Opinion
Civil Action 2:21-cv-948 ECF 28
07-28-2022
KOBY LEE FRANCIS Plaintiff, v. MAJOR ADAM SMITH, SERGEANT GILLESPIE, CAPTAIN BRIAN JOSEPH, II, SGT. RADACCI, and WARDEN ORLANDO HARPER Defendants.
Wiegand, District Judge.
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan, United States Magistrate Judge.
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss for Failure to State a Claim filed by Defendants Major Adam Smith, Sergeant Gillespie, Captain Brian Joseph, II, Sgt. Radacci, and Warden Orlando Harper (ECF No. 28) be granted with prejudice as to Plaintiff's claims against Defendants in their official capacities; the Fourteenth Amendment claim for conditions of confinement; and the claim against Defendant Harper in his individual capacity. Therefore, Defendant Harper should be terminated as a party defendant.
The Motion to Dismiss should be granted without prejudice to Plaintiff filing an amended complaint as to the Fourteenth Amendment claim of excessive force relating to the facts and circumstances regarding the use of the restraint chair, and the equal protection “class of one” claim. Should the District Judge adopt this Report and Recommendation, it is recommended that the pro se Plaintiff be afforded 30 days to file a First Amended Complaint, if he so chooses, as explicated in this Report and Recommendation.
II. REPORT
A. Relevant Factual Averments
On January 8, 2021, Plaintiff Koby Lee Francis (“Francis” or “Plaintiff”), a pretrial detainee, was transported to the Allegheny County Jail (“ACJ”) for certain criminal charges. Complaint, ECF No. 5 at 6. Upon arrival, he was placed in Administrative Custody (“AC”) and alleges that the decision was made by Defendant Sergeant Gillespie (“Gillespie”) and Defendant Brian Joseph, II (“Joseph”). Id. Plaintiff alleges that he was placed on AC status because of the nature of his criminal charges. He states that other inmates awaiting trial for similar charges are not placed on “security status.” Id. In AC status, he was confined in segregation for 24 hours a day and was unable to contact his family or lawyer and had no access to the law library. Plaintiff states that as a result, he suffered severe distress for which he was placed on medication. Id.
The next day, Plaintiff asked to speak with a mental health specialist. After speaking with mental health and voicing his frustration with his current living conditions, the mental health nurse admitted him to the suicide pod. Id. at 6-7. He was placed in a cell with six glass windows with only a green smock where everyone could see him in his cell. He was humiliated and laughed at by other inmates. Plaintiff alleges that Defendant Major Adam Smith (“Smith”) left Plaintiff on the suicide pod because of his criminal charges, where he was left with no mattress, blanket or toiletries, and where he was forced to sleep on metal or on the floor. Id. at 7. He alleges that these conditions worsened his mental health even though he complained to jail personnel. Id.
The following day, January 10, 2021, Plaintiff was held in the same cell. He attempted to get Defendant Sergeant Radacci's (“Radacci”) attention by yelling his name. He also pressed the emergency call button several times but no one responded. As a result, Plaintiff began to kick on the door. Defendant Radacci called the “SERT” team and also called for the restraint chair. Plaintiff was placed in the restraint chair for an “unknown amount of time” where he could not eat, take his medications or use the restroom. Id. at 7-8. He claims that the ACJ's use of the restraint chair has increased by 84% from 2015 to 2019. He also alleges that the ACJ uses more excessive force than any other jail in Pennsylvania. Id. at 8.
On January 21, 2021, Plaintiff was moved to segregation “(8E) the hole.” Id. He alleges that he was still on AC status and that he would get a review at the end of the month by Defendant Smith. Three days later, he was given a review and it was determined that he would remain in AC. He alleges that he was held there because of the nature of his criminal charges and that Defendants Orlando Harper (“Harper”) and Smith “signed off” on this determination. Id.
Finally, Plaintiff alleges that one (1) month later on February 24, 2021, he received another review hearing and the same determination was made. Plaintiff alleges that he will remain on AC status and his next review will be conducted within 30 days. He concludes that Defendants Harper and Smith have violated his constitutional rights.
Plaintiff seeks the passage of a “policy or law that prohibits the unnecessary use of the restraint chairs, and the amount of time” a person may be held in solitary confinement and/or segregation. He also seeks $750,000 for the use of excessive force, the restraint chair and for his confinement in segregation. Id. at 10.
B. Legal Standards
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).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
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).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . ...42 U.S.C. § 1983. To state a claim for relief under this provision, the Plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law, and that such conduct deprived the Plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Plaintiff alleges that he was a pretrial detainee at the time of the relevant events. As a pretrial detainee, Plaintiff is protected by the Due Process Clause of the Fourteenth Amendment. See Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir. 1997) (the Due Process Clause provides protections for pretrial detainees similar to those protections afforded to sentenced prisoners); see also Bell v. Wolfish, 441 U.S. 520, 544 (1979). The Eighth Amendment sets forth the minimum standard by which claims of pretrial detainees' rights should be evaluated. See Bell, 441 U.S. at 544 (“pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners”); see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (a pretrial detainee's due process rights are said to be “at least as great as the Eighth Amendment protections available to a convicted prisoner.”).
1. Excessive Force
Defendants argue that Plaintiff's Eighth Amendment rights were not violated when Radacci called for the SERT team and the restraint chair because these actions were taken to maintain security and safety of officers and inmates, and because the use of force was de minimis. Plaintiff contends that the force used amounted to punishment.
As noted above, the Fourteenth Amendment, rather than the Eighth, applies to pretrial detainees. That is, the Fourteenth Amendment protects pretrial detainees from “the use of force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). “[A] pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015). In applying this standard, the court must pay “‘careful attention to the facts and circumstances of each particular case.'” Jacobs v. Cumberland Cnty., 8 F.4th 187, 194 (2021) (quoting Graham, 490 U.S. at 396). The Jacobs court discussed those facts and circumstances as follows:
Those circumstances include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”Id. at 194-94 (quoting Kingsley, 576 U.S. at 397). Defendants advance considerable arguments concerning the wide deference to be afforded corrections officials when dealing with issues of prison administration. The law in this circuit, however, does not afford prison officials unfettered deference when it comes to the use of force. See Jacobs, 8 F.4th at 193-95.
Here, it is unclear from Plaintiff's allegations whether the amount of force used was objectively unreasonable. Plaintiff alleges that he was placed in the restraint chair because he was seeking Radacci's attention by yelling for him, pressing the emergency call button several times, and when no one responded, kicking on the door. As a result, Plaintiff was placed in the restraint chair for an “unknown amount of time” where he could not eat, take his medications or use the restroom. Plaintiff should be given an opportunity to amend this claim to provide the court with an understanding as to how long he was denied these privileges. Without this information, Plaintiff will be unable to state a plausible claim for excessive force pursuant to the Fourteenth Amendment. Therefore, it is recommended that Plaintiff's Fourteenth Amendment claim for excessive force be granted without prejudice to Plaintiff filing an amended complaint on this claim.
2. Claim against Defendant Harper in his Individual Capacity
Defendants argue that Defendant Harper should be dismissed because he had no personal involvement in Plaintiff's alleged wrongs. Plaintiff avers only that he “signed off” on his administrative custody status.
“A defendant in a civil rights action must have personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (the personal involvement of each defendant in the alleged constitutional violation is a required element; a plaintiff must allege how each defendant was involved in the events and occurrences giving rise to the claims). Vicarious liability has no place in § 1983 jurisprudence, and therefore, a plaintiff must plead that each government-official defendant, through the official's own actions, violated the constitution. Iqbal, 556 U.S. at 676. Personal involvement may be shown “through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 825 F.2d at 1207. Moreover, allegations of personal direction or actual knowledge and acquiescence must be made with particularity. Id.
Here, Plaintiff's allegations concerning Harper's involvement with his administrative custody status are extremely vague and suggest that Harper's liability is premised upon his position as Warden at the ACJ. Vicarious liability cannot support Plaintiff's claim against Harper and Plaintiff's claim against Harper in his individual capacity should be dismissed. Therefore, it is recommended that Defendants' Motion to Dismiss the claim against Warden Harper in his individual capacity be granted with prejudice. Any attempt to amend would be futile.
The Court is cognizant of the rule in this circuit that if a district court is dismissing a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) in a civil rights case, it must sua sponte “permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
3. Conditions of Confinement Claim
Defendants argue that Plaintiff has failed to state a claim for conditions of confinement because he alleges that his placement in “segregation (8E) the hole” was reviewed monthly and because he did not allege any conditions that involved an atypical and significant hardship sufficient to create a protected liberty interest as required to state a conditions of confinement claim, citing Proctor v. James, 811 Fed.Appx. 125, 129 (3d Cir. 2020). Plaintiff appears to allege that he was held on 8E for at least three (3) months.
Under the Fourteenth Amendment, when a pretrial detainee complains about the conditions of his confinement, courts are to consider whether the conditions “amount to punishment prior to an adjudication of guilt in accordance with law.” Hubbard v. Taylor, 399 F.3d 150, 158 (3d Cir. 2005) (Hubbard I). When evaluating whether such conditions violate due process, “we must ask, first, whether any legitimate purposes are served by these conditions, and second, whether these conditions are rationally related to these purposes.” Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008) (Hubbard II) (quoting Union County Jail Inmates v. Di Buono, 713 F.2d 984, 992 (3d Cir. 1983)). “In assessing whether the conditions are rationally related to the assigned purposes, we must further inquire as to whether these conditions cause inmates to endure such genuine privation and hardship over an extended period of time that the adverse conditions become excessive in relation to the purposes assigned to them.” Di Buono, 713 F.2d at 992 (internal quotation and brackets omitted).
Here, Plaintiff is unable to state a Fourteenth Amendment conditions of confinement claim. Plaintiff alleges that on January 8, 2021, upon admission to the ACJ, he was unable to contact family, his lawyer or visit the law library and was confined in segregation for 24 hours. These conditions lasted only one day because the following day, he was placed on suicide watch after his discussion with the mental health specialist. The conditions of which he complains in the suicide pod are employed for his protection and not for punishment purposes. He remained in the suicide pod for a little over 24 hours until he was placed in the restraint chair by Sgt. Radacci. Up until the time he was placed in the restraint chair, the complained of conditions lasted for a short period of time and those alleged adverse conditions were not excessive in light of the legitimate penological purposes that they served-Plaintiff's own protection from selfharm.
See supra at 5-6 for analysis regarding restraint chair.
Finally, Plaintiff does not appear to allege a Fourteenth Amendment procedural due process claim relating to his time in segregation “(8E) the Hole” because he alleges that he received regular reviews regarding his housing status. Complaint, ECF No. 5 at 8.
Therefore, it is recommended that Plaintiff's Fourteenth Amendment claim regarding the conditions of his confinement be dismissed with prejudice. Any attempt to amend would be futile.
4. Equal Protection Class of One
Although not argued by Defendants, Plaintiff also appears to allege a Fourteenth Amendment Equal Protection “Class of One” claim. He states that he was placed on AC status because of the nature of his criminal charges. He alleges that other inmates awaiting trial for similar charges are not placed on “security status.” Id. at 6.
Plaintiff was charged with attempted homicide, along with other felonies, on December 20, 2020, at OTN G 879586-1.
In order to make out such a claim, a plaintiff must aver facts to plausibly suggest that “(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Overly v. Garmon, 599 Fed.Appx. 42, 43 (3d Cir. 2015) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006)).
Here, Plaintiff should be given the opportunity to identify those inmates who he contends are similarly situated and precisely, how they are similarly situated. See Levenstein v. Salafsky, 414 F.3d 767, 776 (7th Cir. 2005). He should provide further details as to how they were treated differently. See id. Finally, Plaintiff should provide details as to why his circumstances were so similar to these other inmates such that there could be no rational basis as to why he was treated differently.
Therefore, it is recommended that Plaintiff's claim for violation of his equal protection rights pursuant to a “class of one” theory be dismissed without prejudice to Plaintiff filing an amended complaint on this claim.
5. Official Capacity Claims
Moving Defendants argue that the official capacity claims against them are in fact, claims against the entity that employs them, citing Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, according to Defendants, Plaintiff must set out facts to state a plausible Monell claim against Allegheny County.
In Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978), the United States Supreme Court held that municipalities and other local governmental units are persons subject to liability under 42 U.S.C. § 1983. In so ruling, however, the Court declared that municipal liability may not be premised on the mere fact that the governmental unit employed the offending official, that is, through application of the doctrine of respondeat superior. Instead, the Court concluded that a governmental unit may be liable under § 1983 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. Id. at 690-91. A municipal policy is made when a decision-maker issues an official proclamation or decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), quoted in, 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. 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 decision-maker acted with deliberate indifference to this risk. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Finally, 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, a plaintiff must demonstrate an affirmative link or plausible nexus between the custom or practice and the alleged constitutional deprivation.
Here, Plaintiff's allegations in no way suggest that there was a policy or practice at the ACJ that somehow caused his alleged constitutional violations. Instead, he asserts that he was singled out for the treatment he received. See discussion supra at 9-10. Therefore, it is recommended that Defendants' Motion to Dismiss Plaintiff's official capacity claims against Defendants be granted with prejudice. Any attempt to amend would be futile.
III. CONCLUSION
For the above reasons, it is respectfully recommended that the Motion to Dismiss for Failure to State a Claim filed by Defendants Major Adam Smith, Sergeant Gillespie, Captain Brian Joseph, II, Sgt. Radacci, and Warden Orlando Harper (ECF No. 28) be granted with prejudice as to Plaintiff's claims against Defendants in their official capacities; the Fourteenth Amendment claim for conditions of confinement; and the claim against Defendant Harper in his individual capacity. Therefore, Defendant Harper should be terminated as a party defendant.
The Motion to Dismiss should be granted without prejudice to Plaintiff filing an amended complaint as to the Fourteenth Amendment claim of excessive force relating to the facts and circumstances regarding the use of the restraint chair, and the equal protection “class of one” claim. Should the District Judge adopt this Report and Recommendation, it is recommended that the pro se Plaintiff be afforded 30 days to file a First Amended Complaint, if he so chooses, as explicated in this Report and Recommendation.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Unregistered ECF users are allowed an additional three (3) days pursuant to Federal Rule of Civil Procedure 6(d). Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.