             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David V. Jordan,                               :
                        Appellant              :
                                               :
                 v.                            : No. 325 C.D. 2017
                                               : Submitted: October 20, 2017
Unit Manager Perry, et al.                     :


BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                FILED: November 15, 2017


                 David V. Jordan (Jordan) appeals the order of the Court of Common
Pleas of the 37th Judicial District, Forest County Branch (trial court) sustaining
Unit Manager David Perry (Unit Manager Perry) and Corrections Officer Bundy’s1
(Officer Bundy) (together, Prison Employees) preliminary objections in the nature
of a demurrer because his amended complaint failed to plead a cause of action
alleging that Prison Employees were deliberately indifferent to his pain and,
therefore, liable under 42 U.S.C. § 1983.2 For the following reasons, we reverse
and remand.

       1
           There is no reference in the record as to Officer Bundy’s first name.

       2
         42 U.S.C. § 1983 created an action for deprivation of federal rights by persons acting
under the color of state law. To state a claim under Section 1983, a plaintiff must (1) allege a
(Footnote continued on next page…)
                                                  I.
                 Jordan is an inmate who was formerly incarcerated at the State
Correctional Institution at Forest (SCI-Forest) where all the matters alleged in his
amended complaint3 took place4 and where Prison Employees are employed.
Jordan alleges that he suffers from pain in his left leg due to a gunshot wound and
Prison Employees did not assign him a bottom bunk despite a prison doctor’s
medical instructions that he sleep on the bottom bunk in his cell.


                 Specifically, he alleged that Unit Manager Perry was responsible for
bed assignments, that both Prison Employees were assigned to his block-housing
unit, and that both Prison Employees were acting under “color of state law.”
(Record (R.) at No. 28, Amended Complaint at 2.) He also alleged that Prison
Employees were “responsible for the care, custody or control of any or all inmates
housed [in the housing unit].” (Id.) Jordan alleged that his doctor contacted the
nurse supervisor at SCI-Forest and directed him to “contact the housing unit and


(continued…)

violation of rights secured by the United States Constitution and/or the laws of the United States,
and (2) show that the alleged deprivation was committed by a person acting under color of state
law. Anelli v. Arrowhead Lakes Community Association, Inc., 689 A.2d 357 (Pa. Cmwlth.
1997).

       3
         Jordan originally filed a petition for review with this Court in which he made the same
allegation that Prison Employees wrongfully ordered him to sleep on a top bunk despite a
doctor’s orders to put him on a bottom bunk. We transferred the matter to the trial court due to
the lack of original jurisdiction. Jordan later filed the amended complaint that is the subject of
this appeal.

       4
           Jordan is presently incarcerated at SCI-Fayette.




                                                  2
tell them [Jordan] is not allowed to be on a top bunk.” (Id. at 4.) Furthermore,
Jordan stated that he:

              [R]aised the fact that he is “bottom bunk status” to
              [Prison Employees], but they both refused to do anything
              about it, despite [the fact] that [Jordan’s] order by a
              [d]octor for a bottom bunk was foreseeable [sic] via
              computer, medical and housing unit files.


(Id. at 4-5.) Jordan alleged that Prison Employees knew of his request and his
condition and intentionally kept him on the top bunk despite these facts. Finally,
Jordan alleged that Prison Employees’ refusal to grant his request to be placed on
the bottom bunk constitutes deliberate indifference to his medical needs in
violation of his rights under the Eighth Amendment to the United States
Constitution.5 He seeks both compensatory and punitive damages.6


              Prison Employees then filed preliminary objections arguing, among
other things not relevant here, that Jordan failed to state a claim upon which relief
could be granted.        The trial court sustained Prison Employees’ preliminary
objections and dismissed Jordan’s amended complaint, agreeing with Prison
Employees that Jordan’s alleged injuries resulting from his assignment to the top
bunk were de minimis and did not rise to the level of a serious medical need.


       5
         U.S. Const. amend. VIII provides, “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”

       6
       Jordan also requested injunctive relief in his amended complaint. However, this is now
moot because Jordan no longer resides at SCI-Forest and is no longer subject to Prison
Employees’ care.



                                              3
Furthermore, the trial court found, based on the facts averred in the amended
complaint and Prison Employees’ preliminary objections, that Prison Employees
did not act intentionally with respect to Jordan’s incorrect bunk assignment. This
appeal followed.


                                         II.
             The Eighth Amendment prohibits “cruel and unusual punishment.”
U.S. Const. amend. VIII. In Estelle v. Gamble, the United States Supreme Court
found that “deliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain.’” 429 U.S. 97, 104 (1976) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)). This is true whether the indifference
is by “prison doctors in their response to the prisoner’s needs or by prison guards
in intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05.


             In order to state a claim, a prisoner must allege facts or omissions
sufficiently harmful to show deliberate indifference to serious medical needs. Id.
at 106.   A defendant exhibits deliberate indifference if he (i) knows of and
disregards an excessive risk to the inmate’s health or safety; (ii) was aware of facts
from which an inference could be drawn that a substantial risk of serious harm
exists; and (iii) draws the inference. Tindell v. Department of Corrections, 87 A.3d
1029, 1039 (Pa. Cmwlth. 2014).


             With respect to the second prong of the standard, a “serious medical
need” exists if a prison official’s act or omission results in “the denial of ‘the



                                          4
minimal civilized measure of life’s necessities.’” Farmer v. Brennan, 511 U.S.
825, 834 (1970) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). When
determining whether the medical need of an inmate is sufficiently serious, courts
rely on certain factors. These factors include whether the medical need is one that:
(i) has been diagnosed by a physician as requiring treatment; (ii) is so obvious that
a lay person would easily recognize the necessity for a doctor’s attention; (iii)
where denial or delay of treatment causes the inmate to suffer a life-long handicap
or permanent loss; (iv) where denial or delay of treatment results in unnecessary
and wanton infliction of pain; (v) significantly affects an individual’s daily
activities; or (vi) causes chronic and substantial pain. Tindell, 87 A.3d at 1038-39.


             The question before us is whether Jordan pled sufficient facts that, if
proven, would satisfy the elements necessary to state a cognizable claim for
deliberate indifference under the Eighth Amendment. An appellate court can only
sustain a demurrer where “the complaint is clearly insufficient to establish the
pleader’s right to relief.” County of Allegheny v. Commonwealth, 490 A.2d 402,
408 (Pa. 1985). If the facts as pled state a claim for which relief may be granted,
then there is sufficient doubt to require an appellate court to reject the preliminary
objections in the nature of a demurrer. Id.


             Prison Employees argue that Jordan did not make out a claim of
deliberate indifference resulting in an Eighth Amendment violation because the
reason they did not follow the medical direction to assign Jordan to the bottom
bunk was due to an oversight on the part of the prison staff. They contend that
Jordan’s amended complaint is insufficient to make out a claim of deliberate



                                          5
indifference because the “indifference” must be intentional. They also contend
that Jordan was only assigned to the top bunk for approximately 41 days. They
further argue that the temporary nature of his assignment to the top bunk rendered
any harm de minimis and, therefore, does not rise to the level of an Eighth
Amendment violation. However, even if Prison Employees are correct, nowhere in
the record is there anything to support their allegation that Jordan’s assignment to a
top bunk was an oversight or that he was only assigned to the top bunk for 41 days.


             In Jordan’s amended complaint, he alleges that he informed both
Prison Employees that a prison doctor ordered that he be placed on a bottom bunk
because of his leg condition.     He further alleges that both Prison Employees
refused to place him on the bottom bunk despite this request and, as a result, he
suffered continued pain in his left leg. Chronic and substantial pain may rise to the
level of a serious medical need under a deliberate indifference analysis. Tindell, 87
A.3d at 1039.


             Based on these allegations, Jordan sufficiently pled that both Prison
Employees were aware of the pain in his leg and his request to be placed on the
bottom bunk and the doctor’s order regarding his bunk placement. He, therefore,
satisfied the first prong of deliberate indifference. Jordan also alleged that Prison
Employees’ refusal to carry out medical orders caused him to continue to
experience pain in his left leg, thus satisfying the second prong of deliberate
indifference. Accordingly, Jordan sufficiently pled facts that, if proven, would
satisfy the elements of a claim for deliberate indifference under Section 1983 and
the Eighth Amendment and, therefore, the demurrer cannot be sustained.



                                          6
            For the reasons above, we reverse the trial court decision sustaining
Prison Employees’ preliminary objections in the form of a demurrer and
dismissing Jordan’s amended complaint.




                                     ___________________________________
                                     DAN PELLEGRINI, Senior Judge




                                         7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David V. Jordan,                          :
                    Appellant             :
                                          :
             v.                           : No. 325 C.D. 2017
                                          :
Unit Manager Perry, et al.                :




                                     ORDER


             AND NOW, this 15th day of November, 2017, the January 20, 2017
order of the Court of Common Pleas of the 37th Judicial District, Forest County
Branch in the above-captioned matter is reversed, and the matter is remanded to
the trial court for further proceedings consistent with this opinion.


             Jurisdiction relinquished.



                                          ___________________________________
                                          DAN PELLEGRINI, Senior Judge
