POULSON v. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

)

) 1:22-CV-00260-RAL

CHARLES POULSON,

)

)

Plaintiff

) RICHARD A. LANZILLO

) Chief United States Magistrate Judge

vs.

)

) OPINION ON DEFENDANTS’ MOTION

KIM SMITH, et al.,

) TO DISMISS

)

Defendants

) ECF NO. 44

)

I. Introduction

Plaintiff Charles Poulson, an inmate confined at the State Correctional Institution at

Forest (SCI-Forest), initiated this pro se civil rights action seeking monetary relief pursuant to 42

U.S.C. § 1983. In his amended complaint – the currently operative pleading – Poulson asserts

that medical professionals at SCI-Forest violated his constitutional rights as secured by the

Eighth and Fourteenth Amendments to the United States Constitution by failing to provide him

with adequate medical care. ECF No. 29. As Defendants, Poulson has named three individuals

employed at SCI-Forest: Nurse Leslie, a nurse practitioner; Nurse Ferdarko, a nurse supervisor;

and Kim Smith, the Health Care Administrator for the prison. Id. at p. 1.

Presently pending is a motion to dismiss filed by Defendants Ferdarko and Smith.1 ECF

No. 44. Plaintiff having filed a response, see ECF No. 47, this matter is ripe for adjudication.2

1 Leslie is represented by separate counsel and has not moved to dismiss. See ECF No. 49.

2 The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge to conduct all

proceedings in this case, including the entry of final judgment, as authorized by 28 U.S.C. § 636.

II. Factual Background

The following factual averments are accepted as true for purposes of this motion.3 On

August 31, 2020, Poulson visited Leslie at sick call for pain in his lower back and neck. ECF

No. 29 at 2; ECF No. 11-1. Following an examination, Leslie applied a heating pad to Poulson’s

lower back to treat his pain. ECF No. 11-1. Leslie applied the heating pad twice more the

following day. Id. Later that afternoon, Poulson was changing his clothing in his cell when his

cellmate noticed that his t-shirt was sticking to his back. Id. Poulson removed his t-shirt and

observed that his back was severely burned and that his t-shirt was full of dried blood. Id.

Poulson maintains that the heating pad was “extremely hot” but that he could not feel it burning

his skin because of a medication that he was taking at the time that dulled his response to pain.

Id. He notes that his back remains “raw” and believes he has been permanently scarred. Id. He

accuses Leslie of using a faulty heating pad and overlooking that Poulson was taking a

medication that prevented him from feeling his burns. ECF No. 29 at 8.

Poulson filed an administrative grievance against Leslie following the incident. See ECF

No. 11-1. Ferdarko, to whom it was initially assigned, observed that “[Poulson’s] back appears

to be burned and there is a possibility it was from a heading pad,” but found “nothing indicating

that medical staff were negligent.” ECF No. 11-2. Ferdarko explained that there were no prior

injuries to alert the staff that the machine was not working properly (despite it being regularly

used) and that medical personnel promptly and appropriately removed it from service and

provided immediate treatment for Poulson’s burn. Id. Accordingly, Ferdarko “upheld

3 Poulson’s pleading, in addition to relying heavily on legal conclusions, is not a model of clarity. Most critically, it

does not contain a timeline or description of the incident that caused him harm. Consequently, the Court is relying,

in part, on the statement of facts set forth in Poulson’s administrative grievance (attached as an exhibit to his

complaint at ECF No. 11-1) for background and context.

[Poulson’s grievance] in that [his] back appears to be burned and there is a possibility it was

from a heading pad,” but denied compensation because “there is nothing indicating that medical

staff were negligent.” Id.

Poulson appealed to the facility manager who, for reasons that are unclear, remanded

Poulson’s grievance for additional review and response. ECF No. 11-7. On remand, the

grievance was assigned to Smith. ECF No. 11-8. After reviewing Poulson’s medical records,

Smith noted that he had suffered a “14 cm by 5 cm burn to the left side of the back and a 11 cm

by 6 cm burn to the right side of his back.” Id. She further noted that medical staff promptly

cleansed his burns, applied non-stick dressing, treated his burns with Silvadene cream, and

monitored him daily for signs of infection. Id. During several follow up visits, medical

providers observed that Poulson’s burn wounds were “healing well” and that “there was new

tissue growth around each wound edge.” Id. Poulson continued to receive regular treatment for

his burns for the next several months. Id. Based on the foregoing, Smith upheld Poulson’s

grievance but declined to award compensation:

Inmate Poulson’s grievance is upheld – the heat pack treatment did cause

Inmate Poulson to get burns on his back. … [However], Inmate

Poulson’s grievance is denied in that medical was not negligent. Had

any staff known that the machine was malfunctioning the unit would

have been pulled from rotation prior to any injury. Upon this

investigator being notified I did pull the unit from rotation and all other

hot pack treatments to other inmates were discontinued. The safety

manager was notified and the appropriate accident investigation was

done. Inmate Poulson was immediately referred to the practitioner when

nursing staff found out about his injury and he has received appropriate

care.

Id. at 11-9.

Poulson’s claims against Ferdarko and Smith appear to be based primarily on the

aforementioned grievance responses and their supervisory roles in the prison hierarchy. In his

pleading, he explains that Ferdarko “is a supervisor to Defendant Leslie, who caused the injury

to [his] back,” and that Ferdarko “failed in his duty to insure Poulson would not get injured by

the heat pads that were treating his back.” Id. at 6. He avers that Ferdarko had a general

responsibility “to make sure the heating pad machine was working proper and not

malfunctioning” and that Ferdarko “should have known that [Poulson] was taking medication

that prevented [him] from feeling the heating pads that were treating his back.” Id. Notably

absent are any facts from which the Court might infer that Ferdarko played any role in the

decision to use the heating pad (or, for that matter, even knew that Poulson had sought treatment

for lower back pain on the relevant dates).

Turning to Smith, Poulson similarly alleges that she “was in a supervising position for

Defendant Leslie and Defendant Ferdarko” and “failed in her duty to properly train Defendant

Ferdarko and Defendant Leslie in regards to maintaining adequate medical equipment (heating

pad machine).” Id. at 3. He suggests that Smith “has demonstrated a pattern of not providing

adequate medical care to patients such as [Poulson], and she demonstrated that she does not

check or maintain adequate care for the medical equipment such as the heating pad machine that

scarred [Poulson’s] back for life.” Id. Poulson further states that Smith “knew or should have

known that she should have informed her staff (Defendant Leslie, and Defendant Ferdarko) that

Plaintiff Poulson was taking medication that would prevent him from feeling the heating pads

heat on his back.” Id. at 5. As with Ferdarko, Poulson has not pled any facts suggesting that

Smith played a direct, active role in the medical treatment that caused his injury.4

4 Nor could she have. It is well-established that a Corrections Health Care Administrator is not a medical provider.

See, e.g., Whitehead v. Thomas, 2017 WL 2664490, at *7 (W.D. Pa. May 23, 2017) (“Courts in the Third Circuit

have recognized that CHCAs are ‘undisputably administrators, not doctors’”) (quoting Thomas v. Dragovich, 142

Fed. Appx. 33, 39 (3d Cir. 2005)).

III. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a

motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the

merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to

relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)

(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.

2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed

pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard

established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court

must accept as true all well-pled factual allegations in the complaint and views them in a light

most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.

2002).

While a complaint does not need detailed factual allegations to survive a motion to

dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555.

A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a

plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub.

Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal

conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478

U.S. at 286). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir.

2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions.”).

Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the

following three-step approach:

First, the court must ‘tak[e] note of the elements a plaintiff must plead to

state a claim.’ Second, the court should identify allegations that,

‘because they are no more than conclusions, are not entitled to the

assumption of truth.’ Finally, ‘where there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.’

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This 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.

Finally, because Plaintiff is proceeding pro se, the allegations in the complaint must be

held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant’s pleadings to

state a valid claim upon which relief could be granted, it should do so despite the litigant’s

failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence

construction, or unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364

(1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition

prepared by a prisoner may be inartfully drawn and should be read “with a measure of

tolerance”).

IV. Analysis

Relying on the factual averments outlined above, Poulson primarily asserts an Eighth

Amendment claim for deliberate indifference against each Defendant. He also references the

Fourteenth Amendment, although he does not explain (and it is not immediately clear) how that

amendment might apply to the conduct alleged. ECF No. 29 at 2. In response, the moving

Defendants argue that Poulson has neither alleged any facts demonstrating their personal

involvement in the alleged misconduct nor properly exhausted his administrative remedies. Each

defense will be addressed in turn.

1. Personal involvement

To prevail on a § 1983 claim, a plaintiff “must show that each and every defendant was

‘personal[ly] involve[d]’ in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3

(M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). This means

that each defendant must have played an “affirmative part” in the complained-of misconduct.

Iqbal, 556 U.S. at 677 (“In a § 1983 suit ... [a]bsent vicarious liability, each Government official,

his or her title notwithstanding, is only liable for his or her own misconduct.”); Oliver v. Beard,

358 Fed. Appx. 297, 300 (3d Cir. 2009). In the absence of specific allegations that a defendant

played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See,

e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant

to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that

certain defendants had played an affirmative part in the alleged Eighth Amendment violation).

These principles apply with equal force where the defendants are supervising prison

officials. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that

liability for supervisory officials must still be based on “personal involvement in the alleged

wrongs”); Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“[L]iability cannot be predicated

solely on the operation of respondeat superior.”). Although a supervisor cannot encourage

constitutional violations, “a supervising public official has [no] affirmative constitutional duty to

supervise and discipline so as to prevent violations of constitutional rights by his or her

subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski,

922 F.2d 1097, 1120 (3d Cir. 1990). Rather, a supervisor-defendant may only be liable for

unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate

indifference to the consequences, established and maintained a policy, practice or custom which

directly caused [the] constitutional harm; or (2) participated in violating the plaintiff’s rights,

directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in

the subordinate’s unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det.

Ctr., 372 F.3d 572, 586 (3d Cir. 2004).

Apropos to the instant case, it is also “well established that the filing of a grievance is not

sufficient to show the actual knowledge necessary for a defendant to be found personally

involved in the alleged unlawful conduct.” Mearin, 951 F.Supp.2d at 782. See also Mincy v.

Chmielsewski, 508 Fed. Appx. 99, 104 (3d Cir. 2013) (“[A]n officer’s review of, or failure to

investigate, an inmate’s grievances generally does not satisfy the requisite personal

involvement.”). As such, courts have routinely dismissed civil rights claims against prison

officials, including health care administrators, whose only knowledge of the alleged violation

stemmed from their participation in the grievance process. See, e.g., Stevens v. Winger, 2021

WL 2075585, at *4 (W.D. Pa. May 24, 2021) (dismissing claims against prison health care

administrator whose only awareness of the alleged misconduct was based on receipt of a

grievance); Brown v. Nicholson, 2020 WL 610523, at *6 (E.D. Pa. Feb. 7, 2020) (dismissing

claim against prison CHCA who “denied [plaintiff’s] grievance [and] stat[ed] that he had

received appropriate medical attention for his reported complaint”); Rogers v. United States, 696

F.Supp.2d 472, 488 (W.D. Pa. 2010) (“If a grievance official’s only involvement is investigating

and/or ruling on an inmate’s grievance after the incident giving rise to the grievance has already

occurred, there is no personal involvement on the part of that official.”).

In the instant case, the only factual allegations regarding the moving Defendants are that

each of them “was in a supervising position for Defendant Leslie,” knew or should have known

of Poulson’s medical history and was generally aware of the need to properly maintain medical

equipment. There is nothing to suggest that Ferdarko or Smith played any direct role in the

events surrounding Poulson’s injury beyond responding to his administrative grievance days or

weeks later. As such, it is abundantly clear that Poulson is attempting to hold these Defendants

responsible for the unconstitutional action of other individuals based entirely upon their

supervisory role in the prison system. This type of averment is insufficient to establish personal

involvement in the deprivation of a constitutional right. Mincy, 508 Fed. Appx. at 104. See

also, e.g., Trainor v. Wellpath, 2021 WL 3913970, at *9-11 (W.D. Pa. Sept. 1, 2021) (dismissing

CHCA Smith at motion to dismiss stage when her only alleged involvement in the underlying

misconduct stemmed from the grievance process); Stevens, 2021 WL 2075585, at *4 (same);

Carson v. Wetzel, 2019 WL 7283283, at *8 (W.D. Pa. Dec. 27, 2019) (same). Accordingly, the

moving Defendants are entitled to dismissal.

2. Exhaustion

Alternatively, Defendants argue that Poulson failed to properly exhaust his administrative

remedies as to anyone but Leslie. The Court agrees.

It is axiomatic that the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (the

“PLRA”), requires a prisoner to exhaust any available administrative remedies before he may

bring an action pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement. 42

U.S.C. § 1997e(a). This exhaustion requirement applies to all claims relating to prison life that

do not implicate the duration of the prisoner’s sentence. Porter v. Nussle, 534 U.S. 516, 532

(2002). Failure to exhaust administrative remedies under the PLRA is an affirmative defense

that a defendant must plead and prove. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).

The grievance system utilized in Pennsylvania’s prison system requires inmates to satisfy

a three-step grievance and appeals process. See Grievance System Policy DC ADM-804; Smith

v. Sec. of Pa. Dept. of Corrections, 2018 WL 279363, at *2 (W.D. Pa. Jan. 3, 2018). First, the

inmate must “legibly set forth all facts and identify all persons relevant to his claim in a

grievance which will then be subject to ‘initial review.’” Smith, 2018 WL 279363, at *2 (citing

Spruill v. Gillis, 372 F.3d 218, 233 (3d Cir. 2004)). Second, the initial review must be appealed

to the Facility Administrator for a second level of review. Id. Finally, “the inmate is required to

file an appeal to the Secretary’s Office of Inmate Grievances and Appeals (“the Secretary’s

Office”).” Id. All three stages of review must be completed before a grievance is deemed

administratively exhausted for purposes of the PLRA.

Apropos to the instant case, however, DC-ADM 804 contains an additional requirement:

that the inmate’s grievance must “identify individuals directly involved in the event(s).” Seldon

v. Wetzel, 2021 WL 2877811, at *5 (W.D. Pa. May 13, 2021). See also Chaney v. Bednard,

2020 WL 7864202, at *5 (W.D. Pa. Dec. 31, 2020) (noting that the DOC’s grievance policy

requires an inmate to identify the offending individuals targeted in the grievance); Spruill, 372

F.3d at 234 (characterizing the identification requirement as “mandatory”). Courts characterize

the satisfaction of this requirement as “proper exhaustion.” Smith, 2018 WL 279363, at *3

(noting that a grievance must be fully exhausted to final review and “properly exhausted”).

Moreover, because the identification requirement is mandatory, “a Pennsylvania inmate’s failure

to properly identify a defendant constitute[s] a failure to properly exhaust his administrative

remedies under the PLRA.” Williams v. Pa. Dep’t of Corr., 146 Fed. Appx. 554, 557 (3d Cir.

2005). When the inmate’s failure is clearly apparent from the complaint and attached exhibits,

dismissal is appropriate. Stone v. Johnson, 713 Fed. Appx. 103, 105-106 (3d Cir. 2017)

(affirming district court’s grant of motion to dismiss after concluding that the grievance attached

to plaintiff’s complaint “did not specifically reference any of the . . . conduct complained of in

the complaint.”).

A review of the pertinent grievances attached to Poulson’s complaint reveals that he

never identified Ferdarko or Smith in any of his filings.5 ECF No. 11-1. Because he did not

satisfy this mandatory procedural requirement, he cannot seek relief against those Defendants in

this action. Dismissal is appropriate.

V. Conclusion

For the reasons stated herein, Defendants’ motion to dismiss is granted. The Clerk will

be directed to terminate Ferdarko and Smith from this action, with prejudice. An appropriate

order will follow.

__________________________

RICHARD A. LANZILLO

Chief United States Magistrate Judge

Dated: December 8, 2023

5 In deciding a motion to dismiss, the Court properly considers documents attached to Complaint. Lum v. Bank of

Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997)