Opinion
Civil Action 21-1514
02-02-2023
JUSTIN SCHEER Plaintiff, v. ALLEGHENY COUNTY, ORLANDO HARPER, LAURA WILLIAMS, ALLEGHENY HEALTH NETWORK, CAPTAIN WISEMAN, LOUIS DEL PRETE, N. FROELICH, CORRECTIONAL OFFICER GATZ, CORRECTIONAL OFFICER CLAAR, SARGEANT LEE, CORRECTIONAL OFFICER DREVER, and GLOBAL TEL LINK, and others unknown Defendants.
Bissoon District Judge
REPORT AND RECOMMENDATION ECF NOS. 34 & 39
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Corrections Defendants Allegheny County, Corrections Officer Claar, Louis Del Prete, N. Froelich, Corrections Officer Gatz, Orlando Harper, Sergeant Lee, Laura Williams, and Captain Wiseman (ECF No. 34) be denied in part and granted in part. It should be denied as it relates to the claims against Williams, Del Prete, and Froelich for deliberate indifference to serious medical needs. It should also be denied as it relates to the retaliation claim against Claar. The Motion should be granted as to all other claims relating to the moving individual Defendants Harper, Wiseman, Gatz and Lee. It is further recommended that the claims against Defendants Drever and Global Tel Link be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. It is further recommended that the Motion be granted as to Allegheny County.
Finally, it is recommended that the Motion to Dismiss filed by Defendant Allegheny Health Network (“AHN”) (ECF No. 39) be granted as to any Monell claim against AHN, but that Plaintiff be given an opportunity to amend his complaint to add individual staff members of AHN only, if he so desires. Should the District Judge adopt this Report and Recommendation, Plaintiff should be given 30 days from the date of its adoption to amend his complaint only as to individual staff members of AHN.
Defendants Allegheny County, Orlando Harper, Allegheny Health Network, Captain Wiseman, Correctional Officer Gatz, Sergeant Lee, Correctional Officer Drever and Global Tel Link should be dismissed as party defendants.
Global Tel Link appears to be the entity involved with the purchasing function on the Allegheny County Jail's electronic tablet used by inmates for commissary and other inmate account services.
II. REPORT
A. Relevant Factual Averments
Plaintiff, a pretrial detainee, brings this civil action for violations of his First, Fourth, and Fourteenth Amendment rights, and for violation of the Americans with Disabilities Act (“ADA”) related to his conditions of confinement at the Allegheny County Jail (“ACJ”) during the COVID-19 pandemic. Amended Complaint, ECF No. 10 at 9. He alleges that he entered the ACJ on June 6, 2020, and states that he is a medically vulnerable person due to his severe asthma. Attached to the Amended Complaint at Exhibit 1 (ECF No. 10-1 at 5), is a document generated by the ACJ indicating that Plaintiff has asthma with the corresponding date of Plaintiff's intake. Along with the alleged constitutional violations, Plaintiff relies on the May 27, 2020, Consent Order in Graham v. Allegheny County, 2:20-cv-496 (“Consent Order”), which establishes COVID-19 protocols at the ACJ, as the basis for many of his claims. ECF No. 34-1. He concludes that he was injured because of the ACJ's failure to follow these protocols. Id. at 10.
Specifically, Plaintiff alleges that during processing, he was housed in areas that did not allow for social distancing. Id. He was moved from processing to Pod 4A on June 9, 2020. There, he was double celled even though AHN and the ACJ staff knew of his asthma. He also alleges that he was subjected to recreation periods with more inmates than specified in the Consent Order. Id. at 11.
On June 12, 2020, Plaintiff was moved to Pod 7D. There, he was not permitted outgoing phone calls, and commissary. He was not allowed to research the law or send mail. He asserts that he was again forced to have recreation with more individuals than permitted in the Consent Order. He generated a negative COVID test at this time. Id. at 12.
On June 17, 2020, Plaintiff was transferred to Pod 4A. He alleges many of the same conditions and emphasizes that he was limited to one hour of recreation and that staff allowed various persons into his cell which exposed him to COVID-19. He states that Defendant Allegheny Health Network (“AHN”) was aware of these conditions. Id. at 13.
On July 2, 2020, Plaintiff was transferred to Pod 3B where many of the same conditions existed. He adds that his cellmate experienced respiratory symptoms on July 5, 2020 but was not tested for COVID-19. Thereafter, Plaintiff tested positive for COVID-19 on July 10. 2020. Id. at 14-15.
Plaintiff was then placed in isolation on Pod 7D. He alleges that while in isolation, Consent Order protocols were not followed: he was locked in his cell without phone calls, mail, recreation, or commissary. He was forced to speak with medical staff in the presence of a corrections officer, and in close proximity to other detainees. He was not allowed to shower and was not provided with additional fluids as provided in the Consent Order. These conditions lasted for approximately nine (9) days. Id. at 16.
On July 19, 2020, Plaintiff was moved back to general housing. He states that Consent Order protocols were not followed and that policies were put in place that violated the Consent Order, such as “vaccine rec” where over 40 persons were permitted in the “gymnasium” at one time. Id. at 17. Plaintiff alleges that he complained to Deputy Warden Williams, but his request was ignored. Id. at 18. He concludes that the ACJ complaint process is a sham. Id.
On August 11, and 18, 2020, Plaintiff filed complaints relating to the ACJ quarantine policy and the severe “limitation of his rights.” He alleges that the ACJ did not respond to these complaints. Id. at 19.
Plaintiff further alleges that from June 6, 2020, until October 2020, his access to the law library was extremely limited. Again, he complained and received no response. While on Pod 3B in August 2020, he submitted multiple request slips to Defendant Captain Wiseman over three weeks seeking access. Wiseman did not follow “his procedures” so Plaintiff submitted a complaint. Again, the ACJ did not respond to his complaint. Id. at 20-21.
Relatedly, during August 2020, Plaintiff alleges that the ACJ prolonged his incarceration by “suppressing [his] access to the courts.” Id. at 21. He states he has filed an action challenging the procedure that the Commonwealth used to detain him (2:21-cv-949 CRE claim 53 & 54), and a habeas corpus petition (21-cv-1571 LPL), which is currently stayed. Id. He states that he is unrepresented in his detainer matter and all civil matters, and therefore has been injured by his inability to access the library. Id. at 22.
On August 20, 2020, Plaintiff contacted the “Jail Oversight Board” of Allegheny County using an “interoffice form.” Because he could receive no relief from the complaint process, he used this vehicle to place the County on notice of his complaints. Id. at 23.
Plaintiff further alleges that since his illness from COVID-19, his physical and mental health have been deteriorating. He submitted sick call slips on September 6, 2020. He states that the medical provider “was untimely” in addressing the requests so he filed a complaint that was “rejected.” Specifically, he alleges that it took medical 23 days to see him and he was then issued an inhaler. Id. at 24. He continues that AHN was negligent and that if he had been single celled, like a medically vulnerable person should be, AHN would not be liable. He concludes that Deputy Warden Williams oversees the medical department. Id. at 25.
On September 17, 2020, Defendant Del Prete responded to one of Plaintiff's complaints and confirmed that some of the ACJ's policies were deficient. He continues that Del Prete disregarded his complaint by stating that all possible precautions had been taken and that Plaintiff's current prognosis was good. Plaintiff emphasizes that from that time to the present, he continues to experience physical and mental side effects. Plaintiff filed a complaint against Del Prete, and again states that Deputy Warden Williams oversees medical. Id. at 26.
On December 1, 2020, Plaintiff filed a complaint against medical because he was not single-celled. Plaintiff received no response and filed another complaint on December 18, 2020. On January 1, 2021, Plaintiff filed a complaint relating to the complaint procedures because medical was not following “the process.” On January 2, 2021, Plaintiff filed a complaint concerning jail procedures, indicating he should have a single cell. He indicates that on January 10, 2021, he filed a sick call request in his efforts to achieve single cell status. He received a response from Defendant Froelich which Plaintiff states gave him false hope because his complaint disposition was marked valid. Id. at 28. He alleges that he has observed three instances where individuals with asthma received single cell status. Williams and Del Prete, he alleges, are responsible for this violation. Id. at 29.
On September 13, 2020, Plaintiff filed a complaint against Defendant Officer Gatz for having too many persons out for recreation (as outlined in the Consent Order). Id. at 30-31.
On October 24, 2021, Defendant Corrections Officer Claar turned the television away from the detainees' view. When asked why, Claar responded that it was as punishment for the pod's misbehavior. Id. at 32. Plaintiff requested assistance to file a complaint on the matter and Claar refused. Thereafter, Claar moved Plaintiff to a cell that would not permit Plaintiff to view the television. Defendant Lee and another unknown officer arrived on the scene. Plaintiff asked for a complaint form from Defendant Lee, who indicated he would “get one later.” Id. at 33. The other officer ordered Plaintiff to “cuff up.” When Plaintiff attempted to adjust in the cuffs, the unknown officer threatened him with bodily injury. Id. at 34. Plaintiff alleges that the new cell was filthy with urine and feces. He asked Defendant Lee to send a cleaning crew. Lee granted his request, but the cleaning crew did not arrive for approximately five (5) hours. Id. at 35.
Later, Plaintiff's property was brought to the new cell. Plaintiff alleges that he was missing books, his toothbrush, mattress, towels, shampoo/conditioner, pens, chess pieces and candy. He states that some of his books were religious. Id. at 35. Defendant Claar charged Plaintiff for a mattress and indicated that all other confiscated items were contraband. Id. at 37.
Plaintiff alleges that Claar was targeting and harassing him concerning his ability to participate in recreational time. Id. at 39. He alleges that Claar opened his legal mail relating to fees in the case at bar and thereafter, had his cell searched, claiming that Plaintiff had contraband. Plaintiff alleges that Claar did this to retaliate against Plaintiff for naming him as a Defendant in this civil action. Id. at 40-41. Thereafter, Claar again searched his cell. Plaintiff alleges that Claar, Defendant Global Tel Link (“GTL”), Lee and others are engaged in a conspiracy to oppress and retaliate against him. Plaintiff indicates that his purchasing privileges have been suspended such that he cannot receive money on his account or purchase items using the “tablet.” He alleges that his property has been seized without due process. Id. at 41-42. He concludes that he spoke to Defendant Harper about the ACJ's deviations from the Consent Decree, and of the ongoing conspiracy against him. Id. at 44.
Plaintiff alleges that Defendants' actions have caused him to be exposed to COVID-19 which has impacted his daily living. He alleges that since his illness, he has had respiratory issues including shortness of breath, increased asthma attacks, constant fatigue and the feeling of general weakness. He has noticed a decline in his cognitive ability, including memory issues. He further alleges that he has suffered severe trauma from being quarantined, including night terrors, fear of being harmed, anger issues, and increased panic attacks. Id. at 45-48.
Plaintiff's Amended Complaint does not set out discrete counts. The Court, however, liberally construes the Amended Complaint in addressing the legal claims below.
B. Legal Standards
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).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
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 “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.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
As a pretrial detainee, Plaintiff is protected by the Due Process Clause of the Fourteenth Amendment. See Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir. 1997) (the Due Process Clause provides protections for pretrial detainees similar to those protections afforded to sentenced prisoners); see also Bell v. Wolfish, 441 U.S. 520, 544 (1979). The Eighth Amendment sets forth the minimum standard by which claims of pretrial detainees' rights should be evaluated. See Bell, 441 U.S. at 544 (“pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners”); see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (a pretrial detainee's due process rights are said to be “at least as great as the Eighth Amendment protections available to a convicted prisoner.”).
1. Corrections Defendants' Motion to Dismiss (ECF No. 34)
a. Claims regarding the Graham Consent Order at 2:20-cv-496
First, the Court notes that violation of a consent order is not in and of itself, a constitutional violation. The Consent Order at issue sets out available remedies in the event of substantial noncompliance (ECF No. 34-1 at 5 ¶¶ 11-15), but those remedies do not include Plaintiff's civil action pursuant to 42 U.S.C. § 1983. ECF No. 34-1 at 4, ¶ 6 (“This Order, however, does not resolve Plaintiffs' claims that the Defendants violated their rights under 42 U.S.C. § 1983 and the Americans with Disabilities Act.”). Independent of the terms of the Consent Order, the Court examines Plaintiff's allegations under the appropriate legal standards to determine if he has stated constitutionally cognizable claims.
In Phillips v. County of Allegheny, the United States Court of Appeals for the Third Circuit ruled that that if a district court is dismissing a claim pursuant to 12(b)(6) in a civil rights case, it must sua sponte “permit a curative amendment unless such an amendment would be inequitable or futile.” 515 F.3d 224, 245 (3d Cir.2008). Here, any attempt by Plaintiff to amend this claim would be futile.
b. Claims regarding Medical Care and COVID-19 Exposure
In order for a pretrial detainee to establish a Fourteenth Amendment claim for deliberate indifference to medical needs, a plaintiff must allege facts to plausibly suggest that he was suffering from a serious medical need and that prison officials were deliberately indifferent to the serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
The first showing requires the court to objectively determine whether the medical need was “sufficiently serious.” A medical need is “serious” if it is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Monmouth Cnty. Corr. Inst. Inmates v. Lanzara, 834 F.2d 326, 347 (3d Cir. 1987).
The second prong requires a court to determine whether the officials acted with a sufficiently culpable state of mind. Deliberate indifference may be manifested by an intentional refusal to provide care, delayed medical treatment for nonmedical reasons, a denial of prescribed medical treatment, or a denial of reasonable requests for treatment that results in suffering or risk of injury. Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). A prisoner must demonstrate that the official acted with more than mere negligence. Estelle, 429 U.S. at 106. To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). It is a “well-established rule that mere disagreements over medical judgment do not state Eighth Amendment claims.” White v. Napoleon, 897 F.2d 103 (3d. Cir. 1990). Moreover, “[a] court may not substitute its own judgment for diagnosis and treatment decisions made by prison medical staff members.” Maynard v. New Jersey, 719 F.Supp. 292, 295 (D.N.J. 1989) (citing Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)).
Here, Plaintiff has stated a plausible claim for deliberate indifference to serious medical needs. At intake, Plaintiff was documented as having asthma, a serious medical condition that made Plaintiff especially vulnerable during the COVID-19 pandemic. Via his numerous request slips and complaints, Plaintiff reiterated this fact to ACJ officials and staff, specifically to Defendants Williams, Del Prete and Froelich. The Defendants' arguments focus only on Plaintiff's allegation that in September 2020, he was not seen in medical for 23 days. But Plaintiff's claim relates to the entire time he was incarcerated at the ACJ. He alleges that the ACJ knew at intake, and informed by Plaintiff repeatedly thereafter, that he was especially vulnerable to COVID-19 because of his asthma. Yet, he alleges that he was repeatedly placed in situations where his chances of contracting the virus were significantly increased, including the failure to single cell him even though he was aware of three other inmates with asthma who were permitted single cell status. This claim should be permitted to go into discovery. Therefore, the Motion to Dismiss Plaintiff's Fourteenth Amendment claim for deliberate indifference to serious medical needs should be denied as to Defendants Williams, Del Prete and Froelich.
c. Conditions of Confinement relating to Quarantine
Because Plaintiff was a pretrial detainee, the Court will analyze his conditions of confinement claims under the Due Process Clause of the Fourteenth Amendment. Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005) (Hubbard I). “Under the Fourteenth Amendment, when a pretrial detainee complains about the conditions of his confinement, courts are to consider whether the conditions ‘amount to punishment prior to an adjudication of guilt in accordance with law.'” Mohorcic v. Hogue, No. CIV. A. 11-575, 2013 WL 6118693, at *2 (W.D. Pa. Nov. 21, 2013) (citing Hubbard I at 158). In making such a determination, the court must ask (1) whether any legitimate purposes are served by the conditions at issue, and (2) whether those conditions are rationally related to those purposes. Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008) (Hubbard II) (quoting Union County Jail Inmates v. Pi Buono, 713 F.2d 984, 992 (3d Cir. 1983)). If a particular condition of pretrial detention is “reasonably related to a legitimate government objective, it does not, without more, amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 539 (1979). If a condition is arbitrary or purposeless, and thus not reasonably related to a legitimate goal, a court may infer its purpose is punishment. Id.
Here, Plaintiff complains of his quarantine, his inability to use the phone, commissary, limited recreation and showers, and limited use of the law library during the COVID-19 pandemic. Clearly these restrictions were put in place throughout the facility to combat the spread of COVID-19. Therefore, these restrictions relate to a legitimate government objective and will not constitute a Fourteenth Amendment violation. Defendants' Motion to Dismiss the Conditions of Confinement claim should be granted as to ACJ Defendants Harper, Gatz and Lee. Any attempt to amend this claim would be futile.
d. ADA
Plaintiff alleges that his asthma impacts his daily living and that his rights under the ADA have been violated.
Title II of the ADA requires a plaintiff to establish: “(1) he is a qualified individual; (2) with a disability; (3) who was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity; (4) by reason of his disability.” Haberle v. Troxell, 885 F.3d 171, 178-79 (3d Cir. 2018); see also 42 U.S.C. § 12132. Disability is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).
A liberal reading of the Amended Complaint suggests that even if Plaintiff is deemed to have a physical impairment that substantially limits one or more major life activities, his disability was not the reason he was denied access to the law library and various other amenities at the ACJ. As noted above, COVID-19 impacted the availability of these amenities for all who were housed at the ACJ. And as noted by Defendants, courts have held that denial of single cell status is not a violation of the ADA. See Mattis v. Dep't of Corr., C. A. No. 16-306, 2017 WL 6406884, at *16 (W.D. Pa. Dec. 15, 2017) (denial of a single cell does not implicate a service, program or activity contemplated by the ADA) (citing Riley v. Grainey, No. 3:12-cv-02470, 2015 WL 5693805, at *3 (M.D. Pa. Sept. 24, 2015) (inmate failed to plead that he was denied benefit of a specific prison service, program, or activity as a result of denial of single cell) (other citations omitted)).
Therefore, Defendants' Motion to Dismiss Plaintiff's ADA claim should be granted. Any attempt to amend this claim would be futile.
e. First and Fourteenth Amendments: Access to the Courts
Plaintiff avers generally that his access to the courts was limited throughout his confinement at the ACJ. As discussed concerning his conditions of confinement claim, library access was restricted in an effort to control the spread of the virus. Plaintiff, however, also alleges that during August 2020, he was housed on Pod 3B, which contained a library. Plaintiff avers that through Defendant Wiseman, he attempted to access the library for three (3) weeks, utilizing the procedures set by Defendant Wiseman. In conclusory fashion, Scheer pleads that his inability to access the law library extended his incarceration.
Since 1977, the United States Supreme Court has recognized that inmates have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). As the Supreme Court initially observed, this right of access to the courts is satisfied when corrections officials facilitate “meaningful” access for those incarcerated, either through legal materials or the assistance of those trained in the law. Id. at 827-28 (“[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”). Two decades later, in 1996, the Supreme Court provided further definition and guidance regarding the scope and nature of this right in Lewis v. Casey, 518 U.S. 343 (1996). In Lewis, the Court eschewed efforts to define this right in abstract, or theoretical terms, but rather cautioned courts to focus on concrete outcomes when assessing such claims. As the court observed:
Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's . . . legal assistance program is subpar in some theoretical sense .... Insofar as the right vindicated by Bounds is concerned, “meaningful access to the courts is the touchstone,” id., at 823, 97 S.Ct., at 1495 (internal quotation marks omitted), and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the . . . legal assistance program hindered his efforts to pursue a legal claim. Although Bounds itself made no mention of an actual-injury requirement, it can hardly be thought to have eliminated that constitutional prerequisite. And actual injury is apparent on the face of almost all the opinions in the 35-year line of access-to-courts cases on which Bounds relied, see id., at 821-825, 97 S.Ct., at 1494-1497. Moreover, the assumption of an actual-injury requirement seems to us implicit in the opinion's statement that “we encourage local experimentation” in various methods of assuring access to the courts. Id., at 832, 97 S.Ct., at 1500.Lewis, 518 U.S. at 351-52.
Thus, following Lewis, courts have consistently recognized that access-to-courts claims by prisoners require some proof of an actual, concrete injury in the form of direct prejudice to the plaintiff in the pursuit of some legal claim. See, e.g., Oliver v. Fauver, 118 F.3d 175 (3d Cir. 1997); Demeter v Buskirk, No. 03-1005, 2003 WL 22139780 (E.D. Pa. Aug. 27, 2003); Castro v. Chesney, No. 97-4983, 1998 WL 150961 (E.D. Pa. March 31, 1998).
“[P]risoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). As noted in Monroe:
Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an “actual injury”-that they lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim; and (2) that they have no other “remedy that may be awarded as recompense” for the lost claim other than in the present denial of access suit.Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Importantly, Plaintiff must come forward with evidence to show that the underlying arguable claim is “more than hope,” and he must also describe the “lost remedy.” See Harbury, 536 U.S. at 416-17. Plaintiff is thus required to allege plausible facts that he was actually injured by Defendants' alleged interference with his right to access the courts.
Here, Plaintiff does not indicate with any specificity that he missed filing deadlines and that those filings would have been meritorious. Instead, Plaintiff alleges that he presently has two civil actions filed in the Western District of Pennsylvania. One is his petition for habeas corpus relief that is currently stayed pending the exhaustion of his state court remedies (21-cv-1571 LPL) and another challenges the procedure that the Commonwealth used to detain him (2:21-cv-949 CRE claim 53 & 54). Plaintiff's inability to access the library in August 2020 would have no impact on these civil actions filed in 2021. Moreover, the docket sheet at CP-02-CR-12731-2009 reflects that in August 2020, Plaintiff filed a Request for Sentencing Transcript and a Motion to Lift Detainer. Clearly, his allegations against Wiseman did not prevent Plaintiff's ability to access the courts at that time.
Therefore, Defendants' Motion to Dismiss Plaintiff's First Amendment Access to the Courts claim against Wiseman should be granted. Any attempt to amend this claim would be futile.
f. First Amendment Retaliation against Claar
Liberally construing the Amended Complaint, Plaintiff appears to allege a First Amendment retaliation claim against Defendant Claar. First, he alleges that Claar, upon learning that Plaintiff was filing a complaint against him because Claar moved the television out of Plaintiff's view, Claar retaliated moments later by moving Plaintiff to a different cell out of view of the television; by moving him to a filthy cell that was not cleaned until five (5) hours after the transfer; and by taking personal property, some of which was returned. Plaintiff alleges that Claar continued to harass him during recreation, and that he lost shower privileges and tablet privileges, which were restored in a couple of days. Claar informed Plaintiff that he would have $132 taken from his prison account for a mattress. Claar further stated that all property taken from Plaintiff was contraband including his religious books, because they were not Plaintiff's. Plaintiff disputes this assertion and attaches receipts to the Amended Complaint to demonstrate the books were his.
Because Plaintiff's only reference to religion is that some of the books confiscated were religious books, the Court will not undertake a First Amendment free exercise claim. Plaintiff pleads no facts to suggest any specific religious belief or practice, nor has he alleged facts to suggest he was precluded from exercising his religion. Nor do the facts of the Amended Complaint, liberally construed and read in their entirety, suggest that the books were taken to interfere with the practice of his religion. Moreover, Plaintiff makes no mention of such a claim in his responsive brief at ECF No. 47. Instead, Plaintiff only states a legal conclusion near the end of his Amended Complaint that “[t]he officers have abridged my freedom to exercise my religion.” ECF No. 10 at 47. Confiscation of religious materials, however, is not a per se violation of a detainee's First Amendment right to freely exercise his religion. See Pressley v. Beard, 266 Fed.Appx. 216, 218-19 (3d Cir. 2008) (confiscation of religious materials may be had to further “legitimate penological objectives.”).
Second, Plaintiff alleges that Claar, upon learning that he was named as a Defendant in the case at bar, retaliated against Plaintiff that same day by searching his cell, claiming that he had contraband. Plaintiff also alleges that Claar and others arranged for his tablet privileges (including commissary purchasing privileges) to be revoked.
It is well settled that retaliation for the exercise of a constitutionally protected activity is itself a violation of rights secured by the Constitution, which is actionable under § 1983. Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001); White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990). Merely alleging the fact of retaliation, however, is insufficient. In order to plausibly allege a retaliation claim, a plaintiff must allege facts that: (1) the conduct in which he engaged was constitutionally protected; (2) he suffered “adverse action” at the hands of prison officials; and (3) that his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Rauser, 241 F.3d at 333 (adopting Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
An adverse action is one “sufficient to deter a person of ordinary firmness from exercising his rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000).
The crucial third element, causation, requires a plaintiff to prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997)). The mere fact that an adverse action occurs after a complaint or grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link between the two events. See Lape v. Pennsylvania, 157 F. App'x. 491, 498 (3d Cir. 2005).
Here, the filing of complaints at the ACJ and the prosecution of a civil rights action are constitutionally protected activities. See Brennan v. Norton, 350 F.3d 399, 417 (3d Cir. 2003) (stating that filing a federal complaint qualifies as petitioning the government and is protected); see also Fantone v. Latini, 780 F.3d 184, 192 n.8 (3d Cir. 2015) (filing of a prison grievance is an activity protected by the First Amendment). Moreover, Plaintiff sufficiently pleads an adverse action because a retaliatory search and seizure may be sufficient to satisfy the second element of the test. See Bell v. Johnson, 308 F.3d 594, 605 (6th Cir. 2002 (collecting cases). Finally, Plaintiff has alleged a close temporal proximity between the protected conduct and the retaliatory acts to satisfy the third element of the test.
Although “prison officials may [] prevail [on a retaliation claim] by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest,” Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001), dismissal on this basis in the case at bar would be premature at the motion to dismiss stage.
Therefore, Defendants' Motion to Dismiss Corrections Officer Claar should be denied as it relates to the retaliation claim.
g. Procedural Due Process regarding the Taking of Property
Plaintiff also attempts to make out a Fourteenth Amendment procedural due process claim for the intentional deprivation of his personal property. Plaintiff's allegations fail to state a claim because he has an adequate post-deprivation remedy to protect his due process rights through administrative grievance procedures and through a tort action in state court. See Payton v. Horn, 49 F.Supp.2d 791, 795 (E.D. Pa. 1999) (holding that Pennsylvania tort law offered a remedy for prison official's unlawful deprivation of an inmate's property and therefore inmate failed to state a claim that his constitutional rights were violated), overruled on other grounds, Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002); Austin v. Lehman, 893 F.Supp. 448, 454 (E.D. Pa. 1995) (both inmate grievance procedure and state tort law action constituted adequate postdeprivation remedies); Rogers v. Mrs. Brown, Civil No. 95-7867, 1996 WL 608473, *2 (E.D. Pa. Oct. 24, 1996) (holding that both the DOC grievance procedure and tort suit in state court provide adequate post-deprivation remedies). Here, although Plaintiff indicates that he could obtain no relief by employing the ACJ's complaint procedures, he does have available a tort action in state court to redress his deprivations. Therefore, the loss or destruction of Plaintiff's property fails to state a due process claim as a matter of law. See Jerry-El v. Beard, 419 Fed.Appx. 260, 263 n.1 (3d Cir. 2011) (“[T]he post-deprivation remedies available to Jerry under the prison grievance procedure and Pennsylvania law constitute adequate process.”) (citing Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008)). Accordingly, Plaintiff's procedural due process claim should be dismissed for failure to state a claim upon which relief may be granted. Any attempt to amend this claim would be futile.
h. Substantive Due Process
To the extent Plaintiff is attempting to make a substantive due process claim, again, his allegations fail to state a claim because the loss or destruction of his property simply does not shock the conscience. See, e.g., United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa., 316 F.3d 392, 399-400 (3d Cir. 2003) (“[O]ur cases have repeatedly acknowledged that executive action violates substantive due process only when it shocks the conscience.”). See also Moore v. Gluckstern, 548 F.Supp. 165, 167 (D. Md. 1982) (“At worst, plaintiff alleges that the items were stolen by the guards. While such action by prison guards, if proven, would clearly be wrongful, there is nothing about the alleged incidents that could conceivably ‘shock[] the conscience' of the court. Therefore, the complaint cannot be read as alleging a violation of substantive due process rights.”). Any attempt by Plaintiff to state a claim for substantive due process violations must fail as a matter of law. Any attempt to amend would be futile.
i. Fourth Amendment
Finally, the Fourth Amendment has no applicability to the contents of a prisoner's cell, and therefore, the corrections officers' seizure of Plaintiff's personal items will not constitute a Fourth Amendment violation. See Humphrey v. Sec'y Pa. Dep't of Corrs., 712 Fed.Appx. 122, 125 (3d Cir. 2017). Plaintiff's Fourth Amendment claim should be dismissed. Any attempt to amend this claim would be futile.
j. Conspiracy
Plaintiff also attempts to make out a conspiracy claim between Claar, Lee, Corrections Officer Drever, other unknown Corrections Officers and Global Tel Link. Plaintiff alleges that they are engaged in a conspiracy to take away his ability to access the “paid” portion of the tablet and to continually harass him. Although Defendants Drever and Global Tel Link do not move to dismiss this claim, the Court may address this claim as to these Defendants, sua sponte, pursuant to 28 U.S.C. § 1915A(b)(1) .
Global Tel Link and Corrections Officer Drever are nonmoving Defendants. Conspiracy is the only claim alleged against them.
A court may review a prisoner complaint against an employee of the government before docketing or as soon as practicable after docketing and may dismiss any portion of the complaint if it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1).
In order to state a claim for conspiracy, Plaintiff is required to show “‘a combination of two or more persons to do a criminal act, or to do a lawful act by unlawful means or for an unlawful purpose.'” Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. 1999) (quoting Hammond v. Creative Financial Planning, 800 F.Supp. 1244, 1248 (E.D. Pa. 1992)). See also Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997) (citing Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974)). A conspiracy claim requires specific allegations “which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain other action of the alleged conspirators taken to achieve that purpose.” Id. “It is not enough that the end result of the parties' independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism.” Spencer, 968 F.Supp. at 1020. Rather, there must be a showing that the alleged conspirators “directed themselves toward an unconstitutional action by virtue of a mutual understanding or agreement.” Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 539 (E.D. Pa. 1982) (citing Tarkowski v. Bartlett Realty Co., 644 F.2d 1204 (7th Cir. 1980)). The United States Court of Appeals for the Third Circuit has made clear that in light of Twombly and its progeny, there must be “‘enough factual matter (taken as true) to suggest that an agreement was made,' in other words, ‘plausible grounds to infer an agreement.'” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 556). The facts alleged must raise “a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.” Twombly, 550 U.S. at 557.
Here, Plaintiff's allegations are pure speculation and do not amount to sufficient facts from which this Court could infer conspiracy. Plaintiff does not direct the Court to facts that suggest a preceding agreement between the individuals. Instead, the Complaint offers only a sheer possibility that Defendants engaged in a conspiracy. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556-57). Plaintiff merely alleges independent actions by these Defendants rather than a concerted effort to deprive Plaintiff of his constitutional rights. Therefore, Defendants' Motion to dismiss Plaintiff's Conspiracy claim should be granted. Any attempt to amend this claim would be futile.
k. Remaining Claim against Lee
The only remaining claim against Defendant Lee is that he confirmed to Plaintiff that he had to move cells after the television incident, and that Lee indicated he would get a cleaning crew to clean Plaintiff's new cell, but that the crew did not arrive until five hours later. These allegations state no constitutionally cognizable claim. Therefore, all claims against Lee should be dismissed. Any attempt to amend this claim would be futile.
l. Complaint/Grievance Procedures
Plaintiff repeatedly alleges that Defendants failed to follow ACJ grievance procedures concerning the processing and handling of his grievances. A violation of a facility's handbook or internal procedures does not rise to the level of a constitutional violation. See Bullard v. Scism, 449 Fed.Appx. 232, 235 (3d Cir. 2011) (allegations that prison regulations are violated are not actionable). See also Preziosi v. Nicholson, 2:19-cv-1437, 2021 WL 4442840, at *18 (W.D. Pa. Sept. 28, 2021) (collecting cases). Therefore, Plaintiff's claims that Defendants violated ACJ complaint procedures should be dismissed. Any attempt to amend this claim would be futile.
m. Claim against Gatz
The only allegation pertaining to Defendant Gatz is that on September 13, 2020, Plaintiff observed too many people out for recreation in violation of the Consent Order. Plaintiff alleges that Gatz refused him access to the law library because of the COVID restrictions limiting the number of inmates “out” at one time. Plaintiff pleads that he saw more than the permitted number at recreation, the dayroom, and showers during that time. ECF No. 10-1 at 53. Plaintiff does not plead that he was out for recreation that day, thereby exposing him to the virus. He complains only that he was not permitted “out” while others were. Plaintiff alleges no facts to suggest that Gatz violated his constitutional rights. Therefore, the Motion to Dismiss concerning Defendant Gatz should be granted. Any attempt to amend this claim would be futile.
n. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity operates to ensure that, before they are subjected to suit, government officials are put on notice that their conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555 U.S. at 231.
In determining whether qualified immunity applies, the courts conduct a two-pronged inquiry. Pearson, 555 U.S. at 232; Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). First, the court must determine “whether the facts that the plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)); Spady, 800 F.3d at 637 (quoting Pearson, 555 U.S. at 232). “If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the [government official] is entitled to immunity.” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir.2002). If, however, the plaintiff can establish a constitutional violation, then the court must proceed to the second prong and determine “‘whether the right at issue was “clearly established” at the time of defendant's alleged misconduct.'” Spady, 800 F.3d at 637 (quoting Pearson, 555 U.S. at 232). “The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “This is an objective inquiry, to be decided by the court as a matter of law.” Doe v. Groody, 361 F.3d 232, 238 (3d Cir. 2004). In conducting this analysis, courts have the discretion to decide which of the two prongs should be addressed first based on the circumstances of the particular case. Pearson, 555 U.S. at 236; see also Spady, 800 F.3d at 637 (citing Pearson, 555 U.S. at 236).
A defendant has the burden to establish that he or she is entitled to qualified immunity. Burns v. Pa. Dept. of Corrections, 642 F.3d 163, 176 (3d Cir.2011). “[T]he defense of qualified immunity is available only for damages claims-not for claims requesting prospective injunctive relief.” Hill v. Kutztown, 455 F.3d 225, 244 (3d Cir. 2006). In the case at bar, Plaintiff is seeking only money damages.
Here, construing all factual allegations in favor of the pro se Plaintiff, Plaintiff has plausibly alleged two constitutional violations: deliberate indifference to serious medical needs against Williams, Del Prete and Froelich; and retaliation against Defendant Claar. Because Plaintiff has failed to allege facts to support a constitutional violation as to all other Defendants, the Court need not proceed to the second prong of the analysis. See Bennet, 274 F.3d at 136.
The Court now proceeds to the second prong of the qualified immunity analysis as it relates to the surviving claims below.
Deliberate Indifference to Serious Medical Needs against Defendants Williams, Del Prete and Froelich
As discussed, supra at II.C.1.b., Plaintiff has set forth sufficient facts to plausibly allege a Fourteenth Amendment claim for deliberate indifference to serious medical needs against Defendants Williams, Del Prete and Froelich. And as also discussed, supra at II.C.1.b., the law concerning the deliberate indifference to serious medical needs was clearly established at the time of Plaintiff's alleged violations in 2020-2021. That is, by 2020, a reasonable corrections officer would have known that by knowingly exposing a medically high-risk individual to an infectious virus would constitute deliberate indifference to a serious medical need and therefore, violate the Fourteenth Amendment rights of a pretrial detainee. See Natale v. Camden Cnty Corr. Facility, 318 F.3d 575, 582-83 (3d Cir. 2003); see generally Monmouth Cnty. Corr. Inst'l Inmates v. Lanzaro, 843 F.2d 326, 346-47 (3d Cir. 1987) (Deliberate indifference is manifest where prison authorities deny reasonable request for medical treatment and such denial exposes inmate to “threat of tangible residual injury.”). Plaintiff alleges that he has severe asthma, that at least three inmates with asthma were single celled, but his request for a single cell based upon the same medical need was denied, leading to his residual injuries when he contracted COVID-19. Defendants may raise the issue of qualified immunity later in the proceedings after the factual record is developed. But at the motion to dismiss stage, the Court should deny qualified immunity as to these Defendants.
First Amendment Retaliation against Defendant Claar
As discussed, supra at II.C.1.f., Plaintiff has set forth sufficient facts to plausibly allege a First Amendment Retaliation claim against Defendant Claar. And as also discussed, the law concerning First Amendment Retaliation was clearly established at the time of Plaintiff's alleged violations in 2020-2021. That is, a reasonable corrections officer would have known that taking an inmate's property and suspending commissary privileges because the inmate filed a grievance or civil rights action against the officer would violate Plaintiff's First Amendment protections against retaliation. See Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000); Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003). Defendants may raise the issue of qualified immunity later in the proceedings after the factual record is developed. But at the motion to dismiss stage, the Court should deny the Motion to Dismiss on the basis of qualified immunity.
o. Allegheny County
In support of their Motion to Dismiss Allegheny County, the Corrections Defendants argue that Plaintiff's allegations against the County are insufficient to establish that his exposure to COVID-19 was the result of a deliberately indifferent County policy or practice.
The County may be held liable under § 1983 only when its policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978). The official policy requirement distinguishes acts of the municipal entity from acts of employees of the entity, thereby limiting liability to action for which the entity is actually responsible. Id.
In order to establish municipal liability, the plaintiff must identify the policy, custom or practice of the entity that results in the constitutional violation. See id. at 690-91. A policy is made when a decision-maker issues an official proclamation or decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), quoted in, Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A custom or practice, however, may consist of a course of conduct so permanent and widespread that it has the force of law. Andrews, 895 F.2d at 1480. To establish liability based upon a custom or practice, the plaintiff must demonstrate that the decision-maker had notice that a constitutional violation could occur, and that the decisionmaker acted with deliberate indifference to this risk. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Finally, Plaintiff must show a causal connection between the custom or policy and the violation of the constitutional right. Bielevicz v. Dubinon, 915 F.2d 845, 850-51 (3d Cir. 1990). That is, a plaintiff must demonstrate an affirmative link or plausible nexus between the custom or practice and the alleged constitutional deprivation. Bielevicz, 915 F.2d at 850-51.
Plaintiff's allegations fall woefully short of this standard. He alleges only that the ACJ was aware that he was a medically vulnerable person and that the ACJ refused to single cell him. He does not allege that the ACJ had a custom or policy of refusing to single cell inmates with asthma or other medically vulnerable groups. To the contrary, he pleads that at least three other inmates with asthma at the ACJ were single celled.
Therefore, Plaintiff fails to allege a Monell claim against Allegheny County. Defendants' Motion to dismiss the County should be granted. Any attempt to amend this claim would be futile.
2. Allegheny Health Network's Motion to Dismiss (ECF No. 39)
In support of its Motion to Dismiss, AHN argues that Plaintiff has failed to plead facts to suggest that it was deliberately indifferent to Plaintiff's medical needs. AHN does not argue, however, that Plaintiff has failed to name individuals from AHN who allegedly participated in violating Plaintiff's rights. That is, “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (the personal involvement of each defendant in the alleged constitutional violation is a required element; a plaintiff must allege how each defendant was involved in the events and occurrences giving rise to the claims). Vicarious liability has no place in § 1983 jurisprudence, and therefore, a plaintiff must plead that each government-official defendant, through the official's own actions, violated the constitution. Iqbal, 556 U.S. at 676.
Instead, AHN may be liable under § 1983 only when its policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. See Monell, 436 U.S. at 694. In finding AHN liable pursuant to § 1983, the plaintiff must identify the policy, custom or practice of the entity that results in the constitutional violation. See id. at 690-91.
Again, Plaintiff's allegations fall woefully short of this standard. He alleges only that AHN knew he was not being single celled and alleges that AHN shares responsibility with individuals at the ACJ for his failure to be single celled. He admits that at least three others with asthma were being single celled. Therefore, Plaintiff cannot plausibly allege that AHN had a practice or custom of double celling those with asthma. If Plaintiff has complaints about individual members of AHN's staff, then he should be permitted to amend the Complaint only as it relates to his Fourteenth Amendment claim relating to deliberate indifference to medical needs as it relates to individual AHN staff members.
Therefore, it is recommended that the Motion to Dismiss filed by Defendant AHN be granted in its entirety and that Plaintiff be given the opportunity to amend his claim against AHN individual staff members only if he so desires.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the Motion to Dismiss filed by Corrections Defendants Allegheny County, Corrections Officer Claar, Louis Del Prete, N. Froelich, Corrections Officer Gatz, Orlando Harper, Sergeant Lee, Laura Williams, and Captain Wiseman (ECF No. 34) be denied in part and granted in part. It should be denied as it relates to the claims against Williams, Del Prete, and Froelich, for deliberate indifference to serious medical needs. It should also be denied as it relates to the retaliation claim against Claar. The Motion should be granted as to all other claims relating to the moving individual Defendants Harper, Wiseman, Gatz and Lee. It is further recommended that the claims against Defendants Drever and Global Tel Link be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. It is further recommended that the Motion be granted as to Allegheny County.
Finally, it is recommended that the Motion to Dismiss filed by Defendant Allegheny Health Network (ECF No. 39) be granted as to any Monell claim against AHN, but that Plaintiff be given an opportunity to amend his complaint to add individual staff members of AHN only, if he so desires. Should the District Judge adopt this Report and Recommendation, Plaintiff should be given 30 days from the date of its adoption to amend his complaint only as to individual staff members of AHN.
Defendants Allegheny County, Orlando Harper, Allegheny Health Network, Captain Wiseman, Correctional Officer Gatz, Sergeant Lee, Correctional Officer Drever and Global Tel Link should be dismissed as party defendants.
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.