Johnson v. Preston

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM JOHNSON, No. 4:22-CV-00420

Plaintiff, (Chief Judge Brann)

v.

DR. VERNON PRESTON, et al.,

Defendants.

MEMORANDUM OPINION

MARCH 10, 2023

Plaintiff, William Johnson, a Pennsylvania state inmate, currently confined

in the Rockview State Correctional Institution, Bellefonte, Pennsylvania (“SCI-

Rockview”), filed the above captioned civil rights action pursuant to 42 U.S.C. §

1983.1 The named Defendants are Correct Care Solutions, LLP and the following

SCI-Rockview employees: Dr. Vernon Preston, Dr. Fisher, Health Care

Administrator Richard Ellers, and Captain VanGorder.2 Johnson alleges Eighth

Amendment deliberate indifference and failure to train claims resulting in

Defendants alleged deliberate indifference to his serious medical condition when

they “delayed diagnosis and treatment and fail[ed] to properly provide post-surgery

care and treatment.”3 He also raises state law negligence and medical malpractice

1 Doc. 1.

2 Id.

claims, as well as a First Amendment retaliation claim.4

Presently before the Court are two motions to dismiss filed on behalf of

Defendants Ellers and Captain Vangorder,5 (“Commonwealth Defendants”) and

Defendants Preston and Correct Care Solutions (“Medical Defendants”).6 The

Medical Defendants originally filed their motion as a motion to dismiss or, in the

alternative, for summary judgment, raising the following arguments:

(1) Plaintiff failed to properly exhaust his administrative remedies per

the Prison Litigation Reform Act;

(2) Plaintiff failed to sufficiently allege the personal involvement of

Defendants Preston and CCS in his complaint; and

(3) Plaintiff’s claim of professional negligence should be dismissed

for Plaintiff’s failure to file a Certificate of Merit.7

However, after receiving Plaintiff’s brief in opposition, the Medical

Defendants filed their reply brief, indicating that they seek to withdraw their

motion for summary judgment, which was based solely on Plaintiff’s failure to

exhaust administrative remedies.8 Defendants also deemed their motion to dismiss

Plaintiff’s professional negligence claim as moot, based on Plaintiff’s filing a

Certificate of Merit, indicating that expert testimony of an appropriate licensed

professional is unnecessary for prosecution of the claims against Defendants.9 The

4 Id.

5 Doc. 15.

6 Doc. 16.

7 Doc. 17.

8 Doc. 36.

Medical Defendants therefore seek to proceed solely on their Rule 12 motion to

dismiss for Plaintiff’s failure to allege personal involvement of Defendants Preston

and CCS.10

For the reasons set forth below, the Court will grant the Defendants’ motions

to dismiss based on Plaintiff’s failure to allege Defendants’ personal involvement

in the actions alleged as well as Plaintiff’s failure to state a claim against

Defendants on the facts alleged. Additionally, the Court will sua sponte dismiss

Plaintiff’s claim against Defendant Fisher for failure to allege personal

involvement in the actions alleged in the complaint.

I. STANDARD OF REVIEW

A. Rule 12(b)(6)

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.”11 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.12 In addition to considering the facts alleged

on the face of the complaint, the court may consider “documents incorporated into

10 Doc. 36.

11 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.

1996).

the complaint by reference, and matters of which a court may take judicial

notice.”13

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

contained in a complaint is inapplicable to legal conclusions.”14 “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.”15 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.”16

13 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

14 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.”).

15 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (footnote omitted).

B. 28 U.S.C. § 1915

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

screening provisions of 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) 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.”17 Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may

dismiss a complaint as frivolous if it is “based on an indisputably meritless legal

theory” or a “clearly baseless” or “fantastic or delusional” factual scenario.18

Because Johnson 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.”19

II. JOHNSON’S COMPLAINT

Johnson’s complaint states in toto:

In March 2020 plaintiff injured himself, tearing the bicep tendons in

both arms while doing pull-ups. He sought medical care, but for over

30 days was only provided pain medication and advised that diagnostic

measures would be taken at some point. Due to the deliberate

indifference of the defendants, Preston, Ellers and Correct Care

Solutions, and even after the filing of a grievance, plaintiff was not

provided necessary medical care for the diagnosis, treatment, and repair

of the injuries to his arms. The delay in diagnosis and treatment caused

the tendons to atrophy and required reconstructive surgery that included

removal of his tendons and replacement of artificial tendons. After

separate surgeries of his arms, plaintiff was denied proper and

17 Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).

18 Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774

(3d Cir. 1989).

necessary medical care on his return to SCI-Rockview and was not

housed in the infirmary but was placed in a housing area not suitable

for recovery from serious surgery, due in part to its filthy condition.

Further, the defendants failed to provide the prescribed post-surgical

care and treatment causing pain, swelling and lack of range of

movement in the arms. When plaintiff filed grievances on these

matters, defendants retaliated against him by engaging in an ignoring a

pattern of cell shakedowns, confiscation of legal mail, and denial of

basic hygiene and other needs in his housing area.20

Plaintiff filed the instant action raising an “Eighth Amendment claim for

deliberate indifference to serious medical condition, delayed diagnosis in treatment

and failure to properly provide post-surgery care and treatment; Eighth

Amendment claim for failure to properly supervise and train medical staff at SCI-

Rockview; First and Eighth Amendment claims for retribution for plaintiff’s

grievances and complaints regarding medical care; and State law negligence and

medical malpractice claims.”21 Plaintiff seeks “monetary relief for physical and

emotions pain and suffering, past, present and future.”22

III. DISCUSSION

A. Federal Claims

Section 1983 of Title 42 of the United States Code offers private citizens a

cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.

The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

20 Doc. 1 at 4.

21 Doc. 1 at 5.

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress ....23

To state a claim under § 1983, a plaintiff must allege “the violation of a right

secured by the Constitution and laws of the United States and must show that the

alleged deprivation was committed by a person acting under color of state law.”24

Additionally, “[t]o establish liability for deprivation of a constitutional right under

§ 1983, a party must show personal involvement by each defendant.”25 “A

plaintiff makes sufficient allegations of a defendant’s personal involvement by

describing the defendant’s participation in or actual knowledge of and

acquiescence in the wrongful conduct.”26 A court may infer that the defendant had

contemporaneous knowledge of wrongful conduct from the circumstances of the

case, but that knowledge must be actual, not constructive.27 “A conclusory

23 Id., see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95

F.3d 1199,1204 (3d Cir. 1996).

24 West v. Atkins, 487 U.S. 42,48 (1988). See also Barna v. City of Perth Amboy, 42 F.3d

809,815 (3d Cir. 1994).

25 Keys v. Carroll, No. 3:10-CV-1570, 2012 WL 4472020, at *9 (M.D. Pa. Sept. 26,2012),

citing Iqbal, 556 U.S. at 676-77 (“Because vicarious liability is inapplicable to Bivens and

§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.”).

26 Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210,222 (3d Cir. 2015) (citing Rode v.

Dellarciprete, 845 F.2d 1195,1207 (3d Cir. 1988)).

allegation that defendants were ‘directly involved’ in the violations of the

plaintiff’s rights is not sufficient to allege personal involvement.”28

Initially, the Court notes that aside from being named in the caption, the

complaint is devoid of any factual allegations against Defendant Captain

Vangorder and Defendant Dr. Fisher. Accordingly, the complaint fails to plead

their personal involvement in any alleged civil rights violations.

Plaintiff’s Eighth Amendment medical claims against Defendants Preston,

Ellers and Correct Care Solutions will be dismissed for failure to state a claim

upon which relief may be granted. Johnson asserts claims against these

Defendants for deliberate indifference to a serious medical need as well as medical

malpractice. A prima facie claim of deliberate indifference require allegations of

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

indicate deliberate indifference to that need.”29 Medical malpractice claims under

Pennsylvania law require allegations that (1) defendant owed plaintiff a duty of

care; (2) defendant breached the duty; (3) defendant’s breach was the proximate

cause of plaintiff’s injuries; and (4) plaintiff suffered damages as a result of the

breach.30

28 Chimenti v. Pa. Dep’t. of Corr., No. 15-CV-3333, 2016 WL 1125580, at *5 (E.D. Pa. Mar.

21, 2016) (citing Bush v. Dep’t of Human Servs., 614 Fed.Appx. 616, 620 (3d Cir. 2015)).

29 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)).

30 Mitchell v. Shikora, 209 A.3d 307, 314 (Pa. 2019) (citing Hightower-Warren v. Silk, 698

The only allegations against these Defendants are the conclusory allegation

that they failed to provide necessary medical care for diagnosis, treatment, and

repair of injuries to Plaintiff’s arms. However, it appears from the four corners of

the complaint that Plaintiff received medical treatment for his bicep tendon tears

and underwent separate surgeries on each arm to correct the injuries. Such actions

are insufficient to allege deliberate indifference or malpractice.

It also appears from Plaintiff’s complaint that these Defendants diligently

treated Johnson and did not harm him in any way. Nor is there any allegation that

any of the named Defendants intentionally withheld medical treatment from

Plaintiff in order to inflict pain or harm upon Plaintiff.31 Therfore, 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; these disagreements do not rise to the level of an Eighth

Amendment claim.32 Consequently, Defendants’ motion to dismiss Plaintiff’s

Eighth Amendment claim for failure to state a claim will be granted.33

31 Farmer, 511 U.S. at 837; Rouse, 12 F.3d at 197.

32 See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).

33 To the extent that Plaintiff makes the conclusory allegation that this isolated incident of

alleged medical indifference was a result of the failure of Defendants to properly supervise

or train the medical staff, see Doc. 1 at 5, the Court finds that the Plaintiff’s failure to

manifest a cognizable constitutional Eighth Amendment claim of deliberate indifference

also precludes a failure to train claim. See Connick v. Thompson, 563 U.S. 51, 61 (2011)

(holding that a failure to train or supervise “must amount to deliberate indifference to the

rights of person with whom the untrained employees come into contact”). “[D]eliberate

indifference is a stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Bd of Cnty Cm’rs of Bryan

Moreover, Plaintiff fails to state an Eighth Amendment conditions of

confinement claim. The Eighth Amendment prohibits cruel and unusual

punishment.34 Prison conditions constitute cruel and unusual punishment if they

result in a serious deprivation of the prisoner’s basic human needs.35 Only

conditions that are so reprehensible as to be deemed inhumane under contemporary

standards or deprive an inmate of minimal civilized measures of the necessities of

life violate the Eighth Amendment.36 “A claim of inhumane prison conditions may

rise to the level of an Eighth Amendment violation where the prison official

‘deprived the prisoner of the minimal civilized measure of life’s necessities’ and

‘acted with deliberate indifference in doing so, thereby exposing the inmate to a

substantial risk of serious damage to [his] future health.’ ”37 Such a claim contains

two requirements: an objective and subjective component.38 A prisoner asserting a

claim that their conditions of confinement violate the Eighth Amendment must

allege: (1) that objectively, they were “incarcerated under conditions posing a

substantial risk of serious harm;” and (2) that the defendant prison official

negligence. It is a deliberate choice to follow a course of action that is made from among

various alternatives without regard to the known or obvious consequences.” Pelzer v. City

of Philadelphia, 656 F.Supp.2d 517, 532 (E.D. Pa. 2009) (internal citation and quotation

marks omitted). Consequently, any failure to train claim is dismissed.

34 U.S. Const. Amend. VIII.

35 See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000).

36 See Hudson v. McMillian, 503 U.S. 1, 8–9 (1992); Wilson v. Seiter, 501 U.S. 294, 298 (1991).

37 Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (quoting Parkell v. Danberg, 833 F.3d

313, 335 (3d Cir. 2016)).

personally knew of the substantial risk to the inmate’s health or safety and failed to

“respond [ ] reasonably to the risk.”39

Here, Plaintiff’s only allegation is that after his arm surgery, he was “not

housed in the infirmary but was placed in a housing area not suitable for recover

from serious surgery, due in part to its filthy condition.”40 Such a claim is

insufficient to establish an Eighth Amendment conditions of confinement claim.

Not only does Plaintiff’s allegation amount to merely a legal conclusion, which

does not meet the pleading standard in federal court, but the complaint also fails to

contain any allegations that Defendants had any knowledge about the bald

conclusion that the conditions were filthy. As such, the Corrections Defendants’

motion to dismiss Plaintiff’s Eighth Amendment conditions of confinement claim

will be granted.

Finally, to state a First Amendment retaliation claim, a prisoner must allege

that (1) “he was engaged in constitutionally protected conduct,” (2) he suffered an

“adverse action” by prison officials sufficient to deter a person of ordinary

firmness from exercising his First Amendment rights, and (3) the inmate's

protected conduct was a “substantial or motivating factor” in the prison officials’

decision to take the adverse action.

39 Id. at 834, 844–45.

In this matter, Johnson alleges that Defendants retaliated against him for

filing grievances by, among other things, searching his cell multiple times,

confiscating his legal materials, and denying Plaintiff basic hygiene and other

needs. Defendants argue that Johnson’s allegations are merely legal conclusions

and lack factual support to adequately plead causation. The Court agrees.

In sum, Plaintiff has failed to specify which grievance or grievances

triggered the alleged retaliatory acts; the subject matter of said grievances; or when

the grievances were submitted. Nor has Plaintiff plausibly described any conduct

by any specific Defendant that would demonstrate retaliatory animus, causation, or

personal involvement in the retaliatory action. The Court will therefore dismiss

Plaintiff’s retaliation claim against all Defendants.

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.41 The Court will grant leave

to amend in this case because the dismissed claims are factually, rather than

legally, deficient.

Under Federal Rule of Civil Procedure 15, leave to amend should be freely

given “when justice so requires.”42 In the seminal case of Foman v. Davis,43 the

Supreme Court of the United States provided guidance for when leave to amend

41 Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

42 Fed.R.Civ.P. 15(a)(2).

may be denied. The circumstances that weigh against granting leave include undue

delay, bad faith or dilatory motive, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party, and

futility.44 Amendment is considered futile if the pleading, “as amended, would fail

to state a claim upon which relief could be granted.’”45 Rule 15 aims to offer “the

maximum opportunity for each claim to be decided on its merits rather than on

procedural technicalities.”46

B. Negligence/Medical Malpractice

Federal courts have jurisdiction over state claims which are related to the

federal claims and result from a common nucleus of operative facts.47

Supplemental jurisdiction may be declined over a claim when the court has

dismissed all claims over which it has original jurisdiction.48 When rendering a

determination regarding pendent jurisdiction district courts should consider judicial

economy, convenience, and fairness to the litigants.49

Once jurisdiction has been exercised over the state claim, elimination of the

federal claim does not deprive the court of jurisdiction to adjudicate the pendent

44 Id. at 182.

45 In re Merck & Co., Inc. Sec., Derivative & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007)

(quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).

46 United States v. Thomas, 221 F.3d 435 (3d Cir. 2000) (citations omitted).

47 See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); Aldinger v. Howard, 427

U.S. 1, 9 (1976).

48 See 28 U.S.C. § 1367(c)(3) (1997).

49 New Rock Asset Partners v. Preferred Entity Advancements, 101 F.3d 1492, 1505 (3d Cir.

claim.50 However, if a federal claim is dismissed prior to trial, the district court

should decline to decide the pendent state claims, “unless considerations of judicial

economy, convenience, and fairness provide an affirmative justification for doing

so.”51

Once the basis for federal jurisdiction disappears, a district court should only

exercise its discretion to entertain pendent claims if extraordinary circumstances

exist.52 A decision as to whether this Court will exercise, jurisdiction over

Plaintiff’s state law tort claims against the Defendants will be held in abeyance to

allow Plaintiff opportunity to file an amended complaint.

IV. CONCLUSION

Based on the foregoing, the Court will grant Defendants’ motions to dismiss

Plaintiff’s complaint. The Court will give Plaintiff an opportunity to file an

amended complaint to cure the deficiencies with respect to Plaintiff’s First

Amendment retaliation claim and Plaintiff’s Eighth Amendment medical and

Eighth Amendment conditions of confinement claims.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

50 Id. (citing Lentino v. Fringe Emp. Plans, Inc., 611 F. 2d 474, 479 (3d Cir. 1979) ).

51 Id.

52 New Jersey Department of Enviromental Protection v. Glouchester Enviromental