             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Francis B. Harris,                          :
                      Appellant             :
                                            :
              v.                            : No. 2083 C.D. 2016
                                            : Submitted: April 13, 2017
Pennsylvania Department of                  :
Corrections                                 :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                      FILED: May 17, 2017


              Francis B. Harris (Harris) appeals the Court of Common Pleas of Greene
County’s (trial court) dismissal of his Petition for Review1 (Petition) alleging that the
Commonwealth of Pennsylvania, Department of Corrections and a number of its
employees and agents (collectively, the Department) violated his constitutional and
statutory rights and caused him harm by frustrating his ability to purchase extra wide
boots to alleviate his pain from plantar fasciitis.




       1
        Harris initially filed his Petition with this Court but we transferred it to the trial court
because he sought money damages, giving the trial court original jurisdiction. See Fawber v.
Cohen, 532 A.2d 429, 432-33 (Pa. 1987).
                                                I.
              The facts as alleged in the Petition are as follows. Harris is currently
incarcerated for a capital crime at the State Correctional Institution at Greene (SCI-
Greene). He complained of foot pain to the medical staff at SCI-Greene and was
diagnosed with plantar fasciitis.2 He was provided orthopedic inserts but they did not
comfortably fit in his state-issued boots. Other inmates who experienced similar
problems were provided night splints, orthotic shoes or were given permission to
order Timberland boots. Harris requested medical shoes from Defendant Dr. Jin of
SCI-Greene’s medical staff who denied his request, saying, “You have big feet, that’s
not a medical problem.” (Petition for Review, p. 7.) Harris alleges that when he
reminded him that he had plantar fasciitis, Dr. Jin responded, “So what, everybody’s
got plantar fasciitis?” Id. He was then informed that if he wanted, he could purchase
a pair of Timberland boots.


              Harris then submitted a request to be allowed to order a pair of
Timberland boots from an outside vendor to Defendant John McAnany (McAnany), a
nursing supervisor on the medical staff. McAnany told him to request an approval
form from the doctor who was treating him. Harris received verbal confirmation
from Dr. Jin that he could order the boots but when he attempted to do so, Stephen
Longstreth (Longstreth), a unit manager, told Harris he would need a signed approval
form from a member of the medical staff to do so. After requesting an approval form
to order the boots, Dr. Jin informed Harris that no such approval form existed. Harris


       2
        Plantar fasciitis is inflammation in the sole of the foot. Fasciitis and Plantar, Stedman’s
Medical Dictionary, pp. 567 & 1210 (25th ed. 1990).




                                                2
again attempted to order the boots but, because he did not have written permission,
his order was not placed.


              When Harris went to the medical infirmary again complaining of the
pain in his foot, he requested night splints. A member of the medical staff informed
him that night splints were not appropriate for him but that he had been approved to
purchase rigid sole boots for over six months. Harris informed Longstreth and was
told once again that the approval needed to be in writing.


              Harris filed a grievance against Longstreth, insisting that the medical
staff did not have the type of form the unit manager requested. He received an Initial
Response from Defendant Nedra Grego (Grego), a residential nurse (RN) Supervisor,
informing Harris that the delay was due to a miscommunication between the RN staff
and the unit manager:

              Mr. Longstreth was under the impression that a Health Care
              Items Receipt would be issued. Since Medical is not
              issuing the boots to you a Health Care Items Receipt would
              not be done…. If you would have signed up for sick call or
              wrote a request to the RN Supervisors, this issue would
              have been taken care of.[3]


Grego resolved the issue and Harris received medical approval to order the boots.




       3
          Record (R.) Item No. 20, Copy of the Index of Documents mailed to Francis B. Harris and
the Pennsylvania Department of Corrections, Exhibit Y, Initial Response to Grievance No. 575764
filed 07/08/2015, dated 07/28/2015.



                                               3
              Despite receiving approval to purchase the boots, Harris appealed to the
Facility Manager, Defendant Robert Gilmore (Gilmore), to voice his dissatisfaction
with the process. He alleged that Longstreth refused to “simply pick [] up his phone
and [get] the info needed as he [had] done for other inmates but refused to do for
[Harris].”4 Harris also alleged that by not providing approval to purchase the boots
for six months showed deliberate indifference to his pain. He received a response
from Gilmore noting that the issue was the result of a miscommunication and it had
been resolved.


              Harris then appealed to the Secretary’s Office of Inmate Grievances and
Appeals5 and received the following response from Dorina Varner, the Chief
Grievance Officer:

              Your concern of not being provided proper medical care
              regarding the approval of new boots was reviewed by the
              staff of the Bureau of Health Care Services. They reviewed
              the medical record and determined that the medical care
              provided was reasonable and appropriate. The findings of
              the review concur with the superintendent’s response. No
              evidence of neglect or deliberate indifference has been




       4
         R. Item No. 20, Copy of the Index of Documents mailed to Francis B. Harris and the
Pennsylvania Department of Corrections, Exhibit Z, Appeal to Facility Manager of Grievance No.
575764, dated 07/31/2015.

       5
         The language on the Final Appeal Decision provides that “[t]he following response is
being provided based on a review of the entire record of this grievance.” (R. Item No. 20, Copy of
the Index of Documents mailed to Francis B. Harris and the Pennsylvania Department of
Corrections, Exhibit EE, Final Appeal Decision of Grievance No. 575764, dated 10/06/2015).




                                                4
               found. Therefore, your grievance appeal to this office is
               denied as well as your requested relief.[6]


               Harris then purchased the boots, but after receiving them, he realized
that he had been forced to pay $13.25 more for the boots than other inmates. When
he requested a refund of the difference, Defendant Victor Santoya (Santoya)
confiscated the boots purportedly because he refused to pay for the boots. The
amount for the boots was eventually credited to his commissary account. In his brief,
Harris states that after the boots were confiscated, he was told he did not have to pay
for the boots because he was going to be issued a pair of orthotic shoes. Harris
contends that confiscation of the boots was an act of retaliation for filing a grievance.


               In his Petition, Harris also states that his plantar fasciitis causes him to
experience pain in the morning that he cannot go to “morning yard” for exercise. He
contends that the Department failed to accommodate his condition by failing to
provide him with a medical permission slip allowing him to go to “afternoon yard.”


               Harris alleges that the Department’s conduct in preventing him from
purchasing boots or failing to provide him with orthotic shoes to alleviate the pain
from his plantar fasciitis constituted cruel and unusual punishment under the Eighth
Amendment to the United States Constitution;7 his equal protection rights were

       6
         R. Item No. 20, Copy of the Index of Documents mailed to Francis B. Harris and the
Pennsylvania Department of Corrections, Exhibit EE, Final Appeal Decision of Grievance No.
575764, dated 10/06/2015.

       7
        The facts pled in Harris’s Petition give rise to an action under 42 U.S.C. § 1983. To state a
claim under Section 1983, a plaintiff must 1) allege a violation of rights secured by the United
States Constitution and/or the laws of the United States, and 2) show that the alleged deprivation
(Footnote continued on next page…)

                                                 5
violated because he was treated differently than other inmates who had plantar
fasciitis; not permitting him to go to “afternoon yard” violated Section 202 of the
Americans with Disabilities Act (ADA);8 the seizing of his boots constituted unlawful
retaliation and theft by deception;9 and his treatment constitutes medical malpractice
and negligence. Harris requested an order directing the Department to adhere to the
approved medical plan to treat his plantar fasciitis, costs associated with the filing of
this lawsuit, as well as an award of $97,000 in punitive damages.


                Before the Commonwealth filed a responsive pleading, the trial court
dismissed the Petition for failure to state a claim on which relief may be granted,
apparently under Section 6602(e)(2) of the Prison Litigation Reform Act (PLRA),
Act of June 18, 1998, P.L. 640, No. 84, as amended, 42 Pa.C.S. § 6602(e)(2), which
provides:


(continued…)

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). Pursuant to the Eighth Amendment, U.S.
Const. amend. VIII, “excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”

       8
           Title II of the ADA, 42 U.S.C. § 12132, provides:

                [N]o qualified individual with a disability shall, by reason of such
                disability, be excluded from participation in or be denied the benefits
                of the services, programs, or activities of a public entity, or be
                subjected to discrimination by any such entity.

       9
          Harris alleged that the Department engaged in theft by deception when it confiscated his
boots and refused to issue him a refund for the amount paid. However, Harris dropped that claim
after his commissary account was credited with the amount of the boots.




                                                  6
               Notwithstanding any filing fee which has been paid, the
               court shall dismiss prison conditions litigation at any time,
               including prior to service on the defendant, if the court
               determines…[t]he prison conditions litigation is frivolous or
               malicious or fails to state a claim upon which relief may be
               granted or the defendant is entitled to assert a valid
               affirmative defense, including immunity, which, if asserted,
               would preclude the relief.


This appeal followed.10


                                                 II.
               In this appeal, Harris contends that the trial court erred in dismissing his
Petition without giving him an opportunity to amend to correct any defects in an
effort to make out a cause of action. In Pelzer v. Wetzel, 101 A.3d 142 (Pa. Cmwlth.
2014), we held that it was improper not to allow an inmate to amend his complaint
after it had been dismissed on preliminary objections.11 While that case involved
dismissal on the basis of preliminary objections, when the trial court dismisses an
action under Section 6602(e)(2) of the Prison Litigation Reform Act, it has the same
effect. Given that the right to amend should be liberally granted at any stage of the
proceedings unless there is an error of law or resulting prejudice to an adverse party,



       10
          In reviewing a claim that a plaintiff has failed to set forth a cause of action, we accept as
true all well-pled material allegations in the petition, as well as all inferences reasonably deducible
therefrom. Aviles v. Department of Corrections, 875 A.2d 1209 (Pa. Cmwlth. 2005). However,
conclusions of law and unjustified inferences are not so admitted. Griffin v. Department of
Corrections, 862 A.2d 152 (Pa. Cmwlth. 2004).

       11
          Pa.R.C.P. No. 1028(c)(1) provides that “[a] party may file an amended pleading as of
course within twenty days after service of a copy of preliminary objections….”




                                                  7
when we dismiss a claim, it is understood that we also find that it would not be
possible for Harris to make factual amendments that would set forth a cause of action.


                                             A.
             Harris contends that the trial court erred in finding that he did not make
out a claim that the Department violated the Eighth Amendment by denying him the
opportunity to purchase boots or providing him with orthotic medical shoes to
alleviate the pain from his plantar fasciitis.


             The Eighth Amendment prohibits “cruel and unusual punishment.” U.S.
Const. amend. VIII. In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the United States
Supreme Court found that “deliberate indifference to serious medical needs of
prisoners constitutes” the unnecessary and wanton infliction of pain. 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.”      Id. at 104-05.
However, an inadvertent failure to provide adequate medical care cannot be said to
rise to the standard of unnecessary and wanton infliction of pain or to be “repugnant
to the conscience of mankind.” Id. at 105. A complaint that a physician has been
negligent in diagnosing or treating a medical condition “does not state a valid claim
of medical mistreatment under the Eighth Amendment.” Id. at 106.


             In order to state a claim, a prisoner must allege facts or omissions
sufficiently harmful to show (1) deliberate indifference or (2) serious medical needs.
Id. A defendant exhibits deliberate indifference if he “knows of and disregards an



                                             8
excessive risk to inmate’s health or safety.” Lopez v. Correctional Medical Services,
Inc., 499 Fed. Appx. 142, 146 (3d Cir. 2012).            Furthermore, “[m]ere medical
malpractice, negligence, and courses of treatment inconsistent with the desires of the
prisoner … do not constitute deliberate indifference to serious medical needs.” Id.
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 minimal civilized
measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1970).


             Even if we assume Harris’ plantar fasciitis is a serious medical need, he
has not shown deliberate indifference to that need. Harris admits that the medical
defendants issued him orthopedic inserts to address the pain caused by his plantar
fasciitis. His brief suggests that the Department has stated that it is going to provide
him with medical orthotics.        With respect to the nonmedical defendants, the
miscommunication with regard to the correct paperwork needed to order the boots
was eventually solved and Harris was allowed to purchase his boots. In any event,
this conduct “where the right hand does not know what the left hand is doing” is not
the deliberate indifference necessary to raise an Eighth Amendment claim.


             Because Harris did not establish that the defendants were deliberately
indifferent to his pain, the trial court did not err by dismissing his claim for failure to
state a cause of action based on cruel and unusual punishment.


                                            B.
             Harris also contends that he made out a claim that his equal protection
rights were violated because he was treated differently from other inmates when he



                                            9
was denied the opportunity to purchase a pair of boots while other inmates suffering
from plantar fasciitis were offered night splints, medical shoes or were allowed to
purchase boots from an outside vendor. Harris also argues that he was forced to pay
an extra $13.25 for his boots compared to other inmates.


            The Equal Protection Clause of the Fourteenth Amendment requires that
all persons similarly situated be treated alike. Iseley v. Beard, 841 A.2d 168 (Pa.
Cmwlth. 2004).     Claims of disparate treatment “must be supported by factual
allegations.” Mobley v. Coleman, 110 A.3d 216, 222 (Pa. Cmwlth. 2015). To make
out a claim, the plaintiff must show “intentional discrimination against [him] because
of [his] membership in a particular class, not merely that [he] was treated unfairly as
an individual.”   Handley v. Phillips, 715 F.Supp. 657, 673 (M.D. Pa. 1989).
Furthermore, a plaintiff must show that there is no “rational basis” for being treated
differently from other similarly-situated individuals. City of New Orleans v. Dukes,
427 U.S. 297, 303 (1993).


            Harris alleges that similarly-situated inmates with plantar fasciitis were
allowed night splints, medical shoes or the ability to purchase boots and that they
were not forced to pay extra. Treatment decisions are necessarily idiosyncratic to a
particular individual, which would mean that equal protection does not apply because
it is rational to treat each patient differently. In any event, Harris was allowed to
purchase boots and was later told that he would be given orthotics and that night
splints were not appropriate. As to whether he had to pay an extra $13.25 for his
boots compared to other inmates, even if true, this matter is moot since Harris admits
the money for the shoes, including the extra $13.25, has been deposited in his



                                          10
account. The trial court did not err in dismissing his appeal for failing to set forth a
cause of action under the Equal Protection Clause.


                                                  C.
               Harris further argues that he made out a claim that the Department
violated his rights under the ADA because it failed to reasonably accommodate his
disability caused by planter fasciitis12 by refusing to grant him permission to go to the
yard in the afternoon.


               Title II of the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. As used in the
ADA, “[t]he term ‘disability’ means, with respect to an individual—(A) a physical or
mental impairment that substantially limits one or more major life activities of such
individual.” 42 U.S.C. §12102(1)(A). The ADA defines “major life activities,” in


       12
           In Bannull v. Colvin, No. 3:11-CV-02150, 2013 WL 1653573, at *2 (M.D. Pa. 2013), the
District Court described “plantar fasciitis” as “involve[ing] pain and inflammation of a thick band
of tissue, called the plantar fascia, that runs across the bottom of [the] foot and connects [the] heel
bone to your toes. Plantar fasciitis is one the most common causes of heel pain. Plantar fasciitis
commonly causes stabbing pain that usually occurs with [the] very first step in the morning.
Once your foot limbers up, the pain of plantar fasciitis normally decreases, but it may return
after long periods of standing or after getting up from a seated position. It is commonly
thought of as being caused by a heel spur, but research has found that this is not the case. On x-ray,
heel spurs are seen in people with and without plantar fasciitis. Risk factors for plantar fasciitis
include tighter calf muscles that make it difficult to flex the foot and bring the toes up toward the
shin, obesity, a very high arch, repetitive impact activity and new or increased activity.” (Citations
and internal quotations omitted.) (Emphasis added.)




                                                 11
general, as including “caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending . . . and working.” 42 U.S.C.
§12102(2)(A) (emphasis added.)         Additionally, the definition of “disability” for
purposes of coverage under the ADA is construed in favor of broad coverage. 42
U.S.C. §12012(4)(A).


               In Goodman v. Georgia, 546 U.S. 151 (2006), the United States
Supreme Court held that a state prisoner may sue the state for monetary damages
under the ADA. In order to establish a claim under Title II of the ADA, a plaintiff
must establish that: (1) he is a qualified individual with a disability; (2) he was
denied the opportunity to participate in or benefit from the programs, services or
activities of a public entity; and (3) the denial of benefits was because of his
disability. See also Watson v. Department of Corrections, 990 A.2d 164, 168 (Pa.
Cmwlth. 2010) (holding that in order to establish a successful claim, an inmate
needed to allege that the Department discriminated against him because of his
disability).


               Harris asserts that his plantar fasciitis is worse in the morning when he is
scheduled to participate in the yard causing him to remain in his cell rather than risk
the pain. Because he is unable to participate in a public program, i.e., the yard, Harris
argues that the Department did not make a reasonable accommodation by giving him
permission to attend “afternoon yard” when his pain is diminished.


               This allegation is sufficient to make out a prima facie claim that Harris
was not given an opportunity to participate in the benefits of a program – yard time –



                                             12
which is substantial because yard time is limited time since he is incarcerated for a
capital offense. Given that Harris claimed his plantar fasciitis was worse in the
morning and got better as the day went on and that the condition was so severe that
he could not go to morning yard, he has set forth a prima facie case under the ADA
that, if proven, the Department failed to make a reasonable accommodation for his
disability, and we vacate the trial court’s dismissal of this claim.13


                                                D.
              Harris also argues that he made out a claim that the confiscation of his
Timberland boots was retaliation for filing grievances against Longstreth and
Santoya.


              A prisoner bringing a retaliation claim against prison officials must
prove three things: (1) that the conduct the inmate engaged in was constitutionally
protected; (2) that prison officials took adverse action; and (3) that the protected
conduct was a substantial or motivating factor for the adverse action. Yount v.
Department of Corrections, 966 A.2d 1115, 1120 (Pa. 2009). To demonstrate that he
suffered an adverse action, a plaintiff must show that the action is one which is
“sufficient to deter a person of ordinary firmness from exercising” his constitutional

       13
          Under 42 Pa.C.S. § 6602(e)(2), the trial court can dismiss an action based on a valid
affirmative defense. Section 7 of the federal PLRA requires inmates first to pursue all challenges
“with respect to prison conditions” through the highest level of the “available” administrative
procedures prior to filing a suit under the ADA or any other federal law. 42 U.S.C. § 1997e(a). The
Department Policy No. DC-ADM 006 details how an inmate can request an accommodation and
how the SCI and Department will process that request. There is no mention in Harris’s Petition that
he filed such a grievance. The trial court does not mention this as reason for dismissal, and the
Department does not refer to it in its brief.




                                                13
rights. Id. at 1121. If the prisoner meets this three-part prima facie test, the burden
shifts to the institution to rebut the presumption by establishing that the same adverse
action would have occurred absent the protected conduct for reasons reasonably
related to a legitimate penological interest. Rauser v. Horn, 241 F.3d 330, 334 (3d
Cir. 2001).


              To make out a retaliation claim, the plaintiff must allege facts that
sustain an inference that the adverse action was motivated by the constitutionally-
protected conduct.    As an example, in Richardson v. Wetzel, 74 A.3d 353 (Pa.
Cmwlth. 2013), an inmate brought a retaliation action against the Department, stating
that after he wrote a letter to the IRS, he was brought up on prison misconduct
charges which were fabricated.      Although the inmate claimed the charges were
fabricated as an act of retaliation against him, we held that the complaint did not
contain any factual averments that could sustain an inference that the Department
purposefully falsified the misconduct charges because of his communication with the
IRS, and we sustained the trial court’s dismissal of the action for failure to state a
claim. Id. at 358.


              Under those standards, the Petition does not make out a prima facie case
that the confiscation of Harris’s Timberland boots resulted from the filing of any
grievance. The Petition gives several different reasons as the basis for the claim:
Harris was retaliated against because he requested a refund of $13.25; the boots were
confiscated because he refused to pay for them, which could not be the case since
Harris paid for the boots prior to placing the order; and the boots were confiscated
because Harris was told he was going to be given orthotic shoes free of charge, and



                                          14
his account was credited with the amount he paid for the Timberland boots. None of
those factual allegations make out a claim that the boots were confiscated because
Harris filed a grievance. Because Harris failed to make out a prima facie case of
retaliation, the trial court’s dismissal of this claim was proper.


                                             E.
             Harris’s Petition also does not make out a claim that the conduct of SCI-
Greene’s medical staff in delaying permission for the boots fell within the medical
professional exception to immunity. Immunity has been waived for “[a]cts of health
care employees of the Commonwealth agency medical facilities or institutions or by a
Commonwealth party who is a doctor, dentist, nurse or related health care personnel.”
42 Pa. C.S. § 8522(b)(2).


             However, Harris admits in his Petition that the medical staff gave him
permission and that it was the non-medical employees who frustrated his ability to
purchase the boots. Because those other individuals are not health care employees, their
actions are not within the medical professional exception to immunity. See Moore v.
Department of Justice, 538 A.2d 111 (Pa. Cmwlth. 1988); Steinberg v. Department of
Public Welfare, 405 A.2d 1135 (Pa. Cmwlth. 1979).


             In any event, in Pennsylvania, a plaintiff in any action based upon an
allegation that a licensed professional deviated from the acceptable standard of
professional care must file a certificate of merit that states either:

             An appropriate licensed professional has supplied a written
             statement that there exists a reasonable probability that the
             care, skill or knowledge exercised or exhibited in the

                                             15
              treatment, practice or work that is the subject of the
              complaint, fell outside acceptable professional standards
              and that such conduct was a cause in bringing about the
              harm, or the claim that the defendant deviated from an
              acceptable professional standard is based solely on
              allegations that other licensed professionals for whom this
              defendant is responsible deviated from an acceptable
              professional standard, or expert testimony of an appropriate
              licensed professional is unnecessary for prosecution of the
              claim.


Pa. R.C.P. No. 1042.3(a). Because Harris failed to file a certificate of merit with
regard to his professional liability claim, the trial court properly dismissed this claim.


                                            F.
              Finally, Harris alleges that the non-medical defendants were negligent in
their acts which prevented him from purchasing boots to alleviate the pain in his foot.


              Except where the legislature specifically waives immunity, the
Commonwealth, and employees acting within the scope of their duties, are immune
from negligence suits. 42 Pa. C.S. § 8522(a). None of the conduct of the non-
medical defendants in this action falls within any exception to immunity where
sovereign immunity has been waived. Accordingly, the trial court correctly found
that Harris could not maintain his negligence claim against the non-medical
defendants.




                                            16
            For the reasons above, we affirm the trial court’s order with the
exception of Harris’s ADA claim, which we reverse and remand to the trial court for
the Department to file a responsive pleading to the remaining claim.



                                      ___________________________________
                                      DAN PELLEGRINI, Senior Judge




                                         17
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Francis B. Harris,                        :
                     Appellant            :
                                          :
             v.                           : No. 2083 C.D. 2016
                                          :
Pennsylvania Department of                :
Corrections                               :




                                      ORDER


             AND NOW, this 17th day of May, 2017, the Order of the Court of
Common Pleas of Greene County in the above-captioned case is affirmed with the
exception of Appellant Francis B. Harris’s Americans with Disabilities Act claim
which is reversed, and this matter is remanded to the trial court for the Pennsylvania
Department of Corrections to file a responsive pleading to the remaining claim.


             Jurisdiction relinquished.



                                          ___________________________________
                                          DAN PELLEGRINI, Senior Judge
