# Wolfe v. Rivello

> District Court, M.D. Pennsylvania · October 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10667880

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 11, 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/10667880

## How later opinions describe it (automated extraction)

- holding that non- physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor
- noting that “the only party potentially answerable for any injury [under the FTCA] is the United States.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES A. WOLFE, : Civil No. 3:24-cv-21
Plaintiff . (Judge Mariani)
v .
JOHN RIVELLO, et al, .
Defendants
MEMORANDUM
Plaintiff James Wolfe (“Wolfe”), an inmate confined at the State Correctional
Institution, Huntingdon, Pennsylvania (“SCl-Huntingdon’), initiated this negligence action on
January 3, 2024. (Doc. 1). Named as Defendants are, inter alia, Superintendent John
Rivello, Unit Manager Barbara Hollibaugh, Counselor Mark Grimme, and Unit Manager
Megan Yost (collectively, the “DOC Defendants”).' Presently before the Court is the DOC
Defendants’ motion (Doc. 32) to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons set forth below, the Court will grant the motion.
I. Allegations of the Complaint
Wolfe alleges that the events giving rise to his negligence action arose at SCI-
Huntingdon on July 11, 2019, and “on or after March 20, 2020 up to the present date and
have not ceased.” (Doc. 1, p. 4). He alleges that he received an “eye cut on [his] nose

1 Also named as a Defendant is Nurse Jessica Cousins. By separate Memorandum and Order,
the Court addressed Defendant Cousins’ motion to dismiss. (Docs. 57, 58).

bridge at tooth and gum” and was given improper medication. (/d.). He further alleges that
he was monitored by unknown individuals and he “was deceased in an observation cell.”
Based on these events, Wolfe alleges that defendants “are and have breached public
trust.” (/d. at p. 5). Wolfe also alleges that he suffered a traumatic brain injury and
emotional, mental, and physical distress. (/d.). He seeks monetary relief. (/d.).
ll. Legal Standard
A complaint must be dismissed under FED. R. Civ. P. 12(b)(6), if it does not allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must

aver “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009).
“Though a complaint ‘does not need detailed factual allegations, . . . a formulaic
recitation of the elements of a cause of action will not do.” DelRio-Mocci v. Connolly Prop.
Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,
“[flactual allegations must be enough to raise a right to relief above the speculative level.”
Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). A court “take[s] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but. . . disregard[s] legal conclusions and threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v.
Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take 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.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
“[Where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show(n] - that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citations and quotation marks
omitted). This “plausibility” determination will be a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” /d.
However, even “if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court finds that amendment
would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.

Id.

It. Discussion
A. — Claim Pursuant to the Federal Tort Claims Act (“FTCA”)
The DOC Defendants first seek to dismiss the FTCA claim lodged against them, as
they are individual state employees and not subject to civil liability under the FTCA. Itis
well-settled that the United States “is the only proper defendant in a case brought under the
FTCA.” CNA v. United States, 535 F. 3d 132, 138 n.2 (3d Cir. 2008) (“The Government is
the only proper defendant in a case brought under the FTCA.”); Feaster v. Federal Bureau
of Prisons, 366 F. App’x 322, 323 (3d Cir. 2010) (“The only proper defendant in an FTCA
suit is the United States itself.”); Dambach v. United States, 211 F. App’x 105, 108 (3d Cir.
2006) (noting that “the only party potentially answerable for any injury [under the FTCA] is
the United States.”). Wolfe thus cannot bring an FTCA claim against individual state
employee Defendants. The Court will dismiss the FTCA claim against these individual
Defendants.
B. Eighth Amendment Claim?
The DOC Defendants next seek to dismiss the complaint based on Wolfe’s failure to
state a viable Eighth Amendment claim and failure to allege that they were personally
involved in the alleged violations.

2 The Court construes the complaint as presenting an Eighth Amendment claim relating to
deliberate indifference to Wolfe's medical needs.

Prison officials violate the Eighth Amendment when they are deliberately indifferent
to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). To
succeed on such a claim, “a plaintiff must make (1) a subjective showing that ‘the
defendants were deliberately indifferent to [his or her] medical needs’ and (2) an objective
showing that ‘those needs were serious.” Pearson v. Prison Health Serv., 850 F.3d 526,
534 (3d Cir. 2017) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999)).
Deliberate indifference occurs when prison officials “intentionally deny[ ] or delayf ]
access to medical care or interfer[e] with the treatment once prescribed.” Pearson, 850 F.3d
at 534 (quoting Estelle, 429 U.S. at 104-05). “Allegations of medical malpractice are not
sufficient to establish a Constitutional violation,” nor is “[mJere disagreement as to the

proper medical treatment.” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). A “failure to
provide adequate care...[that] was deliberate, and motivated by non-medical factors” is
actionable under the Eighth Amendment, but “inadequate care [that] was a result of an error
in medical judgment” is not. Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); Estelle,
429 U.S. at 105-06. As long as a physician exercises professional judgment, his or her
behavior does not violate a detainee’s constitutional rights. See Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990).
Individual liability will be imposed under Section 1983 only if the state actor played
an “affirmative part’ in the alleged misconduct. See Evancho v. Fisher, 423 F.3d 347, 353

(3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Liability
“cannot be predicated solely on the operation of respondeat superior.” Id. In other words,
defendants in Section 1983 civil rights actions “must have personal involvement in the
alleged wrongs...shown through allegations of personal direction or of actual knowledge
and acquiescence.” Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003); Rode, 845 F.2d
at 1207-08. A plaintiff must establish the particulars of conduct, time, place, and the person
responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-08. When a plaintiff
merely hypothesizes that an individual defendant may have had knowledge of or personal
involvement in the deprivation of his or her rights, individual liability will not follow. Atkinson,
316 F.3d at 271; Rode, 845 F.2d at 1207-08.
The Court finds that the spare facts alleged by Wolfe do not state a viable Eighth
Amendment claim against the DOC Defendants because he does not describe deliberate
indifference to a serious medical need. With respect to the serious medical need
requirement, it has been recognized by the Third Circuit Court of Appeals that cuts requiring
no more than small bandages do not constitute serious medical needs covered by the
Eighth Amendment. See Stankowski v. Farley, 251 Fed. Appx. 743, 748 (3d Cir. 2007).
Wolfe's allegation that he received a “cut” (Doc. 1, p. 4), does not constitute an obvious
serious medical need as required under Estelle.
Assuming that this injury constitutes a serious medical need, the Court must next
determine whether Wolfe has demonstrated deliberate indifference to that medical need.

Wolfe’s complaint clearly alleges that “he was being monitored” and was provided
medication for his ailments. (Doc. 1, p. 4). He has not been denied treatment but, instead,
is expressing a dissatisfaction with the quality of care. This claim reduces to a dispute
concerning the adequacy of treatment. Such allegations do not support an Eighth
Amendment claim of deliberate indifference to a serious medical condition. Courts have
repeatedly held that when an inmate’s Eighth Amendment claim entails nothing more than a
disagreement concerning which type of medication to prescribe for a particular ailment,
prison officials are entitled to a judgment in their favor as a matter of law. See, e.g., Gause

v. Diguglielmo, 339 F.App’x 132 (3d Cir. 2009) (dispute over choice of medication does not
rise to the level of an Eighth Amendment violation); Innis v. Wilson, 334 F. App’x 454 (3d
Cir. 2009) (same); Whooten v. Bussanich, 248 F. App’x 324 (3d Cir. 2007) (same); Ascenzi

v. Diaz, 247 F. App’x 390 (3d Cir. 2007) (same). It is also well-established that the mere
misdiagnosis of a condition or medical need, or negligent treatment provided for a condition,
is not actionable as an Eighth Amendment claim because medical malpractice is not a
constitutional violation. Rouse, 182 F.3d at 197 (“It is well-settled that claims of negligence
or medical malpractice, without some more culpable state of mind, do not constitute
deliberate indifference.”); Hartman v. Corr. Med. Servs., 366 F. App’x 453, 455 (3d Cir.
2010) (noting that the “[inmate] himself referred to his lawsuit in terms of the negligence of
the defendants” and finding that “[a]llegations of medical negligence do not trigger
constitutional protections”) (citing Estelle, 429 U.S. at 105-06; Durmer, 991 F.2d at 67).

Fatal to Wolfe’s claim is his explicit allegation that Defendants’ conduct amounted to
negligence. (Doc. 1, p. 1). Therefore, the Court will dismiss this claim with prejudice.
Entirely unrelated to the factual allegations in the complaint, Wolfe states that he
suffered a traumatic brain injury. (Doc. 1, p. 5). The Court finds that this medical condition,
traumatic brain injury, could potentially constitute a serious medical need for purposes of the
Eighth Amendment. However, the complaint is completely devoid of allegations that the
DOC Defendants had any personal involvement in Wolfe’s medical care or that they acted
with deliberate indifference to his need for such care. Further, Third Circuit precedent
makes clear that “a non-medical prison official’ cannot “be charge[d] with the Eighth
Amendment scienter requirement of deliberate indifference” when the “prisoner is under the

care of medical experts” and the official does not have “a reason to believe (or actual
knowledge) that prison doctors or their assistants are mistreating (or not treating) a
prisoner.” Spruill, 372 F.3d at 236; see also Durmer, 991 F.2d at 69 (holding that non-
physicians cannot be considered deliberately indifferent simply because they failed to
respond directly to the medical complaints of a prisoner who was already being treated by
the prison doctor). Wolfe alleges that he was provided medication and “monitored.” (Doc.
1, p. 4). By Wolfe’s own averments, the DOC Defendants are not medical providers. It is
clear that Superintendent Rivello, Unit Manager Hollibaugh, Counselor Grimme, and Unit
Manager Yost are non-medical prison personnel in that are not responsible for directly
rendering medical care to inmates. Wolfe does not plead any facts from which a plausible

inference could be drawn that the DOC Defendants had “reason to believe (or actual
knowledge) that prison doctors or their assistants [were] mistreating (or not treating) [him].”
Spruill, 372 F.3d at 236.
The complaint falls well short of plausibly alleging that the DOC Defendants violated
Wolfe’s constitutional rights. Consistent with the foregoing, dismissal of the complaint
against the DOC Defendants is warranted.
IV. Leave to Amend
Before dismissing a complaint for failure to state a claim upon which relief may be
granted, the Court must grant leave to amend, unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3d Cir. 2002). In the
instant matter, amendment would be futile because the underlying conduct and claims
against the DOC Defendants do not rise to the level of a constitutional violation.
V. Conclusion
The Court will grant the DOC Defendants’ motion (Doc. 32) to dismiss. A separate
Order shall issue.

E hy ‘ '
C Fe ih
Rover D. Mariani
United States District Judge
Dated: October 2024

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667880. Public record. Not legal advice.