyme disease that was

exacerbated by COVID-19. (Id.) On July 8, 2021, Horan met with Wanga, Gross,

and four other prison employees to discuss his mental health, his requested

transfer, and his problems with Cyrus. (Id.) On July 14, 2021, Horan met with a

physician’s assistant named Justin to discuss severe headaches, hand numbness,

muscle cramps, and pain he was experiencing. (Id.) On July 19, 2021, Horan met

with Gross to discuss his problems with Cyrus and the medical issues he ascribed to

COVID-19. (Id.) On July 27, 2021, Horan again met with physician’s assistant Amy

and told her he was experiencing severe pain, shakes, and difficulty conducting

normal movements or functions. (Id.) Amy prescribed him Prednisone and

Doxycycline and informed him that he was scheduled to see a doctor. (Id.)

On August 3, 2021, Horan was given a new cellmate named Greg Hake. (Id.)

The next day, Counselor Misiti allegedly told Horan that if he did not consent to be

vaccinated against COVID-19 he would be moved to I-Block and isolated and his

pay for employment would be reduced from $2.52 per day to $0.72 per day. (Id. at

11). Horan met with physician’s assistant Karen on August 5, 2021, who prescribed

him bottom bunk status due to being “crippled from COVID.” (Id.) On the same

day, Horan was purportedly compelled to be vaccinated against COVID-19 despite

his objections to the vaccine and his statement that he had underlying immune

deficiencies due to chronic Lyme disease. (Id.)

On August 11, 2021, Horan met with Wanga to discuss his mental health

progress, the stress he was experiencing due to alleged lack of mental health

treatment at SCI-Camp Hill, and the worsening of his mental health due to his

housing situation. (Id.) On August 17, 2021, Horan met with Dr. Voorstad to discuss

his ongoing concerns with Lyme disease and COVID-19. (Id.) Horan told Dr.

Voorstad that he was experiencing pain in his hips, neck, shoulders, and hands and

that he was having difficulty functioning. (Id.) Voorstad submitted a request for

Horan to be seen by a rheumatologist. (Id.)

On August 24, 2021, Horan met with Gross to discuss his stress, his medical

issues, and the problems he was experiencing with Cyrus. (Id.) On September 4,

2021, Horan took the day off from work because he was in extreme pain, but the

medical department allegedly refused to see him. (Id.) He met with physician’s

assistant Karen on September 7, 2021, and described his extreme pain, cramping,

and difficulty functioning. (Id.) Karen increased his prescribed dose of Celebrex.

(Id.) On September 21, 2021, Horan met with physician’s assistants Amy and

Ramirez and told them he was experiencing extreme pain and difficulty

functioning. (Id.) They prescribed him Mobic and gave him a medical pass for a

new mattress. (Id.) Horan gave the medical pass to his unit manager the next day,

who allegedly refused to give him a new mattress. (Id.) On September 27, 2021,

Horan had a sick call with physician’s assistant Justin, who purportedly told him

there was nothing else the medical department could do to treat his extreme pain

and difficulty functioning. (Id.) On October 1, 2021, Dr. Voorstad canceled an

appointment with Horan. (Id. at 12). On October 4, 2021, Horan had a sick call with

physician’s assistant Ramirez to report that something “snapped” in his right thigh

while he was working in the prison’s butcher shop on September 28, 2021. (Id.)

Horan reported he was in constant pain and that he was having difficulty sitting

and standing. (Id.)

On October 4, 2021, Horan also met with deputy warden Nicklow about his

alleged difficulty getting medical care. (Id.) Nicklow told Horan he would “take

care of it.” (Id.) On October 6, 2021, Horan met with Dr. Voorstad and told him he

was experiencing pain from his thigh injury, chills in his back, and swelling in his

hands. (Id.) Voorstad told him he was scheduled to see a specialist. (Id.)

On October 18, 2021, Horan had a sick call with physician’s assistant Karen

and told her he was having trouble at work because standing caused him pain. (Id.)

He also told her he was experiencing pain in his shoulder, difficulty getting on and

off the toilet, and difficulty putting on socks. (Id.) Karen stated a doctor would have

to approve a request for “work lay-ins” and discussed Fibromyalgia and an

increased dose of “Noratrophaline”2 with Horan. (Id.) On October 19, 2021, Horan

met with Gross and told him that his constant pain was having a negative effect on

his mental health and exacerbating his depression. (Id.)

On October 27, 2021, Horan spoke with defendant Murray about the medical

issues that were making it difficult to work. (Id.) Murray allegedly told him he

needed to “get something from Medical” in order to not come to work or risk being

cited for misconduct. (Id.) Horan met with Karen the next day, who put him on

medical lay-in until November 2, 2021. (Id.) His medical lay-in was subsequently

extended to December 3, 2021. (Id.)

On November 12, 2021, Horan met with Gross, Cyrus, and “Nurse.” (Id.) He

complained about the purported lack of mental health treatment at SCI-Camp Hill,

his need for a transfer to another prison, and the medical issues and pain he was

experiencing. (Id.) On December 5, 2021, Horan met with Dr. Newton to discuss

his mental health and the purported lack of treatment he was receiving. (Id.)

2 The court has been unable to identify any medication by this specific name

through independent research.

On December 6, 2021, Horan met with physician’s assistant Ramirez and

stated he was experiencing chest pain when he sneezed or coughed. (Id. at 13).

Ramirez extended his medical lay-in. (Id.) On December 13, 2021, Horan was

transported to Pinnacle Rheumatology where he was seen by Dr. Jajoria. (Id.)

Jajoria determined that Horan had problems with his joints and muscles,

performed bloodwork, and prescribed Horan medication. (Id.)

On December 17, 2021, physician’s assistant Justin cleared Horan to return to

work and increased his prescription of Cymbalta. (Id.) On January 3, 2022,

defendant Butler escorted Horan out of the butcher shop and told him that he was

no longer employed there. (Id.) Horan asked why, and Butler allegedly stated, “I

don’t have to give you a reason.” (Id.) The same day, Horan’s former coworker in

the butcher shop, Anthony Forsythe, purportedly told him that Butler did not want

Horan working there because Horan had filed a grievance against him. (Id.)

On January 3, 2022, Horan had a sick call with physician’s assistant Karen,

who diagnosed him with rheumatoid arthritis. (Id.) Horan told her he was

experiencing lung pain if he coughed or sneezed, difficulty breathing, numbness

and chills in his back, stabbing pain, and constant headaches. (Id.) Karen ordered

chest x-rays and prescribed him Prednisone. (Id.) The same day, Horan met with

Gross and told him about his medical treatment, his employment situation, and

problems he was having with his cellmate, Bradley Cook. (Id.) Gross allegedly

stated that Horan and Cook should never have been celled together. (Id.)

On January 4, 2022, Horan spoke with Butler’s supervisor, Davis, who told

Butler to reinstate Horan to his job in the butcher shop. (Id.) Butler allegedly told

Horan he “better not” file any more grievances against Butler. (Id.) On January 10,

2022, Horan filed a grievance alleging that his pay was $77.26 short. (Id.) On

January 13, 2022, Horan agreed to drop his grievance after correctional officer

Jedrzejek stated Horan would get back pay and that Butler would be reprimanded.

(Id.) On January 14, 2022, Horan met with Dr. Voorstad, who said that Horan still

had “medical issues” and that he needed to be seen by Dr. Jajaria again. (Id.)

On January 26, 2022, Butler purportedly threatened to fire Horan and said

“some people are lucky they are in prison” while pointing his finger at Horan and

pretending to shoot him in the face. (Id. at 14). Butler also purportedly said that he

knew Horan had sent a letter to the prison’s Prison Rape Elimination Act (“PREA”)

coordinator regarding alleged misconduct by Butler. (Id.) Horan filed a grievance

against Butler for this incident on January 28, 2022, but the grievance was denied.

(Id.) On January 31, 2022, Horan filed an incident report against Butler. (Id.) Ten

minutes later, Butler allegedly fired him from the butcher shop. (Id.) Horan filed a

grievance about the firing, which was denied. (Id.) Horan wrote a letter to the

PREA coordinator on February 3, 2022, complaining that he was being retaliated

against and told Gross about the alleged retaliation on February 10, 2022. (Id.)

On February 14, 2022, Horan was allegedly removed from his food service job

in the prison. (Id.) Sgt. Myers purportedly told Horan that he would be cited for

misconduct for threatening another inmate named Richard Weber, despite Horan’s

unit manager allegedly confirming that Horan had not threatened Weber. (Id.)

Horan was moved to a different housing block after this interaction. (Id.) Horan

grieved his removal from the food service position on February 18, 2022. (Id.) On

February 22, 2022, Horan met with Unit Manager Fells, who allegedly stated there

were no grounds for Horan to be dismissed from his position. (Id.)

On February 25, 2022, Gross came to Horan’s cell. (Id.) Horan told him he

had been trying to see him for ten days since he was moved. (Id.) Gross allegedly

stated that he was not aware that Horan had been moved and that it was

“ridiculous” no one had checked on him given his status as an inmate who pleaded

GBMI. (Id.) Horan told Gross he was not comfortable having a cellmate. (Id.)

On March 3, 2022, Horan met with Dr. Jajoria. (Id. at 15). Jajoria diagnosed

him with rheumatoid arthritis and prescribed Prednisone. (Id.) Horan told him he

was experiencing constant headaches, pain, dizziness, lightheadedness, and pain in

his chest if he sneezed or coughed. (Id.)

On March 7, 2022, Horan met with Nurse Behe for a psychological evaluation.

(Id.) Horan told her that Camp Hill was not meeting his treatment needs because

he was not housed in a secure mental health facility under constant psychiatric

care. (Id.) Horan told her about his lack of sleep and anxiety and stated he did not

want to have a cellmate and that he wished to be transferred. (Id.) Behe allegedly

stated that she would put in a request for Horan to have a psychiatric referral. (Id.)

Later that day, Horan was given a new cellmate, Paul McLothlin. (Id.)

On March 10, 2022, Horan met with Wanga, Fells, Cyrus, and “Nurse.” (Id.)

Horan stated that he was not receiving adequate mental health treatment and that

his sentence was not being honored and requested a transfer to SCI-Mahanoy. (Id.)

On March 14, 2022, he met with Fells and Cyrus, who allegedly informed him that

he had been fired from his food services position based on a negative work report

that was written a month after the alleged incident involving Weber. (Id.)

On April 1, 2022, Cyrus purportedly told Horan that his request for a transfer

to SCI-Mahanoy was denied because SCI-Camp Hill was now considered part of

Region 1, the region in which Horan was allegedly supposed to be housed according

to his sentencing order. (Id.) Horan spoke about the denial of the transfer request

with Gross on April 18, 2022. (Id.) Horan and Gross additionally spoke about

threats Horan had purportedly received from McLothlin. (Id. at 16). On April 21,

2022, McLothlin was paroled from the prison, at which point Horan discovered that

Horan had stolen $60 worth of personal property from him. (Id.) Horan spoke with

Gross about the theft on April 27, 2022. (Id.) Horan told him that he wished to no

longer have a cellmate and that having cellmates caused him anxiety. (Id.) Horan

was given another cellmate, Douglas Gettemy, later that day. (Id.)

On May 1, 2022, Horan spoke with Cyrus and Fells about the alleged theft of

property by McLothlin. (Id.) Both individuals purportedly told him that he could

not prove that the theft occurred. (Id.) On May 6, 2022, McLothlin3 allegedly

threatened Horan in the sallyport of the housing unit. (Id.) On June 2, 2022, Cyrus

informed Horan that his request for a vocational transfer to the auto mechanics

program was denied because prison officials believed he was being “manipulative.”

(Id.) On June 15, 2022, Horan met with Behe to discuss his concerns with having a

3 It is not clear from the complaint why McLothlin was there in light of the

allegation that he was paroled approximately two weeks before this date.

cellmate. (Id. at 17). Horan purportedly told Behe that he “wish[ed] to be dead”

because he could not take the treatment from prison staff any longer. (Id.) Horan

allegedly sent a request to Fells for a single cell. (Id.) Later that day, Fells

purportedly came to Horan’s cell and said that psychiatric staff could not get him a

Z-Code. (Id.) Fells then allegedly stated, “You’re an inmate. You don’t get a

choice. I will put whoever the hell I want in with you!” (Id.)

The complaint asserts claims for violation of the First, Eighth, and

Fourteenth Amendments and violation of the Pennsylvania Constitution. (Id. at 17-

18). It is unclear what specific claims Horan asserts, but we liberally construe seven

claims for relief: (1) that Horan’s placement in SCI-Camp Hill and the revocation of

his Z-Code constituted cruel and unusual punishment in violation of the Eighth

Amendment and violated his right to due process under the Fourteenth

Amendment; (2) that the lack of mental health care provided to Horan constituted

deliberate indifference in violation of the Eighth Amendment; (3) that Gross was

deliberately indifferent to the risk that Horan would commit suicide; (4) that the

lack of medical care provided to Horan constituted deliberate indifference in

violation of the Eighth Amendment; (5) that placement of Horan with cellmates

constituted deliberate indifference to the risk that the cellmates would harm Horan;

(6) that defendants Butler, Murray, and Jedrzejek retaliated against Horan in

violation of the First Amendment; and (7) that defendant Harry is liable for her

subordinates’ actions under a supervisory liability theory. (See id.) Horan seeks

damages and injunctive relief. (Id. at 18).

DOC defendants moved to dismiss the complaint in part on August 3, 2022.

(Doc. 4). Defendant Wanga moved to dismiss on August 25, 2022. (Doc. 11).

Defendants collectively seek dismissal of all claims except Horan’s retaliation claim

against defendants Butler, Murray, and Jedrzejek for failure to state a claim upon

which relief may be granted. (See Docs. 12, 18). Wanga additionally argues that the

complaint should be dismissed for failure to exhaust administrative remedies. (Doc.

18 at 4-6). DOC defendants argue that any claims that survive the motions to

dismiss should be severed into separate lawsuits because they are misjoined in

violation of Federal Rule of Civil Procedure 20. (See Doc. 12 at 6 n.2). Briefing on

the motions is complete and they are ripe for review. (Docs. 12, 18, 20, 23-25). We

consider defendants’ arguments below.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the

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

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

reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County

of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts

contained in the complaint, the court may also consider “exhibits attached to the

complaint, matters of public record, [and] undisputedly authentic documents if the

complainant’s claims are based upon these documents.” Mayer v. Belichick, 605

F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

Federal notice and pleading rules require the complaint to provide “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31

(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a

plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it must determine whether they are sufficient to show a “plausible claim

for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550

U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

Courts must liberally construe complaints brought by pro se litigants. Sause

v. Bauer, 585 U.S. __, 138 S. Ct. 2561, 2563 (2018). Pro se complaints, “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) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)).

III. Discussion

A. Horan’s Claims

Horan brings his constitutional claims under 42 U.S.C. § 1983. Section 1983

creates a private cause of action to redress constitutional wrongs committed by

state officials. 42 U.S.C. § 1983. The statute is not a source of substantive rights, but

serves as a mechanism for vindicating rights otherwise protected by federal law.

See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d

1199, 1204 (3d Cir. 1996). To state a Section 1983 claim, plaintiffs must show a

deprivation of a “right secured by the Constitution and the laws of the United

States . . . by a person acting under color of state law.” Kneipp, 95 F.3d at 1204

(quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

We first address the claim that Horan’s placement in SCI-Camp Hill and the

revocation of his Z-Code violated his rights under the Eighth and Fourteenth

Amendments. This claim will be dismissed. Prisoners do not have constitutional

rights to placement in a particular prison, Olin v. Wakinekona, 461 U.S. 238, 244-46

(1983), or placement in a single cell. Rhode v. Chapman, 337, 345-49 (1981); see also

Hodges v. Wilson, 341 F. App’x 846, 849 (3d Cir. 2009) (nonprecedential)4 (holding

that revocation of prisoner’s Z-Code did not violate constitution because there is no

constitutional right to single-cell status).

4 The court acknowledges that nonprecedential decisions are not binding

upon federal district courts. Citations to nonprecedential decisions reflect that the

court has carefully considered and is persuaded by the panel’s ratio decidendi.

The complaint also fails to state a claim upon which relief may be granted to

the extent it alleges deliberate indifference to the risk of harm by Horan’s cellmates.

Claims of deliberate indifference to a risk of harm require plaintiff to show (1) he

was incarcerated under conditions posing a substantial risk of serious harm, (2) the

defendant was deliberately indifferent to that risk, and (3) the defendant’s

deliberate indifference caused the plaintiff harm. Bistrian v. Levi, 696 F.3d 352, 366

(3d Cir. 2012) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)), abrogated in

nonrelevant part as recognized by Mack v. Yost, 968 F.3d 311, 319 n.7 (3d Cir. 2020).

The first element is an objective inquiry of whether the official “knowingly and

unreasonably disregarded an objectively intolerable risk of harm.” Beers-Capitol v.

Wetzel, 256 F.3d 120, 132 (3d Cir. 2001). The second element is subjective: “the

prison official-defendant must actually have known or been aware of the excessive

risk to inmate safety.” Bistrian, 696 F.3d at 367 (quoting Beers-Capitol, 256 F.3d at

125).

Horan’s complaint does not allege that any of his cellmates posed a

substantial risk of serious harm to him. First, the complaint alleges that Bowen

stabbed a cellmate before he became Horan’s cellmate, but there is no allegation of

any risk that Bowen would assault Horan specifically. By itself the risk that an

inmate with a history of violence will attack another inmate for some unknown

reason is too speculative to support an Eighth Amendment claim. See id at 371

(“Thus, according to Bistrian, the risk of the harm that occurred was the risk that

an inmate with a history of violence might attack another inmate for an unknown

reason. We cannot conclude on these allegations that prison officials were

deliberately indifferent to such a speculative risk.”); see also Blackstone v.

Thompson, 568 F. App’x 82, 84 (3d Cir. 2014) (“The risk that an inmate with some

history of violence might attack another inmate for an unknown reason, however, is

too speculative to give rise to an Eighth Amendment claim.”). Moreover, Bowen

was removed from Horan’s cell after one day, (see Doc. 1-1 at 8), so any risk to

Horan’s safety that may have been present was ameliorated by Bowen’s prompt

transfer to another cell.

Second, the complaint alleges that Sarginger had Hepatitis C, but there is no

allegation that sharing a cell with Sarginger led to an increased risk that Horan

would contract the disease. The fact that Sarginger had the disease is not sufficient

to state an Eighth Amendment claim. Cf. Goss v. Sullivan, 839 F. Supp. 1532, 1536-

37 (D. Wyo. 1993) (collecting cases for the proposition that prison officials do not

violate the Eighth Amendment by housing inmates with cellmates who have tested

positive for HIV or AIDS); Feigley v. Fulcomer, 720 F. Supp. 475, 482 (M.D. Pa. 1989)

(concluding that prison officials did not violate the Eighth Amendment by failing to

segregate inmates who tested positive for HIV or AIDS from other inmates).

Third, the allegation that McLelland had recently been quarantined for a

suspected COVID-19 infection prior to moving into Horan’s cell is not sufficient to

state an Eighth Amendment claim. It is not alleged that McLelland was actually

infected with COVID-19 at the time he was moved into the cell or that prison

officials were aware of such an infection. To the contrary, the complaint alleges

that Horan and McLelland tested positive for COVID-19 on the same day, February

26, 2021, sixteen days after McLelland was moved into the cell. (See Doc. 1-1 at 9).

The allegation that McLelland tested positive for COVID-19 while sharing a cell

with Horan is not by itself sufficient to allege deliberate indifference. See, e.g.,

Zuber v. Sorber, No. 22-CV-3661, 2023 WL 144437, at *4 (E.D. Pa. Jan. 9, 2023)

(concluding that plaintiff’s allegation that his cellmate had COVID-19 was not

sufficient to allege that prison officials were deliberately indifferent to plaintiff’s

health and safety).

Fourth, Horan’s vague allegations of “threats” by McLelland and McLothlin,

(see Doc. 1-1 at 9-10, 16), are not sufficient to support a deliberate indifference

claim. Horan does not allege the specific threats made by McLelland or McLothlin,

the context in which the threats were made, any supporting facts that would

indicate the threats were credible, or any supporting facts that would indicate that

the threats put Horan in substantial risk of serious harm. Absent such supporting

allegations, his conclusory assertions that he was threatened by McLelland and

McLothlin are not sufficient to state a deliberate indifference claim upon which

relief may be granted.

Fifth, Horan’s allegation that McLothlin stole $60 of personal property from

him also cannot support a deliberate indifference claim. Deliberate indifference to

theft of an inmate’s personal property by other inmates does not violate the Eighth

Amendment. See, e.g., Hunter v. Sherman, 49 F. App’x 611, 612 (6th Cir. 2002); Wa-

Gino v. Ariz. Dep’t of Corrs., 94 F.3d 654 (9th Cir. 1996); Brown v. Dep’t of Pub.

Safety & Corr. Servs., 383 F. Supp. 3d 519, 548 (D. Md. 2019).

Finally, the complaint does not allege any facts with respect to cellmates

Ricketts, Hake, Cook, or Gettemy beyond the fact that they were Horan’s cellmates

and that he had unspecified “problems” with Cook. (See Doc. 1-1 at 8, 10, 13, 16).

Hence, because the complaint fails to allege that any of Horan’s cellmates posed a

substantial risk of serious harm to him, we will dismiss the complaint to the extent

it asserts a claim for deliberate indifference to the risk of harm by cellmates.

Horan’s claims arising from purportedly inadequate mental health care and

medical care are governed by the deliberate indifference to a serious medical need

standard. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979).

To state a claim for deliberate indifference, a plaintiff must allege “(i) a serious

medical need, and (ii) acts or omissions by prison officials that indicate deliberate

indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582

(3d Cir. 2003) (citing 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 lay person would recognize the necessity for a

doctor’s attention.” Monmouth Cnty. Corr. 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. (citation omitted). 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, 511 U.S. at 837.

Negligence by defendants is not sufficient to establish deliberate indifference

to a serious medical need. Id. at 835. “Where a prisoner has received some medical

attention and the dispute is over the adequacy of the treatment, federal courts are

generally reluctant to second guess medical judgments and to constitutionalize

claims which sound in state tort law.” Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir.

2017) (quoting United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2

(3d Cir. 1979)). It is not appropriate for courts to second-guess the “propriety or

adequacy of a particular course of treatment;” such decisions remain questions “of

sound professional judgment” that are not considered deliberate indifference. Id.

(quoting Pierce, 612 F.2d at 762).

Based on his own factual allegations in the operative complaint, Horan does

not assert a plausible deliberate indifference claim for failure to provide medical

care. The complaint reflects that defendants diligently treated all his symptoms

and sought to diagnose causes for the symptoms. According to the complaint,

medical professionals employed in the prison provided treatment for Horan’s

symptoms on April 26, 2021, June 21, 2021, July 6, 2021, July 14, 2021, July 27, 2021,

August 17, 2021, September 7, 2021, September 21, 2021, September 27, 2021,

October 4, 2021, October 6, 2021, October 18, 2021, October 28, 2021, December 6,

2021, January 3, 2022, January 14, 2022, and March 3, 2022. (Doc. 1-1 at 10-15).

Medical personnel also prescribed Horan several medications to treat his

symptoms, including Celebrex, Prednisone, Doxycycline, and Mobic; assigned him

bottom bunk status; ordered him to receive a new mattress; vaccinated him against

COVID-19; sent him to appointments with an outside rheumatologist on two

separate occasions; gave him excused absences from his job for more than a month;

and diagnosed rheumatoid arthritis, Lyme disease, and COVID-19 as likely causes

for his symptoms. (Id. at 10-13). Horan may disagree with defendants’ decisions or

believe that he should be receiving more care than he is receiving, but that is not

sufficient for the deliberate indifference claim to proceed. See Palakovic, 854 F.3d

at 228 (noting that disagreement as to the adequacy of treatment provided to

plaintiff is not sufficient to establish deliberate indifference).

The complaint does, however, state a claim for deliberate indifference based

on the purportedly insufficient mental health care provided to Horan. Horan’s

suicidal ideations and attempted suicide are sufficient to allege a serious medical

need. See id. at 222-23 (noting that past suicide attempts may establish plaintiff’s

particular vulnerability to suicide and serious medical need for mental health

treatment). Although the complaint shows that mental health professionals5 met

with Horan to discuss his mental health on numerous occasions between April 2020

and June 2022, Horan alleges that these meetings were little more than pro forma

interactions conducted at the side of his cell, often within earshot of his cellmate.

(See Doc. 1-1 at 6-17). We find this sufficient to allege deliberate indifference to

Horan’s serious medical need for mental health care. See Sides v. Wetzel, No. 2:20-

5 Defendant Cyrus was a party to several of these meetings, and we construe

the complaint to fairly allege that Cyrus was acting as a mental health professional

during said meetings. (See Doc. 1-1 at 7). Defendants dispute the contention that

Cyrus is a mental health professional. (See Doc. 12 at 14). But we must accept

plaintiff’s allegations of fact as true for purposes of resolving the motions to dismiss.

See Santiago, 629 F.3d at 131-32.

CV-1168, 2021 WL 8017811 (W.D. Pa. Nov. 21, 2021), report and recommendation

adopted, Sides v. Wetzel, No. 2:20-CV-1168, 2022 WL 1091915, at *1 (W.D. Pa. Apr.

12, 2022) (finding allegation that prison officials conducted only short visits at cell

door sufficient to allege deliberate indifference to serious medical need in light of

plaintiff having suicidal and homicidal thoughts, hearing voices in his head, and

attempting suicide).6

The complaint also states a claim against Gross for deliberate indifference to

the risk that Horan would commit suicide. To establish deliberate indifference to

risk of suicide, plaintiff must show (1) that he had a particular vulnerability to

6 Horan argues that Sides and Dooley v. Wetzel, 957 F.3d 366 (3d Cir. 2020),

entitle him to more mental health treatment than he is currently receiving because:

(1) he has been diagnosed with a serious mental illness and (2) he entered a plea of

GBMI. (See Doc. 20 at 11-12; Doc. 25 at 8). Horan misapprehends the holdings of

Dooley and Sides.

In Dooley, the plaintiff alleged that because he pleaded GBMI in his

underlying criminal trial he was entitled to greater mental health care. Dooley, 957

F.3d at 370. The district court dismissed the complaint without leave to amend as

frivolous, but the court of appeals affirmed in part and vacated in part, holding that

the complaint failed to state a claim, but that amendment could cure the

complaint’s defects. Id. at 373-76. Dooley thus stands for the well-established

proposition that the district court should permit leave to amend before dismissing a

civil rights claim for failure to state a claim upon which relief may be granted; it

does not establish a constitutional minimum amount of mental health care that

must be provided to inmates.

In Sides, the plaintiff alleged that short visits from a prison psychologist at

his cell door were constitutionally inadequate and the court denied the defendant’s

motion to dismiss for failure to state a claim upon which relief may be granted.

Sides, 2021 WL 8017811, at *2, 10-11. Sides does not establish a per se rule requiring

prison officials to provide a certain level of mental health care for inmates who have

been diagnosed as mentally ill; it simply finds that the plaintiff’s allegations were

sufficient to state a deliberate indifference claim upon which relief could be

granted.

suicide, meaning that there was a strong likelihood he would attempt suicide rather

than a mere possibility; (2) that defendant knew or should have known of plaintiff’s

particular vulnerability to suicide; and (3) that defendant acted with reckless or

deliberate indifference to plaintiff’s vulnerability to suicide. Palakovic, 854 F.3d at

223-24. Knowledge of a plaintiff’s particular vulnerability to suicide may be shown

by, for example, evidence that defendant knew that plaintiff had a history of suicide

attempts. Id. at 222-23. Horan alleges that he told Gross he had “taken a whole

bottle of pills and slit [his] wrists,” that he showed Gross the wounds he suffered,

and that Gross did nothing in response. (Doc. 1-1 at 7). We find this sufficient to

allege that Gross was aware of Horan’s particular vulnerability to suicide based on a

past suicide attempt and that Gross was deliberately indifferent to the particular

vulnerability. See Palakovic, 854 F.3d at 222-24.

Horan’s claims against defendants Harry and Fells will be dismissed, as

Horan has failed to allege their personal involvement. A defendant cannot be liable

for a violation of a plaintiff’s civil rights unless the defendant was personally

involved in the violation. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir.

2018). The defendant’s personal involvement cannot be based solely on a theory of

respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rather, for a supervisor to be liable for the actions of a subordinate, there must be

allegations of personal direction or actual knowledge and acquiescence. Id. A

defendant’s review and denial of a prisoner’s grievance is not sufficient to establish

the defendant’s personal involvement in an underlying violation of the prisoner’s

constitutional rights. Dooley, 957 F.3d at 374. The complaint does not allege that

Harry was personally involved in any of the alleged violations of Horan’s civil rights.

Rather, it appears that Horan’s claims against Harry are based solely on her role as

superintendent and her denial of Horan’s grievances, neither of which is sufficient

to allege personal involvement. See id.; Rode, 845 F.2d at 1207. Similarly, the only

allegation of Fells’s personal involvement is that she attended a meeting on March

10, 2022 with Horan and mental health professionals who were involved in his

treatment. (See Doc. 1-1 at 15). It is not alleged that Fells provided mental health

treatment to Horan or that she directed the other defendants to provide deficient

mental health treatment to Horan. Hence, we will dismiss the claims against Harry

and Fells for lack of personal involvement.

Finally, we will dismiss Horan’s claims for violations of the Pennsylvania

Constitution. Pennsylvania law does not recognize a cause of action allowing a

plaintiff to recover money damages for violation of the Pennsylvania Constitution.

Mt. Airy #1, LLC v. Pa. Dep’t of Revenue and Elieen McNulty, 154 A.3d 268, 280

n.11 (Pa. 2016).

B. Exhaustion of Administrative Remedies

Defendant Wanga argues that all claims against him should be dismissed for

failure to exhaust administrative remedies. (Doc. 18 at 4-6). Wanga represents that

Horan has only filed one grievance that pertain to his claims against Wanga and

that he did not complete the prison’s administrative appeal process with respect to

this grievance. (Id. at 5). Horan responds that the prison did not comply with its

own rules for timely returning his grievance to him and that contrary to Wanga’s

assertion, Horan filed nine additional grievances that implicate Wanga. (Doc. 25 at

4-5). Wanga has not responded to Horan’s argument.

Under the Prison Litigation Reform Act (“PLRA”), prisoners complaining

about the conditions of their confinement must exhaust available administrative

remedies before they may file suit in federal court. 42 U.S.C. § 1997e(a). The PLRA

requires proper exhaustion, meaning plaintiffs must administratively grieve their

claims in accordance with the procedural rules of the prison in which they are

incarcerated. Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (citing

Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Failure to exhaust administrative

remedies is an affirmative defense that defendants must plead and prove; it is not a

pleading requirement for plaintiffs. Jones v. Bock, 549 U.S. 199, 216 (2007). The

defense may be raised in a motion to dismiss. Brown v. Croak, 312 F.3d 109 (3d Cir.

2002).

We find that defendant Wanga has not met his burden to establish that

Horan’s complaint should be dismissed for failure to exhaust administrative

remedies. Wanga represents that Horan only brought one grievance against him

and that he failed to exhaust that grievance, (doc. 18 at 4-6), while Horan represents

that the grievance process was unavailable to him and that he filed nine additional

grievances against Wanga that Wanga failed to mention. (Doc. 25 at 4-5). Hence,

there are questions of fact as to whether Horan exhausted administrative remedies

that cannot be resolved at this stage of litigation.

C. Leave to Amend

Before dismissing a civil rights complaint for failure to state a claim upon

which relief may be granted, a district court must permit a curative amendment

unless the amendment would be inequitable or futile. Phillips, 515 F.3d at 245. We

find that amendment would be futile to the extent Horan alleges that his placement

in SCI-Camp Hill or the revocation of his Z-Code violated his constitutional rights

because those claims fail as a matter of law. For the same reason, we find that

amendment would be futile as to Horan’s claims that defendants violated the

Pennsylvania Constitution. But we will grant leave to amend as to the other

dismissed claims because those claims are factually, rather than legally, deficient.

D. Joinder

DOC defendants argue that because some claims have been allowed to

proceed or have been dismissed without prejudice, the claims should be severed

into separate lawsuits because they are misjoined in violation of Federal Rule of

Civil Procedure 20. (Doc. 12 at 6 n.2). Under Rule 20, claims against multiple

defendants may be joined in the same action only if:

(A) any right to relief is asserted against them jointly, severally, or in

the alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in

the action.

See Fed. R. Civ. P. 20(a)(2). The decision of whether to sever misjoined claims is left

to the discretion of the district court, DirecTV, Inc. v. Leto, 467 F.3d 842, 844 (3d Cir.

2006), and claims may be severed “at any time.” FED. R. CIV. P. 21. In deciding

whether severance is appropriate, the court may consider, inter alia, “promotion of

the expeditious resolution of the litigation.” Russell v. Chesapeake Appalachia,

L.L.C., 305 F.R.D. 78, 81 (M.D. Pa. 2015).

The court will decline to sever Horan’s claims at this time. In light of the

court’s analysis of the merits of defendants’ motions to dismiss, the case is currently

proceeding only as to plaintiff’s retaliation claim, his deliberate indifference claim

arising from allegedly deficient mental health treatment, and his deliberate

indifference to risk of suicide claim. Given the uncertainty as to whether plaintiff

will amend his complaint and whether the pleading defects identified by the court

will be remedied by amendment, the court finds that denial of the request to sever

is appropriate at this time to promote the expeditious resolution of the litigation.

See Russell, 305 F.R.D. at 81. If future proceedings demonstrate the necessity of

severance, the court will sever plaintiff’s claims as necessary.

IV. Conclusion

We will grant in part and deny in part DOC defendants’ motion to dismiss

(Doc. 4), deny defendant Wanga’s motion to dismiss (Doc. 11), and grant plaintiff

leave to amend. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: February 7, 2023