MAJOR

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

EDWARD MAJOR, )

)

Plaintiff ) 1:21-CV-00068-RAL

)

VS. ) RICHARD A. LANZILLO

) Chief United States Magistrate Judge

MICHAEL J. EDWARDS, )

REGISTERED NURSE, et al, ) MEMORANDUM OPINION ON

) DEPARTMENT OF CORRECTIONS

Defendants ) DEFENDANTS’ MOTION TO DISMISS

)

IN RE: ECF NO. 253

The twelve remaining Defendants in this action (identified infra.) have moved

to dismiss Plaintiffs Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6).

See ECF No. 253. For the reasons discussed below, the motion will be GRANTED in

part and DENIED in part.!

I. Relevant Procedural History

Plaintiff Edward Major (“Major”), an inmate in the custody of the Pennsylvania

Department of Corrections (“DOC”), filed his initial pro se Complaint in this action

on February 4, 2021. See ECF No. 6. Major later obtained counsel, and, on

October 27, 2022, he filed a First Amended Complaint. See ECF No. 98. After

discovery concluded, Major was granted leave to file a Second Amended Complaint

(“SAC”), which he did on September 20, 2024. See ECF No. 206. The SAC names

twelve employees of the DOC: Dr. Laurel R. Harry, DOC Secretary, Michael J.

1 The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28

U.S.C. § 636.

Edwards (R.N., SCI-Albion), Lt. James Ochs (SHU, SCI-Albion), Paul Ennis (Deputy

Superintendent, SCI Albion), Michael Clark (Facility Manager, SCI-Albion), Seth

Erickson (SDU Unit Manager, SCI Fayette), William Nicholson (Health Care

Administrator, SCI-Greene), Adam Shade (Corrections Officer), Nicholas Ohrman

(Corrections Officer), James Bright (Corrections Officer), Keith Matiyasic

(Corrections Officer), and Daniel Carns (Corrections Officer).? □

The SAC asserts the following claims under 42 U.S.C. § 1983:

Count One: Eighth Amendment excessive force claim against Defendant

Shade;

Count Two: Eighth Amendment deliberate indifference to serious medical

needs claim against Defendants Nicholson, Edwards, and Bright;

Count Three: Eighth Amendment deliberate indifference to serious medical

needs claim against Defendants Shade, Clark, Matiyasic, Ochs,

and Carns;

Count Four: First Amendment retaliation claim against Defendants Clark,

Ennis, Erickson, and Ohrman; and

Count Five: Eighth Amendment deliberate indifference to serious medical

needs claim against Defendant Harry (supervisory liability)

In support of their motion to dismiss, Defendants argue that (1) Major failed

to exhaust his administrative remedies as to all claims except his Eighth Amendment

claim against Defendant Matiyasic; (2) except for Defendant Harry, Eleventh

Amendment immunity bars any claim against them in their official capacities; (3)

Major has failed to allege facts to support the personal involvement of any Defendant

except Defendants Shade and Matiyasic; (4) the SAC fails to state an Eighth

2 The Court previously dismissed all claims against Defendants Halligan, Harney, Herbik, and

Clayton. See ECF Nos. 98, 123, 262, 264.

Amendment excessive force claim against Defendant Shade; (5) the SAC fails to

allege facts sufficient to state an Eighth Amendment deliberate indifference to

medical needs claim against any Defendant; and (6) Major has failed to allege facts

sufficient to state a First Amendment retaliation claim against Defendants Clark,

Ennis, Erickson, or Ohrman. See ECF No. 254 at 7-30. Major has filed a response

to the motion. See ECF No. 260.

II. Standard of Review

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the

complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (8d Cir. 1993). To survive dismissal,

the complaint must contain sufficient factual matter to state a claim that is plausible

on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). For purposes of a motion to dismiss, the Court accepts as

true the factual allegations of the complaint and views those facts and all reasonable

inferences they support in the light most favorable to the plaintiff. Phillips v. Cnty.

of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). Legal conclusions and “[t]hreadbare

recitals of the elements of a cause of action,” however, are not entitled to the

assumption of truth. Iqbal, 556 U.S. at 678.

‘In deciding a motion to dismiss, the court must consider only the complaint,

exhibits attached to the complaint, [and] matters of public record...” Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010). The court may consider documents “that

a defendant attaches as an exhibit to a motion to dismiss” only if they are

“undisputedly authentic” and “the [plaintiffs] claims are based [on them].” Estate of

Roman v. City of Newark, 914 F.3d 789, 796 (3d Cir.), cert. denied sub nom. Estate of

Roman v. City of Newark, New Jersey, 589 U.S. 918 (2019) (quoting Mayer, 605 F.3d

at 230).

III. Factual Allegations of the SAC

A. Medical Care at SCI-Albion (2017)

In May 2017, Major experienced chest pain while incarcerated at SCI-Albion

and was transferred to the infirmary. ECF No. 206, 4 23-25. On May 7, 2017, Dr.

Rekha Halligan evaluated him, diagnosed dehydration, and administered

intravenous fluids. Id. 26-27. Major remained in the infirmary for approximately

three days. Id. { 30.

On May 10, 2017, an EKG revealed that Major was experiencing a heart

attack. Id. § 32. He was transported to UPMC Hamot, underwent an emergency

cardiac catheterization, and received a stent to his right coronary artery. Id. { 33.

Upon discharge, Major was prescribed aspirin, atorvastatin, and nitroglycerin, and

advised to follow a heart-healthy diet. Id. § 36. After returning to SCI-Albion, Major

requested access to nitroglycerin, and Dr. Halligan advised that she first had to

consult a DOC cardiologist. Jd. §§ 39-40. The cardiologist later prescribed

nitroglycerin and recommended an oleoresin capsicum (“OC”) spray alert medical

card for Major. Id. 4] 41-43.

B. OC Spray Exposure at SCLAlbion (February—December 2019)

On February 24, 2019, Major was involved in an altercation with a corrections

officer, placed in restraints, and Defendant Shade was directed to deploy OC spray

against him. Id. § 62. Major informed Shade about his cardiac condition, but Shade

still deployed the spray. Id. 63-64. Major was then taken to the infirmary where

his eyes were rinsed, but he did not receive nitroglycerin at that time. Id. {| 65-67.

Defendant Ochs transported Major to the Restricted Housing Unit (““RHU”), where

he was denied a shower. A subsequent medical follow-up consisted of a brief

evaluation through the cell door on March 6, 2019. Id. 70-71, 76. Defendant

Edwards later denied Major’s request to be evaluated by a non-DOC physician. Id. §

79. Between March and December 2019, Major wrote to attorneys and the Governor

of Pennsylvania complaining about deliberate indifference to his medical needs. Id.

{{ 80, 82-83. Defendant Clark instructed corrections officers to destroy a draft of his

civil rights complaint. Id.

C. Transfers and Additional Allegations (2019-2022)

Major was transferred to SCI-Fayette in August 2019, where Defendants

Ennis and Erickson placed him in the RHU and then a step-down unit, and Erickson

denied him medical care. Id. {{ 84-87. Defendant Ohrman removed Major from a

shower line and confined him to his cell until shower time concluded; Major filed a

Prison Rape Elimination Act (“PREA”) grievance that he later agreed to withdraw.

Id. J 89-90.

Major was transferred to SCI-Greene in June 2020. Id. { 92. There, Defendant

Nicholson initially declined to approve nitroglycerin, though it was ultimately

authorized, and he was not issued an OC spray alert card. Id. {| 100-102. On

December 28, 2020, Major drafted a civil rights complaint. Id., § 105. He submitted

exhibits to his complaint for copying at the law library; those documents were missing

when he returned to pick up his copies. Id. 4] 105-108.

After Major returned to SCI-Fayette in late 2021, he was housed in a gang

management unit, where Defendants Herbik and Bright refused his requests for

nitroglycerin. Id. {§ 110, 113. On November 4, 2021, OC spray was deployed against

a neighboring inmate, and the spray migrated into Major’s cell through the

ventilation system. Jd. {§ 115-118. Major had warned Defendant Matiyasic about

his cardiac condition beforehand. Id. Defendant Carns observed Major afterward but

informed him only that a nurse would check on him, yet no nurse evaluated Major

until the next day. Id. 4 121-122.

In March 2022, Major suffered from gastrointestinal bleeding and respiratory

symptoms, including blood in his stool, hemoptysis, and shortness of breath. Id. □

125. He sought medical attention from Defendant Ohrman. A hematoma test

revealed internal bleeding, and after Major complained to DOC officials, he was

transported to UPMC Hamot for evaluation. Id. | 126-129.

IV. Discussion and Analysis

A. Defendants’ request for dismissal under Rule 12(b)(6) based on the

affirmative defense of failure to exhaust administrative remedies is

procedurally improper because it relies on declarations that are not

indisputably authentic.

Defendants first argue that Major failed to exhaust his administrative

remedies as to all claims except his claim against Defendant Matiyasic for use of OC

spray in a neighboring cell. Major offers two arguments in response. First, he asserts

that this Court has already determined that Major exhausted his claims based on the

denial of his nitroglycerin medication. Second, he argues that Rule 12(g)(2) bars the

Defendants from raising failure to exhaust administrative remedies as a basis for

dismissal because they did not raise this affirmative defense in their earlier motion

to dismiss. See ECF No. 260 at 5-8.

Regarding Major's first argument, the Court agrees that all claims relating to

the denial of his nitroglycerin medication, including access thereto, have been

exhausted. This Court previously held as much following a hearing conducted

pursuant to Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 306 (3d Cir. 2020) and Small

v. Camden County, 728 F.3d 265 (3d Cir. 2013). At that hearing, the Court found

that the delay in providing Major with his prescribed nitroglycerin pills presented an

“incident of an urgent or emergency nature” under DCADM 804, §1(A)(2). This

finding meant Major was excused from following the usual three-step grievance

procedure for that issue. See ECF No. 153. However, this determination was limited

to Major’s claims about access to his nitroglycerin medication. It does not mean that

Major exhausted his administrative remedies for his other claims—those relating to

different aspects of his medical care or his conditions of confinement.

Major argues that, under Federal Rule of Civil Procedure 12(g)(2), Defendants

forfeited their failure-to-exhaust defense as a ground for dismissal because they did

not raise it in their prior motions to dismiss his first Amended Complaint. See ECF

No. 260 at 5-8. Rule 12(g)(2) requires a defendant to consolidate all then-available

Rule 12 defenses in a single pre-answer motion and prohibits successive motions

raising defenses “available to the party but omitted from its earlier motion.” Fed. R.

Civ. P. 12(g)(2); see also Leyse v. Bank of Am. Nat. Assn, 804 F.3d 316, 320 (3d Cir.

2015). As explained below, however, Defendants’ motion to dismiss based on the

failure-to-exhaust defense must be denied not because they failed to raise it in a prior

Rule 12 motion but because they have improperly raised it in their Rule 12(b)(6).

motion. .

A defendant is. rarely permitted to raise a plaintiffs failure to exhaust

administrative remedies in a Rule 12(b)(6) motion to dismiss. This is because

“Iflailure to exhaust is an affirmative defense the defendant must plead and prove; it

is not a pleading requirement for the prisoner-plaintiff.” Small v. Camden Cty., 728

F.3d 265, 268 (3d Cir. 2013) (emphasis added) (citing Jones v. Bock, 549 U.S. 199,

212, 216-17 (2007)). Accordingly, failure to exhaust may be raised in a motion to

dismiss only where the failure to exhaust is apparent from the complaint itself or

indisputably authentic documents properly before the court. See Ray v. Kertes, 285

F.3d 287, 297 (3d Cir. 2002); Grp. Against Smog & Pollution, Inc. v. Shenango Inc.,

810 F.3d 116, 127 (3d Cir. 2016) (holding that “courts may consider exhibits attached

to a defendant’s motion to dismiss if it is ‘an undisputedly authentic document’ and

‘plaintiff's claims are based on the document”) (quoting Pension Benefit Guar. Corp.,

998 F.2d at 1196).

Defendants do not base their failure-to-exhaust defense on the face of Major’s

SAC or upon any document he attached as an exhibit to or relied upon in the SAC.

Instead, they have attached two affidavits to their brief in support of their motion to

dismiss. Kach affidavit is authored by a representative of the Secretary’s Office of

Internal Governance and Accountability (““SOIGA”), one by Michael Bell, and the

other by Amanda West. Bell attests to various facts relating to Major’s grievance

record, including that SOIGA’s “electronic records do not reflect any appeals of

Grievance #946105 to the Facility Manager nor any subsequent appeals to SOIGA of

Grievance #946105 submitted by Edward Major (LX6754).” ECF No. 254-1, p. 6.

Similarly, West attests that she “reviewed the electronic record for the grievance and

grievance appeals of Grievance #820912” and that the grievance was rejected as non-

compliant with DOC policies and that Major did not appeal this determination. Id.,

p. 10. Neither affidavit may be considered on a motion to dismiss.

The Court of Appeals for the Third Circuit has observed that where a

defendant moves to dismiss based on a failure-to-exhaust defense and “the

exhaustion issue turns on [ ] indisputably authentic documents related to [the

inmate’s] grievances,” we may consider those documents “without converting [a

motion to dismiss] to a motion for summary judgment.” Spruill v. Gillis, 372 F.3d

218, 223 (3d Cir. 2004). But this statement was made in the context of deciding

whether Spruill had procedurally defaulted his claims by failing to seek money

damages in his grievances and by failing to name one of the defendants in the

grievances. See id. at 232-235. The court stated that “[gliven that the exhaustion

issue turns on the indisputably authentic documents related to Spruill’s grievances,

we hold that we may also consider these without converting it to a motion for

summary judgment.” Id. at 223. As this Court has previously noted, the district

court in Spruill considered the grievance documents attached as exhibits to the

defendants’ motion to dismiss because Spruill referenced them in his complaint to

show exhaustion despite that he had no pleading obligation to do so. See Cooper v.

Martucchi, 2015 WL 4773450, at *2 (W.D. Pa. Aug. 12, 2015). In this respect, the

grievance documents in Spruill at least arguably satisfied the “indisputably

authentic” and “based or relied on” requirements for consideration on a motion to

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

1196 (3d Cir. 1993). These dual requirements severely limit a court’s authority to

consider grievance records on a motion to dismiss. And, in this case, whether the

plaintiffs own grievances are “indisputably authentic” documents is not an issue

presently before this court. Defendants have not produced grievance records.®

Rather, the two affidavits upon which they rely attest to actions they assert Major

took or failed to take during the grievance process. Furthermore, the factual

assertions of each affidavit are not based on the affiant’s personal knowledge, but on

electronic records reviewed by each that are not before the Court or available to

Major.‘ Affidavits and declarations are not indisputably authentic documents. See

Washington v. Link, 750 Fed. Appx. 84, 87 (3d Cir. 2018); Escalera v. Harry, 2016 WL

6694502, at *6 (M.D. Pa. Sept. 28, 2016), report and recommendation adopted, 2016

WL 6582065 (M.D. Pa. Nov. 7, 2016). In Washington, the Court of Appeals explained

3 Although Major filed certain grievance records as exhibits to his original complaint, see ECF No. 6-2,

pp. 2-15, Defendants do not rely upon any of them to establish their exhaustion defense.

4 Such affidavits could serve as a record for purposes of a motion for summary judgment, but

Defendants elected not to move in the alternative for summary judgment and comply with the

procedural requirements and safeguards of Western District Local Rule 56, including the filing of a

concise statement of materials facts to which Major would respond and can state additional facts in

opposition to the motion. See LCvR 56.

10

that declarations are neither “indisputably authentic for Rule 12(b)(6) purposes” nor

“conclusive even at the summary judgment stage if they are controverted by other

evidence...”. 750 Fed. Appx. at 87. And the Court of Appeals has specifically held

that “[rJeliance on declarations from prison officials or Corrections Department

administrators requires conversion [to summary judgment].” Berry v. Klem, 283 Fed.

Appx. 1, 3 (8d Cir. 2008). In this case, the Court declines to convert Defendants’

motion to one for summary judgment because Major has not been given notice that

the Court might do so. And because the affidavits proffered by Defendants in support

of their exhaustion defense are not properly considered on a motion to dismiss, their

motion will be denied to the extent it raises this affirmative defense. Defendants may

ultimately prevail on this defense as to some or all of Major’s non-nitroglycerin

claims, but not today.

At the same time, the Court rejects Major’s argument that Defendants have

forfeited or waived the exhaustion defense because they failed to raise it in their prior

motion to dismiss. As explained, the failure-to-exhaust defense is not a defense that

a defendant is obliged to raise under Rule 12; it is an affirmative defense that a

defendant must plead and ultimately prove. Small, 728 F.3d at 268. Defendants

may at any time move for summary judgment on this defense. See Fed. R. Civ. P.

56(b) (a party may file a motion for summary judgment “at any time until 30 days

after the close of all discovery”).® If they do so, they must follow the procedural

5 As a matter of general practice, the court permits a defendant to file an early motion for summary

judgment raising the failure-to-exhaust-defense without prejudice to the defendant’s right to later file

a motion for summary judgment on the merits of the plaintiffs claims. This approach is consistent

with the Court of Appeals’ mandate that the district court resolve exhaustion issues as a threshold

11

requirements of Rule 56 and LCvR 56, including the filing of a concise statement of

material facts, which may rely on affidavits and other documents beyond those

attached or relied upon in the SAC.

Defendants also have not forfeited under Rule 12(g)(2) the other grounds for

dismissal raised in their current motion. Most of these grounds are essentially

“failure to state a claim” arguments that challenge the sufficiency of the facts alleged

to support the essential element of the claim. To the extent the SAC changed or added

factual allegations or theories of liability from those of the first Amended Complaint,

Defendants have the right to move to dismiss the affected claims under 12(b)(6).

Here, the changes to the SAC are sufficient to spare Defendants from the

consolidation rule of Rule 12(g)(2). Furthermore, even if the court were to invoke

Rule 12(g)(2) and deny Defendants’ motion based on the consolidation rule, they

would be free to raise any “failure to state a claim” argument in a motion for judgment

on the pleadings. Rule 12(h)(2) specifically preserves the failure-to-state-a-claim

defense from waiver and authorizes a defendant to raise it in a motion for judgment

on the pleadings. See Fed. R. Civ. P. 12(h)(2). And any motion for judgment on the

pleadings asserting failure to state a claim would be evaluated under the same

standard as a Rule 12(b)(6) motion to dismiss. Ferencz v. Medlock, 905 F. Supp. 2d

656, 663 (W.D. Pa. 2012).

For the foregoing reasons, Defendants’ motion to dismiss is denied to the extent

it is based on the failure-to-exhaust administrative remedies affirmative defense.

matter before reaching the merits of the plaintiff's claims. See Brown v. Sprenkle, 827 Fed. Appx. 229,

231 (3d Cir. 2020).

12

The Court turns next to the merits of the DOC Defendants’ Rule 12(b)(6) arguments

and addresses each count of the SAC in turn.®

B. The SAC alleges facts sufficient to support Major’s excessive force claim

against Defendant Shade at Count I.

The Eighth Amendment’s proscription against cruel and unusual punishment

protects prisoners from the unnecessary and wanton infliction of pain. Hudson v.

McMillian, 503 U.S. 1, 5 (1992). In evaluating an Eighth Amendment excessive force

claim, a court asks “whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Jd. at 7. This

inquiry requires consideration of several factors, including “the need for the

application of force, the relationship between the need and the amount of force that

was used, [and] the extent of injury inflicted.” Id. (citing Whitley v. Albers, 475 U.S.

312, 321 (1986)).

Major’s allegations adequately support the viability of Major’s excessive force

claim against Shade. First, Major alleges that Shade sprayed him with OC spray

only after an altercation had ended and while he was already restrained in handcuffs

and lying face-down on the ground. See ECF No. 206, { 62. The application of force

after a threat has been neutralized raises substantial questions about whether the

force was necessary or was instead applied maliciously. See Brooks v. Kyler, 204 F.3d

6 Defendants argue that they are immune from Major's damages claims to the extent he brings them

against them in their official capacity. See ECF No. 254, pp. 11-13. This argument is moot, however,

because Major has clarified that he has not sued Defendants in their official capacities. See ECF No.

260, pp. 11-12.

13

102, 106 and 109 (3d Cir. 2000) (holding that jury could find excessive force where

officers continued to strike arrestee after he had been subdued).

Second, Major states that he expressly informed Shade that he had a serious

heart condition and that a DOC cardiologist had determined that OC spray should

not be used against him. ECF No. 206, § 63. Shade allegedly sprayed Major directly

in the face despite these warnings. Id., { 64. Ajury may reasonably find that Shade’s

use of OC spray under these circumstances was not part of a good-faith effort to

maintain or restore discipline but was done maliciously to cause harm. See Caldwell

v. Moore, 968 F.2d 595, 600 (6th Cir. 1992) (recognizing that pepper spray can

constitute excessive force depending on circumstances of its use).

Third, Major alleges that Shade made statements demonstrating indifference

to his serious medical needs, including “stop bitching, fuck your nitro, if you die then

it’s on you, not me. I don’t give a damn about your medication.” Id., { 67. Although

such statements are not independently actionable, they may be considered as

evidence that the force was applied maliciously and sadistically rather than in a good-

faith effort to maintain discipline.

Finally, Major alleges that after Shade sprayed him with OC spray, he directed

infirmary staff to confiscate or withhold his medically necessary nitroglycerin pills.

ECF No. 206, 67-68. A reasonable jury may find that such conduct supports both

malicious intent for purposes of an excessive force claim and, as discussed later in

this Opinion, deliberate indifference to Major’s serious medical needs, either or both

14

of which support an Eighth Amendment claim. Accordingly, Defendants’ motion to

dismiss Count I of the SAC will be denied.

C. The SAC states an Eighth Amendment deliberate indifference to medical

needs claim against Defendants Nicholson, Shade, Ochs, and Bright but not

against Defendants Edwards, Clark, Matiyasic, and Carns.

At Count Two, the SAC claims that Defendants Nicholson, Bright, and

Edwards acted with deliberate indifference to Major's serious medical needs. At

Count Three, the SAC asserts the same theory of liability against Defendants Shade,

Ochs, Clark, Matiyasic, and Carns. Nicholson and Bright are prison healthcare

officials while Edwards, Shade, Ochs, Clark, Matiyasic, and Carns are nonmedical

prison guards or administrative officials. After a discussion of the elements of an

Eighth Amendment deliberate indifference to medical needs claim, the court will

evaluate the sufficiency of Major’s claim against each of these eight Defendants.

To state a claim for deliberate indifference to serious medical needs, the

plaintiff must allege facts that satisfy both objective and subjective elements. Estelle

v. Gamble, 429 U.S. 97, 104 (1976); Pearson v. Prison Health Servs., 850 F.3d 526,

534 (3d Cir. 2017). First, the allegations must objectively support that the plaintiff

had a serious medical need. A medical need is “serious” where it 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 Cnty. Corr. Inst. Inmates

v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Conditions that result in chronic pain,

significant injury, or a substantial risk of serious harm if untreated satisfy this

standard. See Concepcion v. Russell, 2025 WL 2447792, at *4 (E.D. Pa. Aug. 25, 2025)

15

(citing Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003). Major’s cardiac condition

easily satisfies the serious medical need element of the claim. Second, the allegations

must support a plausible inference that each defendant acted with “deliberate

indifference” to that serious medical need. Deliberate indifference is a subjective

standard that requires the official to have known of and disregarded an excessive risk

to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837-40 (1994); Pearson,

850 F.3d at 535. It thus requires a showing more blameworthy than negligence or

medical malpractice. Id. Allegations of misdiagnosis, medical error, or disagreement

with the course of treatment, without more, do not state a constitutional claim.

Weigher v. Prison Health Servs., 402 Fed. Appx 668, 670 (3d Cir. 2010) (per curlam)

(stating that claim of misdiagnosis sounds in negligence as a malpractice suit and is

not deliberate indifference). Deliberate indifference may be found where a prison

official (1) intentionally refuses to provide medical care, (2) delays necessary medical

treatment for non-medical reasons, (3) prevents a prisoner from receiving needed or

recommended treatment, or (4) persists in a course of treatment known to be

ineffective in the face of a substantial risk of serious harm. Rouse v. Plantier, 182

F.3d 192, 197 (3d Cir. 1999); Lanzaro, 834 F.2d at 346—47; Spruill v. Gillis, 372 F.3d

218, 235-36 (3d Cir. 2004).

Where a plaintiffs theory is premised on a delay in treatment, the complaint

must plausibly support that the delay was attributable to non-medical reasons and

that it resulted in harm or unnecessary pain. Lanzaro, 834 F.2d at 347; Durmer v.

O’Carroll, 991 F.2d 64, 68-69 (3d Cir. 19938).

16

1. Nicholson

Major alleges that for reasons not grounded in medical judgment, Defendant

Nicholson personally refused to approve his prescribed nitroglycerin for

approximately one year despite Major’s ongoing complaints of severe chest pain and

risk of another heart attack, and that Nicholson relented only after Major sought

court intervention and defense counsel’s involvement. See ECF No. 206, {4 96, 98-

102, 113. Major also alleges that despite knowing of his medical condition, Nicholson

failed to give him an OC spray alert card. Id., ] 102. These allegations, accepted as

true, support a plausible inference that Nicholson knowingly delayed necessary

medical treatment for non-medical reasons. While Major acknowledges that his

medication was eventually approved, this does not necessarily negate a finding of

deliberate indifference based on a prolonged and unjustified delay in treatment. See

Rouse, 182 F.3d at 197; Washam v. Prince, 2025 WL 3634246, at *4 (M.D. Pa. Dec.

15, 2025) (citing Rouse). Accordingly, Defendants’ motion to dismiss Major’s Eighth

Amendment claim at Count II will be denied as to Nicholson.

2. Bright

Like his allegations against Nicholson, Major alleges that Defendant Bright

failed to provide his prescribed nitroglycerin medication despite knowledge of Major’s

cardiac condition and that he did not do so until prompted by counsel. ECF No. 206,

113, 131. Bright argues that Major’s allegations regarding the timing of receiving □

the nitroglycerin are inconsistent and therefore implausible. At the Rule 12(b)(6)

stage, however, the Court may not resolve factual disputes or weigh competing

17

reasonable inferences based on the facts. Fowler v. UPMC Shadyside, 578 F.3d 203,

210-11 (3d Cir. 2009). The SAC plausibly alleges that Bright, like Nicholson, had

knowledge of Major’s serious medical need but nevertheless delayed or withheld

prescribed medication for non-medical reasons. These allegations are sufficient at

the pleading stage to state an Eighth Amendment claim against Bright. The Court

will therefore also deny the motion to dismiss Count IT against Bright.

3. Edwards

The SAC does not allege facts to support that Defendant Edwards was

deliberately indifferent to Major’s serious medical needs. Major alleges only that

Edwards reviewed and denied several grievances concerning delays in receiving his

nitroglycerin medication, the adequacy of his diet, and Major’s request to see an

outside physician. ECF No. 206, {{ 47, 49, 79. These allegations support only

Edwards’ role in the administrative remedies review process, not personal

involvement in the underlying medical decisions or the provision of care. The Third

Circuit has repeatedly held that participation in the grievance process, standing

alone, is insufficient to establish the personal involvement required for liability under

§ 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Heleva v.

Walter, 2022 WL 3657185, at *1 n.3 (3d Cir. Aug. 25, 2022) (affirming dismissal where

allegations showed only grievance review and no personal involvement in the

underlying violation); Williams v. Clark, 2022 WL 1402052, at *2 (8d Cir. May 4,

2022).

18

Major’s allegations do not support an inference that Edwards possessed the

requisite subjective knowledge or intent to be deliberately indifferent. Deliberate

indifference requires that the defendant knew of and disregarded an excessive risk to

inmate health or safety. Farmer, 511 U.S. at 837. Here, Edwards relied on

representations that Major’s prescriptions had been ordered and that the standard

DOC diet was “heart healthy,” and to have deferred to nursing staff regarding

medical decisions. Such allegations reflect, at most, Edwards’ reliance on medical

judgments of other healthcare providers and do not suggest that Edwards consciously

disregarded a known substantial risk to Major’s health. See Durmer, 991 F.2d at 69

(non-medical officials are generally entitled to rely on medical professionals’

judgments). In responding to a grievance regarding his demands for nitroglycerin

pills, Edwards stated, “If you feel you need a Nitro contact security and they can

contact the nurse. Ifthe nurse feels you need the Nitro, it will be administered.” ECF

No. 206-7. Such response further confirms that Edwards, as a non-medical prison

official, was deferring to the judgment of medical personnel regarding Major’s medical

needs and belies that he had decision-making authority over Major’s care. Nor do the

allegations of the SAC support that Edwards caused or prolonged the delay in Major's

receipt of nitroglycerin medication. The SAC alleges that prescriptions had been

ordered by the medical director and that Edwards denied grievances while the

medication was allegedly delayed. The Third Circuit has drawn a distinction between

officials who directly deny or delay treatment for non-medical reasons and officials

who merely respond to grievances about treatment that is already being handled by

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medical staff. The former potentially face liability while the latter typically do not.

See Rouse, 182 F.3d at 197. Finally, Major’s allegations regarding the denial of his

request to be referred to an outside physician likewise do not state a claim against

Edwards absent factual allegations that Edwards, rather than medical personnel,

had authority to order such a referral and refused it for nonmedical reasons.

Furthermore, prisoners “do not have a constitutional right to choose their own

medical providers nor to obtain treatment of their own choosing.” Abdulrazzaq v.

Trump, 422 F. Supp. 3d 281, 291 (D.D.C. 2019) (citing Roberts v. Spalding, 783 F.2d

867, 870 (9th Cir. 1986) “A prison inmate has no independent constitutional right to

outside medical care additional and supplemental to the medical care provided by the

prison staff within the institution.”); United States v. Rovetuso, 768 F.2d 809, 825 (7th

Cir. 1985) (“The Eighth Amendment guarantees a prisoner treatment of his serious

medical needs, not a doctor of his own choosing.”).

Because Major’s allegations against Edwards are limited to grievance denials

and matters to which he reasonably deferred to medical staff, the court will grant

Defendants’ motion to the extent it requests dismissal of the Eighth Amendment

claim against Edwards.

4. Clark

Defendant Michael Clark served as the Superintendent at SCI-Albion. Id., □□ 7.

In support of his Eighth Amendment claim against Clark, Major alleges that he sent

at least seven inmate request slips to Clark relating to the prison’s failure to provide

Major with a heart-healthy diet. Id., { 48. Major also alleges that he informed Clark,

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or Clark was otherwise made aware, that Major had a medical condition requiring

ongoing access to medication, a heart-healthy diet, and protection from OC spray.

Clark dismissed Major’s inmate request slips for a heart-healthy diet after receiving

a response from prison dietary personnel that the diet Major was receiving was heart

healthy. Id. pp 48-49. These allegations, like those against Edwards, do not support

Clark’s personal involvement in any violation of Major’s Eighth Amendment rights.

Clark is a non-medical administrator who had no direct responsibility for Major’s

medical care or his diet. Although Major alleges that the care and diet he received

were inadequate, he acknowledges that he was under the care of prison medical and

dietary personnel. The obligations of nonmedical personnel such as prison

administrators differ from those of medical personnel. See Spruill v. Gillis, 372 F.3d

218, 236 (3d Cir. 2004) (standard for deliberate indifference for claim of denial of

proper medical care under the Eighth Amendment claims varies depending on

whether the defendant is a medical defendant or a nonmedical defendant); Miller v.

Nowakowski, 2025 WL 1938692, at *6 (W.D. Pa. July 14, 2025) (the duties owed to

inmates by nonmedical personnel do not include a state law duty of reasonable care

because no medical provider-patient relationship exists). Nonmedical prison

personnel will not be deemed to have acted with deliberate indifference to the serious

medical needs of an inmate under the Eighth Amendment “absent a reason to believe

(or actual knowledge) that prison doctors or their assistants are mistreating (or not

treating) a prisoner.” Jd. Furthermore, a nonmedical prison administrator “cannot

be deemed deliberately indifferent simply because the lay administrator did not

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challenge the physician’s care or respond directly to a prisoner's request for more or

different treatment.” Chambers v. Adams, 2023 WL 9100640, at *4 (W.D. Pa. July

31, 2023) (quoting Judge v. Medical Dep’t at SCI Greene, 2007 WL 1576400, at *4

(W.D. Pa. May 31, 2007)) (internal quotation marks omitted). Major’s request slips to

Clark did not provide the type of notice necessary to support a finding that Clark was

deliberately indifferent to Major’s serious medical or dietary needs. Because the

allegations of the SAC do not support Clark’s personal involvement in any delay in

Major’s receipt of his nitroglycerin medication or a heart-healthy diet, Major’s Eighth

Amendment claim against Clark will be dismissed.

5. Shade

Although Defendant Shade is a corrections officer with no alleged

responsibility for providing inmate medical care, he is alleged to have affirmatively

directed infirmary staff to confiscate Major’s nitroglycerin pills and to have personally

refused Major’s pleas for access to that prescribed medication. ECF No. 206, {| 67.

Thus Shade is alleged to have actively interfered with Major's prescribed medical

treatment despite his lack of responsibility or authority in this area. Id. Although

the standard for finding deliberate indifference is more demanding for non-medical

prison officials than medical personnel, even non-medical officials may face liability

if they intentionally interfere with prescribed treatment or prevent an inmate from

receiving needed medical care. See Rouse, 182 F.3d at 197; Lanzaro, 834 F.2d at

346-47. Because the allegations of the SAC support such a finding against Shade,

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Defendants’ motion to dismiss will be denied as to Major’s Eighth Amendment claim

against Shade.

6. Ochs

Defendant Ochs is another non-medical corrections officer. Major alleges that

Ochs escorted him to the RHU following the use of OC spray and did not permit him

to shower upon placement in his cell. ECF No. 206, {| 70-72. Major further alleges

that Ochs was expressly informed that his chronic heart condition was exacerbated

by OC spray, but nevertheless placed Major on a shower restriction following Major’s

exposure to OC spray that forced him to remain contaminated for more than twenty-

four hours. ECF No. 206, 9 71. Major also alleges that he experienced chest pain,

radiating pain to the arms, numbness in the left hand, pain in the back, neck, and

jaw, shortness of breath, and nausea while he was denied a shower to decontaminate.

ECF No. 206, § 72. At the pleading stage, these allegations plausibly support an

inference that Ochs knew of and disregarded a substantial risk of serious harm to

Major. The Court of Appeals for the Third Circuit has recognized that the deliberate

delay or denial of medical attention following an excessive force incident may

constitute deliberate indifference, particularly where officials are aware of an

inmate’s heightened medical vulnerability. See Giles v. Kearney, 571 F.3d 318, 330

(3d Cir. 2009) (evidence that officers failed to provide medical care after use of force

supported deliberate-indifference claim). The same reasoning applies to a deliberate

delay of OC decontamination where a prison official knows that the prisoner is

particularly vulnerable to adverse health effects from continued exposure to the

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chemical agent. And Ochs’ status as a non-medical corrections officer does not

immunize him from potential liability because a jury could consider his alleged

conduct active participation in exposing Major to a known risk of harm. Defendants’

motion to dismiss will therefore be denied as to Count ITI against Ochs.

7. Matiyasic

Major alleges that, on November 4, 2021, Defendant Matiyasic deployed OC

spray against a different inmate in a nearby cell and that the spray migrated through

a vent into Major’s cell and caused him to experience secondhand exposure. ECF No.

206, 9 115-118. Even accepting that Matiyasic was aware of Major’s heart

condition, the allegations of the SAC are too conclusory and vague to support a

plausible inference that Matiyasic was deliberately indifferent to his condition. The

facts alleged do not support an inference that Matiyasic discharged OC spray against

a different inmate knowing that it was likely to migrate through the ventilation

system in a sufficient quantity and concentration to cause harm to Major.

Defendants’ motion will be granted as to Count III against Matiyasic.

8. Carns

Defendant Carns is another non-medical corrections staff member. As

described in the SAC, his relevant interaction with Major was isolated and brief.

After Major’s secondary exposure to OC spray on November 4, 2021, Major sought

assistance by pressing his cell call button multiple times and by informing a chaplain

and officers, including Carns, who passed by his cell that he was vomiting blood and

needed help. ECF No. 206, § 121. Carns told Major that a nurse would be around to

24

check on his condition, but a nurse did not visit and examine Major until the following

day. Id. During that check, the nurse told Major that no one had told medical staff

about his request for assistance the previous day. Id., { 124. The nurse examined

Major and determined that he was “alright.” Jd., {| 124. Although Major described

his symptoms as including vomiting of blood, he acknowledges that he was examined

by a nurse the following day who determined that his condition was not serious and

did not require medical attention. While Major attributes comments to the nurse

that indicate that several staff members, including a chaplain and Carns, “who

passed by his cell,” did not advise medical of his request for medical attention, he also

acknowledges that he repeatedly used his call button to alert prison personnel of his

complaints. While Major did not receive the immediate attention he believed he

required, he was examined the following day, and the medical judgment of the

examining nurse was that his condition required no treatment. These facts do not

support a plausible inference that Carns acted with deliberate indifference to Major’s

serious medical condition. Accordingly, the Court will grant Defendants’ motion to

dismiss Count III against Carns.

D. Count IV of the SAC (First Amendment Retaliation) states a claim under

42 U.S.C. § 1983 against Defendant Clark but not against Defendants

Ennis, Erickson, and Ohrman.

Count IV of the SAC asserts a First Amendment retaliation claim under 42

U.S.C. § 1983 against Defendants Clark, Ennis, Erickson, and Ohrman. ECF No.

206, p. 22. To state such a claim, the plaintiff must allege facts that plausibly

establish three elements: (1) he engaged in constitutionally protected conduct; (2) a

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state actor took adverse action against him sufficient to deter a person of ordinary

firmness from exercising First Amendment rights; and (3) the plaintiffs protected

conduct was a substantial or motivating factor in the state actor’s decision to take the

adverse action. Rauser v. Horn, 241 F.3d 330, 333 (8d Cir. 2001); Watson v. Rozum,

834 F.3d 417, 422 (8d Cir. 2016). This framework reflects the balance between

protecting inmates’ First Amendment rights and affording appropriate deference to

prison officials in the administration of penal institutions. Rauser, 241 F.3d at 334.

In the prison context, the filing of grievances, complaints to staff, and civil

actions challenging prison conditions or official conduct constitutes protected activity

under the First Amendment. Mitchell v. Horn, 318 F.3d 523, 530 (38d Cir. 2003);

Watson, 834 F.3d at 422. An inmate need not plead or prove that the underlying

grievance was meritorious; it is sufficient that the conduct constituted a good-faith

exercise of the right to petition for redress of grievances. Watson, 834 F.3d at 422.

At the same time, the First Amendment does not protect conduct that violates prison

rules or constitutes threats, harassment, or disruptive behavior, and courts must

remain mindful of the unique institutional setting in which prisoners’ rights are

exercised. Id. at 422-23.

The adverse-action element requires allegations that the defendant took action

“sufficient to deter a person of ordinary firmness from exercising his constitutional

rights.” Rauser, 241 F.3d at 333. The inquiry is objective and does not turn on

whether the particular plaintiff was actually deterred. Allah v. Seiverling, 229 F.3d

220, 225 (3d Cir. 2000). In the prison setting, actions such as placement in restrictive

26

housing, loss of privileges, transfer to less desirable housing or institutions, issuance

of false misconducts, confiscation of property, denial of program access, or other

actions imposing more than de minimis hardship may qualify as adverse action. Id.

at 225-26; Watson, 834 F.3d at 423. By contrast, trivial inconveniences or minor

annoyances that would not deter a person of ordinary firmness do not satisfy this

element. Allah, 229 F.3d at 225.

To plead causation, the prisoner must allege facts permitting a plausible

inference that the protected conduct was a substantial or motivating factor in the

adverse action. Rauser, 241 F.3d at 333; Watson, 834 F.3d at 422. At the pleading

stage, such an inference may arise from allegations of unusually suggestive temporal

proximity between the protected activity and the challenged action, a pattern of

antagonism following the protected conduct, or statements or other circumstantial

facts suggesting retaliatory motive. Lauren W. ex rel. Jean W. v. DeFlaminis, 480

F.3d 259, 267 (3d Cir. 2007). Conclusory assertions that an official acted “in

retaliation,” without factual content linking the protected conduct to the adverse

action, are insufficient to support a plausible inference of causation. Watson, 834

F.3d at 424.

Although not a part of a plaintiff's prima facie pleading burden, the Court of

Appeals for the Third Circuit applies a burden-shifting framework once a plaintiff

has alleged facts to support the essential elements of retaliation. If the plaintiff

establishes a prima facie case, the burden shifts to the defendant to show that the

same action would have been taken for reasons reasonably related to legitimate

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penological interests even in the absence of the protected conduct. Rauser, 241 F.3d

at 334. At the Rule 12(b)(6) stage, however, dismissal on this basis is appropriate

only where the existence of a legitimate penological justification is apparent on the

face of the complaint. Watson, 834 F.3d at 426.

1. Clark

The facts alleged in the SAC support plausible inferences as to each element

of a retaliation claim against Defendant Clark. Both Major’s sending of letters

between March and December 2019, seeking the assistance of counsel and public

officials, including the Governor of Pennsylvania, regarding his prison conditions,

and his preparation of a civil rights complaint challenging treatment he believed to

be deliberately indifferent to his serious medical needs, see ECF No. 206, q{ 80-883,

constitute protected conduct. Mitchell, 318 F.3d at 530 (recognizing that an inmate’s

efforts to seek legal redress—including communicating with counsel, petitioning

public officials, and preparing or filing civil rights actions—constitute protected

activity under the First Amendment). Clark’s alleged direction to confiscate and

destroy Major’s civil rights complaint was an action sufficiently adverse to deter a

person of reasonable firmness from exercising constitutional rights. See Allah, 229

F.3d at 225 (defining adverse action); Mitchell, 318 F.3d at 530-31 (holding that

confiscation of legal materials and threats for filing grievances may support a

retaliation claim). And the direct connection between Major’s protected conduct and

Clark’s alleged adverse action, as well as the temporal proximity between the two

satisfy the causation element of the claim. Because Major’s allegations satisfy each

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element of his First Amendment retaliation claim against Clark, Defendants’ motion

to dismiss will be denied as to his claim.

2. Ennis, Erickson, and Ohrman

In contrast to the allegations against Defendant Clark, the allegations against

Defendants Ennis, Erickson, and Ohrman do not support a retaliation claim because

they do not plausibly connect any of these Defendants to an adverse action. Instead,

Major alleges, in generalized terms, that “the SCI-Albion Defendants” were aware of

his heart condition, grievances, and efforts to bring a civil rights action. Such

collective pleading, without factual allegations describing what any of these

Defendants personally did, when they did it, and how their actions were causally

connected to his protected activity and the confiscation or destruction of legal

materials, is insufficient to state a retaliation claim against these three Defendants.

See, e.g., Chavarriaga, 806 F.3d at 222. The SAC does not allege that Ennis,

Erickson, or Ohrman confiscated Major’s legal papers, directed their destruction,

threatened Major, or otherwise took an adverse action against him in response to his

protected conduct. The First Amendment retaliation claim at Count IV fails to state

a claim against Defendants Ennis, Erickson, and Ohrman and will be dismissed as

to these Defendants.

E. Count V fails to state an Eighth Amendment claim under 42 U.S.C. § 1983

against Defendant Harry in her individual capacity but a claim for

injunctive relief against her in her official capacity may proceed.

Count V of the SAC asserts an Eighth Amendment claim under 42 U.S.C. §

1983 against Defendant Harry, the Secretary of the Department of Corrections, based

29

on allegations that she was deliberately indifferent to Major’s serious medical needs.

ECF No. 206, p. 24. Like any person against whom a claim is asserted under § 1983,

a supervisory official such as Harry faces liability only if she was personally involved

in a constitutional violation. The doctrine of respondeat superior does not apply ina

§ 1983 action. Rode, 845 F.2d at 1207.

A supervisory official’s personal involvement may be supported by allegations

that she: (1) established or maintained a policy, practice, or custom that directly

caused the violation; (2) personally directed the unconstitutional conduct; or (3) had

contemporaneous knowledge of the violation and acquiesced in it. A.M. ex rel. J.M.K.

v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004); Barkes v. First Corr.

Med., Inc., 766 F.3d 307, 316-20 (3d Cir. 2014) (recognizing supervisory liability for

failure to implement adequate policies to prevent known risks to inmate safety), rev'd

on other grounds sub nom. Taylor v. Barkes, 575 U.S. 822 (2015); Palakovic v. Wetzel,

854 F.3d 209, 224-28 (3d Cir. 2017) (allowing claims to proceed where plaintiffs

alleged facts to support senior DOC officials were aware of systemic risks and failed

to act).

Allegations that an official received grievances, letters, or complaints after the

fact and factually unsupported allegations that an official acquiesced in or adopted a

policy condoning misconduct do not support that official’s personal involvement. See

Mincy v. Chmielsewski, 508 Fed. Appx. 99, 104 (3d Cir. 2018); Beale v. Wetzel, 2015

WL 2449622, at *5 (W.D. Pa. May 21, 2015).

30

The SAC does not allege facts to support any basis for supervisory liability

against Harry under § 1983. Major does not allege that Secretary Harry personally

directed any use of OC spray against him, personally approved its use in

circumstances posing a substantial risk to medically vulnerable inmates, or had

contemporaneous, particularized knowledge of Major's specific medical

contraindication and nonetheless acquiesced in exposing him to OC spray. Nor does

the SAC identify a specific policy promulgated by Secretary Harry that mandates or

authorizes the use of OC spray against medically vulnerable inmates. To the

contrary, Major asserts that DOC policies recognize the need to protect medically

vulnerable inmates from OC spray exposure, which undermines any inference that

Secretary Harry implemented a policy encouraging or condoning unconstitutional

conduct. Allegations that Secretary Harry failed to implement additional policies,

trainings, or procedures are, without more, also insufficient to support personal

involvement. Iqbal, 556 U.S. at 676 (rejecting supervisory liability premised on

generalized failures to act); Rode, 845 F.2d at 1207.

While the foregoing principles preclude a § 1983 claim for damages against

Harry in her individual capacity, they do not foreclose an official-capacity claim for

prospective injunctive relief.7 Major alleges he faces an ongoing and substantial risk

of serious harm from OC spray exposure, that Secretary Harry possesses authority

to prevent such exposure, and that absent injunctive relief he faces prospective

7 Although Major has disclaimed any official capacity claims against the other DOC Defendants, he

States that he is advancing an official capacity claim against Defendant Harry. See ECF No. 260, p.

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irreparable harm. These allegations are sufficient, at the pleading stage, to support

a claim for prospective injunctive relief against Harry in her official capacity. See

Palakovic, 854 F.3d at 223-28 (recognizing official-capacity claims for injunctive

relief against senior DOC officials where plaintiffs alleged ongoing, systemic risks to

inmate safety); Barkes, 766 F.3d at 316-20.

Accordingly, the Court will grant the Defendants’ motion to dismiss Count V

of the SAC to the extent it seeks damages against Harry in her individual capacity

but deny the motion to the extent Count V seeks prospective injunctive relief against

Harry in her official capacity.

V. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss Major’s SAC will be

GRANTED IN PART and DENIED IN PART.

The motion will be GRANTED as to (1) Count Two (deliberate indifference to

medical needs) against Defendant Edwards only; (2) Count Three (deliberate

indifference to medical needs) against Defendants Clark, Matiyasic, and Carns only;

(3) Count IV (First Amendment retaliation) against Defendants Ennis, Erickson, and

Ohrman only; and (4) Count V (deliberate indifference to medical needs) against

Defendant Harry for money damages in her individual capacity. These claims will be

dismissed with prejudice as Major has had multiple opportunities to amend and the

court finds that further amendment would be futile and inequitable.

The motion will be DENIED as to (1) Defendants’ request for dismissal of

certain claims based on the affirmative defense of failure to exhaust administrative

32

remedies;8 (2) Count Two (deliberate indifference to medical needs) against

Defendants Nicholson and Bright; (3) Count Three (deliberate indifference to medical

needs) against Defendant Shade and Ochs; (4) Count IV (First Amendment

retaliation) against Defendant Clark; and (5) Count V (deliberate indifference to

medical needs) against Defendant Harry for injunctive relief in her official capacity.

An appropriate Order follows.

BY THE COURT:

RICHARD A. LANZILLO f C

CHIEF UNITED STATES MAGISTRATE JUDGE

8 This denial is without prejudice to Defendants’ right to reassert the affirmative defense in a properly

supported motion for summary judgment.

33