Summary
In Newman, the prisoner-plaintiff brought suit against numerous defendants concerning alleged violations of his civil rights while he was incarcerated as a pretrial detainee at the Mercer County Jail.
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2:22-CV-00556
05-03-2023
KHALIL NEWMAN, Plaintiff, v. OLIVER JACOB BURROWS, ERNA CRAIG, OFFICER STONER, NURSE JANE DOE, DEPUTY WARDEN REICHARD, MERCER COUNTY PRISON BOARD MEMBERS, PRIME CARE INC., Defendants.
Marilyn J. Horan Judge
REPORT AND RECOMMENDATION ECF NO. 41
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by the Mercer County Defendants (ECF No. 41) be granted as follows. It is recommended that the motion to dismiss all claims against the Mercer County Prison Board Members both in their individual and official capacities be granted and those claims dismissed with prejudice. It is further recommended that the motion to dismiss the failure to protect, conspiracy and right to a grievance procedure claims against Defendants Craig, Reichard, and Stoner be granted and those claims be dismissed with prejudice. It is further recommended that the motion to dismiss the conditions of confinement claim against Defendants Craig, Reichard, and Stoner be granted and that claim be dismissed without prejudice.
II. REPORT
A. Factual Background and Procedural History
Plaintiff Khalil Newman is an inmate currently housed at the Erie County Jail. At the time of the alleged incidents upon which this civil rights lawsuit is predicated, Mr. Newman was a pretrial detainee incarcerated at the Mercer County Jail. Am. Compl. ¶ I, ECF No. 12 at 1.
On March 27, 2022, Plaintiff was housed on H-Block in the RHU. ECF No. 12 at 2. Inmate Oliver Jacob Burrows was out of his cell for recreation. Id. Plaintiff was lying on the floor of his cell when Burrows came into his cell, exposed his penis and began to urinate on Plaintiff. Id. Plaintiff immediately notified Defendant Stoner of the incident and requested to file a PREA because Burrows had been making sexual advances. Id.; see also Ex. to Am. Compl., ECF No. 15 at 1. Defendant Stoner allegedly responded by merely laughing. Id. Plaintiff hit the intercom button again and asked to see Medical and to file a PREA and got the same response. ECF No. 15 at 1. Plaintiff claims that he was upset, felt violated and humiliated and his mood was negatively affected. Id.
Plaintiff waited for the next shift of officers told Officer Quimbly about the incident, Officer Stoner's response, and the negative discouraging feelings he had of himself. Id. Officer Quimbly referred his complaint to Lt. Phillips who assisted Plaintiff with filing the PREA. Id. at 2; ECF No. 12 at 4. Plaintiff further alleges that he wrote to see mental health about the issue because it mentally scarred him. ECF No. 15 at 2. He claims that he also submitted grievances about Officer Stoner laughing at him and not helping him to file a PREA. Id.
On March 28, 2022, Plaintiff was moved to a different housing unit to be separated from Burrows. ECF No. 12 at 4; ECF No. 15 at 2. After a month, Plaintiff was placed back on the same unit as Burrows, and after he alerted Officer Cooper about the pending PREA, he was eventually moved back to the H-unit away from Burrows. Id.
Because no action was taken or there was an inordinate delay with regard to the PREA investigation, Plaintiff filed a grievance which was forwarded to Deputy Warden Reichard. ECF No. 12 at 4. Plaintiff alleges that despite receiving the grievance, Deputy Warden Reichard did not take any appropriate action. Id. On June 19, 2022, Plaintiff wrote to the Mercer County Jail Administration, requesting information from the jail's administration regarding the procedures he needed to follow to contact the Mercer County Prison Board. Id.
In Count I, Plaintiff asserts a failure to protect/intervene claim and although he does not identify specifically which Defendants against whom he is pursuing this claim, he appears to be bringing that claim against Defendants Warden Erna Craig, Deputy Warden Reichard, Officer Stoner, as well as the members of the Mercer County Prison Board (collectively the “Mercer County Defendants”). In support of his failure to protect/intervene claim, Plaintiff alleges Burrows has a well-known history-known by inmates and staff-of throwing urine and covering himself and his cell window with fecal matter. Id. at 4. Plaintiff further alleges that because the Defendants knew of Burrows' history and pattern of behaviors, the general danger of being assaulted by Burrows was obvious, and Burrows assaulted him in violation of 18 Pa. Cons. Stat. §2703.1-aggravated harassment by a prisoner and terroristic threats-for throwing urine on him. Id.; see also Supp. to Am. Compl., ECF No. 21 at 1. As such, Plaintiff maintains that Defendants could have reasonably intervened to protect him. By not doing so, Defendants are showing an intentional and reckless indifference to his safety and are displaying callous disregard for his overall health and well-being. ECF No. 12 at 4; ECF No. 21 at 1. Plaintiff claims that Defendants either coerced Burrows or provided substantial encouragement for his actions and this participation between them amounts to a conspiracy. ECF No. 12 at 4.
In Count 2, Newman asserts a claim for denial of medical treatment which appears to be based on medical treatment Plaintiff sought from “nurse Jane Doe of Prime Care” for a hand injury sustained in May of 2022. Id. at 5. Newman alleges that while housed on B-unit, he injured his hand during a physical altercation with another inmate P. Austin. Id. Newman alleges that he notified nurse Jane Doe of Prime Care of constant ache, pain, and swelling, but no action was taken. Id. Afterwards Newman claims that he filed a grievance on this issue but no action was taken. Id. As of June 19, 2022, Mr. Newman alleges that his hand is severely injured, possibly broken, and he still experiences pain, but he is not receiving any medical treatment. Id.at 5-6; ECF No. 15 at 2. Plaintiff appears to be asserting this claim against all Defendants as he alleges that the “state and county defendants named herein have an obligation to provide medical care for me which they are not doing.” ECF No. 12 at 5. In his Supplement to Amended Complaint (“Supplement”), Plaintiff also alleges that it just occurred to him that he could have caught a disease from the urine being thrown on him and the nurse did not follow protocol or proper procedures claiming wrongful malpractice. ECF No. 21 at 1.
In Count 3, Plaintiff asserts a claim for unconstitutional conditions of confinement. ECF No. 12 at 5. However, he does not identify the Defendants against whom he is pursuing this claim. He alleges that while housed on H-unit (RHU) between the months of March and May (presumably 2022), he was denied a mattress and given nothing more than a “green Sheet” to sleep on. Id. He further alleges that it has been the policy of Mercer County Jail to deprive inmates on H-unit of a mattress. Id. In addition, Plaintiff alleges that for the entire duration of his detention in each cell in which he was housed, he was exposed to constant illumination (artificial light)-“flood lights” that remain on 24/7 inside of the cell-which brought about headaches and difficulty sleeping and resulted in psychological and physical injuries. Id. In addition to the relief requested on page 2 of his Amended Complaint, with regard to Count 3 Plaintiff seeks an injunction to order the Mercer County Jail to modify their policies or procedures regarding non-stop light in the cells and to provide mattresses for H-unit (RHU) inmates. Id.
Newman commenced this civil rights action on April 14, 2022 and subsequently filed an Amended Complaint (ECF No. 12) on June 28, 2022 asserting a Section 1983 claim against Mercer County Defendants, Oliver Jacob Burrows, a fellow inmate, Prime Care, Inc., a private company that provides health services to Mercer County Jail inmates, and nurse Jane Doe.Plaintiff has sued the Defendants in their individual and official capacities. Plaintiff alleges that as a result of Defendants' actions or inactions, he sustained the following injuries: “mentally scarred” and “psychologically messed up” from the urine; back problems and leg pain from being denied a mattress; severe headaches from exposure to non-stop artificial light; severely injured, possibly broken, left hand. ECF No. 15 at 2.
It is unclear from the Amended Complaint whether nurse Jane Doe is employed by the prison or Prime Care. The identity of nurse Jane Doe has not yet been determined.
In addition to the requested injunctive relief noted above with regard to Count 3, Newman also requests a declaratory judgment that the actions and inactions of Defendants violated his rights, injunctive relief in the form of a medical exam by an outside hospital not affiliated with the jail, and extensive money damages, nominal damages of $5,000, punitive damages, as well as attorneys' fees and payment of all future medical bills for outside testing to make sure he is not infected with a disease. See ECF No. 12 at 3, ¶ IV; ECF No. 21 at 1-2.
The newly requested money damages of $1,500,000 appear to be for compensation to Plaintiff because he “could have caught a disease from the urine being thrown on him” and for pain and suffering. See ECF No. 21 at 1-2.
In response, the Mercer County Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 41) and brief in support (ECF No. 42). Plaintiff's response in opposition was due on January 3, 2023 but he requested an extension of time to file a response which was granted until February 3, 2023. ECF Nos. 45, 46 & 47. When Plaintiff failed to file his response in opposition by the new deadline, the Court entered an Order to Show Cause why this case should not be dismissed for failure to prosecute. ECF No. 48. In response, Plaintiff filed a Statement of Claim on March 7, 2023. ECF No. 49. The Court considers the motion to be fully briefed and responded to and thus ripe for disposition.
Defendant PrimeCare Medical, Inc. filed a separate Motion to Dismiss Amended Complaint (ECF No. 28), on which the Court issued a Report and Recommendation on April 11, 2023. ECF No. 50.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
Also, when considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must liberally construe the pro se litigant's pleadings and “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). Notwithstanding this liberality, 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).
C. Discussion
1. Mercer County Prison Board Members Are Not Proper Parties
The Mercer County Defendants argue that the individual members of the Prison Board are not proper defendants in this case. Notwithstanding that the Amended Complaint fails to plead any factual allegations to suggest that the Prison Board did anything to violate Plaintiff's civil rights, the Mercer County Defendants submit that Pennsylvania law expressly vests control and supervision over a county jail (for fifth class counties like Mercer County) in a prison board of inspectors pursuant to 61 Pa. Cons. Stat. Ann. § 1731(a). Defs.' Br. in Supp. of Mot. to Dismiss, ECF No. 42 at 5. As such, the Mercer County Defendants maintain that no one individual member has final policymaking authority and is subject to the will of the other members, citing for support Doe 1 v. County of Fayette, No. 2:14-cv-00196, 2014 WL 5493814, *9 (W.D.Pa. Oct. 30, 2014)(an individual county commissioner who lacks individual decisionmaking authority is subject to the will of a majority of the commissioners and is not empowered to act alone on any matter under Pennsylvania law). In his response entitled Statement of Claim (ECF No. 49), Plaintiff has not addressed this argument.
The Court agrees with the Mercer County Defendants that, because the individual members of the Prison Board lack final policymaking or supervisory authority to act alone, they cannot be held individually liable and any claims brought against them individually should be dismissed with prejudice.
2. Defendants Craig and Reichard-Supervisory Liability
Next the Mercer County Defendants argue that Warden Craig and Deputy Warden Reichard cannot be held vicariously liable for the alleged constitutional violations committed by their subordinates based merely upon their supervisory roles at the Mercer County Jail. Rather, the Defendants contend that to state a Section 1983 claim, Newman must show that Warden Craig and Deputy Warden Reichard had personal involvement in the alleged wrongdoings which can be demonstrated either through allegations of personal direction or of actual knowledge and acquiescence. ECF No. 42 at 5-6. They cite in support Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997) and Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)(citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Because the Amended Complaint fails to plead any facts showing any personal involvement by Warden Craig and Deputy Warden Reichard in the alleged constitutional violations, the Mercer County Defendants submit that Defendants Craig and Reichard should be dismissed from this lawsuit. In his Statement of Claim, Plaintiff does not address this argument.
The Court agrees with the Defendants. It is well established that 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, 845 F.2d at 1207 (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)). A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence and the allegations “must be made with appropriate particularity.”. Rode, 845 F.2d at 1207. See also Iqbal, 556 U.S. at 676 (“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.”).
Here the Court finds that the Amended Complaint, Exhibit A, and the Supplement (together “Plaintiff's Pleadings”) do not contain any allegations from which it can be reasonably inferred that Warden Craig and Deputy Warden Reichard personally participated in or directed subordinates to violate Plaintiff's constitutional rights, or had knowledge of a violation of his constitutional rights and acquiesced to such conduct. Other than naming her as a Defendant in the caption, Plaintiff's Pleadings do not mention Warden Craig. As to Deputy Warden Reichard, he is only mentioned once in the Amended Complaint when Plaintiff alleges that a grievance he filed regarding the PREA was forwarded to Deputy Warden Reichard which Reichard allegedly received but no appropriate action was taken. ECF No. 12 at 4. However, merely alleging participation in the grievance process is not sufficient to confer knowledge of and acquiescence to a constitutional violation. Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D.Pa. 2013); see also Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept. 12, 2017)(“the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitution deprivation.”).
Accordingly, as Plaintiff has failed to plead any facts to show any personal involvement by Warden Craig and Deputy Warden Reichard in the alleged constitutional violations, the Court finds that Plaintiff has failed to state a plausible Section 1983 claim against them. However, because it is unclear at this juncture whether Plaintiff can allege sufficient facts to show personal participation in the alleged constitutional violations by Defendants Craig and Reichard, the Court recommends allowing Plaintiff leave to file a second amended complaint to set forth factual allegations to make such a showing. Therefore, the Court recommends that the Section 1983 claims remaining against them (as noted below) be dismissed without prejudice.
See Section E. regarding leave to amend, citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
3. Plaintiff's Pleadings Fail to State A Claim Upon Which Relief Can Be Granted
The Mercer County Defendants also move to dismiss the Amended Complaint on the basis that it fails to state a claim upon which relief can be granted as to Plaintiff's claims for failure to protect, conspiracy, and unconstitutional conditions of confinement.
a. Failure to Protect Claim
The essence of Plaintiff's failure to protect claim is that the Mercer County Defendants failed to intervene and prevent Burrows from urinating on him.
Newman was a pretrial detainee at the time of his incarceration and, as such, he must look to the Fourteenth Amendment's Due Process Claus for protection. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311, 319 n. 7 (3d Cir. 2020) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)). “[I]t is well established that, under the Constitution's guarantees of due process, an unsentenced inmate ‘is entitled[,] at a minimum, to no less protection than a sentenced inmate is entitled to under the Eighth Amendment.'” Id. (quoting Fuentes v. Wagner, 206 f.3d 335, 344 (3d Cir. 2000)). Thus, Newman who at all relevant times was not yet convicted “had a clearly established constitutional right to have prison officials protect him from inmate violence.” Id. (footnote omitted). See also Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners.”). However, not “every injury suffered by one prisoner at the hands of another ... translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834.
The Court of Appeals has applied the standard for Eighth Amendment failure to protect claims to similar claims brought under the Fourteenth Amendment. Thomas v. Cumberland Cnty., 749 F.3d 217, 223 n. 4 (3d Cir. 2014)(citing A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 579 (3d Cir. 2004)). In Porter v. Pennsylvania Department of Corrections, the Court of Appeals summarized the requirements for stating a failure to protect claim:
To determine whether prison officials have violated the Eighth Amendment, we apply a two-prong test: (1) the deprivation must be “objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities”; and (2) the prison official must have been “deliberate[ly] indifferen[t] to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal citations and quotation marks omitted). An official is deliberately indifferent if he “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837, 114 S.Ct. 1970. ...
To satisfy the [first] objective prong of this test “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). ...
To satisfy the [second] subjective prong . . . an inmate must show that the prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Chavarriaga [v. New Jersey Dep't of Corr.], 806 F.3d [210,] 229 [(3d Cir. 2015)] (quoting Farmer, 511 U.S. at 847, 114 S.Ct. 1970) (quotation marks omitted). The inmate “may demonstrate deliberate indifference by showing that the risk of harm was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past such that defendants must have known about the risk.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 259 (3d Cir. 2010) (quoting Farmer, 511 U.S. at 842-43, 114 S.Ct. 1970) (internal quotation marks omitted).974 F.3d 431, 441, 444-45 (3d Cir. 2020) (first and second alterations in original). Thus, it is not sufficient under the deliberate indifference standard to show that the official should have known of the risk. Beers-Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001) (citing Farmer) (noting “Farmer rejected objective test for deliberate indifference; instead it looked to what the prison official actually knew rather than what a reasonable official in his position should have known.”). However, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842 (citation omitted).
Here the Mercer County Defendants argue that the Amended Complaint does not allege that Burrows had urinated on Plaintiff or anyone else before the alleged incident nor does it indicate that the jail staff had any warning that Burrows was planning to urinate on Plaintiff, if there even was such a plan. They further argue that permitting Burrows to be outside his cell does not demonstrate deliberate indifference as inmates in the RHU have a right to one hour of out-of-cell exercise five days a week pursuant to 37 Pa. Cons. Stat. § 95.238. Moreover, the Mercer County Defendants submit that any allegation that Burrows was not stopped in time does not demonstrate deliberate indifference, as Plaintiff does not allege that any of them were present or aware that it happened. Rather, they contend that Plaintiff informed Officer Stoner after the fact. ECF No. 42 at 8.
In response, Plaintiff states that staff just stood by and watched while urine was being thrown on him and did not follow prison procedure or protocol to try and protect him, knowing of Burrows' history of throwing urine on people. ECF No. 49 at 1. Plaintiff's argument is not fully supported by the factual allegations in his Pleadings.
First, nowhere in Plaintiff's Pleadings does he allege that staff stood by and watched as Burrows urinated on him. To the contrary, Plaintiff merely alleges that after the urination incident he immediately pressed the intercom to notify Officer Stoner. ECF No. 12 at 2; ECF No. 15 at 1. Additionally, although Plaintiff alleges that Burrows has a well-known history of throwing urine and covering himself and his cell window with fecal matter, which was allegedly known by inmates and “staff” (ECF No. 12 at 4), Plaintiff's Pleadings do not indicate what “staff” was allegedly aware of Burrows' history. Nor do Plaintiff's Pleadings indicate that the throwing of urine was done outside of his cell or that Burrows was known to make sexual advances on other inmates or urinate on them.
Although Plaintiff alleges that Burrows had a conscious objective to throw urine on himand defendants knew of Burrows' actions towards him and could have reasonably intervened to protect him (id.), these allegations are conclusory and therefore are not considered in determining whether Plaintiff has pled a plausible failure to protect claim. Moreover, Plaintiff does not allege that similar incidents occurred prior to the one on March 27, 2022 that would have made Defendants aware of Burrows' sexual advances towards Plaintiff or any other inmate and his intent to urinate on him. Rather, it appears that Plaintiff first notified jail officials of the alleged sexual harassment when he pushed the intercom button right after the urination incident and requested to file a PREA and did in fact file a PREA the next day with the help of Officer Quimbly and Lt. Phillips. Even if an officer had been on H-block and seen Burrows approach Plaintiff's cell door, it is unlikely the officer could have prevented Burrows from urinating on Plaintiff because according to Plaintiff, Burrows came to his cell door and started urinating on him before he was even able to get up off the floor. ECF No. 12 at 2.
Note that in Section IV of the Amended Complaint Plaintiff alleges that Burrows had his penis exposed and urinated on him. He later uses the terms “throw urine” both in the Amended Complaint and in ECF No. 49.
Second, Plaintiff fails to allege what Defendants Warden Craig, Deputy Warden Reichard, Officer Stone, and the Mercer County Prison Board each actually knew about Burrows propensities and behavioral issues and when they became aware of such issues. Plaintiff's Pleadings do not mention Warden Craig other than to list her as a Defendant. All that can be inferred from Plaintiff's Pleadings regarding Deputy Warden Reichard is that he received notice of the event after it occurred when he received the grievance, which hardly demonstrates an actual awareness of Burrows' propensities prior to the urination incident such that intervention would have been possible. Moreover, there is nothing in Plaintiff's Pleadings to suggest any knowledge or awareness of Burrows' propensities prior to the urination incident involving Plaintiff on March 27, 2022 by the Mercer County Prison Board. As to Officer Stoner, it appears he first was made aware of Burrows' conduct when Plaintiff pressed the intercom button after the urination incident.
Importantly, Plaintiff's Pleadings show that he was moved to a different cell block the day after the urination incident to isolate him from Burrows. Subsequently, when Plaintiff was later placed back in the RHU for disciplinary reasons on the same cell block as Burrows, jail officials moved Plaintiff to a different cell block shortly after he informed them of the pending PREA against Burrows. Thus, once notified of the risk of harm, defendants took reasonable measures to abate it. These facts demonstrate that the Mercer County Defendants were not deliberately indifferent towards Plaintiff's health and safety.
Thus, the Court finds that Plaintiff's Pleadings fail to allege any facts to plausibly show that any of the Mercer County Defendants were deliberately indifferent to Plaintiff's health or safety. Moreover, the Court cannot envision any set of facts that Plaintiff could plead to plausibly show deliberate indifference to his health or safety by the Mercer County Defendants. As such, the Court recommends that Plaintiff's failure to protect claim be dismissed with prejudice.
b. Conspiracy Claim
The Amended Complaint merely alleges that Defendants “either coerced Burrows or provided substantial encouragement for the actions he took” and that this participation between them amounts to a conspiracy. ECF No. 12 at 4. The Mercer County Defendants argue that if Plaintiff is attempting to assert a conspiracy claim with this allegation, it fails. Plaintiff does not address this argument in his Statement of Claim. The Court agrees with the Mercer County Defendants that Plaintiff has failed to state a plausible conspiracy claim under Rule 12(b)6).
In order to demonstrate a civil rights conspiracy, “a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right ‘under color of state law.'” Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir.1993) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)), abrogated on other grounds, United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir.2003). A plaintiff must allege conspiracy with particularity even though a heightened pleading standard generally does not apply to civil rights actions against individual defendants. Bieros v.Nicola, 860 F.Supp. 223, 225 (E.D.Pa.1994) (citing Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 1681993)). A complaint alleging a conspiracy must make “factual allegations of combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.” Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D.Pa.1997). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D.Pa.1994) (“While the pleading standard under [Federal Rule of Civil Procedure] 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements”).
Similarly, under Pennsylvania law, “[t]he essential elements of a claim for civil conspiracy are as follows: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in pursuance of the common purpose, and (3) actual legal damage.” Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008)(citing Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. Ct. 2004). Moreover, if a civil cause of action for a particular act does not exist, “there can be no cause of action for civil conspiracy to commit that act.” Id. (quoting McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. Ct. 2000)) (citing Pelagatti v. Cohen, 536 A.2d 1337, 1342 (1987))(internal quotation marks omitted).
Here Plaintiff's allegations fail to meet the pleading standard set forth in Twombly which requires that “[f]actual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. Thus, a claim will be dismissed under Rule 12(b)(6) if it does not allege “enough facts to state a claim for relief that is plausible on its face.” Id. Plaintiff's Pleadings do not contain any facts that are sufficient to state a conspiracy claim that is plausible on its face. As such, the Court recommends that the Mercer County Defendants motion to dismiss Plaintiff's conspiracy claim be granted and that claim dismissed with prejudice, as the Court cannot envision any set of facts that Plaintiff could plead to plausibly show a conspiracy claim.
c. No Constitutional Right to Have Grievance Answered
Next the Mercer County Defendants argue that to the extent the Amended Complaint attempts to advance a claim on the basis that the grievance forwarded to Deputy Warden Reichard was received but no appropriate action was taken, this does not constitute a civil rights violation. In support, the Mercer County Defendants point to the decision of Judge Eddy in which she dismissed an identical allegation concerning the Beaver County Jail's grievance system in Gross v. Schouppe, Civ.A.No.2:12-cv-00269, W.D.Pa. Jan. 30, 2013, ECF No. 66, in which she opined:
In Gross, Plaintiff alleged that he complained to various officials at the BCJ and wrote grievances but he claims that they were lost or rejected. Civ. A. No. 2:12-cv-00269, ECF No. 66 at 8. He also alleged that the grievance system was inadequate, and that the warden violated his rights by failing to adequately address his grievances. Id. at 10-11.
An inmate does not have a constitutionally protected right to a grievance procedure. Caldwell v. Beard, 324 Fed.Appx. 186, 189 (3d Cir. 2009) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)); Anderson v. Pennsylvania, 196 Fed.Appx. 115, 117 (3d Cir. 2006); Rhoades v. Adams, 194 Fed.Appx. 93, 95 (3d Cir. 2006) (“the inmate grievance procedures, in themselves, do not confer a liberty interest protected by the due process clause in the inmate grievance procedures.”); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Therefore, Plaintiff cannot maintain a constitutional claim based on his perception that his grievances were not properly processed, investigated, or that the grievance process is inadequate. See, e.g., Heleva v. Kramer, 214 Fed.Appx. 244, 247 (3d Cir. 2007) (“[D]efendants' alleged obstruction of prison grievance procedures does not give rise to an independent claim.”); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (citing cases from the Fourth, Eighth, Seventh, and Ninth Circuits); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (holding that “the Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by a state”).Id. at 27-28. Plaintiff does not respond to this argument in his Statement of Claim.
The Court agrees with the Mercer County Defendants. Plaintiff cannot state a claim as a matter of law against the Mercer County Defendants based on Deputy Warden Reichard's alleged failure to take any action in response to Plaintiff's grievance as he has no constitutional right to a grievance procedure. See Caldwell, 324 Fed.Appx. at 189 (prison official's denial of the inmate's grievance did not infringe upon his First Amendment rights); Heleva, 214 Fed.Appx. at 247. Because Plaintiff's claim fails as a matter of law, it would be futile to allow him to file a second amended complaint. Therefore, the Court recommends that Plaintiff claim of an alleged constitutional violation based on Deputy Warden Reichard's failure to take any action on his grievance be dismissed with prejudice.
d. Conditions of Confinement Claim
While Plaintiff was housed in the RHU at the Mercer County Jail, he alleges that flood lights remained on 24/7 inside his cell which caused headaches and difficulty sleeping and that he was denied a mattress for several months. No. 12 at 5. Plaintiff claims that he sustained psychological and physical injuries (back problems and leg pain) as a result. Id.; ECF No. 15 at 2. On his conditions of confinement claim, Plaintiff requests injunctive relief ordering the Mercer County Jail to modify their policies or procedures regarding non-stop light in the cells and to provide mattresses for the RHU inmates. Id.
The Mercer County Defendants move to dismiss this claim arguing that inmates do not have a constitutional right to darkness at night, citing in support Murray v.Keen, 763 Fed.Appx. 253, 255-56 (3d Cir. 2019) for the proposition that “continuous lighting is permissible and reasonable when used in support of legitimate penological justifications, like the need for security and the need to monitor prisoners.” However, the Court of Appeals also noted that “it is likely that constant illumination may, at least under certain or extreme circumstances, amount to a constitutional violation. Id. at 255 (citing Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir. 1996) (considering a claim from a prisoner who suffered “grave” sleeping and other health problems due to large fluorescent lights that constantly illuminated his cell)). The Court of Appeals in Murray concluded that summary judgment was appropriate as to the inmate's constant illumination claim because it was undisputed that the night light was a seven-watt light bulb and defendants presented evidence that it provided minimal illumination and was used at night for safety and security needs according to jail policy. Id. at 256.
At the motion to dismiss stage the Court does not have the benefit of a record to show the wattage of the illumination, the purpose of the jail's use of constant night-time illumination, or whether any extreme circumstances existed which would amount to a constitutional violation. Importantly, the Court of Appeals emphasized that the plaintiff in Murray was a pretrial detainee, like Newman here, and as such his conditions of confinement claim has to be analyzed under the Due Process Clause of the Fourteenth Amendment. Id. at 255 (citing Hubbard, 399 F.3d at 166 (citing Bell, 441 U.S. at 535-36)). The Murray court went on to explain:
Under the Due Process Clause, “the proper inquiry is whether [the challenged] conditions amount to punishment of the detainee.” Bell, 441 U.S. at 535. Thus, sentenced prisoners are protected from only punishment that is “cruel and unusual,” while pretrial detainees are protected from any punishment. See Hubbard, 399 F.3d at 166-67. In order to determine whether challenged conditions of pretrial confinement amount to punishment, “a court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate purpose. Absent a showing of an express intent to punish on the part of the detention facility officials, that determination generally will turn on whether it has an alternative purpose and whether it appears excessive in relation to that purpose.” Id. at 158 (citing Bell, 441 U.S. at 538-39).Id.
The Mercer County Defendants are asking the Court to dismiss the conditions of confinement claim on the basis that Plaintiff is seeking only injunctive relief and because he has been transferred from the Mercer County Jail, he lacks standing to pursue that claim. However, it appears that Plaintiff is seeking compensatory damages in addition to injunctive relief for this claim, given his assertion of psychological and physical injuries resulting from the alleged conditions. Therefore, the Court is precluded from granting the motion to dismiss Plaintiff's conditions of confinement claim based solely on the unavailability of injunctive relief here.
See discussion infra at part 4.a. as to Plaintiff's standing to pursue injunctive relief with regard to his conditions of confinement claim.
Thus, Plaintiff's conditions of confinement claim as to both the lighting and lack of mattress remains to the extent he seeks compensatory damages. However, Plaintiff has failed to plead sufficient facts to show personal involvement by either Warden Craig, Deputy Warden Reichard, or Officer Stoner in maintaining the conditions of confinement which he contends violated his constitutional rights. As such, the Court recommends that the motion to dismiss be granted but without prejudice so that Plaintiff may be given an opportunity to allege sufficient facts of personal involvement in a second amended complaint.
4. Requested Damages
In his Pleadings, Plaintiff requests compensatory, nominal and punitive damages as well as injunctive relief. The Mercer County Defendants submit that Plaintiff is not entitled to any of this relief in the manner requested in his Pleadings.
a. Injunctive Relief
With regard to the injunctive relief requested as to Plaintiff's conditions of confinement claim, the Mercer County Defendants submit that it is well settled that prisoners lack standing to seek injunctive relief if they are no longer subject to the alleged conditions that they seek to challenge, citing in support Los Angeles v. Lyons, 461 U.S. 95 (1983) and Weaver v. Wilcox, 650 F.2d 22, 27 n. 13 (3d Cir. 1981). As Plaintiff is no longer housed in the Mercer County Jail, the Mercer County Defendants maintain that Plaintiff lacks standing to pursue injunctive relief. Plaintiff does not respond to this argument. The Court agrees with the Mercer County Defendants and finds that since Plaintiff is no longer housed at the Mercer County Jail, his request for injunctive relief is moot. Weaver, 650 F.2d at 27 n. 13 (citing Holland v. Purdy, 457 F.2d 802, 803 (5th Cir. 1972) (per curiam) (plaintiff's case considered to be “moot” because he was no longer subject to the complained of condition at the time he instituted his litigation); Wilson v. Prasse, 325 F.Supp. 9, 12 (W.D.Pa.1971) (plaintiff's request for injunctive relief dismissed as moot because he had been transferred to another institution, case proceeded to trial on question of damages). See also Wilson v. Prasse, 404 F.2d 1380, 1382 n.3 (3d Cir. 1968)).
Although Plaintiff's transfer from the Mercer County Jail moots his claim for injunctive relief, it would not moot a claim for damages. Weaver, 650 F.2d at 27 n. 13 (citing cases).
b. Compensatory Damages
Next, the Mercer County Defendants argue that Plaintiff's claim for compensatory damages for mental or emotional harm arising from inmate Burrows' alleged actions or from the alleged conditions of confinement are not recoverable under Section 803(d)(e) of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), because Plaintiff has failed to allege that he suffered any physical injury. In response, Plaintiff states that he would like to amend his relief and money amount of $1,500.00 for possibly being exposed to disease from being urinated on. ECF No. 49 at 1. In his response, Plaintiff also requests $5,000.00 for mental and emotional damages and $5,000.00 for compensatory damages. Id. at 2. The Court of Appeals has held that under §1997e(e), “in order to bring a claim for mental or emotional injury suffered while in custody, a prisoner must allege physical injury[.]” Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000). As the Court reads Plaintiff's Pleadings, the only actual injury that could form the basis for the damages he seeks with regard to Count 1-failure to protect claim-would be mental or emotional injury. A constant theme throughout his Pleadings is his concern that he may have been exposed to a disease from the urination incident. Also, Plaintiff generally references P.T.S.D., also a mental or emotional injury, with no supporting allegations of any physical injury. ECF No. 21 at 1; ECF No. 49 at 1. Thus, to the extent Plaintiff is seeking compensatory damages for mental or emotional injury with regard to Count 1, that request is barred by § 1997e(e).
As to Count 3-conditions of confinement-Plaintiff alleges that the constant illumination caused “headaches and difficulty sleeping which did result in psychological and physical injuries.” ECF No. 12 at 5; ECF No. 15 at 2. He alleges that he has back problems and his leg hurts from being denied a mattress. ECF No. 15 at 2. Under § 1997e(e), a plaintiff must allege “less-than-significant-but-more-than-de minimis physical injury as a predicate to allegations of emotional injury.” Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003)(footnote omitted). The Court finds that Plaintiff appears to allege that he has only suffered de minimis physical injuries with regard to his conditions of confinement claim. He has not alleged that he sought any medical treatment for the alleged physical injury consisting mainly of pain. Courts have found that allegations of pain without medical treatment allege only a de minimis injury. See, e.g., Watson v. Wingard, Civ. A. No. 16-55, 2018 WL 2108316, at *4 (W.D. Pa. Jan. 31, 2018), report and recommendation adopted, 2018 WL 2107773 (W.D. Pa. May 7, 2018), aff'd, 782 Fed.Appx. 214 (3d Cir. 2019) (noting that courts have found to be only de minimis such injuries as a “‘sore, bruised ear lasting for three days,' Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997), ‘swelling, pain, and cramps,' Jarriett v. Wilson, 162 Fed.Appx. 394, 401 (6th Cir. 2005),” and holding that a punch to the groin during a search, that caused plaintiff “to bend over in pain” and required only bed rest for a few days for which plaintiff did not seek medical treatment, alleged only a de minimum injury); Dillard v. Talamantes, Civ. A. No. 15-974, 2016 WL 7474803, at *9 (M.D. Pa. Dec. 29, 2016) (holding that plaintiff's cryptical allegations of physical injury, while simultaneously conceding “he suffered [ ] no medical injuries as a result of alleged conduct within complaint” did not allege a more than de minimis injury). However, out of an abundance of caution, since the Court is recommending that Plaintiff be granted leave to file a second amended complaint, the Court will refrain from deciding whether Plaintiff's physical injuries are only de minimis until the record is more fully developed. Therefore, Plaintiff's request for compensatory damages based on mental or emotional injury allegedly resulting from conditions of confinement will be allowed at this time.
The Court notes that Plaintiff has alleged physical injuries with regard to his claim in Count II for denial of medical treatment but is not alleging any mental or emotional injury related to that claim. As such, his request for compensatory damages based upon the alleged physical injuries in Count 2 may be recoverable if Plaintiff is able to establish liability on the alleged constitutional violation in Count 2.
c. Nominal Damages
The Mercer County Defendants argue that Plaintiff's request for nominal damages in the amount of $5,000.00 is inappropriate and may only be obtained in the amount of $1.00, citing Third Circuit Model Jury Instruction 4.8.2. The Court agrees. Nominal damages may not exceed $1.00. U.S. ex rel. Tyrrell v. Speaker, 535 F.2d 823, 830 (3d Cir. 1076). Thus, if Plaintiff establishes liability for a civil rights violation, he would be entitled to nominal damages of $1.00. Uzeugbunam v. Preczewski, 141 S.Ct. 792, 800 (2021) (citation omitted) (nominal damages are the “damages awarded by default until the plaintiff establishes entitlement to some other form of damages, such as compensatory or statutory damages.”).
d. Punitive Damages
Finally, the Mercer County Defendants argue that to the extent Plaintiff is suing them in their official capacities, his claim is actually against the municipal government for which they are agents. See discussion in section D below. Because punitive damages are not available against municipal entities for alleged violations of constitutional rights, see City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), the Mercer County Defendants submit that punitive damages cannot be imposed on them in their official capacities for the alleged violations of Plaintiff constitutional rights. The Court agrees with Defendants. Municipalities are immune from punitive damages under Section 1983. Id. Thus, Plaintiff cannot seek punitive damages against Defendants Craig, Reichard and Stoner in their official capacities.
D. Claims Against Mercer County Defendants in Their Official Capacities
Plaintiff has sued the Mercer County Defendants in both their individual and official capacities. However, the Court notes that the Mercer County Defendants have not moved to dismiss the claims against them in their official capacities. In order to clarify which claims survive the motion to dismiss going forward, the Court feels it is necessary to address the official capacity claims.
As a pretrial detainee, Plaintiff is subject to the screening requirements promulgated in the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996). Because Plaintiff is seeking redress from a governmental entity or officer of employee of a governmental entity, his Amended Complaint is subject to the screening requirements set forth in 28 U.S.C. §1915A(a). As such, the court is required to “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted[.]” 28 U.S.C. § 1915A(b)(1). For the reason set forth below, the Court finds that Plaintiff's official capacity claims against the Mercer County Defendants fail to state a claim upon which relief may be granted under Rule 12(b)(6).
“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1985); see also Kwok Sze v. Pui-Ling Pang, No. 1:12-cv-00619, 2014 WL 1513986, at *2 (M.D.Pa. Apr. 16, 2014) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985))(a suit against a municipal employee in his/her official capacity for money damages under § 1983 is in essence a claim against the municipality). Thus, the claims against Defendants Craig, Reichard, and Stoner in their official capacities are, in essence, against the governing entity for the Mercer County Jail. Likewise, the claims against Defendants MCPB members in their official capacities are, in essence, claims against the MCPB or its governing entity.
As a matter of law, where there is no independent constitutional claim against the municipality, a Monell claim against a municipality will not lie where the plaintiff has failed to show that he has suffered a constitutional violation at the hands of any individual employee. Williams v. Borough of West Chester, 891 F.2d 458, 467 (3d Ci r. 1989) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)); see also Fagan v. City of Vineland, 22 F.3d 1283, 1293 n. 4 (3d Cir. 1994) (noting that Williams was “a case where municipal liability was contingent upon an individual officer's liability because there was no independent constitutional claim against the municipality.”). Here Plaintiff has not alleged an independent constitutional claim against the Mercer County Jail or MCPB, and the Court has determined that Plaintiff has failed to plead a plausible constitutional violation with regard to his claims for failure to protect, § 1983 conspiracy, and right to a grievance procedure. As such, those claims against Defendants Craig, Reichard, and Stoner in their official capacities must also fail. Accordingly, the Court recommends that Plaintiff's claims for failure to protect, §1983 conspiracy, and the right to a grievance procedure against Defendants Craig, Reichard, and Stone in their official capacities also be dismissed with prejudice pursuant to Section 1915A(b)(1).
“Plaintiffs who seek to impose liability on local governments under § 1983 must prove that ‘action pursuant to official municipal policy' caused their injury.” Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (citing Monell, 436 U.S. at 691, 694). “Official municipal policy includes the decisions of a government's lawmakers, acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Id. (citations omitted).
E. Leave to File a Second Amended Complaint/Surviving Claims
In civil rights cases under § 1983, if the district court is dismissing a claim pursuant to Rule 12(b)(6), it must sua sponte “permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Here, the Court is recommending that Plaintiff's claims for failure to protect and conspiracy be dismissed with prejudice because the Court cannot envision any facts which could be pled to plausibly show entitlement to relief. The Court is also recommending that Plaintiff's claim for a right to a grievance procedure be dismissed with prejudice as it fails as a matter of law.
Remaining in this lawsuit is Plaintiff's claim for denial of medical treatment (Count 2) against the named “state and county defendants,” which the Court interprets to mean the Defendants Craig, Reichard, and Stoner as well as nurse Jane Doe and PrimeCare, in both their individual and official capacities. The Mercer County Defendants do not address the denial of medical treatment claim in their motion to dismiss, nor do they address Plaintiff's request in his Supplement to Amended Complaint to have all of his future medical bills for outside testing paid for in order “to make sure he is never infected with a disease.” ECF No. 21 at 1. This claim and the request for payment survive the Mercer County Defendants' motion to dismiss as to Defendants Craig, Reichard and Stoner.
The Court has recommended that the individual capacity claims against the members of the MCPB be dismissed with prejudice. See supra at 7-8. As such, and because the Amended Complaint does not state an independent municipal liability claim against the MCPB, any official capacity claims against the members of the MCPB fail as a matter of law. Williams, 891 F.2d at 467. Therefore, Plaintiff cannot proceed against the MCPB members on his claim for denial of medical treatment.
However, as noted above, Plaintiff has failed to allege sufficient facts to show personal involvement by Defendants Craig and Reichard in the alleged constitutional violations and the Court has recommended dismissal of any remaining constitutional claims without prejudice. As the remaining constitutional claim against Defendants Craig, Reichard, and Stoner is the denial of medical treatment, and the Court is recommending that the conditions of confinement claim be granted without prejudice, the Court recommends that Plaintiff be granted leave to file a second amended complaint to allege sufficient facts to show the personal involvement of Defendants Craig and Reichard in the alleged denial of medical treatment and alleged unconstitutional conditions of confinement. Moreover, if Plaintiff is asserting the denial of medical treatment and unconstitutional conditions of confinement against Defendant Stoner, he must also allege facts to show his personal involvement in the alleged constitutional violations.
Accordingly, the Court recommends that Plaintiff be granted leave to file a second amended complaint which sets forth (1) all factual allegations in support of his denial of medical treatment claim against Defendants Craig, Reichard, Stoner, nurse Jane Doe, and PrimeCare and conditions of confinement claim against Defendants Craig, Reichard, and Stoner, including each Defendant's alleged personal involvement in the alleged constitutional violations, and (2) requested relief that comports with the legal authority cited above. In addition, to the extent Plaintiff's denial of medical treatment claim includes a failure to follow protocol/procedures, Plaintiff must identify the specific protocol or procedures that he alleges were not followed and how the alleged failure to follow them caused the alleged denial of medical treatment. To the extent Plaintiff wishes to pursue in the second amended complaint either a denial of treatment or conditions of confinement claim against Defendants Craig, Reichard and Stoner in their official capacities, or an independent municipal liability claim against the appropriate municipal entity, he must set forth sufficient facts to show a plausible municipal liability claim under Monell.
Finally, if Plaintiff wishes to pursue any claims against Defendant Burrows in the second amended complaint, he should state them in a separate count including all factual allegations in support of such claims and the relief requested against Burrows.
The Court notes that according to the docket, Burrows was served with a notice of waiver of service form on September 6, 2022. See ECF No. 37. To date, he has not returned an executed waiver of service. Therefore, the deputy clerk will effectuate service a second time via Summons.
F. Conclusion
For the reasons set forth above, it is respectfully recommended that the Motion to Dismiss filed by the Mercer County Defendants (ECF No. 41) be granted as follows:
It is recommended that the motion to dismiss be granted as to:
(1) all claims against the Mercer County Prison Board Members both in their individual and official capacities and those claims be dismissed with prejudice.
(2) the failure to protect, conspiracy, and right to grievance procedure claims asserted against Defendants Craig, Reichard, and Stoner and those claims be dismissed with prejudice.
(3) the conditions of confinement claim asserted against Defendants Craig, Reichard, and Stoner and that claim be dismissed without prejudice.
It is further recommended that Plaintiff's request for injunctive relief in Count 3 be dismissed as moot.
It is further recommended that Plaintiff be barred from requesting compensatory damages for mental or emotional injury with regard to Count 1.
It is further recommended that Plaintiff's request for nominal damages be limited to $1.00.
It is further recommended that Plaintiff be barred from seeking punitive damages against the Defendants Craig, Reichard and Stoner in their official capacities.
It is further recommended that Plaintiff be granted leave to file a second amended complaint setting forth: (1) a plausible constitutional claim for denial of medical benefits, including allegations sufficient to show personal involvement by Defendants Craig, Reichard, Stoner, nurse Jane Doe and PrimeCare, (2) a plausible constitutional claim for conditions of confinement claim against Defendants Craig, Reichard, and Stoner, including each Defendant's alleged personal involvement in the alleged constitutional violation, (3) requested relief that comports with the legal authority cited above, (4) if alleging a failure to follow protocol/procedures, the specific protocol or procedures that were not followed, the specific individuals who were involved, and how that failure caused the alleged denial of medical treatment, (5) sufficient facts to show a plausible municipal liability claim under Monell if he wishes to pursue either a denial of treatment claim against Defendants Craig, Reichard and Stoner in their official capacities, or an independent municipal liability claim against the municipal entity, and (6) all factual allegations in support of any claims against Defendant Burrows and the relief requested if he wishes to maintain this lawsuit against Burrows.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.