IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DANIEL HEATH, :

Plaintiff :

:

v. : CIVIL NO.4:CV-04-2275

:

: (Judge Jones) 

ROBERT SHANNON, ET AL., :

Defendants :

MEMORANDUM AND ORDER

February 17, 2006

Background

This pro se civil rights action was filed by Daniel Heath (“Plaintiff” or

“Heath”), an inmate presently confined at the State Correctional Institution, in

Dallas, Pennsylvania. By Memorandum and Order dated July 28, 2005, dismissal

was entered in favor of Defendants Doctor Singh, Robert O’Connor, M.D.,

Michael Sims, Mr. Wychock, and Don Silva. (Rec. Doc. 46). The Memorandum

and Order also concluded that Plaintiff’s pre-October 18, 2002 claims were barred

by Pennsylvania’s applicable statute of limitations.

The remaining Defendants are the following officials at the Plaintiff’s prior

place of confinement, the State Correctional Institution, in Frackville,

Pennsylvania (“SCI-Frackville”): Superintendent Robert Shannon; Deputy

Superintendent for Facilities Management John Kerestes; Health Care

Case 4:04-cv-02275-JEJ Document 71 Filed 02/17/06 Page 1 of 9
 1. His complaint lists the following symptoms: frequent constipation, bloated abdomen,

soft diaphragm, hard and/or discolored stool, loss of appetite, sleeplessness, dizzy spells,

rapid and painful heart palpitations, and fainting spells.

2

Administrator Barbara Malewski; Physician Assistants (“PA”) David Martin and

Jessica Hock; Registered Nurses Pam Wolfgang, Barbara Bright, Sandy Davis and

Patty Wolfe. Presently pending before the Court is a motion seeking partial

dismissal filed by Defendants Shannon, Kerestes, Malewski, Wolfgang, Davis,

Wolfe, and Bright (hereinafter the Corrections Defendants). (Rec. Doc. 34). The

motion has been briefed by the parties and is ripe for consideration.

By way of summary, Heath alleges that during 1995, he made numerous

attempts at obtaining medical attention form the SCI-Frackville Medical

Department for the cause and treatment of his abdominal pains and ailments.1

(Rec. Doc. 1, ¶ 19). With the exception of being given an Electrocardiogram and

a blood test on December 18, 1995, the prison medical staff allegedly failed to

provide him with physical examinations or diagnostic testing. Rather, Plaintiff

was “simply given Maalox, Milk of Magnesia, or no treatment at all ... save for

being told to buy antacids or pain medications from the prison commissary.” Id.

During January 2003, Plaintiff returned to the SCI-Frackville Medical

Department with a complaint of severe stomach pain. PA Jessica Hock allegedly

failed to provide him with a physical examination or any diagnostic testing. 

Plaintiff does admit that he was again prescribed milk of magnesia. On November

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10, 2003, Heath was seen by PA Martin for complaints of severe stomach pain,

vomiting “what appeared to be Black coffee grounds,” and black stool. Id. at ¶ 21. 

Plaintiff similarly maintains that Martin failed to perform a physical examination

or diagnostic testing and simply directed the prisoner to put a hot compress on his

stomach and purchase over the counter pain medication from the prison

commissary.

Heath began experiencing terrible stomach pain and cramps along with

vomiting on December 1, 2003. Nurse Pam Wolfgang was called to his cell and

purportedly failed to initiate any treatment. However, the Plaintiff was

subsequently taken to the prison’s medical department where he remained for

approximately five (5) hours until being transported to another nearby state

correctional facility for treatment. After arriving at the other prison, Heath

underwent a brief physical examination and was then rushed to a local hospital. 

After undergoing various tests, Plaintiff was diagnosed as having a perforated

stomach ulcer.

Heath underwent emergency surgery to repair a hole in his stomach which

was “LARGER THAN A SILVER DOLLAR.” Id. at ¶ 35. As a result of this

surgical procedure, 70% of Plaintiff’s stomach was removed. Heath asserts that

as a further consequence, he will be on medication and require special dietary care

for the rest of his life. Plaintiff concludes that due to prolonged deliberate

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indifference of the Defendants, he has suffered permanent injury. His complaint

seeks compensatory and punitive damages.

Discussion

The Corrections Defendants argue that they are entitled to an entry of partial

dismissal on the grounds that: (1) the claims for monetary damages against them

in their official capacities are barred by the Eleventh Amendment; (2) Plaintiff’s

individual capacity claims under 42 U.S.C. § 1985 fail to state a viable claim; and

(3) the individual capacity claims asserted under 42 U.S.C. § 1986 are insufficient.

A court, in rendering a decision on a motion to dismiss, must accept the

veracity of the plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver,

82 F.3d 63, 65 (3d Cir. 1996), the Court of Appeals for the Third Circuit added

that when considering a motion to dismiss based on a failure to state a claim

argument, a court should "not inquire whether the plaintiffs will ultimately prevail,

only whether they are entitled to offer evidence to support their claims." "[A]

complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"The test in reviewing a motion to dismiss for failure to state a claim is

whether, under any reasonable reading of the pleadings, plaintiff may be entitled

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to relief." Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation

omitted). Additionally, a court must "accept as true the factual allegations in the

complaint and all reasonable inferences that can be drawn from them." Markowitz

v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Independent Enters., Inc.

v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997). Finally,

it is additionally well-settled that pro se complaints should be liberally construed. 

Haines v. Kerner, 404 U.S. 519, 520 (1972). This Court will now discuss the

Corrections Defendants’ motion in light of the standards set forth above and Rule

12(b)(6) of the Federal Rules of Civil Procedure. 

A. Eleventh Amendment

The initial argument raised by the Corrections Defendants is that the portion

of Heath’s action which seeks monetary relief against them in their official

capacities must be dismissed under the Eleventh Amendment. The Eleventh

Amendment provides the following:

The judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by citizens of another state, or by citizens or

subjects of any foreign state.

"[C]laims for money damages against the prison officials in their official

capacity are claims for retroactive relief and hence are barred by the Eleventh

Amendment." Doe v. Wagginton, 21 F.3d 733 (6th Cir. 1994) (citing Edelman v.

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Jordan, 415 U.S. 651, 663 (1974)). The Court of Appeals for the Third Circuit in

Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981), similarly concluded that

an "action in federal court for damages or back pay against a state official acting in

his official capacity is barred because such retrospective relief necessarily depletes

the state treasury." Pursuant to the above discussion, to the extent that Plaintiff's

claims seek monetary compensation from the Corrections Defendants in their

official capacities, they are clearly barred by the Eleventh Amendment and will be

dismissed.

B. 42 U.S.C. § 1985

The Corrections Defendants next contend that Plaintiff has failed to satisfy

the pleading requirements for a viable § 1985 claim. This Court agrees for the

reasons that follow. 

Five elements must be alleged to state a § 1985 claim: (1) a conspiracy by

the defendants, (2) designed to deprive a plaintiff of the equal protections of the

laws, (3) the commission of an overt act in furtherance of that conspiracy, (4) a

resultant injury to person or property or a deprivation of any right or privilege of

citizens, and (5) defendant's actions were motivated by racial or otherwise classbased invidiously discriminatory animus. United Brotherhood of Carpenters,

Local 610 v. Scott, 463 U.S. 825, 830 (1983). 

In order to set forth a cognizable conspiracy claim, a plaintiff cannot rely on

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broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational

Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992), cert. denied, 506 U.S. 1079

(1993); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869

F.2d 543, 545 (10th Cir. 1989). The Court of Appeals for the Third Circuit has

further noted that "[a] conspiracy claim must . . . contain supportive factual

allegations." Rose, 871 F.2d at 366. Moreover, "[t]o plead conspiracy adequately,

a plaintiff must set forth allegations that address the period of the conspiracy, the

object of the conspiracy, and the certain actions of the alleged conspirators taken

to achieve that purpose." Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1166

(3d Cir. 1989). 

The essence of a conspiracy is an agreement or concerted action between

individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545. 

Consequently, a plaintiff must allege with particularity and present material facts

which show that the purported conspirators reached some understanding or

agreement or plotted, planned and conspired together to deprive plaintiff of a

protected federal right. Id.; Rose, 871 F.2d at 366; Young v. Kann, 926 F.2d 1396

1405 n.16; Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 539

(E.D. Pa. 1982). Where a civil rights conspiracy is alleged, there must be some

specific facts in the complaint which tend to show a meeting of the minds and

some type of concerted activity. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir.

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1985). A plaintiff cannot rely on subjective suspicions and unsupported

speculation. Young, 926 F.2d at 1405 n.16 (3d Cir. 1991).

The fifth prong of United Brotherhood by itself is dispositive of Plaintiff's

present § 1985 conspiracy claim as none of his allegations suggest that the

Corrections Defendants’ alleged actions were motivated by a racial or otherwise

class-based invidiously discriminatory animus. Furthermore, Heath’s assertions

do not satisfy the pleading requirements of Rose, Deck, and Young. Specifically,

there are no averments of fact in the complaint that reasonably suggest the

presence of an agreement or concerted activity between the Corrections

Defendants to violate Plaintiff's civil rights. Accordingly, the motion to dismiss

will be granted with respect to Heath’s allegations of conspiracy.

C. 42 U.S.C. § 1986

The Corrections Defendants’ final argument asserts that the claims under 42

U.S.C. § 1986 should be dismissed due to Plaintiff’s failure to set forth a viable §

1985 claim. Section 1986 imposes liability on an individual who has knowledge

that a violation of § 1985 is about to be committed and has the power to prevent

commission of the same, but fails to do so.

It is well-settled that a plaintiff cannot set forth a viable claim under § 1986

without first establishing an actionable conspiracy under § 1985. Baines v.

Masiello, 288 F. Supp.2d 376, 394-95 (W.D.N.Y. 2003); Lowden v. William M.

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Mercer Inc., 903 F. Supp. 212, 218 (D. Mass. 1995). Based on this Court’s

determination that Plaintiff has failed to state a viable claim under § 1985, Heath’s

attempt to assert claims against the Corrections Defendants pursuant to 42 U.S.C.

§ 1986 must also fail. See Kessler v. Monsur, 865 F. Supp. 234, 239 (M.D. Pa. 

1994). 

NOW, THEREFORE, IT IS ORDERED THAT:

1. The Corrections Defendants’ Motion Seeking Partial Dismissal

of the complaint (doc. 34) is GRANTED.

2. The claims for monetary damages against the Corrections

Defendants in their official capacities are barred by the

Eleventh Amendment.

3. Plaintiff’s 42 U.S.C. §§ 1985 & 1986 allegations against the

Corrections Defendants are dismissed for failure to state a

claim.

 

s/ John E. Jones III

John E. Jones III

United States District Judge

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