The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALTON D. BROWN, )
)
Plaintiff, )
)
vs. ) Civil No. 16-cv-1081
)
TOM WOLF, et. Al. , )
)
Defendants. )
OPINION and ORDER
This case was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial
proceedings in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(A) and (B), and Local
Rule of Civil Procedure 72. On February 19, 2021, the Magistrate Judge issued a Report and
Recommendation, recommending granting in part and denying in part the motions to strike and
motions to dismiss filed by Defendants Arthur M. Santos, M.D., the Commonwealth Defendants1,
and the Medical Defendants2. ECF No. 376. The parties were informed that in accordance with
28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2, that objections to the Report
and Recommendation were due by March 5, 2021 for the electronically registered Defendants,
1 The Commonwealth Defendants are Department of Corrections (DOC) officials and employees. The
Defendants on whose behalf the Commonwealth Defendants filed the relevant motion are Daniel Burns, S.
Buzas, Mark Capozza, L. Cutler, Deputy Dialesandro, J. H. Dupont, Capt. Durco, T.A. Funk, Jayme E.
Gardner, R.N. Felton, Dean Geehing, Robert Gilmore, Margaret Gordan, Nedra Grego-Rice, C.O. E.T.
Gumbert, Kyle Guth, M. Haines, Mike Hice, Rhonda A. House, C.O. Imhoff, B. Jordan, CO Keller, Major
Leggett, John McAnany, Lt. Medvic, A.J. Morris, William Nicholson, Paul Noel, C.H. Oppmon, M.
Oppman, Karen Patterson, K. Petty, Lori Ridings, Capt. Schrader, Tracy Shawley, S. Silbaugh, Tricia
Silbaugh, Joseph J. Silva, Lt. Stickles, Sgt. Tikey, Sgt. Trout, Michael Troyan, Dr. Robert Valley, Dorina
Varner, Irma Vihlidal, Nurse J. Watson, Rich Wenhold, John E. Wetzel, Tamara Whitmeyer, Tom Wolf,
and Mike Zaken.
2 The Medical Defendants on whose behalf the relevant motion has been filed are Dr. Alpert, Pa. N.
Austin, Correct Care Solutions, Jay Cowan, Darla Cowden, Mike Hice, Byunghak Jin, Dr. Carl Keldie, S.
Liberatore, Dr. Malhi, Dr. Miceli, Elon Mwaura, and Dr. Park.
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and by March 8, 2021 for the non-electronically registered party Plaintiff. After obtaining an
extension of time to file, Mr. Brown’s “Objections to Magistrate Judge’s Report and
Recommendation dated 2/19/21” were filed on April 8, 2021. ECF No. 411. On April 13, 2021,
Dr. Santos filed a Reply to Plaintiff’s Objections.3 ECF No. 416. For the reasons that follow,
after de novo review, the Court finds that Mr. Brown’s objections do not undermine the
recommendations of the Magistrate Judge.
I. DISCUSSION
A. Relevant Background
The Magistrate Judge has set forth a detailed and accurate history of the relevant
procedural and factual background of the case in her Report, which the Court has reviewed and
need not be repeated here. ECF No. 376, at 2-23. Relevant to the Court’s review of the Report
and Recommendations, Mr. Brown filed an Amended Complaint on September 17, 2020,
asserting fourteen claims against numerous defendants. ECF No. 304. The claims in the case
relate to Mr. Brown’s allegations, inter alia, that he received deficient medical care and related
retaliatory punishment while he was incarcerated at SCI-Greene and at SCI-Fayette. His claims
are: Per Se Negligence (Count I), Unnecessary Use of Force (Count II), Deprivation of the Eighth
Amendment right to Medical Care (“Denial Of Medical Care/Deliberate Indifference”) (Counts
III, IV, V, VII, IX, X, and XI), Intentional Infliction of Emotional Distress (Count VI), Retaliation
in Violation of the First Amendment (Count VIII), Retaliation in Violation of the First
3 Dr. Santos argues, in part, that the Objections be struck for being untimely. ECF No. 416, at 3-4. As
Mr. Brown filed a second request to extend the time to file Objections, which was overlooked by the Court
until after the Objections were filed. The Court eventually granted the request as moot, indicating that the
Court would have granted the request to extend had the motion not been overlooked. Therefore, Dr.
Santos’s request to strike Mr. Brown’s Objections is moot.
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Amendment for sabotage of Mr. Brown’s legal endeavors (Count XII), “Political Prisoner”
(Count XIII), and Corporate Negligence (Count XIV).
B. February 19, 2021 Report and Recommendation
The February 19, 2021 Report and Recommendation was issued to resolve Dr. Santos’s
“Motion to Dismiss Plaintiff’s Amended Complaint, or, in the Alternative, Motion for Summary
Judgment” (ECF No. 321), the Commonwealth Defendants’ “Motion to Dismiss/Motion to Strike
Amended Complaint” (ECF No. 326), and the Medical Defendants’ “Motion to Strike/Motion to
Dismiss Plaintiff’s Amended Complaint” (ECF No. 331). The Magistrate Judge recommended
granting the Motions in part, denying them in part, and denying leave to amend the Amended
Complaint.
II. DISCUSSION
In response to the Report and Recommendations, Mr. Brown filed written Objections.
ECF No. 411. The filing of timely objections requires the district judge to “make a de novo
determination of those portions of the report . . . to which objection is made.” 28 U.S.C. §
636(b)(1); Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); Fed. R. Civ. P. 72(b)(3).
Upon thorough de novo review of the record, the pleadings, and based upon the Court’ s
independent analysis of the Report and Recommendation, the Plaintiff’s Objections and Dr.
Santos’s Reply to the Objections, the Court concludes that the Objections do not undermine the
recommendations of the Magistrate Judge.
A. Motions to Strike
All Defendants argued that the Amended Complaint should be stricken in its entirety. The
Magistrate Judge recommended that the motions to strike be granted as to all Defendants only as
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to Counts II, V, and XIII for the reason that these claims were not pled in the original complaints
and that they do not relate to any claims of imminent danger for which Mr. Brown has been
granted in forma pauperis status. The Magistrate Judge recommended that the Motions to Strike
be denied as to the remaining counts. Mr. Brown appears to object to these recommendations
contending that at least some of the claims do relate to his imminent danger claims or, at a
minimum, relate to claims asserted in Civil Action 18-1130, a “Complaint in Mandamus &
Equity,” which was originally filed by Mr. Brown in the Court of Common Pleas of Fayette
County and removed to this Court by Defendants. The Court disagrees. The Unnecessary Use of
Force claim at Count II presents wholly new allegations that are unrelated to his imminent danger
claims. The Denial of Medical Care/Deliberate Indifference claim at Count V, based on the
refusal to allow Mr. Brown access to medical marijuana and supplements, also presents a new and
non-cognizable claim in that medical marijuana is not permitted in prisons in Pennsylvania. Mr.
Brown’s Political Prisoner claim at Count XIII is also a new claim and is thus properly dismissed.
The Court has reviewed the record, the pleadings, the Report and Recommendation, and the
Objections thereto. Further, the Court concurs with the Magistrate Judge’s analysis in the Report
recommending dismissal of Counts II, V, and XIII. The Court concludes that Mr. Brown’s
Objections do not undermine the Magistrate Judge’s recommendation. As such, Mr. Brown’s
Objections to the Magistrate Judge’s s recommendation as to the Motions to Strike are overruled.
The Motions to Strike Counts II, V, and XIII will be granted. Counts II, V, and XIII will be
dismissed.
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B. Dr. Santos
As to the Motion for Summary Judgment filed by Dr. Santos based upon the failure to
exhaust administrative remedies, the Magistrate Judge recommended that the motion be denied
without prejudice. The Magistrate Judge recommended that Dr. Santos’s Motion be denied as
premature as to Mr. Brown’s request for punitive damages. In addition, the Magistrate Judge
recommended that the Motion to Dismiss be granted as to the Retaliation claim at Count VIII.
Finally, the Magistrate Judge recommended that Dr. Santos’s Motion to Dismiss be denied as to
the remainder of the claims asserted against him. Upon de novo review of the record, the
pleadings, the Report and Recommendation, and the Objections thereto, the Court concludes that
any Objections to the Magistrate Judge’s disposition of Dr Santos’s Motion do not undermine the
Magistrate Judge’s recommendation. As such, Mr. Brown’s Objections are overruled. Dr.
Santos’s Motion to Dismiss Count VIII will be granted. Count VIII will be dismissed as to Dr.
Santos.
C. Commonwealth Defendants
The Magistrate Judge recommended that the Commonwealth Defendants’ Motion to
Dismiss as to all Counts be granted as to Defendants Wolf, Wetzel, and Burns for lack of personal
involvement in the alleged conduct and granted as to Rhonda A. House, Tracy Shawley, and
Dorina Varner, whose only role was to review grievances. In addition, the Magistrate also
recommended that the Motion to Dismiss be denied as to all remaining claims asserted against the
specifically named Commonwealth Defendants identified by the Magistrate Judge on page 42 of
the Report. The Magistrate Judge recommended that the Motion to Dismiss be granted as to all
other Counts asserted against all other Commonwealth Defendants. Finally, the Magistrate Judge
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recommended that the Motion to Dismiss be granted as to the Retaliation claims at Counts VIII
and Count XII and granted as to any purported Civil Conspiracy claims. The Court has conducted
a thorough review of the Commonwealth Defendants’ Motion, Mr. Brown’s Responses to the
Motion, the Magistrate Judge’s Report and Recommendation, and Mr. Brown’s Objections. The
Magistrate Judge has accurately and sufficiently reviewed and discussed the record, the Motion,
and the parties’ arguments in her Report and Recommendation. Mr. Brown’s Objections do not
undermine the Magistrate Judge’s recommendation. As such, Mr. Brown’s Objections to the
Magistrate Judge’s Report and Recommendation as to the Commonwealth Defendants’ Motion
are overruled. The Commonwealth Defendants’ Motion to Dismiss Count VIII, XII, and any
purported Civil Conspiracy Claim will be granted. Defendants Wolf, Wetzel, Burns, House,
Shawley, and Varner will be dismissed from the case. All remaining Counts will be dismissed as
to all Commonwealth Defendants not named on page 42 of the Report. All Commonwealth
Defendants not specifically named on page 42 of the Report will be dismissed.
D. Medical Defendants
The Magistrate Judge recommended that the Medical Defendants’ Motion to Dismiss be
granted as to the Negligence Per Se claim at Count I, the Corporate Negligence claim at Count
XIV, the Retaliation claims at Counts VIII and Count XII, and granted as to any purported Civil
Conspiracy claims. The Magistrate Judge recommended that the Medical Defendants’ Motion to
Dismiss be denied as to all remaining claims asserted against the specifically named
Commonwealth Defendants identified by the Magistrate Judge on page 48 of the Report. Finally,
the Magistrate Judge recommended that the Motion to Dismiss be granted as to all other Counts
asserted against all other Medical Defendants. Upon de novo review of the record, the pleadings,
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the Report and Recommendation, and the Objections thereto, the Court concludes that Mr.
Brown’s Objections to the Magistrate Judge’s disposition of the Medical Defendants’ Motion do
not undermine the Magistrate Judge’s recommendation. As such, Mr. Brown’s Objections to the
Magistrate Judge’s Report and Recommendation as to the Medical Defendants’ Motion are
overruled. The Medical Defendants’ Motion to Dismiss Counts I, VIII, XII, IV, and any
purported Civil Conspiracy Claim will be granted. All remaining Counts will be dismissed as to
all Medical Defendants not named on page 48 of the Report. All Medical Defendants not
specifically named on page 48 of the Report will be dismissed.
E. Injunctive Relief Requests Related to SCI-Greene
As to any request for injunctive relief related to claims arising out of SCI-Greene, the
Magistrate Judge recommended that such be dismissed. To the extent that Mr. Brown is seeking
injunctive relief related to conduct at SCI-Greene, such requests have been rendered moot by his
transfer to SCI-Fayette on August 9, 2017. Following de novo review, Mr. Brown’s Objections
do not undermine the recommendation. Accordingly, any request for injunctive relief related to
SCI-Greene will be dismissed.
F. Leave to Amend
Finally, the Magistrate Judge thoroughly reviewed the applicable legal standards regarding
granting leave to amend a complaint when claims are dismissed upon a motion to dismiss. The
Magistrate Judge noted the Mr. Brown has been given several opportunities to amend his
complaint. The Court agrees that permitting further amendment would be futile.
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III. CONCLUSION
In light of the above, the Court accepts the Report and Recommendation as to the
Magistrate Judge’s disposition of the Motions.
Accordingly, the following Order is hereby entered.
ORDER
AND NOW, this 12th day of August 2021, following a de novo review of the relevant
pleadings and documents in this case, together with the Report and Recommendation, and
Objections thereto, the Court finds that Plaintiff’s Objections do not undermine the
recommendations of the Magistrate Judge.
Accordingly, it is hereby ORDERED that the Report and Recommendation, ECF No. 376,
dated February 19, 2021, is ADOPTED as the Opinion of the Court. IT IS FURTHER
ORDERED as follows:
1. The Commonwealth Defendants’ and the Medical Defendants’ Motions
to Dismiss (ECF Nos. 326 & 331) all Counts and claims against Deputy Secretary
Burns, S. Buzas, L. Cutler, M. Haines, Mike Hice, Rhonda A. House, B. Jordan,
Tricia Silbaugh, Tracy Shawley, Dorina Varner, John E. Wetzel, and Governor
Tom Wolf are GRANTED. Said Defendants are hereby DISMISSED from this
case.
2. The Defendants’ Motions to Strike (ECF Nos. 321, 326, & 331) are
GRANTED as to Counts II, V, and XIII. The Motions to Strike are DENIED as
to all other claims. Counts II, V, and XIII are hereby DISMISSED.
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3. Dr. Santos’s Motion for Summary Judgment (ECF No. 321), based
on the failure to exhaust administrative remedies, is DENIED without prejudice.
4. Dr. Santos’s Motion to Dismiss (ECF No. 321) is DENIED as to
Mr. Brown’s request for punitive damages.
5. (a) The Defendants’ Motions to Dismiss (ECF No. 321, 326, &
331) are DENIED as to Counts III, IV, VI, VII, IX, X, and XI, as asserted against
Dr. Santos and the Commonwealth and Medical Defendants identified on pages 42
and 48 of the Report.
(b) The Commonwealth and Medical Defendants’ Motions to
Dismiss (ECF No. 326 & 331) are GRANTED as to all Commonwealth and
Medical Defendants not specifically identified on pages 42 and 48 of the Report.
All remaining Counts as to all Commonwealth and Medical Defendants not named
on pages 42 and 48 of the Report are hereby DISMISSED. All Commonwealth
and Medical Defendants not specifically named on pages 42 and 48 of the Report
are hereby DISMISSED from this action.
6. All Defendants’ Motions to Dismiss (ECF No. 321, 326, & 331)
Counts VIII, XII, and any purported Civil Conspiracy claims, are GRANTED.
Counts VIII, XII, and any purported Civil Conspiracy claims are hereby
DISMISSED.
7. The Medical Defendants’ Motion to Dismiss (ECF No. 331) Counts
I and XIV, is GRANTED. Counts I and XIV are hereby DISMISSED.
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8. Any request for injunctive relief related to claims arising out of
SCI-Greene is DENIED as moot.
9. The Court finds that further amendment would be futile, and
therefore leave to amend is DENIED.
This matter is referred back to the Magistrate Judge for further proceedings.
Bete.
Marilyn J. Hora
United States District Court Judge
ce: Alton D. Brown, pro se
DL-4686
SCI Fayette
48 Overlook Drive
LaBelle, PA 15450-1050
(via U.S. First Class Mail)
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