Graziano v. Wetzel

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD GRAZIANO, : Civil No. 1:23-CV-00947

:

Plaintiff, :

:

v. :

:

JOHN WETZEL, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is a motion to dismiss for failure to state a claim filed by

Defendants Deborah L. Alvord, Emily Boone, C.O. Cantando, Randy Evans,

Michael Gourley, Laurel R. Harry, Tonya Heist, Beth Herb, Melissa Howdyshell,

Lindsy M. Kendall, George Little, Erin Miller, Ross Miller, William Nicklow, Joe

Silva, Elicia Stein, John Wetzel, Tom Wolf, and Renee Zobitne (collectively,

“DOC Defendants”).1 (Doc. 64.) In his second amended complaint, Plaintiff

Edward Graziano (“Plaintiff”) alleges Eighth Amendment deliberate indifference

and First Amendment free exercise of religion claims against DOC Defendants

arising from the time when he was housed at the State Correctional Institution at

1 The only Defendants not contained in this list are Defendants Voorstad, Wanga, and Beam.

Defendant Beam was dismissed with prejudice from this action on February 13, 2024, and

therefore is not a party. (Doc. 30.) Defendant Wanga was dismissed without prejudice to the

claims being raised in a separate action. (Doc. 29, p. 9; Doc. 30.) Given that these two

defendants are named in the Second Amended Complaint despite previously being dismissed

under circumstances that prevent Plaintiff from further litigating claims against them in this

lawsuit, the court will dismiss these defendants pursuant to the court’s screening authority.

Defendant Voorstad has not had counsel enter an appearance and is not included in the instant

motion to dismiss.

Camp Hill, Pennsylvania (“SCI-Camp Hill”). (Doc. 29.) For the reasons that

follow, the court will grant in part and deny in part DOC Defendants’ motion to

dismiss.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff initiated this action by filing a complaint on June 8, 2023. (Doc. 1.)

On August 3, 2023, DOC Defendants filed a motion to dismiss. (Doc. 12.) On

January 25, 2024, Plaintiff filed a motion to amend the complaint. (Doc. 28.) On

February 13, 2024, the court granted Plaintiff’s motion to amend the complaint,

and pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the court screened the proposed

amended complaint attached to the motion. (Doc. 30.) The court dismissed with

prejudice the claims associated with the timing of the medication line after April 4,

2022, the claims associated with the loss of Plaintiff’s single-cell status in

September 2022, the Eighth Amendment claims based on the DOC’s COVID-19

protocols, the Eighth Amendment claim against Defendant Alison Beam for

refusing the PSCOA’s request to prioritize vaccines for its members, and the

Eighth Amendment claim against medical providers for refusing to treat his

COVID-19 symptoms. (Doc. 30.) The court dismissed without prejudice the

Eighth Amendment claims based on deviations from the enhanced screening for

COVID-19 protocols, any implied First Amendment retaliation claims, and the

First Amendment claim regarding the free exercise of religion because Plaintiff

failed to plead the personal involvement of named Defendants. (Id.) The court did

not dismiss the Eighth Amendment claims against Defendants R. Miller, E. Miller,

and Howdyshell based on deviations from COVID-19 protocols. (Id.) The court

also gave Plaintiff leave to file an amended complaint. (Id.)

The amended complaint names the following twenty-two (22) defendants:

(1) John Wetzel (“Wetzel”), former Secretary of the DOC; (3) George Little

(“Little”), former Acting Secretary of the DOC; (4) Laurel R. Harry (“Harry”),

current Secretary of the DOC and at all relevant times the superintendent/Facility

Manager at SCI-Camp Hill; (5) Michael Gourley (“Gourley”), Deputy

Superintendent for Facility Management at SCI-Camp Hill; (6) William Nicklow

(“Nicklow”), Deputy Superintendent for Centralized Services at SCI-Camp Hill;

(7) Lindsy Kendall (“Kendall”), Deputy Superintendent for Diagnostic Services at

SCI-Camp Hill; (8) Renee Zobitne (“Zobitne”), Major of the Unit Managers at

SCI-Camp Hill; (9) Randy Evans (“Evans”), Major of the Guards at SCI-Camp

Hill; (10) Tonya Heist (“Heist”), Corrections Superintendent Assistant at SCI-

Camp Hill; (11) Deborah Alvord (“Alvord”) Corrections Superintendent Assistant

at SCI-Camp Hill; (12) Ross Miller (“R. Miller”), Unit Manager of I-Block (the

“unvaccinated unit”) at SCI-Camp Hill; (13) Erin Miller (“E. Miller”), Corrections

Counselor at SCI-Camp Hill; (14) Beth Herb (“Herb”), Corrections Health Care

Administrator at SCI-Camp Hill; (15) Elicia Stein (“Stein”), Licensed Psychologist

Manager at SCI-Camp Hill; (16) Melissa Howdyshell (“Howdyshell”), Psychology

Service Specialist at SCI-Camp Hill; (17) Theodoor Voorstad, (“Voorstad”), a

medical provider contracted with Wellpath at SCI-Camp Hill; (18) Joe Silva

(“Silva”), Director of Bureau of Health Care Services of the DOC; (19) Kevin

Wanga (“Wanga”), Registered Nurse Practitioner at SCI-Camp Hill; (20) Emily

Boone (“Boone”), Psychology Services Specialist at SCI-Camp Hill; (21) Alison

Beam (“Beam”), Acting Secretary of the Department of Health of Pennsylvania;

and (22) Tom Wolf (“Wolf”), former Governor of Pennsylvania. (Doc. 54, ¶¶ 4–

24.)

Regarding his Eighth Amendment claims, Plaintiff avers that he arrived at

SCI-Camp Hill on July 1, 2021, and was housed in the Restricted Housing Unit for

COVID-19 quarantine. (Id. ¶ 29.) On July 12, 2021, Plaintiff entered general

population. (Id.) In August of 2021, Defendant Wetzel directed all State

Correctional Institutions to house unvaccinated inmates separately from vaccinated

inmates. (Id. ¶ 31.) Plaintiff was not vaccinated. (Id. ¶ 25.) Plaintiff was informed

that unvaccinated inmates would be separated from vaccinated inmates and housed

in a designated housing unit. (Id. ¶ 30.) Additionally, Plaintiff was informed that

unvaccinated inmates would be restricted from all communal areas outside the

unvaccinated unit including medical, chapel, school, library, law library, visiting

room, gymnasium, barber shop, dining hall, and main yard. (Id.)

On August 6, 2021, Plaintiff was moved to the unvaccinated unit, which was

on the B-side of I-Block (“I/B”). (Id. ¶ 32.) Plaintiff alleges that I-Block’s

management team included Defendants R. Miller, E. Miller, and Howdyshell. (Id.

¶ 33.) Plaintiff alleges that R. Miller, E. Miller, and Howdyshell regularly had

contact with all inmates, regardless of the inmates’ vaccination status and they

regularly wore their face masks below their mouths when having direct contact

with Plaintiff. (Id. ¶¶ 34–39.) When confronted by Plaintiff about their

inappropriate masking, R. Miller, E. Miller, and Howdyshell would tell Plaintiff

“Don’t worry about it, I’m vaccinated,” “Fuck off,” or tell Plaintiff to get

vaccinated if he was worried about it. (Id.) Plaintiff further alleges that

corrections officers on I/B did not correctly wear their masks, other staff who

worked on I/B did not wear full personal protective equipment (PPE), and inmates

housed on I/B did not wear masks, in contravention of protocols in place by the

DOC at the time. (Id. ¶¶ 40–44.)

Plaintiff alleges that R. Miller hired block workers from different cohort

groups, and these workers intermingled with each other and staff, undermining the

COVID protocols. (Id. ¶ 44.) Additionally, Plaintiff alleges that Miller, Stein, and

other unnamed supervisory officials allowed inmates from the vaccinated block to

work on the unvaccinated side, commingling with the unvaccinated inmates. (Id. ¶

45.) Plaintiff alleges further violations of DOC’s COVID protocol, including using

reusable meal trays which were shared between vaccinated and unvaccinated

inmates and using the same telephones between the blocks without properly

sanitizing them. (Id. ¶¶ 46, 47.) Plaintiff alleges issues with the ventilation

system, plumbing system, and lack of window coverings to prevent the spread of

COVID-19, as well as mold on the windows. (Id. ¶ 48–53.)

Plaintiff alleges he repeatedly brought these issues to Defendant R. Miller,

who dismissed Plaintiff’s complaints, told Plaintiff to get vaccinated if he was

concerned about contracting COVID-19, informed Plaintiff that the comingling of

various groups of inmates was pursuant to the protocols in place, the meal trays

were safe because they had been machine washed, and informed Plaintiff to submit

a maintenance request for the issues with ventilation and plumbing. (Id. ¶¶ 54–66.)

Plaintiff also documents the dates he personally complained about his various

issues to both R. Miller and E. Miller. (Id. ¶¶ 67, 68.) Plaintiff avers that he spoke

personally with Defendants Harry, Nicklow, Gourley, Heist, and Kendall about his

various complaints. (Id. ¶¶70–73.) These individuals generally informed Plaintiff

they would look into the issues he raised. (Id.)

Plaintiff alleges that on September 22, 2021, C.O. Cantando informed

Plaintiff that he and other guards purchased fake COVID-19 vaccination cards in

order to circumvent mandatory vaccination or testing requirements. (Id. ¶ 74.)

Plaintiff alleges that he personally told Harry and Gourley about Cantando’s fake

vaccination card, and Harry and Gourley informed Plaintiff they would investigate

the issue. (Id.¶ 75.)

Plaintiff alleges that, at the end of December 2021, he began to experience

symptoms of COVID-19. (Id. ¶ 79.) Plaintiff alleges that he was seen by

Defendant Voorstad in a “cell-side” appointment; however, Voorstad refused to

treat Plaintiff because Plaintiff insisted to be seen in private. (Id. ¶ 79.) Plaintiff

alleges that on January 4, 2022, he complained to Heist that he was being denied

treatment and testing, and Heist promised Plaintiff he would be seen by medical

staff. (Id. ¶ 80.) The next day, Plaintiff submitted a sick call request for COVID-

19 symptoms. (Id. ¶ 81.) Plaintiff was eventually tested for COVID-19 on January

10, 2022. His test came back positive, as well as approximately thirty (30) other

unvaccinated inmates, who were all moved to G-Block. (Id. ¶¶ 82, 83.) Plaintiff

alleges that the positive test results caused him to become suicidal and self-harm.

(Id. ¶ 84.) Plaintiff and the other unvaccinated inmates who were on G-Block were

returned to I/B on January 25, 2022. (Id. ¶ 85.) Plaintiff alleges he was told there

is no treatment to help him regain his sense of smell, and the medications

prescribed to treat his lingering symptoms have not worked. (Id. ¶¶ 86, 87.)

Plaintiff alleges that DOC Defendants’ failure to abide by the DOC COVID-

19 protocols caused the COVID-19 outbreak that infected him with COVID-19.

(Id. ¶ 92.) Plaintiff avers that DOC Defendants “knew that [the unvaccinated

inmates] unvaccinated status placed them at higher risk of COVID-19 exposure as

the decision to separate them makes clear.” (Id. ¶ 94.) Plaintiff also alleges that

Defendants knew he was a higher risk of COVID due to his age and chronic

medical conditions. (Id.)

Plaintiff avers the following regarding his religious freedom claims.

Plaintiff alleges that Wetzel, Little, Harry, Gourley, and Nicklow did not allow

Plaintiff and other unvaccinated inmates to go to the prison’s chapel, participate in

religious services, or receive in-person visits from spiritual advisors. (Id. ¶ 97.)

Wetzel, Little, Harry, Gourley, and Nicklow were permitting vaccinated inmates to

go to the chapel, participate in religious services, and receive in person visits from

spiritual advisors. (Id. ¶ 98.) Plaintiff further avers that he could not watch videos

pre-recorded by prison chaplains because he did not purchase cable TV service, or

the videos appeared frozen and without sound. (Id. ¶¶ 99–101.) Plaintiff asked

Defendant Alvord about religious accommodations, and Alvord directed him to

Defendant Miller. (Id. ¶ 103.) Plaintiff also discussed the issue of the frozen video

with Defendant Harry, who promised to inform activity staff who were responsible

for the video equipment. (Id ¶¶ 103–06.) Plaintiff also informed Defendants

Kendall and Heist of the technical issues, and Kendall and Heist informed Plaintiff

that SCI-Camp Hill was purchasing radio receivers. (Id. ¶ 107.) Plaintiff

discussed the in-person visits issue with Harry, and Harry informed Plaintiff that

only vaccinated individuals were permitted in-person visits and additionally

informed Plaintiff she was unaware of radio receivers being purchased. (Id. ¶

109.) Plaintiff also avers he approached Nicklow about religious accommodations

and Nicklow echoed Harry and verified radio receivers were being ordered. (Id. ¶¶

114, 115.)

Plaintiff brings one count styled Due Process/Eighth Amendment deliberate

indifference to known risk of COVID-19 against Defendants Wetzel, Little, Wolf,

Harry, Gourley, Heist, Nicklow, Kendall, Alvord, Herb, Voorstad, Evans, Zobitne,

R. Miller, Howdyshell, E. Miller, Stein, Silva, C.O. Cantando, and Beam. (Id. ¶¶

119–23.) Plaintiff also brings one count styled First/Fourteenth Amendment

violations of free exercise of religion against Defendants Wetzel, Little, Harry,

Gourley, Nicklow, Kendall, Alvord, Heist, and R. Miller. (Id. ¶¶ 12427.)

On August 30, 2024, DOC Defendants filed the instant motion to dismiss

and brief in support. (Docs. 64, 65.) Plaintiff filed a brief in opposition on

November 25, 2024. (Doc. 74.) Accordingly, the motion to dismiss is ripe and

ready for disposition.

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-Camp-Hill, in Cumberland County, Pennsylvania, which is

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

STANDARD OF REVIEW

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

DOC Defendants first argue that Plaintiff has not established the personal

involvement of Wetzel, Little, Wolf, Harry, Gourley, Heist, Nicklow, Kendall,

Alvord, Herb, Evans, Zobitne, R. Miller, Howdyshell, Boone, E. Miller, Stein, or

Silva in the alleged constitutional violations. (Doc. 65, pp. 6–10.) Second, DOC

Defendants argue that Plaintiff has not stated a claim for relief under the Eighth

Amendment because he has failed to establish the objective and subjective

components of an Eighth Amendment claim. (Id. at 6–14.) Third, DOC

Defendants argue Plaintiff has failed to state a claim for relief under the First

Amendment because restrictions on in-person worship were reasonably related to a

legitimate penological interest of inmate safety. (Id. at 14, 15.) Finally, DOC

Defendants argue that all claims for monetary damages against DOC Defendants in

their official capacities should be dismissed pursuant to the Eleventh Amendment.

(Id. at 10.) The court will address each argument in turn.

A. Personal Involvement

DOC Defendants argue Boone should be dismissed because there are no

allegations against her in the amended complaint and Wolf should be dismissed

because simply being “responsible for governing the Commonwealth” does not

establish personal involvement. (Doc. 65, p. 7.)2 DOC Defendants further argue

that Wetzel, Little, Harry, Gourley, Nicklow, Kendall, Zobitne, Silva, Evans, Herb,

and Stein should be dismissed because the allegations against them are premised

on their roles as supervisors and the allegations fail to plead a theory of

supervisory liability. (Id. at 8.) Finally, Defendants argue that “Graziano’s bald

assertions that he advised the Defendants of his various concerns, fail to establish

their personal involvement in the underlying alleged unconstitutional conduct

relative to either the First or Eighth Amendment claims.” (Id. at 9.)

Plaintiff argues that the amended complaint contains allegations of personal

involvement of R. Miller, E. Miller, and Howdyshell. (Doc. 73, p. 12.) Plaintiff

also argues that personal involvement on the part of Harry, Gourley, Nicklow,

Kendall, Zobitne, Evans, and Stein is sufficiently alleged because there are

allegations that Plaintiff repeatedly complained of the deviations by R. Miller, E.

Miller, and Howdyshell, as well as allegations that these Defendants witnessed the

deviations. (Id. at 14.) Plaintiff argues that Harry, Gourley, Nicklow, Kendall,

Zobitne, Evans, and Stein were policymakers who “dictated through local policy

how the unvaccinated unit (I/B) and proof of vaccination at SCI-Camp Hill

operated within the DOC’S state-wide COVID-19 protocols, and daily updates.”

2 For ease of reference, the court uses the page numbers contained in the CM/ECF header.

(Id.) Finally, Plaintiff argues Wetzel and Little had personal involvement because

they were responsible for the implementation of the Governor’s vaccine or test

mandate. (Id. at 15.)

To state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold

requirements. He must allege: 1) that the alleged misconduct was committed by a

person acting under color of state law; and 2) that as a result, he was deprived of

rights, privileges, or immunities secured by the Constitution or laws of the United

States. West v. Atkins, 487 U.S. 42, 48 (1988). It is also well established that “[a]

defendant in a civil rights action must have personal involvement in the alleged

wrongs to be liable, and cannot be held responsible for a constitutional violation

which he or she neither participated in nor approved.” See Baraka v. McGreevey,

481 F.3d 187, 210 (3d Cir. 2007). Here, by not alleging any action on the part of

Defendants Herb, Evans, Zobitne, Boone, and Silva, Plaintiff has not established

personal involvement as required under Baraka. Accordingly, Defendants Herb,

Evans, Zobitne, Boone, and Silva will be dismissed with prejudice. Additionally,

there are no allegations regarding Defendant Alvord in the context of the Eighth

Amendment claim. Therefore, Defendant Alvord will be dismissed with prejudice

from the Eighth Amendment claim for lack of personal involvement.

Any implied liability based on Defendants Wetzel and Little’s position as

Secretary of DOC or Defendant Wolf’s position as Governor will also not succeed

based on the facts as alleged. Supervisory liability under § 1983 utilizes the same

standard as municipal liability. See Carter v. City of Philadelphia, 181 F.3d 339,

356 (3d Cir. 1999). A supervisor will only be liable for the acts of a subordinate if

he fosters a policy or custom that amounts to deliberate indifference towards an

individual’s constitutional rights. See id. at 357. To establish supervisory liability,

a plaintiff must show that (1) a superior officer failed to employ a specific

supervisory practice; (2) the existing custom created an unreasonable risk of injury

in the absence of the specified supervisory practice; (3) the supervisor was aware

that the risk existed; (4) the supervisor was indifferent to the risk; and (5) the

underlying violation resulted from the failure to employ the supervisory practice.

Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2005) (citing Sample v.

Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). The facts set forth by Plaintiff do not

address any of the factors required to establish supervisory liability. Therefore, all

claims against Defendants Wetzel, Little, and Wolf will be dismissed with

prejudice for lack of personal involvement.

Additionally, the only allegations against Defendant Stein are based on her

supervisory position over inmate peer specialists who resided on the vaccinated

side of the unit. (Doc. 54, ¶ 45.) Plaintiff does not allege any factors establishing

supervisory liability on the part of Defendant Stein. Accordingly, she will be

dismissed with prejudice for lack of personal involvement.

The bulk of Plaintiff’s Eighth Amendment claim that Defendants deviated

from DOC protocols focuses on the actions of R. Miller, E. Miller, and

Howdyshell. Accordingly, these Defendants will not be dismissed for lack of

personal involvement.

The remaining Defendants are Harry, Gourley, Nicklow, Kendall, Heist and

Alvord.3 Plaintiff alleges these individuals are supervisors and that he complained

to them about the underlying circumstances of his claims. “Participation in the

after-the-fact review of a grievance or appeal is not enough to establish personal

involvement.” Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988) (finding

the filing of a grievance is not enough to show the actual knowledge necessary for

personal involvement); see also Brooks v. Beard, No. 05-3196, 2006 WL 332547,

167 F. App’x 923, 925 (3d Cir. Feb. 14, 2006) (holding that a state prisoner’s

allegation that prison officials and administrators responded inappropriately, or

failed to respond to a prison grievance, did not establish that the officials and

administrators were involved in the underlying allegedly unconstitutional conduct).

However, “several courts have concluded that a supervisory official may be held

liable stemming from the review of a grievance alleging an ongoing violation

because the official ‘is personally involved in that violation because he is

3 As previously noted, the only allegations of personal involvement of Alvord are for the First

Amendment claim.

confronted with a situation he can remedy directly.’” Wilkins v. Wolf, No. 1:20-

CV-2450, 2021 WL 1578250, at *5 (M.D. Pa. Apr. 22, 2021)(collecting cases).

With respect to Harry, Plaintiff alleges Harry was the Superintendent of

SCI-Camp Hill and was “responsible for overseeing all aspects of the prison,

including the medical care and safety of inmates[.]” (Doc. 54, ¶ 6.) Plaintiff also

pleads that he spoke with Harry personally multiple times about the factual basis of

both his Eighth Amendment and First Amendment claims. (Id. ¶¶ 70, 77, 104.)

This is sufficient to plead personal involvement on behalf of Harry with respect to

the Eighth Amendment and First Amendment claims.

Defendant Gourley was the Deputy Superintendent for Facility Management

and was “responsible for uniform corrections officers, unit management (housing),

counseling services, facility maintenance, facility safety and the prison’s Security

Office.” (Id. ¶ 7.) Plaintiff alleges he spoke with Gourley multiple times about the

factual basis of his Eighth Amendment claim. (Id. ¶¶ 72, 77.) This is sufficient to

plead personal involvement of Defendant Gourley on the Eighth Amendment

claim.

Defendant Nicklow was the Deputy Superintendent for Centralized Services

and was “responsible for coordinating efforts between the facility and the Medical

Department, including joint responsibility with the Bureau of Health Care

Services.” (Id. ¶8.) Plaintiff alleges he spoke with Nicklow several times about

the factual basis of both of his claims. (Id. ¶¶ 71, 77, 114.) This is sufficient to

plead personal involvement of Defendant Nicklow for both claims.

Defendant Kendall was the Deputy Superintendent for Diagnostic Services

and was “responsible for implementing all policies/practices/procedures related to

the assessment of custody, security levels[,] programmatic and special needs of

inmates who are newly received[ ]” into SCI-Camp Hill. (Id. ¶ 9.) Plaintiff alleges

he spoke with Kendall multiple times about the factual basis of both his Eighth

Amendment and First Amendment claims. (Id. ¶ 73, 77, 104.) This is sufficient to

plead personal involvement on both claims.

Defendant Heist and Alvord were both the Superintendent’s Assistants

responsible for assisting Superintendent. (Id. ¶¶ 12, 13.) Plaintiff alleges he spoke

with Heist about his Eighth Amendment claim and with Alvord regarding his First

Amendment claim. (Id. ¶¶ 73, 77, 102.) The allegations against Heist and Alvord

fail to plead personal involvement because there are insufficient allegations that

Heist or Alvord had the ability to directly remedy the situation Plaintiff

complained about from their positions as Superintendent’s Assistants.

Accordingly, both Heist and Alvord will be dismissed with prejudice.

Thus, the following claims remain pending against the following defendants

at this point in the analysis. The Eighth Amendment claim is against Defendants

R. Miller, E. Miller, Howdyshell, Harry, Gourley, Nicklow, and Kendall. The First

Amendment claim remains pending against Harry, Nicklow, and Kendall.

B. Eighth Amendment Claim

The Eighth Amendment prohibits cruel and unusual punishment. U.S.

CONST. AMEND. VIII. “A prison official’s ‘deliberate indifference’ to a substantial

risk of harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan,

511 U.S. 825, 828 (1994). The Supreme Court has found that an Eighth

Amendment claim against a prison official must meet two requirements: (1) “the

deprivation alleged must be, objectively, sufficiently serious;” and (2) the “prison

official must have a sufficiently culpable state of mind.” Id. Furthermore, in cases

involving prison safety or prison conditions, the relevant state of mind “is one of

‘deliberate indifference’ to inmate health or safety.” Beers-Capitol v. Whetzel, 256

F.3d 120, 130 (3d Cir. 2001). This deliberate indifference standard “is a subjective

standard under Farmer-the prison official-defendant must actually have known or

been aware of the excessive risk to inmate safety.” Id. Thus, “[d]eliberate

indifference can be shown when a prison official knows of and disregards an

excessive risk to inmate health or safety.” Hamilton v. Leavy, 117 F.3d 742, 747

(3d Cir. 1997) (emphasis added).

It is now well established that an inmate’s claim based on exposure to

COVID-19 will fail as a matter of law where the record shows that the state

correctional institution followed DOC policies. See e.g., Engelund v. Doll, 2020

WL 1974389, at * 11 (M.D. Pa. Apr. 24, 2020); Allen v. Wetzel, 2021 WL

2254997, at *7 (M.D. Pa. June 3, 2021); Bevins v. Kauffman, 2021 WL 322168, at

*1, 5 (M.D. Pa. Feb. 1, 2021). However, the Court of Appeals for the Third

Circuit has found that a plaintiff adequately alleged an Eighth Amendment

deliberate indifference claim when he alleged that officials ignored “protocols by

maintaining open-dormitory housing and four-man cells, and by ‘interchanging’

inmates from different blocks and jails.” White v. Wetzel, 2022 WL 3273807, at *

2 (3d Cir. 2022).

In White, the plaintiff also alleged that the supervisors had “acknowledged to

[plaintiff] that the conditions in G-Block were dangerous but did nothing to

improve them.” Id. Therefore, “an inmate’s Eighth Amendment claim arising out

of his contracting COVID-19 will fail as a matter of law based on the DOC’s

COVID-19 mitigation policies and procedures absent factual allegations that prison

officials disregarded or materially deviated from them.” Caesar v. Kemp, 2024

WL 842169, at * 3 (W.D. Pa. Jan. 29, 2024), report and recommendation adopted

sub nom. Caesar v. Kemp, 2024 WL 839061 (W.D. Pa. Feb. 27, 2024) (citing

Williams v. PA. Dep’t of Corr., 2023 WL 2655406, at *13 (W.D. Pa. Feb. 2, 2023),

report and recommendation adopted sub nom. Williams v. PA Dep’t of Corr., 2023

WL 2652298 (W.D. Pa. Mar. 27, 2023)).

DOC Defendants first argue that “[t]he DOC’s response to the COVID

pandemic, has been deemed reasonable by various courts in this Circuit.” (Doc.

65, p. 12.) They further argue that Plaintiff has “fail[ed] to plausibly allege that

any of the Defendants acted with deliberate indifference to [the] risk [of COVID]

generally, let alone to any specific risk.” (Id. at 13.) Further, Defendants argue,

Plaintiff has failed to “demonstrate[ ] that Defendants had any reason to believe the

measures employed by the DOC, or within the institution, were inadequate.” (Id.)

Defendants also argue that Plaintiff’s assertions that Defendants deviated from the

protocol are not sufficient to meet the subjective prong because “R. Miller

expressly disagreed with Graziano’s assertions that any of his actions undermined

the protocols and indicated his belief that the vaccinated staff and inmate workers

did not pose a risk to Graziano.” (Id. at 14.) Further, Defendants argue that when

faced with Plaintiff’s complaints, “R. Miller, Harry, Gourley, Nicklow, Kendall

and Heist expressed their belief that the ‘existing COVID-19 protocols were

sufficient.’” (Id.)

Plaintiff first notes that courts have taken judicial notice of the DOC’s

various COVID protocols and argues that “there is no question that Defendants

were aware of the existing DOC COVID-19 protocols during the relevant time

frame, and understood the potential risk of serious harm to Graziano/unvaccinated

inmates through exposure to COVID-19, if they disregarded or materially deviated

from those existing protocols.” (Doc. 73, pp. 22, 23.) Plaintiff then reiterates his

allegations outlining material deviations from COVID protocols and argues that “a

jury may infer the existence of Defendants’ subjective state of mind from the fact

that the risk of harm posed by their deviations/noncompliance with COVID

protocols, was obvious, and known.” (Id. at 27.)

Although DOC Defendants dispute the objective prong, many courts have

held that, objectively, COVID-19 posed a serious risk of harm to inmates. See

Bevins, 2021 WL 322168, at * 5. Plaintiff accordingly meets this prong.

Turning to the subjective prong, at this stage of litigation, the court finds that

the allegations are similar to White and therefore, state a deliberate indifference

claim under the Eighth Amendment. Plaintiff has alleged that Defendants R.

Miller, E. Miller, and Howdyshell deviated from the DOC protocols in place, he

made them all aware that he believed they were deviating from the protocols, and

that Harry, Gourley, Nicklow, and Kendall were aware of these deviations yet did

not act to remedy the ongoing deviations. Accordingly, the motion to dismiss will

be denied as to the Eighth Amendment claim against R. Miller, E. Miller,

Howdyshell, Harry, Gourley, Nicklow, and Kendall.

C. First Amendment Claim

To establish a violation of the Free Exercise Clause of the First Amendment,

a prisoner must plead facts that plausibly show or allow the inference that the

defendants’ action, or a prison policy, has placed a restriction on his religious

practice that is not reasonably related to a legitimate, penological interest. O’Lone

v. Estate of Shabazz, 482 U.S. 342, 349-350 (1987); Turner v. Safley, 482 U.S. 78,

89 (1987). Defendants must then identify a legitimate penological interest. If a

legitimate penological interest exists, the court must then consider four factors to

determine the reasonableness of Defendants’ actions or challenged prison

regulation: (1) whether there is “a valid, rational connection” between the prison

regulation and the governmental interest; (2) whether the inmate has an

“alternative means of exercising the right” at issue; (3) the burden or impact the

accommodation would impose on prison resources, correctional staff and inmates;

and (4) “the absence of ready alternatives.” Turner, 482 U.S. at 89-91. The most

important prong of the Turner analysis requires a rational connection between the

policy and the legitimate governmental interest that justifies it. Nasir v. Morgan,

350 F.3d 366, 372 (3d Cir. 2003). With that said, courts should accord prison

officials broad deference in the adoption of policies and practices that are needed

to preserve internal order and discipline in the prison. See Bell v.Wolfish, 441 U.S.

520, 547–48 (1979); Wolff v. McDonnell, 418 U.S. 539, 566 (1974).

DOC Defendants argue that the “the restrictions imposed by Defendants in

response to COVID” did not infringe Plaintiff’s right to worship in congregational

prayer because “the DOC’s response to the pandemic was reasonable and

rationally connected to the goal of ensuring the safety of the inmates and staff

within its institutions.” (Doc. 65, p. 15.) DOC Defendants outline that “the DOC’s

demobilization plan addressed the provision of religious services–including

delivering religious services on housing units, broadcasting services on the inmate

channel, and ultimately resuming chap services with cohort and social distancing

limitations in place.” (Id.)

Plaintiff argues that, as a result of the demobilization plan,

“Graziano/unvaccinated inmates were excluded from chapel services/in-person

visits with spiritual advisors, and denied access to the religious videos broadcast on

the inmate channel by discontinuance of free cable services, because the inmate

channel was accessible only through paid cable service.” (Doc. 73, p. 30.)

Here, Plaintiff has alleged that Defendants instituted a policy that

substantially burdened his ability to gather in-person for worship, receive religious

teaching, and meet with spiritual advisors because the policy completely restricted

all of these activities. Defendants have argued that the restriction on in-person

religious meetings was for the purpose of ensuring the safety of inmates and staff.

The court concludes that the remaining rational basis review is better suited for

summary judgment. At the pleading stage, sufficient facts have been alleged to

state a First Amendment free exercise claim. Accordingly, the court will deny the

motion to dismiss relating to the First Amendment claim against Harry, Nicklow,

and Kendall.

D. Eleventh Amendment Immunity

DOC Defendants argue that ‘all claims against Defendants in their official

capacities for money damages must be dismissed[ ]” because a suit against an

individual acting in their official capacity is an impermissible suit against a state

and the Commonwealth of Pennsylvania has not consented to suit in federal court

for these types of claims. (Doc. 65, p. 10.)

A suit for monetary damages brought against a state official in their official

capacity is not a suit against that official; it is a suit against that official’s office.

See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (citation

omitted); Allen v. New Jersey State Police, 974 F.3d 497, 506 (3d Cir. 2020). This

is no different from a suit against the State itself, which is barred by the Eleventh

Amendment. See Will, 491 U.S. at 66, 70-71; Pennhurst State School & Hops. v.

Halderman, 465 U.S. 89, 98-99 (1984) (explaining that the Eleventh Amendment

bars suits against a State in federal court). There are, however, two exceptions to

Eleventh Amendment immunity where: (1) the State has waived its immunity; or

(2) Congress has exercised its power under Section 5 of the Fourteenth

Amendment to override that immunity. See Will, 491 U.S. at 66; Kentucky v.

Graham, 473 U.S. 159, 169 (1985) (recognizing these two exceptions to a State's

Eleventh Amendment immunity).

The court finds that neither one of these exceptions apply here. As

explained by the Third Circuit, the Commonwealth of “Pennsylvania has not

waived its sovereign immunity defense in federal court[,]” and “Congress did not

abrogate Eleventh Amendment immunity via § 1983[.]” See Downey v.

Pennsylvania Dep't of Corr., 968 F.3d 299, 310 (3d Cir. 2020) (citation omitted);

see also 42 Pa. Stat. and Cons. Stat. Ann. § 8521(b) (stating that “[n]othing

contained in this subchapter shall be construed to waive the immunity of the

Commonwealth from suit in Federal courts guaranteed by the Eleventh

Amendment to the Constitution of the United States”); Quern v. Jordan, 440 U.S.

332, 345 (1979) (concluding that the history and language of § 1983 establish that

Congress did not intend to make the States liable under that statute).

Of the defendants remaining at this point, only Defendant Harry is sued in

both her individual and official capacity. Accordingly, the court concludes that

Plaintiff's Eighth Amendment claim for monetary damages against Defendant

Harry in her official capacity is barred by Eleventh Amendment immunity. As

such, the Eighth Amendment claim for monetary damages against Defendant Harry

is dismissed with prejudice.

CONCLUSION

Accordingly, Defendants’ motion will be granted in part and denied in part.

Defendants’ motion is granted with respect to Defendants Wetzel, Little, Wolf,

Heist, Alvord, Herb, Evans, Zobitne, Boone, Stein, and Silva. These Defendants

will be dismissed with prejudice. The motion is denied with respect to the Eighth

Amendment claim against Harry, Gourley, Nicklow, Kendall, R. Miller, E. Miller,

and Howdyshell and the First Amendment claim against Harry, Nicklow, and

Kendall. The court will not grant Plaintiff an opportunity to amend his complaint,

as further amendments would be futile. See Phillips, 515 F.3d at 245. An

appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: August 5, 2025