# WASHINGTON v. WETZEL

> District Court, W.D. Pennsylvania · March 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10415395

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JEROME JUNIOR WASHINGTON, )
) Civil Action No. 18 – 1390
Plaintiff, )
)
v. ) Magistrate Judge Lisa Pupo Lenihan
)
JOHN E. WETZEL, Commissioner, ) ECF No. 28
ROBERT D. GILMORE, )
Superintendent/Warden, SCI Greene, )
CANDICE LACKEY, Unit Manager, )
PSYCHIATRIST BURGER, )
PSYCHOLOGIST BAWDY,
)
DEPUTY DIALESANDRO, Deputy
)
Superintendent, ZAKEN, Deputy of
Security, SGT. CHESMER, )
Correctional Officer, C.O. MILLER, )
SGT. BEERS, Correctional Officer, )
LT. JELLOT, Correctional Guard, )
C.O. STEFFIN, TODD H. FUNK, )
Correctional Staff Member, MAJOR )
BUZAS, COUNSELOR SPIKER, )
PSYCHOLOGIST BRITTANY )
NOVAJ, SERGEANT ROGERS, and )
SHIRLEY MOORE, )
)
)
Defendants.

MEMORANDUM OPINION AND ORDER
Currently pending before the Court is a Motion to Dismiss the Complaint for failure to
state a claim that was filed by Defendant Psychiatrist Burger1 on September 25, 2019. (ECF No.

1 According to the Motion to Dismiss, Plaintiff, who is an inmate at SCI-Greene, has incorrectly
identified this Defendant as “Psychiatrist Burger”. Her true name is Alicia Berger and it does
not appear that she is a psychiatrist, although this is not made clear from her Motion and Plaintiff
has alleged that she is a psychiatrist and the “overseer” of the psychiatric providers at SCI-
1
28.) Plaintiff filed a response in opposition to the Motion to Dismiss on October 22, 2019. (ECF
No. 37.) For the following reasons, the Motion will be granted and the claims against Defendant
Berger will be dismissed with prejudice.
A. Allegations against Defendant Berger

According to the allegations that Plaintiff has set forth in his Complaint with respect to
Defendant Berger, which appears to be just a recitation of the conversation that Plaintiff had with
her on May 31, 2018, Berger, along with another individual whom Plaintiff identifies as
“Psychologist Capra”, came to his cell to see him because he was experiencing what he describes
as a mental health crisis and cutting himself. According to Plaintiff, Defendant Berger and
Capra knew that his “life was in danger” but took their “precious time” getting to his cell,
stopping to see other inmates at their cells before him. When they finally arrived at Plaintiff’s
cell, Defendant Berger asked him what was wrong and why he was cutting himself, and Plaintiff
responded that he was having mental health problems and needed to go to a psychiatric
observation cell (“P.O.C. cell”) because he was feeling suicidal. Apparently, Defendant Berger

told Plaintiff that he could not go to a P.O.C. cell and also told him that acting out by doing such
things like cutting himself or taking the shower hostage would not cause her to see him any
faster because he only did so just to get her attention. She explained to Plaintiff that she saw him
once a week, a fact which Plaintiff already knew, and that he would just have to be patient and
wait for his turn to be seen. Plaintiff then asked Defendant Berger whether she was going to pull
him out of his cell so he could tell her his problems and explain to her why he wanted to go to
the P.O.C. cell. He also told her that “they” kept messing with his legal mail and grievances.

Greene. See ECF No.3, p.2. For purposes of this Memorandum Opinion, she will simply be
referred to as “Defendant Berger”.
2
When Defendant Berger responded by saying that Plaintiff had been refusing to see her during
her past visits with him, Plaintiff explained that was because he did not feel comfortable around
Psychologist Capra, who apparently accompanied Berger on her rounds. Defendant Berger then
asked Plaintiff whether he was going to stop cutting himself because she would not pull him out

of his cell if he continued to do so, and she requested that Plaintiff give Capra another chance.
Plaintiff provides no further details as to this exchange between he and Defendant Berger on
May 31, 2018.
Plaintiff also complains that Defendant Berger is not qualified to order mental health
medications and that he is dissatisfied with the medications ordered as he would prefer to receive
Klonopin and Ritalin. He also alleges that Defendant Berger provides different mental health
treatment to inmates based on their race stating that African American inmates with mental
illness like himself are treated as a behavior problem whereas Caucasian inmates with mental
illness are given proper treatment and medication. See ECF No. 3, pp.4-8.
B. Standard of Review

The United States Court of Appeals for the Third Circuit summarized the standard to be
applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the
Federal Rules of Civil Procedure, a plaintiff must come forward
with “a short and plain statement of the claim showing that the
pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), a claimant must state a “plausible” claim for
relief, and “[a] claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Although
“[f]actual allegations must be enough to raise a right to relief
above the speculative level,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff “need only put forth allegations
that raise a reasonable expectation that discovery will reveal
evidence of the necessary element.” Fowler, 578 F.3d at 213
3
(quotation marks and citations omitted); see also Covington v. Int’l
Ass'n of Approved Basketball Officials, 710 F.3d 114, 117–18 (3d
Cir. 2013).

Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than
when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972).
When presented with a pro se complaint, the court should construe the complaint liberally and
draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v.
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the
applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d
244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this
is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently
alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality,
pro se litigants are not relieved of their obligation to allege sufficient facts to support a
cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Discussion
Plaintiff’s Complaint is far from a model of clarity and his claims are not well articulated.
That said, however, it does appear as though Plaintiff is attempting to assert two different claims
against Defendant Berger. First, he appears to argue that she was deliberately indifferent to his
serious mental health needs in violation of the Eighth Amendment because she failed to respond
in a constitutionally appropriate manner during his mental health crisis on May 31, 2018, and he
also asserts that she was also deliberately indifferent because she failed to provide him with
4
specific medications to treat his mental illness. Second, he appears to argue that she violated his
right to equal protection either by not providing him with mental health treatment like Caucasian
inmates who suffer from mental illness or by not providing him with the same mental health
treatment as that provided to Caucasian inmates.2

1. Eighth Amendment Claims
To state a claim for deliberate indifference, a plaintiff must satisfy the two-part test
drawn from Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153,
173 (1976)). “First, plaintiff must make an ‘objective’ showing that the deprivation was
‘sufficiently serious,’ or that the result of defendant’s denial was sufficiently serious.
Additionally, the plaintiff must make a ‘subjective’ showing that defendant acted with ‘a
sufficiently culpable state of mind’” – i.e., “deliberate indifference” Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In other
words, a prisoner plaintiff alleging deliberate indifference to medical needs must allege two
elements: (1) that he was suffering from a serious medical need, and (2) that prison officials were

deliberately indifferent to that serious medical need.
A medical need is “serious” if it is “one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person would easily recognize the

2 Defendant Berger’s Motion to Dismiss is only directed to Plaintiff’s claim for deliberate
indifference and not to his alleged violation of equal protection. This, however, is most likely
because Plaintiff did not clearly articulate his claims against her, or any of the other defendants,
and she did not read his Complaint to assert such an equal protection claim. Notwithstanding
this oversight, the Court will address his equal protection claim pursuant to its power to screen
cases filed by plaintiffs proceeding in forma paupers and to dismiss claims “at any time” if the
plaintiff’s claim is frivolous or malicious, fails to state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i)-(iii).
5
necessity for a doctor’s attention.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003).
“The seriousness of an inmate’s medical need may also be determined by reference to the effect
of denying the particular treatment.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987) (citations omitted). “In addition, where denial or delay causes an inmate

to suffer a lifelong handicap or permanent loss, the medical need is considered serious.” Id.
To demonstrate deliberate indifference, the plaintiff “must make a subjective showing
that defendant acted with a sufficiently culpable state of mind.” Pinchak, 294 F.3d at 499. The
level of culpability is “somewhere between the poles of negligence at one end and purpose or
knowledge at the other.” Thomas v. Dragovich, 142 F. App’x 33, 36 (3d Cir. 2005) (citing
Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A prison official must “know of an excessive
risk to an inmate’s health or safety and affirmatively disregard it.” Innis v. Wilson, 334 F. App’x
454, 456 (3d Cir. 2009) (citing Farmer, 511 U.S. at 835-38). The Third Circuit Court of Appeals
has “found ‘deliberate indifference’ in a variety of circumstances, including where the prison
official (1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide

it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a
prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999) (citations omitted). Conversely, “[m]ere medical malpractice
cannot give rise to a violation of the Eighth Amendment.” White v. Napoleon, 897 F.2d 103,
108 (3d Cir. 1990). As our Court of Appeals long ago explained, “[w]here a prisoner has
received some medical attention and the dispute is over the adequacy of the treatment, federal
courts are generally reluctant to second guess medical judgments and to constitutionalize claims
which sound in state tort law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575
n.2 (3d Cir. 1979).
6
For purposes of this Opinion, the Court will assume, without deciding, that Plaintiff has
appropriately pleaded that he suffers from a sufficiently serious medical need that has been
diagnosed by a physician as mandating treatment, that being his mental illness. The question
now becomes whether he has sufficiently alleged facts to show that Defendant Berger was

deliberately indifferent to his mental illness.
a. May 31, 2018
With respect to the mental health crisis that Plaintiff alleges he experienced on May 31,
2018, Plaintiff’s allegations against Defendant Berger do not state a claim for relief as they do
not allow the Court to draw a reasonable inference that Defendant Berger was deliberately
indifferent to Plaintiff’s mental illness. Plaintiff’s claim against Defendant Berger concerning
the events that occurred on May 31, 2018 does not appear to be that she failed or refused to
provide him with any form of mental health treatment. Indeed, he admits that she came to see
him at his cell and spoke to him about why he was cutting himself. Instead, it appears that
Plaintiff’s claim against Defendant Berger is that she did not respond to him in the manner in

which he wanted (i.e., to be seen by her immediately, taken out of his cell and put into a
psychiatric observation cell). For example, he alleges that she took her “precious time” getting
to his cell despite knowing his “life was in danger” and that she told him that she would not see
him “any faster” or take him out of his cell to speak to her when he did things like cut himself
because he only did so just to get her attention. However, these allegations, taken as true, do not
state a claim for relief under the Eighth Amendment, since Plaintiff is not constitutionally
entitled to the treatment of his choice for his mental illness. Douglas v. Vihidal, No. 11-350,
2012 WL 1933569, at *7 (W.D. Pa. May 1, 2012) (citing Layne v. Vinzant, 657 F.2d 468, 473
(1st Cir. 1981)). Furthermore, even though Plaintiff does not allege that she denied him mental
7
health treatment, and there are no allegations in the Complaint as to whether or not he was taken
out of his cell to speak to Defendant Berger on this particular occasion. Plaintiff admits that he is
seen by her every Thursday, although he had refused to come out of his cell to speak with her on
prior occasions, and these allegations do not evidence deliberate indifference on the part of

Defendant Berger. As such, this claim will be dismissed.
b. Medication
With respect to Plaintiff’s claim that Defendant Berger is not qualified to prescribe him
medication, which is conclusory and not entitled to the “assumption of truth,” see Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009), and will not prescribe him with the specific medications that he
wants for his mental diagnosis, Plaintiff’s allegations similarly fail because “mere disagreements
over medical judgment do not state” a claim for relief under the Eighth Amendment. White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). Therefore, this claim will also be dismissed.
2. Equal Protection Claim
The Equal Protection Clause provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. “This is not a
command that all persons be treated alike but, rather, ‘a direction that all persons similarly
situated should be treated alike.’” Artway v. Attorney General of State of N.J., 81 F.3d 1235,
1267 (3d Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432,
439 (1985)). See also United States v. Armstrong, 517 U.S.456 (1996) (Equal Protection Clause
prohibits decision to prosecute based on an unjustifiable standard such as race, religion, or other
arbitrary classification). However, in order to state a claim for a violation of equal protection, a
plaintiff must allege, and ultimately prove, “intentional discrimination.” McCleskey v. Kemp,
481 U.S. 279, 292 (1987); Washington v. Davis, 426 U.S. 229, 241 (1976).
8
Here, it is not enough that Plaintiff alleges that he is an African American inmate with
mental illness and that Caucasian inmates with mental illness get different mental health
treatment in prison. Rather, Plaintiff must allege that his race was a substantial factor in the
different treatment that is alleged, and this he has not done. Moreover, despite Plaintiff’s

assertion that African American inmates with mental illness are treated as “behavioral problems”
and are not given medication for their mental illness, Plaintiff admits that he is seen once a week
by Defendant Berger, who is presumed to be a mental health professional because Plaintiff
identifies her (although perhaps improperly) as a psychiatrist, and that she provides him with
medication for his mental illness, even though it is not the specific medication that he claims he
needs. Finally, assuming Plaintiff’s argument is directed more toward the type of mental health
treatment he receives (i.e., the specific medication that he is prescribed for his mental illness) as
opposed to receiving mental health treatment in general, then his claim assumes that every
inmate with mental illness, regardless of race, has the same diagnoses and necessitates the same
type of treatment. This, however, is an assumption that cannot be made when considering

whether these inmates are “similarly situated.” As such, even though Defendant Berger has not
moved to dismiss Plaintiff’s equal protection claim, it will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
3. Amendment of Complaint
The court must allow amendment by the plaintiff in civil rights cases brought under §
1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless
doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the
9
district court must offer the opportunity to amend unless it would be inequitable or futile). While
the Court is cognizant of these holdings, it finds that allowing for amendment by Plaintiff would
be futile. A careful review of the record commands that Plaintiff, even garnering all the
liberalities that accompany his pro se status, fails to state any claims under § 1983 against
Defendant Berger for which relief may be granted. A separate order will issue.
Dated: March 6, 2020.
TO7e
Lisa Pupo Lenihan
United States Magistrate Judge

Ce: — Jerome Junior Washington
HV-0282
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Counsel of record
(Via CM/ECF electronic mail)

10

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JEROME JUNIOR WASHINGTON, )
) Civil Action No. 18 — 1390
Plaintiff, )
)
Vv. ) Magistrate Judge Lisa Pupo Lenihan
)
JOHN E. WETZEL, Commissioner, et _ )
al., )
)
Defendants. )

ORDER
AND NOW, this 6th day of March, 2020,
IT IS HEREBY ORDERED that the Motion to Dismiss filed by Defendant Berger
(ECF No. 28) is GRANTED and the claims against Defendant Berger are dismissed with
prejudice.
AND IT IS FURTHER ORDERED that Defendant Berger is dismissed from this action
with prejudice and the Clerk of Court is directed to terminate her from the docket.

Lisa Pupo Lenihan
United States Magistrate Judge

Ce: — Jerome Junior Washington
HV-0282
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Counsel of record
(Via CM/ECF electronic mail)
11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415395. Public record. Not legal advice.