# Myers v. Folerezell

> District Court, M.D. Pennsylvania · December 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10414113

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414113

## How later opinions describe it (automated extraction)

- applying Fed.R.Civ.P. 12(b)(6) standard for dismissal for failure to state a claim under §1915(e)(2)(B)
- explaining that when dismissing a complaint pursuant to §1915A, “a court employs the motion to dismiss standard set forth under Federal Rule of Civil Procedure 12(b)(6)”
- stating “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL MYERS, : No. 3:23-cv-1989
Plaintiff :
: (Judge Munley)
V. :
DR. FOLEREZELL, :
Defendant :

MICHAEL MYERS, : No. 3:23-cv-1990
Plaintiff :
: (Judge Munley)
V. :
DR. LAUREL HARRY, :
Defendant :
MEMORANDUM
1. Background
On November 14, 2023, in the United States District Court for the
Eastern District of Pennsylvania, Plaintiff, Michael Myers, filed Myers v. Dr.
Folerezell, Civil No. 2:23-cv-04565 (E.D. Pa.), a civil rights action, pursuant
to 42 U.S.C. §1983. (Doc. 1). The complaint names Dr. Folerezell as the sole
Defendant and contains the single allegation that Plaintiff's medications were
“forced without a hearing.” Id. For relief, Plaintiff requests Defendant to “stop
all forced medications” and “release [Plaintiff] to general population.” Id.

Also on November 14, 2023, in the United States District Court for the

Eastern District of Pennsylvania, Petitioner filed Myers v. Harry, Civil No.

2:23-cv-04594, a second civil rights action, pursuant to 42 U.S.C. §1983.
(Doc. 1). The complaint names Dr. Laurel Harry, Pennsylvania Department
of Corrections Secretary, as the sole Defendant and contains the single
allegation that the forced medications “made things worse.” Id. For relief,
Plaintiff seeks a transfer to SCl-Benner. Id.
By Order dated November 30, 2023, the United States District Court
for the Eastern District of Pennsylvania transferred both of Plaintiff's civil
rights actions to the United States District Court for the Middle District of
Pennsylvania, where they were received and filed on November 4, 2023.
See Myers v. Folerezell, Civil No. 3:23-cv-1989 (M.D. Pa.) and Myers v.
Harry, Civil No. 3:23-cv-1990 (M.D. Pa.).
Because the Court finds that these civil actions challenge the same
medical treatment and request the same relief, the Court consolidates the
latter action, Myers v. Harry, Civil No. 3:23-cv-1990 (M.D. Pa.) into Myers v.
Folerezell, Civil No. 3:23-cv-1989 (M.D. Pa.) and will conduct a preliminary
screening of the consolidated action pursuant to 28 U.S.C. §§1915(e)(2)(B)
and 1915A to determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be granted or
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because it seeks monetary relief from a defendant who is immune from suit.

For the following reasons, the Plaintiff's consolidated action will be dismissed

for failure to state a claim.
ll. Standards of Review
A federal court may properly dismiss an action sua sponte under the
screening provisions of 28 U.S.C. §1915(e)(2)(B) and §1915A(b) if “the
action is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from
such relief.” Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).
In dismissing claims under §§1915(e)(2) and 1915A, district courts
apply the standard governing motions to dismiss brought pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. See, e.g., Smithson v.
Koons, Civ. No. 15-01757, 2017 WL 3016165, at *3 (M.D. Pa. June 26, 2017)
(stating “[t]he legal standard for dismissing a complaint for failure to state a
claim under §1915A(b)(1), §1915(e)(2)(B)(ii), or §1997e(c)(1) is the same as
that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure.”); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa.
2010) (explaining that when dismissing a complaint pursuant to §1915A, “a
court employs the motion to dismiss standard set forth under Federal Rule
of Civil Procedure 12(b)(6)”); Tourscher v. McCullough, 184 F.3d 236, 240
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(3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard for dismissal for

failure to state a claim under §1915(e)(2)(B)).
In rendering a decision on a motion to dismiss, a court should not
inquire “whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The
court must accept as true the factual allegations in the complaint and draw
all reasonable inferences from them in the light most favorable to the plaintiff.
See Phillips v. Cty of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). In addition
to considering the facts alleged on the face of the complaint, the court may
consider “documents incorporated into the complaint by reference and
matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
However, “[t]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). “Under the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a complaint must take three steps.
First, it must ‘tak[e] note of the elements [the] plaintiff must plead to state a
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claim.’ Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second, it should identify
allegations that, ‘because they are no more than conclusions, are not entitled

to the assumption of truth.’ Id. at 679, 129 S.Ct. 1937. See also Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements

of the elements of a claim are not entitled to the assumption of truth.” (citation
and editorial marks omitted)). Finally, ‘[w]hen there are well-pleaded factual

allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.’ Iqbal, 556 U.S. at
679, 129 S.Ct. 1937.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (footnote omitted). Deciding whether a claim is plausible is a
“context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 681.
Because Myers proceeds pro se, his pleading is liberally construed and
his complaint, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citations omitted).
lil. Factual Background
Plaintiff alleges that his psychotropic medication has been
administered through force without a hearing. (Doc. 1). He challenges the
“ineffectiveness of the medications,” claiming that “they made things worse.”
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Id. As a result, Plaintiff seeks to have the medication immediately stopped
and to be transferred to general population or to SC!-Benner. Id.
On October 5, 2023, correspondence from Plaintiff to Defendant Harry

was responded to with the following:
Your correspondence, addressed to Secretary of Corrections Dr.
Laurel Harry, regarding your request to be transferred to SCI-
Benner, has been received and referred to me for review and
response.
Any request for transfer consideration begins with your unit team.
They are in the best position to make a determination if a transfer
is appropriate at this time. Please strive for misconduct free
behavior, be patient, and remain cooperative with staff in the
meantime.
lf you have any immediate concerns, please notify your unit
team.
(Doc. 2-1 at 1).
On October 24, 2023, Plaintiffs Grievance No. 1057695 regarding his
medication was denied as follows:
Upon review of your medical record, it is noted that you are
admitted to the inpatient psychiatric hospital/FTC at SCI-
Waymart and have multiple psychiatric providers that have
reviewed your history and are working together to help you be as
healthy as possible. They’re attempting to work with you as they
meet to discuss your medications and assess their effectiveness
as professionals.
(Doc. 2-1 at 4).

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On October 25, 2023, Plaintiff's Grievance No. 1057964 regarding his

medication was denied as follows:
Upon review of your medical record, you are currently court
committed to the FTC Inpatient psychiatric unit and the use of
force medication over objection has been deemed necessary by
2 psychiatrists.
(Doc. 2-1 at 2).
IV. Discussion
A. Eighth Amendment Medical Claim
In order to establish an Eighth Amendment medical claim, a plaintiff
must show “(i) a serious medical need, and (ii) acts or omissions by prison
Officials that indicate deliberate indifference to that need.” Natale v. Camden
Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse
v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one
that has been diagnosed by a physician as requiring treatment, or one that
is so obvious that a layperson would recognize the need for a doctor's
attention. Monmouth County Correctiona! 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.

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A prison official acts with deliberate indifference to an inmate’s serious
medical needs when he “knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). Thus, a complaint that a physician or a medical department “has
been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision
not to order an X-ray, or like measures, does not represent cruel and unusual
punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s
long as a physician exercises professional judgment his behavior will not
violate a prisoner's constitutional rights.” Brown y. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's
disagreement with the professional judgment of another doctor is not
actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d
103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,
or medical malpractice does not give rise to a §1983 cause of action, and an
inmate’s disagreement with medical treatment is insufficient to establish
deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.
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4993). A mere difference of opinion between the prison’s medical staff and

the inmate regarding the diagnosis or treatment which the inmate receives

does not support a claim of cruel and unusual punishment. Farmer v.
Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v.

Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113
(10th Cir. 1976).
Additionally, if a prisoner disputes the adequacy of the treatment,
courts have consistently been reluctant to second guess the medical
judgment of the attending physician. Little v. Lycoming County, 912 F. Supp.
809, 815 (M.D. Pa.), aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is
whether the defendant has provided the plaintiff with some type of treatment,
regardless of whether it is the treatment the plaintiff desires. Farmer
Carlson, 685 F. Supp. at 1339.
The documentation attached to Plaintiffs consolidated complaint
clearly demonstrates that Plaintiff is receiving medical attention, and that the
attention he received lacks the requisite deliberate indifference to support a
Section 1983 claim. At best, Plaintiffs complaint demonstrates his
disagreement with the court committed confinement to the FTC Inpatient
psychiatric unit and the doctors’ determination that forced medication is

necessary to treat Plaintiff. Though he may wish to receive different
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medication, or no medication at all, his disagreement with the course of
action that Defendants have taken is not enough to state a §1983 claim.
Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989). This is particularly so
in light of the fact that the consolidated complaint contains no allegations that

any of the Defendants intentionally withheld, or administered, medical
treatment in order to inflict pain or harm upon Plaintiff. Farmer, 511 U.S. at
837; Rouse, 12 F.3d at 197. Thus, the allegations in the Plaintiffs complaint
amount to nothing more than Plaintiffs subjective disagreement with the
treatment decisions and medical judgment of the medical staff at the prison
and do not rise to the level of an Eighth Amendment constitutional violation.
B. Request for a Transfer
It is well established that prisoners have no inherent constitutional right
to placement in any particular prison, to any security classification, or to any
particular housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245
(1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montayne_v.
|| Haymes, 427 U.S. 236, 243 (1976); Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976).
Rather, a prison “has a penological interest in the housing placement
of its inmates” and, accordingly, “the decision where to house inmates is at
the core of prison administrators’ expertise.” Thomaston v. Meyer, 519 Fed.
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Appx. 118, 119 (3d Cir. 2013) (internal quotation omitted). Thus, although
Myers may prefer to be housed in general population, or transferred to

another institution, he has no constitutional right to that status. See, e.g.,
Podhorn v. Grondolsky, 350 Fed. Appx. 618, 620 (3d Cir. 2009) (“[P]risoners
have no constitutional right to be assigned to a particular institution, facility
or rehabilitative program.”); Keeling v. Barrager, 2014 WL 1338077, at “6
(M.D. Pa. Apr. 3, 2014) (‘[T]he United States Constitution does not confer

any right upon an inmate to any particular custody or security classification.”).
Thus, Plaintiffs consolidated complaint is without merit.
V. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is
vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be inequitable
or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Here, it is clear from the facts alleged in Plaintiffs pro se consolidated
complaint and his attached exhibits that any attempt to amend the Plaintiff's
§1983 claims against the named Defendants would be futile. See Spruill v.
Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Thus, the Court will dismiss the
Plaintiff's §1983 claims without leave to amend.
VI. Conclusion
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Based on the forgoing, the Court will consolidate, Myers v. Harry, Civil
No. 3:23-cv-1990 (M.D. Pa.) into Myers v. Folerezell, Civil No. 3:23-cv-1989
(M.D. Pa.) and Plaintiff's consolidated complaint, Civil No. 3:23-cv-1989, will
be dismissed pursuant to 28 U.S.C. §§1915(e)(2)(B)(ii).
A separate Order will be issued.
BY THE COURT:

JUD LIA K:
United States District Jud
Date: December (, 2023 \

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414113. Public record. Not legal advice.