M. Ortiz v. Superintendent L. Estock

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mac Kenneth Ortiz, :
Petitioner :
:
v. : No. 514 M.D. 2020
: Submitted: September 17, 2021
Superintendent Lee Estock, :
Pa. Board of Probation and Parole, :
Pa. Department of Corrections, :
Philadelphia District Attorney’s Office, :
Pa. Attorney General’s Office - Josh :
Shapiro, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: December 23, 2021
Before this Court, in our original jurisdiction, Mac Kenneth Ortiz
(Ortiz) filed a petition for review (Petition) against Superintendent Lee Estock of
the State Correctional Institution (SCI) at Pine Grove, the Pennsylvania Board of
Probation and Parole (Parole Board),1 the Pennsylvania Department of Corrections
(DOC), the Philadelphia District Attorney’s Office (DA), and the Pennsylvania
1
The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole
Board by Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776. See Sections
6101 and 6111(a) of the Prisons and Parole Code (Parole Code), as amended, 61 Pa. C.S.
§§6101, 6111(a).
Attorney General’s Office, Josh Shapiro (AG) (collectively, Respondents), alleging
violations of his constitutional right to be free from cruel and unusual punishment
under the Eighth Amendment to the United States Constitution. U.S. CONST. amend.
VIII. Specifically, he claims Respondents were deliberately indifferent to his medical
needs. He contends that his many medical conditions compromise his immune system,
placing him at risk of contracting the COVID-19 virus. As a result, he seeks
compassionate release, having less than three years on his sentence. Ortiz also raises
a Bivens2 claim. Respondents3 filed preliminary objections. Upon consideration,
we sustain the preliminary objections and dismiss the Petition with prejudice.
I. Background
Ortiz suffers from multiple medical conditions. In November 2017,
Ortiz had a hypoglycemic stroke requiring hospitalization. While in the hospital,
he was diagnosed with sarcoidosis, described as a condition in which inflammatory
cells collect in tissues and organs. More recently, he underwent gallbladder surgery.
He contends that DOC has not maintained his follow-up medical appointments as
recommended by medical specialists, and instead, he receives care at the SCI.
2
Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). A
Bivens action is the “federal equivalent” to a Section 1983 action against a state actor pursuant to
42 U.S.C. §1983. See Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001). “The
purpose of Bivens is to deter individual federal officers from committing constitutional
violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001).
3
The preliminary objections were filed on behalf of DOC, the Parole Board, and the
Superintendent. Neither the DA nor the AG filed a response to the action. However, Ortiz
acknowledged that the AG may be dismissed as an improper party and sought correction of the
record in that regard under Pa. R.A.P. 1926. See Answer to Prelim. Objs., ¶H. Moreover, this
Court may dismiss the Petition as to the DA for failure to state any specific claims against the
DA. See Mikkilineni v. Amwest Sur. Ins. Co., 919 A.2d 306 (Pa. Cmwlth. 2007). The Petition
refers to the Superintendent’s responsibility and prison officials generally; the DA is neither. As
such, the Petition is dismissed as to the DA.
2
Predicated on his medical conditions, Ortiz filed his Petition in this
Court, alleging violations of his Eighth Amendment right to be free from cruel and
unusual punishment in that Respondents provide deficient medical attention.
Specifically, he claims that “due to [his] age [and] several medical diagnos[e]s”4
there is a risk of contracting the COVID-19 virus. Pet. ¶6.
In response, Respondents filed preliminary objections in the nature of
a demurrer. As to compassionate release, Respondents argue there is no cognizable
claim because the sentencing court alone has the jurisdiction to alter the sentence.
As to the Eighth Amendment claim, Respondents assert they are not deliberately
indifferent to Ortiz’s medical needs because there was no intentional delay or denial
of medical care.
Ortiz filed an answer to the preliminary objections advising that he
asserted additional claims.5 He also argues that Respondents’ inability to protect
inmates from contracting COVID-19 supports his deliberate indifference claim.6
II. Discussion
In his brief, Ortiz asserts that he is at a high risk of contracting
COVID-19 due to his multiple health conditions. He also claims prison conditions
subjecting him to the possibility of contracting COVID-19 or its variants while
4
Ortiz notes his medical history of manic depressive disorder, post-traumatic stress
disorder, chronic diabetes, neuropathy, cirrhosis of the liver, asthma and sarcoid disease. See Pet.
¶5.
5
Ortiz states he also asserted Eleventh and Fourteenth Amendment claims under the
United States Constitution, U.S. CONST. amends. XI, XIV. However, we discern no such claims
in the Petition.
6
Ortiz also filed an unrelated original jurisdiction matter at (Pa. Cmwlth., No. 615 M.D.
2018), challenging DOC’s mail procedure. He filed a request for relief related to the alleged
delay in receiving legal mail following his transfer to SCI-Houtzdale. By order dated March 15,
2021, this Court granted Ortiz additional time to serve the Petition.
3
incarcerated constitutes cruel and unusual punishment and challenges the efficacy of
the vaccine administered to him.
A. Demurrer
In reviewing preliminary objections, we must accept as true all well-
pled allegations of material facts, as well as all inferences reasonably deducible
from those facts. Key v. Pa. Dep’t of Corr., 185 A.3d 421, 423 n.3 (Pa. Cmwlth.
2018). However, this Court is not required to accept as true any unwarranted
factual inferences, conclusions of law, or expressions of opinion. Id. Only where
the pleading is “facially devoid of merit,” should the demurrer be sustained. Wurth
by Wurth v. City of Phila., 584 A.2d 403, 406 (Pa. Cmwlth. 1990) (en banc) (citation
omitted). Further, any doubt as to whether the law will permit recovery must be
resolved in favor of the non-moving party. Key.
At the outset, we dismiss Ortiz’s Bivens claim because the claim
requires a federal actor in order to be actionable. See Bivens. None of the named
respondents is a federal actor. Therefore, this claim fails as a matter of law, and it is
dismissed with prejudice.
Next, we turn to the Eighth Amendment claim. “DOC is charged with
ensuring prisoners’ medical needs are met.” Kretchmar v. Com., 831 A.2d 793,
797 (Pa. Cmwlth. 2003), appeal denied, 831 A.2d 793 (Pa. 2004) (quoting Estelle,
v. Gamble, 429 U.S. 97, 103 (1976) (“These elementary principles establish the
government's obligation to provide medical care for those whom it is punishing by
incarceration.”)). In Estelle the Supreme Court of the United States held that
“deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth
4
Amendment.” Tindell v. Dep’t of Corr., 87 A.3d 1029, 1038 (Pa. Cmwlth. 2014)
(quoting Estelle, 429 U.S. at 104).
To state a cognizable deliberate indifference claim under the Eighth
Amendment, an inmate must allege facts that show a failure to respond to medical
complaints or render medical treatment. Estelle. Complaints regarding the quality
of medical treatment do not rise to the level of a constitutional claim. See Tindell.
Specifically, “disagreement as to the course of treatment . . . do[es] not rise to the
level of a constitutional violation merely because the patient is a prisoner.” Estelle,
429 U.S. at 106. Rather, “[i]n order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs. It is only such indifference that can offend the ‘evolving
standards of decency’ in violation of the Eighth Amendment.” Tindell, 87 A.3d at
1038. Accordingly, the type of medical care rendered and disagreement with prison
medical staff regarding treatment options is also not actionable.
Whether the medical need of an inmate is sufficiently serious to
constitute an injury amounting to cruel and unusual punishment is an objective
inquiry. Estelle, 429 U.S. at 106-07. This Court explained:
Common factors relied upon by the courts to determine if a medical
need is sufficiently serious to fall within the ambit of the Eighth
Amendment include whether the medical need is: (i) one that has been
diagnosed by a physician as requiring treatment; (ii) one that is so
obvious that a lay person would easily recognize the necessity for a
doctor’s attention; (iii) one where denial or delay of treatment causes an
inmate to suffer a life-long handicap or permanent loss; (iv) one where
denial or delay of treatment results in unnecessary and wanton
infliction of pain; (v) one that significantly affects an individual’s daily
activities; or (vi) one that causes chronic and substantial pain.
5
Id. at 1038-39 (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998);
Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
Here, Ortiz complains about the level of medical care; critically, he
does not claim that he is not receiving any medical care at all. Rather, he contends
the level of medical care he receives is “mediocre.” Pet. ¶4.
To the extent Ortiz claims that exposure to COVID-19 while
incarcerated places him at greater risk of illness based on his medical conditions,
we discern no merit in that contention as a basis for a deliberate indifference claim.
He did not allege any facts indicating an indifference to his medical conditions,
much less an intentional or deliberate indifference. The mere possibility of being
susceptible to COVID-19 does not rise to the level of deliberate indifference to an
inmate’s serious medical needs.
III. Conclusion
For the foregoing reasons, we sustain the demurrer as to both the
Bivens and Eighth Amendment claims and dismiss the Petition with prejudice.
______________________________
J. ANDREW CROMPTON, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mac Kenneth Ortiz, :
Petitioner :
:
v. : No. 514 M.D. 2020
:
Superintendent Lee Estock, :
Pa. Board of Probation and Parole, :
Pa. Department of Corrections, :
Philadelphia District Attorney’s Office, :
Pa. Attorney General’s Office - Josh :
Shapiro, :
Respondents :
ORDER
AND NOW, this 23rd day of December 2021, the preliminary
objections filed by Respondents to the petition for review (Petition) filed by Mac
Kenneth Ortiz, Petitioner, are SUSTAINED, and the Petition is DISMISSED
WITH PREJUDICE.
______________________________
J. ANDREW CROMPTON, Judge