Opinion
1:21-CV-01892
09-28-2023
DARRYL A. LYONS, Plaintiff, v. JOHN E. WETZEL, et al., Defendants.
Rambo Judge
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
Plaintiff Darryl A. Lyons claims that the defendants violated his constitutional rights in multiple ways while he was incarcerated at the State Correctional Institution at Rockview. Currently pending are three motions to dismiss Lyons's amended complaint. For the reasons discussed below, it is recommended that two of those motions be granted and that the third motion be granted in part and denied in part. It is also recommended that the court grant Lyons leave to file a second amended complaint and remand the case to the undersigned for further proceedings.
II. Background and Procedural History.
Lyons, proceeding pro se, began this action in the United States District Court for the Western District of Pennsylvania. See doc. 1. Because the allegations in the complaint concerned events that took place at the State Correctional Institute at Rockview (“SCI Rockview”), which is in the Middle District, the case was transferred to this court. See doc. 3. After the case was transferred here, Lyons filed an application to proceed in forma pauperis, which was granted. See docs. 7, 10.
Lyons also filed a motion for temporary restraining order or a preliminary injunction seeking an order requiring that he be transferred from SCI Rockview to a different correctional institution. See doc. 9. Because Lyons did not meet the exacting standard for showing that he is entitled to such relief, it was recommended that the court deny his motion for a temporary restraining order or a preliminary injunction. See doc. 11. It was also recommended that the court grant Lyons leave to file an amended complaint to clarify his claims, the relief he seeks, and the defendants he is suing. Id. The court adopted that report and recommendation, denying Lyons's motion for a temporary restraining order or preliminary injunction, granting Lyons leave to file an amended complaint, and remanding the case to the undesigned. See doc. 12.
After Lyons failed to file an amended complaint within the time set forth by the court, the original complaint was screened, and it was recommended that the court dismiss the complaint and close the case. See doc. 13. The court adopted that report and recommendation, dismissed the complaint, and closed the case. See doc. 15. That same day, however, Lyons filed objections to the report and recommendation asserting that he had not received the court's order granting him leave to file an amended complaint. See doc. 14. And he later filed a nunc pro tunc motion for reconsideration of the order dismissing the case. See doc. 16. Construing that motion as a Fed.R.Civ.P. 60(b) motion, the court granted that motion to the extent it reopened the case, granted Lyons additional time to file an amended complaint, and remanded the case to the undersigned. See doc. 17.
On September 20, 2022, Lyons filed an amended complaint. See doc. 18. The amended complaint names 17 defendants: (1) John E. Wetzel, the former Secretary of the Pennsylvania Department of Corrections; and the following officials, officers, or providers at SCI Rockview: (2) Superintendent Salamon,(3) Deputy Superintendent Rowe, (4) Corrections Classifications & Program Manager Miller, (5) Dr. Preston, (6) Dr. Weber, (7) Unit Manager Clark, (8) Nurse Trimpey, (9) Superintendent Assistant Paul, (10) Psychological Service Specialist Olson, (11) Captain VanGorder; (12) Lieutenant Stover, (13) Lieutenant Peterson, (14) Corrections Counselor Bonsell, (15) Corrections Officer Curtis, (16) Corrections Officer Ace, and (17) Sergeant Gottshall. Id. at 1 (caption). Lyons alleges the following facts in his amended complaint.
Although Lyons spells several of the defendants' last names differently from the spelling provided by defense counsel, the spelling provided by defense counsel is used because it is presumed that defense counsel knows how to spell their clients' names.
Lyons does not set forth the facts in chronological order. But for clarity purposes, in this report and recommendation, the alleged facts are set forth in chronological order.
In March of 2021, blood was found in Lyons's stool and a colonoscopy was ordered. Id. at 4. Lyons was also ordered to receive treatment for Hepatitis C. Id. But when medical treatment was scheduled for Lyons, staff would falsely state that he refused so as to deny him treatment. Id.
On May 18, 2021, Lyons notified defendant Salamon about “the rampant abuse and retaliation being perpetuated against him by staff.” Id. Salamon refused to intervene, and according to Lyons, this “emboldened the staff and the frequency and intensity of retaliation increased.” Id.
On May 27, 2021, defendant Curtis refused to release Lyons from his cell to received sexual abuse counseling from his counselor from Centre Safe, Inc. Id.
In June 2021, Lyons began writing defendant Salamon and Captain Davisrequesting that they intervene and ensure that he receive his medical treatment. Id. He received no response. Id.
Lyons does not list Captain Davis as a defendant in this action.
On June 3, 2021, Lyons sent defendant Rowe a request asking to speak with him about “Pa. Law and DOC policy which placed [his] life and safety in jeopardy.” Id. at 2. Rowe responded that Lyons should send him the information. Id. On June 15, 2021, Lyons sent Rowe a copy of an affidavit that his cellmate had submitted to defendant Stover. Id. In this affidavit, Lyons's cellmate stated that Sergeant Metzer directed him to punch Lyons in the face. Id. Rowe never responded. Id. Lyons asserts that “staff was using inmates to administer abuse by control[l]ing [his] property and commissary as a way to retaliate against [him] for writing grievances.” Id.
Lyons does not list Sergeant Metzer as a defendant in this action.
On June 28, 2021, Lyons called the Inmate Abuse Hotline. Id. at 3. He reported that his cellmate, who is a violent schizophrenic, “had become even more e[m]boldened,” and Lyons requested that local staff be ordered to separate him and his cellmate. Id.
On July 2, 2021, defendant Peterson appeared at Lyons's cell door, and used pepper spray or oleoresin capsicum spray (“OC spray”) on him, after which Lyons was removed from his cell and placed a psychiatric observation cell. Id. Lyons contends that Peterson's use of the OC spray was unjustified and was in retaliation for him calling the Inmate Abuse Hotline. Id.
On July 15, 2021, Lyons was returned to a cell with the same cellmate who was threatening him and “extorting [his] personal property.” Id. At the time he was being placed in the cell, Lyons told defendants Clark, Olson, and Curtis that if they forced him into the cell, he would kill himself. Id. They told him: “Go Ahead, Do It.” Id. After being placed in the cell, Lyons broke his glasses and used the metal part to stab himself in the neck and arms. Id.
In September 2021, defendants Peterson and Gottshall sprayed Lyons with OC spray resulting in permanent eye damage. Id. at 5. According to Lyons, this use of the OC spray amounted to excessive force and was retaliation. Id.
In September 2021, Unit Manager Knapp allowed staff to steal legal paperwork from Lyons's cell in order to deny him access to the court. Id.
Lyons does not list Unit Manager Knapp as a defendant in this action.
In October 2021, defendant Bonsell repeatedly appeared at Lyons's cell door and told Lyons that defendant Rowe told him that if Lyons did not stop filing grievances, he would be sent to the “SRTU,” which according to Lyons is a program used by the Department of Corrections as punishment. Id.
Although Lyons does not allege what “SRTU” stands for, it stands for Secure Residential Treatment Unit. See DC-ADM 802, §1.B.8 (“If the inmate is pregnant, under the age of 18, has a mental illness or significant medical illness, the Shift Commander or PCRNP should explore the feasibility of placing him/her into a Secure Residential Treatment Unit (SRTU) ....” (footnotes and bold omitted)). DC-ADM 802 is posted on the Department of Corrections' website. See https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx (last visited Aug. 18, 2023).
In November 2021, defendant Trimpey told Lyons that he was not receiving treatment for his Hepatitis C because he was in the RHU. Id.
In December 2021, defendants Gottshall and Ace as well as Corrections Officer Reese had Lyons “perform a sex act consisting of [him] stripping out of [his] clothes in order for [him] to receive[] meals.” Id. at 6. Also in December 2021, defendant “Dr. Preston knowingly accepted false information concerning how many meals [Lyons] had missed which denied [Lyons] from receiving proper medical care.” Id.
Lyons does not list Corrections Officer Reese as a defendant in this action.
In January 2022, Lyons was sent legal mail from this court. Id. at 7. The Department of Corrections has a policy that inmates must sign for legal mail, and if the mail is declined, it must be returned to the sender. Id. Lyons alleges, however, that he did not decline the legal mail from the court, nor did he receive it. Id. And because he did not respond to the order contained in the mail and the court closed the case, Lyons infers that the mail was not returned to the court. Id. Lyons also notes that in August 2022, the court reopened the case. Id.
In April 2022, after being denied medical treatment for over a year, Lyons learned that he had liver cancer. Id. at 6. At that time, according to Lyons, Dr. Geller informed him that he had developed liver cancer in the past six to nine months. Id. Lyons contends that had he not been previously denied medical treatment, his liver cancer would have been caught earlier. Id. In April 2022, Dr. Geller recommended that Lyons immediately receive treatment for his Hepatitis C, but as of the time he filed his amended complaint, Lyons still had not received such treatment, which, Lyons asserts, increased the damage to his liver. Id.
Lyons does not list Dr. Geller as a defendant in this action.
As relief, Lyons seeks compensatory and punitive damages as well as that the defendants be fired from their employment with the Department of Corrections or be demoted.
There are three motions to dismiss the amended complaint currently pending: (1) a motion to dismiss filed by defendants Wetzel, Salamon, Rowe, Miller, Clark, Trimpey, Paul, Olson, Stover, Peterson, Bonsell, Curtis, Ace, Gottshall, and VanGorder (“the DOC defendants”); (2) a motion to dismiss filed by Dr. Weber; and (3) a motion to dismiss filed by Dr. Preston. See docs. 29, 42, 44. The defendants have filed briefs in support of their motions to dismiss. See docs. 34, 45, 47.
Lyons's multiple requests for the appointment of counsel were denied. See docs. 17, 22, 48, 51. Lyons's request for an indefinite stay of this case was also denied. See doc. 48. But considering the issues raised by Lyons (including medical and mental health issues), by an Order dated February 7, 2023, Lyons was granted a lengthy extension of time to respond to the three pending motions to dismiss his amended complaint. Id. Lyons was given until May 1, 2023, to file briefs in opposition to the pending motions. Id. In the alternative, Lyons was granted leave to file a second amended complaint to attempt, if appropriate, to cure the defects raised by the defendants in their motions to dismiss. Id. In sum, Lyons was ordered either to file briefs in opposition to the defendants' motions to dismiss or to file a second amended complaint. Id. Further, since Lyons is proceeding pro se, basic pleading requirements were set forth for his benefit. Id. Later, Lyons' request for an extension of time was granted, and Lyons was ordered either to file briefs in opposition to the motions to dismiss or to file a second amended complaint on or before August 1, 2023. See doc. 51.
Lyons then filed another request for a further extension of time stating that he was released from prison on June 25, 2023, and he is now homeless. See doc. 52. The undersigned is not unsympathetic to Lyons's plight. But the motions to dismiss here have been pending since November 28, 2022, January 11, 2023, and January 26, 2023, respectively. See docs. 29, 42, 44. Given the lengthy extensions of time that Lyons has already been granted, by a separate order, Lyons's most recent motion for an extension of time has been denied. See doc. 54. The pending motions to dismiss the amended complaint are addressed in this report and recommendation. Although it is recommended that two of the motions be granted and that the third motion be granted in part and denied in part, it is also recommended that Lyons be given leave to file a second amended complaint. And given the challenges facing Lyons (including his medical conditions and homelessness), it is recommended that Lyons be given a lengthy amount of time to file any second amended complaint.
III. Pleading and Fed.R.Civ.P. 12(b)(6) Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, “only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents” are considered. Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
In sum, “[w]e accept as true all factual matters [the plaintiff] alleges, but his complaint cannot survive unless the facts it recites are enough to state plausible grounds for relief.” Beasley v. Howard, 14 F.4th 226, 231 (3d Cir. 2021) (citing Iqbal, 556 U.S. at 678). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. But “[a] claim that relies just on ‘conclusory statements,' or on ‘threadbare recitals of the elements of a cause of action' without supporting factual allegations, does not establish plausible grounds for relief.” Beasley, 14 F.4th at 231 (quoting Fischbein v. Olson Rsch. Grp., Inc., 959 F.3d 559, 561 (3d Cir. 2020)).
A complaint filed by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “Notwithstanding the rule of liberal construction, a pro se complaint may not survive dismissal if its factual allegations do not meet Iqbal's basic plausibility standard.” Beasley, 14 F.4th at 231.
IV. Discussion.
Lyons brings his claims under 42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 “does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right.” Id. To establish a claim under § 1983, the plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Here, none of the defendants dispute that they were acting under color of state law. Thus, the question is whether Lyons has pleaded that that they violated his federal rights. That question is addressed below in connection with each of the three motions to dismiss.
A. The Motion to Dismiss filed by the DOC Defendants.
Lyons brings several different types of claims against the DOC defendants, and the DOC defendants move to dismiss the amended complaint for various reasons.
1. Defendants Wetzel, Miller, Paul, and VanGorder.
The amended complaint fails to state a claim upon which relief can be granted against defendants Wetzel, Miller, Paul, and VanGorder because Lyons has not alleged that they were personally involved in an alleged violation of his rights.
Liability under Section 1983 “‘cannot be predicated solely on the operation of respondeat superior.'” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
A constitutional deprivation cannot be premised merely on the fact that the defendant was a supervisor when the incidents set forth in the complaint occurred. See Alexander v. Forr, 297 Fed.Appx. 102, 104-05 (3d Cir. 2008). But there are two viable theories of supervisory liability. Santiago, 629 F.3d at 129 n.5. Under the first theory, a supervisor can be liable if he or she established and maintained a policy, practice, or custom that directly caused the constitutional harm. Id. Under the second theory, a supervisor can be liable if he or she participated in violating the plaintiff's rights, directed others to violate the plaintiff's rights, or as the person in charge had knowledge of and acquiesced in his or her subordinates' violations of the plaintiff's rights. Id.
Although the caption of the amended complaint list defendants Wetzel, Miller, Paul, and VanGorder as defendants, the amended complaint contains no factual allegations regarding these defendants. Because there are no factual allegations regarding these defendants, Lyons has failed to plead facts from which it can plausibly be inferred that they were personally involved in an alleged violation of his rights. Accordingly, the amended complaint fails to state a claim upon which relief can be granted against defendants Wetzel, Miller, Paul, and VanGorder.
2. Defendants Salamon, Rowe, and Stover.
Defendants Salamon, Rowe, and Stover also contend that Lyons has failed to plead that they were personally involved in an alleged violation of his rights. Whereas Lyons only listed defendants Wetzel, Miller, Paul, and VanGorder in the caption of his amended complaint, Lyons does allege some facts regarding defendants Salamon, Rowe, and Stover in his amended complaint. Thus, it must be determined whether Lyons alleges facts from which it can plausibly be inferred that these defendants were personally involved in an alleged violation of his rights. Before turning to the allegations against defendants Salamon, Rowe, and Stover, because these defendants contend that personal involvement cannot be shown through the fact that a letter or request slip was sent to a defendant, that issue is addressed at the outset.
A letter, request slip, or grievance from a prisoner that complains only of an event that has already happened is not sufficient to show that the recipient of the letter, request slip, or grievance was personally involved in the underlying action. See e.g., Pressley v. Beard, 266 Fed.Appx. 216, 218 (3d Cir. 2008) (concluding that the district court properly dismissed several defendants, including Secretaries of the Department of Corrections and Superintendents, “who were sued based on their failure to take corrective action when grievances or investigations were referred to them”); Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006) (“Although the complaint alleges that Appellees responded inappropriately to Brooks's later-filed grievances about his medical treatment, these allegations do not establish Appellees' involvement in the treatment itself.”); Stuart v. Murray, No. 1:18-CV-0430, 2020 WL 6710209, at *6 (M.D. Pa. Nov. 16, 2020) (observing that “[t]he ‘after-the-fact' review of a grievance, or an inmate's dissatisfaction with a grievance response, do not establish the involvement of officials and administrators in any underlying constitutional deprivation”).
But in some circumstances, a letter, request slip, or grievance may be enough to put an official on notice of an alleged continuing violation of a prisoner's rights, and, therefore, may show actual knowledge of an alleged constitutional violation and acquiescence in the events forming the basis of a prisoner's claims. See e.g., Parkell v. Danberg, 833 F.3d 313, 337 n.14 (3d Cir. 2016) (noting that “[o]ur oft-cited holding in Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988) that the mere filing of a grievance does not show actual knowledge by a supervisor is not applicable, as Phelps's letters show that he actually had reviewed the grievances.”); Diaz v. Palakovich, 448 Fed.Appx. 211, 215 (3d Cir. 2011) (holding that summary judgment for the defendants was improper where the defendants had knowledge through the grievance process of an alleged ongoing practice of improper handling of the plaintiff's mail and the defendants failed to take corrective action); Sutton v. Rasheed, 323 F.3d 236, 24950 (3d Cir. 2003) (concluding that summary judgment was not warranted as to a defendant who received from the prisoner a letter, styled as a final appeal of a grievance, who referred the issue to another, and who then responded by denying the grievance appeal); Atkinson v. Taylor, 316 F.3d 257, 270-71 (3d Cir. 2003) (refusing to hold as a matter of law that correspondence or conversations with prison officials do not constitute sufficient evidence of actual knowledge and acquiescence); Spada v. Klemm, No. 1:22-CV-00478, 2023 WL 2290258, at *9 (M.D. Pa. Feb. 28, 2023) (“Under certain circumstances, however, a grievance may be sufficient to place a defendant on notice of continued wrongdoing and, thus, may show actual knowledge of and acquiescence in the events that form the basis of a plaintiff's asserted constitutional claims.”).
a. Defendant Salamon.
The allegations against defendant Salamon are sparse. After alleging that staff were interfering with his medical treatment by falsely stating that he refused treatment, Lyons alleges that on May 18, 2021, he notified defendant Salamon about “the rampant abuse and retaliation being perpetuated against him by staff.” Id. Salamon refused to intervene, and according to Lyons, this “emboldened the staff and the frequency and intensity of retaliation increased.” Id. Lyons also alleges that in June 2021, he began writing defendant Salamon requesting that she intervene and ensure that he receive his medical treatment. Id. He received no response. Id.
Defendant Salamon argues that Lyons fails to allege her personal involvement. In this regard, she points out that Lyons does not detail how he informed her or what abuse he allegedly told her about. While Lyons's allegations are sparse, detailed factual allegations are not required. And construing the allegations liberally and in the light most favorable to Lyons, as must be done at this stage of the proceedings, Lyons has sufficiently alleged that he informed Salamon, at a minimum, of an ongoing failure to receive medical treatment and that she took no action. Thus, the amended complaint sufficiently alleges personal involvement on the part of defendant Salamon.
b. Defendant Rowe.
The allegations against defendant Rowe are also sparce. Lyons alleges that on June 3, 2021, he sent defendant Rowe a request asking to speak with him about “Pa. Law and DOC policy which placed [his] life and safety in jeopardy.” Doc. 18 at 2. Rowe responded that Lyons should send him the information. Id. Lyons then sent Rowe a copy of an affidavit that his cellmate had submitted to defendant Stover. Id. In this affidavit, Lyons's cellmate stated that Sergeant Metzer directed him to punch Lyons in the face. Id. Rowe never responded. Id.
Defendant Rowe argues that these allegations are not related to Lyons's underlying claims and do not suffice to establish personal involvement. The first part of this argument-that these allegations do not relate to Lyons's underlying claims-is meritless. Construing the allegations in the amended complaint liberally, as is required since Lyons is pro se, Lyons is complaining about danger from his cellmate and staff actions exacerbating that danger. These allegations are relevant to those complaints. But the allegations that Rowe failed to respond after being sent the affidavit is not sufficient to show personal involvement. As set forth above, a letter may be enough to show personal involvement if it involves a contention that there is an ongoing violation, but not if the letter merely complains about past conduct. Here, Lyons merely alleges that his cellmate's affidavit stated that Sergeant Metzer directed him to punch Lyons in the face. From this it cannot plausibly be inferred that Lyons' missive to Rowe put Rowe on notice of an ongoing violation of Lyons's rights. Accordingly, these allegations are not sufficient to show personal involvement on the part of defendant Rowe. Thus, the amended complaint fails to state a claim upon which relief can be granted against defendant Rowe based on defendant Rowe not responding after Lyons sent him his cellmate's affidavit.
Lyons also alleges that in October 2021, defendant Bonsell repeatedly appeared at Lyons's cell door and told him that defendant Rowe told him (Bonsell) that if Lyons did not stop filing grievances, he would be sent to the “SRTU,” which according to Lyons is a program used by the Department of Corrections as punishment. Doc. 18 at 5. Defendant Rowe does not address this allegation. As discussed later, however, in connection with the arguments raised by defendant Bonsell, Lyons fails to state a claim upon which relief can granted in this regard.
c. Defendant Stover.
The only allegation in the amended complaint that concerns defendant Stover is that Lyons sent Rowe a copy of an affidavit that his cellmate had submitted to defendant Stover, in which affidavit, Lyons's cellmate stated that Sergeant Metzer directed him to punch Lyons in the face. Id. at 2. Again, as mentioned above in connection with defendant Rowe, it cannot plausibly be inferred that based on his cellmate's affidavit Lyons put Stover on notice of an ongoing violation of his rights. Accordingly, the allegations are not sufficient to show personal involvement on the part of defendant Stover.
3. Defendants Peterson and Gottshall-Eighth Amendment Excessive Force Claims.
Lyons asserts excessive force claims based on two uses of OC spray. He alleges that on July 2, 2021, defendant Peterson appeared at his cell door, and used OC spray on him, after which Lyons was removed from his cell and placed a psychiatric observation cell. Doc. 18 at 3. He also alleges that in September 2021, defendants Peterson and Gottshall sprayed him with OC spray resulting in permanent eye damage. Id. at 5.
When OC spray is directed at a particular prisoner, the claim is analyzed as an Eighth Amendment excessive force claim. See Gibson v. Flemming, 837 Fed.Appx. 860, 862 (3d Cir. 2020) (analyzing claim that prisoner was sprayed with OC spray as an Eighth Amendment excessive force claim). When prison officials are accused of using excessive force in violation of the Eighth Amendment, the inquiry “is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). There are several considerations that a court must examine in determining whether a correctional officer has used excessive force, including: “(1) ‘the need for the application of force'; (2) ‘the relationship between the need and the amount of force that was used'; (3) ‘the extent of injury inflicted'; (4) ‘the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) ‘any efforts made to temper the severity of a forceful response.'” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).
“In a correctional setting, it is clear that deploying O.C. spray does not per se constitute the use of excessive force in violation of the Eighth Amendment.” Fleming v. Yates, No. 1:21-CV-349, 2022 WL 3572701, at *5 (M.D. Pa. Apr. 29, 2022), report and recommendation adopted, 2022 WL 2610433, at *1 (M.D. Pa. July 8, 2022). “The use of chemical agents to subdue recalcitrant prisoners is not cruel and unusual when reasonably necessary.” Gibson, 837 Fed.Appx. at 862.
Here, Lyons alleges that defendants Peterson and Gottshall used OC spray on him, but he has failed to allege any facts regarding the circumstances of such uses of OC spray. As the above summary of Eighth Amendment excessive-force standards show, whether the use of OC spray violates the Eighth Amendment is a fact-intensive inquiry. And allegations that OC spray was used was without any further factual allegations regarding the circumstances are insufficient to raise a plausible inference that such use violated the Eighth Amendment. See Fleming, 2022 WL 3572701, at *5 (concluding that allegations that the defendant sprayed the plaintiff with OC spray without any further factual details fail to state a claim upon which relief can be granted). Accordingly, the amended complaint fails to state Eighth Amendment excessive force claims against defendants Peterson and Gottshall.
4. Defendants Trimpey and Curtis-Eighth Amendment Medical Claims.
Lyons alleges that in November 2021, defendant Trimpey told him that he was not receiving treatment for his Hepatitis C because he was in the RHU. Doc. 18 at 5. Defendant Trimpey contends that the amended complaint fails to state an Eighth Amendment medical claim upon which relief can be granted.
“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle, 429 U.S. at 103. For a plaintiff to allege a viable Eighth Amendment medical claim, he must allege facts from which it can reasonably be inferred that the defendant acted with deliberate indifference to his serious medical needs. Id. at 104; see also Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (“Failure to provide medical care to a person in custody can rise to the level of a constitutional violation under § 1983 only if that failure rises to the level of deliberate indifference to that person's serious medical needs.”). This is a two-part inquiry: “a plaintiff must make (1) a subjective showing that ‘the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that ‘those needs were serious.'” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
Defendant Trimpey suggests that Lyons has failed to allege that he had a serious medical need. A medical need is serious if it “has been diagnosed by a physician as requiring treatment” or if it “is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981) (table)). Additionally, “if ‘unnecessary and wanton infliction of pain' results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment.” Id. (quoting Estelle, 429 U.S. at 103). Further, “where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious.” Id. Here, Lyons alleges that he was ordered to receive treatment for Hepatitis C. Doc. 18 at 4. Liberally construed, this allegation leads to a reasonable inference that he was diagnosed by a physician as requiring treatment of Hepatitis C. Thus, Lyons has alleged that he had a serious medical need.
But Lyons has not alleged facts from which it can plausibly be inferred that Nurse Trimpey was deliberately indifferent to his serious medical need. Deliberate indifference is a subjective standard. Farmer v. Brennan, 511 U.S. 825, 840 (1994). “To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). To act with deliberate indifference, the prison official must have known of the substantial risk of serious harm and must have disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. Here, all Lyons alleges is that Nurse Trimpey told him he was not receiving treatment for Hepatitis C because he was in the RHU. Doc. 18 at 5. Lyons does not allege any facts suggesting that Nurse Trimpey would know that this denial of treatment while he was in the RHU put him at substantial risk of serious harm. For example, he has not alleged how long he was in the RHU, how many treatments he did not receive, how the lack of treatments affected him, or any other facts regarding what Nurse Trimpey may have known about these issues. Accordingly, Lyons has failed to state an Eighth Amendment medical claim upon which relief can be granted against Nurse Trimpey.
Lyons alleges that on May 27, 2021, defendant Curtis refused to release him from his cell to received sexual abuse counseling from his counselor from Centre Safe, Inc. Id. Lyons has not, however, alleges facts from which it can plausibly be inferred that defendant Curtis' one-time refusal to release him from his cell for counseling amounted to deliberate indifference to a serious medical need. Accordingly, Lyons has failed to state an Eighth Amendment medical claim upon which relief can be granted against defendant Curtis.
5. Defendants Gottshall and Ace-Eighth Amendment and Fourth Amendment Claims.
Lyons alleges that in December 2021, defendants Gottshall and Ace had him “perform a sex act consisting of [him] stripping out of [his] clothes in order for [him] to receive[] meals.” Doc. 18 at 6. Defendants Gottshall and Ace contend that Lyons fails to state an Eighth Amendment sexual harassment claim upon which relief can be granted against them because such a claim requires a sexual assault or threats of a sexual assault and here Lyons does not allege that they touched him, let alone sexually assaulted him or threatened to sexually assault him.
The defendants cite Chambliss v. Jones, 3:14-cv-2435, 2015 WL 328064, at *3 (M.D. Pa. Jan. 26, 2015), to support their assertions that sexual touching or a threat of such is required to state an Eighth Amendment claim. But Chambliss is distinguishable from this case. Chambliss dealt with sexual comments and gestures, and in that context, the court concluded that “[w]hile the behavior alleged by Chambliss on the part of [the defendant] may be inappropriate, without allegations of direct physical contact and, or, pain, it does not rise to the level of an Eighth Amendment violation.” In this case, however, Lyons's claim is that he was required to strip to be fed. The United States Court of Appeals for the Third Circuit has suggested that physical touching is not required to state an Eighth Amendment claim based on requiring an inmate to strip. Cf. Parkell v. Danberg, 833 F.3d 313, 336 (3d Cir. 2016) (concluding that “thrice-daily visual body cavity searches” “do not constitute cruel and unusual punishment unless they are ‘undertaken maliciously or for the purpose of sexually abusing an inmate'”); Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 229 (3d Cir. 2015) (holding that allegations that female inmate was forced to be naked in view of male prison personnel and inmates “asserts an Eighth Amendment claim because forcing her to be naked in these circumstances would be a malicious act intended to humiliate her for no legitimate penological reason”); see also Bakhtiari v. Madrigal, No. 3:18-CV-38, 2019 WL 2084445, at *16 n.16 (M.D. Pa. May 13, 2019) (noting that the Third Circuit's “discussion in Parkell . . . suggests sexual touching is not necessary for establishing an Eighth Amendment violation”), aff'd after appeal as to other claims, 841 Fed.Appx. 457 (3d Cir. 2021). Thus, defendants Gottshall and Ace's contention that Lyons cannot state an Eighth Amendment claim against them absent a physical assault or threat of such an assault is not well taken.
Nevertheless, the amended complaint fails to state an Eighth Amendment claim against defendants Gottshall and Ace. Lyons does not allege facts that raise a plausible inference that requiring him to strip to be fed was malicious or done for no legitimate penological reason. Lyons does not allege, for example, whether requiring him strip was based on a policy of strip searching inmates before taking them for meals. And although Lyons characterizes the requirement that he strip as a sexual act, he alleges no facts to support such a characterization. Thus, the amended complaint fails to state an Eighth Amendment claim upon which relief can be granted against defendants Gottshall and Ace.
Although defendants Gottshall and Ace construe Lyons's claim against them as an Eighth Amendment claim, it is noted that subjecting an inmate to strip searches also implicates the Fourth Amendment. See Parkell, 833 F.3d at 325 (holding that “an inmate's expectation of bodily privacy is the kind of expectation that society is prepared to recognize as reasonable,” and, thus, the Fourth Amendment “grants inmates a limited right to bodily privacy, subject to reasonable intrusions necessitated by the prison setting” (internal quotation marks and citation omitted)). The “contours of prisoners' Fourth Amendment rights,” however, “are very narrow,” and “[i]nmate search policies are constitutional if they strike a reasonable balance between inmate privacy and the needs of the institutions.” Id. at 326 (internal quotation marks and citation omitted). That balancing requires courts to “consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. (internal quotation marks and citation omitted). Here, as mentioned above, Lyons does not allege facts concerning the circumstances surrounding the requirement that he strip. Thus, he has failed to allege facts from which it can plausibly be inferred that the requirement was unreasonable. Accordingly, the amended complaint fails to state a Fourth Amendment claim upon which relief can be granted.
6. Defendants Clark, Olson, and Curtis-Eighth Amendment Vulnerability-to-Suicide Claim.
Lyons alleges that on July 15, 2021, he was returned to a cell with the same cellmate who was threatening him and “extorting [his] personal property.” Doc. 18 at 3. At the time he was being placed in the cell, Lyons told defendants Clark, Olson, and Curtis that if they forced him into the cell, he would kill himself. Id. They told him: “Go Ahead, Do It.” Id. After being placed in the cell, Lyons broke his glasses and used the metal part to stab himself in the neck and arms. Id. Defendant Clark, Olson, and Curtis contend that Lyons fails to state an Eighth Amendment claim against them based on this incident.
“A particular vulnerability to suicide represents a serious medical need.” Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005). “A vulnerability-to-suicide claim, which is simply a more specific articulation of the Eighth Amendment rule that prison officials must not be deliberately indifferent to a prisoner's serious medical needs, requires showing (1) the existence of a particular vulnerability to suicide, (2) that a prison official knew or should have known of the individual's particularly vulnerability, and (3) that the official acted with reckless or deliberate indifference to the particular vulnerability.” Mullin v. Balicki, 875 F.3d 140, 158-59 (3d Cir. 2017) (footnote omitted).
Defendants Clark, Olson, and Curtis's argument for dismissal of this claim is both conclusory and confusing. They set forth the above standards, and they state that “[a] plaintiff's announcement of an intent to kill himself indicated a ‘strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.'” Doc. 34 at 14 (quoting Colburn v. Upper Darby Twp., 946 F.2d 1017, 1024 (3d Cir. 1991) (“The requirement of a ‘particular vulnerability to suicide' speaks to the degree of risk inherent in the detainee's condition. As several of our sister circuits have recently pointed out, the requirement of ‘reckless or deliberate indifference' implies that there must be ‘a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.'” (citations omitted)). Then after reiterating Lyons's allegations, the whole of the defendants' argument in support of dismissal is that “Lyons does not demonstrate any vulnerability to suicide, nor that [they] knew of or should have known of any vulnerability.” Doc. 34 at 14-15. This argument is conclusory because they fail to set forth any reasoning for their conclusion. This argument is also confusing because just a few lines before they suggested that the announcement of an intent to kill oneself satisfies the requirement of a particular vulnerability to suicide and they acknowledge that Lyons stated that he was going to kill himself if they put him in the cell. In connection with a Fed.R.Civ.P. 12(b)(6) motion, “[t]he defendant bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Given the conclusory and confusing nature of defendants Clark, Olson, and Curtis's argument, they have not shown that they are entitled to dismissal under Fed.R.Civ.P. 12(b)(6) of Lyons's Eighth Amendment vulnerability to suicide claim.
7. Defendants Peterson, Gottshall, Bonsell, and Rowe- Retaliation Claims.
Lyons asserts several retaliation claims against various of the DOC defendants. “Retaliating against a prisoner for the exercise of his constitutional rights is unconstitutional.” Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). Retaliation claims are judged against exacting legal standards. “To state a claim for retaliation, a prisoner must allege that: (1) he was engaged in constitutionally protected conduct, (2) ‘he suffered some “adverse action” at the hands of prison officials,' and (3) ‘his constitutionally protected conduct was “a substantial or motivating factor” in the decision' to take that action.” Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).
a. Defendant Peterson-July 2021 OC Spray Incident.
Lyons alleges that on June 28, 2021, he called the Inmate Abuse Hotline. Doc. 18 at 3. He reported that his cellmate, who is a violent schizophrenic, “had become even more e[m]boldened,” and Lyons requested that local staff be ordered to separate him and his cellmate. Id. According to Lyons, on July 2, 2021, defendant Peterson appeared at his cell door, and used OC spray on him, after which Lyons was removed from his cell and placed in a psychiatric observation cell. Id. Lyons contends that Peterson's use of the pepper spray was unjustified and was in retaliation for him calling the Inmate Abuse Hotline. Id.
Defendant Peterson contends that Lyons fails to state a retaliation claim upon which relief can be granted against him based on the July 2, 2021 use of OC spray because Lyons does not allege facts showing a causal connection between Lyons's report to the Inmate Abuse Hotline and the use of OC spray. In this regard, Peterson argues that Lyons has not alleged facts showing that he could have known of Lyons's report to the Inmate Abuse Hotline or that the use of the OC spray was due to that report.
Here, Lyons does not allege facts from which it can reasonably be inferred that his report to the Inmate Abuse Hotline was a substantial or motivating factor in defendant Peterson's decision to use OC spray on July 2, 2021. Lyon's conclusory allegation of retaliation is insufficient to state a claim upon which relief can be granted. See Oliver v. Roquet, 858 F.3d 180, 195 (3d Cir. 2017) (concluding that “the conclusory statement that [the plaintiff's protected] activity is what deprived him of his constitutional rights is exactly the type of ‘bare assertion[ ]' that the Supreme Court has held amounts to ‘nothing more than a formulaic recitation of the elements of a constitutional [retaliation] claim.'”) (quoting Iqbal, 556 U.S. at 681 (quoting in turn Twombly, 550 U.S. at 555)); Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016) (explaining that “the clearest indication that an allegation is conclusory and unworthy of weight in analyzing the sufficiency of a complaint is that it embodies a legal point” and concluding that an allegation that the plaintiff's supervisors subjected her to disparate treatment in retaliation for her complaints was a legal conclusion).
Further, “[i]t is only intuitive that for protected conduct to be a substantial or motivating factor in a decision, the decisionmakers must be aware of the protected conduct.” Ambrose v. Township of Robinson, 303 F.3d 488, 493 (3d Cir. 2002). In other words, a plaintiff “cannot establish that there was a causal connection without some evidence that the individuals responsible for the adverse action knew of the plaintiff's protected conduct at the time they acted.” Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 196 (3d Cir. 2015). But, here, Lyons does not allege facts from which it can reasonably be inferred that defendant Peterson knew about his report to the Inmate Abuse Hotline. Thus, he has not plausibly alleged a causal connection between his protected activity and the July 2, 2021 use of OC spray. Accordingly, the amended complaint fails to state a claim upon which relief can be granted against defendant Peterson based on the July 2, 2021 use of OC spray.
b. Defendants Peterson and Gottshall-September 2021 OC Spray Incident.
Lyons also claims that the September 2021 use of OC Spray was in retaliation for his legal activities. He alleges that in September 2021, defendants Peterson and Gottshall sprayed him with OC spray resulting in permanent eye damage. Doc. 18 at 5. According to Lyons, this use of the OC spray amounted to excessive force and was retaliation. Id. Defendants Peterson and Gottshall contend that Lyons fails to state a retaliation claim upon which relief can be granted against them based on this use of OC spray because he has not alleged that he was engaged in protected activity.
Lyons alleges that in June of 2021, he called the Inmate Abuse Hotline, and he alleges that in October of 2021, he was told to stop filing grievances. Both calling the Inmate Abuse Hotline and filing grievances are protected activity. See generally Wisniewski, 857 F.3d at 157 n.4 (“Wisniewski's complaints to prison officials and inmate requests implicate conduct protected by the First Amendment.”); Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (concluding that the prisoner-plaintiff engaged in constitutionally protected activity when informed prison officials of his intent to file a grievance and he requested a grievance form); Fantone v. Latini, 780 F.3d 184, 192 n.8 (3d Cir. 2015) (noting that “[]the filing of a prison grievance is an activity protected by the First Amendment.”). But Lyons does not identify either of these activities as the basis for his retaliation claim based on the September 2021 use of OC spray. Rather, he simply makes a conclusory statement that such use was retaliatory. As discussed above, such a conclusory allegation is not sufficient to state a claim upon which relief can be granted. And again, Lyons has not alleged facts from which it can be inferred that defendants Peterson and Gottshall were aware of his protected activity. Accordingly, the amended complaint fails to state a claim upon which relief can be granted against defendants Peterson and Gottshall based on the September 2021 use of OC spray.
c. Defendants Bonsell and Rowe-October 2021 Threat.
Lyons alleges that in October 2021, defendant Bonsell repeatedly appeared at his cell door and told him that defendant Rowe told him that if Lyons did not stop filing grievances, he would be sent to the “SRTU,” which according to Lyons is a program used by the Department of Corrections as punishment. Doc. 18 at 5. Defendant Bonsell contends that the amended complaint fails to state a retaliation claim upon which relief can be granted against him because there was no adverse action.
“[A] prisoner litigating a retaliation claim must show that he suffered some ‘adverse action' at the hands of the prison officials.” Rauser, 241 F.3d at 333. “[A] prisoner-plaintiff satisfies this requirement by demonstrating that the action ‘was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights.'” Id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). “The effect of the alleged conduct on the [plaintiff's] freedom of speech need not be great in order to be actionable, but it must be more than de minimis. ” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal quotations and citations omitted).
Defendant Bonsell asserts that Lyons has not alleged an adverse action because verbal harassment or threats cannot constitute an adverse action. He cites two unpublished, and therefore non precedential opinions, to support that assertion. See Burgos v. Canino, 358 Fed.Appx. 302, 306 (3d Cir. 2009) (concluding, in connection with a claim that correction officer defendant retaliated against the plaintiff by requiring him to submit to a urinalysis testing and threatening to issue a misconduct report if plaintiff failed to comply, that one required urinalysis was not an adverse action and “because threats alone do not constitute retaliation, the claim relating to the threat failed”); Marten v. Hunt, 479 Fed.Appx. 436, 439 (3d Cir. 2012) (affirming grant of summary judgment in favor of defendant on retaliation claims based on verbal threats and the filing of a false misconduct report that was subsequently dismissed).
Based on these cases, defendant Bonsell suggests that a threat cannot never rise to the level of an adverse action. But the Third Circuit has suggested otherwise, albeit in a different context. Prisoners are required to exhaust available administrative remedies before filing suit. See 42 U.S.C. § 1997e(a). In connection with determining whether administrative remedies are unavailable to a prisoner for purposes of the exhaustion requirement, the Third Circuit has concluded that in certain circumstances “serious threats of substantial retaliation” can render administrative remedies unavailable. Rinaldi v. United States, 904 F.3d 257, 267 (3d Cir. 2018). In Rinaldi, the court held that “[t]o defeat a failure-to exhaust defense, an inmate must show (1) that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance and (2) that the threat actually did deter this particular inmate.” Id. at 269. The first element set forth by the court in Rinaldi for showing that administrative remedies were unavailable is the same standard used for determining whether the was an adverse action for a retaliation claim. Thus, Bonsell's suggestion that a threat can never be an adverse action for a retaliation claim is not well taken.
Nevertheless, Lyons has not alleged facts from which it can reasonably be inferred that a threat to a send an inmate to the SRTU would deter a prisoner of ordinary firmness from exercising his constitutional rights. As noted above, Lyons does not allege any facts explaining what the SRTU is or what the conditions are like in the SRTU. Nor has he alleged any facts to support his contention that the SRTU is used as punishment. Thus, Lyons has not plausibly alleged that an unexecuted threat to send an inmate to the SRTU would amount to an adverse action. Cf Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (holding that a false misconduct report that was later dismissed “does not rise to the level of ‘adverse action' because it would not be ‘sufficient “to deter a person of ordinary firmness” from exercising his First Amendment rights'” (citations omitted)). Accordingly, the amended complaint fails to state a relation claim against defendant Bonsell upon which relief can be granted based on the threat to send Lyons to the SRTU.
The amended complaint can also reasonably be construed as asserting a retaliation claim against defendant Rowe based on the threat to send Lyons to the SRTU if he did not stop filing grievances. Defendant Rowe has not, however, moved to dismiss that claim against him. But for the same reasons set forth above, the complaint fails to state a retaliation claim against defendant Rowe based on the threat to send Lyons to the SRTU.
8. Summary re DOC Defendants.
Based on the foregoing, is it recommended that the DOC defendants' motion to dismiss the amended complaint be granted in part and denied in part. More specifically, it is recommended that all claims against the DOC defendants be dismissed except the claims against defendant Salamon and the vulnerability-to-suicide claim against defendants Clark, Olson, and Curtis.
B. The Motion to Dismiss filed by Dr. Weber.
Dr. Weber contends that the amended complaint fails to state a claim upon which relief can be granted against him. Although Dr. Weber is listed as a defendant in the caption of the amended complaint, the amended complaint does not contain any factual allegations regarding him. Thus, Lyons has failed to plead that Dr. Weber was personally involved in an alleged violation of his rights, and the amended complaint fails to state a claim upon which relief can be granted against Dr. Weber.
Dr. Weber also contends that Lyons failed to exhaust available administrative remedies. Because the amended complaint fails to state a claim upon which relief can be granted against Dr. Weber, this issue need not be reached at this time. Moreover, failure to exhaust available administrative remedies is also an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) based on a prisoner's failure to exhaust available administrative remedies is appropriate only if the failure to exhaust is clear from the face of the complaint or the limited set of documents that the court can properly consider in the context of a Rule 12(b)(6) motion. See Coutinho-Silva v. Ramirez, No. 3:17-CV-00378, 2017 WL 5588211, at *1 (M.D. Pa. Nov. 2, 2017), report and recommendation adopted, 2017 WL 5588179, at *1 (M.D. Pa. Nov. 20, 2017); Escalera v. Harry, No. 1:15-CV-02132, 2016 WL 6694502, at *1 (M.D. Pa. Sept. 28, 2016), report and recommendation adopted, 2016 WL 6582065, at *1 (M.D. Pa. Nov. 7, 2016). Here, it is not clear from the face of the amended complaint that Lyons failed to exhaust administrative remedies: the amended complaint does not allege anything in this regard. Dr. Weber asserts that none of the documents that he received in response to a subpoena to the Secretary's Office of Inmate Grievances and Appeals shows that Lyons exhausted his administrative remedies. And he contends that any grievance that has been properly exhausted must have gone through the Secretary's Office of Inmate Grievance and Appeals. But that is not necessarily so as there are certain situations where the full administrative process in unavailable to a prisoner, and so, the exhaustion requirement would not bar a claim. See, e.g., Shifflett v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019) (holding “that as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies, it has made its administrative remedies unavailable and the prisoner has fully discharged the PLRA's exhaustion requirement”); Rinaldi, 904 F.3d at 269 (setting forth the standard for determining when the administrative remedy process is unavailable due to serious threats of substantial retaliation).
C. The Motion to Dismiss filed by Dr. Preston.
Dr. Preston contends that the amended complaint fails to state an Eighth Amendment medical claim against him. The only allegation in the amended complaint concerning Dr. Preston is that in December 2021, he “knowingly accepted false information concerning how many meals [Lyons] had missed which denied [Lyons] from receiving proper medical care.” Doc. 18 at 6. Lyons does not allege, however, facts to support a plausible inference that Dr. Preston was deliberately indifferent to a serious medical need on the part of Lyons. In this regard, Lyons has not alleged how many meals he missed, what effect, if any, such meals had on his health, or what Dr. Preston knew about those two issues. Accordingly, Lyons has failed to allege an Eighth Amendment claim upon which relief can be granted against Dr. Preston.
D. Leave to amend.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must 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). Here, it is recommended that the court dismiss many of Lyons's claims because he has not alleged facts to support such claims. But it not clear that Lyons would be unable to plead facts to support such claims. Considering that and given the liberal-amendment standard, leave to amend would not be inequitable or futile. Thus, it is recommended that the court grant Lyons leave to file a second amended complaint.
V. Recommendations.
For the foregoing reasons, it is recommended that the court grant the motions (docs. 42, 44) to dismiss filed by Dr. Weber and Dr. Preston.
It is further recommended that the court granted in part and deny in part that motion (doc. 29) filed by the DOC defendants. More specifically, it is recommended that all claims against the DOC defendants be dismissed except the claims against defendant Salamon and the vulnerability-to-suicide claim against defendants Clark, Olson, and Curtis.
It is further recommended that the court grant Lyons leave to file a second amended complaint. Given the challenges facing Lyons (including his medical conditions and homelessness), it is recommended that Lyons be given a lengthy amount of time to file any second amended complaint. It is further recommended that the court remand the case to the undersigned for further proceedings.
If the court adopts this recommendation and if Lyons elects to file a second amended complaint, his second amended complaint must be titled as a second amended complaint and must contain the docket number of this case. Fed.R.Civ.P. 10(a). “The plaintiff is advised that any amended complaint must be complete in all respects.” Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992). “It must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed.” Id. “In general, an amended pleading supersedes the original pleading and renders the original pleading a nullity.” Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019). “Thus, the most recently filed amended complaint becomes the operative pleading.” Id. In other words, if a second amended complaint is filed, the original complaint and the amended complaint will have no role in the future litigation of this case. Any second amended complaint must also comply with the pleading requirements of the Federal Rules of Civil Procedure, including the requirements that the complaint contain “a short and plain statement of the grounds for the court's jurisdiction,” “a short and plain statement of the claim,” and “a demand for the relief sought.” Fed.R.Civ.P. 8(a)(1)-(3). Further, “[e]ach allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). And to the extent it would promote clarity to do so, “each claim founded on a separate transaction or occurrence . . . must be stated in a separate count.” Id.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judg78998e with instructions.