Opinion
Civil Action 22-3416
02-06-2023
LAMAR MARSHALL v. DELAWARE COUNTY, et al.
OPINION
SCOTT W. REID, UNITED STATES MAGISTRATE JUDGE
On August 5, 2022, Lamar Marshall filed this case, in which he seeks relief under 42 U.S.C. §1983, in the Court of Common Pleas for Delaware County. On August 25, 2022, the Defendants removed it to this Court. Defendants filed a motion to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. Pr. 12(b)(6), and Marshall filed an amended complaint on September 21, 2022, instead of responding. Defendants filed another 12(b)(6) motion, and, on December 20, 2022, Marshall filed a second amended complaint. Defendants are now Delaware County, Laura K. Williams, Dele Faly, Lisa Mastroddi, Mr. Banks, Samantha Byrne, Joseph McCreary, John Shuter, and GEO Corrections and Detentions, LLC.
Now before this Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Rule 12(b)(6), to which Marshall has responded. For the reasons set forth below, I will grant Defendants' Motion in part and deny it in part.
I. Factual and Procedural Background
Between March 30, 2022, and approximately April 27, 2022, Marshall was incarcerated at the George W. Hill Correctional Facility in Delaware County, Pennsylvania. Second Amended Complaint at ¶ 13, ¶ 26.
Marshall alleges that he was housed in a holding cell with approximately 17 other inmates for the first four or five days of his incarceration. Id. at ¶ 13, ¶ 14. According to Marshall, the holding cell did not have working toilets or running water. Id. at ¶ 15. He was deprived of a bathroom for many hours at a time, forcing him to urinate into milk cartons. Id. at ¶ 15, ¶16. He was not able to shower. Id. at ¶ 15. He was also forced to sleep on the concrete floor, which caused him intense back and neck pain. Id. at ¶ 16.
Marshall maintains that he “repeatedly” asked Correctional Officer M. Banks “for the aforesaid basic needs including using the bathroom,” but that Banks ignored him. Id. at ¶ 17. Banks also ignored the similar condition of other prisoners in the holding cell. Id. at ¶ 17.
According to Marshall, he was then transferred to a regular cell. Id. at ¶ 18. There, however, he did not receive any “required recreational time” and was forced to eat in his cell. Id. He was presumably in this cell for approximately one week, because, on or about April 12, 2022, he was transferred to a second cell. Id. at ¶ 19.
The second cell had a broken lock on the door. Id. at ¶ 19. On or about April 17, 2022, Marshall filed a grievance regarding the broken cell door, and a lamp which was leaking water. Id. at ¶ 20. He informed his counselor, defendant Samantha Byrne, that the door was broken, and that he needed either a new door or a repair. Id. at ¶ 22. Byrne told Marshall that defendant John Shuter “was informed about the door and that it was going to be repaired.” Id. at ¶ 23. Shuter became Head of Maintenance as of April 6, 2022. Id. at ¶ 24. Before this, the Head of Maintenance was defendant Joseph McCreary. Id. Marshall asked to be moved to a different cell, but his request was denied. Id. at ¶ 25. The door was never repaired or replaced. Id. at ¶ 23. Marshall was housed in this cell until his release, on or about April 27, 2022. Id. at ¶ 26.
Marshall states that, for the 15 days he was in the cell with the broken door, he felt unsafe and feared for his life. Id. at ¶ 21. He experienced “extreme fear and anxiety” and “was terrified that he would be attacked in his cell.” Id. at ¶ 27. He alleges that he “has suffered and continues to suffer severe physical and emotional distress” as a result of the conduct of all defendants. Id. at ¶ 30.
Marshall also alleges in the Statement of Facts in his Second Amended Complaint:
The conduct of the Defendants was part of a custom, policy and/or practice and these customs, policies or practices caused the violation of Plaintiff's rights, including as a result of failing to train and supervise. Specifically, Defendant, collectively or individually and/or jointly or severally, leave prisoners in cells without basic needs like using the bathroom (more fully described above), and leave prisoners unprotected in cells with broken doors. Upon information and belief, Defendants McCreary and Shuter were the chief decision makers regarding the upkeep/preservation of the cell doors. Upon information and belief, Warden Laura K. Williams, Deputy Warden Dele Faly, and Deputy Warden Lisa Mastroddi, are also the chief decision makers regarding the aforesaid custom, policy, and/or practice.Id. at ¶¶ 31-33.
Marshall has asserted one claim against all defendants under 42 U.S.C. § 1983 for “Failure to Protect/Cruel and Unusual Punishment”, asserting a violation of his rights under the Eighth Amendment of the United States Constitution. Id. at Count I. He has asserted a second claim under Monell v. Department of Social Services of New York, 436 U.S. 658 (1978), naming defendants Delaware County d/b/a George W. Hill Correctional Facility, GEO Corrections and Detentions, LLC, Joseph McCreary, and John Shuter. Id. at Count II.
II. Relevant Legal Standard
Federal Rule 12(b)(6) permits a defendant to move for dismissal of a claim where a plaintiff has failed to state a claim upon which relief can be granted. The present standard for summary dismissal of a complaint that fails to state a claim was set forth by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Prior to these decisions, a district court could dismiss a complaint for failure to state a claim only if it failed to contain a bare recitation of a claim's legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In Twombly, however, the United States Supreme Court decided that “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Instead, a court need not accept as true “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” 556 U.S. at 678. Further, a complaint must show - and not merely allege - that the pleader is entitled to relief, by setting forth sufficient factual matter to show that a claim is plausible. Id. at 679.
As the Court of Appeals for the Third Circuit has explained:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complainant's well-pleaded facts as true, but may disregard any legal conclusions. Id. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” [Iqbal at 129 S.Ct.] 1950. In other words, a complaint must do more than allege a plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts. See Phillips [v. County of Allegheny], 515 F.3d [224] at 234-5 [3d. Cir. 2008].Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
The District Court's “plausibility determination” is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id., quoting Iqbal at 129 S.Ct. 1949.
Even after Twombly, however, a plaintiff is not required to establish the elements of a prima facie case in a complaint, but need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Fowler, at 578 F.3d 213. An evidentiary standard is not a proper measure of whether a complaint fails to state a claim. Id. Thus, in Fowler, the Third Circuit Court of Appeals reversed the decision of a District Court which dismissed a disability complaint on the basis that the plaintiff would not be able to prove she was disabled: “At the pleading stage, ... Fowler's allegation regarding disability is sufficient.” Id. at 214.
Marshall has not specified whether he was a sentenced prisoner or a pretrial detainee at the time complained of. Because this is a counseled case, and because Marshall seeks relief under the Eighth Amendment, I assume he was a sentenced prisoner. If he was a pretrial detainee, both claims under §1983 must be dismissed for the additional reason that the Eighth Amendment provides relief only to convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535-7 (1979). A pretrial detainee must seek relief under the Fourteenth Amendment's Due Process Clause. Id.
Although Marshall has set forth his assertion that Defendants “failed to properly protect [him] with a locking cell door” together with his claim that they “failed to properly provide [him] with working toilets or running water,” in a single claim, they are really two separate §1983 claims, and will be addressed separately.
A. The Failure to Protect Claim
The Eighth Amendment requires prison officials to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). A plaintiff bringing a failure to protect claim must show (1) that he is incarcerated under conditions posing a substantial risk of serious harm; and that (2) the defendant prison official knew of and disregarded an excessive risk to inmate health and safety. Id. at 834-8.
It can scarcely be doubted that a cell door which cannot be locked presents a condition posing a substantial risk of serious harm. I cannot agree with Defendants that Marshall would need to show a known “plan to harm” him in order to demonstrate this. To put this in context, imagine that a landlord refused to put a lock on a tenant's front door in the absence of a known plan to harm the tenant. In Marshall's “neighborhood,” many of his neighbors were convicted criminals. Further, Marshall has alleged that he told defendant Byrne of this dangerous condition, and that she told him that it was reported to Shuter and/or McCreary. At this stage, this sets forth sufficient factual matter to support a claim under Iqbal.
However, the claim may be alleged only against Byrne, Shuter and McCreary. Leaving aside questions of qualified immunity, Marshall has not alleged any facts that would indicate that another prison official knew of the condition of his cell door. As Defendants point out, there is no respondeat superior liability under §1983. Monell, supra, at 436 U.S. 691.
Further, the Prison Litigation Reform Act (“PLRA”) does not permit a claim for mental or emotional injury unless it is accompanied by physical injury. 42 U.S.C. § 1997e(e); Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003); Goode v. Russell, Civ. A. No. 21-1592, 2021 WL 4989856 at *2 (E.D. Pa. Oct. 27, 2021). The physical injury can be less than “significant”, but must be more than de minimis. Mitchell at 318 F.3d at 535.
Marshall has not alleged any physical injury arising out of his failure to protect claim. Although he states in his factual section that he “has suffered and continues to suffer severe physical and emotional distress as a result of Defendants' conduct,” he specifies only that he suffered from “intense back and neck pain” as a result of sleeping on a concrete floor. Complaint at ¶ ¶ 16, 30.
Because this is Marshall's third Complaint, it would not ordinarily be appropriate to allow him a fourth opportunity to draft his claim. However, Defendants have never sought dismissal of the failure to protect claim on the basis of the lack of a physical injury required by the PLRA. The court acts sua sponte in this respect, as it may when the inadequacy of a claim is apparent as a matter of law. Zaslow v. Coleman, 103 F.Supp.3d 657, 664 (E.D. Pa. 2015). Thus, this error is pointed out to Marshall for the first time here. Further, it is conceivable that Marshall's alleged mental distress had physical manifestations. See, e.g., Torrealba v. Hogsten, Civ. A. No. 06-108, 2009 WL 3242293 at *1 (M.D. Pa. Oct. 8, 2009).
Accordingly, the Court will permit Marshall the opportunity to refile this claim against Defendants Byrne, McCreary, and Shuter, if he is able to set forth sufficient factual matter to adequately allege physical injury as a result of their actions.
B. The Conditions of Confinement Claim
Marshall's claim alleging that his Eighth Amendment rights were violated by the overcrowding and lack of necessary utilities in the holding cell amount to a challenge to the conditions of his confinement. As the Honorable C. Darnell Jones recently explained:
To establish an Eighth Amendment violation based on the conditions of confinement, a prisoner must establish that prison officials' acts or omissions denied him “the minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (stating that the Eighth Amendment's prohibition of cruel and unusual punishment requires that prison officials provide “humane conditions of confinement.”). Such necessities include food, clothing, shelter, medical care, and reasonable safety. Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). A prisoner must also establish that the defendants acted with deliberate indifference. Farmer, 511 U.S. at 835. A claim based on mere negligence is insufficient to allege a plausible Eighth Amendment violation. See Whitley v. Albers, 475 U.S. 312, 319 (1986) (“It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel
and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock”).Brown v. Department of Corrections, Civ. A. No. 21-2930, 2021 WL 5769551 at *4 (E.D. Pa. Dec. 6, 2021).
Marshall claims that he was housed for four to five days in a cell which was crowded enough that he had to sleep on a mattress on the floor; that the cell lacked a working toilet and running water; that he was unable to shower; and that he was forced to urinate in milk cartons because defendant Corrections Officer Banks ignored his repeated requests “for the aforesaid needs including using the bathroom.”
Cases brought by prisoners under § 1983 alleging overcrowding conditions similar to these, and worse, have been repeatedly dismissed by judges in this District and in other districts in this Circuit, for failure to state a claim upon which relief can be granted. In Brown, Judge Jones noted that the Court of Appeals for the Third Circuit decided in Hubbard v. Taylor, 538 F.3d 229, 236 and n.6 (3d Cir. 2008) (frequently cited as “Hubbard II”) that there was no per se constitutional right “to be free from triple-celling or from sleeping on a mattress placed on the floor”). 2021 WL 5769551 at *5. He therefore dismissed a claim complaining only of doublecelling. Id.
In Walker v. George W. Hill Correctional Facility, a claim regarding overcrowding at the same facility where Marshall was incarcerated was denied, although the plaintiff complained of triple-celling; of sleeping in a “boat unit” on the floor; and of unsanitary conditions where his sleeping space was only two feet from the cell's toilet. Civ. A. No. 18-2724, 2018 3430678 at *3 (E.D. Pa. July 13, 2018). The Walker judge decided that these conditions did not deprive the plaintiff of a basic need. Id.
Similarly, in Borzelleca v. Geo Group, another claim involving the George W. Hill Correctional Facility, a claim was dismissed where the plaintiff alleged that:
[H]e was detained at GWH [George W. Hill Correctional Facility] for three short periods in 2019 and 2020. He asserts that during these periods, lasting two to three days each, he was held in dirty conditions in the GWH intake area. Specifically, he was forced to eat his meals within ten feet of his toilet, inmates (presumably Borzelleca included), had to sleep and eat on the floor, he was held in a “small cell with no access to anything other than 3 meals,” and there were “upwards of 15 people in this cell at one time for days.”Civ. A. No. 21-3333, 2021 WL 3403515 at *1 (E.D. Pa. Aug. 3, 2021). (Internal citations omitted).
Both the Brown and Borzelleca judges quoted Wilson v. Seiter, 501 U.S. 294, 305 (1991), where the United States Supreme Court wrote: “Nothing so amorphous as ‘overall conditions' can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.”
Even more recently, a pretrial detainee's claim alleging unconstitutional conditions of confinement was dismissed from his Second Amended Complaint with prejudice where the plaintiff alleged he was “denied recreation and showers for several months at a time and could not leave his cell for recreation” and also that “he was housed in a cell with feces and other bodily fluids all over the walls and toilet area.” Sanchez v. Pirolli, Civ. A. No. 4797, 2022 WL 2116830 at *8 (E.D. Pa. June 13, 2022).
The Sanchez judge cited Walker regarding unsanitary conditions, as well as a number of cases which established that short-term deprivation of showers and exercise did not “constitute the type of serious deprivation that amounts to a constitutional violation.” Id., citing Fortune v. Hamberger, 379 Fed.Appx. 116, 122 (3d Cir. 2010); Coleman v. Hodges, Civ. A. No. 18-1552, 2018 WL 6618459 at *8 (W.D. Pa. Dec. 18, 2018), approved and adopted 2018 WL 6618 408 (W.D. Pa. Dec. 18, 2018); Barndt v. Wenerowicz, Civ. A. No. 15-2729, 2016 WL 6612441 at *4 (E.D. Pa. Nov. 8, 2016), aff'd 698 Fed.Appx. 673 (3d Cir. 2017).
This is not to say that floor-sleeping and unsanitary conditions cannot form part of a triable § 1983 claim regarding overcrowding. They can. In Hargis v. Atlantic County Justice Facility, the District Court for the District of New Jersey denied summary judgment on a pretrial detainee's claim, finding that he had “alleged facts that may be sufficient to support his claim that the conditions of his confinement may constitute a serious deprivation of his most basic human needs.” The court explained:
Hargis plainly alleges that he is frequently splashed with urine feces, and toilet water while sleeping on the floor for nine months and continuing, longer than the time frame discussed in Hubbard II. Hargis also alleges, unlike in Hubbard II, that he often must eat in his cell by the toilet because the dayroom is overcrowded and does not provide the space for recreation, dining and other activities outside his cell. Thus, he allegedly spends most of his time restricted to a small cell with two other inmates with a mattress 13 inches from the toilet. In addition, Hargis complains that the food served is nutritionally in adequate, often spoiled, diluted, and adulterated, and minimal to sustain an adequate diet for a male adult.Civ. A. No. 10-1006, 2010 WL 1999303 at *8 (D.N.J. May 18, 2010).
Similarly, in another New Jersey case concerning a pretrial detainee, summary judgment was denied where conditions were “significantly worse that those alleged by the Hubbard II plaintiffs.” Duran v. Merlino, 923 F.Supp.2d 702, 716-17 (D.N.J. 2013). The judge wrote:
First, while the cells in both cases are similarly sized, the day room space available to the Hubbard II plaintiff was approximately ten times larger than the day room space available to a comparable number of ACJF inmates. Second, the Hubbard II plaintiffs were only relegated to floor mattresses for three to seven months, less than half the fifteen-month period that Plaintiff claims to have endured the conditions here. Third, in Hubbard II, the record did not substantiate the plaintiffs' allegations that the use of floor mattresses resulted in “the splashing of human waste upon them.” Here, however, Plaintiff has corroborated his claim with letters, grievance forms, and his own affidavit. Plaintiff also proffered evidence concerning problems such as very limited recreational time (only once a week), extreme noise, violence, and the spread of disease.Id. (Internal citations omitted; emphasis in original).
Marshall is contesting a 12(b)(6) motion, and not a motion for summary judgment such as those considered in Hargis and Duran. It would not be fair to expect him to produce at this stage the evidence the Duran defendant provided, such as the measurements of his cell. Fowler, supra, at 578 F.3d 213 (an evidentiary standard is not a proper measure of whether a complaint fails to state a claim). Nevertheless, it is clear that the conditions Marshall has alleged in his Second Amended Complaint are not of the magnitude alleged in Hargis and Duran. To focus on just one detail, Marshall was detained in the complained-of conditions for four or five days, rather than the three, seven, or fifteen months at issue in the New Jersey cases. Also, despite the lack of normal sanitation in the cell, Marshall has not alleged that human waste actually touched him.
Marshall's allegations are more akin to those in Brown and Walker, which were dismissed because, even if true, they did not allege a denial of “the minimal civilized measure of life's necessities,” as the United States Supreme Court phrased it in Rhodes v. Chapman. Sanchez and Borzelleca concerned pretrial detainees, so that their claims were dismissed, even under the more plaintiff-friendly due process standard.
It can also be noted that Walker, Sanchez, Brown, Borzelleca, and Hargis were all dismissed under 28 U.S.C. § 1915(e), rather than Federal Rule 12(b)(6). This is because, unlike this case, they were all cases filed in forma pauperis, so that 28 U.S.C. §1915(e) required the courts to review the complaints to determine whether they should be dismissed for failure to state a claim upon which relief could be granted. This difference does not appear to be meaningful for purposes of analysis. If anything, more can be expected of a complaint in a counseled action.
Thus, Marshall has not succeeded in showing that he was deprived of a basic human need, or, in the words of Rhodes, the minimal civilized measure of life's necessities, as is necessary to support a “conditions of confinement” claim under the Eighth Amendment. 452 U.S. at 347. Because he has not shown a plausible claim for relief, this claim may be dismissed under Fed. R. Civ. Pr. 12(b)(6).
C. The Monell Claim
In Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978), the United States Supreme Court set forth a standard for municipal liability under § 1983. It held: “When execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts and acts may fairly be said to represent official policy, inflicts the injury ... the government as an entity is responsible under § 1983.”
To satisfy the pleading standard in a Monell claim a plaintiff “must identify [the] custom or policy, and specify what exactly that custom or policy was.” McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009); Harper v. County of Delaware, 779 Fed. App'x 143, 147 (3d Cir. 2019) (non-precedential); Brown v. Phila. Police Department, Civ. A. No. 23-228, 2023 WL 1107876 at *2 (E.D. Pa. Jan. 23, 2023).
Where the policy in question concerns a failure to train or supervise municipal employees, liability under §1983 requires a showing that the failure amounts to “deliberate indifference” to the rights of the person with whom those employees come into contact. City of Canton v. Harris, 489 U.S. 378 (1989). Thus, it must be shown that (1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights. Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).
In Count II of his Second Amended Complaint, Marshall states:
Prior to the events described herein, Defendant[sic “Defendants”] failed to train, supervise, and discipline the action of its officers, exhibiting deliberate indifference to the Constitutional rights of persons, which caused violation of Plaintiff's constitutional and other rights.
The conduct of the Defendants was part of a custom, policy, and/or practice and these customs, policies or practices caused the violation of Plaintiff's rights, including as a result of failing to train and supervise. Specifically, Defendants, collectively or individually and/or jointly or severally, leave prisoners in cells without basic needs like using the bathroom (more fully described above), and leave prisoner [sic “prisoners”?] unprotected in cells with broken doors.Complaint at ¶¶ 41-42. As set forth previously, the allegation in Marshall's fact section relating to Monell is essentially a restatement of the second paragraph set forth above. Id. at ¶¶ 31-33.
This Claim is an object lesson in what Twombly and Iqbal disallow. Marshall has made conclusory statements which coincide with the elements of a Monell claim, but he has not supported his claim with sufficient factual matter to show the existence of a plausible claim. He has certainly not specified what exactly the defendants' customs or policies were, as demanded by the Court of Appeals for the Third Circuit. McTernan, supra. He has not alleged any particular training practice. He has not made any allegations as to the required elements of a failure to train claim, as set forth in Carter. Nor has Marshall raised anything suggesting that he could cure these deficiencies by amendment. See Harper, supra, at 147. Indeed, he has already amended his Complaint twice without curing these deficiencies. Accordingly, Count II of Marshall's Second Amended Complaint will be dismissed with prejudice.
IV. Conclusion
For the reasons set forth above, the undersigned will enter an Order of this date, dismissing Count II with prejudice; dismissing Marshall's conditions of confinement claim with prejudice; and dismissing Marshall's failure to protect claim against Defendants Byrne, McCreary and Shuter without prejudice to amend if he is able to set forth factual matter alleging related physical injury; the failure to protect claim will be dismissed with prejudice against all other defendants.