Opinion
Civil Action 22-cv-735
11-02-2022
SHELDON LEE MORRIS, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS; GEORGE M. LITTLE; MICHAEL ZAKEN, also known as M. Zaken; S. BUZAS; M. SWITZER, Ranking C.O. on Duty; J. SCOTTI; MS. TRACY SHAWLEY, as subrogee of T. SHAWLEY; J. SPIKER; and B. RUDZIENSKI, Chief Grievance Officer, Defendants.
W. Scott Hardy District Judge
REPORT AND RECOMMENDATION RE: ECF NOS. 36 AND 40
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Presently before the Court is a Motion to Dismiss filed on behalf of the Pennsylvania Department of Corrections (“DOC”) and identified administrators and employees (collectively, the “DOC Defendants”), ECF No. 36, and a Motion to Dismiss filed on behalf of Defendant J. Scotti (“Scotti”), ECF No. 40. For the following reasons, it is respectfully recommended that the Court grant the Motion to Dismiss filed on behalf of the DOC Defendants and grant the Motion to Dismiss filed by Defendant Scotti for failure to state a claim.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Sheldon Lee Morris (“Plaintiff”) brings this civil rights action pursuant to 42 U.S.C. § 1983 related to the conditions of his confinement at the State Correctional Institution at Greene (“SCI - Greene”). Plaintiff alleges that Department of Corrections' administrators and employees violated his rights under the Eighth Amendment of the United States Constitution by failing to protect him when he was ordered to change cells and then issued Plaintiff a misconduct for failing to obey the order. ECF No. 9. Plaintiff also asserts state law claims for negligence and negligent and intentional infliction of emotional distress.
Plaintiff alleges that the proposed move to a new housing block would have exposed him to potential attack from unnamed and unknown inmates, for unspecified reasons. After raising his concerns with Defendant Tracy Shawley (“Shawley”), Plaintiff's request to remain on his current cell block was denied. Plaintiff asserts that his only alternative was to accept a misconduct with a period of confinement in the Restricted Housing Unit (“RHU”). As a result of the misconduct, Plaintiff contends he was denied parole. Id. Plaintiff also alleges that he has not received mental health screening in accordance with DOC policy.
Plaintiff attaches the misconduct to his Complaint, along with the Disciplinary Hearing Report, and the Pennsylvania Parole Board Notice of Board Decision. ECF No. 9-1; ECF No. 9-2 at 1, 12. The exhibits reflect that Plaintiff's stay in the RHU was limited to five days and that the denial of parole was based on several factors including risk to the community and negative recommendations by the trial judge and prosecuting attorney. Id. Plaintiff's exhibits also confirm that after his misconduct hearing, Plaintiff was placed in Administrative Custody (“AC”) for safety reasons, and that he “has requested and been granted self-confinement.” Id. at 14-15.
Plaintiff has a second lawsuit pending before the Court in which he alleges that parole was wrongfully denied because an employee of the Washington City Police Department submitted a letter to the Pennsylvania Board of Probation and Parole that contained untrue information. See Morris v. Washington City Police Dept., No. 22-cv-659 (ECF No. 8 ¶¶ 12-16). In that action, Plaintiff acknowledges that the Notice of Board Decision cites “‘[t]he negative recommendation made by the trial judge' as well as ‘[t]he negative recommendation made by the prosecuting attorney.'” Id. ¶¶ 19-21.
In response to the Complaint, the DOC Defendants and Scotti have filed Motions to Dismiss as to all claims against all parties. ECF Nos. 36, 40. Plaintiff has filed his responses to both motions. ECF Nos. 50, 52. The motions are ripe for consideration.
B. LEGAL STANDARDS
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance' ”); Freeman v. Dep't of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a Pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. DOC Defendants' Motion to Dismiss (ECF No. 36)
The DOC Defendants move to dismiss Plaintiff's claims on three grounds: (1) Eleventh Amendment immunity; (2) lack of personal involvement in any underlying wrongs as to Defendants Little, Zaken, Buzas, Switzer, Spiker, Rudzienski, Ranking CO on Duty, and Chief Grievance Officer; and (3) failure to state a claim for the violation of DOC policies, the Eighth Amendment, the First Amendment, or for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.
For the reasons that follow, the Court should grant the Motion to Dismiss as to all claims against the DOC Defendants.
A. Official Capacity Claims
Upon review, the Eleventh Amendment bars Plaintiff's official capacity claims for damages against the individual Defendants, as well as his claims against the DOC.
The Eleventh Amendment generally precludes private individuals from bringing suit against a state, or one of its agencies, in federal court. Sheffer v. Centre Cnty., No. 4:18-cv-2080, 2019 WL 2621836, at *4 (M.D. Pa. May 23, 2019) (citing U.S. Const. Amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)). This is a jurisdictional bar, which applies regardless of the relief sought, including claims brought in equity. Id. (citing Pennhurst, 465 U.S. at 100). Such immunity is not absolute, however, and is “subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
Plaintiff concedes that the DOC is an executive department of the Commonwealth and shares in the Commonwealth of Pennsylvania's Eleventh Amendment immunity. ECF No. 50 at 1; see also Lavia v. Pennsylvania Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (“Pennsylvania's Department of Corrections is a part of the executive department of the Commonwealth”). Moreover, no exception applies. “The Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases (42 Pa. C.S.A. § 8521) and Congress did not abrogate state immunity in general in enacting civil rights legislation, including § 1983.” O'Hara v. Indiana Univ. of Pennsylvania, 171 F.Supp.2d 490, 495 (W.D. Pa. 2001). Thus, the Motion to Dismiss should be granted as to Plaintiff's claims against the DOC.
Eleventh Amendment immunity also extends to actions against officials in their official capacity because such claims lie against the entity of which the officer is an agent, as the real party in interest. Kentucky v. Graham, 473 U.S. 159, 169 (1985). As a result, claims against state officials in their official capacities for damages are treated as suits against the state and are barred by the Eleventh Amendment. Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013). Plaintiff concedes that his official capacity claims for damages against the individual defendants are barred by the Eleventh Amendment. Accordingly, the Motion to Dismiss should be granted with respect to Plaintiff's official capacity claims. ECF No. 50 at 1.
However, as Plaintiff argues, official capacity claims for declaratory and injunctive relief against individual defendants are not precluded. Id.; Pa. Fed'n of Sportsmen's Clubs, 297 F.3d at 323. Thus, the Motion to Dismiss Plaintiff's official capacity claims for declaratory and injunctive relief should be denied on the basis of immunity. That said, these claims are subject to dismissal on the alternative grounds asserted by the DOC Defendants.
B. Lack of Personal Involvement
Plaintiff brings his federal constitutional claims pursuant to 42 U.S.C. § 1983. To establish individual liability under § 1983, “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Rizzo v. Goode, 423 U.S. 362 (1976).
There are “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2017), rev'd on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015). First, a supervisor may be held liable if he “participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 & n. 5 (3d Cir. 2010) (citing A.M. ex rel. J.M.K. Luzerne Cnty., 372 F.3d 572, 586 (3d Cir. 2004)). Second, a supervisor may be liable if he “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M., 372 F.3d at 586.
In response to the DOC's Motion to Dismiss, Plaintiff withdraws his claims against Defendants S. Buzas (“Buzas”) and M. Switzer (“Switzer”). ECF No. 50 at 6. Plaintiff also concedes that his factual allegations against Defendants J. Spiker (“Spiker”) and B. Rudzienski (“Rudzienski”), the Chief Grievance Officer, are based in their participation in the grievance process and not in any way regarding Plaintiff's claims related to his housing or discipline. Thus, his claims against these Defendants are also voluntarily withdrawn. Id. at 4; see also Williams v. Ferdarko, No. 17-313, 2018 WL 3653272, at *3 (W.D. Pa. Aug. 1, 2018), aff'd 807 Fed.Appx. 177 (3d Cir. 2020) (“[t]he denial of Plaintiff's grievances does not, in itself, satisfy the requisite ‘personal involvement' requirement”); Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”).
As for Defendant Rudzienski, Plaintiff alleges that she is a hearing examiner who presided over Plaintiff's misconduct hearing and found Plaintiff guilty of refusing to obey an order to move to a new cell. ECF No. 9 ¶¶ 13, 44-45. Plaintiff complains that Rudzienski explained that the DOC does not have a general “PC” unit available and that a misconduct is the expected outcome for refusing an order. Plaintiff also alleges that the Rudzienski “assured Plaintiff that the parole board would understand the circumstances surrounding the misconduct.” Id. ¶ 46. Defendants argue that these allegations are insufficient to state a claim against Rudzienski. ECF No. 37 at 7. Plaintiff responds that Rudzienski was made aware that Plaintiff feared for his life and yet “chose to proceed with the unreasonable misconduct.” ECF No. 50 at 4.
The Court agrees that Plaintiff's allegations do not establish Rudzienski's personal involvement in the alleged violation of his rights. Rudzienski's role as a hearing examiner in the adjudication of Plaintiff's misconduct does not give rise a plausible inference that she participated in the underlying decision to move Plaintiff to a new cell block or as evidenced by the exhibits to Plaintiff's Complaint, the denial of parole by a parole board of which he was not a member. See Sandin v. Connor, 515 U.S. 472, 487 (1995) (any alleged effect on parole eligibility of prison misconduct finding is “simply too attenuated” to support a constitutional claim); Ceasar v. Varner, No. 1:21-CV-00323, 2022 WL 9491877, at *3 (W.D. Pa. Oct. 14, 2022) (hearing examiner's participation in disciplinary proceedings that result in a particular prison placement does not constitute personal involvement in the conditions of that placement; citing Diaz v. Canino, 502 F. App'x. 214, 218-19 (3d. Cir. 2012) (Plaintiff's 1983 claim against Hearing Examiner was properly dismissed because “Plaintiff d[id] not allege that [Hearing Examiner] had personal involvement in [the post-sentence deprivations] or that she had any involvement with Plaintiff's incarceration after she imposed the 360-day sentence.”)). Thus, dismissal based on the absence of Rudzienski's personal involvement is properly entered.
Plaintiff's only factual allegations about Defendants Michael Zaken (“Zaken”) and George M. Little (“Little”) involve their roles as supervisory or managerial officials with policymaking authority and as participants in the grievance appeal process. ECF No. 9 ¶¶ 5, 6. But there is no factual basis for finding these Defendants liable in their supervisory capacities and Plaintiff does not plead facts showing that Zaken or Little participated in violating Plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in subordinates' violations, or that they maintained any policy, practice or custom that caused Plaintiff's harm. See Santiago, 629 F.3d at 129; A.M., 372 F.3d at 586. For these reasons, the Court should grant the Motion Dismiss Plaintiff's claims against Zaken and Little.
Defendants also move to dismiss Plaintiff's claims against the unnamed “Ranking CO on Duty” because he did not play an affirmative role in any conduct giving rise to an actionable claim. ECF No. 37 at 7. Plaintiff responds that the Ranking CO on Duty failed to file paperwork to ensure Plaintiff would undergo a mental health assessment prior to his disciplinary hearing. ECF No. 50 at 6. However, the violation of an internal prison policy by itself does not state a claim for relief. See Watson v. Rozum, No. CIV.A. 12-35J, 2012 WL 5989202, at *9 (W.D. Pa. Oct. 29, 2012), report and recommendation adopted, 2012 WL 5989245 (W.D. Pa. Nov. 29, 2012) (citing Mercy Cath. Med. Ctr. v. Thompson, 380 F.3d 142, 154 (3d Cir. 2004); and citing Atwell v. Lavan, 557 F.Supp.2d 532, 556 n. 24 (M.D. Pa. Dec.21, 2007) (a prison policy manual does not have the force of law and does not rise to the level of a regulation)). And, in this case, the Complaint lacks allegations stating a plausible claim that the Ranking CO on Duty was deliberately indifferent to a serious mental health need to permit an inference that the failure to complete paperwork violated Plaintiff's Eighth Amendment rights. Thus, dismissal based on the lack of required personal involvement is appropriately granted.
C. Eighth Amendment Claim
The DOC Defendants next ask the Court to dismiss Plaintiff's claim that his Eighth Amendment rights were violated because Plaintiff fails to state a failure to protect claim. ECF No. 37 at 12-15.
“To state a claim for damages against a prison official for failure to protect from inmate violence, an inmate must plead facts that show (1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to his health and safety, and (3) the official's deliberate indifference caused him harm.” Proctor v. James, 811 Fed.Appx. 125, 128 (3d Cir. 2020) (quoting Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogation on other grounds recognized by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The test for deliberate indifference is twofold: “the 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.” Farmer, 511 U.S. at 837.
In Bistrian, the United States Court of Appeals for the Third Circuit explained that an inmate's “out of the blue and unadorned ‘I'm-in-trouble' entreaty” will not place a defendant on notice of a legitimate and substantial risk of harm. Bistrian, 696 F.3d at 369-70. In contrast, a claim for failure to protect was stated when a plaintiff alleged that before he was placed in an enclosed exercise yard with his attacker, prison officials knew that the inmate had threatened plaintiff because of his cooperation in an investigation and, despite this knowledge, failed to take preventive measures to ensure his safety. Id. at 368-69.
Here, Plaintiff makes generalized allegations about the violent nature of inmates imprisoned on SCI - Greene's A and B housing blocks, and further alleges that he told Defendant Shawley that his life would be in danger if he were moved to either location. He states he told her that an unidentified perpetrator “is known to have friends among inmates in the institution.” ECF No. 9 ¶¶ 29, 30. Plaintiff concedes that he declined Shawley's request to name the individual and alleges that he “didn't tell her this but he didn't want his neighbors connected through the ventilation system to over hear him telling her somebody's name.” Id. ¶ 33. Plaintiff “also feared T. Shawley would tell an inmate or staff member... [and he] felt it to be enough that he expressed concern for his safety.” Id. ¶ 36. Thus, as alleged in his Complaint, Plaintiff refused to provide any information about the nature or source of any threat, or any facts or circumstances upon which a Defendant could reasonably conclude that Plaintiff was in danger.
Plaintiff's allegations also make clear that he was not physically harmed. Instead, Plaintiff alleges that the DOC Defendants exposed him to the potential risk of assault by changing his housing assignment. However, “[t]he mere failure to prevent exposure to risk of harm does not give rise to a cognizable § 1983 failure-to-protect claim.” Robinson v. Northumberland Cnty. Jail, No. 3:21-CV-01905, 2022 WL 4227515, at *1 (M.D. Pa. Sept. 13, 2022) (citing Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996) (holding that a failure to prevent exposure to risk of harm cannot support a failure-to-protect claim where an assault did not actually occur); and citing Alvarez v. Davis, Civ. No. 1:19-cv-00034, 2021 WL 4166328, at *6 (W.D. N.C. Sept. 13, 2021) (“[A defendant] cannot be held liable for the failure to protect [the plaintiff] from an assault that did not occur.”)). See also Simmons v. Willson, No. 22-CV-1644, 2022 WL 3577376, at *3 (E.D. Pa. Aug. 19, 2022) (motion to dismiss granted where plaintiff alleged only that he told prison official “that he feared for his life and felt in danger of physical assault[.]” Even accepting these allegations as true, they are insufficient to support a reasonable inference that [plaintiff] was incarcerated under conditions posing a ‘substantial risk of serious harm[,]' and that Defendants were both aware of, and disregarded that risk, leading to [plaintiff's] injuries.”).
Plaintiff's claim is not otherwise remedied by his generalized assertions of harm from confinement in the RHU or in AC. See, e.g., Williams v. Armstrong, 566 Fed.Appx. 106, 109 (3d Cir. 2014) (citing Gibson v. Lynch, 652 F.2d 348 (3d Cir. 1981) and affirming the District Court's dismissal of Eighth Amendment claim arising from confinement in the RHU for 112 days where plaintiff did not allege that he was denied any of life's necessities). Thus, it is recommended that the Court grant the Motion to Dismiss Plaintiff's failure to protect claim.
D. First Amendment Retaliation Claim
The DOC Defendants suggest that Plaintiff's Complaint may be interpreted broadly to include a First Amendment retaliation claim. ECF No. 37 at 1, 8-12. Plaintiff fails to address this claim or respond to Defendants' arguments, and the Complaint does not identify a First Amendment claim. ECF No. 50; ECF No. 9. That said, Plaintiff's Complaint alleges that he exhausted administrative remedies to the best of his ability, but he “is being retaliated against and grievances complaining of this retaliation by C.O.s are being denied and even rejected without review.” ECF No. 9 at 11. Plaintiff states that without proper grievance review, he may be forced to return to general population. Id. Plaintiff adds that he should not be punished for wanting to remain safe. Id. at 12.
In order to establish a prima facie claim for retaliation under the First Amendment, Plaintiff must show (1) that “the conduct which led to the alleged retaliation was constitutionally protected”; (2) “he suffered some ‘adverse action' at the hands of the prison officials” that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) a “causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). If Plaintiff makes this initial showing, “the burden then shifts to the prison official to prove that the same decision would have been made absent the protected conduct for reasons reasonably related to a legitimate penological interest.” DeFranco v. Wolfe, 387 Fed.Appx. 147, 154-55 (3d Cir. 2010) (citing Rauser, 241 F.3d at 334).
There is no dispute that Plaintiff engaged in protected activity by filing a lawsuit and grievances, and he therefore satisfies the first prong. Defendants argue that Plaintiff cannot satisfy the second or third prongs of his prima facie case. ECF No. 37 at 9-12. Specifically, they argue that a change in custody level and cell move is not an adverse action as a matter of law. In addition, the issuance of a misconduct is not an adverse action because it resulted from Plaintiff's own actions. Id. at 10.
In Allah, the United States Court of Appeals for the Third Circuit held that continued placement in administrative custody may constitute an adverse action for purposes of a First Amendment retaliation claim. Although inmates may not have a constitutional right to be housed in a particular place of their choosing, as Defendants argue, “[g]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Allah, 229 F.3d at 224-25 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999)).
In this case, Plaintiff alleges that he was issued a misconduct because he refused an order to move to a new cell and refused a request for information that would have allowed prison administrators to investigate his claims of potential harm. ECF No. 9 ¶ 29-32, 38-39. Plaintiff also alleges that his AC placement resulted from his request for self-confinement to avoid any perceived but unidentified threat. Plaintiff does not claim or otherwise attribute the misconduct or his RHU and AC placement to the desire of any prison official to punish his eventual participation in the grievance process. Under these circumstances, the required causal connection between exercising the right to lodge a grievance and Plaintiff's placement in either the RHU or AC is lacking. The Motion to Dismiss any First Amendment retaliation claim is properly granted.
E. State Law Claims
Plaintiff also brings state law claims for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. The DOC Defendants move to dismiss these claims because Plaintiff fails to plead facts sufficient to state a claim upon which relief may be granted. ECF No. 37 at 15-16.
1. Negligence
To prevail on a negligence claim in Pennsylvania, a plaintiff must establish four elements: (1) a duty or obligation recognized by the law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of the duty or failure to conform to the standard by the defendant; (3) a causal connection between the defendant's conduct and the plaintiff's injury; and (4) actual loss or damage resulting to the plaintiff. Sabo v. UPMC Altoona, 386 F.Supp.3d 530, 558 (W.D. Pa. 2019). In this case, Plaintiff does not allege any facts establishing that Defendants failed to protect him, given his placement in the RHU and in AC, or that he suffered an injury as a result. Thus, Plaintiff has not alleged the requisite elements of a duty, breach of that duty, or any damages resulting from a breach of that duty. Accordingly, the negligence claim should be dismissed.
In considering common-law claims, the Court applies the substantive law of the state in which the alleged transgression occurred. See Richards v. United States, 369 U.S. 1, 9 (1962).
2. Negligent Infliction of Emotional Distress
Defendants also seek dismissal of Plaintiff's claim for negligent infliction of emotional distress. A claim for negligent infliction of emotional distress is available in four factual scenarios: “(1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative.” Toney v. Chester Cnty. Hosp., 961 A.2d 192, 197-98 (Pa. Super. Ct. 2008). In addition, a plaintiff must also plead facts to support the elements of a negligence claim - that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage. Brown v. Philadelphia Coll. of Osteopathic Med., 760 A.2d 863, 868 (Pa. Super. Ct. 2000) (citing Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998), and Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 45 (Pa. Super. 2000) (“absent a finding of negligence, the negligent infliction of emotional distress claim cannot survive”)).
Here, as discussed in the context of his negligence claim, Plaintiff cannot support the “breach of duty” element of his claim because he fails to point to any duty owed by the DOC Defendants that was breached. Accordingly, the negligent infliction of emotional distress claim should be dismissed as well.
3. Intentional Infliction of Emotional Distress
To state a claim for IIED, a plaintiff must allege: “(1) extreme and outrageous conduct; (2) intentional or reckless conduct; (3) conduct caused the emotional distress; and (4) severe emotional distress.” See, e.g., Smith v. Washington Area Humane Soc'y, No. 2:19-cv-1672, 2020 WL 6364762, *8 (W.D. Pa. Oct. 29, 2020) (citation omitted). Importantly, the “[p]laintiff must allege physical manifestations of the emotional distress.” Id. (emphasis added) (citing Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1122 (Pa. Super. Ct. 2004)). Thus, “a plaintiff ‘must suffer some type of resulting physical harm due to the defendant's outrageous conduct.'” Richardson v. Barbour, No. 2:18-cv-1758, 2020 WL 4815829, at *14 (E.D. Pa. Aug. 19, 2020) (quoting Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010)).
The Court is persuaded by the DOC Defendants' argument that Plaintiff has made no allegations that satisfy the first requirement of extreme and outrageous conduct. ECF No. 37 at 16. As the Third Circuit has explained, “[l]iability on an intentional infliction of emotional distress claim ‘has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'” Reedy, 615 F.3d at 232 (quoting Field v. Phila. Elec. Co., 565 A.2d 1170, 1184 (Pa. Super. 1989)). A basis for finding intolerable conduct is not alleged by Plaintiff and, accordingly, dismissal is properly entered.
2. Scotti's Motion to Dismiss (ECF No. 40)
Defendant Scotti moves to dismiss Plaintiff's claims on two primary grounds: (1) failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997(e), and (2) failure to state a claim upon which relief can be granted. ECF No. 40, 41. Plaintiff has filed his response and contends that dismissal on either ground is not properly entered. ECF No. 52. Upon review, the Court finds that dismissal based on exhaustion is not properly entered at this stage of the litigation, but agrees that dismissal of all claims against Defendant Scotti is appropriate on the basis of failure to state a claim.
A. Exhaustion
Scotti contends that dismissal is appropriate because Plaintiff failed to exhaust his administrative remedies for any of his claims. The PLRA requires a prisoner to exhaust any available administrative remedies before he may bring an action pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). This exhaustion requirement applies to all claims relating to prison life that do not implicate the duration of the prisoner's sentence. Porter v. Nussle, 534 U.S. 516, 532 (2002). The statute also requires “proper exhaustion,” meaning that a prisoner's completion of the administrative review process must also satisfy the applicable procedural rules of the prison's grievance system. Fennell v. Cambria Cnty. Prison, 607 F. App'x. 145, 149 (3d Cir. 2015). A procedurally defective administrative grievance, even if pursued to final review, precludes action in federal court. Id. Failure to exhaust administrative remedies under the PLRA is an affirmative defense that a defendant must plead and prove. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
As relevant here, however, the PLRA requires only “proper exhaustion,” meaning exhaustion of those administrative remedies that are “available.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). When prison officials frustrate a prisoner's access to administrative remedies, those remedies will be considered “unavailable” and “deemed exhausted,” and the prisoner will be free to file suit in federal court. Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016).
In Ross v. Blake, the United States Supreme Court identified “three kinds of circumstances in which an administrative remedy, although officially on the books,” is not “available” because it is “not capable of use to obtain relief”: (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when it is “so opaque that it becomes, practically speaking, incapable of use,” such as when no ordinary prisoner can discern or navigate it; or (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” 578 U.S. 632, 643-44 (2016). In Robinson, the Third Circuit held that the prison “rendered its administrative remedies unavailable to [the plaintiff] when it failed to timely (by its own procedural rules) respond to his grievance and then repeatedly ignored his follow-up requests for a decision on his claim.” 831 F.3d at 154. Thus, “filing suit [was the plaintiff's] only method to advance his claim.” Id.
Plaintiff's allegations regarding the DOC Defendants' failure to acknowledge or respond to grievances raise a plausible factual dispute that makes resolution of the issue of exhaustion at this stage inappropriate. Accordingly, the Motion to Dismiss on the basis of exhaustion is properly denied.
B. Failure to State a Claim
Scotti contends that even if Plaintiff had exhausted his administrative remedies, dismissal would be appropriate because Plaintiff fails to allege any facts plausibly stating that Scotti had any personal involvement in violating his constitutional rights of or otherwise causing him harm. ECF No. 41 at 8. Upon review, the Court agrees.
Plaintiff's sole allegation about Scotti identifies him as a defendant. ECF No. 9 ¶ 10 (“J. Scotti, Licensed Psychology Manager (LPM), 169 Progress Drive, Waynesburg, PA 15370, was at all times relevant to this action acting under the color of state law and is hereby sued in his Official and Individual Capacity.”). As previously addressed in this Report regarding a number of the named DOC Defendants, Section 1983 requires much more. See infra at 6, 9. Because Plaintiff fails to connect Scotti to any underlying constitutional harm, dismissal is appropriate for failure to state a claim.
In light of the Court's recommendation based on the requirements of Section 1983, the Court need not resolve Scotti's alternative arguments based on the absence of allegations stating an Eighth Amendment claim or claims for negligence, negligent infliction of emotional distress, or intentional infliction of emotional distress. That said, the Court's resolution of these claims related to the DOC Defendants applies equally to Plaintiff's state law claims against Scotti.
3. Leave to Amend
When dismissing a civil rights case for failure to state a claim, a court must give a plaintiff a chance to amend a defective complaint, irrespective if it is requested, unless doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). “An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.” Alvin v. Suzuki, 227 F.2d 107, 121 (3d Cir. 2000). Under the circumstances presented here, Plaintiff may be in the possession of other facts to support his claims. Therefore, it is recommended that the Plaintiff be afforded an opportunity to file an Amended Complaint to correct the deficiencies identified in this Report. His claim against the DOC, Buzas, Switzer, Spiker, and Rudzienski, however, should be dismissed with prejudice and without an opportunity to amend.
The Court should further instruct Plaintiff that any Amended Complaint must fully allege every claim he wishes to pursue and be a pleading that stands by itself without reference to the original Complaint. See Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992).
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the Motion to Dismiss filed on behalf of the Pennsylvania Department of Corrections and identified administrators and employees, ECF No. 36, and the Motion to Dismiss filed on behalf of J. Scotti, ECF No. 40.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections the parties are permitted to file written objections within fourteen days, or seventeen days unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
The Honorable W. Scott Hardy United States District Judge