NITZA I. QUIÑONES ALEJANDRO, District Judge.
Plaintiff Paul Shifflett ("Plaintiff"), a state inmate proceeding pro se, filed a civil action pursuant to 42 U.S.C. § 1983 ("§1983"), against numerous individuals, averring that they violated his First and Eighth Amendment constitutional rights. [ECF 1]. Specifically, Plaintiff alleges that these individuals violated his First Amendment rights by retaliating against him for filing grievances, and violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs while incarcerated.
Before this Court are four separate motions to dismiss filed pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), each seeking the dismissal of Plaintiff's complaint for failure to state a claim on which relief can be granted; to wit: a motion by Joseph Korszniak, Dr. Ronald J. Burkholder, and Dr. Michael J. Bianco (collectively, "Corrections Defendants"), [ECF 16], a motion by Dr. Joseph P. Mulligan, [ECF 20], a motion by Dr. Pamela Roehm, [ECF 21], and a motion by Dr. Muhammad Golsorkhi.
For the reasons stated herein, Moving Defendants' motions to dismiss are granted.
As noted, Plaintiff asserts claims for the violations of his First and Eighth Amendments rights, premised upon a retaliatory prison transfer and deliberate indifference to his serious medical need, respectively. When ruling on a motion to dismiss, this Court must accept as true all factual allegations in Plaintiff's complaint, and construe the complaint in the light most favorable to Plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). The following is a summary of the allegations in Plaintiff's complaint; to wit:
When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler, 578 F.3d at 210-11 (citing Iqbal, 556 U.S. at 677). The court must determine whether the plaintiff has pled facts sufficient to show a plausible entitlement to relief. Fowler, 578 F.3d at 211. If the pled facts only allow the court to infer the mere possibility of misconduct, then the complaint has only alleged, and not shown, that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)) (emphasis added). Thus, the plaintiff "must allege facts sufficient to `nudge [his or her] claims across the line from conceivable to plausible.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. After construing the complaint in the light most favorable to the plaintiff, if the court finds that the plaintiff could not be entitled to relief, it can dismiss the claim. Fowler, 578 F.3d at 210.
While complaints and submissions filed by pro se litigants are subject to particularly liberal interpretation and are held "`to less stringent standards than formal pleadings drafted by lawyers,'" Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)), the court still must ensure that a pro se complaint contains "`sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Fantone, 780 F.3d at 193 (citing Iqbal, 556 U.S. at 678).
In their motions to dismiss, Moving Defendants argue several grounds for dismissal, inter alia, that Plaintiff failed to exhaust his administrative remedies and failed to plead facts sufficient to establish both deliberate indifference and retaliation. These arguments will be discussed seriatim.
Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1955, 42 U.S.C. § 1997e (the "PLRA") applies to actions brought by an inmate with respect to prison conditions. 42 U.S.C. § 1997e(a). Under the PLRA, prison conditions include retaliation and deliberate indifference claims. See Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) (applying the PLRA to an inmate's First, Fifth, Eighth, and Fourteenth Amendment claims); Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001) (applying the PLRA to an inmate's First Amendment retaliation claim). An inmate must, however, exhaust all administrative remedies before filing suit and, if the inmate fails to do so, the claims must be dismissed. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 101 (2006). Ordinarily, a plaintiff's claims can be reinstated after the plaintiff has rectified the deficiency by exhausting the administrative remedies; however, if the deficiency of the claims cannot be rectified because the administrative remedies cannot be properly exhausted, then the claims can never be reinstated. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) (holding that dismissal for failure to exhaust is generally without prejudice and does not bar reinstatement of the suit unless it is too late to exhaust the administrative remedies).
The Supreme Court has held that administrative exhaustion requires procedurally proper exhaustion. That is, a prisoner must have complied with whatever regulations the prison established to govern inmate grievances and, in particular, the exhaustion requirement is not satisfied if a prisoner files an untimely or otherwise procedurally defective grievance or appeal. Woodford, 548 U.S. at 89; see also, Spruill v. Gillis, 372 F.3d 218, 222, 231 (3d Cir. 2004). District courts in this Circuit should use the prison's grievance system policy to determine whether a prisoner failed to properly exhaust a claim by way of procedural default. Spruill, 372 F.3d at 231. In Pennsylvania, the grievance system policy is set forth in the Inmate Grievance System Procedures Manual ("DC-ADM 804").
Here, the allegations in Plaintiff's complaint, along with the exhibits attached and referenced therein, show that Plaintiff did not administratively exhaust his claims and will be unable to do so in the future. Despite having effectively followed DC-ADM 804 in the process of filing two grievances and two initial appeals, Plaintiff ultimately failed to abide by DC-ADM 804 in his final stage of appeal. As noted, on October 12, 2016, Plaintiff submitted an appeal to the Chief Secretary of Inmate Grievance and Appeal ("SOIGA"). According to the Final Appeal Decision Dismissal notice issued by SOIGA on October 20, 2016, Plaintiff's appeal was not in accordance with DC-ADM 804, as the appeal failed two procedural requirements: (1) Plaintiff's appeal was untimely, as Plaintiff did not submit it within the requisite fifteen working days from the date of the Facility Manager's decision, and (2) Plaintiff failed to provide SOIGA with the required documentation to consider his appeal. (Compl. Ex. A at 6; Compl. Ex. B at 6). Indeed, the Facility Manager's decisions were issued on July 27, 2016, (Compl. Ex. A at 4; Compl. Ex. B at 4), and Plaintiff did not file his appeal of those decisions until October 12, 2016, fifty-three working days after the Facility Manager's decision and, thus, thirty-eight days late.
Plaintiff's Eighth Amendment Deliberate Indifference Claims
Plaintiff's Eighth Amendment claims are premised on allegations that Moving Defendants were deliberately indifferent to Plaintiff's serious medical needs in treating his broken jaw and subsequent pain. In their motions to dismiss, Moving Defendants argue that Plaintiff has failed to allege facts sufficient to establish the requisite deliberate indifference. This Court agrees with Moving Defendants' argument, but only as applied to those Defendants who are physicians and dentists.
Under the Eighth Amendment, which prohibits cruel and unusual punishment, prison officials are required to provide basic medical care to inmates. U.S. Const. amend. XIII; see Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). In order to assert a viable Eighth Amendment medical care claim, an inmate "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. Thus, a plaintiff must allege facts sufficient to show: (1) that he or she had a serious medical need and (2) that a defendant was deliberately indifferent to that serious medical need.
Deliberate indifference requires the defendant to have been subjectively aware of the risk of harm to the inmate and to have consciously disregarded that risk. Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Thus, claims of mere negligence or medical malpractice do not amount to deliberate indifference. Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 193 n. 2 (3d Cir. 2001). Additionally, "where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." U.S. ex rel. Walker v. Fayette Cnty., Pa., 599 F.2d 573, 575 n. 2 (3d Cir. 1979) (citation omitted) (emphasis added). A plaintiff's disagreements and displeasure with his or her medical care are also insufficient to state an Eighth Amendment claim. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990); Spruill, 372 F.3d at 235.
Here, Plaintiff has failed to allege sufficient facts to establish that Defendant Doctors consciously disregarded a serious risk of harm to his health.
Although Plaintiff's allegations regarding Defendant Dr. Golsorkhi differ in some respects from the allegations against the other Defendant Doctors, the allegations against Defendant Dr. Golsorkhi also fail to plead facts sufficient to establish an Eighth Amendment claim. Specifically, Plaintiff alleged that Defendant Dr. Golsorkhi did not adequately treat his pain after surgery and refused to provide Plaintiff with the medication and dosage that Defendant Dr. Roehm, the doctor who performed the surgery, had recommended. Plaintiff appears to argue that this failure to provide Plaintiff with medication in accordance with Defendant Dr. Roehm's recommendations indicates that Defendant Dr. Golsorkhi was deliberately indifferent to his pain. Plaintiff's argument is misguided, since disagreements among doctors over a patient's medical care do not establish deliberate indifference, as there are "several acceptable ways to treat an illness." White, 897 F.2d at 110; see also DeFranco v. Wolfe, 387 F. App'x 147, 158 (3d Cir. 2010).
Generally, "as long as a physician exercises professional judgment[,] his behavior will not violate a prisoner's constitutional rights." Brown v. Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (citing Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982)). Further, when a prison doctor disagrees with a wholly private doctor's recommendation for an inmate's treatment, the prison doctor's judgment does not amount to deliberate indifference, absent evidence that the prison doctor had non-medical or malicious reasons for rejecting the other doctor's recommendation. Baez v. Falor, 2012 WL 4356768, at *45 (W.D. Pa. 2012) (holding that a prison doctor in the aforementioned circumstances was not deliberately indifferent in the absence of allegations that (1) he had believed the private doctor's recommendation was medically necessary and yet chose to ignore the recommendation or (2) that he diverted from the recommendation for non-medical reasons). Plaintiff's complaint contains no allegations that Defendant Dr. Golsorkhi diverted from Defendant Dr. Roehm's recommendation for any non-medical or malicious reasons. To the contrary, Plaintiff alleged that Defendant Dr. Golsorkhi would not follow Defendant Dr. Roehm's recommendation "because of [the] long-term damage it could do to plaintiff." (Compl. at ¶21). Thus, it appears that Defendant Dr. Golsorkhi expressed concern for both Plaintiff's long-term health and his current pain in choosing to treat Plaintiff with a different medication regimen. Such a decision is well within a doctor's professional judgment. Because Plaintiff has not pled facts sufficient to establish that Dr. Golsorkhi's professional actions violated Plaintiff's Eighth Amendment rights, this claim is dismissed.
Plaintiff's First Amendment Retaliation Claims
In his First Amendment retaliation claim against Moving Defendants, Plaintiff alleges that he was transferred from one prison to another in retaliation for the complaints and grievances he filed regarding his medical care. Moving Defendants argue that Plaintiff failed to allege facts sufficient to establish a retaliation claim. This Court agrees.
In order to assert a viable retaliation claim, a plaintiff must allege facts sufficient to show that: (1) the conduct that prompted the alleged retaliation was constitutionally protected conduct,
Here, Plaintiff's retaliation claims fail as a matter of law against all Moving Defendants because Plaintiff failed to plead any facts to show Moving Defendants' personal involvement in the adverse action, i.e. the prison transfer. Nowhere in Plaintiff's complaint did Plaintiff allege the identity of the individual or individuals responsible for his transfer. Regarding the Defendants who are private doctors, Defendants Dr. Roehm and Dr. Mulligan, Plaintiff did not allege any facts to support a First Amendment claim.
State Law Medical Malpractice Claims
Moving Defendants also argued that Plaintiff has not pled sufficient facts to assert state law medical malpractice claims.
Leave to Amend
The Third Circuit has directed district courts to provide a civil rights plaintiff with an opportunity to file an amended complaint when the original complaint is subject to dismissal under Rule 12(b)(6), "unless such an amendment would be inequitable or futile." Phillips, 515 F.3d at 245. This Court finds that any attempt to amend Plaintiff's complaint would be legally futile because his claims are barred for failure to fulfill the PLRA administrative exhaustion requirement—a deficiency which is impossible for Plaintiff to rectify in light of his procedural default in the grievance appeal process. Therefore, leave to amend the complaint is denied.
For the reasons stated herein, Moving Defendants' motions to dismiss are granted, and Plaintiffs' claims against Moving Defendants are dismissed. An Order consistent with this Memorandum Opinion follows.
Plaintiff also added a hand-written note on his copies of the Facility Manager's decisions suggesting that he did not receive the decisions until sixty days after the issuance date. (Compl. Ex. A at 4; Compl. Ex. B at 4). However, because the DC-ADM 804 does not state that an inmate's time to appeal begins on the date that an inmate receives a Facility Manager's decision, but rather on the date of the decision itself, the date of Plaintiff's receipt of the decision is irrelevant. [ECF 24-2 Ex. B at 18; DC-ADM 804 § 2(B)(1)(b)]. Furthermore, DC-ADM 804 expressly provides a procedure available to an inmate if he or she desires an extension of the appeal deadline—specifically, if an inmate experiences an undue delivery delay for a variety of reasons, the inmate must notify the Chief Grievance Officer with a request and explanation. [ECF 24-2 Ex. B at 18; DC-ADM 804 § 2(B)(1)(b)]. Not only is Plaintiff's complaint devoid of any suggestion that he followed this procedure and requested an extension, but the comprehensive grievance file subpoenaed from SOIGA contains no record of such a request. [ECF 24 Ex. A]. Additionally, Plaintiff made no mention of the alleged delivery delay in his complaint or his final appeals themselves. (Compl. Ex. A at 6; Compl. Ex. B at 6).
Though unnecessary, as Plaintiff's own complaint and exhibits provide the facts which demand the aforementioned result, this Court is permitted to consider the language of the grievance policy itself because the policy is "an undisputedly authentic document that a defendant attach[ed] as an exhibit to a motion to dismiss [since] the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also Spruill, 372 F.3d at 223 (holding courts may consider undisputedly authentic documents "related to [a plaintiff's] grievances" in evaluating a §1983 claim for administrative exhaustion under the PLRA); Dade v. Gaudenzia DRC, Inc., 2014 WL 47766, at *3 (E.D. Pa. 2014) (where a court considered the prison grievance policy attached by defendants to their motion to dismiss, in evaluating a §1983 claim for administrative exhaustion under the PLRA).