# Morgan v. Arviza

> District Court, M.D. Pennsylvania · October 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10667861

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667861

## How later opinions describe it (automated extraction)

- holding that FDIC v. Meyer, 510 U.S. 471 (1994), “forecloses the extension of Bivens to private entities”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CURTIS MORGAN, No. 4:24-CV-01420

Plaintiff, (Chief Judge Brann)

v.

ARVIZA, et al.,

Defendants.

MEMORANDUM OPINION

OCTOBER 8, 2024
Plaintiff Curtis Morgan filed the instant pro se civil rights lawsuit alleging
Eighth Amendment violations by prison officials at the Federal Correctional
Institution, Allenwood (FCI Allenwood), in White Deer, Pennsylvania. He is
presumably bringing claims under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), for deliberate indifference to
serious medical needs. Because Morgan fails to state a claim for relief, the Court
will dismiss his complaint pursuant to 28 U.S.C. § 1915A(b)(1) but will grant him
leave to amend.
I. BACKGROUND
In his short, handwritten complaint, Morgan alleges that, while in the
custody of the United States Marshals, he broke his foot going up a set of stairs.1

Although Morgan does not state when this accident occurred, he notes that he saw
an outside doctor and was informed that he needed surgery to repair his broken

foot.2 At some point, Morgan was transported to Leavenworth, Kansas
(presumably to the Federal Correctional Institution in Leavenworth), but did not
receive the surgery.3

Morgan alleges that on September 10, 2023, he was transported to FCI
Allenwood to have the prescribed foot surgery.4 It is here where he maintains that
the constitutionally deficient medical care took place.5 Specifically, he asserts that
on December 12, 2023, he was seen by defendant “Thomas R., DPM,” a podiatrist

in Lewisburg, Pennsylvania.6 According to Morgan, this doctor “never took an
Xray,” failed to review his prior medical records and only visibly assessed the
condition of his foot, told Morgan that all he needed was “special shoes,” and
denied foot surgery.7

Morgan asserts he has continued to suffer constant pain and ambulation
difficulties, which have gotten so bad that he now requires a wheelchair.8 He

2 Id.
3 Id.
4 Id.
5 Id.
6 Id. at 3, 4-5. It appears that the full name of this physician is “Thomas Richard Albright,
DPM.” See UPMC, UPMC PROVIDERS, https://providers.upmc.com/provider/thomas-richard-
albright/1406286 (last visited Oct. 4, 2024).
7 Doc. 1 at 4-5.
8 Id. at 5-6.
further alleges that his feet are “beyond repair.”9 He filed his complaint in this
Court in August 2024, naming five defendants: Dr. “Thomas R.”; FCI Allenwood

Warden Arviza; and FCI Allenwood Physician Assistants Humphill, Gosa, and
Bizzlai.10 He requests compensatory damages for his pain and physical injuries
and also appears to seek injunctive relief in the form of termination of Defendants’
employment.11

II. STANDARDS OF REVIEW
Courts are statutorily obligated to review, “as soon as practicable,” pro se
prisoner complaints targeting governmental entities, officers, or employees.12 One

basis for dismissal at the screening stage is if the complaint “fails to state a claim
upon which relief may be granted[.]”13 This language closely tracks Federal Rule
of Civil Procedure 12(b)(6). Accordingly, courts apply the same standard to

screening a pro se prisoner complaint for sufficiency under Section 1915A(b)(1) as
they utilize when resolving a motion to dismiss under Rule 12(b)(6).14
In deciding a Rule 12(b)(6) motion to dismiss, courts should not inquire
“whether a plaintiff will ultimately prevail but whether the claimant is entitled to

9 Id. at 5.
10 Id. at 2-3.
11 Id. at 6.
12 See 28 U.S.C. § 1915A(a).
13 Id. § 1915A(b)(1).
14 See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002); O’Brien
v. U.S. Fed. Gov’t, 763 F. App’x 157, 159 & n.5 (3d Cir. 2019) (per curiam) (nonprecedential);
cf. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
offer evidence to support the claims.”15 The court must accept as true the factual
allegations in the complaint and draw all reasonable inferences from them in the

light most favorable to the plaintiff.16 In addition to the facts alleged on the face of
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.17
When the sufficiency of a complaint is challenged, the court must conduct a
three-step inquiry.18 At step one, the court must “tak[e] note of the elements [the]

plaintiff must plead to state a claim.”19 Second, the court should distinguish well-
pleaded factual allegations—which must be taken as true—from mere legal
conclusions, which “are not entitled to the assumption of truth” and may be
disregarded.20 Finally, the court must review the presumed-truthful allegations

“and then determine whether they plausibly give rise to an entitlement to relief.”21

15 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.
1996).
16 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).
17 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).
18 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and
quotation marks omitted) (footnote omitted).
19 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).
20 Id. (quoting Iqbal, 556 U.S. at 679).
21 Id. (quoting Iqbal, 556 U.S. at 679).
Deciding plausibility is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”22

Because Morgan proceeds pro se, his pleadings are to be liberally construed
and his complaint, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers[.]”23 This is particularly true
when the pro se litigant, like Morgan, is incarcerated.24

III. DISCUSSION
At the outset, the Court observes that because Morgan is primarily suing
federal actors for alleged constitutional deprivations, his claims implicate Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics.25 Causes of action
relying on Bivens, however, have been extremely circumscribed in recent years,
and extending the Bivens remedy is now a decidedly “disfavored” judicial
activity.26 Nevertheless, the Court need not determine at this juncture whether a

Bivens remedy exists for Morgan’s claims because his complaint fails to state a
constitutional violation. The Court will address Morgan’s pleading deficiencies in
turn.

22 Iqbal, 556 U.S. at 681.
23 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations omitted).
24 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).
25 403 U.S. 388 (1971). Morgan also checked the box indicating that he is asserting a claim under
42 U.S.C. § 1983, (see Doc. 1 at 1), but none of his claims target state actors.
26 Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Iqbal, 556 U.S. at 675).
A. Personal Involvement
It is well established that in Bivens actions (as in lawsuits pursuant to 42

U.S.C. § 1983), liability cannot be predicated solely on the operation of respondeat
superior.27 Rather, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the
Constitution.”28 Furthermore, it is equally settled that involvement in the post-

incident grievance process alone does not give rise to liability.29
Morgan’s primary pleading deficiency is his failure to allege personal
involvement for four of the five Defendants. Although he names multiple FCI

Allenwood officials, he does not include any allegations of wrongdoing by these
federal officials that would establish personal involvement in the purported
constitutionally deficient medical care. The only allegation involving Warden
Arviza and the three physician assistants is that they “fail[ed] to intervene.”30 This

allegation is both conclusory and insufficient to plead personal involvement.

27 See Ashcroft v. Iqbal, 556. U.S. 662, 676 (2009).
28 Id.
29 See Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (affirming dismissal of claims against
prison officials for lack of personal involvement when officials’ “only involvement” was “their
review and denial of [plaintiff]’s grievance”); Lewis v. Wetzel, 153 F. Supp. 3d 678, 696-97
(M.D. Pa. 2015) (collecting cases); Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006)
(nonprecedential); Alexander v. Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005)
(nonprecedential) (explaining that prisoner’s claims against certain defendants were “properly
dismissed” because the allegations against them “merely assert their involvement in the post-
incident grievance process”).
30 Doc. 1 at 6.
To plausibly plead a Bivens claim, Morgan must specify each Defendant’s
personal involvement in the alleged constitutional misconduct. Morgan’s

complaint does not do so for four of the five Defendants. Accordingly, the Court
must dismiss the Bivens claims against Warden Arviza and Physician Assistants
Humphill, Gosa, and Bizzlai under 28 U.S.C. § 1915A(b)(1) for lack of personal

involvement.
B. “Federal Actor” for Bivens Liability
Morgan’s complaint does allege personal involvement for Dr. “Thomas R.”
However, there is no indication or plausible allegation that this physician is a

federal actor such that he can be subject to liability under Bivens. Just as Section
1983 claims must target individuals acting under color of state law,31 Bivens claims
must target federal actors.32 Bivens claims, however, are even more restrictive than

Section 1983 claims insofar as Bivens liability is often precluded for private
individuals or entities acting under color of federal law.33

31 See 42 U.S.C. § 1983.
32 See Davis v. Samuels, 962 F.3d 105, 111-12 (3d Cir. 2020).
33 See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 & n.2 (2001) (holding that FDIC v.
Meyer, 510 U.S. 471 (1994), “forecloses the extension of Bivens to private entities”); Minneci
v. Pollard, 545 U.S. 118, 131 (2012) (“[W]here, as here, a federal prisoner seeks damages from
privately employed personnel working at a privately operated federal prison, where the conduct
allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind
that typically falls within the scope of traditional state tort law (such as the conduct involving
improper medical care at issue here), the prisoner must seek a remedy under state tort law. We
cannot imply a Bivens remedy in such a case.”). But see Davis, 962 F.3d at 112 (finding that
Bivens claims “may reach private parties when they engage in the federal equivalent of ‘state
action.’” (citing Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir. 2001)).
Dr. “Thomas R.” appears to be a private physician who is not employed by
FCI Allenwood or any other federal agency. And even if he were somehow acting

under color of federal law, which is not alleged, there likely could be no Bivens
claim asserted against him because the Supreme Court of the United States has all
but foreclosed such an extension of Bivens.34 Most notably, the Supreme Court

reasoned that the existence of state-law tort remedies for such claims (i.e., state-
law negligence or medical malpractice claims, like those available here), counsel
against an extension of Bivens.35 Thus, Morgan cannot state a constitutional tort
claim against Dr. “Thomas R,” as this physician is not a federal actor.

C. Leave to Amend
Generally, “plaintiffs who file complaints subject to dismissal under [the
Prison Litigation Reform Act of 1995] should receive leave to amend unless
amendment would be inequitable or futile.”36 Morgan will be granted leave to

amend in the event that he can plead facts that would plausibly state a Bivens claim
against an appropriate federal actor.

34 See Minneci, 545 U.S. at 120, 131. In Minneci, the Supreme Court considered an Eighth
Amendment medical indifference claim brought by a federal prisoner against employees of a
private company that was operating a federal prison. Id. at 121. The Court declined to extend
Bivens to such claims. Id. at 131. If the Eighth Amendment claims in Minneci are not
cognizable under Bivens because there are alternative state-law tort remedies available, it
follows that there is almost certainly no Bivens liability for private medical providers employed
at private medical facilities, even if they treat federal prisoners and somehow could be
considered acting under color of federal law.
35 Id. at 120, 131.
36 Grayson, 293 F.3d at 114.
The Court makes two important observations. First, the medical records that
Morgan attached to his complaint tell a different and more serious story than what

he included in his pro se pleading. According to records from “Union Health,”
Morgan was diagnosed by a podiatrist (Kyle Wilmes, DPM)37 with “Charcot’s
joint” of the left and right foot, as well as Lisfranc’s dislocations of the left and

right foot, who also opined that it was medically necessary for Morgan to be “non
weight bearing” and to have special medical footwear.38 This diagnosis dates back
to at least November 30, 2022.39 Morgan’s condition continued to worsen, and in
February 2023, Dr. Wilmes opined:

I think if he[] continues to ambulate and if he cannot be fully [non-
weight bearing], he will end up losing his feet [secondary to the] need
for amputation. We have recommended strict [non-weight bearing]
until he is able to get [his] A1C down enough to have the Charcot foot
fixed, however, he states that he is unable to be fully [non-weight
bearing]. My recommendation would be for a transfer to [a] skilled
nursing facility or [long-term acute care facility] for strict [non-weight
bearing] until glycemic control can be managed so we can fix his foot.
We have reached out directly to his facility. Again I think if he is unable
to be fully non-weight bearing until his A1C has gotten down lower, he
will likely lose both of his feet.40

37 This medical provider appears to be based in Terre Haute, Indiana. See UNION HEALTH,
Providers, https://www.union.health/physicians/details.aspx?physician=147&sid=1 (last
visited Oct. 4, 2024).
38 Doc. 1-1 at 2. Specifically, Dr. Wilmes found “Charcot changes to the Lisfranc joint complex
of the right foot which are not new. Patient has new changes to the left foot showing
homolateral dislocation laterally of the Lisfranc joint complex and dorsal dislocation of the
2nd through 4th metatarsal bases, dorsal dislocation of the 1st metatarsal base as well as
overlying the medial cuneiform with fragmentation of the metatarsal bases and cuneiform
bones consistent with acute phase Charcot deformity of left foot and chronic Charcot deformity
of right foot with no new changes compared to previous exam.” Id.
39 See id.
40 Id. at 5.
Dr. Wilmes’ February 8, 2023 progress note further indicated that although
Morgan had been prescribed special shoes for his condition (referred to as “Crow
Boots”), he had only been fitted for those shoes and had not yet received them.41

Disconcertingly, in Morgan’s August 2024 complaint, he asserts that he still has
not received the prescribed medical footwear and is wheelchair bound.42
In light of these records and the serious medical issues therein, it may be
possible for Morgan to plausibly allege an Eighth Amendment claim for deliberate

indifference to serious medical needs. The Court offers no opinion on the viability
of such a claim under Bivens or in general.
Second, the Court observes that Morgan’s allegations—at least as to Dr.

“Thomas R.”—may be better suited to a state-law claim of medical malpractice
regarding the treatment (or lack thereof) by this physician, who is not a federal
actor. A stand-alone medical malpractice claim against a private physician,
however, would need to be filed in state court rather than federal court.43

If Morgan chooses to file an amended complaint in federal court, it should
be a stand-alone document, complete in itself and without reference to any
previous pleadings. The amended complaint should set forth Morgan’s Eighth

Amendment medical indifference claim (or claims) in short, concise, and plain

41 Id. at 4.
42 See Doc. 1 at 5.
43 See generally 28 U.S.C. §§ 1331, 1332.
statements, and in sequentially numbered paragraphs. Morgan must leave one-inch
margins on all four sides of his pleading.44 He must also cure the defects

specifically noted in this Memorandum.
In particular, Morgan must name proper defendants and specify the
offending actions taken by a particular defendant. This step is especially critical

for Morgan, as his initial complaint is devoid of allegations that demonstrate any
federal Defendant’s personal involvement in the purportedly deficient medical
care. He must also sign the amended complaint and indicate the nature of the relief
sought.

If Morgan does not timely file an amended complaint, dismissal of his
complaint without prejudice will automatically convert to dismissal with prejudice
and the Court will close this case.

IV. CONCLUSION
Based on the foregoing, the Court is constrained to dismiss without
prejudice Morgan’s complaint pursuant to 28 U.S.C. § 1915A(b)(1) because he
fails to state a claim upon which relief may be granted. Morgan may file an

amended complaint in accordance with this Memorandum, or he may choose to
pursue state-law claims in state court. If no amended complaint is timely filed,

44 See LOCAL RULE OF COURT 5.1.
dismissal without prejudice will automatically convert to dismissal with prejudice
and the Court will close this case. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667861. Public record. Not legal advice.