Ernest Wholaver, Jr. v. Jaime Sorber ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-3190
__________
ERNEST RAY WHOLAVER, JR.,
Appellant
v.
MR. JAIME SORBER, Superintendent; JANE/JOHN DOE, Medical Supervisor
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:22-cv-00492)
District Judge: Honorable Gene E. K. Pratter
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 3, 2023
Before: SHWARTZ, BIBAS, MONTGOMERY-REEVES, Circuit Judges
(Opinion filed November 9, 2023)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Ernest Wholaver, proceeding pro se, appeals the orders of the United States
District Court for the Eastern District of Pennsylvania dismissing his complaint and
denying him leave to file any amended complaint. We will affirm the judgment of the
District Court.
Wholaver initiated this action by filing a complaint pursuant to 42 U.S.C. § 1983in Pennsylvania state court. He claimed that the Superintendent (Sorber) and an unnamed
medical supervisor (Doe) of the State Correctional Institute at Phoenixville (SCI
Phoenixville) and the Secretary of the Pennsylvania Department of Corrections (Wetzel),
failed to adequately implement their COVID-19 protocols. Wholaver alleged that this
failure constituted deliberate indifference to the substantial risk of harm posed by
COVID-19. The matter was removed to the Eastern District of Pennsylvania, where the
District Court dismissed the complaint for failure to state a claim. Wholaver sought leave
to file an amended complaint,1 which the District Court denied as futile because the
action could not be saved by further amendment. Wholaver then instituted the present
appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291.2 We exercise plenary review
over a district court’s order dismissing a complaint for failure to state a claim. See Allah
v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To avoid dismissal on the pleadings, a
1
Because Wholaver’s proposed amended complaint sought, in part, to remove Wetzel as
a named Defendant, we do not consider the District Court’s dismissal of the complaint
against Wetzel as raised by this appeal.
2
We have considered the parties’ arguments as to jurisdiction and have concluded that
we have jurisdiction over this appeal. Cf. Borelli v. City of Reading, 532 F.2d 950, 951 n.
1 (3d Cir. 1976).
2
complaint, liberally construed and accepted as true, must “state a claim to relief that is
plausible on its face” by including facts that “permit the court to infer more than the mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); see Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021).
We review a district court’s decision denying leave to amend for an abuse of discretion.
Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008).
To state an Eighth Amendment claim,3 a plaintiff must allege that he was
incarcerated under conditions imposing a substantial risk of serious harm, and that the
defendants were deliberately indifferent to that risk. Farmer v. Brennan, 511 U.S. 825,
834 (1994); Porter v. Pa. Dep’t of Corr., 974 F.3d 431, 441 (3d Cir. 2020). Deliberate
indifference requires that a defendant knew of and disregarded an excessive risk to
inmate health and safety. Farmer, 511 U.S. at 837. Prison officials who knew of a
substantial risk of harm are not liable “if they responded reasonably to the risk, even if
the harm ultimately was not averted.” Id. at 844.
Wholaver’s proposed amended complaint4 alleges that, due to his prison medical
history, Wholaver is at high risk for adverse effects from COVID-19. Wholaver claims
3
Wholaver’s brief argues that the District Court erred in construing his deliberate
indifference claim under the Eighth Amendment’s prohibition of cruel and unusual
punishments. ECF No. 8 at 1-3. This argument is mistaken. Conditions-of-confinement
claims “are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511
U.S. 825, 832 (1994) (internal quotation marks and citation omitted).
4
The proposed amended complaint improved upon certain factual allegations and
requested additional relief but is otherwise substantially similar to the original complaint.
As such, if it was correct for the District Court to determine that the proposed amended
complaint failed to state a claim, then the District Court’s dismissal of Wholaver’s
original complaint would not have resulted in error.
3
that toward the end of November 2021, he had an appointment with the counselor for his
housing block and, within the same week, an appointment with the unit manager for his
housing block, both of whom later tested positive for COVID-19. DCT Nos. 1-1 & 8;
ECF No. 10 at 2. Wholaver avers that SCI Phoenixville endangered high-risk inmates,
including himself, when it did not institute covid mitigation protocols—specifically, a
lockdown, contact tracing, and testing for the inmates in his housing block—immediately
after the covid-positive status of these employees was discovered. DCT Nos. 1-1 & 8;
ECF No. 10 at 2. The identified mitigation measures were not taken until several days
later, when multiple inmates, including Wholaver, either tested positive for or exhibited
symptoms of COVID-19 infection.5 DCT Nos. 1-1 & 8.
To the extent Wholaver contends that SCI Phoenixville’s implementation of the
Department of Correction’s mitigation protocols was inadequate, the District Court noted
many preventative measures that were taken from the start of the pandemic, including the
suspension of in-person visits, increased screening of staff for the virus, and enhanced
screening and quarantine for new inmates. DCT No. 6 at 6. Given these measures and the
unprecedented and evolving nature of the pandemic, Wholaver does not have a plausible
claim that prison officials responded unreasonably to or otherwise disregarded an
excessive risk of harm. See Farmer, 511 U.S. at 844; cf. Hope v. Warden York Cnty.
Prison, 972 F.3d 310, 330 (3d Cir. 2020) (stating that the failure to eliminate all risk of
5
According to Wholaver, his symptoms included difficulty breathing and loss of
strength; he was so weak that he required the use of a wheelchair to obtain medical
attention. DCT Nos. 1-1 & 8.
4
contracting COVID-19 in immigration detention did not establish deliberate
indifference); Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (holding that the
Bureau of Prisons was not deliberately indifferent to the risk of harm in light of
preventative measures taken in response to COVID-19). Wholaver’s belief that SCI
Phoenixville should have implemented the mitigation protocols differently or sooner does
not on its own amount to an Eighth Amendment violation. Cf. Hope, 972 F.3d at 329
(explaining that “mere disagreement” as to the response to the posed risk “will not
support constitutional infringement”).
To the extent Wholaver claims that SCI Phoenixville caused him to contract
COVID-19 by forcing the staff members on his housing block to “come to work knowing
that they had [COVID]-19 and were sick,” DCT No. 8 at ¶¶ 24-26, 30, Wholaver’s
amended allegations are too conclusory and speculative to state a plausible claim.
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Moreover, defendants in civil rights actions “must have personal involvement in
the alleged wrongs to be liable and cannot be held responsible for a constitutional
violation which he or she neither participated in nor approved.” Baraka v. McGreevey,
481 F.3d 187, 210 (3d Cir. 2007) (internal quotation marks and citations omitted); see
Ashcroft, 556 U.S. at 676 (stating that vicarious liability is generally inapplicable to a
§ 1983 suit). “Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence,” but these allegations “must be made
5
with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988).
To establish Defendants’ personal involvement, Wholaver claims that, (1) during
the relevant time-period, Sorber and Doe met daily to discuss COVID-19, including
mitigation efforts and who was at high risk, DCT No. 8 ¶ 17; (2) SCI Phoenixville forced
staff members to come to work knowing that they had COVID-19 and were ill, DCT No.
8 ¶¶ 23-26; (3) Defendants had some sort of knowledge regarding “what was happening
on” his housing block, DCT No. 8 ¶¶ 23-26, and (3) Defendants knew that the two
housing unit employees were COVID-19 positive and endangered the high-risk inmates
in his housing unit by not immediately instituting COVID-19 protocols, DCT No. 8 ¶ 30.
We agree with the District Court that these allegations are insufficient to sufficiently
allege the personal involvement of Defendants Sorber and Doe. See Ashcroft, 556 U.S. at
676; Rode, 845 F.2d at 1207. Finally, given the preventative measures that were taken
and Wholaver’s overly conclusory factual averments, we see no error in the District
Court’s determination that any further amendment of the complaint would be futile. DCT
No. 14 n. 1.
Accordingly, we will affirm the District Court’s orders.6
6
On June 16, 2023, Wholaver filed a motion to compel a response brief. That motion is
denied as moot.
6