LANKO v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTONIO LANKO, )

)

Plaintiff, ) Civil Action No. 2:21-cv-01075

)

vs. )

)

JOHN WETZEL, MALINDA ADAMS, )

K. FEATHER, and ADAM MAGOON, )

)

Defendants. )

MEMORANDUM OPINION1

Plaintiff, Antonio Lanko (“Lanko”) commenced this civil action, proceeding pro se,

against defendants John Wetzel, Malinda Adams, Karen Feather, and Adam Magoon

(“Defendants”). He claims that by exposing him to COVID-19 at the State Correctional Institution

at Mercer (“SCI-Mercer”) where he was incarcerated, Defendants violated his civil rights under

42 U.S.C. § 1983.

Pending before the Court is Defendants’ Motion for Summary Judgment (ECF No. 80).

For the reasons discussed herein, Defendants’ Motion for Summary Judgment will be granted.

I. Relevant Procedural History

Lanko filed his initial Complaint on September 9, 2021 (ECF No. 7) against multiple

defendants. He later filed an Amended Complaint (ECF No. 14) and a Second Amended

Complaint (ECF No. 21), the latter of which is the operative pleading. The Second Amended

1 The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all

proceedings in this case as authorized by 28 U.S.C. § 636 (ECF Nos. 9, 21). Thus, the undersigned

has the authority to decide dispositive motions and enter final judgment.

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Complaint names as defendants Adam Magoon, a corrections officer at SCI-Mercer, Karen

Feather, the Corrections Healthcare Administrator at SCI-Mercer, John Wetzel, the former

Secretary of the Department of Corrections (DOC), and Malinda Adams, the SCI-Mercer

Superintendent. Lanko asserts that the Defendants “neglected safety protocols, and precautions

set as preventative measures to contracting COVID-19.” ECF No. 21, p. 4.

After the close of discovery, Defendants moved for summary judgment (ECF No. 80), and

filed a Brief in Support (ECF No. 84), a Concise Statement of Material Facts (ECF No. 83), and

an Appendix of Exhibits (ECF No. 82). Lanko filed a Response to the Motion for Summary

Judgment (ECF No. 89), along with Undisputed Material Facts (ECF No. 90), a Response in

Opposition to Defendants’ Concise Statement of Material Facts (ECF Nos. 91, 93), and a Brief in

Support of his response which includes 12 exhibits (ECF No. 92). Finally, Defendants filed a

Response to Lanko’s Statement of Facts (ECF No. 94) and a Reply to Lanko’s Response to Motion

(ECF No. 95). Thus, the motion has been fully briefed.

II. Relevant Factual Background2

A. COVID-19 protocols and conditions at SCI-Mercer

Lanko alleges that because COVID protocols for safety were not followed at SCI-Mercer,

2 The following facts are undisputed unless otherwise noted. They are based on Defendants’

Concise Statement of Undisputed Material Facts (ECF No. 83) and Lanko’s Response to

Defendants’ Concise Statement of Undisputed Material Facts (ECF No. 93). In determining

whether genuine issues of material fact exist, the Court will consider the factual assertions Lanko

has made to the extent that they are based on his personal knowledge, set out facts that would be

admissible in evidence, and state competent testimony on the matters at issue. See Fed. R. Civ. P.

56(c)(4). The Court notes that Lanko’s Response to Defendants’ Concise Statement of Undisputed

Material Facts is misnumbered beginning at No. 21. The Court attributed Lanko’s responses to

each of Defendants’ facts where it determined it was appropriate.

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his health and life were placed in danger. Lanko states that some employees at SCI-Mercer

adhered to the protocols but others refused to wear masks, only occasionally wore masks, wore

damaged or defective masks, or wore masks inappropriately. ECF No. 93, ¶ 10. Various

declarations from other inmates submitted by Lanko state that Superintendent Adams did not wear

a mask.

This issue is disputed. In her declaration, Adams states, “During the time period when the

indoor mask mandate was in effect, when doing rounds on the units or interacting with officers

and/or inmates, I would always wear my mask.” ECF No. 82-2, ¶ 23. Officer Magoon asserts that

“I would always wear [my mask] when doing my rounds, interacting with other officers and

inmates.” ECF No. 82-6, ¶ 4.

In addition, Lanko claims prisoners were given diluted cleaning solutions and were not

provided the opportunity to clean. ECF No. 21, pp. 13-14, ¶ 21, p. 40, ¶ 14. In response to these

assertions Magoon states, “We were regularly issued cleaning chemicals from the maintenance

department. The chemicals came in pouches and were poured into a 5 gallon chemical container,

diluted with water, and separated into spray bottles, and handed out to the block workers.” ECF

No. 82-6, ¶ 18. “The cleaning chemicals were diluted the same way during COVID as they were

pre-COVID. From time to time, we would pass the spray bottles, through the feeding apertures,

to inmates to clean their cells.” Id. ¶¶ 19-20. The parties differ on whether this conduct was

appropriate under pandemic protocol.

As part of his civil rights claims, Lanko highlights the fact that inmates at SCI-Mercer were

not regularly tested for COVID-19. ECF No. 21, pp. 20-22. Defendant Feather’s Declaration

(ECF No. 82-5) acknowledges that mass testing did not occur and that the authority to do so would

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have to come from the DOC’s Central Office. ECF No. 82-5, ¶ 8. The prison only tested inmates

who were moving in and out of the prison for various reasons. Id. ¶ 6.

Lanko also claims that former Secretary Wetzel knew that Superintendent Adams was

violating safety protocols. In support of this claim, Lanko submitted the declarations of four

inmates. ECF 92-5. Their allegations about Wetzel appear to be based upon claims made in

another lawsuit on related issues. Notably, the declarations fail to present any admissible evidence

to support Lanko’s claim that Wetzel was aware of any wrongful conduct at SCI-Mercer during

the relevant time period. In addition, Lanko asserts that he and three other inmates directed letters

to Wetzel informing him of lax adherence to COVID-19 rules at SCI-Mercer. ECF No. 92-4. He

asserts that this represents proof that Wetzel was aware of COVID protocol problems at the prison.

ECF No. 93, ¶ 50. However, as it relates to Lanko, Defendants have submitted evidence from the

correspondence log of the Secretary of Corrections that Wetzel did not receive any letters from

Lanko at any time. ECF No. 83, ¶ 47; ECF No. 82-7 (Declaration of Dawn Christiana, Executive

Secretary in the Deputy Secretary’s Office). None of the other inmates declare that their letters

were, in fact, sent to the Secretary.3

According to Lanko, staff members would come to work despite testing positive for

COVID-19. ECF No. 21, p. 28, ¶ 56. Specifically, he asserts that Officer Magoon “came to work

on November 3rd, and November 22nd of 2020, knowing that he was positive for COVID-19.” ECF

3 The inmates’ declarations on this topic are identical and state: “The letters written to [Mr. Wetzel]

wasn’t [sic] transcribed or addressed, and the evidence of that is in the defendants own Exhibit 7.

The transcription of correspondences stops at 2019 June 6th. These letters were written and sent

in 2020, during a countrywide quarantine.” ECF No. 92-5, p. 3. However, the tracking

information regarding the lack of any correspondence from Lanko that is supplied in Exhibit 7 by

Ms. Christiana is dated December 2, 2021, well after the date in 2020 that he alleges his letter were

sent.

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No. 92-3, p. 7. According to the sworn statement of a fellow inmate, Alonzo Davis, “[O]fficer

Magoon comes [sic] to work on [t]wo separate occasions, positive with covid-19. He told me he

was positive out of his own mouth. Both Times!” ECF No. 92-3, p. 4. In his statement, inmate

Joshua Scheller states, “Former 2-10 regular officer on HB[lock] Mr. Magoon admitted to the

whole block that he was positive for Covid-19. He even bragged about having it twice. Talked

about how [he] shouldn’t even be at work. Sometimes he wouldn’t even wear his mask.” Id. at 6.

According to inmate Shawn Conley, “[Adam Magoon] confessed the [sic] he informed the

administration of his [positive COVID-19] medical status, and they encouraged him to come [to

work] anyway.” ECF No. 92-5, p. 24, ¶ 12.

By contrast, Magoon states that he only experienced symptoms of COVID-19 on

November 22, 2020, took a COVID detection test, tested positive, and did not report to work that

day. Id. ¶¶ 10-12. According to Officer Magoon, “November 22, 2020, was the only time I ever

tested positive for COVID. I did not tell inmates on HB[lock] I was sick or that I had a positive

COVID test because I was not at work when I had COVID.” Id. ¶¶ 14-15. Officer Magoon further

represents that “I was never told to come to work when I was sick, and I never told any of the

inmates that I was instructed to come to work while ill.” ECF No. 82-6, ¶ 17.

Lanko claims he became ill with COVID-like symptoms in November 2020, after Magoon

told the prisoners he was COVID positive. Lanko states that he tried to submit a sick call slip, but

they were being refused by the nursing staff. ECF No. 93, p.7, ¶¶ 27, 28, 32. He was never tested

for COVID and claims to have been denied critical medical treatment. ECF No. 92, pp. 12-13.

Similarly, inmate Conley states that he and other inmates on the block all had COVID symptoms.

When he tried to give a sick call note to the nurse who was making rounds she responded, “They’re

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not going to do anything about this. Unfortunately, Mr. Conley, everyone is sick, and theirs [sic]

nothing we can do for you but give you pain medication, to ease your pain. If you don’t need a

ventilater [sic], theirs [sic] nothing we can do, other than quarantine you and give you pain meds.”

ECF No. 92-2, p. 2. Conley further states, “No test ever came to me, or even the majority of our

block, nothing went any further.” Id. at 3.

Lanko never tested positive for COVID. ECF No. 83, ¶ 26; 82-5, ¶ 4. Moreover, according

to Defendant Feather, “there was never any direction put out to not take sick-call slips.” ECF No.

82-5, ¶ 9. As she notes, “I do not have the authority to conduct mass testing. This direction would

need to come from Central Office.” ECF No. 82-5, ¶ 8. Further, while Lanko claims that a

thermometer used to check inmate temperatures was faulty, Feather was unaware of a

malfunctioning thermometer but if notified she would have directed medical staff to immediately

replace it. ECF No. 82-5, ¶ 10; ECF No. 82-2, ¶ 22.

Defendants assert that with respect to matters related to the COVID-19 pandemic, SCI-

Mercer at all times has consistently adhered to the guidance of the Center for Disease Control

(“CDC”) specific to correctional and detention facilities, the Pennsylvania Department of Health,

and its own medical team to ensure the safety of inmates and staff within the facility. ECF No.

83, ¶ 10.

B. Availability of Grievance Process at SCI-Mercer

The availability of the prison grievance process during the COVID pandemic is at issue. It

is undisputed that on March 16, 2020, Superintendent Adams instructed staff to remove the

grievance boxes from the units and directed staff to add a “Grievance” label to the existing

mailboxes to alleviate the burden of collecting the grievances. ECF No. 82-2, ¶ 4. A dedicated

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box for grievances remained available in the cafeteria. Adams states that the inmates were notified

of the change and the change was advertised on the walls of the housing units. Id. ¶¶ 6-7. In

addition, inmates had the option of handing grievances directly to Adams’ assistant, Nicole Franz,

each week. Id. ¶ 8. Because it was determined by the Department of Corrections that as of October

21, 2020, dining halls were not going to reopen, the grievance boxes were placed back on the

housing units.” Id. ¶ 9.

Lanko disputes that during the relevant time period, there was grievance box on the block

or that the word “Grievance” was put on the mailbox. ECF No. 93, ¶ 1. Further, he claims, there

were no advertisements of a change in the grievance deposit system. Id. While Ms. Franz would

come to the unit and sign the logbook, she would not announce her presence or make rounds and

would leave without the inmates knowing she was there. Id. ¶¶ 2, 5, 8. According to Lanko,

“[T]he Grievance box was removed, we were locked in our cells for 23 plus hours a day, we had

no access to file grievances, because we had no where [sic] to submit them, no notice, sign, memo

or announcement, existed at this time.” ECF No. 93, ¶ 2, p. 3. According to Inmate Scheller, “The

mailbox at the time didn’t have grievance written on them [sic], just mailbox. To put a grievances

[sic] in a mailbox would have resulted to [sic] the grievances being returned.” ECF No. 92-5,

¶¶ 17-18. Notably, however, while Scheller and inmates Conley, Robinson, and Ortiz all attest to

the unavailability of the grievance system at SCI-Mercer, they either assert that this occurred in

April 2020, or do not identify a timeframe during which this is said to have occurred. ECF No.

92-1. On the other hand, November 2020 is universally identified as the time frame in which the

declarants, who were housed in H-Block, experienced COVID symptoms. ECF No. 92, Appxs. A

and E.

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In addition to asserting that the grievance system was available to Lanko and other inmates

at all times, Defendants note that grievance boxes were returned to all housing units in October

2020. Indeed, Lanko testified that he was able to submit grievances in November and December

2020. ECF No. 82-1.

Q: You mentioned that you also filed grievances.

A: Yes….

Q: Tell me about that. How did you file the grievances?

A: We could not file them. I wrote it but it’s not going anywhere….

Q: So, did you or did you not send in grievances in November and December of

2020?

A: I did send them, I could, and yes, I wrote them, yes. I did submit them.

Q: Do you have copies of these grievances that you wrote?

A: Yes, I do.

Id. at 3-4.

III. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that: “The court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment

may be granted against a party who fails to adduce facts sufficient to establish the existence of any

element essential to that party’s case, and for which that party will bear the burden of proof at trial.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden

of showing the absence of a genuine, material dispute and an entitlement to judgment. See id. at

323. This showing does not necessarily require the moving party to disprove the opponent’s

claims. Instead, this burden may often be discharged simply by pointing out for the court an

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absence of evidence in support of the non-moving party’s claims. See id.; see, e.g., Spierer v.

Rossman, 798 F.3d 502, 508 (7th Cir. 2015).

Once the moving party has met its initial burden, then the burden shifts to the non-moving

party to demonstrate, by affidavit or other evidence, “specific facts showing that there is a genuine

issue for trial” or the factual record will be taken as presented by the moving party and judgment

will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). A non-moving party must “go beyond the pleadings” and show probative

evidence creating a triable controversy. Celotex, 477 U.S. at 324. An issue is genuine only if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In following this directive, a court

must take the facts in the light most favorable to the non-moving party and must draw all

reasonable inferences and resolve all doubts in that party’s favor. See Hugh v. Butler Cnty. Fam.

YMCA, 418 F.3d 265, 267 (3d Cir. 2005); Doe v. Cnty. of Ctr., Pa., 242 F.3d 437, 446 (3d Cir.

2001).

Although courts must hold pro se pleadings to “less stringent standards than formal

pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary

judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative

evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g.,

Barnett v. NJ Transit Corp., 573 F. App’x 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff

was still “required to designate specific facts by use of affidavits, depositions, admissions, or

answers to interrogatories…sufficient to convince a reasonable fact finder to find all the elements

of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 F. App’x 817, 820

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(3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with

relevant rules of procedural law.”); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.

2013) (pro se plaintiffs “cannot flout procedural rules—they must abide by the same rules that

apply to all other litigants.”)

IV. Discussion

Lanko brings his claims under 42 U.S.C. § 1983. He asserts that his civil rights under

the Eighth and Fourteenth Amendments were violated when Defendants’ actions exposed him to

COVID-19. He claims that Adams, Feather, and Magoon neglected safety protocols and

preventive measures that should have been implemented to protect inmates from contracting

COVID-19. In addition, Lanko asserts that Wetzel was complicit in the non-compliant behaviors

of SCI-Mercer employees.

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Section 1983 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).

“The first step in evaluating a section 1983 claim is to identify the exact contours of the

underlying right said to have been violated and to determine whether the plaintiff has alleged a

deprivation of a constitutional right at all.” Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d

210, 222 (3d Cir. 2015) (internal quotations and citations omitted). “Next, a plaintiff must

demonstrate a defendant’s ‘personal involvement in the alleged wrongs.’” Id. (quoting Rode v.

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Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). That is because only a person who subjects,

or causes to be subjected, another person to a civil rights violation can be held liable under § 1983.

In Defendants’ Motion for Summary Judgment, they argue that (1) Lanko failed to exhaust

his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e

(“PLRA”), and (2) even if Lanko had exhausted his administrative remedies, he failed to proffer

any evidence that supports his claim that Defendants acted with deliberate indifference.

In turn, Lanko asserts that the grievance system was unavailable to him. Further, he

contends that his constitutional claims are supported by sufficient evidence of record.

A. Exhaustion of Administrative Remedies

The PLRA mandates that an inmate exhaust “such administrative remedies as are

available” before bringing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). The

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 v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has repeatedly observed

that the PLRA’s exhaustion requirement “is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or

said more conversationally, may not bring any action) absent exhaustion of available

administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) (citing Woodford v. Ngo, 548

U.S. 81, 85 (2006) and Jones v. Bock, 549 U.S. 199, 211 (2007)). Exhaustion is mandatory under

the PLRA regardless of the type of relief sought and the type of relief available through

administrative procedures. See Booth v. Churner, 532 U.S. 731, 741 (2001). A failure to exhaust

administrative remedies in accordance with a prison’s grievance procedures constitutes procedural

default. That is so because “the PLRA’s exhaustion requirement requires proper exhaustion.”

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Woodford, 548 U.S. at 93-95; see also Spruill v. Gillis, 372 F.3d 218, 227-30 (3d Cir. 2004).

Failure to exhaust is an affirmative defense under the PLRA. See Jones v. Bock, 549 U.S.

199, 216 (2007). A defendant has the burden of proving that plaintiff failed to exhaust his available

administrative remedies. See, e.g., Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). If

the defendant demonstrates that the inmate failed to exhaust his administrative remedies, then “the

inmate plaintiff bears the onus of producing evidence that the on-the-books remedies were in fact

unavailable to him or her.” West v. Emig, 787 F. App’x 812, 814 (3d Cir. 2019) (citing Rinaldi,

904 F.3d at 268). “If there is no genuine dispute of material fact, then the exhaustion defense may

be evaluated as a matter of law at summary judgment.” Id.

The Supreme Court explained in Ross that the term “available” means “capable of use” to

obtain “some relief for the action complained of.” 578 U.S. at 642-43 (quoting Booth, 532 U.S. at

738). The Court identified “three kinds of circumstances in which an administrative remedy,

although officially on the books,” is not “available” because it is “not capable of use to obtain

relief”: (1) when “it operates as a simple dead end—with officers unable or consistently unwilling

to provide any relief to aggrieved inmates”; (2) when it is “so opaque that it becomes, practically

speaking, incapable of use,” such as when no ordinary prisoner can discern or navigate it; or (3)

when “prison administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Rinaldi, 904 F.3d at 266-67 (quoting Ross, 578

U.S. at 644). See also Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020) (misleading or deceptive

instructions from a prison official, as well as clearly erroneous statements, can render a grievance

process unavailable). Absent a situation where administrative remedies are not “available,” a court

may not excuse an inmate’s failure to exhaust “irrespective of any ‘special circumstances.’” Ross,

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578 U.S. at 639.

Importantly, the prison’s grievance policy is what “define[s] the boundaries of proper

exhaustion.” Jones, 549 U.S. at 218; Spruill, 372 F.3d at 231 (“prison grievance procedures supply

the yardstick for measuring procedural default.”). Thus, the procedural requirements for

exhaustion in a given case are drawn from the policies of the prison in question rather than from

any free-standing federal law.

It is uncontested that the grievance box was removed from Lanko’s housing unit on March

16, 2020. ECF No. 82-2, ¶ 4. According to Adams, after the grievance boxes were removed signs

were placed on the walls of the housing units explaining that inmates could use the U.S. postal

mailboxes to deposit grievances and the inmates were notified of the same. Id. ¶¶ 6-7. In the

alternative, inmates could hand grievances directly to Adams’ assistant, Nicole Franz during her

weekly rounds, or they could deposit grievances in a grievance-only box in the cafeteria. Id. ¶¶ 7-

8.

Although the timing of the changes in the grievance procedures coincided with the onset

of the COVID-19 pandemic, Adams states the modification was in no way related to COVID, but

to reduce employee burden. Id. ¶¶ 4-5. At some point, however, because of COVID safety

measures, the prison cafeteria was closed, and the inmates were required to eat in their cells, thus

eliminating access to the one solely grievance-designated box in the prison. On October 21, 2020,

the prison was notified that the cafeteria would not reopen, and Adams directed that the grievance

boxes be placed back in the housing units. Id. ¶ 9. Lanko’s cell block HB Unit was placed on

enhanced quarantine from November 17, 2020, through December 19, 2020. Id. ¶ 18. Franz

attests that even during “enhanced quarantine, inmates could still file grievances by placing them

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in the grievance box on the way to the showers, handing them to any officer working on the unit,

or handing them to me.” ECF No. 82-3, ¶ 12.

There is no evidence of record that Lanko filed a grievance regarding his claims in this

case. Rather, he argues that the grievance system was unavailable to him because the changes that

Adams put into effect were not explained to the prisoners and the usual grievance deposit boxes

were inaccessible.

Thus, it must be determined if the grievance process was available to Lanko with respect

to his claims against each of the defendants.

1. Defendant Magoon

Lanko alleges that Magoon contracted COVID-19 in the month of November 2020, came

to work despite knowing that he had COVID, and failed to wear a mask. Lanko asserts that he

later became ill with COVID-like symptoms. There is no evidence in the record that Lanko grieved

Magoon’s conduct. Thus, he failed to exhaust his administrative remedies, and would only be able

to pursue a claim against Magoon if the grievance process was unavailable in November 2020.

Defendants satisfied their burden stating that the grievance system was available to Lanko

at all times including during the time he claims he was exposed to and contracted COVID-19.

Defendants state that the grievances boxes were returned to the housing units on October 21, 2020,

before Lanko says he was infected with COVID in November of 2020. Thus, Lanko was capable

of exhausting his claims. The burden then shifts to Lanko to demonstrate that the system was

actually unavailable to him. He did not meet this burden. During his deposition, Lanko admitted

that he was able to submit grievances in November and December 2020. Thus, Lanko’s claim that

the grievance system was unavailable to him in November 2020 is refuted by his sworn testimony.

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ECF No. 82-1, pp. 3-4.

Thus, because Lanko failed to exhaust his administrative remedies regarding his civil rights

claim against Magoon, Magoon is entitled to judgment in his favor and dismissal of Lanko’s claims

against him.

2. Defendants Wetzel, Adams and Feather

With respect to the remaining defendants, there are disputed issues of fact regarding the

availability of the grievance system between April 2020 and November 2020. As a result,

Defendants’ motion for summary judgment related to administrative exhaustion must be denied

with respect to Defendants Wetzel, Adams, and Feather as their allegedly wrongful conduct arose

during this time period.

Thus, the Court will proceed to analyze the merits of Lanko’s claims against Wetzel,

Adams, and Feather. See Kanu v. Lindsey, 739 F. App’x 111, 114-16, n.3, n.7 (3d Cir. 2018).

B. Constitutional Claims against Defendants Wetzel, Adams, and Feather

Lanko asserts that his Eighth and Fourteenth Amendment rights were violated by

Defendants’ failure to follow proper COVID safety measures.

Two requirements must be met to establish a violation of the Eighth Amendment. First,

the deprivation of rights must be objectively “sufficiently serious,” and second, a prison official’s

act or omission must result in the denial of “the minimal civilized measure of life’s necessities.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). “To state a viable failure-to-

protect claim, the plaintiff must establish that: (1) he was incarcerated under conditions posing a

substantial risk of serious harm; (2) the defendant was deliberately indifferent to that substantial

risk; and (3) the defendant's deliberate indifference caused the plaintiff to suffer harm.” Bistrian

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v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d

311 (3d Cir. 2020); Farmer, 511 U.S. at 834.

The first element sets out an objective inquiry: that the official “knowingly and

unreasonably disregarded an objectively intolerable risk of harm.” Id. at 132. The second element,

“deliberate indifference,” is a subjective standard: “the prison official-defendant must actually

have known or been aware of the excessive risk to inmate safety.” Beers-Capitol v. Whetzel, 256

F.3d 120, 125 (3d Cir. 2001). That is because “a prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane conditions of confinement unless the official

knows of and disregards an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. The plaintiff “need not

show that a prison official acted or failed to act believing that harm actually would befall an inmate;

it is enough that the official acted or failed to act despite his knowledge of a substantial risk of

serious harm.” Id. at 842.

Because the element of deliberate indifference is subjective, it “can, like any other form of

scienter, be proven through circumstantial evidence and witness testimony.” Pearson v. Prison

Health Servs., 850 F.3d 528, 535 (3d Cir. 2017). Because a defendant’s state of mind, like other

facts, can be proved by circumstantial evidence, the Farmer standard does not require a defendant

admit his consciousness of the risk of serious harm before liability can be imposed. But even gross

errors of judgment are not constitutional violations; liability requires subjective, not objective,

culpability. See Farmer, 511 U.S. at 843 n.8. As the Court of Appeals for the Third Circuit has

explained:

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“Deliberate indifference,” therefore, requires “obduracy and wantonness,”

Whitley v. Albers, 475 U.S. 312, 319 (1986), which has been likened to

conduct that includes recklessness or a conscious disregard of a serious risk.

See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (stating that “it is enough

that the official acted or failed to act despite his knowledge of a substantial

risk of serious harm”).

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (parallel citations omitted).

Defendants argue that Lanko cannot establish the subjective prong for an Eighth

Amendment claim because there is no evidence that Defendants consciously ignored the threat

posed by the COVID-19 virus. ECF No. 84, p. 7. Defendants highlight the measures taken during

the COVID-19 pandemic to protect the prisoners from the spread of the virus. “[I]mmediately

after the first positive case at SCI-Mercer was reported, that entire unit was placed on enhanced

quarantine. SCI-Mercer was also the first prison to conduct a 72 hour institution wide lockdown,

deep clean, with other facilities quickly adopting the same approach.” ECF No. 84, p. 7.

Defendants assert that the DOC as a whole implemented an aggressive approach to the pandemic:

Requiring that all staff and inmates wear masks; screening all incoming and

outgoing inmates; subjecting all staff members to enhanced screening upon

entering the facilities; mandating that inmates showing symptoms of COVID-19

virus will be isolated and staff with symptoms will be sent home; limiting inmate

movements and mandating 16 and then 8-man cohorts; and restricting visitation

with family and friends to virtual methods. Additionally, PPE was provided to all

staff members, including masks. The COVID vaccine and booster shots have been

made available to all inmates who wish to accept them.

ECF No. 84, p. 8.

Lanko does not dispute that the DOC mandated these precautionary measures. Rather, he

claims that these measures were not implemented or alternatively, were not adequately maintained

or enforced at SCI-Mercer. Notably, however, numerous district courts have held that “where a

detention facility has taken concrete steps toward mitigating the medical effects of COVID-19, an

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incarcerated person will fall ‘well short’ of establishing that the facility and its staff were

deliberately indifferent toward his medical needs in light of the virus even though they cannot

entirely ‘eliminate all risk’ of contracting COVID-19, notwithstanding even serious preexisting

medical conditions the prisoner may have.” Pumba v. Kowal, 2022 WL 2805520, at *4 (E.D. Pa.

July 18, 2022) (quoting Hope v. Warden York County Prison, 972 F.3d310, 330-331 (3d Cir.

2020)). In that case, the court rejected a claim based on a sergeant permitting a pod worker who

tested positive to clean the plaintiff’s cell without wearing a mask and presumably exposing him

to COVID-19. The court further noted that the plaintiff alleged that the sergeant acted negligently,

resulting in the spread of the virus, but “a claim based on mere negligence is insufficient to allege

a plausible Eighth Amendment violation.” Id. at *5. See also Greene v. Ellis, 2022 WL 4288279,

at *3 (D.N.J. Sept. 16, 2022) (prisoner alleged that jail did not provide adequate social distancing

and that there was not a mask exchange program, but this was insufficient); Chapolini v. City of

Philadelphia, 2022 WL 815444, at *15 (E.D. Pa. Mar. 17, 2022) (allegations that prisoner was

housed with multiple cellmates who did not go through proper quarantine insufficient).

Thus, even accepting as true Plaintiff’s allegations that conditions at SCI-Mercer were not

completely compliant with guidance of the Center for Disease Control (“CDC”) specific to

correctional and detention facilities, as well as the Pennsylvania Department of Health, and its own

medical team, these allegations do not support a claim of deliberate indifference. As Judge Lenihan

observed in a similar case: “Simply because the execution of COVID-19 protocols may have been

nonoptimal at times, the alleged deficiencies fall well short of evidencing deliberate indifference

by the named Defendants.” Jones v. County of Allegheny, 2022 WL 2806779, at *6 (W.D. Pa.

June 24, 2022). See also Easley v. Wetzel, 2021 WL 1200214, at *6 (W.D. Pa. Feb. 26, 2021)

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(Lanzillo, M.J.), report and recommendation adopted, 2021 WL 1197483 (W.D. Pa. Mar. 30,

2021).

To proceed with a claim against a defendant, a plaintiff must establish a defendant’s

personal involvement in the alleged deprivation of his constitutional right. See, e.g., Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). That is because, as stated in the text of Section

1983 itself, only a person who “subjects, or causes to be subjected” another person to a civil rights

violation can be held liable under Section 1983. Thus, each defendant is liable only for his or her

own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes

v. First Correctional Medical, 766 F.3d 307, 316 (3d Cir. 2014) (rev’d sub. nom. on other grounds

575 U.S. 822 (2015)); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To

impose liability on the individual defendants, Plaintiffs must show that each one individually

participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226

F.3d 198, 201-02 (3d Cir. 2000) (en banc)).

Lanko’s claim against Wetzel fails because there is no evidence that Secretary Wetzel was

personally involved with any lax implementation or enforcement of COVID rules at SCI-Mercer.

There is no evidence that Wetzel received the letters that Lanko claims were sent to him or that

Wetzel otherwise knew if or how the DOC protocols regarding COVID were being handled at

SCI-Mercer.4 Thus, Lanko has failed to establish any personal involvement by Wetzel in the

alleged constitutional violations.

4 All of the inmates’ declarations (ECF No. 92-5) cite to video footage from another lawsuit,

Brown v. Wetzel, which they say proves that Wetzel knew that Adams and others weren’t following

COVID safety protocols. However, that footage is not part of the record in this case and therefore

cannot be considered.

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Lanko’s claims against Adams include that she allegedly did not wear a mask around

prisoners; however, even if assumed to be true, he does not attribute Adam’s behavior to his own

alleged contraction of COVID-19. Moreover, as there is no evidence that Adams had COVID-19

during the relevant time period, he cannot assert that she purposely and deliberately exposed him

to COVID by not wearing a mask. Further, it is undisputed that as superintendent of SCI-Mercer,

Adams implemented a number of reasonable measures to address COVID. There is no evidence

that she knew of an excessive risk of inmate health and deliberately disregarded that risk. As noted

by the Third Circuit: “In light of these measures and the unprecedented and evolving nature of the

pandemic, [plaintiff] does not have a plausible claim that prison officials disregarded an excessive

risk of harm.” Mincy v. Governor of Pennsylvania, No. 21-3263, 2022 WL 4115485, at *2 (3d

Cir. Sept. 9, 2022).

Lanko also claims that Feather is liable because all inmates who experienced possible

COVID symptoms were not tested. However, the mere fact that they were not tested fails to show

that Defendants “knowingly and unreasonably disregarded an objectively intolerable risk of

harm,” Beers-Capitol, 256 F.3d at 132, or that Feather actually knew or were aware of the

excessive risk to Lanko’s safety. See id. at 125. As noted in Feather’s Declaration, she did not

have the authority to implement mass testing; that would have to come from the DOC. Indeed,

inmate Conley’s declaration states that healthcare was providing all the medical attention they

could for a presumed COVID case. Thus, there is no evidence that Feather was deliberately

indifferent by not COVID testing symptomatic prisoners in H Block. Furthermore, the other

assertions about refusal to accept sick call slips or faulty thermometers do not implicate Feather

personally nor is there any evidence of record to support a claim of supervisory liability.

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Thus, Wetzel, Adams and Feather are entitled to judgment in their favor with respect to

Lanko’s Eighth Amendment claim.

Neither Defendants’ motion for Summary Judgment nor Lanko’s response address Lanko’s

Fourteenth Amendment claim.5 Indeed, it is unclear if the Second Amended Complaint attempts

to state a Fourteenth Amendment claim. At any rate, any due process claim Lanko may have

attempted to assert under the Fourteenth Amendment fails. To the extent that he relies upon the

absence of a prison grievance system or a failure to follow DOC policies, this does not create a

constitutional right. “Allegations that the DOC failed to follow its regulations or internal policies

cannot support a claim based upon a vested right or duty because these administrative rules and

regulations, unlike statutory provisions, generally do not create rights in prison inmates.” Rokita

v. Pennsylvania Dep't of Corr., 247 A.3d 1192 (Pa. Commw. Ct. 2021). “If there is no protected

liberty or property interest, it is unnecessary to analyze what procedures were followed when an

alleged deprivation of an interest occurred.” Evans v. Fanelli, No. 1:CV-12-2385, 2013 WL

3049112, at *4 (M.D. Pa. June 17, 2013). See also Bronson v. Cent. Off. Rev. Comm., 554 Pa.

317, 721 A.2d 357, 358–59 (1998) (“the procedures for pursuing inmate grievances. . . are a matter

of internal prison administration”). In the absence of any protected right, no Fourteenth

Amendment due process claim exists.

5 The Court may, sua sponte, consider Lanko’s Fourteenth Amendment claim against Defendants

pursuant to the screening provisions of the Prison Litigation Reform Act, Pub. L. No. 104-134,

110 Stat. 1321 (1996). See, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n.11 (3d Cir.

2022) (the PLRA’s screening provisions at 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c) are

“applicable throughout the entire litigation process.”) (internal quotation and citation omitted). The

Court will evaluate the Fourteenth Amendment claim against Defendants because it is in the

interests of judicial economy to resolve the matter at this juncture.

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If Lanko has attempted to assert an equal protection claim, it similarly fails. He

acknowledges that all prisoners of H Block and the other housing units were subject to the same

protocols and conduct as it relates to COVID issues. Simply put, his claim is based upon prison

conditions, not equal treatment of persons of a protected class or a class of one.

C. State Law Claims

Lanko also asserts state law claims of gross negligence and emotional distress against

Defendants. Where, as is the case here, all claims over which the Court has original jurisdiction

are dismissed, a district court may decline to exercise supplemental jurisdiction over any remaining

state law claims. 28 U.S.C. § 1367(c)(3). As the Court of Appeals has held, absent extraordinary

circumstances, pendent jurisdiction should be declined when the federal claims are no longer

viable. See Shaffer v. Bd. of Sch. Dir. Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir.

1984) (citations omitted).

Here, Lanko’s federal claims are no longer viable, and no extraordinary circumstances exist

that would warrant the exercise of supplemental jurisdiction over Lanko’s state-law claims.

Accordingly, Lanko’s state law claims will be dismissed without prejudice. See, e.g., Spencer v.

Bush, 543 F. App’x 209, 213 (3d Cir. 2013), Camacho v. Beers, No. 16-cv-1644, 2018 WL

6618410, at *3 (W.D. Pa. Dec. 18, 2018).

V. Conclusion

For the reasons set forth herein, Defendants’ Motion for Summary Judgment (ECF No. 80)

will be granted.

Appropriate orders will follow.

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BY THE COURT:

Dated: March 1, 2023 /s/ Patricia L. Dodge

PATRICIA L. DODGE

United States Magistrate Judge

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