Hayes v. Houser

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MS. S. HAYES, No. 4:22-CV-01939

Plaintiff, (Chief Judge Brann)

v.

MORRIS HOUSER, et al.,

Defendants.

MEMORANDUM OPINION

AUGUST 31, 2023

Plaintiff, Ms. S. Hayes1, an inmate, formerly confined in the State

Correctional Institution, Albion, Pennsylvania,2 filed the above captioned civil

rights action pursuant to 42 U.S.C. § 1983.3 She complains of actions which

occurred while she was confined at SCI-Benner.4 The action proceeds via an

amended complaint.5 The named Defendants are Dr. Dancha, Central Office

Regional Medical Director; and the following SCI-Benner employees: Morris

Houser, Facility Manager; Lt. Kauffman, Security Lieutenant, Bradley Booher,

1 The Court will use feminine pronouns as Hayes identifies as a transgender female.

2 Plaintiff is currently confined in the Oregon State Penitentiary, Salem, Oregon.

3 Doc. 1.

4 Id.

5 Doc. 12. Although Plaintiff’s amended complaint continues to reference inmate, Joel

Marrero, as a Plaintiff in the above captioned action, by Order dated March 6, 2023, this

Plaintiff was dismissed from the above captioned action for failing to comply with this

Court’ Thirty (30) Day Administrative Order requiring Marrero to either remit the

required filing fee to submit a fully executed application for leave to proceed in forma

pauperis. See Doc. 28. As such, the Court will not consider any allegations in the

Deputy Superintendent; Jennifer Rossman, PREA/PRC Staff member; CHCA

Boland and CHCA Ardery, Health Care Administrators; Dr. Kollman, Site Medical

Director; and John and Jane Does, Dept. staff to be named.6 Hayes alleges that

Defendants acted with deliberate indifference in denying and or failing, to properly

treat Plaintiff’s medical and mental health needs.7 Specifically, Plaintiff alleges

that she “is a transfemale prisoner diagnosed with gender dysphoria” and “other

than hormone replacement therapy (“HRT”) she has not received any further

treatment for her gender dysphoria.”8 For relief, Plaintiff seeks compensatory and

punitive damages, as well as injunctive relief.9

6 Id. As to the Jane and John Doe Defendants, Plaintiff claims that she was transferred to

SCI-Albion for a three-week period during the time frame referenced in her complaint

and that “once her grievances are exhausted these Albion issues and Defendants will be

added to this complaint.” Doc. 12 at 6. Suffice to say that Plaintiff has never amended

her complaint to add any SCI-Albion issues or Defendants, nor would she be permitted to

amend. Any occurrences and Defendants at SCI-Albion would be considered an

impermissible joinder, in violation of Fed.R.Civ.P. Rule 20, as such occurrences and

Defendants would not arise out of the same transaction or occurrence as Plaintiff’s SCI-

Benner claims and would not contain any common question of law or fact. DaSilva v.

Plishka, 2022 WL 949988, *2 (M.D. Pa. March 29, 2022) (a plaintiff may join multiple

defendants in a single complaint only if he asserts at least one claim linking all

defendants); Robinson v. Delbalso, 2020 WL 5602932, *2 (M.D. Pa. September 18,

2020) (“the policy behind Rule 20 is not a license to join unrelated claims and defendants

in a single lawsuit.”); Nicholas v. Heffner, 228 F. App'x 139, 141 (3d Cir. 2007)

(“[M]ultiple claims against a single party are fine, but Claim A against Defendant 1

should not be joined with unrelated Claim B against Defendant 2. Unrelated claims

against different defendants belong in different suits[.]”). Thus, Defendants, John and

Jane Doe will be dismissed from the above captioned action.

7 Id.

8 Id.

9 Id.

Presently before the Court are two separate motions to dismiss, filed on

behalf of all Defendants.10 For the reasons set forth below, the Court will grant the

Defendants’ motions to dismiss.

I. STANDARD OF REVIEW

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

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

10 Docs. 22, 29.

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

1996).

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

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.”).

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

Because Hayes proceeds pro se, her pleading is liberally construed and her

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

than formal pleadings drafted by lawyers.”17

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

16 Iqbal, 556 U.S. at 681.

17 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

II. HAYES’ AMENDED COMPLAINT18

Hayes claims that in December 2020, Hayes v. Zaken, 20-1136 was settled,

exempting claims arising at Greene” and “put[ting] Defendants on notice of GD19

issues.”20 On January 6, 2021, as a result of her settlement, Hayes was transferred

to SCI-Benner.21 While at Benner, Hayes was allowed to continue to present as a

female and “was allowed to wear a ball cap to conceal her pattern baldness in most

areas” and was “never challenged on her gender expression.”22

On March 8, 2021, Plaintiff “wrote PREA compliance manager Jennifer

Rossman, requesting to purchase eyeshadow and brow pencil to eliminate using art

supplies as makeup.”23 Plaintiff claims that this request was denied.24

On March 31, 2021, Plaintiff filed Grievance No. 918898, alleging that Mr.

Boland “officially denied the request for male pattern baldness and face/body hair

18 When ruling on a motion to dismiss, courts generally consider only the allegations

contained in the complaint, the attached exhibits, and matters of public record. Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993);

Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). However, the court may also

consider “undisputedly authentic document[s] that a defendant attaches as an exhibit to a

motion to dismiss if the plaintiff’s claims are based on the [attached] document[s].”

Pension Benefit, 998 F.2d at 1196; see also, Pryor v. Nat’l Collegiate Athletic Ass’n, 288

F.3d 548, 560 (3d Cir. 2002); U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d

Cir. 2002) (“a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss into one for summary judgment.”).

Defendants submit as exhibits the grievances and appeals filed by Plaintiff and relied on

by Plaintiff in her amended complaint. As such, Defendants’ exhibits will be considered

without converting their motion dismiss into one for summary judgment.

19 Gender Dysphoria.

20 Doc. 12.

21 Id.

22 Id.

23 Id.

24 Id.

removal treatment.”25 Boland stated “Doctor Kollman and Doctor Dancha both

concurred the request was cosmetic and not medically necessary.”26 Plaintiff

believed this to be “a blanket denial and none of these three defendants did an

independent/in person evaluation prior to the denial.27 Plaintiff alleges that she

appealed Grievance No. 918898 to final review, where it was denied.28

On June 15, 2021, Plaintiff filed Grievance No. 932509, challenging the

“lack of adequate gender expression items offered in the commissary.”29

Specifically, Plaintiff requested to be allowed to “purchase 2 packs of Best Form

cotton bras, 4 L.A. color eyeshadows and 3 L.A. color eyeliners from

Walkenhorst’s.”30

After a brief extension of time,31 Plaintiff’s Grievance No. 932509 was

denied as follows:

In your grievance, you indicate that your complaint is due to the lack

of adequate gender expression items offered in the Commissary. You

state that on 6/12/2020, you used the last of your eye shadow and

black/brown eye pencil. You also indicate that you do not have a bra

in your size. You state your belief that these items are approved on

the Commissary list; however, are out of stock. Therefore, you

request that you be permitted to order 2 packs of BestForm cotton

bras; 4 LA color eyeshadows; and 3 LA color eyeliners from

Walkenhorst’s.

25 Doc. 12 at 5.

26 Id.

27 Id.

28 Id.

29 Doc. 30-2 at 8.

30 Id.

31 Doc. 30-2 at 7.

First, it is noted that black mascara, black eye pencil, pink lipstick,

and brown lipstick are all currently listed on the General Population

Commissary Catalog. Therefore, you are not being denied gender

affirming make up. Per DC ADM 815 Section 2, B, 23. “Only items

listed in the Approved Outside Purchase Items List (Attachment 2-E)

may be purchased.” Your requested items of eyeshadow and

black/brown eye pencil are not listed as items which can be purchased

from an outside vendor.

In response to this grievance, I CCPM Rossman met with you on

07/01/2021 to inquire what size bras you are requesting. You

indicated that you require a size 38B and would like to order such

from an outside vendor, specifically Walkenhorst’s. You were

subsequently called to Clothing Exchange on 07/06/2021 and offered

size 38 bras; however, you declined, indicating that you already have

that style bra and are requesting a different style. If an item is out of

stock, you would need to wait until it is in stock to order. DC-ADM

815 Section 2, B, 1, specifically states that “items available in the

Commissary cannot be purchases as an Outside Purchase. Outside

Purchase requests for other brands or styles of products that are

offered for sale in the commissary will not be permitted.” Lastly,

Walkenhorst’s is not an outside vendor that is approved in accordance

with DC ADM 815.

Due to the reasons noted above, your grievance and requested relief

are denied.32

Plaintiff appealed Grievance No. 932509 to the Secretary’s Office of Inmate

Grievances and Appeals for Final Review, where it was denied.33

On August 31, 2021, Plaintiff alleges that he met with Dr. LeCleric for male

pattern baldness and face/body hair removal treatment.34 He states that Dr.

LeCleric “agreed that these were medically necessary procedures for a trans

32 Doc. 30-2 at 5.

33 Doc. 30-2 at 1.

34 Doc. 12 at 5.

female” and that Plaintiff “would receive an answer in writing concerning these

issues.”35 On September 1, 2021, Plaintiff received a written response stating the

following:

You were seen by Dr. LeCleric for transgender dysphoria on 8/31/21.

Per policy we do not supply electric razors. You will need to make

arrangements with your unit mgr, counselor, etc., to work with the

barber shop to accommodate a time for you to remove your unwanted

body hair.

This was the direction given to us by our regional medical director for

central region.36

As a result of this response, Plaintiff filed Grievance No. 944820, which was

rejected on September 4, 2021.37

On April 21, 2022, Plaintiff claims that an “’Investigative Cell Search’ was

performed on [her] cell,” which “lasted an hour and the officers left the cell with a

plastic bag of nuisance contraband.”38

On April 27, 2022, she claims that “at approximately 10:20 am, staff came

to cell F-B-204 and placed Ms. Hayes in handcuffs and escorted her to the RHU,”

with “no justification given for this action.”39 At approximately 12:00 pm,

Plaintiff received Misconduct No. D692640, charging her with “Possession of K-2

35 Id.

36 Doc. 49-6 at 9.

37 Id.

38 Doc. 12 at 9.

39 Id.

and Conveying K-2 into the prison via legal mail she received on 4-18-22.”40

Plaintiff alleges that this misconduct “came six days after the cell search and stated

that a prison information stated that Ms. Hayes and Mr. Marrero were working

with two other prisoners to introduce K-2 into the prison.”41 Specifically, the

misconduct stated that “disguised legal mail…was mailed 4-6-22…from Pittsburgh

PA…and was mailed Priority mail.”42 Plaintiff, however, claims that the mail she

received “was in fact real legal mail that was mailed on 4-15-22…mailed from a

law firm in Connecticut…and came regular postage…there was a weekly control

number on the mailing Ms. Hayes received and the mail was inspected by security

on 4-18-22 prior to giving it to Ms. Hayes.”43 She concludes that “the facts in the

writeup do not match the mailing Ms. Hayes received.”44 “Because staff refused to

speak with Ms. Hayes to verify these facts, Ms. Hayes declared a hunger strike on

4-27-22 (no food/no liquids)” and “made this known to PSS Hall and in writing via

her DC-141 part 2(c) form.”45

On May 2, 2022, Ms. Hayes “went to her hearing and presented evidence

and offered contact with her attorney to verify that her legal mail was not the mail

in the writeup,” and “the hearing examiner refused to verify the facts and found her

40 Id.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id.

guilty of contraband and conveying of contraband via legal mail.”46 Plaintiff states

that “as a result she declared she was on a hunger strike to put it on record and was

taken back to her cell.”47 Later in the morning, “Ms. Hayes was seen by medical

for the first time. No blood or urine was taken and the nursing staff performed a 3

minute examination. Ms. Hayes was then taken back to her cell and left alone.”48

Ms. Hayes “found a razor blade on the floor of her RHU cell and used it to cut her

right arm from wrist to elbow.”49 She was removed from her cell, seen by a nurse,

and “treated for a severe cut to her right forearm.”50 The nurse “dressed the wound

and Ms. Hayes was then taken to Mount Nittany Hospital emergency room where

she received 17 sutures for a wound 15cm long and 5cm deep.51

On May 5, 2022, “Ms. Hayes wrote a detailed grievance (#979279)

pertaining to the trigger event, hunger strike and the suicide attempt, which, on

June 3, 2022, was denied by Defendant Booher as follows:

This is in response to grievance #979279. In the grievance you allege

that this grievance is on deliberate indifference/failure to protect a

suicidal prisoner. You state the issue spans a time period from

4.27.22 to 5.2.22 where all the events link to form a single issue. You

state that (at the time of the grievance) you were a suicidal prisoner

with a documented history of suicidal behavior that follows a pattern;

perceived injustice, hunger strike, suicide attempts. You state that

SCI Benner Township staff is aware of this pattern due to Hayes vs.

46 Doc. 12 at 10.

47 Id.

48 Id.

49 Id.

50 Id.

51 Id.

Gilmore lawsuit, this is the suicide attempt case that got you to SCI

Benner Township and the following sequence of events; 4.27.22, you

were placed in the RHU and issued a fabricated misconduct. Lt.

Kauffman and a CHS stated that on 4.18.22, your legal mail was fake

and contained a drug called K-2. You state that no drugs were found

in your cell. The suspected package was mailed 4.6.22 via priority

mail and it arrived twelve days later by way of regular mail which,

does not fit the timeline. You state that most important, your legal

mail came from a legit law firm. You stated that once in the RHU,

you immediately stated you were on a no food/no liquid protest as

soon as you read the misconduct. You told the psychology staff

working the unit and later Superintendent Houser about your

food/liquid protest. You state that block video will show that no tray

came into your cell and staff did their job by noting the meals that

were refused. You stated medical personnel never placed you on the

hunger strike protocol. You stated on 4.28/4.29, Superintendent

Houser told you if it was real legal mail the write up would be

dismissed and you told him you could provide it was legit legal mail.

You continued the no food/no liquids until 5.2.22. You state you

attended your hearing and during the hearing you put on record you

had missed fifteen meals and intended to continue the hunger strike.

At that time, medical department staff began the hunger strike

protocol. You made it clear that you would rather die than allow this

injustice to stand and wanted out of the PA system. On May 2, 2022,

at approximately 1600 hours, you found a razor in your cell and cut

your arm 15cm long and 3-4 cm deep. You state that the only reason

you didn’t die was due to severe dehydration and quick RHU

response. You stated, given your history you should have been in the

POC on 4.28.22 and especially after informing Superintendent

Houser. The requested remedy is you are provided with eight items,

lettered A through G, for litigation, listed in this grievance.

I have reviewed this matter and here are my findings. On 6.3.22, CO4

Williamson and I spoke with you in the J Unit (SL5HU) regarding this

grievance. I asked you if the basis of this grievance were that the

facility did not keep you safe based on these factors: 1) The Hayes vs.

Gilmore lawsuit, 2) failure to place you in a psychiatric observation

cell due to your hunger strike and 3) your verbal interaction with

Superintendent Houser. You agreed that was the basis of this along

with the misconduct. I advised you that misconducts cannot be

grieved (Per the DC-Adm 804) and there are other avenues such as the

misconduct appeal process. I further stated that I would not be

addressing the misconduct in this grievance. I advised you that in

regard to the Hayes vs. Gilmore lawsuit, that it would not have been

an indicator to staff for placement into the POC. I advised you that I

had already spoken to Superintendent Houser and that he reported that

you advised him that your purpose for a hunger strike was to initiate a

transfer out of the Pennsylvania Department of Corrections and at no

time did you state you were actively suicidal. The medical

department was notified of your Hunger strike on 5.2.22 after you

refused your tenth meal. Medial staff evaluated you and determined

that you were medically stable and could remain in the RHU with

daily evaluations. Medical staff noted that you told them you were on

a hunger strike as an avenue to be transferred out of the PA

Department of Corrections. It is also to be noted that upon reception

into the SL5HU, Psychology Staff (PSS W. Hall) assessed you and

you stated that you were not suicidal. During our conversation on

6.3.22, you confirmed this to be accurate. Psychology staff saw you

again on 4.28.22 and 4.29.22 and you did not report any suicidal

ideations. Based on the information gathered during this grievance,

there is no merit to support your allegations that staff did not take

appropriate actions based on the above-mentioned reasons you

previously stated. Specifically, you did not display or verbalize

suicidal ideations prior to the self-harm incident on 5.2.22. This

grievance is denied. Your requested items for litigation will be

preserved and maintained by the facility, however, (Letter: A) All

reports to include the name of the CHS for this unjust trigger event

will not be maintained for litigation due to the sensitive and

confidential nature. The grievance is denied.52

Plaintiff appealed Grievance No. 979279 to final review before the

Secretary’s Office of Inmate Grievances and Appeals, who denied Plaintiff’s

grievance on November 8, 2022, as follows:

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

Services, Psychology Office, regarding your concern of not receiving

appropriate mental health treatment. A review of the electronic

52 Doc. 30-1 at 11.

medical record establishes frequent contact with psychology staff

prior to the incident listed in the grievance, and also shows that you

were seen much more frequently than is directed in policy. On

4/27/202, you were seen by psychology at 10:05 a.m. for a routine

contact in general population. During that contact, you were

described as appropriate and engaging, denying any thoughts of

suicide, and your feelings of depression and anxiety were addressed.

Later than day, you received a misconduct and were escorted to the

RHU. Upon arrival, you were seen by psychology and a Restrictive

Housing and Special Management Housing – Mental Health

Screening was completed which included completion of a suicide risk

assessment and the creation of a safety plan through collaboration of

yourself and psychology. During that contact, you denied any

thoughts or plans of self-harm. Your issues with anxiety and

depression were once again addressed and psycho-educational

materials were offered. You were also educated on how to reach out

to psychology for services. On 4/28/2022, you were once again seen

by psychology and denied any thoughts of self-harm. You stated that

you were on a hunger strike, and it was not an act of self-harm but a

protest against what you perceived as an unfair misconduct which

would get you “in front of a judge”. You also made the statement,

“I’m not suicidal or hurting myself, I’m allowed to fast”. On

4/29/2022, psychology approached your cell, and you were offered

out-of-cell contact which you refused. Questions were answered by

you giving a “thumbs-up” sign and your participation was mostly

nonverbal. On 5/2/2022, you were once again seen by psychology

and once again reported that your hunger strike was a protest to “get

out of this state” and reported that you were not eating until you spoke

with your legal team. Later that evening, you completed an act of

self-harm by cutting yourself with a razor blade. You were evaluated

and placed in Psychiatric Observation for your safety. On 5/3/ 2022,

you were seen out-of-cell by your mental health treatment team.

Another suicide risk assessment and safety plan were completed, as

well as a change of status treatment plan. During these contacts you

continued to assert that your behaviors were a direct protect to you

receiving an unwarranted misconduct and your desire to speak with

your legal team. On 5/4 2022, you were discharged back to the RHU

and evaluated by psychology. You were described as cooperative and

denied any thoughts of self-harm. Later on this date, you were seen

by the Psychiatric Review Team and your Individual Recovery Plan

was reviewed. A review of the Electronic Medical Record establishes

that services were appropriate, and all psychological issues were

addressed comprehensively. There is no evidence to support this

grievance. Therefore, your grievance and requested relief are

denied.53

On December 6, 2022, Plaintiff initiated the instant action, in which she

seeks compensatory and punitive damages, as well as injunctive relief, for “the

intentional deliberate indifferent to the pain and suffering caused by the denial of

treatment for the serious medical need gender dysphoria.”54

III. DISCUSSION

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.55 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, 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 ....56

53 Doc. 30-1 at 1.

54 Doc. 12 at 13.

55 See 42 U.S.C. § 1983.

56 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).

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.”57

A. Eighth Amendment Medical Claim

The Eighth Amendment prohibits prison officials from being deliberately

indifferent to an inmate’s serious medical needs by “intentionally denying or

delaying access to medical care or interfering with the treatment once

prescribed.”58 “To act with deliberate indifference to serious medical needs is to

recklessly disregard a substantial risk of serious harm.”59 “In order to sustain this

constitutional claim under 42 U.S.C. § 1983, a plaintiff must make (1) a subjective

showing that ‘the defendants were deliberately indifferent to [his or her] medical

needs’ and (2) an objective showing that ‘those needs were serious.’ ”60

A guiding principle in the deliberate indifference inquiry is that, in general,

“[d]eliberate indifference is a subjective state of mind that can, like any other form

of scienter, be proven through circumstantial evidence and witness testimony.”61

57 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).

58 Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

59 Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009).

60 Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999); citing Montgomery v. Pinchak, 294 F.3d 492,

499 (3d Cir. 2002)).

61 Pearson, 850 F.3d at 535 (citing Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993)

(noting that, when “intent becomes critical,” it is “important that the trier of fact hear” the

defendant's “testimony in order to assess his credibility”); Campbell v. Sikes, 169 F.3d

1353, 1372 (11th Cir. 1999) (“[P]laintiffs necessarily must use circumstantial evidence to

In assessing the deliberate indifference prong of an Eighth Amendment

medical care claim,

there is a critical distinction “between cases where the complaint

alleges a complete denial of medical care and those alleging

inadequate medical treatment.” United States ex rel. Walker v. Fayette

Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979). Because “mere

disagreement as to the proper medical treatment” does not “support a

claim of an eighth amendment violation,” Monmouth Cty. Corr. Inst.

v. Lanzaro, 834 F.2d 326, 346 (3d. Cir. 1987), when medical care is

provided, we presume that the treatment of a prisoner is proper absent

evidence that it violates professional standards of care. See Brown v.

Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is

well established that as long as a physician exercises professional

judgment his behavior will not violate a prisoner's constitutional

rights”).62

The deliberate indifference inquiry in an adequacy of care claim involves

both a subjective and objective component because “evaluating whether medical

treatment is adequate presents an objective question.”63 However, “the deliberate

indifference prong of a delay or denial of medical treatment claim involves only

one subjective inquiry—since there is no presumption that the defendant acted

properly, it lacks the objective, propriety of medical treatment, prong of an

adequacy of care claim.”64 Therefore, all that is needed for a jury to find deliberate

indifference in a delay or denial of medical care claim “is for the surrounding

establish subjective mental intent.”); In re Kauffman, 675 F.2d 127, 128 (7th Cir. 1981)

(“Intent ... must be gleaned from inferences drawn from a course of conduct.”)).

62 850 F.3d at 535.

63 Pearson, 850 F.3d at 535.

64 Id. at 537.

circumstances to be sufficient to permit a reasonable jury to find that the delay or

denial was motivated by non-medical factors.”65

The Court finds that Plaintiff’s gender dysphoria constitutes a serious

medical need for purposes of an Eighth Amendment claims.66 However, Plaintiff

fails to satisfy the subjective component of deliberate indifference.

Plaintiff indicates in her complaint that the “WPATH Standards of Care”

make clear that treatment of gender dysphoria “triadic treatment consists of

includes hormone replacement therapy, real life experience (Gender Expression)

and sex reassignment surgery.”67 She admits that she is receiving hormone

replacement therapy and is able to present as a female.68 She takes issue, however,

with certain institutional accommodations of her gender expression.

Initially, Plaintiff complains that the Commissary “did not have cup bras,

only sports bras which are a binding garment” and not suitable for breast

development.”69 Additionally, she expresses her dissatisfaction with the selection

of makeup the commissary offers and believes that she should be permitted to

65 Id. (citing Durmer v. O’Carroll, 991 F.2d 64, 68-69 (3d Cir. 1993); United States v.

Michener, 152 F.2d 880, 885 (3d Cir. 1945)).

66 See Doe v. Pa. DOC, 2021 WL 1583556, at *22 (W.D. Pa. Feb. 19, 2021), adopted by 2021

WL 1115373 (March 3, 2021); see also Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir.

2019) (holding that “[prisoner’s] gender dysphoria is a sufficiently serious medical need to

trigger the State’s obligations under the Eighth Amendment.”) (string citations omitted).

67 Doc. 12 at 3.

68 Id. at 4.

69 Id.

purchase both bras and makeup from an outside vendor.70 It is clear, however,

from the grievance documents referenced in Plaintiff’s amended complaint,

Plaintiff was provided an opportunity to purchase a cup bra from the Commissary

but “declined, indicating that [she] already ha[s] that style bra and [is] requesting a

different style.”71 Plaintiff was also informed that there was an array of “black

mascara, blacky eye pencil, pink lipstick and brown lipstick” available for

purchase from the Commissary.72 Thus, Plaintiff’s own grievance documents

demonstrate that Plaintiff is not being denied gender expression necessities, but,

instead, is expressing a dissatisfaction with the style, color and/or bra cup selection

available from the Commissary. While the Court can sympathize with one’s

inability to satisfy personal preferences, Plaintiff’s allegations in no way support

an Eighth Amendment claim of deliberate indifference. As such, Plaintiff’s claim

of denial of gender expression through the denial of makeup and bra purchases

from an outside vendor will be dismissed with prejudice.

Plaintiff’s next claim is that is that she discussed male pattern baldness and

face/body hair removal with Dr. LeCleric, who is not a named Defendant in this

action, and that Dr. LeCleric “agreed that these were medically necessary

procedures for a trans female.”73 When Plaintiff returned from her visit with Dr.

70 Id.

71 Doc. 30-2 at 5.

72 Id.

73 Doc. 12 at 5.

LeCleric, she was informed that, although prison policy prohibits the possession

electric razors, Plaintiff was permitted to make arrangements with her unit

manager or counselor to work with the barber shop to accommodate a time for her

to remove her unwanted body hair. Once again, it is clear from the grievance

documents relied on in Plaintiff’s amended complaint, that Plaintiff was not denied

gender expression in the form of hair removal but, after determining that

electrolysis was not medically necessary at this time, was provided a means of hair

removal that was permitted by prison regulation. To the extent that Plaintiff

disagrees with not being permitted her choice of hair removal, such claim does not

support an Eighth Amendment claim of deliberate indifference to a serious medical

condition.74 As such, Defendants’ motions to dismiss this claim will be granted

and the claim will be dismissed with prejudice. 75

74 “Mere disagreement as to the proper medical treatment [does not] support a claim of an

[E]ighth [A]mendment violation.” Monmouth Cty. Corr. Institutional Inmates v. Lanzaro,

834 F.2d 326, 346 (3d Cir. 1987).

75 The allegations against the DOC Defendants mainly concern their involvement in the

grievance process addressing Plaintiff’s claims of denial of gender affirming items.

However, claims premised upon responses issued in the grievance process, to inmate

requests or as part of the misconduct appeal process fail to establish personal

involvement in the underlying alleged unconstitutional conduct. See Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (concluding that where a defendant,

after being informed of the violation through the filing of grievances, reports, or appeals,

failed to take action to remedy the alleged wrong is not enough to show that the

defendant had the necessary personal involvement); Mincy v. Chmielsewski, 508 Fed.

Appx. 99 (3d Cir. 2013) (an officer’s review of or failure to investigate an inmate’s

grievance generally does not satisfy the requisite personal involvement); Brooks v. Beard,

167 F. App’x. 923, 925 (3d Cir. 2006) (allegations that prison officials responded

inappropriately to an inmate’s grievances do not establish the involvement of those

officials in the underlying constitutional deprivation). As such, DOC Defendants, Houser,

Rossman, Ardery, Boland and Booher, are to be dismissed from this action for Plaintiff’s

B. Eighth Amendment Deliberate Indifference to Plaintiff’s

Attempted Suicide

To state an Eighth Amendment claim based on deliberate indifference to the

risk of suicide or self-harm, the plaintiff must allege facts supporting plausible

inferences that (1) that the individual had a particular vulnerability to suicide,

meaning that there was a “strong likelihood, rather than a mere possibility,” that a

suicide would be attempted; (2) that the prison official knew or should have known

of the individual’s particular vulnerability; and (3) that the official acted with

reckless or deliberate indifference, meaning something beyond mere negligence, to

the individual’s particular vulnerability.76 The “particular vulnerability” standard

does not entail a heightened pleading requirement or a showing that “the plaintiff's

suicide was temporally imminent or somehow clinically inevitable.”77 However,

the vulnerability “must be so obvious that a lay person would easily recognize the

necessity for preventative action.”78 With presence of such risk, the second

element requires the plaintiff to either show subjective knowledge of the

vulnerability or that the official should have known that the detainee was

failure to establish their personal involvement with respect to Plaintiff’s claims regarding

denial of gender expression through baldness/hair removal treatment and gender

affirming items.

76 Palakovic v. Wetzel, 854 F.3d 209, 223–24 (3d Cir. 2017); see also Colburn v. Upper

Darby Twnshp., 838 F.2d 663 (3d Cir. 1988) (Colburn I), Colburn v. Upper Darby

Twnshp. 946 F.2d 1017 (3d Cir. 1991) (Colburn II); and Woloszyn v. County of

Lawrence, 396 F.3d 314 (3d Cir. 2005). See also Easley v. Reuberg, 2021 WL 3639734,

at *4 (W.D. Pa. July 30, 2021), report and recommendation adopted, 2021 WL 3634813

(W.D. Pa. Aug. 17, 2021) (citation omitted).

77 Palakovic, 854 F.3d at 230.

78 Id. at 222. (quoting Colburn II, 946 F.2d at 1025).

particularly vulnerable.79 “Should have known,” in this context, goes beyond

knowledge with ordinary prudence, or negligence, but is less than subjective

appreciation of the risk.80 Deliberate or reckless indifference is a willingness to

ignore a foreseeable danger to the detainee’s vulnerability, or conscience-shocking

behavior in unhurried situations.81

Plaintiff’s own grievance documents reveal that Plaintiff had frequent

contact with the psychology staff prior to the incident, and while she

communicated that she thought the misconduct was unfair, and that she wanted to

get “in front of a judge,”82 she never communicated an intent or plan to commit

suicide or to commit self-harm. On April 27, 2022, she was seen by psychology

staff, and was “described as appropriate and engaging, denying any thoughts of

suicide.”83 Her feelings of depression and anxiety were addressed.84

Plaintiff was again seen by psychology staff on April 28, 2022 and denied

any thoughts of self-harm.85 She stated, “I’m not suicidal or hurting myself, I’m

79 Colburn II, 946 F.2d at 1024-25.

80 Colburn II, 946 F.2d at 1025 (explaining that a defendant’s failure to recognize large

prominent scars on a decedent’s wrists, elbows, and neck as indicative of suicidal

tendencies amounted only to negligence precluding liability) (citing Freedman v. City of

Allentown, 853 F.2d 1111, 1116 (3d Cir. 1988)).

81 Kedra v. Schroeter, 876 F.3d 424, 446 (3d Cir. 2017) (quoting Morse v. Lower Merion

Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997); Vargas v. City of Phila., 783 F.3d 962, 973

(3d Cir. 2015)).

82 Doc. 30-1 at 1.

83 Id.

84 Id.

85 Id.

allowed to fast” and that her hunger strike was not an act of self-harm but was a

protest against what she perceived as an unfair misconduct.86

Psychology approached Plaintiff’s cell on April 29, 2022 and offered her

out-of-cell contact which she refused.87 On May 2, 2022, Plaintiff was again seen

by psychology and again reported that her hunger strike was a protest to “get out of

this state” and that she would not eat until she was able to speak to her legal

team.88

Initially, the Court notes that while Plaintiff’s grievance documents reveal

that Plaintiff was continually monitored by medical and psychology staff, there is

no indication that any of the named Defendants were involved in any aspect of

Plaintiff’s treatment during her hunger strike, from April 27, 2022, through her

suicide attempt on May 2, 2022.89 Although Plaintiff alleges Defendants Houser,

Booher and Ardery, were aware she was on a hunger strike, the amended

complaint and Plaintiff’s grievance documents are devoid of any facts to indicate

they subjectively knew of and chose to disregard a substantial risk of serious harm

to her health or safety.90 Specifically, Plaintiff does not present any facts to

substantiate a claim that the Defendants had any reason to believe she was not

86 Id.

87 Id.

88 Id.

89 To that end, the Court notes that Plaintiff’s grievance documents reveal that she was

medically assessed by PA Talasky and psychologically assessed by Psychology Staff

PSS.W. Hall. Doc. 30-1 at 5, 12. Neither is a named Defendant in the instant action.

90 See Farmer, 511 U.S. at 837.

receiving appropriate medical care relative to the hunger strike. Moreover, there

are no facts to support a claim that any Defendants knew of the existence of a razor

in Hayes’s cell or played any role in placing the razor there. Therefore, Plaintiff

has failed to plead an Eighth Amendment deliberate indifference claim as to her

suicide attempt and Defendants are entitled to dismissal for lack of their personal

involvement.91

C. False Misconduct

Plaintiff also alleges that Defendants filed a false misconduct, charging her

with possession of and conveying K-2 into the prison via legal mail.92 The filing

of a false misconduct report does not violate an inmate’s due process rights.93 As

stated in Freeman v. Rideout,94 a “prison inmate has no constitutionally guaranteed

immunity from being falsely or wrongly accused of conduct which may result in

the deprivation of a protected liberty interest.” However, the “Plaintiff, as all other

prison inmates, has the right not to be deprived of a protected liberty interest

without due process of law.”95 Consequently, where a prisoner is provided due

91 Rode, 845 F.2d at 1207 (holding that individual liability will be imposed under Section

1983 only if the state actor played an “affirmative part” in the alleged misconduct).

92 Doc. 12 at 9.

93 See Seville v. Martinez, 130 Fed.Appx. 549, 551 (3d Cir. 2005).

94 808 F.2d 949, 951 (2d Cir. 1986).

95 Id.

process, no constitutional violation results from his being falsely accused of

misconduct.96

The Fourteenth Amendment of the United States Constitution provides in

pertinent part: “No State shall ... deprive any person of life, liberty, or property,

without due process of law....” The Supreme Court has mandated a two-part

analysis of a procedural due process claim: first, “whether the asserted individual

interests are encompassed within the ... protection of ‘life, liberty or property[,]’ ”

and second, “if protected interests are implicated, we then must decide what

procedures constitute ‘due process of law.’ ”97 If there is no protected liberty or

property interest, it is unnecessary to analyze what procedures were followed when

an alleged deprivation of an interest occurred.

In Sandin v. Conner,98 the Supreme Court shifted the focus of the liberty

interest analysis from one “based on the language of a particular regulation” to “the

nature of the deprivation” experienced by the prisoner.99 The Court reasoned, inter

alia, that “[d]iscipline by prison officials in response to a wide range of

misconduct” is expected as part of an inmate’s sentence.100 Accordingly, the

Court, focusing on the nature of the punishment instead of on the words of any

96 Makenson v. Luzerne Cty. Corr. Facility, Civ. No. 4-13-2204, 2014 WL 4187666, at *4

(Aug. 22, 2014); Brown v. Hannah, 850 F. Supp. 2d 471, 476 (M.D. Pa. 2012).

97 Ingraham v. Wright, 430 U.S. 651, 672 (1977).

98 515 U.S. 472 (1995).

99 Id. at 481.

100 Id. at 485.

regulation, held that the procedural protections in Wolff v. McDonnell,101 were

inapplicable because the “discipline in segregated confinement did not present the

type of atypical, significant deprivation in which a state might conceivably create a

liberty interest.”102 For a prisoner, such a deprivation occurs when the prison

“imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.”103

Here, Plaintiff’s acknowledgment that she attended her misconduct hearing

and had the opportunity to present evidence, belies any argument that procedural

due process was not satisfied. Further, Hayes’ allegations that the Defendants

Kauffman, Houser and Booher failed to properly investigate the misconduct, do

not form the basis of a due process claim.104 Accordingly, Plaintiff’s claim that her

misconduct was falsely issued, and any challenge thereto, is dismissed with

prejudice.

101 418 U.S. 539 (1974). In Wolff, the Supreme Court recognized that “prison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights due a

defendant in such proceedings does not apply.” Id. at 556. However, the Court set forth

five requirements of due process in a prison disciplinary proceeding: (1) the right to

appear before an impartial decision-making body; (2) twenty-four hour advance written

notice of the charges; (3) an opportunity to call witnesses and present documentary

evidence, provided the presentation of such does not threaten institutional safety or

correctional goals; (4) assistance from an inmate representative ...; (5) a written decision

by the fact finders as to the evidence relied upon and the rationale behind their

disciplinary action. Id.

102 Sandin, 515 U.S. at 486.

103 Id. at 484.

104 See McCullough v. Miller, 330 Fed.Appx. 330, 333 (3d Cir. 2009) (finding no due

process violation where inmate alleged the defendants had knowledge of the incident and

“exercised acquiescence” by “approving false misconduct reports, affirming sanctions, or

refusing to investigate the assault”)

IV. LEAVE TO AMEND

Generally, “in forma pauperis plaintiffs who file complaints subject to

dismissal under Rule 12(b)(6) should receive leave to amend unless amendment

would be inequitable or futile.”105 Hayes has already amended her complaint, and

thus has had two opportunities to “tell [her] story.”106 Further leave to amend

will be denied as futile because Hayes has failed to cure numerous deficiencies

even after “amendments previously allowed.107

V. CONCLUSION

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

in their entirety.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

105 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

106 Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019).

107 See Foman v. Davis, 371 U.S. 178, 182 (1962); Jones, 944 F.3d at 483 (concluding that,

where inmate plaintiff “has already had two chances to tell [her] story,” providing

“further leave to amend would be futile”).