Rathy v. Wetzel

GEORGE F. RATHY, SR., Plaintiff, v. JOHN E. WETZEL, Secretary of Corrections; GRAVES, Unit Manager;AL HARVEY, Correction Officers/Maintenance Supervisor;COMMONWEALTH OF PENNSYLVAINA DEPARTMENTOF OCRRECTION; THE CENTRAL OFFICE INMATE DISABILITYACCOMMODATION COMMITTEE (COIDAC); BRIAN H. THOMPSON,The Superintendent of SCI Mercer; KIMBERLY BOAL, The CorrectionsHealth Care Administrator (CHCA); DR. SCOTT MORGAN, M.D.; DR. Y.ALEX SUVOROV, Psychiatrist at SCI Mercer; DR. STUART STEINBERG,LPN; BURT BROCKLEHURST; Unit Manager; JAMES OPPMEN,Principal; COLLEEN MOJOCK, Librarian Supervisor; LINDADEFOREST, Assistant Librarian, Defendants.

Civil Action No. 13 - 72

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

July 28, 2014

District Judge Cathy Bissoon

Chief Magistrate Judge Lisa Pupo Lenihan

ECF Nos. 57, 59, 64

REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the following reasons, it is respectfully recommended that the Motion to Dismiss filed by the DOC Defendants (ECF No. 64) be granted and that the Motions to Dismiss, that have been converted into Motions for Summary Judgment, filed by Dr. Y. Alex Suvorov (ECFNo. 57) and Dr. Scott Morgan (ECF No. 59) also be granted. It is further recommended that Defendants Grave and Al Harvey be dismissed for failure to prosecute and for Plaintiff's failure to state a claim against them pursuant to 28 U.S.C. 1915(e)(2)(B)(ii), that leave to file a Fourth Amended Complaint be denied, and that this case be closed.

II. REPORT

A. Background

Plaintiff George F. Rathy, Sr. ("Plaintiff") is a former state prisoner who initiated this civil rights lawsuit while he was an inmate at the State Correctional Institution at Mercer ("SCI-Mercer"), where he was housed from March 2008 until his release in December 2013.¹ He asserts six "Counts" in his Third Amended Complaint, alleging that prison officials violated his constitutional rights in a litany of manners. A factual summary of each Count is as follows:

1. Shy Bladder Syndrome (Count One)

Plaintiff alleges that he suffers from Paruresis, otherwise known as "Shy Bladder Syndrome," and is unable to urinate in the presence of others. He states that in order to urinate when someone is nearby he has to take deep breaths and push as hard as he can and repeat this process over and over again. He alleges that this strain causes him to have severe headaches.

His claims arise out of the fact that prison officials at SCI-Mercer would not house him in a single/handicap cell despite the fact that, according to Plaintiff, Shy Bladder Syndrome is a recognized disability under the Americans with Disabilities Act ("ADA"). By way of an Inmate Disability Accommodation Request filed on April 1, 2012, after the initiation of this lawsuit, Plaintiff requested but was denied a single/handicap cell. He was told by the DOC CentralOffice committee that his medical condition "did not rise to the level of a disability" but that SCI-Mercer was offering him medical services and accommodations related to his condition for non ADA reasons. While his request was pending, another inmate (Wagner) was given the only single/handicap cell in Plaintiff's block. Plaintiff states that this was not fair because the inmate did not have a disability.

Doctors Suvorov and Steinberg told Plaintiff that they would not order the DOC to put him in a single/handicap cell but they discussed Plaintiff's medical condition with him and provided guidance on how to deal with it in the prison setting, including giving Plaintiff a book about Shy Bladder Syndrome.

Plaintiff states that he was able to urinate at least five days a week in an enclosed bathroom that was in the library building where he worked but was unable to do so once he was fired from his library job on November 21, 2012.

2. Cataract Surgery (Count Two)

Plaintiff claims that the DOC unnecessarily delayed the removal of a cataract in his left eye because he still had what they considered "functional vision" in his right eye.² He states that the surgery should have occurred in 2012 but that it did not happen until July 2013. In connection with this Count, Plaintiff also claims that he was not permitted to keep a small purple Bausch and Lomb nylon bag that was provided to him by Dr. Sala at the Erie Eye Clinic after his surgery. Plaintiff claims that there was no reason why he should not have been able to keep the bag with him in his cell because other inmates were allowed to keep the same or similar bags with them in their cells. He also states that he was not given the option of sending the bag home if the DOC considered it "contraband". The DOC's response was that it was not "medicallynecessary" for Plaintiff to keep the bag in his cell because the bag's sole purpose was to hold the prescriptions and the tape for his eye.

3. Library Job (Count Three)

Plaintiff states that he was initially hired to work in the library in April 2011. He started at the circulation desk and had to "earn" his position as a Legal Aide about a year later. The Third Amended Complaint alleges a litany of events, poor evaluations, issues with other inmates, etc., which culminated in Plaintiff being moved back to the circulation desk in July 2012. Plaintiff claims that he was then fired on November 14, 2012, after an incident with another inmate (Culver). At a subsequent staffing on November 21, 2012, it was determined by vote that Plaintiff would be removed from his library position. Plaintiff alleges that he was not allowed to call witnesses or present any evidence at the staffing to show that the other inmate was at fault. He also claims that he was wrongfully terminated from his job because it was done by someone who did not have the authority to do so.

4. Library Closures (Count Four)

Plaintiff claims that the library was closed from December 23, 2012, through January 1, 2013, and that this caused him to miss five scheduled law library sessions. He also missed three scheduled sessions due to library closures in April, as well as two in May, one in July and two in August 2013. Plaintiff states that he was doing legal work on several cases during this time period but he does not allege that he suffered any prejudice as a result of the library closures.

5. Wages, Costs and Postage (Counts Five and Six)

Plaintiff claims that he is owed money in lost wages from November 15, 2012, through November 21, 2012, due to his wrongful termination from his library job by someone other than his supervisor. He also claims that he should be reimbursed for postage expenses he incurred byhaving to file grievances related to the wrongful termination, and $18.84 in postage and copying expenses he incurred during the months of January and February 2013, which he claims should not have been charged to him due to his indigency.

B. Standard of Review

Recently, the United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); seealsoCovington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir.2013).

Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).

Plaintiff is proceeding pro se and therefore this Court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a section 1983 action, the court must "apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs,165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.") (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).

C. Discussion

The Third Amended Complaint is 37 pages of single space type. While Plaintiff has numbered his paragraphs, there seems to be no apparent order, chronological or otherwise, and his allegations are repetitive and claims difficult to decipher. Liberally construed the undersigned believes that Plaintiff asserts the following legal claims. However, first it must be noted that any claim for injunctive relief is now moot because Plaintiff is no longer incarcerated. See Candelaria v. Coughlin, 787 F. Supp. 368, 378 (S.D.N.Y.), aff'd, 979 F.2d 845 (2d Cir. 1992). Accordingly, the Court should dismiss Plaintiff's claims for injunctive relief.

1. ADA and Rehabilitation Act Claims

Plaint...