1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

 

LAVELLE HARKNESS, )

)

Plaintiff )

) C.A.No. 09-29 Erie 

vs. )

) District Judge McLaughlin

RAYMOND SOBINA, et al, )

) Magistrate Judge Baxter

Defendants )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I RECOMMENDATION

It is respectfully recommended that the motion to dismiss the amended complaint by

Defendants Lamb, Sherbine and Maxa [Document # 33] be granted. The Clerk of Courts should

be directed to terminate Defendants Lamb, Sherbine and Maxa as parties to this case.

By separate Order filed this date, the motion to dismiss the original complaint filed by

Defendants Lamb, Sherbine and Maxa [Document # 24] and the motion to dismiss the original

complaint filed by the Department of Corrections Defendants [Document # 27] are dismissed as

moot in light of the filing of the amended complaint.

II REPORT

A. Relevant Procedural History

Plaintiff, a state prisoner, brought this civil rights action under 42 U.S.C. § 1983 alleging

that he received improper care and medical treatment following an accident in which a heavy

steel door was shut on his foot. Originally named as Defendants were: Raymond Sobina,

Warden; Michael Barone, Acting Warden; Christian Kennedy, Grievance Coordinator;

Correctional Officer Weiland; Nurse Patricia Lamb; Dr. Rhonda Sherbine; Dr. Maxa; Dr.

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Jammie Ferkarko (also listed as Dr. Jammie); and Dr. Skunda.

On July 24, 2009, Plaintiff filed an Amended Complaint adding Sharon Burks, of the

Office of Grievances and Appeals, as a Defendant, and expanding upon the allegations of his

Original Complaint. Document # 31.

Defendants Ferdarko, Burks, Jammie and Skunda have been dismissed from this action

due to Plaintiff’s failure to prosecute the case against them. See Documents # 42, 40.

Defendants Sobina, Barone, Kennedy, and Weiland (hereafter, the “Department of

Corrections Defendants”) are represented by the Office of the Attorney General and have filed a

motion to dismiss against the Original Complaint and an answer to the Amended Complaint. 

Documents # 27, 41. Defendants Lamb, Sherbine, and Maxa (hereafter, the “Medical

Defendants”) are represented by private counsel and have filed a motion to dismiss the Original

Complaint and a motion to dismiss the Amended Complaint. Documents # 24, 33. The filing of

an amended complaint moots the motions to dismiss filed against the original complaint and so

these motions will be dismissed by separate order.

Presently pending before this Court is the Motion to Dismiss the Amended Complaint

filed by the Medical Defendants [Document # 33]. Despite being given the opportunity to do so,

Plaintiff has not filed an opposition to that pending motion.

B. The Allegations Against the Medical Defendants 

In his Amended Complaint, Plaintiff claims that following his injury on April 13, 2007,

he was examined by Nurse Matt (who is not named as a party to this action) and informed that

he would need stitches. Plaintiff was then seen by Defendant Patricia Lamb. According to

Plaintiff, Defendant Lamb stitched his wound without sterilizing the area causing his foot to

become infected with “verruca,” a tumor of the skin.

In October of 2007, Plaintiff, after months of pain and suffering, had further surgery

performed by Doctor Peter Go at Somerset Regional Hospital to correct Defendant Lamb’s

“negligence of deliberate indifference.” The surgery consisted of cutting out all the infected

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tissue and Plaintiff received eleven stitches. 

After Plaintiff’s return to SCI Forest, he was not admitted into the infirmary as Dr. Go

ordered, but was instead forced to walk from his cell to the cafeteria and the medical department

several times per day. Plaintiff alleges that he contacted Defendants Lamb, Sherbine and Maxa

in this regard, but they refused to admit him into the infirmary. Plaintiff alleges that as a result,

his wound did not heal properly and he was forced to undergo another surgery on February 12,

2008. Plaintiff claims that he now walks with a limp as a result of Defendants’ actions.

C. Standards of Review

1. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If

the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,

it should do so despite failure to cite proper legal authority, confusion of legal theories, poor

syntax and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.

MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,

555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read

“with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992);

Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal

pleading rules, during the initial stages of litigation, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.

1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make

inferences where it is appropriate. 

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2. Motion to dismiss pursuant to 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95 (2007). A complaint

must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41

(1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009)

(specifically applying Twombly analysis beyond the context of the Sherman Act). 

The Court need not accept inferences drawn by plaintiff if they are unsupported by the

facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,

394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906

(3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. 

Twombly, 550 U.S. at 556, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also

McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. Aug. 245, 2009) quoting

Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949 (“The tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”). A plaintiff’s factual

allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 556. Although the United States Supreme Court does “not require heightened fact

pleading of specifics, [the Court does require] enough facts to state a claim to relief that is

plausible on its face.” Id. at 570. 

In other words, at the motion to dismiss stage, a plaintiff is “required to make a

‘showing’ rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008

WL 482469, at *1 (D.Del. February 22, 2008) quoting Phillips v. County of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008). “This does not impose a probability requirement at the pleading stage,

but instead simply calls for enough facts to raise a reasonable expectation that discovery will

reveal evidence of the necessary element.” Phillips, 515 F.3d at 232, quoting Twombly, 550

U.S. at 556 n.3. 

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Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:

To prevent dismissal, all civil complaints must now set out sufficient factual

matter to show that the claim is facially plausible. This then allows the court to

draw the reasonable inference that the defendant is liable for the alleged

misconduct. 

* * *

After Iqbal, when presented with a motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. First, the factual and legal

elements of a claim should be separated. The district court must accept all

of the complaint’s well-pleaded facts as true, but may disregard any legal

conclusions. Second, a district court must then determine whether the facts

alleged in the complaint are sufficient to show that the plaintiff has a

plausible claim for relief. In other words, a complaint must do more than

allege the plaintiff’s entitlement to relief. A complaint has to show such an

entitlement with its facts. As the Supreme Court instructed in Iqbal, where the

well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged - but it has not shown - that the pleader

is entitled to relief. This plausibility requirement will be a context-specific task

that requires the reviewing court to draw on its judicial experience and common

sense. 

Fowler v. UPMC Shadyside, 578 F.3d. 203, 210-11(3d Cir. 2009).

D. The Prison Litigation Reform Act

Defendants argue that Plaintiff has failed to exhaust his administrative remedies in

accordance with the requirements of the PLRA. 

1. The Exhaustion Requirement

The Medical Defendants argue that the claims against them should be dismissed for

failure to comply with the exhaustion requirements of the Prison Litigation Reform Act, 42

U.S.C. § 1997e(a), which provides: 

no action shall be brought with respect to prison conditions under section 1983 of

this title ... by a prisoner confined in any jail, prisons, or other correctional

facility until such administrative remedies as are available are exhausted.

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It is not a plaintiff’s burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S. 1

199, 217 (2007) (“...failure to exhaust is an affirmative defense under the PLRA, and that

inmates are not required to specially plead or demonstrate exhaustion in their complaints.”). 

Instead, the failure to exhaust must be asserted and proven by the defendants. Ray v. Kertes,

285 F.3d 287, 295 (3d Cir. 2002).

2 Importantly, a plaintiff’s failure to exhaust his administrative remedies does not

deprive the district court of subject matter jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d

Cir. 2000) (“...[W]e agree with the clear majority of courts that §1997e(a) is not a jurisdictional

requirement, such that failure to comply with the section would deprive federal courts of subject

matter jurisdiction.”).

 There is no “futility” exception to the administrative exhaustion requirement. Banks v. 3

Roberts, 2007 WL 3096585, at * 1 (3d Cir.) citing Nyhuis, 204 F.3d at 71 (“[Plaintiff’s] argument

fails under this Court’s bright line rule that ‘completely precludes a futility exception to the PLRA’s

mandatory exhaustion requirement.’”). See also Woodford v. Ngo, 548 U.S. 81, 85 (2006)

(“Indeed, as we held in Booth, a prisoner must now exhaust administrative remedies even where the

relief sought-monetary damages-cannot be granted by the administrative process.”). 

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Id (emphasis added). 1

The requirement that an inmate exhaust administrative remedies applies to all inmate

suits regarding prison life, including those that involve general circumstances as well as

particular episodes. Porter v. Nussle, 534 U.S. 516 (2002); Concepcion v. Morton, 306 F.3d

1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be

completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). 

Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the available

remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136 (Unpublished

Opinion) (10 Cir. May 8, 1997). The exhaustion requirement is not a technicality, rather it is th 2

federal law which federal district courts are required to follow. Nyhuis v. Reno, 204 F.3d 65, 73

(3d Cir. 2000) (by using language “no action shall be brought,” Congress has “clearly required

exhaustion”).3

The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the 

administrative review process in accordance with the applicable procedural rules of that

grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006) (“Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules ...”). Importantly, the

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exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally

defective ... appeal.” Id. at 83; see also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004)

(utilizing a procedural default analysis to reach the same conclusion) (“ Based on our earlier

discussion of the PLRA's legislative history, [...] Congress seems to have had three interrelated

objectives relevant to our inquiry here: (1) to return control of the inmate grievance process to

prison administrators; (2) to encourage development of an administrative record, and perhaps

settlements, within the inmate grievance process; and (3) to reduce the burden on the federal

courts by erecting barriers to frivolous prisoner lawsuits.”).

2. The Administrative Process Available to State Inmates

 So then, no analysis of exhaustion may be made absent an understanding of the

administrative process available to state inmates. “Compliance with prison grievance

procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’ The level of

detail necessary in a grievance to comply with the grievance procedures will vary from system to

system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Jones v. Bock, 107 U.S. at 217.

The DC-ADM 804 grievance system, available to state prisoners, consists of three

separate stages. First, the prisoner is required to timely submit a written grievance for review by

the facility manager or the regional grievance coordinator within fifteen days of the incident,

who responds in writing within ten business days. Second, the inmate must timely submit a

written appeal to intermediate review within ten working days, and again the inmate receives a

written response within ten working days. Finally, the inmate must submit a timely appeal to

the Central Office Review Committee within fifteen working days, and the inmate will receive a

final determination in writing within thirty days. See Booth v. Churner, 206 F.3d 289, 293 n.2

(3d Cir. 1997), aff’d. 532 U.S. 731 (2001). 

3. Analysis

Plaintiff’s own allegations confirm that he has not fully and properly exhausted his

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administrative remedies in accordance with the PLRA. However, Plaintiff’s Amended

Complaint is full of allegations that he was hindered in his ability to utilize the administrative

remedy process. The Medical Defendants argue that the allegations as to interference with the

grievance process do not appear to be directed toward them, and so because they did not

interfere with the process, they should be able to take advantage of Plaintiff’s failure to exhaust.

This Court disagrees.

The Third Circuit has invariably held that interference with an inmate’s attempts at

exhaustion impact the availability of the administrative remedy process. Mitchell v. Horn, 318

F.3d 523, 529 (3d Cir. 2003) (“A grievance procedure is not available even if one exists on

paper if the defendant prison officials somehow prevent a prisoner from using it.” ). See also

Berry v. Klem, 283 Fed. Appx. 1, 5 (3d Cir. March 20, 2009) (“[Plaintiff] contended that the

severity of his injuries prevented him from timely filing his initial grievance. [... and] also

argued that the administrative grievance process was not available to him because he feared

serious harm for filing a grievance. While that claim may not ultimately prevail, his allegations

put in question the availability of the remedy.”); McKinney v. Guthrie, 2009 WL 274159, at * 1

(3d Cir. Feb. 20, 2009) (“[A]n administrative remedy may be unavailable if a prisoner is

prevented by prison authorities from pursuing the prison grievance process.”); Brown v. Croak,

312 F.3d 109, 113 (3d Cir. 2002) (“Assuming security officials told Brown to wait for the

termination of the investigation before commencing a formal claim, and assuming the

defendants never informed Brown that the investigation was completed, the formal grievance

proceeding required by DC-ADM 804 was never “available” to Brown within the meaning of 42

U.S.C. § 1997e.”).

In this case, there are several allegations that the administrative remedy process was not

available to Plaintiff. It is of no moment to this Court that the Medical Defendants were not the

individuals who allegedly hindered or thwarted Plaintiff’s efforts to exhaust. This Court will not

permit the Medical Defendants to legally benefit from the alleged bad acts of the Department of

Corrections Defendants. 

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E. Deliberate indifference under the Eighth Amendment 

Next, Defendants argue for the dismissal of this case based upon Plaintiff’s failure to

state a claim of deliberate indifference under the Eighth Amendment. 

 In the medical context, a constitutional violation under the Eighth Amendment occurs

only when state officials are deliberately indifferent to serious medical needs. Estelle v.

Gamble, 429 U.S. 97 (1976). The standard is two-pronged: “[i]t requires deliberate

indifference on the part of prison officials and it requires that the prisoner's medical needs be

serious.” West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). A plaintiff must show that prison

officials had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834

(1994). Specifically, deliberate indifference requires the demonstration that prison officials

knew of an excessive risk to an inmate’s health or safety and affirmatively disregarded that risk. 

Id. at 837-38. See also Doe v. New Jersey Dept. of Corrections, 337 Fed. Appx. 220, 226 (3d

Cir. July 8, 2009) (“it is well settled that claims of negligence or medical malpractice, without

some more culpable state of mind, do not constitute deliberate indifference for purposes of an

Eighth Amendment claim entitled to remedy under § 1983.”). 

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 County Correction Institute Inmates v. Lanzaro, 834 F.2d 326,

347 (3d Cir. 1987). A serious medical need may also be found to exist where the denial or delay

of treatment results in “unnecessary and wanton infliction of pain.” Id.

 Deliberate indifference may be 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, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and

risk of permanent injury” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). See also

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999); Monmouth County, 834 F.2d at 346

(“deliberate indifference is demonstrated ‘[w]hen ... prison authorities prevent an inmate from

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receiving recommended treatment for serious medical needs or deny access to a physician

capable of evaluating the need for such treatment”).

However, mere misdiagnosis or negligent treatment is not actionable under §1983 as an

Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle,

429 U.S. at 106. Furthermore, deliberate indifference is generally not found when some level of

medical care has been offered to the inmate. Clark v. Doe, 2000 WL 1522855, at *2 (E.D.Pa. 

 2000) (“courts have consistently rejected Eighth Amendment claims where an inmate has

received some level of medical care”). There is necessarily a distinction between a case in which

the prisoner claims a complete denial of medical treatment and one where the prisoner has

received some medical attention and the dispute is over the adequacy of the treatment. United

States ex rel. Walker v. Fayette County, 599 F.2d 533, 575 n.2 (3d Cir. 1979). 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 County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979), quoting Bowring v.

Goodwin, 551 F.2d 44, 48 (4th Cir.1977). 

Plaintiff’s own complaint reflects that he was medically evaluated and treated within a

short period of time immediately following his injury and was continually medically treated

thereafter. Plaintiff received “some level of medical care,” but he disagrees with the treatment

and questions the quality of the care. The case law is clear that such a disagreement does not

rise to the level of a constitutional violation. Plaintiff’s allegation that the Medical Defendants

denied him admission into the infirmary also fails under the Eighth Amendment. See Gause v.

DiGuglielmo, 339 Fed.Appx. 132, 135 (3d Cir. July 15, 2009) (“His claim against the reviewing

doctors amounts to no more than dissatisfaction with their denial of his request for infirmary

housing and meals in his cell. This claim falls short of the standard for ‘deliberate

indifference.’”).

Plaintiff’s allegations fail to state a claim of deliberate indifference under the Eighth

Amendment against the Medical Defendants. Accordingly, the motion to dismiss should be

granted and these Defendants should be terminated as parties to this case.

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III CONCLUSION

For the foregoing reasons, it is respectfully recommended that the motion to dismiss the

amended complaint by Defendants Lamb, Sherbine and Maxa [Document # 33] be granted. The

Clerk of Courts should be directed to terminate Defendants Lamb, Sherbine and Maxa as parties

to this case.

By separate Order filed this date, the motion to dismiss the original complaint filed by

Defendants Lamb, Sherbine and Maxa [Document # 24] and the motion to dismiss the original

complaint filed by the Department of Corrections Defendants [Document # 27] are dismissed as

moot in light of the filing of the amended complaint.

In accordance with Fed.R.Civ.P. 72, the parties are allowed fourteen (14) days from the

date of service to file written objections to this Report and Recommendation. Any party

opposing the objections shall have fourteen (14) days from the date of service of objections to

respond thereto. No extensions of time will be granted. Failure to file timely objections may

constitute a waiver of appellate rights. See Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: February 11, 2010

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