Opinion
Civil Action 21-cv-29J
02-28-2022
JOSHUA ROBERTS Plaintiff, v. SHAWN ALLWEIN, CO1 GAYDOS, CO1 PHILLIPI, CO 2 SGT. RINGLING, and DEPARTMENT OF CORRECTIONS SCI SOMERSET, Defendants.
District Judge Stephanie L. Haines
REPORT AND RECOMMENDATION
Re: ECF No. 29
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Court grant the pending Motion to Dismiss filed on behalf of the Defendants CO1 Gaydos, CO1 Phillipi, CO 2 Sgt. Ringling (the “Defendant Corrections Officers”), and the Department of Corrections (“SCI-Somerset”) (collectively, “DOC Defendants”).
II. REPORT
A. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Joshua Roberts (“Plaintiff”), an inmate currently housed at the State Correctional Institution at Rockview (“SCI - Rockview”), has presented a civil rights complaint which he has been granted leave to prosecute without prepayment of costs. ECF No. 10. Plaintiff alleges that on May 3, 2019, while incarcerated at SCI - Somerset, the Defendant Corrections Officers violated his Eighth and Ninth Amendments constitutional rights by failing to protect him from an assault by fellow inmate Defendant Shawn Allwein (“Allwein”) and by failing to provide necessary medical treatment. ECF No. 10.
The DOC Defendants' Motion to Dismiss does not address Plaintiff's apparent Eighth Amendment claim for the alleged failure to provide necessary medical treatment to treat his injuries. ECF No. 10 at 5.
Plaintiff alleges he was assaulted when Allwein entered Plaintiff's cell block carrying a sock filled with bars of soap, and struck Plaintiff in the head, causing injuries (“splitting open my head”). ECF No. 10 at 4. According to Plaintiff, the assault occurred because Defendants Gaydos, Phillip and Ringling were “neglecting their duty as officers” by “play[ing] around on the computer or not watching what was happening.” Id. at 4-5. Plaintiff alleges that he was taken to the medical department and his wound was photographed and cleaned. Plaintiff complains that he was refused further treatment, including an eye test, concussion tests, an MRI, and an ice bag. Id. at 5.
On September 13, 2021, the DOC Defendants filed a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), contending that Plaintiff fails to state a claim for which relief may be granted. ECF No. 30. The Court ordered Plaintiff to file his response to the Motion to Dismiss by October 14, 2021. ECF No. 31. On September 30, 2021, Plaintiff submitted correspondence to the Court complaining that he had not received a copy of the Motion to Dismiss or the Brief in Support. On October 1, 2021, counsel for the DOC Defendants filed a Notice signed by Plaintiff that reflected he was provided copies of both documents that day. ECF No. 34.
Three days later, on October 4, 2021, the Court received a second letter from Plaintiff acknowledging that he had, in fact, received a copy of the Motion to Dismiss on September 24, 2021, but expressing dissatisfaction with the lack of confidentially in the mailing process. ECF No. 35. Plaintiff also objected to the legal basis for the motion and asserted that Defendant Corrections Officers were “negligent” because they were “busy playing and keeping their attention on the Blocks['] computer not policing the Block.” Id. at 1-2. Plaintiff requested the appointment of counsel to help procure video evidence and records from the Pennsylvania State Police. Id.
On December 6, 2021, the Court entered a Memorandum Order denying Plaintiff's request for appointment of counsel because the grounds asserted did not warrant the relief requested. ECF No. 38. That same day, the Court entered an Order directing Plaintiff to file a response to the arguments presented in the DOC Defendants' Motion to Dismiss by January 6, 2021, and informed him that no further extensions of time would be granted. ECF No. 39. On December 28, 2021, Plaintiff filed correspondence construed as his objections to the Order denying his Motion for Appointment of Counsel. ECF No. 42. Plaintiff states that his requests to DOC officials for copies of video have been denied, and he has no means to watch a DVD of video footage while incarcerated. In addition, Plaintiff complains that he has been unable to procure relevant police records or records of complaints lodged against the Defendant Corrections Officers, and that restrictions related to the COVID-19 pandemic have hindered his ability to conduct legal research. ECF No. 42. The Court notes that given the pleading stage of this litigation, a Case Management Order providing for discovery has not yet been entered.
To date, nearly two months since his last correspondence, Plaintiff has not filed a separate response to the pending Motion to Dismiss. That said, Plaintiff's various letters to the Court contain argument in opposition to the Motion to Dismiss and given Plaintiff's failure to comply with the Orders of this Court, will be considered as his response.
B. STANDARD OF REVIEW
1. Motion to Dismiss
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” “[D]etailed pleading is not generally required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). Rather, the rules require “‘only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted). Thus, to survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, 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 California Pub. Employees' Ret. Sys. v. 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. Twombly, 550 U.S. at 555. Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Phillips v. Cty 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. The complaint therefore “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.”). Id. at 233, 234.
2. Pro Se Pleadings and Filings
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); United States 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 Corrections, 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).
Still, 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). Thus, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Eighth Amendment - Failure to Protect Claim
The DOC Defendants move to dismiss Plaintiff's Eighth Amendment failure to protect claim as inadequately stated because Plaintiff does not plead facts from which it may reasonably be inferred that any DOC Defendant knew Allwein presented a substantial risk of harm to Plaintiff but failed to act in deliberate indifference to that risk. ECF No. 30 at 3-6.
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.Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (internal quotation marks and citations omitted) (abrogated on other grounds by Bistrian v. Levi, 912 F.3d 79, 84 (3d Cir. 2018)). The test for deliberate indifference is two-fold: “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 v. Brennan, 511 U.S. 825, 837 (1994). Negligence alone cannot support an Eighth Amendment claim that prison official failed to protect the inmate, Millbrook v. United States, 714 Fed.Appx. 109, 114 (3d Cir. 2017) (citing Farmer, 511 U.S. at 835), and a claim of deliberate indifference may not rest on “the risk that an inmate with a history of violence might attack another inmate for an unknown reason.” Kornegey v. City of Philadelphia, 299 F.Supp.3d 675, 681 (E.D. Pa. 2018).
The Court agrees that the Complaint fails to state a failure to protect claim upon which relief may be granted. Plaintiff alleges that Allwein entered his cell block with a sock containing a bar of soap and assaulted him while the Defendant Corrections Officers were negligent by failing to pay attention and playing on a computer. ECF No. 10 at 4. Plaintiff attaches a copy of his prison grievance in which Plaintiff asserted that Allwein was known to have assaulted other inmates and should not have been housed in general population. ECF No. 10-1. However, Plaintiff does not allege any facts establishing that the named DOC Defendants knew of any danger Allwein presented to Plaintiff or to any other inmate, or that they had the chance to intervene and failed to do so. Plaintiff's allegations mirror those that have been rejected by the United States Court of Appeals for the Third Circuit as insufficient to state a claim:
Bistrian refers to [his attacker's] “history of violent assaults against other inmates” ... and generally creates the impression that [the] attack was unprovoked, inexplicable, and unrelated to his participation in the note-copying operation. Thus, according to Bistrian, the risk of the harm that occurred was the risk that an inmate with a history of violence might attack another inmate for an unknown reason. We cannot conclude on these allegations that prison officials were deliberately indifferent to such a speculative risk.Bistrian, 696 F.3d at 371 (citations omitted). Dismissal of a complaint was similarly affirmed when the plaintiff “did not allege that the prison officials knew of any substantial risk to [plaintiff's] health or safety by placing him in a cell with another inmate” despite plaintiff's request for a single cell based on rumors about his prospective cellmate that he had “heard from other inmates.” Vasquez v. Wingard, 847 Fed.Appx. 108, 111 (3d Cir. 2021) (per curiam) (citing Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) (“[T]hreats between inmates are common and do not, under all circumstances, serve to impute actual knowledge of a substantial risk of harm.”). See also Zuniga v. Chamberlain, 821 Fed.Appx. 152, 157 (3d Cir. 2020) (plaintiff failed to allege facts establishing more than a generalized risk of harm of assault by other inmates and so failed to state a claim for failure to protect).
Because Plaintiff's allegations are insufficiently particularized and fail to permit an inference that the DOC Defendants knew of any substantial risk to his health or safety, Plaintiff fails to state a failure to protect claim. Accordingly, it is recommended that the Court grant the motion to dismiss Plaintiff's failure to protect claim.
2. Sovereign Immunity
The DOC Defendants move for dismissal of all claims against SCI - Somerset because it is entitled to the immunity afforded to state instrumentalities under the Eleventh Amendment to the United States Constitution. ECF No. 30 at 6.
Under the Eleventh Amendment, states and their agencies are immune from suits in federal court, “unless Congress has overridden that immunity or the State has waived its immunity.” Sims v. Wexford Health Sources, 635 Fed.Appx. 16, 19 (3d Cir. 2015) (citing Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981); Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). Congress did not override Pennsylvania's immunity from suit when it enacted 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 340-45 (1979). Pennsylvania has expressly withheld its consent to be sued. 42 Pa. Cons. Stat. Ann. § 8521(b). The Department of Corrections (“DOC”) is a state agency; 71 Pa. Stat. Ann. § 310-1; and SCI-Somerset is a part of the DOC. Accordingly, SCI-Somerset is immune from suit and all claims against it must be dismissed with prejudice.
3. Ninth Amendment
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), district courts must review complaints filed under a grant of in forma pauperis status and sua sponte dismiss claims upon which relief may not granted. “Whether a complaint should be dismissed under § 1915 because it fails to state a claim is assessed under the same standard as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Rhodes v. Maryland Judiciary, 546 Fed.Appx. 91, 93 (3d Cir. 2013).
Plaintiff's Complaint contains a stray reference to the Ninth Amendment. ECF No. 10 at 3. The Ninth Amendment states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. The Court is not aware of any authority that would provide a basis for a claim under the Ninth Amendment based on the allegations related to Plaintiff's conditions of confinement. Indeed, courts have generally rejected Ninth Amendment claims raised by prisoners based on complaints about prison conditions. Cf. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). In addition, Plaintiff's inclusion of this claim is unsupported by factual allegations, and should be dismissed on this basis. See Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678. Because amendment of this claim appears to be futile, dismissal should be with prejudice.
4. Leave to Amend
The United States Court of Appeals for the Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Leave to amend is inappropriate if the complaint, as amended, would not survive a motion to dismiss for failure to state a claim. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002). This instruction applies equally to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Because Plaintiff may be able to allege additional facts to support his failure to protect claim, further amendment may not be futile. Thus, the Court should permit Plaintiff leave to file an Amended Complaint within thirty days reasserting his Eighth Amendment failure to protect claim against DOC Defendants CO1 Gaydos, CO1 Phillipi, CO 2 Sgt. Ringling, and any claim for the denial of medical treatment only.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss, ECF No. 29, be granted as follows:
i. Plaintiff's Eighth Amendment failure to protect claim should be dismissed without prejudice.
ii. Plaintiff's claims against SCI - Somerset should be dismissed with prejudice.
iii. Plaintiff's Ninth Amendment claim should be dismissed with prejudice.
iv. Plaintiff should be granted leave to file an amended complaint within thirty days correcting the identified deficiencies. If Plaintiff fails to file an amended complaint, his remaining claim for the denial of medical care should be permitted to proceed, but all other claims dismissed with prejudice.
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 in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. 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.