CHMIEL v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID CHMIEL, )

)

Plaintiff, )

v. )

) Civ. A. No. 18-1691

PENNSYLVANIA DEPARTMENT OF _ )

CORRECTIONS, et al., )

)

Defendants. )

MEMORANDUM OPINION

Plaintiff David Chmiel (‘Plaintiff’), an inmate currently incarcerated at the State

Correctional Institution at Greene (“Prison”), commenced this action against multiple defendants

under 42 U.S.C. § 1983. He alleges that by not providing regular diabetic eye examinations

necessary to detect diabetic retinopathy, the Prison’s administrative and medical staff were

deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Plaintiff

also claims that the Pennsylvania Department of Corrections (“DOC”) discriminated against him on

the basis of his diabetes and diabetic retinopathy in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101 et seq., and Section 504 of the Rehabilitation Act (“RA”), 29U.S.C. §

794(a).

Named as Defendants in Plaintiff's Amended Complaint are the DOC; the Prison’s Health

Care Administrators Guth and Nicholson; the Prison’s former and current medical directors, Drs. Jin

and Smyth, respectively; Prison physicians Russell, Santos, Park, Dascani and Valley; and Michael

Hice, a phlebotomist at the Prison (sometimes collectively referred to as “Defendants’’).

Presently pending before the Court are motions to dismiss Plaintiff's Amended Complaint

which have been asserted by all Defendants except Michael Hice, who has filed an Answer. For the

reasons stated herein, the motions to dismiss of Dr. Valley and Dr. Santos will be granted and those

of all other Defendants will be denied.

I. PROCEDURAL BACKGROUND

After Plaintiff commenced this in December 2018, all defendants other than Defendant Hice

filed motions to dismiss his Complaint. Subsequently, with leave of Court, Plaintiff filed an

Amended Complaint (ECF No. 75, “Am. Compl.”), which rendered Defendants’ motions moot.

All defendants other than Defendant Hice have moved to dismiss the Amended Complaint.

These motions have been fully briefed and are ripe for disposition.

II. RELEVANT FACTUAL BACKGROUND

As alleged in the Amended Complaint, Plaintiff was diagnosed with Type 2 diabetes as early

as 1999 while incarcerated in a DOC institution. (Am. Compl. § 34.) He was transferred to SCI

Greene in 2002. U/d. 35.) In October 2016, Dr. Russell referred Plaintiff to medical care outside of

the Prison and he was diagnosed by an opthamologist in Janaury 2017 with “early diabetic

retinopathy and cateracts in both eyes.” (/d. § 52.) According to the National Eye Institute, diabetic

retinopathy “involves changes to retinal blood vessels that can cause them to bleed or leak fluid,

distorting vision,” and is the “most common cause of vision loss among people with diabetes.” (/d.

20, 22.)

A month after being diagnosed with diabetic retinopathy, the surgeon performing Plaintiff s

double eye laser surgery told him that it may be too late to save his left eye and asked him why it

took so long to get his eyes checked. (/d. 4 53.) Plaintiff asserts that since that time, his condition has

only worsened, leaving him essentially blind in one eye. (/d. ¢ 54.) In March 2017, he was diagnosed

with proliferative diabetic retinopathy, the most advanced form of this condition, as well as “traction

retinal detachment.” (/d. {J 55, 56.) Subsequently, Plaintiff allegedly received an “even worse

diagnosis,” high risk proliferative diabetic retinopathy and a combined tractional and

rhegmatogenous retinal detachment in his left eye, and was also noted as having decreased vision.

Ud. 57-58.)

According to the allegations in the Amended Complaint, in order to screen for and prevent

diabetic retinopathy the American Diabetic Association urges medical providers to regularly

administer a dilated eye exam called a fundoscopy, which allows the physician to examine a

patient’s retina and optic nerve for signs of damage and other eye problems. (/d. J 23-25.) For

patients who show no signs of retinopathy, the recommended frequency of this examination is at

least every one to two years. (Id. § 27.) Those manifesting any level of diabetic retinopathy,

however, should receive these examinations at least annually by an ophthalmologist or an

optometrist. (/d.) If a patient’s retinopathy is progressing or sight-threatening, they should receive

examinations more frequently. (/d. § 28.) Without regular fundoscopies and proper treatment,

retinopathy can progress to proliferative diabetic retinopathy. (/d. § 32.) At this stage, patients face a

serious risk of retinal detachment and permanent vision loss. (/d.) Therefore, Plaintiff claims, a

fundoscopy is an essential tool to ensure proper treatment of patients with Type 2 Diabetes. (Jd. J

26.)

During his incarceration, Plaintiff asserts, he frequently complained to medical personnel

about his eyesight. (/d. § 35.) Dr. Russell performed two fundoscopies on Plaintiff, once in 2002 and

again in 2008, six years later. (/d.) Thereafter, the only eye exams performed on Plaintiff were

Snellen tests, which do not involve either dilation or examination of the retina or optic nerve. (/d.

As Plaintiffs vision deteriorated, Dr. Russell simply wrote prescriptions for glasses of

increasing strength, which treated the symptom (poor vision) but not the underlying problem

(retinopathy). Ud. § 37.)

Plaintiff alleges that as reflected in his medical records, the medical staff, including Drs.

Park, Jin, and Dascani, characterized his diabetes as poorly controlled or uncontrolled. (/d. { 38.)

Drs. Russell, Santos, Jin, Park, Dascani, Valley, and Smyth each treated him and had access to his

medical records. (Id. § 39.) Thus, Plaintiff claims, each of these medical professionals knew that he

was a diabetic, that his diabetes was poorly controlled, and knew or should have known that he was

at a greater risk for developing severe diabetic retinopathy. (/d. § 40.) Despite their awareness of

Plaintiff's high risk of developing diabetic retinopathy, Defendants chose not to administer an annual

fundoscopy. (Id. § 41.) Plaintiff asserts that this is the “best tool” for screening and preventing this

condition. (/d.)

According to the Amended Complaint, Health Care Administrators (“HCAs”) Guth and

Nicholson are responsible for ensuring that all inmates at the Prison have an opportunity to receive

adequate health care and that those with special medical needs have a periodic health review. Ud. □

8, 9.) Their responsibilities include overseeing the DOC staff, including all medical personnel, in

order to coordinate health care services at the Prison. (/d. § 46.) Plaintiff alleges that HCAs Guth and

Nicholson refused to allow him to schedule medical appointments and otherwise did not ensure that

he received the appropriate treatment for his medical needs. (/d. § 47.) The Amended Complaint also

alleges that Defendant Hice refused Plaintiff access to medical care. (Ud. § 49.)

As alleged in the Complaint, it is the Prison’s standard practice to deny fundoscopies to high

risk diabetic patients. (Id. ] 59.) The DOC, HCAs Guth and Nicholson, and Drs. Jin and Smyth are

aware of this practice and approved its continued implementation despite knowing that individuals

with diabetes such as Plaintiff should receive comprehensive eye exams, including fundoscopies, on

at least a biannual basis. (/d. § 60.) Due to Defendants’ deliberate indifference, Plaintiff alleges, he

now suffers from diabetic retinopathy. (/d. § 61.) Plaintiff claims that Defendants do not deny proper

chronic care or regular diagnostic exams wholesale to prisoners suffering from other chronic

conditions. (Jd. § 62.) Rather, Plaintiff attributes Defendants’ failure to provide him with proper

chronic care to his diagnosis as a diabetic. Ud. § 63.)

Plaintiff claims that as a direct result of Defendants’ denial of proper medical treatment, he

developed diabetic retinopathy, putting him at grave risk of permanent vision loss. Ud. 49 51, 65.)

Further, he alleges, the DOC’s failure to accommodate his impaired vision prevents him from

receiving equal benefits from the Prison’s services and programs. (/d. | 66.) Specifically, Plaintiffis

unable read books at the library, take a job, or go out to the yard, and has difficultly bathing in the

shower. (/d. § 67, 70, 71, 72.)

III. STANDARD OF REVIEW

A valid complaint requires only “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6)

provides for the dismissal of a complaint, in whole or in part, for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must

“accept all factual allegations as true, construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be

entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). While “accept{ing] all of the complaint’s well-

pleaded facts as true,” the court “may disregard any legal conclusions.” Jd. at 210-11.

To survive the motion, the plaintiff must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). “Though ‘detailed factual allegations’ are not required, a complaint must do more than

simply provide ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action.’” Davis v. Abington Mem’l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550

U.S. at 555). In sum, the plaintiff“must plead facts sufficient to show that her claim has substantive

plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10 (2014).

To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three

steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away those

allegations that are no more than conclusions and thus not entitled to the assumption of truth; (3)

look for well-pled factual allegations, assume their veracity, and then determine whether they

plausibly give rise to an entitlement to relief. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). The

court’s plausibility determination is “a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, exhibits,

and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). A court may also

consider “items subject to judicial notice,” without converting the motion to dismiss into one for

summary judgment. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B

Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1357 (2004)).

IV. DISCUSSION

In Count I of his Amended Complaint, Plaintiff asserts § 1983 claims against all Defendants

except the DOC for deliberate indifference to his serious medical needs in violation of the Eighth

Amendment. The remaining two counts are asserted against only the DOC. Count II pleads a cause

of action for discrimination and exclusion from services of a public entity in violation of the ADA,

while Count III asserts a claim for discrimination and exclusion from services of a federally funded

entity in violation of the RA.

The Court will discuss each of these claims in turn. Before analyzing Plaintiff's substantive

claims, however, the Court will address whether Plaintiff exhausted the Prison’s administrative

remedies.

A. Exhaustion of administrative remedies

Drs. Dascani, Jin, Park, Smyth, and Valley seek dismissal based on Plaintiff's failure to

exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”).

The PLRA prohibits an inmate from bringing any action concerning prison conditions absent

exhaustion of available administrative remedies. 42 U.S.C. § 1997e(a). This exhaustion requirement

applies to “all inmate suits about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or some other wrong.” Porter y. Nussle,

534 U.S. 516, 532 (2002). The PLRA further mandates that inmates properly exhaust administrative

remedies before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural rules

because no adjudicative system can function effectively without imposing some orderly structure on

the course of its proceedings.” Jd. at 91. Accordingly, “it is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).

“Failure to exhaust administrative remedies is an affirmative defense that must be pled and proven

by the defendant[s].” Brown v. Croak, 312 F.3d 109, 111 Gd Cir. 2002) (citing Ray v. Kertes, 285

F.3d 287, 295 (3d Cir. 2002)).

Here, Drs. Dascani, Jin, Park, Smyth, and Valley do not dispute that Plaintiff filed and fully

exhausted a grievance with respect to the allegations in the Amended Complaint.! They maintain,

however, that Plaintiff failed to comply with the PLRA’s exhaustion mandate because he

procedurally defaulted by not naming them personally in that grievance.

As an initial matter, that Court notes that the Supreme Court has “identified the benefits of

exhaustion to include allowing a prison to address complaints about the program it administers

before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved,

and improving litigation that does occur by leading to the preparation of a useful record.” Jones, 549

at 219. Indeed, the “primary purpose of a grievance is to alert prison officials to a problem, not

to provide personal notice to a particular official that he may be sued.” Jd. (quoting Johnson v.

Johnson, 385 F.3d 503, 522 (5th Cir. 2004)). Therefore, “exhaustion is not per se inadequate simply

because an individual later sued was not named in the grievances.” Jd.

1 Drs. Dascani, Jin, Park, Smyth, and Valley have submitted Plaintiffs grievance record in support of

their motions to dismiss. (ECF Nos. 80-1; 87-1 (“Grievance”).) “Given that the exhaustion issue

turns on the indisputably authentic documents related to [Plaintiffs] grievance[],” the Court may

consider such records without converting their motion into one for summary judgment. Spruill v.

Gillis, 372 F.3d 218, 223 (3d Cir. 2004).

However, since “prison grievance procedures supply the yardstick for measuring procedural

default[,]” the starting point of the Court’s analysis is the grievance policy in effect at the Prison

during the relevant time.” Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). That policy provides

that, in filing a grievance, “[t]he inmate shall identify individuals directly involved in the event(s).”

DC-ADM 804, §1.A.11.b. The policy, however, also permits “[a]n inmate who has been personally

affected by a Department and/or facility action or policy” to submit a grievance. Jd. §1.A.13.1

Plaintiff's grievance record reflects that he filed Grievance No. 667375 on March 3, 2017.

(Grievance at 52.) In that grievance, Plaintiff indicates that he is filing a grievance “against the

Medical Department and the DOC, for: (1) deliberate and malicious deprivation of adequate medical

care and need ina timely manner, (2) unethical delay of eye care, [and] (3) 8th Amendment rights to

be free from cruel and unusual punishment, by the Defendants, John Mcanneny, Mr. Nicholson, Dr.

Santos, Mike Hice, Gilmore, [and] John Wetzel.” (/d.) Plaintiffs grievance also alleges that he had

suffered from poor eyesight for “over two years” and that the Prison’s medical department had done

“nothing” to treat it. Ud. at 53.)

In denying Plaintiff's grievance at the initial review response, a Prison health care

administrator acknowledged that Plaintiff's grievance was premised on the fact that “the medical

department waited too long to have [his] vision checked causing an unnecessary delay which may

lead to blindness” (/d. at 54.) In upholding this initial denial upon Plaintiff's appeal, the Prison’s

facility manager also referenced the medical department in his iteration of Plaintiff's grievance. Ud.

at 56.) On final appeal, Plaintiff's grievance was referred to the Director of the Bureau of Health

2 The policy is posted on the DOC website and is accessible at: http://www.cor.pa.gov/Ab

out%20Us/Documents/DOC%20Policies/804%20Inmate”20Grievances. pdf; see also (ECF No.

90-1.).

Care Services who, too, characterized Plaintiff's grievance as a complaint “regarding the medical

care given by the medical department of [the Prison].” (Ud. at 49, 50.)

At this point in the proceedings, the Court concludes that there are material issues of fact

regarding whether Plaintiff procedurally defaulted by naming only the “Medical Department” and

not individual physicians. Whether the Prison officials were on notice of the identity of the doctors

accused of wrongdoing and whether the Prison acknowledged that these doctors were fairly within

the scope of Plaintiff's grievance cannot be resolved in this case on a motion to dismiss. See Spruill,

372 F.3d at 234

Moreover, there is insufficient record evidence regarding which physicians had rendered

treatment to Plaintiff as of the date of the grievance or Plaintiffs knowledge of the identity of such

physicians. As such, any motions to dismiss premised on Plaintiff's failure to exhaust administrative

remedies must be denied without prejudice to move for summary judgment on this issue once

additional evidence has been developed.

Drs. Dascani, Jin, Park, and Smyth sought dismissal only on the exhaustion grounds. On the

other hand, Dr. Valley seeks dismissal of Plaintiff's claim against him on the merits as well. The

Court will address those arguments in its analysis of Plaintiff's substantive claims.

B. Section 1983 Claims (Count I — All Defendants except the DOC)

Section 1983 provides a private citizen with the right to bring an action against any person

who under color of state law deprives him of a right or privilege secured by the Constitution of the

United States. 42 U.S.C. § 1983. This statute does not create substantive rights but instead “provides

only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.”

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a viable § 1983 claim, a plaintiff

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“must establish that []he was deprived of a federal constitutional or statutory right by a state actor.”

Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Because there is no question Defendants acted

under color of state law, the Court’s analysis focuses on whether Plaintiff has sufficiently alleged a

deprivation of his constitutional rights under the Eighth Amendment.

It is well established that “[t]he Eighth Amendment, through its prohibition on cruel and

unusual punishment, prohibits the imposition of ‘unnecessary and wanton infliction of pain contrary

to contemporary standards of decency.” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir.

2017) (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)). “The question under the Eighth

Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a

sufficiently substantial risk of serious damage to his future health.” Giles v. Kearney, 571 F.3d 318,

330 (3d Cir. 2009) (quoting Farmer y, Brennan, 511 U.S. 825, 843 (1994)). Accordingly, in order to

establish an inadequate medical treatment claim under the Eighth Amendment, “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.’” Pearson, 850 F.3d at

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

Here, Defendants do not dispute that Plaintiff has a serious medical need. The only issue,

therefore, is whether Plaintiff has alleged sufficient facts, for purposes of a motion to dismiss, to

support an inference that Defendants were deliberately indifferent to that need.

The Third Circuit has explained “that claims of negligence or medical malpractice, without

some more culpable state of mind, do not constitute ‘deliberate indifference.’” Rouse, 182 F.3d at

197. Rather, for a prison official “[t]o act with deliberate indifference to serious medical needs [ofa

prisoner] is to recklessly disregard a substantial risk of serious harm.” Giles, 571 F.3d at 330 (citing

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Estelle v. Gamble, 429 U.S. 97, 104-105 (1976); Farmer, 511 U.S. at 836). “Under [this]

recklessness standard, ‘prison officials who actually knew of a substantial risk to inmate health or

safety may be found free from liability if they responded reasonably to the risk.’” Jd. (quoting

Farmer, 511 U.S. at 844). The Third Circuit has found deliberate indifference to exist in various

scenarios including where a 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; (3) prevents a prisoner from receiving needed or recommended medical treatment. . .

. for (4)] persists in a particular course of treatment in the face of resultant pain and risk of

permanent injury.” Rouse, 182 F.3d at 197 (citations and quotations marks omitted). Deliberate

indifference may be shown by intentionally denying or delaying medical care. Estelle, 429 U.S. at

104-105.

In sum, if the alleged inadequate care “was a result of an error in medical judgment,” then

Plaintiff's claims must fail. Durmer v. O’Carroll, 991 F.2d 64, 69 (d Cir. 1993). If the failure to

provide adequate care was deliberate and motivated by non-medical factors, however, then

Plaintiffs claims are actionable.

i. Dr. Russell

Plaintiff has alleged that despite knowing about his high risk for developing diabetic

retinopathy, Dr. Russell deliberately chose not to administer an annual fundoscopy which was the

best tool for screening and preventing this condition. (Am. Compl. § 41.) Plaintiff asserts that the

fact that Dr. Russell allegedly performed two fundoscopies on Plaintiff over a six-year span, in 2002

and 2008, supports an inference that he recognized the risk that Plaintiff could develop diabetic

retinopathy and nonetheless intentionally delayed or denied medical care. (id. {| 35.) Yet, as

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Plaintiffs vision deteriorated, Dr. Russell “persisted in a particular course of treatment,” 1.e.,

prescribing glasses of increasing strength (/d. J 37), while ignoring the “risk of permanent injury,”

i.e., blindness, associated with diabetic retinopathy. Rouse, 182 F.3d at 197. For the limited purpose

of resolving a motion to dismiss, these allegations are sufficient to state a claim that Dr. Russell

acted with deliberate indifference because he knew that Plaintiff required fundoscopies but

deliberately stopped administering them after 2008. Accordingly, Dr. Russell’s motion will be

denied.

ii, Drs. Valley and Santos

Plaintiff alleges that Drs. Valley and Santos were both physicians at the Prison. (Am. Compl.

12, 15.) The only other allegation that specifically references Drs. Valley and Santos is that they,

along with Drs. Russell, Jin, Park, Dascani, Robinson and Smyth, treated Plaintiff and had access to

his medical records. (Id. § 39). The remaining allegations in the Amended Complaint refer to all

Defendants generally, and allege that they knew that Plaintiff was diabetic, that his diabetes was

poorly controlled, and that they knew or should have known that he was at a greater risk for

developing severe retinopathy but, despite this awareness deliberately chose not to administer an

annual fundoscopy to Plaintiff (/d. §§ 40-41.) Significantly, Plaintiffalleges that a fundoscopy is the

“best tool” for screening and preventing retinopathy, not that it is the only tool. (/d. 4 41.)

While Plaintiff alleges general allegations against all Defendants, these allegations fail to

plead any specific acts or omissions of Drs. Valley and Santos that would state a claim for deliberate

indifference to Plaintiff's serious medical needs. At best, the allegations against them are that they

failed to use the “best tool” to screen for retinopathy, not that they failed to treat him at all. While

this may be enough to plead a negligence claim, it is not sufficient to state a claim for deliberate

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indifference to a serious medical need.

“A District Court has discretion to deny a plaintiff leave to amend where the plaintiff was put

on notice as to the deficiencies in his complaint, but chose not to resolve them.” Astrazeneca Pharm.

L.P., 769 F.3d at 849 (3d Cir. 2014) (quoting Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d

140, 144 (3d Cir. 2002)), Here, Plaintiff amended his original complaint after Drs. Valley and Santos

sought dismissal based upon a lack of factual allegations against them. Plaintiff has not added any

factual specificity in his Amended Complaint regarding the alleged conduct of Drs. Valley and

Santos. Therefore, the Court declines to grant Plaintiff leave to amend his Amended Complaint.

Because there are no factual allegations in the Amended Complaint supporting the inference

that Drs. Valley and Santos were deliberately indifferent to Plaintiff's serious medical needs, their

motions to dismiss will be granted.

iii, HCAs Guth and Nicholson

HCAs Guth and Nicholson argue that because they are not medical staff, absent reason to

believe that Plaintiff was being mistreated or not treated appropriately they cannot be found to be

deliberately indifferent. See Durmer, 991 F.2d at 69 (“[Non-physician prison officials] can[not] be

considered deliberately indifferent simply because they failed to respond directly to the medical

complaints of a prisoner who was already being treated by the prison doctor.”) They assert that

Plaintiff's failure to allege that they knew or should have known about any mistreatment necessitates

dismissal of his claims against them.

Asa preliminary matter, the Court notes that Plaintiff has, in fact, alleged that Defendants

knew or should have known that he never received proper medical care. (Am. Compl. § 50.)

Additionally, while it is true that “[i]fa prisoner is under the care of medical experts ... , a non-

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medical prison official will generally be justified in believing that the prisoner is in capable

hands [,]” Spruill, 372 F.3d at 236, that factual scenario is not implicated here. Rather, Plaintiff has

alleged that he was not receiving the proper treatment—i.e., annual fundoscopies—by the medical

staff and that HCAs Guth and Nicholson knew this and failed to provide him with that treatment

despite knowing that it was necessary.

HCAs Guth and Nicholson also contend that Plaintiff has not pleaded their personal

involvement in the alleged deprivation of his constitutional rights. Under § 1983, a defendant must

be shown to have had personal involvement in the alleged wrongs; liability cannot be predicated

solely on the operation of respondeat superior. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988) (citations omitted). A § 1983 plaintiff has two avenues for establishing supervisory

liability. First, “[i]ndividual defendants who are policymakers may be liable under § 1983 if it is

shown that such defendants, ‘with deliberate indifference to the consequences, established and

maintained a policy, practice or custom which directly caused [the] constitutional harm.’” A.M. ex

rel. J MK. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v.

Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.1989)). Second, “a supervisor may be

personally liable . . . if he or she participated in violating the plaintiff's rights, directed others to

violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates’

violations.” Jd.

Regarding the first avenue for establishing supervisory liability, Plaintiffalleges HCAs Guth

and Nicholson knowingly approved the Prison’s standard practice to deny fundoscopies to high risk

patients like him. (Am. Compl. {§ 59-60.) These allegations reflect that HCAs Guth and Nicholson

“turned a blind eye to an obviously inadequate practice that was likely to result in the violation of

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constitutional rights’ such that they, as ‘policymaker[s,] can reasonably be said to have been

deliberately indifferent to [Plaintiffs serious medical] need.’” Parkell v. Danberg, 833 F.3d 313,

338 (3d Cir. 2016) (quoting Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir.

2003)).

Similarly, with respect to the second potential avenue of potential liability, the Amended

Complaint alleges that HCAs Guth and Nicholson oversaw the Prison’s medical department and

were responsible for ensuring not only that proper medical treatment was provided to all inmates, but

also that those with special medical needs, such as Plaintiff, received a periodic health review. (Am.

Compl. {§ 8, 9, 46.) Yet, according to Plaintiff, they refused to allow him to schedule medical

appointments to ensure that he received necessary medical care, i.e., fundoscopies, that the Prison’s

medical department had not provided. (/d. J 48.) These allegations sufficiently state a claim that

HCA Guth and Nicholson knew of, participated in, or acquiesced in the denial of annual

fundoscopies to Plaintiff from 2008 until he was ultimately diagnosed with diabetic retinopathy in

2017.

In sum, the Amended Complaint sufficiently pleads that HCAs Guth and Nicholson were

personally involved in the alleged wrongs. Accordingly, their motion to dismiss will be denied.

C. ADA and RA Claims (Count IT & III — DOC only)

Title II of the ADA provides that “{n]o qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

42 U.S.C. § 12132. It is well established that “[s]tate prisons fall squarely within the statutory

definition of ‘public entity,’ which includes ‘any department, agency, special purpose district, or

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other instrumentality of a State or States or local government.’” Pennsylvania Dep’t of Corr. v.

Yeskey, 524 U.S. 206, 210 (1998) (quoting 42 U.S.C. § 12131(1)(B)); see also Chisolm v.

McManimon, 275 F.3d 315, 325 (3d Cir. 2001) (“Title II of the ADA applies to services, programs

and activities provided within correctional institutions.”).

The RA provides that “{n]o otherwise qualified individual with a disability in the United

States ... shall, solely by reason of her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any program or activity receiving

Federal financial assistance...” 29 U.S.C. § 794(a). The Third Circuit has explained that “[t]he

substantive standards for determining liability under the [RA] and the ADA are the same.” Blunt v.

Lower Merion Sch. Dist., 767 F.3d 247, 275 (3d Cir. 2014) (quoting Ridley Sch. Dist. v. M.R., 680

F.3d 260, 282-83 (3d Cir. 2012)); see 29 U.S.C. § 794(d).

Therefore, to state a claim under either the ADA or the RA a plaintiff “must allege that he is

a qualified individual with a disability, who was precluded from participating in a program, service,

or activity, or otherwise was subject to discrimination, by reason of his disability.” Furgess v.

Pennsylvania Dep’t of Corr., 933 F.3d 285, 289 (3d Cir. 2019). Here, the DOC does not dispute that

Plaintiff is a qualified individual with a disability. The only issue, therefore, is whether Plaintiff

alleged facts supporting the inference that he is either precluded from participating in the Prison’s

services, or otherwise discriminated against because of his disability.

The allegations of Amended Complaint confirm that Plaintiff has plausibly alleged that he is

precluded from participating in various programs, services, or activities by reason of his disability—

i.e., his impaired vision due to diabetic retinopathy. (Am. Compl. 65-66.) Specifically, Plaintiff

alleges that the DOC’s failure to provide him with appropriate accommodations with respect to his

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impaired vision effectively prevents him from receiving equal benefit of various non-medical

services at the Prison—i.e., library, showers, yard access etc. Ud. 4 67, 71, 72.) Additionally,

Plaintiffs Amended Complaint plausibly alleges that the DOC subjected him to discriminatory

treatment by reason of his disability—i.e., his diagnosis as a diabetic. Ud. 4 63.) Plaintiffhas alleged

that the DOC knowingly approved the Prison’s standard practice to deny fundoscopies to high risk

diabetic patients like him. (/d. 59-60.) This practice is discriminatory because, as alleged, the

DOC does not have a blanket policy of denying proper chronic care or regular diagnostic exams to

prisoners suffering from chronic conditions other than diabetes. Ud. J 62.)

In sum, Plaintiff has stated a proper claim under the ADA and the RA. Accordingly, the

DOC’s motion to dismiss will be denied.

V. CONCLUSION

Based on the foregoing, the motions to dismiss filed by Dr. Valley and Dr. Santos will be

granted and those submitted by Dr. Dascani, Dr. Jin, Dr. Park, Dr. Smyth, Dr. Russell, HCAs

Guth and Nicholson, and the DOC will be denied. Appropriate orders will follow.

BYT URT:

Patricia L. Dodge

United States Magistrate Judge

Dated: March 23, 2020

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