Opinion
CIVIL 1:20-cv-00933
02-25-2022
ANDREW ALLAM, SR., Plaintiff, v. SUPERINTENDENT MCGINLEY, et al., Defendants.
(Judge Brann)
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
The plaintiff, Andrew Allam, Sr. (“Allam”), is a prisoner at the State Correctional Institution Coal Township (“SCI Coal Twp.”). Allam has filed an amended complaint under 42 U.S.C. § 1983 alleging that the staff at SCI Coal Twp. is failing to protect him in violation of the Eighth Amendment. As relief, Allam seeks prospective injunctive relief. Currently pending is Defendants' motion to dismiss Allam's amended complaint. For the reasons that follow, we recommend granting the motion to dismiss in part and denying the motion to dismiss in part. 1
II. Background.
Allam commenced this action pro se on June 9, 2020, by filing a complaint. Doc. 1. We screened Allam's complaint, and on January 26, 2021, we granted Allam leave to file an amended complaint. Doc. 13. On February 22, 2021, Allam filed his amended complaint. Doc. 15. In his amended complaint, Allam names Superintendent McGinley (“McGinley”), SCI-Coal Township Security Office (“Security Office”), Lieutenant Drucis (“Drucis”), Sergeant Cohoon (“Cohoon”), Sergeant Gordner (“Gordner”), Lieutenant Neitz (“Neitz”), and John Wetzel (“Wetzel”), Secretary of the Pennsylvania Department of Corrections, as Defendants (collectively “Defendants”). Id.
When this complaint was filed, Wetzel was the Secretary of the Pennsylvania Department of Corrections. George Little (“Little”) is now the Acting Secretary of the Pennsylvania Department of Corrections. Accordingly, we recommend that Little be substituted for Wetzel as a defendant in this action. See Fed. R. Civ. P. 25(d) (providing that when a public officer sued in his or her official capacity ceases to hold office while the action is pending, “[t]he officer's successor is automatically substituted as a party.”).
Allam alleges that his custody and confinement at SCI Coal Twp. is not safe. On September 6, 2019, Allam claims he was moved to a new cell with a new cellmate. Id. at 3. On September 9, 2019, Allam alleges that he returned from lunch and found two inmates locked inside his cell. Id. According to Allam, while the two other inmates were inside of his cell, dozens of inmates began yelling at 2 Allam's cellmate, saying that, “we will cut you and your celly for snitching.” Id. Allam claims that he and his cellmate were locked in “Counselor Tasker's” office while security cleared their cell of the two inmates. Id. at 4. Per Allam, Counselor Tasker told Allam that the two inmates were likely trying to rob Allam because it was commissary day and that Allam would be moved because of the incident. Id. at 4.
Allam alleges that on December 19, 2019, he requested protective custody from a correctional officer because his cellmate had “made living difficult.” Id. Allam was then informed that there was no protective custody at SCI Coal Twp. Id. On or about December 29, 2019, Allam alleges that he met with Drucis to discuss the complaint Allam filed with the “U.S. District Court.” Id. at 12. Allam alleges that Drucis said that, per McGinley, Allam would “be put on J-B unit and then step down to be placed back on the SNU unit.” Id. Allam claims, on or about December 31, 2019, he was moved to a new cell and was immediately threatened by “gang members” who were present during the September 9, 2019 incident. Id. at 5. Allam alleges that he spoke to a correctional officer regarding protective custody, but that the officer told Allam that there was no protective custody available at SCI Coal Twp. and that Allam would have to refuse to lock in if he wanted to be sent to the Restrictive Housing Unit (“RHU”). Id. Allam claims that shortly after this, he was called a snitch and a rapist and was told to “get off the 3 block before you get stabbed.” Id. Allam claims he informed a correctional officer about the threat, but nothing was done. Id. That same night, Allam claims that Cohoon stopped Allam and said, “I told all of them to leave you alone.” Id. Allam alleges that he told Cohoon about the threats and was taken to the RHU again. Id.
According to Allam, on or about January 14, 2020, he was moved to a different cell. Id. at 6. Allam claims that he was again threatened to be stabbed by “inmate Burbon” who shared the cell with Allam. Id. As a result, Allam was moved the following day to a new cell. Allam claims his new cellmate filed a Prison Rape Elimination Act (“PREA”) complaint against him, resulting in Allam being taken to the RHU. Id. Per Allam, on or about March 28, 2020, he was moved to a new cell where he began to hear “other Spanish inmates stating there's the snitch who told on our boys on E-B.” Id.
Allam claims that he told a correctional officer about the threats and that the officer told Allam, “if they find out why your [sic] in jail they will hurt you.” Id. Around this time, Allam alleges that he contacted Neitz regarding a cell move, to which Neitz allegedly said, “I move him [Allam] if there is a safety concern.” Id. Per Allam, his cellmate started making life difficult, and so, Allam requested to speak to Gordner. Id. Gordner allegedly told Allam that there is no protective custody and that he would have to refuse lock in to be placed in the RHU. Id. at 6-7. Allam claims he did as Gordner instructed and was subsequently taken to the 4 RHU and received “a class 1 write up and was sanctioned 30 days in RHU.” Id. at 7.
According to Allam, on or around June 3, 2020, he complained to Gordner and Neitz regarding threats from inmates involved in the September 9, 2019 incident. Id. at 9-10. Allam claims that Neitz responded by contacting “the DA Counselor Mr. Hennings and the Security Office.” Id. at 10. Allam alleges that he was informed that there is no protective custody at SCI Coal Twp. and that he would have to refuse to lock in. Id. Allam claims he refused to lock in, and he received a misconduct and 15 days in the RHU. Id.
Allam claims that on or about June 9, 2020, he contacted Drucis regarding threats he had received by gang members. Id. at 7. Per Allam, Drucis told him, “you put yourself in danger by the crime you committed. Deal with your problems. I'm sure your victim was scared every time you did what you did. Deal with it!” Id. at 12. According to Allam, he was once again moved to a different cell on August 11, 2020. Id. Allam claims that he has continuously contacted staff and security regarding his safety concerns but that “staff has failed to ensure my safety.” Id. Allam also claims that McGinley is aware of the September 9, 2019 incident. Id. Per Allam, McGinley allegedly told Counselor Tasker that “if Allam refuses to lock in because of his safety, he is not to be written up by staff.” Id. at 5 14. Allam claims that he has received misconducts despite this assurance for failing to lock in. Id.
Additionally, Allam claims that Wetzel breached his duty to protect Allam for several reasons. Id. at 16. Allam claims that Wetzel “failed to supervise and control his officials at SCI Coal Twp. during the pandemic.” Id. at 16-17. Allam alleges that there have been numerous COVID-19 infections throughout the entire prison. Id. Also, Allam alleges that he has not had adequate access to the law library, proper time outside of his cell, and quality food. Id. at 16-17. Allam also claims that the psychiatric staff have violated a duty of confidentiality and that he has been denied access to psychiatric help. Id. at 18-19.
For relief, Allam requests various forms of injunctive relief. Specifically, Allam requests that Wetzel enact a protective custody policy. Id. at 20. Allam also requests that SCI Coal Twp. be investigated for various issues. Id. Additionally, Allam requests that his misconducts be removed from his file and that he be moved to a new unit or be transferred back to SCI Camp Hill. Currently pending is the Defendants' motion to dismiss the complaint, doc. 27, which has been fully briefed (doc. 28). For the reasons discussed below, we recommend that the motion to dismiss be granted in part and denied in part. 6
III. Pleading and Motion-to-Dismiss Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required 7 than “labels, ” “conclusions, ” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: 8
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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
IV. Discussion.
A. Injunctive Relief and Proper Official-Capacity Defendants.
Defendants seem to miss entirely that Allam seeks only prospective injunctive relief in this matter. For example, Defendants assert that Allam's amended complaint should be dismissed on grounds of qualified immunity. Regarding this defense, the Supreme Court has held, “government officials performing discretionary functions, generally are shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). “A qualified immunity defense applies in respect to damages actions, but not to injunctive relief." Morse v. Frederick, 551 U.S. 393, 432, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (Breyer, J., concurring) (citations omitted); see also Spencer v. Kelchner, No. 3-cv- 9 11-2268, 2012 WL 12862340, n.4 (M.D. Pa. 2012) (citing Morse, noting that the defense of qualified immunity does not protect defendants from injunctive relief.) Here, Allam does not request damages. Instead, he requests various forms of injunctive relief, such as an investigation into SCI Coal Twp. and a transfer to the SNU unit or SCI Camp Hill. Accordingly, we recommend that Allam's amended complaint should not be dismissed on the basis of qualified immunity.
Defendants further fail to recognize that in seeking prospective injunctive relief, Allam is suing them in their official capacities. See Hammonds v. Aigeldinger, No. 3:20-cv-657, 2021 WL 3122633, at *4 (M.D. Pa. July 16, 2021) (“Indeed, the distinction between an official-capacity suit and a personal-capacity suit turns not on the capacity in which the state officer acted, but on the capacity in which the officer was sued.”). Here, Allam fails to articulate whether he is suing the defendants in their official or individual capacities. Nevertheless, since he is only seeking injunctive relief, case law compels us to construe Allam's claims as official-capacity claims. See Day v. New Jersey Dep't of Corr., No. 21-cv-09986, 2022 WL 170855, at *5 (D.N.J. Jan. 19, 2022) (“Courts in the Third Circuit look to the complaint and the course of proceedings to determine whether [an] official is being sued in their individual capacity, official capacity, or both.”) (citing Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990) (internal quotations omitted)). And “official-capacity suits generally represent only another way of pleading an action 10 against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (internal citations omitted).
When seeking a prospective injunction, a plaintiff is required to name an official or officials who can appropriately respond to injunctive relief. See Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016) (citing Hartman v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)); see also Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 70, 77 (3d Cir. 2011) (“Plaintiffs failed to allege a plausible claim to relief on the basis of the supervisors' ‘knowledge and acquiescence' or any other similar theory of liability ... [but] are still free to pursue their official[-]capacity claims for injunctive relief against any further intimidation or unlawful entry into their home.”). Indeed, a proper defendant is one that is “responsible for ensuring that any injunctive relief is carried out.” Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (citing Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989)). “A plaintiff seeking injunctive relief against the State is not required to allege a named official's personal involvement in the acts or omissions constituting the alleged constitutional violation.” Hartmann, 707 F.3d at 1127 (citations omitted). Rather, “a plaintiff need only identify the law or policy challenged as a constitutional violation and name the official within the entity who can appropriately respond to injunctive relief.” Id. (citations omitted). 11
In his amended complaint, Allam repeatedly alleges that SCI Coal Twp.'s policy of not having a formal protective custody policy has placed him at a substantial risk of harm in violation of the Eighth Amendment. See doc. 15 at 5, 6, 10, 15, 20. Allam further alleges that Drucis, Cohoon, Gordner, Neitz, and the Security Office all violated their duty to protect him. For relief, Allam seeks the enactment of a protective custody policy, that SCI Coal Twp. be investigated for various issues, that his misconducts be removed from his file, and that he be moved to a new unit or be transferred back to SCI Camp Hill. Here, since defendants fail to brief this issue, and given that as alleged, Drucis, Cohoon, Gordner, and Neitz are corrections officers at SCI Coal Twp., we find that such defendants do not have the authority to provide Allam with the relief he seeks. Accordingly, we recommend that Drucis, Cohoon, Gordner, and Neitz be 12 dismissed from this case as they are not proper official-capacity defendants for Allam's Eighth Amendment claim.
SCI Coal Twp. is a state prison, and the Security Office is an office within the prison. A prison is not an entity subject to suit under 42 U.S.C. § 1983. See Crawford v. McMillan, 660 Fed. App'x. 113, 116 (3d Cir. 2016) (finding that § 1983 claims against a prison must be dismissed because the prison is not an entity subject to suit under 42 U.S.C. § 1983). Moreover, “because SCI-Coal Twp. is an agency of the Commonwealth of Pennsylvania, this Court's jurisdiction over this prison Defendant is barred based on the Eleventh Amendment.” Robinson v. Varano, No. 3:10-cv-2131, 2012 WL 2564820, at *5 (M.D. Pa. Feb. 9, 2012). The Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity, see 42 P.C.S.A.' 8521(b). Accordingly, Allam's claims against the Security Office are barred by the Eleventh Amendment, and we recommend the Security Office be dismissed as a defendant.
In contrast, Little (the Acting Secretary of the Pennsylvania DOC) and McGinley (the Superintendent of SCI Coal Twp.), by virtue of their positions, do potentially possess the authority to provide Allam with the relief he seeks. See Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014) (finding that a corrections department secretary and warden were proper defendants because they possessed the authority to provide the inmate with the relief he sought). Thus, we do not recommend that Little or McGinley be dismissed.
B. Eighth Amendment Failure to Protect Claim.
Under the Eighth Amendment, prison officials “must ‘take reasonable measures to guarantee the safety of . . . inmates.'” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). “Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.'” Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Thus, prisoners have “a clearly established constitutional right to have prison officials protect [them] from inmate violence.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (footnote omitted), abrogated on other grounds by Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018). 13
But “not . . . every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. Rather, in addition to causation, “[f]or an inmate to prevail on an Eighth Amendment failure-to-protect claim, two requirements must be met.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997). “First, the prisoner must demonstrate ‘that he is incarcerated under conditions posing a substantial risk of serious harm.'” Id. (quoting Farmer, 511 U.S. at 834). “This element is satisfied when the alleged ‘punishment' is ‘objectively sufficiently serious.'” Id. (quoting Farmer, 511 U.S. at 834). “Second, the prison officials involved must have a sufficiently culpable state of mind.” Id. They must have been deliberately indifferent to a substantial risk to the inmate's health and safety. Bistrian, 696 F.3d at 367. “Specifically, the inmate must show that the official ‘knows of and disregards an excessive risk to inmate health or 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 [s]he must also draw the inference.” Hamilton, 117 F.3d at 746 (quoting Farmer, 511 U.S. at 837).
We begin our discussion by analyzing whether Allam has alleged a substantial risk of harm. In his amended complaint, Allam alleges that his custody and confinement at SCI Coal Twp. is not safe. Specifically, Allam claims that he is unsafe because he has been labeled a snitch, other inmates know he is a child sex 14 offender, and he has been threatened various times by other inmates, including an incident where inmates broke into his cell. In the aggregate, these claims establish a substantial risk of harm.
Regarding Allam's label as a snitch, Allam claims that other inmates have identified him as a snitch and threatened him because of it. See Doc. 15 at 3, 5, 6, 8. Allam alleges that, on or about September 9, 2019, two inmates broke into his cell and locked themselves inside. Id. at 3-4. According to Allam, dozens of inmates shouted threats at Allam and his cellmate, claiming that they would harm Allam and his cellmate “for snitching.” Id. at 3. Allam also claims that, on or about December 31, 2019, an inmate called Allam a snitch and “was told to get off the block before you get stabbed.” Id. at 5. Allam further alleges that, on or about March 28, 2020, he heard other inmates say about him, “there's the snitch who told on our boys on E-B.” Id. at 6. Construing these facts as true, which we are required to do at this stage, Allam has alleged facts that show other inmates consider him a snitch and have threatened him because of it.
“Courts have found that when an inmate is labeled as a snitch, it may endanger and pose a substantial risk to that inmate's safety.” Brown v. Shrader, No. 14-CV-1085, 2017 WL 1022577, at *9 (W.D. Pa. Mar. 16, 2017). Specifically, “[a]n inmate who is considered a snitch is in danger of being assaulted by other inmates.” Irving v. Dormire, 519 F.3d 441, 451 (8th Cir. 2008). 15 Indeed, this court has held, “[l]abeling an inmate as a snitch may give rise to an Eighth Amendment violation if the prison official acted with deliberate indifference to a substantial risk of serious harm to the inmate.” Tabb v. Hannah, No. 1:10-CV-1122, 2012 WL 3113856, at *6 (M.D. Pa. July 30, 2012) (citing Benefield v. McDowall, 241 F.3d 1267, 1270 (10th Cir. 2001)).
In addition to being labeled a snitch, Allam alleges facts that other inmates know about his child sex offender status and have threatened him because of it. See Doc. 15 at 5, 6, 8, 10, 12. Similar to being labeled a snitch, labeling an inmate as a sex offender can endanger an inmate's safety. See Hutchinson v. Smeal, No. 1:11-CV-320, 2012 WL 1038657, at *2 (M.D. Pa. Mar. 27, 2012) (finding that inmates who are labeled as sex offenders are highly stigmatized and endangered in a prison setting); see Moore v. Wetzel, No. 14-CV-1709, 2015 WL 7163114, at *3 (W.D. Pa. Nov. 13, 2015) (finding that a substantial risk of serious harm is created for an inmate who is labeled a child molester). Because Allam alleges sufficient facts that he was labeled a snitch and sex offender, and he received threats because of these labels, Allam has satisfied the substantial risk of harm prong of his Eighth Amendment failure to protect claim.
We further find that Allam alleges enough to survive a motion to dismiss that the staff at SCI Coal Twp. knowingly and unreasonably disregarded a substantial risk of harm. Allam alleges that McGinley and members of the SCI 16 Coal Twp. staff were aware of the September 9, 2019 incident where inmates broke into his cell. Doc. 15 at 10, 14, 15. Allam claims that he had written to McGinley on several occasions regarding his safety concerns. Id. Allam further alleges that, on December 31, 2019, McGinley told Counselor Tasker that “if Allam refused to lock in because of his safety, he is not to be wrote [sic] up by staff.” Id. Allam claims that he refused to lock in because of safety concerns, but that he was not placed in an SNU unit, and instead, was put on the westside of the prison on the EB unit, where he feels unsafe. Id. According to Allam, McGinley's number one priority is to ensure inmate safety, but he failed to do that by sending Allam back to the EB unit, as Allam believes other inmates have labeled him a snitch and want to stab him. Id. at 15.
Regarding Allam's written grievances to McGinley, courts within the Third Circuit have held that administrative defendants, such as a Superintendent, can be put on notice of a substantial risk of harm when an inmate has conveyed concerns via written grievances to the Defendant(s). See Lewis v. Vinton, No. 07-CV-3663, 2008 WL 2966465, at *4 (D.N.J. July 31, 2008) (finding that the inmate Plaintiff's written grievances to the prison administrative Defendants provided notice of the substantial risk of harm). According to Allam, McGinley failed to meaningfully address his written concerns as he was routinely told that no protective custody exists, and he was moved to another cell where he was threatened by other 17 inmates. The Third Circuit has found that “prison officials are presented with an arduous task when asked to discern legitimate from illegitimate requests for protective custody.” Young v. Quinlan, 960 F.2d 351, 363 n.23 (3d Cir. 1992), superseded by statute on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000). However, “prisoners may feign their fear of physical harm simply to manipulate a transfer. Therefore, when a prisoner requests a transfer because he fears for his life, prison officials are required to determine the credibility of his fear.” Id. (citations omitted). “Prison officials, therefore, are not required to provide protective custody to every inmate who asserts he was assaulted or threatened. Nonetheless, prison officials should, at a minimum, investigate each allegation of violence or threat of violence.” Id. (citations omitted).
Regarding the SCI Coal Twp. staff, Allam alleges that he informed various correctional officers regarding threats by gang members, but they failed to provide any assistance. Doc. 15 at 10, 12. Allam also claims that the staff is aware that he is in danger specifically because of his sex offender status. Id. at 12. Additionally, Allam alleges that the staff has ignored or denied all of his written requests to security. Id. at 14.
Based on Allam's allegations, McGinley and the staff at SCI Coal Twp. seemingly understand the severity of Allam's concerns, see Id. at 8, 10, 12, 14, but 18 have not attempted to place him in some form of protective custody. Moreover, Little and McGinley are now on notice of Allam's substantial risk of harm by virtue of this amended complaint. And, the issue of whether defendants acted reasonably in responding to the risk is usually a factual determination. See Travillion v. Wetzel, 765 Fed.Appx. 785 at 794 (3d Cir. 2019) (concluding that the defendants were aware of the risks the plaintiff faced and whether the defendants acted reasonably in response to that risk are factual questions). Thus, when viewing the facts in the light most favorable to Allam, we conclude that he has sufficiently alleged that McGinley and the staff at SCI Coal Twp. knew that his safety was at risk. And because Allam alleges that McGinley and the staff at SCI Coal Twp. knew of the risk of harm, and that he remained vulnerable to such a risk, we conclude that he has alleged enough to claim that McGinley and the staff at SCI Coal Twp. knowingly and unreasonably disregarded a substantial risk of harm. Accordingly, we do not recommend that Allam's Eighth Amendment claim be dismissed at this stage of the litigation.
Defendants also argue that Allam fails to allege that he has ever been assaulted and that Allam is routinely moved to different cells as a means of avoiding assault. Defendants contend that the fact that no physical harm has occurred is proof that the prison system has worked properly in protecting Allam. But, “a subjective approach to deliberate indifference does not require a prisoner 19 seeking a remedy for unsafe conditions to await a tragic event such as an actual assault before obtaining relief.” Farmer, 511 U.S. at 845 (citations omitted); see also Banks v. County of Allegheny, No. 05-cv-781, 2007 WL 2905726, at *7 (W.D. Pa. 2007) (“The rule is . . . that a prisoner need not suffer physical injury in order to make out a conditions of confinement claim or a deliberate indifference claim under the Eighth Amendment.”). The fact that Allam fails to allege that physical harm has occurred, therefore, does not preclude him from seeking injunctive relief to prevent such an assault from occurring in the future.
Moreover, while Allam's amended complaint states that he has been routinely moved to different cells, he claims that he is only moved to cells that leave him vulnerable to attacks. Further, Allam seeks injunctive relief to prevent future harm from occurring. What is most relevant here is whether Allam's current cell placement places him at a substantial risk of harm and whether the staff at SCI Coal Twp. was aware of that risk and was deliberately indifferent to it. Thus, we recommend that Defendants' motion to dismiss be denied on this basis.
V. Recommendations.
Based on the foregoing, we recommend denying the motion (doc. 27) to dismiss Allam's amended complaint in part as it relates to Little and McGinley. We 20 recommend granting the motion to dismiss as it relates to Cohoon, Gordner, Wetzel, Neitz, and the Security Office.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.21