The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LARRY BURTON, : CIVIL ACTION NO. 1:22-CV-1625
:
Plaintiff : (Judge Conner)
:
v. :
:
JOHN WETZEL, et al., :
:
Defendants :
MEMORANDUM
This is a prisoner civil rights case filed pursuant to 42 U.S.C. § 1983. Plaintiff,
Larry Burton, alleges that defendants violated his rights under the First, Eighth,
Fifth, and Fourteenth Amendments and committed various state torts by
compelling him to receive a COVID-19 vaccine. Defendants have moved to dismiss
through two separate motions. The motions will be granted.
I. Factual Background & Procedural History
This case was filed on September 21, 2022 in the Schuylkill County Court of
Common Pleas and was removed to this district on October 17, 2022. (Doc. 1).
According to the complaint, Burton was a prisoner in Mahanoy State Correctional
Institution (“SCI-Mahanoy”) on March 12, 2020, when defendant John Wetzel, the
secretary of the Pennsylvania Department of Corrections, issued a statewide
lockdown of all state prisons due to the COVID-19 pandemic. (Doc. 1-1 at 5).
Defendants Wetzel and Mason, the superintendent of SCI-Mahanoy, subsequently
informed all prisoners in SCI-Mahanoy on August 5, 2021 that if they did not
consent to the prison administering the Johnson & Johnson COVID-19 vaccine that
they would be subjected to various restrictions on their confinement, including loss
of visitation, phone, yard, law library, and exercise privileges. (Id. at 5-6). SCI-
Mahanoy staff also informed Burton that he would be transferred to the prison’s
FB-Unit if he did not consent to be vaccinated. (Id. at 6).
The complaint alleges that Burton did not wish to receive the Johnson &
Johnson vaccine because of the “many side effects” he believed the vaccine would
cause. (Id.) Burton allegedly informed defendant Bora Saikia1 that although he did
not wish to receive the Johnson & Johnson vaccine, he would consent to receive
vaccines manufactured by Pfizer or Moderna. (Id.)
Prison staff allegedly asked Burton to sign a consent form for the Johnson &
Johnson vaccine on August 5, 2021. (Id.) Burton stated that he did not wish to sign
a consent form to be vaccinated unless he was receiving a vaccine manufactured by
Pfizer or Moderna. (Id. at 7). Nevertheless, because Burton was “so scared” of the
prison staff members, he signed the form “under duress.” (Id.) Defendant Bora
Saikia allegedly directed a Jane Doe defendant to administer the vaccine after he
signed the consent form, and the Jane Doe defendant did so. (Id.) The complaint
alleges that Burton experienced back pain, arm pain, headaches, sore legs, severe
stomach pain, and severe diarrhea for months after receiving the vaccine. (Id.)
The complaint names Wetzel, Mason, and Bora Saikia as defendants along
with several other DOC and SCI-Mahanoy officials. (Id. at 4-5). The complaint
asserts claims for negligence; “willful and wanton misconduct”; violation of the
1 This defendant is identified in the complaint as defendant Bora.
First, Fifth, Eighth, and Fourteenth Amendments; failure to protect; failure to
intervene; and civil conspiracy. (Id. at 10-13). Burton seeks damages and
declaratory relief. (Id. at 14).
Defendants Wetzel, Mason, Stetler, White, Little, Dunkle, and Malick moved
to dismiss on October 31, 2022. (Doc. 6). Bora Saikia filed a separate motion to
dismiss on November 10, 2022. (Doc. 9). After receiving numerous extensions of
time, Burton timely opposed the motions on August 29, 2023. (Doc. 20).
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 678.2
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)).
2 Relying on Conley v. Gibson, 355 U.S. 41 (1957), Burton asserts that his
complaint should not be dismissed unless there is “no set of facts” that could
establish his claims. (Doc. 20 at 5). Burton’s reliance on Conley is misplaced. The
Supreme Court abrogated Conley’s “no set of facts” standard in Twombly. See 550
U.S. at 561-63.
III. Discussion
Burton 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)).
Burton’s claims arise from defendants allegedly compelling him to receive
the Johnson & Johnson COVID-19 vaccine. Another court in this district recently
held on facts that were essentially identical to the instant case that compelling
inmates to either receive the Johnson & Johnson vaccine or be transferred to a
housing unit reserved for unvaccinated inmates and lose several privileges did not
violate the plaintiff’s constitutional rights. See Fennell v. Wetzel, No. 4:22-CV-880,
2023 WL 1997116, at *5 (M.D. Pa. Feb. 14, 2023) (Brann, C.J.). We agree with
Fennell’s ratio decidendi and find that defendants’ alleged actions, even if proven,
would not constitute a violation of Burton’s constitutional rights. Defendants’
actions of giving Burton a choice “whether to be vaccinated with the J&J vaccine or
be moved to a unit with other unvaccinated and infected prisoners and losing
certain privileges” cannot be construed as forcing Burton to be vaccinated against
his will. Id. Burton could have simply accepted the housing unit transfer and the
loss of privileges and he would not have received the vaccine.
The choice offered to Burton also cannot be considered conscience-shocking
behavior that would give rise to a Fourteenth Amendment due process claim or an
Eighth Amendment conditions of confinement claim. “Defendants’ purported
action of attempting to vaccinate prisoners against the COVID-19 virus and
separating vaccinated and unvaccinated inmates in no way represents ‘conscience-
shocking’ conduct. It is, in fact, an eminently reasonable course of action to protect
against the spread of the virus.” Id.
Burton’s tort claims likewise fail as a matter of law because defendants are
entitled to sovereign immunity. Pennsylvania law provides that commonwealth
employees acting within the scope of their employment are entitled to sovereign
immunity from most state law claims. See Pa.C.S. § 2310. With ten limited
exceptions, see 42 Pa.C.S. § 8522, commonwealth employees retain their sovereign
immunity with respect to both intentional tort and negligence claims. See Mitchell
v. Luckenbill, 680 F. Supp. 2d 672, 682 (M.D. Pa. 2010) (citing Holt v. Nw. Pa.
Training P’Ship Consortium, Inc., 694 A.2d 1134, 1139 (Pa. Commw. Ct. 1997)).
None of the ten exceptions to sovereign immunity apply in the instant case.3 Hence,
Burton’s tort claims will be dismissed based on sovereign immunity.
3 Although Section 8522 waives sovereign immunity for claims arising from
the “administration, manufacture and use of a toxoid or vaccine not manufactured
in this Commonwealth,” such claims may only be asserted under the following
circumstances:
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
will deny leave to amend as futile. No factual amendment of Burton’s constitutional
claims would be sufficient to state a claim upon which relief may be granted
because the choice offered to Burton to accept the Johnson & Johnson vaccine or
be transferred to another housing block and lose certain privileges simply does not
amount to a constitutional violation. Amendment is similarly futile with respect to
(i) The toxoid or vaccine is manufactured in, and available only from,
an agency of another state.
(ii) The agency of the other state will not make the toxoid or vaccine
available to private persons or corporations, but will only permit its
sale to another state or state agency.
(iii) The agency of the other state will make the toxoid or vaccine
available to the Commonwealth only if the Commonwealth agrees to
indemnify, defend and save harmless that agency from any and all
claims and losses which may arise against it from the administration,
manufacture or use of the toxoid or vaccine.
(iv) A determination has been made by the appropriate
Commonwealth agency, approved by the Governor and published in
the Pennsylvania Bulletin, that the toxoid or vaccine is necessary to
safeguard and protect the health of the citizens or animals of this
Commonwealth.
(v) The toxoid or vaccine is distributed by a Commonwealth agency to
qualified persons for ultimate use.
42 Pa.C.S. § 8522(b)(9). The vaccine administered to Burton was manufactured by a
private company—Johnson & Johnson—and sovereign immunity therefore is not
waived. See id. § 8522(b)(9)(i) (noting that sovereign immunity is only waived if the
vaccine was manufactured “by an agency of another state”).
Burton’s tort claims because defendants are entitled to sovereign immunity as to
those claims.
IV. Conclusion
We will grant defendants’ motions to dismiss and dismiss Burton’s complaint
without further leave to amend. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: September 7, 2023