Opinion
Civil Action 2:21-cv-1209 ECF 79
01-11-2023
SHANE ALBERT EVERETTS, Plaintiff, v. MICHAEL WALTEMIRE, SHAUN SMITH, JOHN DOE #1, JOHN DOE #2, and BUTLER COUNTY, Defendants.
J. Nicholas Ranjan, District Judge.
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan, United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that the Partial Motion to Dismiss the Second Amended Complaintfor failure to state a claim filed by Defendants Butler County, Shaun Smith and Michael Waltemire (ECF No. 79) be granted in part and denied in part as follows. It should be denied without prejudice to the extent it seeks dismissal of claims stemming from Plaintiff's incarceration in the Butler County Prison on or about March 2, 2020. A determination of whether those claims are barred by the statute of limitations may be raised again on a motion for summary judgment. The Motion should be granted in all other respects. Plaintiff should not be given an opportunity to amend as it appears that allowing for further amendment would be futile. If the Court is to adopt this Report and Recommendation, then Butler County should be terminated as a defendant and the following claims would remain for disposition: (1) Plaintiff's claims stemming from his incarceration in the Butler County Prison on or about March 2, 2020; (2) Plaintiff's deliberate indifference claim against Defendant Waltemire based on denial of medical care; (3) Plaintiff's retaliation claim against Defendant Smith based on the issuance of a false misconduct; and (4) Plaintiff's claims against Defendants John Doe #1 and John Doe #2.
Defendants do not label their Motion as a Partial Motion to Dismiss, but it is appropriately read as such given that they do not move to dismiss all in the Second Amended Complaint.
II. REPORT
Plaintiff is an inmate currently incarcerated at the State Correctional Institution Camp Hill. At the time he initiated this case in September 2021 he was an inmate at the Butler County Prison in Butler, Pennsylvania. (ECF No. 1.) He was granted leave to proceed in forma pauperis on September 16, 2021, and his Complaint was filed the following day. (ECF Nos. 2 & 3.) After granting Plaintiff's request for voluntary dismissal, the case was closed on December 2, 2021. (ECF Nos. 13 & 14.) Shortly thereafter, Plaintiff filed an Amended Complaint and moved to reopen the case. (ECF Nos. 17 & 18.) The case was reopened on January 3, 2022, and the Amended Complaint was served on the named Defendants. (ECF No. 22.) Plaintiff was then given permission to file a Second Amended Complaint, which was filed on April 13, 2022. (ECF No. 71.)
The Second Amended Complaint alleges claims against the Defendants stemming from incidents that occurred while Plaintiff was an inmate at the Butler County Prison on three separate occasions. Defendants have filed a Motion to Dismiss the Second Amended Complaint for failure to state a claim along with a brief in support. (ECF No. 79 & 80.) In response, Plaintiff filed numerous briefs in opposition. (ECF Nos. 86, 87, 91, 93.) The Motion is now ripe for review.
A. Standard of Review
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
B. Plaintiff's Allegations
For the sake of clarity, the allegations will be summarized chronologically and not in the order in which they appear in the Second Amended Complaint.
1. March 2, 2020
Plaintiff alleges that on March 2, 2020, he was placed in a restraint chair at the Butler County Prison and held there for approximately 48 to 72 hours, only being released from the chair once every eight hours to get water. According to Plaintiff, the restraints on the chair were “improperly applied” and “overly tight” which caused numbness to his extremities and physical pain, and he was forced to keep a netted spit mask over his head, which he claims was for “punishment” and not officer safety. He alleges that his circulation was never checked, but he does state that his vitals were checked by a nurse once after approximately 24 hours. Plaintiff states that videos of him in the restraint chair were shown to all of the officers at the jail, including female officers, even though his genitals were exposed and could be seen on the video. He was told that the videos were used for training purposes, but he believes that they were shown only to humiliate him. Plaintiff states that the use of the restraint chair was cruel and unusual punishment, and he appears to allege that Butler County violated their restraint chair policy and that the individuals involved were deliberately indifferent to his health and safety during the time he was in the chair. He also appears to assert a claim for humiliation and a violation of his privacy rights stemming from use of the video of him in the chair. See ECF No. 71, pp.23-29.
In his Second Amended Complaint, Plaintiff identifies the following events as happening on the second weekend of June 2020, which he states was either June 12th or 13th. See ECF No. 71, p.5. According to Plaintiff's criminal docket sheets, which are a matter of public record, Plaintiff was picked up on June 13, 2020, and he was arrested for public drunkenness on June 14, 2020. His preliminary arraignment was held before Magisterial District Judge Lewis E. Stoughton the morning of June 14, 2020. His bail was set at $1,000, which was posted that same day. See Commonwealth v. Everetts, CP-10-CR-0000800-2020 (Butler Cty. Ct. of Comm. Pleas); see also Commonwealth v. Everetts, MJ-50302-CR-0000213-2020 (Magisterial District Judge 50-3-02). As such, it is likely that the events to which he refers in this section occurred on June 13th and 14th, and not June 12th and 13th.
Plaintiff alleges that on June 12th or 13th of 2020, he was walking in Boyers when he was stopped by the Pennsylvania state police. He states that he gave the police a fake name because he was under the impression that he had an active warrant for his arrest for an incident that occurred two weeks prior.At the time, his left hand was injured and bleeding as the result of trying to change a car battery, and he had battery acid on his arms and hands that he states was causing a rash. Although he does not specifically say it, it appears that Plaintiff was arrested and taken to the state police barracks around 9:00 pm where he claims an officer gave him some bottled water and some tissue for his bleeding hand.
According to Plaintiff, his step-mother stole Plaintiff's “Full and Final Release” for a $50,000 settlement from State Farm and she forged Plaintiff's name on it. She then devised a plan to have Plaintiff arrested before the check came in the mail by making a false report to police. See ECF No. 71, p.14. Although Plaintiff details what occurred following the false report to police (which appear to involve a car chase) and states that it was the motivating factor for the Defendants' conduct, the allegations with respect to these events do not appear to form the basis of any claims in the Second Amended Complaint and will therefore not be detailed herein.
Plaintiff alleges that he was put on the “bad bench” in the processing area when Officers Waltemire and Oshlick told him to sign a piece of paper for a strip search. Plaintiff read it and determined that it was actually for pretrial supervision, so he refused to sign it and gave it back to the officers. According to Plaintiff, he would not have been able to bond out without contacting probation if the pretrial supervision form was signed. Plaintiff asked to see the nurse for his injuries, but Officer Waltemire told Plaintiff that he could not see the nurse and had to go to the “BMU” cellif he did not sign the paper. Plaintiff alleges that he was not allowed to see the nurse and no medical screening was ever done before he was placed in the BMU cell. He appears to allege that Officer Waltemire denied him medical aid because he refused to sign the pretrial supervision form. Plaintiff also appears to claim that instead of getting a new mug shot, they used an old mug shot photo when they booked him and he was denied his one-minute phone call. He claims that this was not in accordance with Butler County policy and was punishment for his refusal to sign the form.
Officer Oshlick was named as a defendant in Plaintiff's first Complaint filed on September 17, 2021. However, he was not named as a defendant in either Plaintiff's Amended Complaint filed on December 8, 2021, or Plaintiff's Second Amended Complaint filed on April 13, 2022.
It is unclear what BMU stands for, but based on Plaintiff's allegations, it appears that a BMU cell is used to house suicidal inmates because Plaintiff states that he was placed in one even though he was not suicidal.
Plaintiff alleges that after he was processed, he was put into the BMU cell which had an oily substance all over the floor that he stepped in with his bare feet. He states that he remained in the cell for 18 hours without food and water before bonding out. The only time he was allowed to exit the cell was to have his footprints taken on two sheets of paper with the oily substance on his feet. He believes that officers planted the oily substance on the floor so they could illegally seize his footprints. Plaintiff alleges that during the time he was in the BMU cell, Defendants were deliberately indifferent to his health and medical needs by failing to provide him with breakfast, lunch or dinner and medical care for his injuries to his hands and arms. He also claims that Defendants violated Butler County policy which requires that all inmates be given a new mugshot, searched, medically screened and properly classified. See ECF No. 71, pp.12-18, 21-22.
3. August 31, 2021
Plaintiff alleges that on August 31, 2021, while he was still incarcerated at the Butler County Prison, he attempted to serve Officer Waltemire with a civil complaint and waiver of service of summons form. According to Plaintiff, Officer Waltemire would not accept service and told Plaintiff to “go fuck [yo]urself” and to have his lawyer do it. He then told Plaintiff to “pack it up” and Plaintiff was taken to the RHU approximately fifteen minutes later. Plaintiff claims that he was put in the RHU for thirty days based on a “false report” filed by Officer Smith that alleged Plaintiff refused to obey an order.It is unclear, but it appears that Plaintiff claims that he was issued the false misconduct in retaliation either for attempting to serve Officer Waltemire with the civil complaint and waiver of service of summons form or for filing grievances in good faith. See ECF No. 71, pp.19-20.
According to Plaintiff, the order was to stop filing grievances over matters that had already been investigated and adjudicated through the grievance process, although Plaintiff denies that he was told not to file grievances and claims that the grievances he did file were never investigated.
C. Discussion
Plaintiff's Second Amended Complaint is not a model of clarity and it is unclear what claims Plaintiff is attempting to set forth. Notwithstanding the Second Amended Complaint's numerous pleading deficiencies, the Court is cognizant of Plaintiff's pro se status and the Supreme Court's instructions that pro se individuals must be accorded substantial deference and liberality. See Haines, 404 U.S. at 520. Therefore, to the extent that his allegations are discernable, the Court will construe them in a way that permits Plaintiff's claims to be considered within the proper legal framework. See Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004).
1. Claims stemming from Plaintiff's incarceration in March 2020 The Defendants first argue that any claims stemming from what occurred during
Plaintiff's incarceration in the Butler County Prison on or about March 2, 2020 are time barred and should therefore be dismissed with prejudice. The undersigned disagrees that such a finding can be made at this time.
Plaintiff seeks recovery against the Defendants under 42 U.S.C. § 1983, and the limitations period for civil actions brough under § 1983 is determined by state law. Under Pennsylvania law, the applicable statute of limitations period for civil rights actions is two years. See 42 Pa. C.S.A. § 5524(2). The date when a civil rights action accrues (begins to run), however, is a matter of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007). A claim accrues when the plaintiff becomes aware, or should have become aware, of both the fact and injury and its causal connection to the defendant. See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (it is the wrongful act that triggers the start of the statute of limitations period); Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1127 (3d Cir. 1988) (a federal cause of action accrues when the plaintiff is aware, or should be aware, of the existence of and source of injury, not when the potential claimant knows or should know that the injury constitutes a legal wrong).
While Defendants are correct that there is a two-year statute of limitations for Plaintiff's claims, and the filing date for Plaintiff's Second Amended Complaint appears to be over two years after the latest date at which the claims stemming from his incarceration on or about March 2, 2020 could have accrued,Defendants fail to acknowledge that the statute of limitations is tolled during the time a prisoner exhausts his administrative remedies as required under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). See Pearson v. Secretary Dept. of Corrections, 775 F.3d 598, 603 (3d Cir. 2015). Although it is unclear whether Plaintiff filed any grievances regarding his claims stemming from what occurred on or about March 2, 2020, Plaintiff did check the box on his Second Amended Complaint attesting to filing a grievance concerning the facts relating to his complaint. See ECF No. 71, p.7. The undersigned therefore cannot say that it is apparent on the face of the Second Amended Complaint that all claims stemming from what occurred on or about March 2, 2020 are necessarily barred by the statute of limitations. The Court should thus not dismiss these claims as barred by the statute of limitations without first considering whether Plaintiff properly exhausted his administrative remedies and whether and to what extent the limitations period should be tolled. See, e.g., Wisniewski v. Fisher, 857 F.3d 152, 158 (3d Cir. 2017).
Federal and state courts within Pennsylvania employ the prisoner mailbox rule. Under the prisoner mailbox rule, a pro se prisoner's filing is deemed filed at the time he or she hands it over to prison officials for forwarding to the court or puts it in the prison mailbox. Houston v. Lack, 487 U.S. 266, 276 (1988). When applying the prisoner mailbox rule, many district courts will use the date the documents were signed as the presumed delivery date in cases where there is no clear record of delivery to prison officials. See, e.g., Howard v. Masteron, No. 06-5632, 2009 WL 5184476, at *1 n.2 (E.D. Pa. Dec. 21, 2009) (“Pursuant to the prison mailbox rule . . . [the] documents [are] filed on the date [the plaintiff] signed them.”) Here, Plaintiff's Second Amended Complaint, which was the first time Plaintiff raised the claims regarding what allegedly occurred on or about March 2, 2020, is dated April 3, 2022.
2. Claims arising out of Plaintiff's incarceration in June 2020
As Defendants correctly note, the majority of the allegations in the Second Amended Complaint concern Plaintiff's brief incarceration in June 2020. With respect to these allegations, it appears that Plaintiff attempts to assert the following claims: (1) conspiracy to take his footprints, (2) illegal search and seizure of his footprints, (3) denial of medical care, (4) deprivation of food and water, and (5) violation of policy.
a. Conspiracy
Plaintiff alleges a conspiracy existed between Butler County and the Pennsylvania State Police to take his footprints in order to falsely imprison him.
In order to set forth a cognizable § 1983 conspiracy claim, a plaintiff cannot rely on broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir.1992); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989). The essence of a conspiracy is an agreement or concerted action between individuals. See D.R. by L.R., 972 F.2d at 1377. A plaintiff must therefore allege with particularity and present material facts which show that the purported conspirators reached some understanding or agreement or plotted, planned and conspired together to deprive plaintiff of a protected federal right. Id. Where a civil rights conspiracy is alleged, there must be specific facts in the complaint which tend to show a meeting of the minds and some type of concerted activity. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir.1985). A plaintiff cannot merely rely on subjective suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405, n. 16 (3d Cir.1991). See also Capogrosso v. Supreme Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam) (A conspiracy claim “must include at least a discernible factual basis to survive a Rule 12(b)(6) dismissal.”).
In the present case, Plaintiff has failed to allege any facts whatsoever beyond his conclusory statements of conspiracy, let alone any that plausibly suggest a meeting of the minds, agreement or plan between anyone, named or otherwise. Furthermore, even if such an agreement did exist, for the sake of argument, the Second Amended Complaint makes clear that Plaintiff was arrested at the time his footprints were allegedly obtained, and therefore no violation of any federally protected right occurred simply by police obtaining them. See infra. Because nothing in Plaintiff's pleadings or other documents of record remotely suggests that Plaintiff has, or could raise and substantiate, a conspiracy claim, this claim should be dismissed with prejudice.
b. Illegal search and seizure
Plaintiff alleges that the taking of his footprints without a warrant constituted an illegal search and seizure under the Fourth Amendment.
The United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....” U.S. CONST. AMEND IV. THE GENERAL RULE IS THAT WARRANTLESS SEARCHES ARE per se unreasonable under the Fourth Amendment, subject to a few specific exceptions. Arizona v. Gant, 556 U.S. 332, 338 (2009).
The Fourth Amendment does not bar the fingerprinting of a properly seized person. See Davis v. Mississippi, 394 U.S. 721, 727-28 (1969). It is generally accepted that fingerprinting as part of booking following a valid arrest supported by probable cause, like a DNA cheek swab taken under similar circumstances, does not offend the Fourth Amendment. See Maryland v. King, 569 U.S. 435 (2013); Schmerber v. California, 384 U.S. 757, 764 (1966). This general acceptance is premised primarily on the idea that the existence of probable cause or a valid arrest will generally make any such search that occurs reasonable under the circumstances. See King, 569 U.S. at 463-66.
With respect to fingerprinting, the Third Circuit has stated as follows:
Suspicionless fingerprinting of all citizens would violate the Fourth Amendment. See Hayes v. Florida, 470 U.S. 811, 813-18 (1985); Davis v. Mississippi, 394 U.S. 721, 727 (1969). Nevertheless, it is “elementary” that blanket fingerprinting of individuals who have been lawfully arrested or charged with a crime does not run afoul of the Fourth Amendment. Smith [v. United States], 324 F.2d [879] at 882 [D.C. Cir. 1963)]. The universal approbation of fingerprinting as a method of identifying arrestees despite the invasion of privacy “is not surprising when we consider that probable cause had already supplied the basis for bringing the person within the criminal justice system. With the person's loss of liberty upon arrest comes the loss of at least some, if not all, rights to personal privacy otherwise protected by the Fourth Amendment.” Jones [v. Murray], 962 F.2d [302] at 306 [(4th Cir. 1992)]; see also [United States v.] Kincade, 379 F.3d [813] at 864 [(9th Cir. 2004) (en banc)] (Reinhardt, J., dissenting) (“Arrestees' privacy interests . . . appear to be significantly reduced.”). This analysis rests on two foundational principles - the presence of probable cause to arrest and the use of fingerprints as a method of identification:
[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes.
Jones, 962 F.2d at 306. Moreover, we permit such fingerprinting “whether or not the proof of a particular suspect's crime will involve the use of fingerprint identification.” Id.; accord Rise [v. Oregon], 59 F.3d [1556] at 1559-60 [(9th Cir. 1995)].United States v. Mitchell, 652 F.3d 387, 410-11 (3rd Cir. 2011).
Plaintiff's claim for an illegal search and seizure of his footprints appears to stem from an incorrect assumption that he was not arrested at the time his footprints were taken and/or that he had some sort of expectation of privacy in his footprints beyond that extended to fingerprints and DNA. He therefore states that police needed a warrant to obtain his footprints. This is incorrect. The allegations in Plaintiff's Second Amended Complaint can be read in no other way than to support the proposition that he was arrested prior to the taking of his footprints. Indeed, Plaintiff admits that he was taken to the police barracks and processed into the Butler County Prison and then put into a cell for the next 18 hours during which time his footprints were taken.
Although there is a lack of case law on foot printing a detainee, it cannot reasonably be said that an arrestee or pretrial detainee has any more of a privacy interest in their footprints than in their fingerprints, and since the taking of fingerprints of lawfully arrested individuals has been consistently upheld, and Plaintiff has not alleged any facts showing that his arrest was unlawful, what is alleged in the Second Amended Complaint does not rise to the level of a Fourth Amendment violation. As such, it is recommended that Plaintiff's claim be dismissed with prejudice.
c. Denial of medical care
Plaintiff alleges that Defendant Waltemire denied him medical care for his injured hands and arms. Defendants do not move to dismiss this claim at this time. Accordingly, the claim remains pending.
d. Deprivation of food and water
Plaintiff alleges that he was deprived of three meals over the course of 18 hours. This is not sufficient to rise to the level of a constitutional violation. See Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (“[U]nder certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension.”) Accordingly, it is recommended that this claim be dismissed with prejudice.
e. Violation of policy
In the Second Amended Complaint, Plaintiff alleges numerous instances of individuals violating policy. For example, he claims that they violated policy by failing to provide him with his one-minute phone call and a new mug shot and to medically screen him upon entering the jail, and he also alleges that they failed to comply with their suicide prevention policy because they placed him into a BMU cell when he was not suicidal. It appears that he claims these violations of policy amounted to constitutional violations.
Although Plaintiff does not specify where these alleged policies are contained and whether they belong to Butler County or some other agency, it is nevertheless well established that a violation of internal policy does not automatically rise to the level of a constitutional violation. See United States v. Fattah, 858 F.3d 801, 813-14 (3d Cir. 2017) (citing United States v. Christie, 624 F.3d 558, 573 (3d Cir. 2010) for approval that a “violation of internal policy alone does not amount to a violation of constitutional due process” because government policies and guidelines “do not themselves create rights”). To the extent Plaintiff may be attempting to assert a due process violation based on the Defendants' failure to follow certain procedures in unidentified Butler County policies, such a claim fails since Plaintiff did not have a standalone protected liberty interest in those procedures. See e.g., Steele v. Cicchi, 855 F.3d 494, 509 (3d Cir. 2017). Accordingly, it is recommended that such claim be dismissed with prejudice.
f. Butler County
The Second Amended Complaint purports to assert liability on the part of Butler County. However, a municipality, like Butler County, “cannot be held liable solely because it employs a tortfeasor.” Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978). Rather, a municipality may be found liable under § 1983 “only if they have caused a constitutional tort through ‘a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'” LaVerdure v. Cty. of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (quoting Monell, 436 U.S. at 690). In other words, a municipality may be liable only when its “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . .” Monell, 436 U.S. at 694. The official policy requirement distinguishes acts of the municipality from acts of employees of the municipality, thereby limiting liability to action for which the municipality is actually responsible. Id.
In finding municipal liability pursuant to § 1983, the plaintiff must identify the policy, custom or practice of the municipal defendant that results in the constitutional violation. A municipal policy is made when a decision-maker, which is one who possesses final authority to establish policy, issues an official proclamation or decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986); Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A custom or practice, however, may consist of a course of conduct so permanent and widespread that it has the force of law. Andrews, 895 F.2d at 1480 (citing Monell, 436 U.S. at 691). To establish municipal liability based upon a custom or practice, the plaintiff must demonstrate that the decision-maker had notice that a constitutional violation could occur, and that the decisionmaker acted with deliberate indifference to this risk. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Finally, the plaintiff must show a causal connection between the custom or policy and the violation of the constitutional right. Bielevicz v. Dubinon, 915 F.2d 845, 850-51 (3d Cir. 1990). That is, the plaintiff must demonstrate an affirmative link or plausible nexus between the custom or practice and the alleged constitutional deprivation.
To the extent Plaintiff has attempted to state a claim against Butler County, he has failed to do so. In fact, the only part of the Second Amended Complaint that appears to be relevant to Butler County contains nothing more than an allegation that the individuals involved in Plaintiff's care and custody did not follow Butler County policy by providing Plaintiff with food, medical care and a valid mugshot during the 18 hours he was at the prison. See ECF No. 71, p.16. To the extent that this can be read as asserting a claim against Butler County, it is insufficient for numerous reasons, the least of which is that Plaintiff does not allege that his constitutional injuries were the result of any policy or custom of Butler County but instead alleges that it was the failure of individuals to follow Butler County policy that caused his constitutional injuries. As nothing in the Second Amended Complaint suggests that a maintainable claim could plausibly be raised against Butler County, such claim should be dismissed with prejudice.
3. Claims arising out of Plaintiff's incarceration on August 31, 2021 a. Retaliation
It appears that the Second Amended Complaint attempts to assert a retaliation claim against Defendant Smith based on Smith issuing Plaintiff what he states was a “false misconduct.” However, it is unclear whether Plaintiff is alleging that Defendant Smith issued him the false misconduct for Plaintiff attempting to serve Defendant Waltemire with a civil complaint and waiver of service of summons form or whether Plaintiff is alleging that the false misconduct was issued for him filing grievances in good faith. Defendants, however, do not move to dismiss any retaliation claim Plaintiff may be asserting at this time. As such, such claim remains pending.
b. Verbal harassment/Profanity
Defendants move to dismiss any claim that Plaintiff may be attempting to assert against Defendant Waltemire for using offensive and profane language when he tried to serve him with the civil complaint and waiver of service of summons form. It is well settled that allegations of verbal harassment or abuse, without any injury or damage, are not cognizable under § 1983. See Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (explaining that “most verbal harassment by jail or prison guards does not rise to the level of cruel and unusual punishment”); McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (explaining that “acts or omissions resulting in an inmate being subjected to nothing more than threats or verbal taunts do not violate the Eighth Amendment”); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). As such, to the extent Plaintiff seeks to state a claim based on Defendant Waltemire's response to Plaintiff serving him with the civil complaint and waiver of service of summons form, such claim should be dismissed with prejudice.
4. Punitive damages
Defendants move to dismiss Plaintiff's claim for punitive damages against Butler County and Defendants Waltemire and Smith to the extent Plaintiff has sued them in their official capacities.
Punitive damages may be awarded in section 1983 cases “when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). However, punitive damages cannot be recovered against a municipality or officers acting in their official capacity. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 263 (1981); see also Gregory v. Chehi, 843 F.2d 111, 119-20 (3d Cir. 1988) (“Punitive damages cannot be recovered from defendants in their official capacities.”) Because Plaintiff has sued Butler County, a municipality, and appears to have sued the individual defendants in their official capacities, the claim for punitive damages against them should be dismissed with prejudice.
5. Amendment of complaint
The court must allow amendment by the plaintiff in civil rights cases brought under § 1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile). While the undersigned is cognizant of these holdings, it appears that allowing for amendment by Plaintiff would be futile.
III. CONCLUSION
It is respectfully recommended that the Partial Motion to Dismiss the Second Amended Complaint for failure to state a claim filed by Defendants Butler County, Shaun Smith and Michael Waltemire (ECF No. 79) be granted in part and denied in part as follows. It should be denied without prejudice to the extent it seeks dismissal of claims stemming from Plaintiff's incarceration in the Butler County Prison on or about March 2, 2020. A determination of whether those claims are barred by the statute of limitations may be raised again on a motion for summary judgment. The Motion should be granted in all other respects. Plaintiff should not be given an opportunity to amend as it appears that allowing for further amendment would be futile. If the Court is to adopt this Report and Recommendation, then Butler County should be terminated as a defendant and the following claims would remain for disposition: (1) Plaintiff's claims stemming from his incarceration in the Butler County Prison on or about March 2, 2020; (2) Plaintiff's deliberate indifference claim against Defendant Waltemire based on denial of medical care; (3) Plaintiff's retaliation claim against Defendant Smith based on the issuance of a false misconduct; and (4) Plaintiff's claims against Defendants John Doe #1 and John Doe #2.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.