Washington v. Durst, LPM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEROME JUNIOR WASHINGTON, No. 4:22-CV-01243

Plaintiff, (Chief Judge Brann)

v.

DAVID DURST, LPM, et al.,

Defendants.

MEMORANDUM OPINION

JUNE 11, 2024

Plaintiff Jerome Junior Washington is a serial litigator who is well known in

the Middle District of Pennsylvania. He filed the instant pro se Section 19831

action in 2022, claiming constitutional violations by several prison officials at the

State Correctional Institution, Rockview (SCI Rockview), located in Bellefonte,

Pennsylvania. Presently pending is Washington’s second amended complaint. For

the following reasons, the Court will dismiss this case with prejudice.

I. BACKGROUND

Plaintiff Jerome Junior Washington is serial pro se litigant who has filed

dozens of frivolous lawsuits in the federal district courts in Pennsylvania. He is

currently incarcerated at SCI Camp Hill.2

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of substantive rights; it serves

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.

v. Doe, 536 U.S. 273, 284-85 (2002).

In his initial complaint, Washington alleged that an SCI Rockview mental

health provider—Licensed Psychologist Manager (LPM) David Durst—failed to

provide adequate mental health care.3 Washington asserted that he suffers from

schizoaffective disorder with hallucinations, post-traumatic stress disorder,

Bipolar-1 disorder, suicidal ideations, attention deficit disorder, and anti-social

personality disorder.4 He claimed that, due to his serious mental illness,5 he was

housed in the Behavior Management Unit (BMU) at SCI Rockview from July 2020

through the time of filing the instant lawsuit.6

Washington’s initial complaint appeared to assert that Durst was deliberately

indifferent to his serious mental health needs in several ways. He contended that

Durst had failed to comply with Pennsylvania Department of Corrections (DOC)

policy,7 adjusted Washington from a “Phase 2” to a “Phase 4” in his BMU

programming,8 and refused to follow Washington’s personal requests regarding

psychological care.9 Washington’s complaint also possibly raised an Eighth

Amendment conditions-of-confinement claim, but that claim was dismissed as

frivolous and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it was

3 See generally Doc. 1. Washington also sued the superintendent of SCI Rockview but failed to

include any allegations against this Defendant. See Doc. 42 at 3, 5-6.

4 Doc. 1 ¶ 8.

5 Id. ¶ 11.

6 Id. ¶¶ 7, 9, 11.

7 Id. ¶¶ 12-15, 18, 20, 25, 26.

8 Id. ¶ 18.

9 Id. ¶¶ 21, 25, 26.

duplicative of a claim that had been raised and dismissed in one of Washington’s

many other civil actions.10

Defendants moved to dismiss Washington’s complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6).11 Washington eventually filed a brief in

opposition that complied with the Local Rules of Court after numerous

extensions.12 The Court granted Defendants’ Rule 12(b)(6) motion, primarily

holding that Washington had failed to state a medical indifference claim against

Durst.13 The Court granted limited leave to amend, permitting Washington to file

an amended complaint with respect to his Eighth Amendment medical care claim

and providing explicit pleading instructions.14

Washington filed an amended complaint in February 2024.15 Defendants

once again moved to dismiss that pleading.16 Instead of opposing Defendants’

motion to dismiss, Washington moved for leave to amend and included a proposed

second amended complaint.17 The Court will grant Washington’s motion for leave

to amend, docket the proposed second amended complaint, and will dismiss that

10 See Doc. 42 at 11 & n.54.

11 Doc. 20.

12 See, e.g., Docs. 22, 24, 33, 39, 40, 41.

13 See Doc. 42 at 6-11. As noted above, the Court also dismissed any Section 1983 claim against

Salamon for lack of personal involvement and dismissed a duplicative conditions-of-

confinement claim. Additionally, the Court sua sponte dismissed Washington’s official

capacity claims. See id. at 12-13.

14 See id. at 13-14.

15 Doc. 46.

16 Doc. 47.

17 See Doc. 52; Doc. 52-1.

pleading with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.

II. STANDARDS OF REVIEW

Courts are statutorily obligated to review, “as soon as practicable,” pro se

prisoner complaints targeting governmental entities, officers, or employees.18 One

basis for dismissal at the screening stage is if the complaint “fails to state a claim

upon which relief may be granted[.]”19 This language closely tracks Federal Rule

of Civil Procedure 12(b)(6). Accordingly, courts apply the same standard to

screening a pro se prisoner complaint for sufficiency under Section 1915A(b)(1) as

they utilize when resolving a motion to dismiss under Rule 12(b)(6).20

In deciding a Rule 12(b)(6) motion to dismiss, courts should not inquire

“whether a plaintiff will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims.”21 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.22 In addition to the facts alleged on the face of

the complaint, the court may also consider “exhibits attached to the complaint,

18 See 28 U.S.C. § 1915A(a).

19 Id. § 1915A(b)(1).

20 See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002); O’Brien

v. U.S. Fed. Gov’t, 763 F. App’x 157, 159 & n.5 (3d Cir. 2019) (per curiam) (nonprecedential);

cf. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

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

1996).

22 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

matters of public record, as well as undisputedly authentic documents” attached to

a defendant’s motion to dismiss if the plaintiff’s claims are based upon these

documents.23

When the sufficiency of a complaint is challenged, the court must conduct a

three-step inquiry.24 At step one, the court must “tak[e] note of the elements [the]

plaintiff must plead to state a claim.”25 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal

conclusions, which “are not entitled to the assumption of truth” and may be

disregarded.26 Finally, the court must review the presumed-truthful allegations

“and then determine whether they plausibly give rise to an entitlement to relief.”27

Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”28

Because Washington proceeds pro se, his pleadings are to be liberally

construed and his second amended complaint, “however inartfully pleaded, must

23 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

24 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotation marks omitted) (footnote omitted).

25 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).

26 Id. (quoting Iqbal, 556 U.S. at 679).

27 Id. (quoting Iqbal, 556 U.S. at 679).

28 Iqbal, 556 U.S. at 681.

be held to less stringent standards than formal pleadings drafted by lawyers[.]”29

This is particularly true when the pro se litigant, like Washington, is incarcerated.30

III. DISCUSSION

Washington’s second amended complaint alleges a single claim of deliberate

indifference to serious medical needs against defendant David Durst, LPM.31 This

is Washington’s third attempt to bring such a claim against Durst, yet he again fails

to plausibly plead an Eighth Amendment violation.

A. Eighth Amendment Medical Indifference

In the context of prison medical care, the Eighth Amendment “requires

prison officials to provide basic medical treatment to those whom it has

incarcerated.”32 To state an Eighth Amendment deliberate indifference claim

regarding inadequate medical care, a plaintiff must plausibly allege that “(1) he had

a serious medical need, (2) the defendants were deliberately indifferent to that

need; and (3) the deliberate indifference caused harm to the plaintiff.”33 A serious

medical need is “one that has been diagnosed by a physician as requiring treatment

29 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations omitted).

30 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).

31 It appears that Washington has abandoned any claim against defendant Superintendent

Salamon. Salamon, therefore, will be dismissed from this action.

32 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

33 Durham v. Kelley, 82 F.4th 217, 229 (3d Cir. 2023) (citation omitted); see also Natale v.

Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).

or one that is so obvious that a lay person would easily recognize the necessity for

a doctor’s attention.”34

Deliberate indifference by prison officials may be evidenced by intentional

refusal to provide care known to be medically necessary, delayed provision of

medical treatment for non-medical reasons, denial of prescribed medical treatment,

or denial of reasonable requests for treatment resulting in suffering or risk of

injury.35 Deliberate indifference to serious medical needs is an exacting standard,

requiring a showing of “unnecessary and wanton infliction of pain.”36 Claims

sounding in mere medical negligence will not suffice.37

In his second amended complaint, Washington asserts mostly new

allegations of deliberate indifference to serious medical needs, likely because his

earlier allegations did not state a claim for relief. He now contends that Durst

failed to ensure that Washington got “out-of-cell structure time” on June 21, 2021;

that on June 25, 2021, Washington—a Phase 2 BMU inmate—was forced to be in

a “cage” for three hours during “out-of-cell structure group” without a bathroom

break or to be able to “stretch his legs”; that Durst failed to inform SCI Fayette

officials upon transfer (around September 6, 2022) that Washington was a BMU

34 Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).

35 See Durmer v. O’Carroll, 991 F.2d 64, 68 & n.11 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d

at 346).

36 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted).

37 Rouse, 182 F.3d at 197.

mental health inmate who required BMU programming; and that Durst changed

Washington to a Phase 4 from a Phase 2 after he attempted self-harm at SCI

Fayette.38 None of these allegations—alone or together—meets the high bar of

plausibly pleading constitutionally deficient medical care.

Initially, the Court observes that Washington’s second amended complaint

does not state a serious medical need. In his original complaint, Washington

alleged that he suffers from several mental health disorders, but those allegations

do not appear in his second amended complaint. Nevertheless, even assuming that

Washington plausibly stated a serious medical need, he has not alleged deliberate

indifference by Durst.

Washington primarily claims that, on two days in 2021 and one day in 2022,

Durst did not perform his professional duties correctly or perfectly. These types of

allegations do not sound in deliberate indifference to serious medical needs.

Rather, at most they would implicate professional negligence or medical

malpractice, which does not rise to the level of a constitutional violation.39

Washington also appears to take issue with treatment decisions made by

Durst; specifically, moving him from Phase 2 to Phase 4 in the BMU program after

he committed self-harm. These allegations do not implicate deliberate indifference

to serious medical needs, either. It is well settled that mere disagreement with a

38 See Doc. 52-1 ¶¶ 3-10.

39 Rouse, 182 F.3d at 197.

medical provider’s professional judgment or treatment plan does not state an

Eighth Amendment violation.40 Washington does not allege, for example, that he

was refused mental health treatment, that prescribed treatment had been denied, or

that treatment was delayed for nonmedical reasons. Rather, Washington appears to

assert that Durst made treatment decisions that Washington disagreed with. But

Washington is not a medical professional, and alleging that a licensed psychologist

manager crafted a treatment plan that differs from an inmate’s desired treatment

does not state a constitutional violation.

In sum, Washington’s allegations against Durst do not plausibly state an

Eighth Amendment infringement. Washington appears to disagree with Durst’s

professional performance and treatment decisions, but such disagreement does not

amount to a constitutional violation. There simply is nothing in Washington’s

second amended complaint that would plausibly indicate that Durst has exhibited

deliberate indifference to Washington’s serious mental health needs.

40 See Lanzaro, 834 F.2d at 346 (explaining that “mere disagreement as to the proper medical

treatment” does not “support a claim of an eighth amendment violation”); see also Pearson v.

Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017) (“Because ‘mere disagreement as to the

proper medical treatment’ does not ‘support a claim of an eighth amendment violation,’ when

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

that it violates professional standards of care.” (internal citation omitted)); 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.”).

B. Leave to Amend

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

dismissal under [the Prison Litigation Reform Act of 1995] should receive leave to

amend unless amendment would be inequitable or futile.”41 Further leave to

amend will be denied because Washington has repeatedly failed to cure material

deficiencies with his pleadings even after “amendments previously allowed.”42

Washington, in fact, has had three opportunities to plead a claim against Durst and

has failed to do so.

IV. CONCLUSION

Based on the foregoing, the Court will grant Washington’s motion (Doc. 52)

for leave to amend, docket the proposed second amended complaint (Doc. 52-1),

and dismiss that pleading with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) and

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be

granted. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

41 Grayson, 293 F.3d at 114.

42 See Foman v. Davis, 371 U.S. 178, 182 (1962); Jones v. Unknown D.O.C. Bus Driver &

Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (concluding that, where inmate plaintiff “has

already had two chances to tell his story,” providing “further leave to amend would be futile”).