The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD GRAZIANO, : Civil No. 1:23-CV-00947
:
Plaintiff, :
:
v. :
:
JOHN WETZEL, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is a motion to amend the complaint and a proposed
amended complaint filed by Edward Graziano (“Plaintiff”), an inmate previously
housed at the State Correctional Institution at Camp Hill, Pennsylvania (“SCI-
Camp Hill”).1 (Docs. 26, 28.) The court will grant Plaintiff’s motion and file the
proposed amended complaint. Doing so renders Defendants’ motion to dismiss
moot. The court will also screen the amended complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and dismiss it in part.
BACKGROUND
Plaintiff initiated this action in June of 2023 by filing a complaint under 42
U.S.C. § 1983. (Doc. 1.) This complaint named sixteen defendants and raised an
Eighth Amendment deliberate indifference claim, a negligence claim, a breach of
duty claim, and an intentional infliction of emotional distress claim premised on
1 Plaintiff is currently housed at SCI-Huntingdon. (Doc. 27.)
the Department of Correction’s (“DOC”) and SCI-Camp Hill’s implementation of
the COVID-19 protocols.
The court served the complaint on the sixteen defendants, and fifteen filed a
waiver of service. (Doc. 11.) These same fifteen defendants filed a motion to
dismiss on August 3, 2023. (Doc. 12.) After multiple motions for an extension of
time, Plaintiff filed a motion for leave to amend his complaint, a brief in support,
and a proposed amended complaint on December 7, 2023. (Docs. 25, 26, 28.)
The amended complaint is 92-pages long and names the following twenty-
one (21) defendants: (1) John Wetzel (“Wetzel”), former Secretary of the DOC; (2)
Tom Wolf (“Wolf”), former Governor of Pennsylvania; (3) George Little
(“Little”), former Acting Secretary of the DOC; (4) Laurel R. Harry (“Harry”),
current Secretary of the DOC and at all relevant times the superintendent/Facility
Manager at SCI-Camp Hill; (5) Michael Gourley (“Gourley”), Deputy
Superintendent for Facility Management at SCI-Camp Hill; (6) William Nicklow
(“Nicklow”), Deputy Superintendent for Centralized Services at SCI-Camp Hill;
(7) Lindsy Kendall (“Kendall”), Deputy Superintendent for Diagnostic Services at
SCI-Camp Hill; (8) Renee Zobitne (“Zobitne”), Major of the Unit
Managers/Corrections Officer 5 at SCI-Camp Hill; (9) Randy Evans (“Evans”),
Major of the Guards/Corrections Officer 5 at SCI-Camp Hill; (10) Tonya Heist
(“Heist”), Corrections Superintendent Assistant/Facility Grievance Coordinator at
SCI-Camp Hill; (11) Deborah Alvord (“Alvord”) Administrator Officer at SCI-
Camp Hill; (12) Ross Miller (“R. Miller”), Unit Manager of I-Block (the
“unvaccinated unit”) at SCI-Camp Hill; (13) Erin Miller (“E. Miller”), Corrections
Counselor 2 at SCI-Camp Hill; (14) Beth Herb (“Herb”), Corrections Health Care
Administrator at SCI-Camp Hill; (15) Elicia Stein (“Stein”), Licensed Psychologist
Manager at SCI-Camp Hill; (16) Melissa Howdyshell (“Howdyshell”), Psychology
Service Specialist at SCI-Camp Hill; (17) Theodoor Voorstad, (“Voorstad”), a
medical provider contracted with Wellpath at SCI-Camp Hill; (18) Joe Silva
(“Silva”), Director of Bureau of Health Care Services of the DOC; (19) Alison
Beam (“Beam”), Acting Secretary of the Department of Health of Pennsylvania;
(20) Kevin Wanga (“Wanga”), Registered Nurse Practitioner at SCI-Camp Hill;
and (21) Emily Boone (“Boone”), Psychology Services Specialist at SCI-Camp
Hill. (Doc. 26, pp. 2–4.)2
This extensive amended complaint challenges the DOC’s and SCI-Camp
Hill’s implementation of COVID-19 protocols at all levels from the actions of the
Governor of Pennsylvania down to the staff Plaintiff interacted with at SCI-Camp
Hill. (Doc. 26.) In August of 2021, Defendant Wetzel directed all State
Correctional Institutions to house unvaccinated inmates separately from vaccinated
inmates. (Id., p. 9.) Plaintiff was informed that unvaccinated inmates would be
2 For ease of reference, the court utilizes the page numbers from the CM/ECF header.
separated from vaccinated inmates and housed in a designated housing unit. (Id.)
Additionally, Plaintiff was informed that unvaccinated inmates would be restricted
from all communal areas outside the unvaccinated unit including medical, chapel,
school, library, law library, visiting room, gymnasium, barber shop, dining hall,
and main yard. (Id.) Plaintiff alleges that on August 3, 2021, he refused to be
vaccinated against COVID-19 based on his religious beliefs as a practicing
Christian, the fast-track status of the vaccines, and the lack of data about their
long-term side effects. (Id., pp. 8, 10.) On August 6, 2021, Plaintiff was moved to
the unvaccinated unit. (Id., p. 11.) The remainder of the complaint focuses on
Plaintiff’s complaints with the COVID-19 protocols in the unvaccinated unit
including lack of access to private medical treatment, use of reusable trays for
meals, lack of cleaning of the telephones, lack of Plexiglas at the cells, the bolting
shut of cell windows, poor cell ventilation, plumbing issues, and staff members not
wearing masks and not adhering to enhanced screening. (Id., pp. 12–25.)
Plaintiff alleges that at the end of December 2021 he began to experience
symptoms of COVID-19. (Id., p. 43.) Plaintiff alleges that he was seen by
Defendant Voorstad in a “cell-side” appointment. (Id.) When Plaintiff asked to be
seen in private, Defendant Voorstad informed him that he was instructed by
Wellpath and Defendant Herb to treat unvaccinated inmates “cell-side” and
informed Plaintiff that if he wanted private treatment, he could choose to be
vaccinated. (Id.) Plaintiff alleges that Defendant Voorstad did not treat his
symptoms. (Id.) Plaintiff was tested for COVID-19 on January 10, 2022 and was
notified that he tested positive on January 11, 2022. (Id., p. 44.) Plaintiff alleges
that the positive test results caused him to become suicidal and self-harm. (Id., pp.
44–45.) On January 24, 2022, Plaintiff alleges that Defendant Voorstad informed
him that there was no treatment for his COVID-19 symptoms. (Id., p. 45.)
Plaintiff alleges that he continues to suffer from symptoms of “long COVID.” (Id.,
p. 46.) Plaintiff alleges that no medications have relieved his symptoms. (Id., pp.
45–46.)
Plaintiff alleges that he has been diagnosed with persistent depressive
disorder, adjustment disorders with mixed anxiety and depressed mood, anti-social
personality disorder, asthma, hypertension, headaches, sinusitis, osteoarthritis,
traumatic arthropathy of the left shoulder, chronic pain, and other health issues.
(Id., pp. 5, 7–8.)
Plaintiff alleges that he repeatedly complained to staff at SCI-Camp Hill
about the COVID-19 protocols and “they took retaliatory action against him.” (Id.,
p. 37.)
On April 4, 2022, SCI-Camp Hill ended its COVID-19 restrictions,
including the separate housing of vaccinated and unvaccinated inmates. (Id., p.
62.)
Additionally, Plaintiff alleges that on September 7, 2022, he lost his single
cell status and was housed with another inmate. (Id., pp. 65–66.) He alleges that
this exacerbated his mental health symptoms and resulted in a self-harm and a
misconduct. (Id., pp. 66–68.) He also alleges that after April 4, 2022, the timing
of the medical line changed and resulted in him not getting his medications when
needed. (Id., pp. 62–63.)
Plaintiff brings an Eighth Amendment deliberate indifference/failure to
protect3 him from COVID-19 and from self-harm by following and not following
the COVID-19 protocols enacted by the DOC and implemented at SCI-Camp Hill.
(Doc. 26.) He also implies a First Amendment violation in being refused access to
religious celebrations because he was unvaccinated and retaliatory activities for his
questions about COVID-19 protocols. (Id.) Plaintiff also raises an Eighth
Amendment deliberate indifference/failure to protect claim regarding his mental
health following the loss of his single cell status in September of 2022 and the
timing of the medication line after the COVID-19 protocols were lifted. (Doc. 26.)
The court will now screen the amended complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
3 While Plaintiff characterizes deliberate indifference and failure to protect as two separate
claims, they are addressed under the same analysis pursuant to the Eighth Amendment.
JURISDICTION AND VENUE
The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §
1331, which allows a district court to exercise subject matter jurisdiction in civil
cases arising under the Constitution, laws, or treaties of the United States. Venue
is proper in this district because the alleged acts and omissions giving rise to the
claims occurred at SCI-Camp-Hill, in Cumberland County, Pennsylvania, which is
located within this district. See 28 U.S.C. § 118(b).
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B)(ii), a court “shall dismiss” an in forma
pauperis case “at any time if the court determines that . . . the action . . . fails to
state a claim upon which relief may be granted[.]” The legal standard for
dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915 is
identical to the legal standard used when ruling on Fed. R. Civ. P. 12(b)(6) motions
to dismiss. See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d
Cir. 2002).
In order “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556).
Under Rule 12(b)(6), the court must accept all well pleaded allegations as
true and construe all reasonable inferences in favor of the nonmoving party. Doe
v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). The pleadings of self-
represented plaintiffs are held to a less stringent standard than formal pleadings
drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d. Cir. 2011). Self-
represented litigants are to be granted leave to file a curative amended complaint
even when a plaintiff does not seek leave to amend, unless such an amendment
would be inequitable or futile. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,
245 (3d Cir. 2008).
DISCUSSION
A. Claims Arising After April 4, 2022 Are Improperly Joined and Will
Be Dismissed Without Prejudice.
A plaintiff may not bring unrelated claims against unrelated parties in a
single action. See Fed. R. Civ. P. 18(a); 20(a)(2). A plaintiff may bring a claim
against multiple defendants so long as (1) the claims arise out of the same
transaction or occurrence, or series of transactions and occurrences; and (2) there
are common questions of law or fact. See Fed. R. Civ. P. 20(a)(2). Courts have
broad discretion in applying Fed. R. Civ. P. 20 to reduce inconvenience, delay, and
added expense to the parties and to the court, and to promote judicial economy.
Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009). However, the policy of liberal
application of Rule 20 is not a license to join unrelated claims and defendants in
one lawsuit. See, e.g., Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir. 2007)
(nonprecedential).
Here, Plaintiff attempts to bring constitutional challenges against Defendants
R. Miller, E. Miller, Grimes, Wanga, Stein, Herb, and Howdyshell stemming from
the timing of the medication distribution following the removal of the COVID-19
protocols on April 4, 2024. (Doc. 26, pp. 62–63.) He also raises claims against
Defendants Stein, Wanga, Howdyshell, Boone, R. Miller, E. Miller, Harry,
Nicklow, Gourley, Kendall, Heist, Herb, Alvord, Evans, Zobitne, Wetzel, Little,
and Wolf premised on the loss of his single cell status in September of 2022 and a
resulting violent encounter with an assigned cell mate, self-harm, and a
misconduct. (Doc. 26, pp. 65–71.) The timing of the medication distribution and
his loss of single cell status are unrelated to the majority of the 92-page complaint,
which focuses on the DOC and SCI-Camp Hill’s response to the COVID-19
pandemic. The COVID-19 protocols ended at SCI-Camp Hill on April 4, 2022.
(Id., p. 62.) Therefore, any claims associated with facts arising after April 4, 2022
will be dismissed without prejudice to Plaintiff raising them in a separate action.
B. Plaintiff’s Eighth Amendment Claim Based on the DOC COVID-19
Protocols Will Be Dismissed.
Plaintiff dedicates the majority of his 92-page complaint to the COVID-19
protocols, specifically arguing that the DOC protocols put in place at SCI-Camp
Hill were not adequate to protect those who chose not to be vaccinated. (Doc. 26.)4
He simultaneously complains that the protocols put into place resulted in additional
constitutional violations. Plaintiff makes a generic claim of failure to protect
against COVID-19 against several Defendants by including their name in the
section heading, but failing to allege any facts that demonstrate personal liability.
(Id., p. 12.) Plaintiff brings a failure to protect claim against several Defendants
based on the theory of respondent superior. (Id., pp. 29–30.) Plaintiff brings a
failure to protect claim against several Defendants for refusing his multiple
requests for protocols that went beyond DOC policy. (Id., pp. 35–37.) Plaintiff
brings a deliberate indifference claim against several Defendants based on the
COVID-19 protocols resulting in restricted access to mental health care through
refusals to transfer to housing units where treatment could be provided, and
refusals to treat him in private. (Id., pp. 53, 55, 59–61.) Such claims cannot
survive screening.
4 The court has attached a chart summarizing the claims associated with the COVID-19 protocols
as an appendix.
First, the court acknowledges that prison officials violate the Eighth
Amendment when they act with deliberate indifference to a prisoner’s serious
medical needs. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). To sustain a
constitutional claim under the Eighth Amendment for inadequate medical
treatment, a plaintiff must make (1) an objective showing that his medical needs
were serious, and (2) a subjective showing that the defendants were deliberately
indifferent to those medical needs. See Pearson v. Prison Health Serv., 850 F.3d
526, 534 (3d Cir. 2017).
However, courts in the Third Circuit have repeatedly rejected inmate claims
based on exposure to COVID-19 where the record demonstrated that the state
correctional institution followed mitigation policies and procedures adopted by the
DOC. See e.g., Engelund v. Doll, 2020 WL 1974389, at * 11 (M.D. Pa. Apr. 24,
2020) (“it cannot be said that Respondents have been deliberately indifferent to
Petitioners’ health, safety, or medical needs” because, “[a]lthough COVID-19
presents a serious medical issue, as detailed above, the facilities have taken
significant steps to curb the introduction or spread of COVID-19 and to contain
and treat those infected with the virus”); Allen v. Wetzel, 2021 WL 2254997, at *7
(M.D. Pa. June 3, 2021) (DOC policies mitigating spread of COVID-19 sufficient
to prevent deliberate indifference claim where Plaintiff contracted COVID-19 but
did not experience any serious symptoms). In rejecting such claims, courts have
frequently taken judicial notice of the DOC’s mitigation policies and procedures
because they are publicly available on a government website. See Allen, 2021 WL
2254997, at *6 (taking judicial notice of the DOC's COVID-19 mitigation
policies). See also Bevins v. Kauffman, 2021 WL 322168, at *1 (M.D. Pa. Feb. 1,
2021) (noting that “DOC has provided publicly available information regarding its
response to the COVID-19 pandemic”). Courts have observed that “[a] review of
these steps suggests that DOC officials . . . have not acted unreasonably with
respect to the threat posed by COVID-19 and instead have instituted measures to
safeguard the entire inmate population . . . .” Bevins, 2021 WL 322168, at *5.
Thus, an inmate’s Eighth Amendment claim arising out of his contracting
COVID-19 will fail as a matter of law based on the DOC’s COVID-19 mitigation
policies and procedures absent factual allegations that prison officials disregarded
or materially deviated from them. See Williams v. PA. Dep't of Corr., 2023 WL
2655406, at *13 (W.D. Pa. Feb. 2, 2023), report and recommendation adopted sub
nom. Williams v. PA Dep't of Corr., 2023 WL 2652298 (W.D. Pa. Mar. 27, 2023)
(holding that inmate’s second amended complaint failed to state an Eighth
Amendment claim where it included “no factual allegations to support that any
DOC Defendant deviated materially from any DOC COVID-19 mitigation
protocols”). Therefore, any Eighth Amendment Claim arising out of the DOC’s
policy and SCI-Camp Hill’s following of that policy will be dismissed with
prejudice.
This dismissal includes Plaintiff’s claims that he was not provided adequate
mental health treatment because of the COVID-19 protocols. “Prison medical
authorities are given considerable latitude in the diagnosis and treatment of
medical problems of inmates and courts will ‘disavow any attempt to second guess
the propriety or adequacy of a particular course of treatment . . . which remains a
question of sound professional judgment.’” Byrd v. Shannon, No. 1:09-CV-1551,
2010 WL 5889519, at *4 (M.D. Pa. Nov. 24, 2010) (quoting Inmates of Allegheny
County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979)). Mere disagreement over
proper treatment does not state a claim upon which relief can be granted. White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990); Monmouth Cty. Corr. Inst'l Inmates
v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (“Courts, determining what
constitutes deliberate indifference, have consistently held that mere allegations of
malpractice do not raise issues of constitutional import. . . Nor does mere
disagreement as to the proper medical treatment support a claim of an eighth
amendment violation.”). The complaint demonstrates that Plaintiff was provided
mental health treatment, as he was diagnosed by with mental health conditions on
December 27, 2021. (Doc. 26, p. 60.) He also states that he reported his
symptoms to several mental health providers, was provided medication, and at one
point was placed in a psychiatric observation cell. (Doc. 26, p. 56–61.)
He appears to take issue with the fact that his care was not provided in the
medical bay and was instead cell-side. (Id., pp. 58–59.) However, it was his
unvaccinated states that made him ineligible for the treatment he requested. (Id.)
Going unvaccinated was Plaintiff’s decision. Therefore, any Eighth Amendment
claim resting on the ground that Plaintiff’s mental health was not treated during his
time in the unvaccinated unit is nothing more than a disagreement about treatment.
Treatment was provided. Additional treatment options were available. Plaintiff
made a choice to not participate in those additional treatment options by refusing
vaccination. Therefore, just because Plaintiff did not receive the treatment in the
manner he thought best during the pandemic, that does not give rise to an Eighth
Amendment claim.
Therefore, all Eighth Amendment claims stemming from the implementation
of COVID-19 protocols will be dismissed with prejudice.
C. Plaintiff’s Eighth Amendment Claims Based on the DOC Defendants
Disregarding COVID-19 Policies Will Not Be Dismissed.
Plaintiff also alleges that the DOC Defendants personally disregarded DOC
COVID-19 mitigation protocols. (Doc. 26.) Specifically, he claims that
Defendants R. Miller, E. Miller, and Howdyshell used personal masks that they
regularly wore down below their noses and mouths when they had direct contact
with vaccinated and unvaccinated inmates, including Plaintiff. (Id., pp. 26–27.)
Furthermore, he alleges that the plumbing and ventilation were not consistent with
DOC policy and he informed Defendant R. Miller of that concern. (Id., p. 32.)
The Court of Appeals for the Third Circuit has found similar allegations
sufficient to state an Eighth Amendment claim. In White v. Wetzel, 2022 WL
3273807 (3d Cir. 2022), the plaintiff alleged supervisory prison personnel ignored
“the Center for Disease Control guidelines for social distancing by housing inmates
in an ‘open block’ dormitory,” despite the fact that they “knew how dangerous the
open housing unit was ...”. 2022 WL 3273807, at *1. Vacating the District Court’s
order dismissing the plaintiff’s complaint, the Court of Appeals concluded that the
allegation that prison personnel failed to comply with CDC guidelines, despite
having been informed of the noncompliance by the plaintiff, was sufficient to state
an Eighth Amendment claim. Id. at *2. Plaintiff’s analogous allegations in this
case are likewise sufficient to survive a motion to dismiss.
Plaintiff also makes general allegations that the DOC’s policy for enhanced
screening was not followed at SCI-Camp Hill. (Doc. 26, pp. 14–19.) However, he
fails to demonstrate any personal involvement on the part of any Defendant in
failing to comply with the enhanced screening requirements implemented by the
DOC.
To state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold
requirements. He must allege: 1) that the alleged misconduct was committed by a
person acting under color of state law; and 2) that as a result, he was deprived of
rights, privileges, or immunities secured by the Constitution or laws of the United
States. West v. Atkins, 487 U.S. 42, 48 (1988). It is also well established that “[a]
defendant in a civil rights action must have personal involvement in the alleged
wrongs to be liable, and cannot be held responsible for a constitutional violation
which he or she neither participated in nor approved.” See Baraka v. McGreevey,
481 F.3d 187, 210 (3d Cir. 2007). Without alleged personal involvement on the
part of any Defendant, the Eighth Amendment claim that DOC enhanced screening
protocols were violated will be dismissed without prejudice.
D. Plaintiff’s Eighth Amendment Claim Against Defendant Beam for
Refusing to Prioritize COVID-19 Vaccines for PSCOA Members
Will Be Dismissed With Prejudice.
Plaintiff alleges that Defendant Beam rejected the request by the
Pennsylvania State Corrections Officers Association (“PSCOA”) in January of
2021 to have its members prioritized when deciding how to prioritize vaccination
disbursement. (Doc. 26, p. 38.)
As set forth above, an inmate’s Eighth Amendment claim arising out of his
contracting COVID-19 will fail as a matter of law based on the DOC’s COVID-19
mitigation policies and procedures absent factual allegations that prison officials
disregarded or materially deviated from them. See Williams, 2023 WL 2655406, at
*13 (holding that inmate’s second amended complaint failed to state an Eighth
Amendment claim where it included “no factual allegations to support that any
DOC Defendant deviated materially from any DOC COVID-19 mitigation
protocols”). According to Plaintiff’s amended complaint, the DOC protocol did
not require vaccination of its staff, just as it did not require vaccination of the
inmates. Plaintiff has failed to allege that Defendant Beam deviated materially
from the COVID-19 protocols. Therefore, any Eighth Amendment claims against
her based on her refusal to adopt the PSCOA’s request will be dismissed with
prejudice.
E. Plaintiff’s Eighth Amendment Deliberate Indifference Claims
Against Medical Defendants for Failing to Treat His COVID-19
Symptoms Will Be Dismissed With Prejudice.
Plaintiff alleges that Defendant Voorstad failed to treat his COVID-19.
(Doc. 26, pp. 44–45.) However, he also alleges variously that he was told there
was no treatment, he received treatment, and no treatment for his COVID-19
symptoms has provided relief. (Id., p. 45–46.)
“Prison medical authorities are given considerable latitude in the diagnosis
and treatment of medical problems of inmates and courts will ‘disavow any
attempt to second guess the propriety or adequacy of a particular course of
treatment . . . which remains a question of sound professional judgment.’” Byrd,
2010 WL 5889519, at *4 (quoting Inmates of Allegheny County Jail, 612 F.2d at
762). Mere disagreement over proper treatment does not state a claim upon which
relief can be granted. White, 897 F.2d at 110; Monmouth Cty. Corr. Inst'l Inmates,
834 F.2d at 346 (“Courts, determining what constitutes deliberate indifference,
have consistently held that mere allegations of malpractice do not raise issues of
constitutional import. . . Nor does mere disagreement as to the proper medical
treatment support a claim of an eighth amendment violation.”).
Considering that Plaintiff alleged that he was told no treatment would work
and that he was given some treatment and none of it worked, he cannot succeed in
an Eighth Amendment claim against medical professionals for failing to treat his
COVID-19 symptoms. This claim will be dismissed with prejudice.
F. Any Implied Retaliation Claims Will Be Dismissed Without
Prejudice.
Plaintiff states that staff at SCI-Camp Hill retaliated against him for
complaining about the COVID-19 protocols. (Doc. 26, p. 37.) While he does not
raise a First Amendment Retaliation claim, any implied claim will be dismissed.
It is well-settled that prison officials may not retaliate against an inmate
because he exercises his right of access to the courts. Fantone v. Latini, 780 F.3d
184, 191 (3d. Cir. 2015). A prisoner asserting a retaliation claim must allege the
following elements: (1) he engaged in constitutionally protected conduct; (2) he
suffered an adverse action sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) the constitutionally protected conduct
was “a substantial or motivating factor” for the adverse action. See Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001); see also Mitchell v. Horn, 318 F.3d 523,
530 (3d Cir. 2003). The filing of a lawsuit or a prison grievance constitutes
protected activity under the First Amendment. Fantone, 780 F.3d at 191.
Here, Plaintiff makes the conclusory statement that “they took retaliatory
action against him.” (Doc. 26, p. 37.) This alone is insufficient to raise a First
Amendment retaliation claim. Therefore, any such claim will be dismissed without
prejudice.
G. Plaintiff’s First Amendment Claims Regarding the Implementation
of COVID-19 Protocols Will Be Dismissed Without Prejudice.
Plaintiff also alleges that his First Amendment rights were violated by the
COVID-19 protocols not allowing him to attend religious ceremonies. (Doc. 26, p.
34.)
Again, Plaintiff failed to allege any personal involvement on the part of any
Defendant:
In regards to not letting unvaccinated inmates participate in religious
services at the chapel as imposing . . . a substantial burden on his
religious practices and beliefs as a [C]hristain, UM Miller claimed that
administrative staff were looking into buying radio receivers to enable
unvaccinated inmates to listen to religious services from their cells in
real time or live as their being held for vaccinated inmates.
(Id.) While Plaintiff names Defendant R. Miller in this paragraph, he fails to allege
that Defendant R. Miller was involved in preventing his access to religious
services. Instead, it appears that Defendant R. Miller was attempting to resolve the
issue. Therefore, this First Amendment claim will be dismissed without prejudice.
CONCLUSION
Accordingly, Plaintiff’s motion to amend will be granted. The proposed
amended complaint will be filed as the amended complaint. All claims raised in
the amended complaint will be dismissed except those alleging that Defendants R.
Miller, E. Miller, and Howdyshell deviated from the COVID-19 protocols. In
accord with Phillips, the court will grant Plaintiff leave to file a second amended
complaint to cure the defects set forth above in the claims dismissed without
prejudice. Any second amended complaint must be clearly label and use the
docket number assigned to this case. Pursuant to Local Rule 15.1, all amended
pleadings are to be “complete in itself,” meaning Plaintiff must plead all claims he
seeks to advance in litigation, including those that survived this screening.
Plaintiff is also cautioned that any second amended complaint must comply with
Fed. R. Civ. P. 8.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
APPENDIX
Defendant Basis of Claim Page
Generic 8th Amendment failure to protect against
12
COVID-19
John Wetzel
Failed to establish mental health policy for unvaccinated
54
inmates
Generic 8th Amendment failure to protect against
12
Tom Wolf COVID-19
Generic Failure to Protect from Self-Harm 53
Generic 8th Amendment failure to protect against
12
George Little COVID-19
Generic Failure to protect from self-harm 53
12, 29-
Respondent Superior
30
Refused Plaintiff's request for increased COVID-19
Laurel R. Harry 35
protocols
Refused to refer Plaintiff for transfer for mental health
60
treatment
12, 29-
Respondent Superior
30
Refused Plaintiff's request for increased COVID-19
Michael Gourley 35
protocols
Refused to refer Plaintiff for transfer for mental health
59-60
treatment
12, 29-
Respondent Superior
30
William Nicklow Refused Plaintiff's request for increased COVID-19
35
protocols
Generic failure to protect from self-harm 53
12, 29-
Respondent Superior
30
Lindsy Kendall
Refused Plaintiff's request for increased COVID-19
35-36
protocols
Refused to refer Plaintiff for transfer for mental health
59-60
treatment
12, 29-
Respondent Superior
30
Renee Zobitne Refused Plaintiff's request for increased COVID-19
36
protocols
Generic failure to protect from self-harm 53
12, 29-
Respondent Superior
30
Randy Evans Refused Plaintiff's request for increased COVID-19
36
protocols
Generic failure to protect from self-harm 53
12, 29-
Respondent Superior
30
Tonya Heist Refused Plaintiff's request for increased COVID-19
36
protocols
Generic failure to protect from self-harm 53
12, 29-
Respondent Superior
30
Deborah Alvord Refused Plaintiff's request for increased COVID-19
36
protocols
Generic failure to protect from self-harm 53
Use of personal mask worn below nose and mouth 12, 26
Claimed to submit work orders regarding toilet and
32
ventilation
Refused Plaintiff's request for increased COVID-19
32-34
protocols
1st Amendment COVID-19 Policy prevented access to
Ross Miller 34
religious ceremonies
Generic failure to protect from self-harm 53
Plaintiff reported suicidal thoughts 56
Refused to refer Plaintiff for transfer for mental health
59
treatment
Failed to make referrals for 1/27/22 IRP 61
12, 26-
Use of personal mask worn below nose and mouth
27
Refused Plaintiff's request for increased COVID-19
35
protocols
Erin Miller Generic failure to protect from self-harm 53
Plaintiff reported suicidal thoughts 56
Refused to refer Plaintiff for transfer for mental health
59
treatment
Failed to make referrals for 1/27/22 IRP 61
12, 29-
Respondent Superior
30
Beth Herb Refused Plaintiff's request for increased COVID-19
36
protocols
Refused Plaintiff's request for private treatment 58-59
Respondent Superior 29-30
Did not have a regular post in unvaccinated unit or
55
conduct daily visits
Elicia Stein Refused Plaintiff private mental health treatment 56
Plaintiff reported suicidal thoughts 56
Had Plaintiff discharged from POC on 1/13/22 61
Failed to make referrals for 1/27/22 IRP 61
Use of personal mask worn below nose and mouth 12, 27
Did not have a regular post in unvaccinated unit or
Melissa 55
conduct daily visits
Howdyshell
Plaintiff reported suicidal thoughts 56-57
Failed to make referrals for 1/27/22 IRP 61
12, 29-
Respondent Superior
30
Theodoor
Refused Plaintiff's request for increased COVID-19
Voorstad 36
protocols
Did not treat Plaintiff's COVID-19 symptoms 44-45
12, 29-
Joe Silva Respondent Superior
30
Refused Pennsylvania State Corrections Officers
Alison Beam Association's request to prioritize COVID-19 vaccines for 38
its members
Did not have a regular post in unvaccinated unit or
55
conduct daily visits
Kevin Wanga Plaintiff reported suicidal thoughts 56-57
Had Plaintiff discharged from POC on 1/13/22 61
Failed to make referrals for 1/27/22 IRP 61
Emily Boone Generic failure to protect from self-harm 53