Spencer v. Varano, Civil No. 3:17-cv-2158

MARIA SPENCER, Plaintiff v. DAVID VARANO, et al., Defendants

Civil No. 3:17-cv-2158

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 9, 2018

(Judge Mariani)

MEMORANDUM

On November 15, 2017, Plaintiff Maria Spencer ("Spencer"), an inmate formerly housed at the Columbia County Prison, in Bloomsburg, Pennsylvania, commenced this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as Defendants are former Warden William Campbell¹, Deputy Warden David Varano, Lottie Neiswender, R.N., Janelle Ackerman, Joseph Fallencer, and Shawn McGlaughlin, M.D. (Doc. 1). The allegations of the complaint pertain to Spencer's incarceration at the Columbia County Prison. (Id.).

Presently pending before the Court is a motion (Doc. 28) to dismiss by Defendants Varano, Neiswender, and Ackerman, and a motion (Doc. 30) to dismiss by Defendant McGlaughlin. Spencer filed a brief in opposition to Defendants' motions to dismiss. (Doc.43). In her opposition brief, Spencer only addresses Defendants' arguments regarding the doctrine of res judicata, and the arguments regarding her request for punitive damages and attorney's fees. (See Doc. 43). Spencer does not respond to any of the other arguments set forth in the motions to dismiss. Because Spencer failed to respond to the remaining arguments, they are deemed unopposed and abandoned. See M.D. Pa. Local Rule 7.6; Sikkelee v. Precision Airmotive Corp., 2011 WL 1344635 (M.D. Pa. 2011) (dismissing claims as unopposed when the plaintiff failed to respond to arguments made by the defendants in support of their motion to dismiss); Hoffman v. Dougher, 2006 WL 2709703, at *4 (M.D. Pa. 2006) (granting defendant's motion to dismiss on plaintiff's substantive due process claim that was treated as abandoned where plaintiff failed to offer any argument in support of the claim). Consequently, the motions are ripe for disposition and, for the reasons set forth below, the Court will grant the motions to dismiss.

I. Motion to Dismiss Standard of Review

A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

"Though a complaint 'does not need detailed factual allegations, . . . a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

"[W]here 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 show[n] - that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marksomitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court finds that amendment would be inequitable or futile, the court must inform the plaintiff that he or she has leave to amend the complaint within a set period of time.

Id.

II. Allegations of the Complaint

Spencer alleges that from July 29, 2014 through August 12, 2015, and October 3, 2015 through November 23, 2015, Defendants violated her constitutional rights when she was housed as a pretrial detainee at the Columbia County Prison. (See Doc. 1).

Spencer alleges that Defendants Varano, Neiswender, Ackerman, and McGlaughlin were deliberately indifferent to her serious medical needs. (Doc. 1, p. 9). Specifically, Spencer alleges that Varano and Neiswender placed non-medically cleared inmates in her cell. (Id.). She alleges that Varano and Neiswender failed to provide medication or medical care between the hours of 10:00 p.m. and 6:00 a.m., and instead provided medication three times per day, at 6:00 a.m., 3:00 p.m., and 8:00 p.m., in accordance with prison policy. (Id. at pp. 9-10). She similarly alleges that Defendant McGlaughlin refused to administermedication at the prescribed times and instead followed the prison's med-pass procedures and provided medication up to three times per day. (Id. at p. 10). Spencer alleges that the failure to take her medications at the prescribed times resulted in harm to her transplanted kidney and subjected her to the risk of having a stroke. (Id.). She further alleges that Defendants Varano, Neiswender, and McGlaughlin refused to provide treatment to prevent vomiting secondary to another underlying medical condition, gastroparesis. (Id. at p. 10).

Spencer next alleges that Varano, Neiswender, and Fallencer failed to provide her with medical diet meals. (Id. at p. 9).

Spencer alleges that Defendant Neiswender intentionally delayed scheduling an ophthalmology appointment which resulted in damage to her eyes. (Id. at p. 10). Spencer further alleges that Defendant Neiswender only provided her with one needle per week to inject her insulin, allowed other inmates to use her lancet pen, failed to provide medication if she was too ill to walk to the medication line, and failed to provide her test results and glucose logs to the treating medical specialist. (Id. at 10-11).

Spencer alleges that Defendants Varano and Ackerman placed her in solitary confinement, and denied her phone, commissary, and visiting privileges in retaliation for filing grievances. (Id. at p. 11). She likewise alleges that Defendant Varano placed her in solitary confinement in retaliation for filing a federal lawsuit, and failed to provide her with personal items purchased by her family. (Id. at pp. 11-12). Spencer claims that DefendantsVarano and McGlaughlin transferred her to state prison in retaliation for filing grievances. (Id. at p. 12).

Spencer alleges that Defendant Varano enforced a discriminatory policy by allowing her to be housed on the medical block with an unsanitary shower. (Id. at p. 12).

Spencer next claims that Defendant Varano denied her access to the courts based on an alleged inadequate law library, and failure to apply adequate postage to her court mailings. (Id. at p. 13). She also sets forth Sixth Amendment and Due Process claims against Defendant Varano. (Id. at p. 13).

For relief, Spencer requests compensatory and punitive damages, as well as attorney's fees and costs. (Id. at p. 3).

III. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege "the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).

A. Res Judicata

Defendants move to dismiss certain claims against them based on the doctrine of res judicata due to the fact that Spencer previously filed the identical claims in a prior action. (Doc. 29, pp. 4-7; Doc. 31, pp. 6-7).

Res judicata is an affirmative defense that may be properly raised in a Rule 12(b)(6) motion when its applicability is apparent on the face of the complaint. Rycoline Products, Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). Res judicata comprehends both "claim preclusion" and "issue preclusion." Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). Claim preclusion "applies to all claims actually brought or which could...