Opinion
1:23-CV-00232-SPB-RAL
05-22-2024
CHARLES SWINT, Plaintiff v. L.J. OLIVER, EARL JONES, PATRICIA THOMPSON, STEVEN SOLOWODA, LT. FLOYD, DR. RUSH, AND UM SEMORE, Defendants
SUSAN PARADISE BAXTER United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT ECF NO. 33
RICHARD A. LANZILLO Chief United States Magistrate Judge
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss Plaintiff s Amended Complaint (ECF No. 33) be GRANTED in part and DENIED in part. Specifically, it is recommended that (1) Defendants' motion be granted as to Plaintiff s Fourteenth Amendment equal protection claim against all Defendants and his Eighth Amendment “failure to protect” claim against Defendant Seymour and that these claims be dismissed without prejudice and with leave to amend, and (2) Defendants' motion be denied as to Plaintiffs Eighth Amendment “failure to protect” claim against Soliwoda, Oliver, Thompson, Jones, and Floyd. To the extent the Amended Complaint can be read as asserting a First Amendment retaliation claim, it is further recommended that any such claim be dismissed without prejudice pursuant to 28 U.S.C. § 1915A.
II. Report
Plaintiff Charles Swint, an individual incarcerated at the State Correctional Institution at Albion (“SCI-Albion”), brings this pro se civil rights action against six current or former SCI-Albion employees: former Superintendents Lonnie Oliver and Earl Jones, Superintendent Patricia Thompson, Unit Managers Steven Soliwoda and Christopher Seymour, and Lieutenant Augustus Floyd. Swint's Amended Complaint, the operative pleading before the Court, alleges that certain Defendants placed Swint in a cell with a dangerous inmate and subsequently failed to protect him from violence and intimidation by that inmate and other inmates in violation of his Eighth Amendment rights and that certain Defendants denied him prison opportunities in violation of his right to equal protection under the Fourteenth Amendment. The Amended Complaint also includes a general allegation that unspecified SCI-Albion staff members engaged in retaliatory conduct after he filed this lawsuit, but it is unclear whether Swint intended to raise retaliation as a separate claim in this action. See ECF No. 28.
Swint's Complaint also named Dr. Rush as a defendant, but Swint later voluntarily dismissed all claims against him pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). ECF No. 37. Swint's pleadings misidentify Defendants Christopher Seymour as “Semore” and Steven Soliwoda as “Solowoda.” See, e.g, ECF No. 28. The correct spellings are used herein.
Defendants have moved to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 33. Their brief raises three arguments in support of dismissal: (1) the Amended Complaint fails to allege facts to support the personal involvement of any Defendant in actionable conduct; (2) the Amended Complaint fails to allege facts to support a Fourteenth Amendment “class of one” equal protection claim; and (3) the Amended Complaint fails to allege facts to support an Eighth Amendment claim based on Defendants' failure to protect from violence and intimidation by other inmates. ECF No. 34. Swint has filed a brief in opposition to the motion. ECF No. 42. Because the Amended Complaint refers to potential retaliation, the undersigned will exercise authority under pursuant to28U.S.C. § 1915Ato determine whether its factual allegations state such a claim.
Swint raises facts in his opposition brief that do not appear in his Amended Complaint. A plaintiff ordinarily may not “rely on new facts in response to a motion to dismiss.” Bos. v. Prime Care Med., Inc., 2018 WL 3032853, at *5 n.6 (E.D. Pa. June 18, 2018). However, “in keeping with its duty to ‘construe pro se complaints liberally,'” the undersigned will consider the additional facts Swint includes in his brief “to the extent they are consistent with the allegations in his [amended] complaint.” Sproul v. Walmart, 2023 WL 2895644, at *1 (W.D. Pa. Apr. 11, 2023) (citing Bush v. City of Philadelphia, 367 F.Supp.2d 722, 725 (E.D. Pa. 2005)).
A. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice, and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While detailed factual allegations are not required to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another way, in assessing a motion to dismiss, while the Court must view the factual allegations contained in the pleading at issue as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Swint is proceeding pro se, his Amended Complaint will be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it will do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
B. Material Facts
For purposes of Defendants' motion to dismiss, the Court accepts as true the following factual allegations of the Amended Complaint.
Inmate Peter In, “a D-Code, Level 4 inmate with a reputation of violence and extortion,” and other inmates associated with In, began to assault and extort Swint in 2021 after Defendant Seymour, a Unit Manager, placed Swint in a cell with In. ECF No. 28, ¶ 7. Swint told Defendant Soliwoda, also a Unit Manager, and another prison official about this treatment and gave them a statement on how drugs “were coming into the institution.” Id. ¶ 4. The prison officials forwarded his statement to security and moved Swint “to numerous units in the institution.” Id. But the inmates at these units, including Kareem Todd, knew about his comments to the prison officials and assaulted, threatened, and extorted him on behalf of In and his associates.
On or around July 3, 2021, Swint told prison personnel about Todd's conduct and went to medical for a “busted lip.” Id. When Swint “refused to return” to his unit, prison personnel placed him in the Restricted Housing Unit (“RHU”). Id. Upon his release from the RHU, Swint was placed in a cell on his previous unit with inmate Demetrius Coleman. Once Coleman learned from his gang that Swint had given statements to security, he also began to assault and extort Swint. At one point, Coleman showed Swint a knife and threatened that “if he told he would be killed.” Id.
On or around January 12, 2023, Swint told prison officials about the inmates' continued harassment because Coleman had temporarily left the facility. Swint refused their order to return to his unit so he would be returned to the relative safety of the RHU. When the officers released him from the RHU several days later, they sent him back to his unit. This time, Inmate Jamaica began abusing and extorting him in connection with the statements he gave in 2021. On September 21, 2023, Jamaica told Swint that “he would have the guys on the unit hurt [him] and take all [his] belongings” if he did not pay him via CashApp by the next day. Id. ¶ 5. Thereafter, Swint made a knife and placed “a lock in a sock to protect himself.” Id. The next day, he told a prison official about his weapons and his intention to hurt Coleman, Jamaica, and Captain Floyd, which prompted his return to the RHU. As of the filing of the Complaint, Swint was scheduled to return to general population on December 20, 2023.
The Amended Complaint alleges generally that each Defendant has known about the inmates' continued abuse but refused to institute measures to protect Swint. It avers that shortly after In and his associates began abusing Swint, he complained to Soliwoda and told him about the inmates' drug operations. The Amended Complaint then acknowledges that this information prompted Soliwoda to have security move Swint to a new cell. However, the Amended Complaint also alleges that Soliwoda kept Swint in the same cell and unit to continue being “beaten and extorted often” without instituting any protective measures. Id. ¶ 7. Jones, Thompson, and Oliver are alleged to have “gather[ed] all information,” including “the names of the inmates who assaulted [him],” and directed Floyd, Security, and another Lt. to investigate his claims when they sat on the Program Review Committee (“PRC”). ECF No. 42, ¶ 4(C). See ECF No. 28, ¶ 7. According to the Amended Complaint, Thompson “ha[d] all control over sending inmates to” other “units or transfer [ing]” them, and “failed to do so,” which “cause[d] Swint harm and torture” because of his “unsafe environment.” ECF No. 28, ¶ 7. Jones “kept being told” about the inmates' assaults on Swint and nevertheless allowed Swint to be placed in “general pop[ulation] with all the named perpetrators to be assaulted over and over again.” Id. Swint adds that Thompson and Jones did not “afford[] Swint opportunities to go to classes for parole without being harmed.” Id. Floyd “took many statements from Swint” about the inmates' abuse that included the names of the perpetrator and descriptions of their abusive conduct and received information about “the abuse and threats on [Swint's] life” from the PRC and other prison officials. Id. ¶¶ 7, 6. Despite Floyd's knowledge of the inmates' abuse, he “kept sending Swint back” to his unit “to be harmed on many occasions.” Id. ¶ 7.
Swint avers that because of “[t]he consistent fear and trauma by the perpetrators and the officials who became the perpetrators by not protecting] Swint,” he has suffered from “depression, nervousness, difficulty concentrating, patriation of social skills, speech impairment, feelings of rage, agitation, inability or difficult sleeping, fatigue, and mood swings.” Id. ¶ 6 (cleaned up). He has been unable to retrieve his medications from the med-line because of the inmates contracted to hurt him when they see him. Since 2021, “threatening inmates” have made Swint pay over $2,000 for protection. Id. He lost his job because of the numerous “strikes against him” for “[b]eing wr[itten] up for being chased from the units,” and he cannot get a new job because of “the threats on his life.” Id. Because of his disciplinary strikes, he is unable to get “good or fair housing” and “work reports to satisfy” his “parole obligations.” Id. He thus will not be able to “get the Jail's recommendation for parole” when he meets with the Parole Board in July 2024. Id.
Finally, the Amended Complaint alleges that after Swint filed this lawsuit, unspecified “staff members” retaliated against him by withholding his mail, “calling Swint a Rat” and “other vulgar names,” and either denying him food or putting “hairs and other objects in the food” to “mak[e] it unsafe to eat.” Id. (cleaned up).
C. Analysis
The Amended Complaint asserts an Eighth Amendment conditions of confinement claim against all Defendants based on their failure to protect Swint from inmates In, Coleman, Jamaica, and their associates and a Fourteenth Amendment equal protection claim against Thompson and Jones for not affording Swint the opportunity to attend parole classes without being harmed. Although far from clear, the Amended Complaint may also assert a First Amendment retaliation claim against all Defendants based on retaliatory conduct committed by other staff members after Swint filed this action. See ECF No. 28, ¶ 6.
The Amended Complaint also includes a reference to Thompson having violated the Eleventh Amendment. The Eleventh Amendment immunizes states from certain lawsuits and provides no basis for a claim. Swint's reference to the Eleventh Amendment is an isolated conclusion of law and as such does not appear to be intended as a separate claim.
Defendants raise three arguments in support of their motion to dismiss: (1) the Amended Complaint fails to demonstrate the requisite personal involvement of any Defendant sufficient to state a claim pursuant to § 1983; (2) the facts alleged are insufficient to establish the deliberate indifference required for an Eighth Amendment failure to protect claim; (3) and the facts alleged are insufficient to state a Fourteenth Amendment equal protection claim. See ECF No. 34. The undersigned will address each of these arguments and also assess whether the Amended Complaint alleges facts sufficient to state a retaliation claim.
1. Requisite Personal Involvement for a Section 1983 Claim
Defendants argue that the Amended Complaint does not allege facts to support any Defendant's personal involvement in any conduct that violated Swint's constitutional rights. To prevail on any claim pursuant to 42 U.S.C. § 1983, a plaintiff must prove that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the Constitution or laws of the United States. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Est. of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005). From these elements, it follows that a defendant faces liability under § 1983 only if he had “personal involvement” in the deprivation of the plaintiff's constitutional right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21,2013).
The issue of “personal involvement” typically arises when a supervisory official is sued based on misconduct committed by a subordinate. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). In that context, a defendant's liability “cannot be predicated solely on the operation of respondeat superior.” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Instead, the plaintiff must show that each defendant played an “affirmative part” in the complained-of misconduct. Id. This can be shown by alleging facts to support that the defendant “participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity” in that a complaint must allege the particulars of conduct, time, place, and person responsible. Rode, 845 F.2d at 1207-08. See also Evancho, 423 F.3d at 354.
When challenging the sufficiency of a claim against rank-and-file non-supervisory defendants, defendants often confuse or conflate the concept of “personal involvement” with the standard of review under Rule 12(b)(6), i.e., whether the facts alleged regarding the defendant's conduct are sufficient to satisfy the elements of the plaintiff s claim against him or her. Defendants in this case acknowledge that each of them interacted in some way with Swint regarding his safety concerns but nevertheless argue that the facts alleged are not sufficient to support any Defendant's liability on any of his claims. Defendants' challenge to Swint's claims is thus more appropriately considered as a challenge to the sufficiency of the factual allegations to support the elements of each claim rather than an assertion that each Defendant lacked personal involvement.
2. The Amended Complaint fails to allege facts to support that any Defendant violated Swint's rights under the Fourteenth Amendment.
Swint contends that Jones and Thompson violated the Fourteenth Amendment's equal protection clause by “not affording [him] opportunities to go to classes for parole without being harmed.” ECF No. 28, ¶ 7 (cleaned up). Because Swint does not allege that he is a member of a protected class, it appears that he is asserting a “class of one” equal protection claim. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To plead a class-of-one equal protection claim, Swint must “at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment.” Baez v. Mooney, 2021 WL 816013, at *5 (W.D. Pa. Feb. 8, 2021), report and recommendation adopted, 2021 WL 808726 (W.D. Pa. Mar. 3, 2021) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008)). The Amended Complaint does not allege any facts to support Swint's conclusory assertion that Jones, Thompson or any other Defendant prevented him from attending parole classes, that he was treated differently from any other similarly situated inmate, or that such treatment was undertaken with a discriminatory intent. Because the Amended Complaint does not support any of the elements of a Fourteenth Amendment claim against Jones, Thompson, or any other Defendant, this claim should be dismissed.
In his brief in opposition, Swint adds that Floyd also violated the equal protection clause by “mak[ing] him sit in the RHU as a disciplinary action for Swint requesting protection,” which “stripp[ed him] from his programs, parole obligations, religious services,” and “educational classes.” ECF No. 42, ¶ 4(D). Swint may not assert new claims or rely on new and inconsistent facts in his brief in opposition to refute Defendants' motion to dismiss. See e.g., Nesmith v. Beaver Cnty. Jail, 2012 WL 3245495, at *1 (W.D. Pa. Aug. 8, 2012) (citations omitted). In any event, this conclusory allegation likewise fails to support the elements of an equal protection claim.
3. The Amended Complaint fails to allege facts to support a retaliation claim against any Defendant.
Swint also appears to assert a retaliation claim against all Defendants based on certain treatment he endured after he filed this lawsuit. ECF No. 28, ¶ 6. This claim is “subject to sua sponte screening for dismissal pursuant to ... 28 U.S.C. § 1915A because [Swint] is a prisoner proceeding pro se and is seeking redress from a governmental employee or entity.” Sanchez v. Coleman, 2014 WL 7392400, at *4 (W.D. Pa. Dec. 11, 2014) (citing Stackhouse v. Crocker, 266 Fed. Appx. 189, 190 (3d Cir. 2008)). The Prison Litigation Reform Act (“PLRA”) requires a district court to assess a civil complaint in which a prisoner proceeds in forma pauperis (28 U.S.C. § 1915(e)(2)) or seeks redress against a governmental employee or entity (28 U.S.C. § 1915A). See e.g, Sanchez, 2014 WL 7392400, at *4. Under 28 U.S.C. § 1915A, the Court is required to dismiss an action that (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. Id. A frivolous complaint is one which is either based on an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v, Williams, 490 U.S. 319, 327 (1989). The determination of whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6). D'Agostino v. CECOMRDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
To state a retaliation claim, the plaintiff must allege facts to support that (1) he engaged in protected activity; (2) officials took an adverse action against the plaintiff; and (3) “a causal link” exists “between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (alteration in original)); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Filing a lawsuit constitutes protected activity for purposes of a retaliation claim. See Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997). However, the Amended Complaint does not allege that any Defendant participated in any of the acts upon which Swint bases this claim. See also ECF No. 42 (“Swint has already been and is being retaliated against by the named officials['] peers.”). Nor does the Amended Complaint state who committed the retaliatory acts, when the acts occurred, or any facts upon which to support a causal connection between the acts and the filing of this lawsuit. As such, the Amended Complaint fails to state a retaliation claim against the Defendants, and that claim also should be dismissed.
Because the acts of retaliation are alleged to have occurred after the filing of this action and to involve individuals who are not parties to this action, the inclusion of this claim in this action may be improper. Assertion of a claim based on the alleged retaliation may require Swint to separately satisfy PLRA exhaustion requirements and the filing of a separate lawsuit.
4. The facts alleged are sufficient to state an Eighth Amendment claim against Oliver, Thompson, Jones, Floyd, and Soliwoda based on deliberate indifference to Swint's safety, but they are insufficient to state such a claim against Seymour.
Swint claims that each Defendant subjected him to cruel and unusual punishment “by not protecting [him]” from other inmates' assaults and extortion. ECF No. 28, ¶ 7. The Eighth Amendment's prohibition of cruel and unusual punishment “impose[s] a duty upon prison officials to take reasonable measures ‘to protect prisoners from violence at the hands of other prisoners.'” Hamilton v Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). A viable Eighth Amendment failure to protect claim requires a plaintiff to plead facts that demonstrate: “(1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the official was deliberately indifferent to that substantial risk to [the plaintiff's] health and safety, and (3) the official's deliberate indifference caused [the plaintiff] harm.” Manuel v. Capozza, 2022 WL 4001049, at *5 (W.D. Pa. July 14, 2022), report and recommendation adopted, 2022 WL 3998446 (W.D. Pa. Sept. 1, 2022) (quoting Ramey v. Marsh, 2022 WL 363854, at *3 (M.D. Pa. Feb. 7, 2022) (citing Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020))).
Although not “‘every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for a victim's safety,' ‘[b]eing violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.'” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 345 (1981)). Thus, “[a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Id. Deliberate indifference depends upon showing that the official “knows and disregards an excessive risk to inmate health and safety; 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.” Hill v. Patrick, 2008 WL 1752692, at *2 (W.D. Pa. 2008) (quoting Beers-Captiol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)). See also Hamilton v. Reilly, 2022 WL 1227977, at *3 (E.D. Pa. Apr. 26, 2022) (quoting Bistrian, 696 F.3d at 369, 371) (A correctional officer displays “deliberate indifference to the risk of inmate-on-inmate violence if, before an attack, the official knows an inmate faces ‘an excessive risk of harm' from another prisoner but does nothing to prevent the assault.”).
An inmate may notify officials of the risk of harm, but this is not required to support liability. Actual knowledge of the risk can be inferred from circumstantial evidence of the obviousness of the risk. See Farmer, 511 U.S. at 842. Circumstantial evidence of actual knowledge of the risk includes where the “substantial risk was ‘longstanding, pervasive, well-documented, or expressly noted by prison officials in the past.'” Blackstone v. Thompson, 568 Fed.Appx. 82, 84 (3d Cir. 2014) (quoting Farmer, 511 U.S. at 842 (citations omitted)). “A pervasive risk of harm may not ordinarily be shown by pointing to a single incident or isolated incidents, but it may be established by much less than proof of a reign of violence and terror.” Riley v. Jeffs, 777 F.2d 143, 147 (3d Cir. 1985) (citation omitted). When faced with the knowledge of a substantial risk of serious harm to a prisoner, a prison official must take “reasonable measures to abate it” or his inaction will constitute deliberate indifference to that risk. Farmer, 511 U.S. at 847.
Swint alleges that Inmates In and Coleman physically assaulted him, Inmate Todd sexually assaulted him, and Inmates Coleman, Jamaica, and In extorted thousands of dollars from him and directed other inmates to abuse and extort money from him. He alleges generally that the Defendants knew that In and his associates were “carrying out the extortion and assaults on [him]” but allowed the inmates' abusive conduct to continue despite this knowledge. ECF No. 28, ¶ 3. He specifically asserts that Seymour should never have placed him in a cell with In because In's violent propensities were documented and that he complained about the inmates' conduct to Soliwoda. He also maintains that Jones, Thompson, Oliver, and Floyd investigated his claims of abuse and extortion but despite their awareness of this danger, they consistently denied his repeated pleas for protection and returned him to his old unit “to be assaulted over and over again” after his RHU placements ended. Id., ¶ 6.
Defendants argue that Swint's Eighth Amendment claim should be dismissed because the Amended Complaint fails to allege facts to support that any Defendant acted with deliberate indifference to his safety. They further argue that “[Swint] fails to allege that he suffered any actual harm when he was transferred from the RHU to general population, or that he reported any harm to” the Defendants. Whether the facts alleged support deliberate indifference must be assessed as to each Defendant rather than the Defendants as a group.
The Amended Complaint's discussion of Seymour's conduct is limited to his alleged responsibility for Swint's improper placement in a cell with In. Swint alleges that Seymour “did not perform his job correctly and do his due diligence regarding statuses and individual codes of inmates” before moving Swint to a cell with In because he “should have never been placed in a cell with a D-Code Level 4 Inmate with a[n] extensive history of violence, extortion, and drug involvement.” ECF No. 42, ¶ 3(A). Swint claims that Seymour thus violated the Eighth Amendment by “putting him in a volatile situation that caused him money, physical pain, and sexual pain” due to Seymour's failure to first “pre evaluate the move.” ECF No. 28, ¶ 7. While Seymour's alleged conduct may have constituted a violation of DOC policy, it did not rise to a constitutional violation. “The risk that an inmate with some history of violence might attack another inmate for an unknown reason ... is too speculative to give rise to an Eighth Amendment claim.” Blackstone, 568 Fed.Appx. at 84. Here, Swint does not allege that Seymour placed him with In after he had abused or extorted Swint; nor does the Amended Complaint support that Seymour should have known that In would assault Swint because of his code and level classification. Without more, the allegations against Seymour fail to demonstrate the requisite knowledge of the risk to Swint or a deliberately indifferent response to that knowledge. See e.g.,Afr. v. Dukes, 492 Fed.Appx. 251, 253 (3d Cir. 2012) (Although the Amended Complaint asserted “that Africa's cellmate was unstable and had previously attacked other inmates,” it “d[id] not allege or allow for the reasonable inference that Kerker, McKeown, Teasdale, or Noel knew of the cellmate's dangerous history, and thus fails to state an Eighth Amendment failure to protect claim against these defendants.”). As such, the Amended Complaint fails to state an Eighth Amendment claim against Seymour.
By contrast, Swint expressly avers that he told Soliwoda that In and others were assaulting and extorting him. Although Swint's allegations as to the timing and substance of his complaints to Soliwoda are vague, for purposes of the Defendants' motion, they are minimally sufficient to demonstrate his knowledge of a serious risk to Swint's safety. The Court also does not regard the absence of allegations that Swint suffered physical injuries at the hands of the other inmates to be fatal to his claim. While the absence of serious physical injury may be relevant to the issue of damages, the allegations that Swint endured physical and sexual assaults are sufficient to at this stage of the case. In addition, the Court notes that Swint's pleadings include references to physical injuries he allegedly sustained, including a “busted lip.” ECF No. 28, ¶ 4. See also ECF Nos. 1-1, p. 10 (after reporting Inmate Todd's abuse to Sgt. Jones, he “was sent to medical for treatment on a bloody lip.”).
Soliwoda's knowledge of the risk to Swint alone, however, is not sufficient to support an Eighth Amendment claim against him. To demonstrate deliberate indifference, the facts alleged must also support an inference that he failed to take “reasonable measures to abate” the risk. Farmer, 511 U.S. at 847. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Bistrian, 696 F.3d at 367. Swint's pleading is somewhat confused and contradictory as to Soliwoda's response to his safety concerns. On the one hand, he avers that “Solowada [sic] took a statement from [him]” about the inmates' abuse and extortion, and thereafter, kept him in the same cell and unit to continue being “beaten and extorted often” without instituting any protective measures. ECF No. 28, ¶ 7. On the other hand, Swint admits that Security moved him to numerous units because of his comments to Soliwoda. See id. ¶ 4. See also ECF No. 42 (re-iterating that Soliwoda moved him to another unit for protection after he gave him his statement); ECF No. 17 (Swint acknowledged at the hearing on his motion for emergency injunctive relief that Defendants moved him to the RHU and opened an investigation on virtually every occasion that he reported his safety concerns to them). It is also unclear whether Soliwoda had the authority and responsibility for determining Swint's unit placement. Despite these inconsistencies, Swint's allegations minimally support a plausible inference that Soliwoda failed to respond reasonably when he learned of the risks to Swint's safety. Swint alleges that he complained to Soliwoda about ongoing abuse, but Soliwoda either took no action or unreasonably delayed his response such that the abuse was allowed to continue. Evidence such as that adduced during the hearing on Swint's motion for injunctive relief may ultimately negate Swint's claim against Soliwoda and other Defendants, but this assessment will have to await a more developed record at the summary judgment phase of the case. Based on the standard of review applicable to motions pursuant to Rule 12(b)(6), the Court should deny Defendants' motion as to Soliwoda.
Although thin, Swint's allegations are also minimally sufficient to support an inference that Oliver, Thompson, Jones, and Floyd acted with deliberate indifference to the abuse and extortion perpetrated by the other inmates. The Amended Complaint alleges that Oliver, Thompson, Jones, and Floyd had the responsibility and authority to separate Swint from the abusive inmates and that Swint repeatedly advised them of the inmates' ongoing abuse. Such knowledge does not serve as a basis for liability so long as the prison officials “respond[] reasonably to the risk, even if the harm ultimately [i]s not averted.” Bistrian, 696 F.3d at 367. Here, Swint alleges that despite their knowledge of the serious risks to his safety posed by certain inmates in the general population, Oliver, Thompson, Jones, and Floyd placed him back in general population units with those inmates each time he was released from the RHU. He also alleges that following these placements, he endured further abuse by those inmates. As noted, the evidence adduced by the Defendants during the hearing on Swint's motion for injunctive relief suggested that they responded reasonably to Swint's safety concerns. But that hearing was not a full adjudication of the merits of Swint's claims, and the standard of review applicable to the Defendants' motion limits the record to the allegations of Swint's Amended Complaint. Because the Amended Complaint alleges facts to support the essential elements of an Eighth Amendment “failure to protect” claim against Oliver, Thompson, Jones, and Floyd, Defendants' motion to dismiss this claim should be denied.
5. Leave to Amend
The Court of Appeals for the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In this case, Swint may be able to allege additional facts sufficient to cure the deficiencies of his First and Fourteenth Amendment claims and his Eighth Amendment claim against Defendant Seymour. Accordingly, it is recommended that the Court dismiss these claims without prejudice and grant Swint leave to file a second amended complaint within twenty days of the adoption of this Report and Recommendation. If Swint fails to file a second amended complaint within this time, the Court should enter an order dismissing his First and Fourteenth Amendment claims and his Eighth Amendment claim against Defendant Seymour with prejudice.
Swint is reminded that an amended complaint must be complete in all respects and takes the place of the original complaint. As such, the second amended complaint must again identify each party and allege the “claims in short, concise, and plain statements.” Fed R. Civ. P. 8. Further, Swint must re-assert in the second amended complaint every cause of action from the complaint deemed adequately pled or dismissed without prejudice. Palakovic v. Wetzel, 854 F.3d 209, 220 (3d Cir. 2017) (“an amended pleading ... supersedes the earlier pleading and renders the original pleading a nullity”)
D. Conclusion
For the foregoing reasons, it is respectfully recommended that the Court (1) grant Defendants' motion to dismiss the Amended Complaint (ECF No. 34) as to Plaintiff s Fourteenth Amendment equal protection claim, his First Amendment retaliation claim, and his Eighth Amendment failure to protect claim against Seymour, and (2) deny the motion as to his Eighth Amendment failure to protect claim against Soliwoda, Thompson, Oliver, Jones, and Floyd. It is further recommended that Plaintiffs Eighth Amendment failure to protect claim against Seymour and Fourteenth Amendment equal protection and First Amendment retaliation claims be dismissed without prejudice and with leave to file a second amended complaint.
E. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).