Judge Caldwell
(Judge Caldwell)
MEMORANDUM I. IntroductionPro se plaintiff, Ronald Stockton, an inmate currently confined at the State Correctional Institution at Houtzdale (SCI-Houtzdale), Pennsylvania, filed this civil-rights action pursuant to 42 U.S.C. § 1983. Presently before us are Defendants' motion to dismiss the Amended Complaint and motion to stay discovery pending our resolution of their motion to dismiss. For the reasons that follow, the motion to dismiss will be granted in part and denied in part, and the motion to stay discovery granted.
Defendants' motion to dismiss will be granted as to all claims except Stockton's Eighth Amendment excessive-force claim and his Eighth Amendment medical claims related to the events of December 20, 2013. Defendants shall respond to Stockton's outstanding discovery within thirty days.
II. Standard of ReviewA motion to dismiss under Fed. R. Civ. P. 12(b)(6) authorizes the dismissal of a complaint "for failure to state a claim upon which relief can be granted." Under Fed. R. Civ. P. 12(b)(6), the district 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 is entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). The court may also rely on exhibits attached to the complaint and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
Pursuant to Fed. R. Civ. P. 8(a), a complaint need only "include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." "[T]he factual allegations of a complaint 'must be enough to raise a right to relief above the speculative level' and the complaining party must offer 'more than labels and conclusions' or 'formulaic recitation of the elements of a cause of action.'" W. Run Student Hous. Assocs., LLC. v. Huntingdon Nat'l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (quoting Bell Atl. Copr. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). Legal conclusions are "not entitled to the assumption of truth." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)(citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. at 1964). Courts "disregard such legal conclusions." In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017)(citing Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949.
Additionally, pro se pleadings must be liberally construed and "held 'to less stringent standards than formal pleadings drafted by lawyers.'" Fantone v. Latini, 780 F.3d 184 (3d Cir. 2015) (citing Haines v. Kerner, 404 U.S. 519, 520 - 21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Pro se 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 of futile. See Estate v. Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 861 (3d Cir. 2014). 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).
With this standard in mind, the following is the background to this litigation, as Stockton alleges it.
III. Allegations of the Amended ComplaintRonald Stockton, a state prisoner in the custody of the Pennsylvania Department of Corrections (DOC), is currently confined at SCI-Houtzdale. The events giving rise to this lawsuit occurred while he was housed in SCI-Smithfield's Restricted Housing Unit (RHU). Named as defendants are the following DOC employees: Secretary Wetzel; Superintendent Fisher; Deputy Oliver; Major Myers; Corrections Classification Program Manager (CCPM) Biser; Deputy Whitesal; Lt. Allison; Lt. Bard; Sgt. Miller; Corrections Officer (CO) Willinsky; CO Harper; CO Wilson; CO Barndt; Nurse Melissa Houck; Hearing Examiner (Himes) Amy Himes; and CO Parks. (ECF No. 33, Am. Compl.)
Plaintiff alleges Defendants retaliated against him because of his legal activities. The retaliation occurred over a three-month period, the last day of September through December 2013. Defendants also conspired to violate his First and Eighth Amendment rights by either assaulting him, failing to protect him from assault, or failing to provide him with medical care. Stockton additionally claims HEX Himes violated his due process rights in connection with two misconduct hearings. (Id.)
Stockton avers that on September 30, 2013, a day before he was to testify in a matter against the DOC, CO Kanagy (non-defendant) "opened [his] cell door from the bubble at 2:34 to 2:36 p.m. and told [him] from the bubble window to come out of [his] cell so that he can 'kick [his] ass'" before the hearing. (Id., p. 3 and ECF No. 33-1, p. 1). Stockton wrote to Deputy Whitesal, advising him of the incident and requesting that an allegation of abuse complaint be filed with the DOC. (ECF No. 33-1, p. 1). Deputy Whitesal forwarded Stockton's allegations to Captain Goss (non-defendant) of the Security Office for review as well as Deputy Oliver and Major Myers. (Id.) Stockton does not assert he was physically assaulted or approached by CO Kanagy.
On November 15, 2013, while housed in the RHU Psychiatric Observation Cell (POC), Stockton was placed in pre-hearing confinement following his receipt of two misconducts: B602771 (use of abusive language toward an employee or their family) and B602772 (threatening an employee, use of abusive language toward employee or their family, refusing to obey an order, and presence in an unauthorized area). (ECF No. 33-1, pp. 7 - 8). The original misconducts were dismissed without prejudice by HEX Himes who allowed the reporting staff member "the opportunity to determine if they wished to resubmit the misconduct for consideration." (Id.)
Both misconducts were re-written and re-issued on December 3, 2013. (Id.) Stockton was served with both misconducts the day before he was released from the POC. At his December 11, 2013, misconduct hearing, Stockton submitted a written version of the events for consideration. (Id.) Stockton was found guilty of both misconducts and received a thirty-day disciplinary sanction on each offense. HEX Himes directed Stockton's disciplinary sanctions be served concurrently with an effective date of December 11, 2013. (Id.)
Stockton appealed the result of both misconduct hearings to the Program Review Committee (PRC). (Id.) The PRC consisted of CCPM Biser, Unit Manager Morder (non-defendant), and Deputy Whitesal. (Id.) Stockton claimed both misconducts were originally dismissed because HEX Himes did not hold the hearings within the time frame established by DOC policy and thus they could not be re-written or re-issued. (ECF No. 33, p. 3). Additionally, he claimed that HEX Himes, who is not a Notary, was not qualified to perform the duties of a Hearing Examiner. (Id., p. 4; ECF No. 33-1, pp. 5-6).
On December 17, 2013, the PRC issued a decision noting that HEX Himes followed DOC policy when she allowed the two misconducts to be dismissed, re-written and re-issued. (ECF No. 33-1, p. 7). The PRC found "no violation of law or procedure as it relate[d] to the service and hearing of the misconduct." (Id.) However, the PRC agreed with Stockton that his disciplinary sentence should have been retroactively applied to the date he was placed in pre-hearing confinement for the misconducts, November 15, 2013. The PRC adjusted his sanction accordingly. (Id.) Stockton alleges Deputy Oliver, Deputy Whitesal, Major Myers and CCPM Biser conspired to leave him in the RHU following the decision of the PRC that his disciplinary sentence expired on December 15, 2013. (Id., p. 9).
On December 20, 2013, after Stockton alerted Sgt. Miller and Lt. Bard that he was being held in the RHU past his disciplinary sentence, they directed his cell door to be opened and he was then assaulted by Defendants CO Willinsky, CO Barndt, CO Wilson and CO Harpster. (Id., p. 7; ECF No. 33-1, pp. 5, 9-16). CO Parks opened Stockton's cell door from the bubble. (ECF No. 33, p. 5). Defendants later told Stockton his door was opened by accident. Regardless, once the cell door opened, Plaintiff fled to avoid a confrontation with the officers. (Id., p. 6). He exited the cell and refused orders to return to it. (ECF No. 33-1, pp. 9-16). The officers used force to secure Stockton. (Id.) The following individuals were involved in this event: Lt. Bard, CO Willinsky, CO Barndt, CO Wilson, CO Park, CO Harpster, Sgt. Miller. Defendants CO Barndt, CO Wilson, CO Harpster and CO Willinsky were injured during this altercation. (Id., p. 7; ECF No. 33-1, pp. 20- 21 and 25-26). A portion of the encounter was captured on video. (Id., pp. 27-28).
Nurse Mellissa Houck denied Stockton any medical treatment for his facial injures and wounds following the assault. (ECF No. 33, p. 7). Lt. Allison contacted PSP Huntingdon and reported that Stockton had attacked the four officers after refusing to return to his cell. (ECF No. 33-1, pp. 29-30). Robert Fennell, a fellow RHU inmate, wrote to the local district attorney and volunteered to testify that Wilson and Harpster conspired with him to assault Stockton when their doors were unlocked. (Id., p. 24). However, when Fennel's cell door was opened he froze and relocked his celldoor avoiding the encounter. (Id.) Stockton alleges Defendants Lt. Allison, Lt. Bard, Sgt. Miller, CO Willinsky, CO Wilson and CO Harpster and Secretary Wetzel failed to protect him from assault.
On September 16, 2014, Stockton was found guilty of one count of aggravated assault stemming from the December 20, 2013, incident. See Comm. v. Stockton, CP-31-CR-0000254-2014 (Ct. Com. Pl. Huntingdon Cnty.). He was sentenced on November 13, 2014, to a term of twenty-seven to one hundred months' imprisonment. His new sentence is to run consecutively to any sentence Stockton is presently serving. (Id.).
IV. DiscussionA. Improper Joinder of Claims and Defendants
A plaintiff may not bring unrelated claims against unrelated parties in a single action. See Fed. R. Civ. P. 18(a); 20(a)(2). A plaintiff may bring a claim against multiple defendants so long as (1) the claims arise out of the same transaction or occurrence, or series of transactions and occurrences; and (2) there are common questions of law or fact. See Fed. R. Civ. P. 20(a)(2). Courts have broad discretion in applying Fed. R. Civ. P. 20 to reduce inconvenience, delay, and added expense to the parties and to the court, and to promote judicial economy. Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009). However, the policy of liberal application of Rule 20 is not a license to join unrelated claims and defendants in one lawsuit. See, e.g., Pruden v. SCI Camp Hill, 252 F. App'x 436 (3d Cir. 2007)(nonprecedential).
Defendants argue that Stockton's Amended Complaint violates Rule 20 of the Federal Rules of Civil Procedure as it raises several unrelated events in a single action. Specifically they argue that the September 30, 2013, event involving CO Kanagy; the December 11, 2013, misconduct hearing involving HEX Himes; and the December 20, 2013, use-of-force event involving Lt. Bard, Sgt. Miller, CO Willinsky, CO Barndt, CO Wilson, CO Harpster and Nurse Houck do not arise from the same transaction(s) or occurrence(s). (ECF No. 42, Br. in Supp. Mot. to Dismiss). Stockton counters that information concerning the events of September 20, 2013, are "merely set forth" for the purpose of showing his RHU door had been opened once before and that the events are related under "the continuing violation" theory. However, he does not specifically state he is abandoning the September 2013 claim. (ECF No. 45, Opp'n to Defs.' Mot. to Dismiss). Thus, we must address Defendants motion to dismiss based on improper joinder.
While Stockton may seek to connect the allegations related to each Defendant under the umbrella of conspiracy and retaliation, he cannot do so. As Defendants note, he fails to demonstrate that there was a single shared or united intent to conspire or retaliate against him by all Defendants in the three distinct factual scenarios set forth in the Amended Complaint (September 30, 2013, event involving CO Kanagy; the December 11, 2013, misconduct hearing involving HEX Himes; and the events of December 20, 2013). While he may allege each Defendant sought to retaliate against him in their own right, he does not allege sufficient facts to suggest it was a concerted effort by all Defendants. Additionally, we conclude the Defendants in each factual scenario are distinct and unrelated, aside from them all being DOC employees.
(i) Events of September 30, 2013, involving CO Kanagy
There is no ambiguity in the language of the Amended Complaint that the September 30, 2013, event only involved CO Kanagy, a non-defendant. Stockton alleges this officer sought to retaliate against him for his pursuit of legal activities against fellow officers. No named Defendant is alleged to have directed or encouraged CO Kanagy to threaten Stockton or retaliate against him for his legal affairs. It was only following the event that Stockton advised Deputy Whitesal to alert others (Major Myers, Deputy Oliver and Lt. Allison) and to lodge an allegation of abuse complaint on his behalf. (ECF No. 33, ¶ 2 and ECF No. 33-1, p. 1).
Deputy Whitesal complied with the request. Yet Stockton, without any factual assertions, alleges that because Deputy Whitesal, Major Myers, Deputy Oliver, and Lt. Allison learned of the allegations concerning Kanagy, they are "liable for the failure to protect Plaintiff on December 20, 2013." (ECF No. 33, ¶ 2). These conclusory allegations do not demonstrate their involvement in the events of September 30, 2013. Likewise, HEX Himes, Superintendent Fisher and Secretary Wetzel are not alleged to have any involvement in this event. Accordingly, any attempt to join this claim to the two other events and Defendants in a single action is inappropriate.
These allegations will be further addressed separately, infra.
(ii) Claims against HEX Himes
Stockton alleges that HEX Himes allowed two misconducts issued against him in November 2013 to be withdrawn and re-issued in December 2013 in violation of his due process rights. He also claims that because HEX Himes is not a commissioned notary, she is not qualified to conduct or take testimony at prison disciplinary hearings. (ECF No. 33, ¶¶ 4-5). Finally, Stockton asserts that because HEX Himes' improperly set the commencement of his disciplinary sanction (from the date of the hearing rather than the date of his pre-hearing confinement), she is responsible for his placement in the RHU on December 20, 2013. Had he not been in the RHU on that day, he would not have been assaulted by the other Defendants. Stockton does not suggest HEX Himes was otherwise involved in the events of December 20, 2013. (Id.)
Stockton's claims against HEX Himes are unrelated to those concerning the events of his alleged assault by the other Defendants. Likewise, the other Defendants are not alleged to have been involved in the events underlying Stockton's receipt of the two misconducts in question or the misconduct hearing process where the disciplinary sanction was imposed. Based on the allegations of the Amended Complaint, Stockton has failed to demonstrate that his claims against HEX Himes arise out of the same transactions or occurrences common to the other Defendants.
Moreover, the court notes that following the misconduct hearing, and while Stockton was serving his disciplinary sanction in the RHU, only two named Defendants (CCPM Biser and Deputy Whitesal) are alleged to have known of his concerns regarding HEX Himes conduct. CCPM Biser and Deputy Whitesal, as members of the PRC, participated in the review of Stockton's misconduct appeals. See ECF No. 33-1, pp. 7-8. However, the appellate review of a misconduct determination, without more, is insufficient to maintain a claim that these Defendants were personally involved in HEX Himes' alleged due process violations. Washington v. Showalter, 494 F. App'x 268, 271-72 (3d Cir. 2012)(nonprecedential)(affirming the district court's dismissal of certain defendants for lack of personal involvement in the alleged constitutional violation). Accordingly, Stockton's due process claims against HEX Himes are improperly joined in this action.
Stockton appears to allege that HEX Himes violated his due process rights when she allowed the two misconducts to be withdrawn before a determination of guilt or innocence and then to be re-issued. If so, he fails to state a claim. A change in the level of an inmate's security within a prison is not the type of deprivation of a liberty interest that constitutes a deprivation of a constitutional right — unless the prison's actions impose "an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Confinement in administrative or punitive segregation is not sufficient without more to establish a typical deprivation. Id. at 486. Likewise, false misconduct reports and procedural errors in a disciplinary hearing proceeding do not, in and of themselves, trigger protection under the Due Process Clause, even if the inmate receives a disciplinary sanction as a result of the proceedings as no protected liberty interest is affected. See Smith v. Mensinger, 293 F.3d 641, 652 (3d Cir. 2002).
Further, the Amended Complaint does not provide any facts to demonstrate that Plaintiff's limited time in disciplinary (or administrative) custody in the RHU would amount to a finding of an "atypical and significant hardship" as compared to conditions he experienced in the general population at SCI-Smithfield. Even if the conditions of confinement during Stockton's post-disciplinary sentence RHU stay deprived him of a liberty interest, for example he was subjected to an incident of excessive force, HEX Himes cannot be held liable for such deprivation based solely on her involvement in Stockton's misconduct hearing. Diaz v. Canino, 502 F. App'x 213, 218-19 (3d Cir. 2012)(nonprecedential). Thus, it is clear that Stockton's disciplinary sanctions imposed by HEX Himes do not amount to an atypical deprivation of liberty, and therefore Plaintiff lacks a cognizable liberty interest in the outcome of his disciplinary proceedings.
As to Stockton's allegation that his due process rights were violated because HEX Himes did not have a notary license, he again fails to state a claim. Stockton does not cite, nor has the court been able to locate, any authority to support his assertion that a notary license or surety bond is required to be a prison hearing examiner. Accordingly, he fails to state a due process claim against HEX Himes.
Based on the above analysis, these disparate claims are improperly joined in Stockton's single lawsuit and will be dismissed. The remaining claim, related strictly to the events of December 20, 2013, will be addressed below.
B. Stockton's Eighth Amendment Claims Related to December 20, 2013 RHU Use-of-Force Event
(i) Stockton's Eighth Amendment Claims against the Supervisory Defendants (Secretary Wetzel, Deputy Oliver, Deputy Whitesal, Superintendent Fisher; CCPM Biser; Major Myers and Lt. Allison)
To successfully state a § 1983 claim, a plaintiff must allege: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct complained of deprived the plaintiff of rights, privileges, or immunities secured by the laws or the Constitution of the United States. Rehberg v. Paulk, 566 U.S. 356, 360, 132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012).
Personal involvement in the alleged wrongdoing is necessary for the imposition of liability in a civil-rights action. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005); Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003). A supervisory defendant may be liable if he directed, or knew of and acquiesced in, the deprivation of plaintiff's constitutional rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Liability cannot be imposed on a defendant in a § 1983 claim based on a respondeat superior theory. Id. A supervisory official may also be liable for a failure to train subordinates, a failure to train being considered as subcategory of establishing an unconstitutional policy or practice, personal conduct that would allow for the imposition of liability on a supervisory official. See Korth v. Hoover, 190 F.Supp. 3d 394 (M.D. Pa. 2016); Palakovic v. Wetzel, 854 F.3d 209, 233 (3d Cir. 2017). "[V]ague and speculative allegation[s] of custom, policy or practice are insufficient under Twombly and Iqbal." Lewis v. Wetzel, 153 F.Supp.3d 678, 696 (M.D. Pa. 2015). "[I]t is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the supervisor had done more than he or she did." Brown, v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001)(citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). To properly assert such a claim of supervisory liability, a "plaintiff must allege that: '(1) the policy or procedures in effect at the time of the alleged injury created an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory practice or procedures." Mark v. Patton, ___ F. App'x ___, ___, 2017 WL 2557412, at *2 (3d Cir. 2017) (nonprecedential)(quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307, 317 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v. Barkes, ___ U.S. ___, 135 S.Ct. 2042, 192 L.Ed.2d 78 (2015)(per curiam)). Nonetheless, a defendant "cannot be held responsible for a constitutional violation which he or she neither participated in nor approved." C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201-202 (3d Cir. 2000).
Stockton claims he was assaulted by CO Willinsky, CO Barndt, CO Wilson and CO Harpster on December 20, 2013, after having a conversation with Sgt. Miller and Lt. Bard. (ECF No. 33, Am. Compl. ¶ 7). Stockton does not assert that any of the Supervisory Defendants (Secretary Wetzel, Superintendent Fisher, Deputy Oliver, Deputy Whitesal, Major Myers, Lt. Allison and CCPM Biser) personally participated in, directed or had actual knowledge of or acquiesced in the attack. Rather he attempts to impose liability on Deputies Oliver and Whitesal, Major Myers and Lt. Allison based on their after-the-fact knowledge of the September 30, 2013, incident involving CO Kanagy. (Id., ¶ 2). Additionally, he claims Secretary Wetzel, Superintendent Fisher, Deputies Oliver and Whitesal, Major Myers and Lt. Allison are liable for failing to ensure that officers, in this instance CO Parks, are properly trained not to accidently unlock RHU doors. (Id., ¶ 10).
Defendants assert that the Supervisory Defendants' knowledge of the September 2013 event, where CO Kanagy opened Plaintiff's RHU door and verbally threatened him, "is simply insufficient to satisfy the requisite intent necessary to implicate these Defendants" on the basis of supervisory liability. (ECF No. 42, pp. 16-17). Stockton does not specifically address Defendants' argument in his opposition brief but does point out that the December 20, 2013, event was the "second time" his door was opened for nefarious reasons. (ECF No. 45, p. 4).
Upon careful review of the allegations of the Amended Complaint we find that Stockton has not established that any of the Supervisory Defendants were subjectively aware of the risk created by any custom or practice of staff improperly (or accidentally) opening RHU cell doors for the purpose of assaulting inmates. Stockton makes no such averments of a pattern of prior assaults against him (or other inmates) as a result of staff opening their RHU doors for non-penological activities. At best, Stockton suggests his cell door was opened one time prior to the December 20, 2013, event. "A substantial risk of serious harm 'may be established by much less than proof of a reign of violence and terror,' but requires more than a single incident or isolated incidents." Blanchard v. Gallick, 448 F. App'x 173, 177 (3d Cir. 2011)(nonprecedential)(quoting Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985)). Consequently, Stockton has failed to demonstrate the Supervisory Defendants' personal involvement in the December 20, 2013, event or to properly plead a claim of supervisory liability against them. His conclusory allegations are insufficient to state a claim of supervisory liability against Secretary Wetzel, Superintendent Fisher, Deputy Oliver, Deputy Whitesal, Major Myers, Lt. Allison and CCPM Biser. These Defendants will be dismissed from the action.
(ii) Eighth Amendment Claims Against CO Willinsky, CO Barndt, CO Wilson, CO Harpster, Sgt. Miller, Lt. Bard and CO Parks
The Eighth Amendment protects an inmate from a correctional officer's use of excessive force. Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000). "The core inquiry of an excessive-force claim is 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Fennell v. Cambria Cnty. Prison, 607 F. App'x 145, 148 (3d Cir. 2015)(nonprecedential)(quoting Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995 (2010)). The reasonableness of a particular use of force is often dependent upon factual context and must be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386 - 87, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). "[N]ot 'every malevolent touch by a prison guard gives rise to a federal cause of action.'" Wilkins, supra, 559 U.S. at 37, 130 S.Ct. at 1178 (quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992)). "The relevant factors for a court to consider are: (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response." Giles v. Kearney, 571 F.3d 318, 328 (3d Cir. 2009) (citing Brooks, 204 F.3d at 106). Although the extent of injury is relevant, the inmate does not need to sustain serious injury to state an excessive-force claim. Wilkins, 559 U.S. at 36-38, 130 S.Ct. at 1178-1179.
Stockton claims he was assaulted by Defendants Willinsky, Barndt, Wilson and Harpster on December 20, 2013, after having a conversation with Sgt. Miller and Lt. Bard about his confinement in the RHU past his disciplinary custody sentence. (ECF No. 33, Am. Compl. ¶ 7). Defendants do not seek to dismiss the excessive-force claim against them but seek to dismiss claims against CO Parks on the basis that Stockton does not aver CO Parks participated in the assault or otherwise played a role in the assault. At this stage of the litigation, we disagree.
Construed in the light most favorable to Stockton, the allegations of the Amended Complaint aver that Stockton was assaulted after Sgt. Miller and Lt. Bard "breached security" and ordered Stockton's RHU cell door opened. (Id., p. 5). CO Parks was responsible for opening the cell door from a control unit. Whether CO Parks opened Stockton's door in compliance with Sgt. Miller and Lt. Bard's order knowing it was contrary to RHU procedure, or whether he opened it "accidentally," is yet to be determined. (Id., p. 7). Discovery may well reveal that CO Parks' alleged conduct, and that of the other Defendants, does not give rise to a deliberate indifference claim, but at this early stage of litigation, drawing all reasonable inferences in Stockton's favor, we will allow the Eighth Amendment excessive-force claim to go forward against Defendants CO Willinsky, CO Barndt, CO Wilson, CO Harpster, Sgt, Miller, Lt. Bard and CO Parks. (ECF No. 33, Am. Compl. ¶ 7).
(iii) Stockton's Eighth Amendment Claims against Nurse Houck
In the medical context, a constitutional violation under the Eighth Amendment occurs only when prison officials are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). For the denial of medical care to rise to a violation of the Eighth Amendment's prohibition against cruel and unusual punishment, a prisoner must demonstrate "(1) that defendants were deliberately indifferent to [his] medical needs and (2) that those needs were serious." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference to a serious medical need involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104, 97 S.Ct. at 291. Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury," Durmer v O'Carroll, or "persistent conduct in the face of resultant pain and risk of permanent injury. White v. Napoleon, 897 F2d 103, 109 (3d Cir. 1990).
A serious medical need is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth Cnty Corr. Institute Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). --------
A negligent diagnosis or treatment of a medical condition is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106, 97 S.Ct. at 292. "Indeed, prison authorities are accorded considerable latitude im the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). Any attempt to second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts since such determinations remain a question of sound professional judgment. Inmates of Allegheny Cnty. Jail. v, Pierce, 612 F.2d 754, 762 (3d Cir. 1979), quoting Bowring v. Goodwin, 551 F.2d 44, 48 (4th Cir. 1997). Further, "[w]here 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. United States ex. rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)(internal quotations and citations omitted).
Here, Defendants assert that Stockton has failed to state a claim for denial of medical care against Nurse Houck. (ECF No. 42, p. 18). Specifically, they claim Stockton failed to demonstrate that Nurse Houck was deliberately indifferent to a serious medical need. (Id.)
Stockton alleges that following the December 20, 2013, assault, he suffered from open wounds of his head and face as well as multiple contusions. While Nurse Houck wiped blood from his face before he was photographed, she failed to medically assess him or provide any medical care for his injuries. (ECF No. 33, p. 7). Stockton's claim is not with the treatment he received but the pain and suffering he experienced as a result of Nurse Houck's withholding a medical assessment and all treatment from him. At the motion to dismiss stage of the litigation, accepting the allegations as true, we find that the foregoing allegations are minimally sufficient to state an Eighth Amendment claim of deliberate indifference to Stockton's serious medical needs. Accordingly, Defendants' motion to dismiss Stockton's Eighth Amendment medical claim against Nurse Houck for withholding medical treatment from Plaintiff following the December 2013 assault is denied.
C. Conspiracy Claims against Nurse Houck and the Supervisory Defendants related to the December 20, 2013, RHU Event
In order to demonstrate the existence of a conspiracy under § 1983, "a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right under color of law." Laurensau v. Romarowics, 528 F. App'x 136, 140 (3d Cir. 2013)(nonprecedential)(internal citations omitted). To plead a conspiracy claim properly, a plaintiff must allege "facts that plausibly suggest a meeting of the minds." Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 170 (3d Cir. 2010). "Bare conclusory allegations of 'conspiracy' or 'concerted action' will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred." Flanagan v. Shively, 783 F.Supp. 922, 928 (M.D. Pa. 1992). A plaintiff cannot rely on subjective suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991). The complaint must not plead merely a "conclusory allegation of agreement at some unidentified point." Twombly, 550 U.S. at 557, 127 S.Ct. at 1966. A conspiracy claim that lacks "an adequate factual basis" is properly dismissed. Simmons v. Szelewski, 642 F. App'x 95, 99 (3d Cir. 2016)(nonprecedential)(citing Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 182 (3d Cir. 1988).
Defendants move to dismiss Stockton's conspiracy claim against Nurse Houck for her alleged involvement in the December 20, 2013, excessive-force event. Stockton did not address this issue in his opposition brief. Our review of the Amended Complaint finds that Stockton fails to allege any facts to support a conspiracy claim against Nurse Houck or the Supervisory Defendants. While the same cannot be said for his conspiracy claim against those officers involved in the excessive-force event, Stockton makes no averments of fact that reasonably suggest the presence of an agreement or concerted activity between Nurse Houck and any other Defendant to violate his civil rights. The same is true with respect to his conspiracy claims against the Supervisory Defendants and those who participated in the December 20, 2013, alleged assault. Accordingly, his conspiracy claim against Nurse Houck and the Supervisory Defendants will be dismissed.
D. Stockton Cannot Maintain Claims Against the Remaining Defendants in their Official Capacities
The Eleventh Amendment bars suits against a state and its agencies in federal court that seek monetary damages. See Puerto Rico Aquaduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687-88, 121 L.Ed.2d 605 (1993); Johnson v. Wenerowicz, 440 F. App'x 60, 84 (3d Cir. 2011)(nonprecedential). By statute, the Commonwealth of Pennsylvania has refused to waive its Eleventh Amendment immunity. 42 PA. CONS. STAT. ANN. § 8521(b); Lavia v. Pa. Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000). Likewise, since suits against state officials in their official capacities are really suits against the employing government agency, they are also barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 25-27, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989).
The claims against the following Defendants, in their official capacities only, will therefore be dismissed: CO Willinsky, CO Barndt, CO Wilson, CO Harpster, Sgt. Miller, Lt. Bard, CO Parks and Nurse Houck.
E. Defendants' Motion to Stay Discovery
After filing the Amended Complaint, Stockton served Defendants with eight requests for production of documents. Defendants sought to stay their obligation to respond to Stockton's discovery requests pending the resolution of their motion to dismiss. (ECF No. 43). Stockton did not oppose this motion. Accordingly, we will grant the motion for the time frame we took to resolve Defendants' motion to dismiss. Going forward, they will be directed to respond to Stockton's discovery within thirty days.
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge Date: July 18, 2017
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