DiFraia v. Ransom

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JONATHON DIFRAIA, : Civil No. 1:23-CV-01187

:

Plaintiff, :

:

v. :

:

KEVIN RANSOM, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court are Defendants’ motions to dismiss the complaint pursuant

to Fed. R. Civ. P. 12(b)(6). (Doc. 22.) For the following reasons, Defendants’

motions to dismiss will be granted and Plaintiff’s complaint will be dismissed

without prejudice. Plaintiff will be given an opportunity to file an amended

complaint curing the defects identified herein.

PROCEDURAL HISTORY

Plaintiff, an inmate currently housed at the State Correctional Institute

Rockview (“SCI-Rockview”) in Bellefonte, Pennsylvania, initiated this action in

July of 2023 by filing a complaint pursuant to 42 U.S.C. § 1983 naming eight

defendants: (1) Kevin Ransom (“Ransom”), Superintendent at SCI-Dallas; (2)

Jasen Bohinski (“Bohinski”), Deputy Superintendent for Centralized Services; (3)

Timothy Kross (“Kross”), Doctor at SCI-Dallas; (4) Wayne Inniss (“Inniss”),

Corrections Classification Program Manager; (5) Rawlings, Drug and Alcohol

Treatment Specialist; (6) Bower; (7) John Doe; and (8) Osmulski. (Doc. 1.)

The complaint alleges that on January 15, 2023, Plaintiff was strip searched

and Defendants Bower and “C/O” found an e-cigarette with the cap on it in his

jacket pocket. (Id., p. 4.)1 He was issued a DC-141 misconduct report for

contraband during the “MAT”2 line. (Id.) Plaintiff further alleges that on January

22, 2023, “during MAT line I got my medication [and] after putting it in my mouth

C/O Osmulski made me stand up and demanded I give him the E-cig cap, I did not

have one nor did I ingest one.” (Id.) Plaintiff alleges that he received a

misconduct for possession of contraband. (Id.) On January 25, 2023, he saw

Defendant Kross who told him that he was being removed from MAT suboxone

for diversion. (Id.) Plaintiff alleges that he contacted and wrote to Defendants

Ransom, Bohinski, Innis, Rawlings, and Kross “asking to be placed back on MAT

and explained the issue and was refused and told I did not have to actually be

caught diverting to be considered a diverter.” (Id.)

Plaintiff raises an Eighth Amendment deliberate indifference to medical

needs claim, a Fourteenth Amendment equal protection claim, a “Tort Acts” claim,

1 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

2 According to the DOC website, “MAT” stands for Medication Assisted Treatment. See

https://www.cor.pa.gov/About%20Us/Initiatives/Pages/Medication-Assisted-Treatment.aspx

(last accessed June 5, 2024).

an American with Disabilities Act (“ADA”) claim, criminal claims of lying on the

misconduct reports, and a slander claim. (Id., at 5.)

Defendants Ransom, Bohinski, Inniss, Rawlings, Bower, Doe, and

Osmulski, collectively known as the “DOC Defendants”, filed a motion to dismiss

the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and a brief in support on

September 22, 2023. (Docs. 19, 20.) Defendant Kross filed a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative a motion for summary

judgment pursuant to Fed. R. Civ. P. 563, and a brief in support on September 25,

2023. (Docs. 21, 22.) On November 6, 2023, Plaintiff filed a brief in opposition to

the two motions to dismiss. (Doc. 25.) Defendants did not file a reply. The court

will now address the pending motions.

JURISDICTION AND VENUE

The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §

1331, which allows a district court to exercise subject matter jurisdiction in civil

cases arising under the Constitution, laws, or treaties of the United States. Venue

is proper in this district because the alleged acts and omissions giving rise to the

claims occurred at SCI-Dallas, in Luzerne County, Pennsylvania, which is located

within this district. See 28 U.S.C. § 118(b).

3 Because the claims will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6), the court will not

convert this motion pursuant to Fed. R. Civ. P. 56 and address documents outside the complaint.

MOTION TO DISMISS STANDARD

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

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

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other

grounds by Mack v. Yost, 968 F.3d 311 (3d. Cir. 2020).

When ruling on a motion to dismiss under Rule 12(b)(6), 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.” Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts

contained in the complaint, the court may also consider “exhibits attached to the

complaint, matters of public record, as well as undisputedly authentic documents”

attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon

these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196

(3d Cir. 1993)).

The pleadings of self-represented plaintiffs are to be liberally construed and

held to a less stringent standard than formal pleadings drafted by attorneys. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193

(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be

granted leave to file a curative amended complaint even when a plaintiff does not

seek leave to amend, unless such an amendment would be inequitable or futile.

See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.

2014); see also Phillips, 515 F.3d at 245. A complaint that sets forth facts which

affirmatively demonstrate that the plaintiff has no right to recover is properly

dismissed without leave to amend. Grayson v. Mayview State Hosp., 293 F.3d

103, 106 (3d Cir. 2002).

DISCUSSION

The compliant raises an Eighth Amendment claim, an ADA claim, a

Fourteenth Amendment claim, a “Tort Act” claim, a defamation claim, and

criminal claims. (Doc. 1.) The motions to dismiss did not challenge the potential

criminal claims raised in the complaint. However, the court will address such

claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

A. Defendants’ Motions To Dismiss Will Be Granted.

1. Eighth Amendment Claim

Plaintiff brings an eighth amendment cruel and unusual punishment claim

for being removed from medication for disciplinary sanctions and an unspecified

“deliberat[e] indifference to my medical needs” assertion. (Doc. 1, p. 5.) The

court views these as a single claim for deliberate indifference to a serious medical

need and will address them as one.

Prison officials violate the Eighth Amendment when they act with deliberate

indifference to a prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S.

97, 104–05 (1976). To sustain a constitutional claim under the Eighth Amendment

for inadequate medical treatment, a plaintiff must make (1) an objective showing

that his medical needs were serious, and (2) a subjective showing that the

defendants were deliberately indifferent to those medical needs. See Pearson v.

Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017). A serious medical need is

“one that has been diagnosed by a physician as requiring treatment or is so obvious

that a lay person would easily recognize the necessity for a doctor’s attention.”

Monmouth Cty. Corr. Inst'l Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d Cir.

1987) (citation omitted). A prison official is deliberately indifferent when he or

she “knows of and disregards an excessive risk to inmate health or safety.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

However, “[p]rison medical authorities are given considerable latitude in the

diagnosis and treatment of medical problems of inmates and courts will ‘disavow

any attempt to second guess the propriety or adequacy of a particular course of

treatment . . . which remains a question of sound professional judgment.’” Byrd v.

Shannon, No. 1:09-CV-1551, 2010 WL 5889519, at *4 (M.D. Pa. Nov. 24, 2010)

(quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d

Cir.1979)). Mere disagreement over proper treatment does not state a claim upon

which relief can be granted. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990);

Monmouth Cty. Corr. Inst'l Inmates, 834 F.2d at 346 (“Courts, determining what

constitutes deliberate indifference, have consistently held that mere allegations of

malpractice do not raise issues of constitutional import. . . Nor does mere

disagreement as to the proper medical treatment support a claim of an eighth

amendment violation.”).

This court has previously found that a plaintiff being removed from the

MAT program for diverting medication did not rise to the level of deliberate

indifference:

At best, Plaintiff’s complaint demonstrates his disagreement with being

removed from the program and taken off the Suboxone. Though he

may have wished to remain in the program and on Suboxone, his

disagreement with the course of action that Defendants took based on

the diversion of mediation on November 9, 2020, is not enough to state

a § 1983 claim. Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989).

This is particularly so in light of the fact that there are no allegations in

the complaint that any of the Defendants intentionally withheld medical

treatment from Plaintiff in order to inflict pain or harm upon Plaintiff.

Farmer, 511 U.S. at 837; Rouse, 12 F.3d at 197. Thus, the allegations

in the Plaintiff’s complaint amount to nothing more than Plaintiff’s

subjective disagreement with the treatment decisions and medical

judgment of the medical staff at the prison.

Hymer v. Kross, No. 3:22-1531, 2022 WL 17978265, at *6 (M.D. Pa. Dec. 28,

2022).

The court finds that the allegations in this case are analogous to Hymer.

Here, Plaintiff alleges that he was removed from the MAT program following a

finding of diversion. (Doc. 1, p. 4.) Additionally, Plaintiff did not allege that

Defendants intentionally withheld medical treatment from Plaintiff in order to

inflict pain or harm. The court acknowledges that Plaintiff claims that harm

occurred:

I was forced to go through withdrawals due to them I picked my arms

and have scars, my mental health and physical took a downward plunge

causing severe anxiety, depression and relapse. As well as a return of

pain I suffer from plates and screws in my ankle. It also caused a

reversion of my thought process and coping skills.

(Doc. 1, pp. 5, 8.) However, he does not claim that all medical treatment was

withheld. Instead, he alleges that the suboxone through the MAT program was

withheld. (Doc. 1, p. 4.) Like in Hymer, the court finds that any alleged relapse is

too tenuous of an allegation to amount to an Eighth Amendment claim. 2022 WL

17978265, at *6. Therefore, Plaintiff raises a mere disagreement with treatment

and not an Eighth Amendment claim for deliberate indifference.

2. ADA Claim

Plaintiff brings an ADA claim stating that “I believe that even if I were a

diverter the ADA claims I could not be removed from said medication.” (Doc. 1,

p. 5.) Plaintiff did not state under which title of the ADA he brings his claim.

Regardless, the claim will be dismissed with prejudice because there is no

individual liability under the ADA.

The court acknowledges that the Third Circuit has not directly answered the

question of whether there can be individual liability under Title II. See Brown v.

Deparlos, 492 F. App’x 211, 215 n.2 (3d Cir. 2012) (nonprecedential) (“This Court

has yet to address individual liability under Title II of the ADA[.]”). However,

nearly all of the Third Circuit’s decisions regarding personal liability under the

majority of the ADA’s other titles point toward the absence of individual liability.

See Kokinda v. Pa. Dep't of Corr., 779 F. App’x 938, 942 (3d Cir. 2019)

(nonprecedential) (finding that plaintiff’s claims “for individual damages liability

under Title II of the ADA fail for the simple reason that there is no such liability”);

see also Williams v. Pa. Human Relations Comm'n, 870 F.3d 294, 299 & n.27 (3d

Cir. 2017) (holding that Title VII and ADA claims cannot be brought through a

“back door to the federal courthouse” via 42 U.S.C. § 1983, and noting that Title

VII and ADA claims are intended to impose liability on employers, not

individuals); Fasano v. Fed. Reserve Bank of N.Y., 457 F.3d 274, 289 (3d Cir.

2006) (noting in dicta that “neither the ADA nor 12 U.S.C. § 1831j permit

individual damages liability on the part of employees”); Koslow v. Pennsylvania,

302 F.3d 161, 178 (3d Cir. 2002) (noting in dicta that “there appears to be no

individual liability for damages under Title I of the ADA”); Emerson v. Thiel Coll.,

296 F.3d 184, 189 (3d Cir. 2002) (finding that individual defendants did not own,

lease, or operate Thiel College and thus were “not subject to individual liability

under Title III of the ADA”); N'Jai v. Floyd, 386 F. App'x 141, 144 (3d Cir. 2010)

(nonprecedential) (noting individual defendant could not be held liable under

ADA); Wardlaw v. Phila. Street's Dep't, 378 F. App’x 222, 225 (3d Cir. 2010)

(nonprecedential) (explaining that plaintiff’s ADA claims “were not actionable

against the individual defendants”). Additionally, other circuit courts of appeals

have found no individual liability under Title II. See Garcia v. S.U.N.Y. Health

Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Alsbrook v. City of

Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en banc). Therefore, the court

dismiss Plaintiff’s ADA claim against the individual defendants with prejudice.

3. Fourteenth Amendment Equal Protection Claim

Plaintiff brings an equal protection claim pursuant to the Fourteenth

Amendment. (Doc. 1, p. 5.)

The Equal Protection Clause of the Fourteenth Amendment commands that

no State shall “deny to any person within its jurisdiction the equal protection of the

laws,” which is essentially a direction that “all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

Thus, to state a claim under the Equal Protection Clause, a plaintiff must allege

that (1) he is a member of a protected class, and (2) he was treated differently from

similarly situated inmates. See id.

Plaintiff fails to allege that he is the member of a protected class or that he

was treated differently from similarly situated inmates. Instead, he alleges that “I

believe if the medication was different the Prison would not have removed me.”

(Doc. 1, p. 5.) Since Plaintiff has failed to allege the required elements of an equal

protection claim, the claim will be dismissed.

4. Tort Acts Claim

Plaintiff brings a “Tort Acts” claim against Defendants, which the court

construes as a claim under the Federal Torts Claim Act (“FTCA”).

The FTCA constitutes “a limited waiver of the United States’s sovereign

immunity.” White–Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).

The FTCA provides that the United States shall be liable, to the same extent as a

private individual, “for injury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment.” 28

U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674.

The United States is the only proper defendant in an FTCA action. See, e.g.,

Brownback v. King, 141 S.Ct. 740, 746 (2021) (explaining that, when Congress

passed the FTCA, it waived the sovereign immunity of the United States, so that

parties can sue the United States directly for harms caused by its employees); CNA

v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008), as amended (Sept. 29,

2008), (noting that “[t]he Government is the only proper defendant in a case

brought under the FTCA”).

This claim is being raised against state actors, not federal actors, and it fails

to name the United States as a defendant. Thus, the FTCA claim will be

dismissed.

The court acknowledges that Plaintiff’s reference to the “Tort Act” could be

viewed as raising a medical negligence claim under state law: “Tort Acts I believe

the Doctor and Prison officials were negligent.” (Doc. 1, p. 5.) In Pennsylvania,

medical negligence, or medical malpractice, is defined as “the unwarranted

departure from generally accepted standards of medical practice resulting in injury

to a patient, including all liability-producing conduct arising from the rendition of

professional medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d

1140, 1145 (Pa. 2003) (citing Hodgson v. Bigelow, 7 A.2d 338 (Pa. 1939)). To

establish a cause of action for negligence under Pennsylvania law, a plaintiff must

prove the following elements: (1) a duty or obligation recognized by law; (2) a

breach of that duty; (3) a causal connection between the conduct and the resulting

injury; and (4) actual damages. See Northwestern Mut. Life Ins. Co. v. Babayan,

430 F.3d 121, 139 (3d Cir. 2005) (citing In re TMI, 67 F.3d 1103, 1117 (3d Cir.

1995)).

Pennsylvania Rule of Civil Procedure 1042.3 requires a plaintiff alleging

professional negligence to file a certificate of merit within 60 days of filing the

complaint. Pa. R. Civ. P. 1042.3. The certificate must include one of the

following: a written attestation by “an appropriate licensed professional” that there

is a “reasonable probability that the care, skill or knowledge exercised or

exhibited” by the defendant “fell outside acceptable professional standards,” and

that this was the cause of the plaintiff's injuries; a statement that the claim against

the defendant is based only on the professional negligence of those for whom the

defendant is responsible; or a statement that expert testimony is unnecessary for

the plaintiff's claim to proceed. Pa. R. Civ. P. 1042.3(a)(1)-(3). Failure to file a

certificate of merit is fatal to a plaintiff’s claim. Pa. R. Civ. P. 1042.7.

The requirements of Rule 1042.3 are substantive in nature and, therefore,

federal courts in Pennsylvania must apply these prerequisites of Pennsylvania law

when assessing the merits of a medical malpractice claim. See Liggon-Redding v.

Estate of Sugarman, 659 F.3d 258, 262-65 (3d Cir. 2011); Iwanejko v. Cohen &

Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir. 2007). This requirement applies

with equal force to counseled complaints and to pro se medical malpractice actions

brought under state law. See Hodge v. Dep’t of Justice, 372 F. App’x 264, 267 (3d

Cir. 2010) (affirming district court’s dismissal of medical negligence claim for

failure to file a certificate of merit).

The Pennsylvania Supreme Court has noted that “[b]ecause the negligence

of a physician encompasses matters not within the ordinary knowledge and

experience of laypersons[,] a medical malpractice plaintiff must present expert

testimony to establish the applicable standard of care, the deviation from that

standard, causation and the extent of the injury.” Toogood, 824 A.2d at 1145. A

very narrow exception applies “where the matter is so simple or the lack of skill or

care is so obvious as to be within the range of experience and comprehension of

even non-professional persons.” Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1

(Pa. 1997). The court acknowledges that the Third Circuit has found Pa.R.C.P.

1042.3 as procedural in Federal Tort Claims Act cases, but it has not been

extended to cases with supplemental jurisdiction over state law claims. See Wilson

v. United States, 79 F.4th 312, 316–20 (3d Cir. 2023).

Here, Plaintiff has failed to file the required certificate of merit within the

60-day time period provided by rule. Therefore, any medical negligence claim

potentially raised in the complaint will be dismissed.

5. Defamation Claim

Plaintiff describes his defamation claim by stating “I believe they slandered

my name by lying.” (Doc. 1, p. 5.)

Under Pennsylvania law, a plaintiff must plead seven elements to state a

claim for defamation: (1) the defamatory character of the communication; (2) its

publication by the defendant; (3) its application to the plaintiff; (4) the

understanding by the recipient of its defamatory meaning; (5) the understanding by

the recipient of it as intended to be applied to the plaintiff; (6) special harm

resulting to the plaintiff from its publication; and (7) abuse of a conditionally

privileged occasion. 42 Pa. Cons. Stat. Ann. § 8343(a).

The DOC Defendants allege that truth is an absolute and complete defense

to a defamation claim and a defendant need only show substantial, rather than

complete, truth. (Doc. 20, p. 12.) This court has previously found that, the

resolution of the substantial truth of the allegedly defamatory statements is “not

appropriate on a Rule 12(b) motion to dismiss because it takes the court beyond the

pleadings.” Ansley v. Wetzel, No. 1:21-CV-528, 2022 WL 676275, at *6 (M.D. Pa.

Mar. 7, 2022).

However, the court finds that the complaint has failed to allege the required

factors of a defamation claim. Instead, Plaintiff simply alleges that “they” were

“lying.” (Doc. 1, p. 5.) Therefore, without more specific allegations, the court will

dismiss the defamation claim.

B. Plaintiff’s Criminal Claims Will Be Dismissed.

Plaintiff included criminal claims against Defendants: “I believe the[y]

broke the lay by being maliciously vague and lying in the misconduct reports.”

(Doc. 1, p. 5.) Defendants failed to address these claims in their motions to

dismiss. (Docs. 20, 22.) However, the court relies on its authority in 28 U.S.C. §

1915(e)(2)(B)(ii), which states that a court “shall dismiss” an in forma pauperis

case “at any time if the court determines that . . . the action . . . fails to state a claim

upon which relief may be granted[.]”

To the extent that this vague claim can be viewed as raising criminal claims,

such claims cannot succeed. Private citizens lack standing to initiate criminal

proceedings. United States v. Wegeler, 941 F.3d 665, 668 (3d Cir. 2019) (citing

Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Therefore, any attempts to

raise criminal actions against Defendants in this civil complaint will be dismissed

with prejudice.

CONCLUSION

For the reasons set forth above, the court will grant Defendants’ motions to

dismiss. The Eighth Amendment claim, Fourteenth Amendment claim, medical

negligence claim, and defamation claim will be dismissed without prejudice. The

ADA claim, FTCA claim, and any criminal claims raised against the eight

individual Defendants named in this action will be dismissed with prejudice.

Plaintiff will be granted leave to file an amended complaint curing the defects

addressed above in the claims dismissed without prejudice. Such document shall

be titled “amended complaint” and be filed under the same case number. Plaintiff

is cautioned that any amended pleading stands alone pursuant to Local Rule 15.1.

Therefore, the amended complaint must raise all claims for which Plaintiff seeks

relief.

An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: July 8, 2024