Opinion
Case No. 1:19-cv-00117 (Erie)
04-07-2020
DEON GRIER, Plaintiff v. MICHAEL CLARK, Superintendent SCI-ALBRION; LT SKINNER, SECURITY, MICHAEL SNIDER, UNITED MANAGER, F-BLOCK, Defendants
SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS ECF NO. 15 I. Recommendation
It is respectfully recommended that the Court grant Defendants' Motion to Dismiss (ECF NO. 15) Plaintiff's Complaint. It is further recommended that the claims against Defendant Michael Clark be dismissed with prejudice and that the claims against Defendants Lt. Skinner and Michael Snider be dismissed without prejudice and with leave to amend. II. Report
A. Introduction
Plaintiff Deon Grier (Grier) commenced this civil rights action by filing a Complaint, pro se, on May 28, 2019. ECF No. 4. As Defendants, Grier's Complaint named three officials at the State Correctional Institution at Albion (SCI-Albion): Michael Clark, Superintendent, Lt. Skinner, Security Officer, and Michael Snider, Unit Manager of F-Block. Id. The Defendants have moved to dismiss Grier's Complaint pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 15. Grier has filed a response in opposition to the Defendants' motion. ECF No. 19. The Defendants' motion has been fully briefed and is the subject of this Report and Recommendation.
B. Standards of Review
The Defendants moved to dismiss Grier's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). When considering a Rule 12(b)(6) motion, the Court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Wayne Land & Mineral Grp. LLC v. Delaware River Basin Comm'n, 894 F.3d 509, 526-27 (3d Cir. 2018) (internal quotation marks and citations omitted). 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. Apr. 3, 2014). Thus, "a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation." Krushin v. SCI-Waymart, et al., 2019 WL 1103440, *2 (M.D. Pa. Jan. 29, 2019).
Grier is proceeding pro se. ECF No. 3. 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 that filing 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, a 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). With these standards in mind, the Court turns to Grier's Complaint.
C. The Complaint
Grier is an inmate in the custody of the Pennsylvania Department of Corrections and currently incarcerated at SCI-Albion. ECF No. 4, ¶ 2. Clark is the Superintendent of that facility, Skinner is a security lieutenant, and Snider is a unit-manager. Id. at ¶ 3. According to the Complaint, Grier sustained a serious injury to his lip as a result of an assault by another inmate on January 5, 2019. Id. at ¶ 4. The Complaint alleges that Grier did not tell anyone about the assault for fear of being labeled a snitch. Id. Instead, according to the Complaint, Grier told Skinner he fell in the prison yard and he told the prison's medical department he fell doing pushups. Id. at ¶ 5. The injury was severe enough that prison officials transported him to a local hospital for treatment. Id. He received several stitches in his lip. Id.
After being treated at the hospital, Grier was taken back to the prison where he was given pain medication and antibiotics. Id. He was returned to his cell on F-Block where "he continued to fear for his life." Id. On January 18, 2019, Grier sent a DC-135 "Inmate Request to Staff Member" form, relating that he had been assaulted and that the staff had failed to protect him. Id. Grier asked Clark to move him to a different area of the prison for his own safety. Id. Grier also wrote to Snider about this incident and made a similar request to be relocated. Snider responded that he would not move Grier without knowing the name of the inmate who committed the assault or without verification of the assault from prison staff. Id. The Complaint also states that Grier contacted Skinner on January 18, 2019, but that Skinner never responded to him. Id. at ¶ 7. Grier claims that he also filed a grievance about this incident on January 18, 2019, which was denied on January 23, 2019. Id. Grier appealed this decision to Superintendent Clark, who upheld it on January 29, 2019. He states further that he appealed the denial of his grievance to Final Review on February 26, 2019. Id.
The Complaint purports to state several legal claims against these three defendants. As to Clark, Grier brings an Eighth Amendment failure to train claim. Id. at ¶ 8. Grier claims that Skinner "failed to investigate cameras in the east yard" and "failed to move Plaintiff back to the west side yard where he would be safe from future assaults." Id. at ¶ 9. Next, the Complaint alleges that Skinner failed "to follow policy, protocol, and procedures by acting with deliberate indifference, and this non-duty of performance in negligence on following proper policy, protocol, and procedures." Id. Finally, as to Snider, Grier's Complaint alleges that Snider violated his rights under the Eighth and Fourteenth Amendments by Snider's "deliberate indifference and deprivation of Equal Protection, non-performance of duty, and negligence." Id. at ¶ 10. This allegation is apparently based on Snider's failure to move Grier back to the west side of the facility. Id.
By way of relief, Grier seeks compensatory damages against each Defendant, as well as punitive damages. Id. at ¶ 11.
D. Analysis and Discussion
The Court will review the Complaint and allegations against each Defendant individually.
1. The Claims Against Clark Should Be Dismissed.
In pertinent part, Grier's Complaint alleges that Clark is responsible for the "day to day operations of SCI-Albion," that he "failed to train his correctional officers correctly," that the incident in question "happened while under his care," and that his failures "caused Plaintiff 8th Amendment Constitutional rights to be violated through cruel and unusual punishment." ECF No. 4, ¶ 8. He alleges that Clark's failures resulted in physical and emotional punishment, as well has subjecting him to threats and possible assault and extortion. Id. Although it is unclear, Grier appears to also raise an equal protection claim against Clark. See id. (". . .which implicate indicate (sic) deliberate indifference by staff and Fourteenth Amendment violations/Equal Protection for non-performance . . .").
To state a claim under §1983 for failure to train, a complaint must allege that the supervisor's failure to train employees amounts to "'deliberate indifference to the rights of persons with whom the untrained employees came into contact.'" Connick v. Thompson, 563 U.S. 51, 61 (2011) (cleaned up). To prevail, a plaintiff must "identify a failure to provide specific training that has a causal nexus with [his] injuries and must demonstrate that the absence of that training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred." Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). The Complaint in this case does not do that. Instead, Grier's allegations consist of labels, conclusions, and legal "buzzwords" without factual allegations to state a plausible claim. This claim should be dismissed.
The Court's decision in Ringgold v. Keller, 2012 WL 1801713 (W.D. Pa. Apr. 18, 2012) is instructive. In Ringgold, a prison inmate was allegedly assaulted by a corrections officer. Id. at *1. The inmate sued that officer, as well as the prison superintendent. His claims against the superintendent were based, in part, on the superintendent's "responsib[ility]e for developing policies and procedures regarding the prison's day-to-day operations." Id. at *5. The Court permitted the claims to proceed, based in part on allegations that the superintendent "had prior knowledge of another instance whereby an inmate had been assaulted by [the same corrections officer], that the superintendent "acted with deliberate indifference by failing to maintain a policy, practice, or custom of monitoring, supervising, training, retraining, and disciplining correctional officers such as [the corrections officer] who had been involved in assaults on inmates in the past; and that said deliberate indifference contributed to and proximately caused his injuries." Id. The plaintiff in Ringgold "further claim[ed] that [the superintendent] acted with deliberate indifference by failing to enforce the DOC's Use of Force policy and that this failure also contributed to and proximately caused his injuries." Id. The Court concluded, after reading those allegations in the light most favorable to him, that the plaintiff stated a claim against the superintendent. Id. The Court found the plaintiff's identification of two alleged practices—failure to properly supervise and train, among other things, prison officials who had previously been involved in inmate assaults and failure to enforce the DOC's Use of Force policy (which allegedly caused the Plaintiff's injuries) to be sufficient to plausibly give rise to a supervisory liability claim. Id.
Here, unlike in Ringgold, there are no allegations in the Complaint that could sustain a viable supervisory liability claim. Grier identifies no specific policy or custom and alleges no facts to support the existence of either or upon which a plausible connection can be inferred between the policy or custom and a constitutional harm sustained by him. Merely alleging that Clark was involved in the handling of the "day to day" operations of the institution, without more, is insufficient. In addition, Grier's Complaint does not allege that Superintendent Clark was a policy maker who maintained a policy, custom or practice which directly led to the alleged assault against Grier. Accordingly, Grier's supervisory liability claim against Clark should be dismissed.
Dismissal is also recommended for Grier's Fourteenth Amendment claim against Clark. Although unclear, Grier may be attempting to raise a "class of one" equal protection claim based on his allegation that Clark's actions allegedly "indicate deliberate indifference by staff and Fourteenth Amendment violations/Equal Protection for non-performance of duty by staff." ECF No. 4, ¶ 8. "[T]o state a claim for 'class of one' equal protection, a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment." Phillips v. Cty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008). Grier's allegation, which forms the sole basis for his equal protection claim, amounts to nothing more than a general, conclusory statement that is insufficient to sustain an equal protection claim. He has not alleged any facts to identify any similarly situated prisoners who Clark allegedly treated differently from him without a rational basis. See Carson v. Mulvihill, 488 Fed. Appx 554, 563 (3d Cir. 2012) (finding equal protection claim not pled where plaintiff failed to "allege facts showing that he was similarly situated to the inmates who received wheelchair footrests, crutches and. canes, or that there was no rational basis for his different treatment"); Perano v. Twp. Of Tilden, 423 Fed. Appx 234, 238-39 (3d Cir. 2011) ("Without more specific factual allegations as to the allegedly similarly situated parties, he has not made plausible the conclusion that those parties exist and that they are like him in all relevant aspects."); Renchenski v. Williams, 622 F.3d 315, 338 (3d Cir. 2010) ("He does not allege, for example, that he is the only inmate in SCI-CT who, though not charged or convicted of a sex offense, was nonetheless labeled a sex offender based on a history of abusive sexual behavior and recommended to sex offender therapy"). It is not even entirely clear what type of different treatment Grier alleges. Accordingly, the Complaint does not state an equal protection claim against Clark.
Finally, the Complaint claims that Clark is liable for "negligence given that staff members failed to move Plaintiff to the west side of the prison to a secure housing unit for safety." ECF No. 4, ¶ 8. Two related grounds warrant dismissal of this claim. First, Eighth Amendment liability cannot be based on simple negligence or lack of due care. Farmer v. Brennan, 511 U.S. 825, 835-37, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994); see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999) ("It is well-settled that claims of negligence ..., without some more culpable state of mind, do not constitute 'deliberate indifference.'"). Second, the Complaint does not allege facts to infer that Clark was on notice that Grier faced a meaningful risk of attack beyond the inherent risks associated with prison life, and without such notice, Clark could not have acted with deliberate indifference to that risk. Indeed, the Complaint not only fails to allege facts to support that Clark was on notice of the risk to Grief before he was assaulted, it acknowledges that Grier initially concealed the fact of the assault and misrepresented the cause of his injury. In sum, the Complaint does not allege facts to support even an inference that Clark acted negligently in connection with his staff's failing to transfer Grier to another area of the prison and, even if it had so alleged, negligence is insufficient to sustain an Eighth Amendment claim.
For these reasons, all claims against Superintendent Clark should be dismissed with prejudice.
2. The Claims Against Skinner Should Be Dismissed.
Grier's claims against Skinner are stated as a "failure to investigate." The Complaint alleges that
Defendant L.T. Skinner is responsible for the prison security and is in charge of making sure every inmate is safe and secure and that security checks are done and investigations are done properly and thoroughly. Here, L.T. Skinner failed to investigate the cameras in the east side yard after the assault in question and failed to move Plaintiff back to the west side of the yard where he would be safe from future assaults. Additionally, when Plaintiff told L.T. Skinner about the assault in question, nothing was done about it - resulting in failure to follow policy, protocol, and procedures by acting with deliberate indifference, and this non-duty of performance resulted in negligence on following proper policy, protocol and procedures.ECF No. 4, ¶9. Like the allegations against Clark, these allegations against Skinner do not state an Eighth Amendment claim. Although somewhat unclear, Grier's allegation that "Skinner is responsible for the prison security and is in charge of making sure every inmate is safe and secure" could be construed as alleging that Skinner unconstitutionally failed to protect Grier from the assault. Id. A defendant cannot be liable for failing to protect a plaintiff from a risk of harm concerning which he has no knowledge. Nor can a defendant protect an inmate from something after the fact. That is why "not every injury suffered by one prisoner at the hands of another ... translates into constitutional liability for prison officials." Farmer, 511 U.S. at 834.
Defendants' argument that Grier failed to exhaust his administrative remedies is, at this stage, unavailing. They maintain that "[b]ased purely on the documents in his complaint, Plaintiff has not properly exhausted administrative remedies." ECF No. 16, p. 9. That is not Grier's burden. As this Court recently explained, "[f]ailure to exhaust available administrative remedies is an affirmative defense that must be pleaded and proven by the defendant. But once the defendant has carried that burden, the prisoner has the burden of production. That is, the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him. However, as required by the Supreme Court, the ultimate burden of proof remains with the defendant." Green v. Wetzel, 2020 WL 1249205, *4 n.7 (W.D. Pa. March 16, 2020) (citations omitted). The Defendants have not met their burden here. Aside from their assertion, they have not presented any evidence—the grievance record is not provided—beyond their assertion that Grier's complaint does not establish exhaustion. This is insufficient to meet their burden and their motion to dismiss based on a failure to exhaust must be denied. See, e.g., Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (inmates are not required to specially plead or demonstrate exhaustion in their complaints; the failure to exhaust must be asserted and proven by the defendants) (emphasis added)).
Here, Grier's allegations of a "failure to protect" are not actionable. Missing are averments that prior to the assault upon Grier, Skinner or any other prison official was aware of facts that would have led a reasonable person to believe that Grier's personal safety was at risk. Grier's claim therefore stands in stark contrast to the one at issue in Bistrian v. Levi. 696 F.3d 352 (3d Cir. 2012). There, the Court of Appeals for the Third Circuit held that an inmate pleaded a plausible failure to protect claim by alleging that he advised prison officials of a specific violent threat made by an identified inmate and the officers still placed him "in the recreation yard with ... [inmates] who knew of his prior complicity with prison authorities." Id. at 368-71. In contrast, the Grier's Complaint lacks any allegation that he told Skinner he faced any threat from other inmates prior to the assault, and he admits that he never told Skinner about it afterward:
When this incident occurred, Plaintiff told L.T. Skinner he fell because he didn't want to put himself in danger for being labeled a snitch and become subjected to further assaults, when everyone in the yard at that time seen (sic) what happened ... When Plaintiff went back to F-block and told the guards who was working that day that he fell doing pushups and needed to go to medical. After arriving at medical, L.T. Skinner was at medical and asked Plaintiff what happened where (sic) where Plaintiff told him he fell doing pushups.ECF No. 4, ¶¶ 4-5. Indeed, Grier did not disclose that his injuries were the result of an assault by another inmate until thirteen days later (January 18, 2019), when he filed a grievance. Id. at ¶ 6. Thus, because the Complaint alleges no facts to support that Skinner knew of a risk to Grier, it cannot support that Sinner acted with deliberate indifference to such a risk. See Beers-Capitol, 256 F.3d 120, 132 (3d Cir. 2001).
The allegation that Grier did not inform Skinner of the assault because he feared being labeled a "snitch" does nothing to alter the foregoing analysis. He has not alleged any facts to infer that Skinner or any other Defendant did anything to create this apprehension. See, e.g., Carvalho v. Bledsoe, 2019 WL 3801453, *7 n.10 (M.D. Pa. Aug. 13, 2019). Grier also has not alleged that a specific threat was ever made against him prior to the assault and that he notified prison officials of that threat. See, e.g., Bistrian, 696 F.3d at 568-71. Thus, the Complaint fails to state a claim against Skinner for a failure to protect him from a substantial risk of harm.
Nor has Grier pleaded facts to infer that "a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past," or stated any "circumstances [to] suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it." Farmer, 511 U.S. at 842-43).
The Complaint also claims Skinner "failed to investigate the cameras in the east side of the yard after the assault in question and failed to move Plaintiff back to the west side ... where he would be safe from future assaults." Id. Although this differs from an allegation that Skinner failed to protect Grier an assault, it too must be dismissed. "[A]n allegation that an official ignored an inmate's request for an investigation or that the official did not properly investigate is insufficient to hold that official liable for the alleged violations." Padilla v. Beard, 2006 WL 1410079, at *6 (M.D. Pa. May 18, 2006); see also Horan v. Wetzel, 2014 WL 631520, at *7 (M.D. Pa. Feb. 18, 2014) ("Generally, an allegation of failure to investigate an event after the fact, without another recognizable constitutional right, is not sufficient to sustain a § 1983 claim."). Grier does not claim that Skinner had any prior or contemporaneous knowledge of the attack. He therefore has not stated an Eighth Amendment claim, and an alleged failure to investigate after the fact does not change this result.
3. The Claims Against Defendant Snider Should be Dismissed
Regarding Snider, Grier alleges that he wrote to him and asked to be moved to the west side of the facility for protection. ECF No. 4, ¶ 6. Because Snider said he would not approve a move without the name of the inmate who assaulted Grier or verification from other staff of the assault, Grier told Snider that he didn't know or see his assailant:
Here, when Plaintiff told Snider about the assault, Snider asked for the name of the unidentified assailant, Plaintiff stated he didn't know or see him, as a result, Snider would not move Plaintiff without him given staff a name or without staff stating they seen (sic) the assault.Id. at ¶ 10. This, Grier alleges, made Snider "liable for violating Plaintiff's 8th and 14th Amendment rights for deliberate indifference and deprivation of Equal Protection , non-performance of duty and negligence because Snider could have moved Plaintiff to the west side of the prison for precaution whenever he wanted." Id. at ¶ 10. Once again, the precise nature of Grier's claim is unclear, but it appears to be another variation of his failure to protect under the Eighth Amendment. Once again, Grier's allegations fail to state a viable claim because they relate solely to matter after the alleged assault.
Although Grier invokes the Fourteenth Amendment in his claim against Snider, this cannot provide the basis for a claim on these facts as any Fourteenth Amendment claim is subsumed by the more explicit text of the Eighth Amendment. United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). In the prison context specifically, "the Eighth Amendment serves as the primary source of substantive protection." Graham v. Conner, 490 U.S. 386, 395 n.10 (1989) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)).
Like the other two Defendants, Snider cannot be liable for failing to protect Grier from a risk concerning which he had no knowledge. See e.g., Hopkins v. Britten, 742 F.2d 1308 (11th Cir. 1984) (no liability when inmate himself was totally surprised by the attack); Taylor v. Little, 58 Fed Appx. 66 (6th Cir. 2003) (no deliberate indifference where Defendants were unaware of threat to inmate). Even ignoring that the Complaint fails to allege that Snider had authority over inmate transfers, see Fortune v. Bitner, 285 Fed. Appx 947, 950 (3d Cir. 2008) (failure to establish that defendants had authority over inmate's transfer was fatal to his failure to protect claim), it simply does not support an inference that Snider was aware that Grier's cellblock assignment posed a risk to his safety, that Snider deliberately ignored that risk, and that Snider's indifference led to Grier's injury. Accordingly, all claims against Snider should be dismissed. III. Amendment
The Court must allow amendment by the plaintiff in civil rights cases brought under § 19834 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless doing so would be "inequitable or futile." Shareef v. Moore, 2020 WL 1445878, *8 (W.D. Pa. Mar. 25, 2020) (citing Fletcher-Harlee v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to Rule 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile)). See also Fed. R. Civ. P. 15(a)(2).
Any attempt by Grier to amend his claims against Clark would be futile because of the nature of the defects in these claims. However, it cannot be said that amendment would be futile as to Grier's his claims against Skinner and Snider. Therefore, those claims should be dismissed without prejudice and with leave to amend. IV. Conclusion
In conclusion, it respectfully recommended that the Court:
A. Grant Defendants' Motion to Dismiss (ECF No. 15) as to the claims against Defendant Michael Clark and dismiss those claims with prejudice; andV. Notice to the Parties
B. Grant Defendants' Motion to Dismiss (ECF No. 15) as to the claims against Lt. Skinner and Michael Snider without prejudice and with leave to amendment.
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.
Entered this 7th day of April, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge