Opinion
Civil Action No. 17 - 1035
02-03-2020
ARTHUR BOMAR, Plaintiff, v. JOHN E. WETZEL, et al., Defendants.
District Judge Nora Barry Fischer
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Motion to Dismiss filed by Defendants Braunlich, Robert D. Gilmore, and John E. Wetzel (ECF No. 66) be granted with respect to Defendants Gilmore and Wetzel and denied with respect to Defendant Braunlich.
II. REPORT
A. Procedural History
Plaintiff Arthur Bomar ("Plaintiff') is an incarcerated individual currently confined by the Pennsylvania Department of Corrections at the State Correctional Institution Greene ("SCI-Greene"). On July 24, 2017, in the Commonwealth Court of Pennsylvania, Plaintiff filed a document entitled Petition for Review, and it was served upon the Defendants by certified mail on or about August 1, 2017. Despite its title, the Petition for Review contained allegations of violations of federal constitutional rights, including the First, Fourth, Fifth, Sixth and Eighth Amendments. As such, pursuant to 28 U.S.C. § 1441, counsel for the Corrections Defendants removed the case to this Court on August 8, 2017. (ECF No. 1.)
Plaintiff filed an Amended Complaint on June 20, 2019. (ECF No. 64.) The Defendants named in the Amended Complaint are John E. Wetzel (Secretary, PA Department of Corrections), Robert D. Gilmore (Superintendent, SCI-Greene), Braunlich (Lieutenant, SCI-Greene), 12 John/Jane Doe corrections officers at SCI-Greene, 5 John/Jane Doe medical personnel at SCI-Greene, 7 John/Jane Doe corrections officers at SCI-Camp Hill, 1 John/Jane Doe lieutenant at SCI-Camp Hill, 1 John/Jane Doe a medical personnel at SCI-Camp Hill, and 2 John/Jane Doe corrections officers at SCI-Graterford. Plaintiff alleges that certain Defendants used excessive force against him when they extracted him from his cell by utilizing OC spray on December 19, 2016. He also alleges that all Defendants were deliberately indifferent in the nine hours that followed because they did not allow him to decontaminate himself and they denied him medical care for the physical burning he experienced on his skin and in his eyes and throat thereafter. (ECF No. 64.)
On June 27, 2019, the named Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint arguing that he has failed to state a claim against them upon which relief can be granted. (ECF No. 66.) Plaintiff filed a response in opposition to the Motion to Dismiss on July 10, 2019. (ECF No. 69.) The Motion is now ripe for review.
B. Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the
pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
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. Factual Allegations
Plaintiff alleges that while at SCI-Greene on December 14, 2016, he was informed by a sergeant and a correctional officer that he was going to be transferred to SCI-Graterford because he had an upcoming court date. Plaintiff responded that he did not have a court date and that he would not go. The following day, a lieutenant and two correctional officers attempted to escort Plaintiff to intake for his transfer to SCI-Graterford, but Plaintiff refused to go. Four days later, on December 19, 2016, Defendant Braunlich and four correctional officers appeared at Plaintiff's cell. Plaintiff alleges that without warning, Defendant Braunlich opened his cell door wicket and sprayed him with a chemical agent. Plaintiff states that he was then removed from his cell and taken to a medical room where medical personnel were waiting but did not decontaminate him. He was then taken to intake where Defendant Braunlich was waiting with the four correctional officers who were involved in his extraction along with three more correctional officers and three medical personnel. Plaintiff states that he was not allowed to take a shower, wash-up, or change clothes and that he did not receive any medical treatment.
The undersigned will refer to this "chemical agent" as OC spray.
Plaintiff was taken to SCI-Camp Hill where a lieutenant and seven correctional officers escorted him to a cell. He states that he was denied medical care by a member of the medical team and again not allowed to clean himself. Plaintiff was then taken to SCI-Graterford. He complains that he was covered in the chemicals for nine hours and denied medical treatment for the physical burning that he experienced during that time.
D. Discussion
1. Excessive Force
Plaintiff contends that Defendant Braunlich's actions on December 19, 2016, along with the four John/Jane Doe correctional officers who participated in the extraction with him, constitute excessive force in violation of the Eighth Amendment. The central inquiry in an excessive force claim is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) (quoting Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)). "When prison officials malicious and sadistically use force to cause harm, contemporary standards of decency are violated . . . whether or not significant injury is evident." Brooks, 204 F.3d at 108-09.
In determining whether a defendant has used excessive force in violation of the Eighth Amendment, courts look to several factors including: "(1) the need for the application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts to temper the severity of the forceful response." Brooks, 204 F.3d at 106 (internal quotations and citation omitted). The extent of injuries that an inmate suffers is relevant, but "does not end" this analysis. Hudson v. McMillian, 503 U.S. 1, 7 (1992). Consideration of these factors permit a court to make inferences concerning "whether the use of force could plausibly have been thought necessary" or whether the circumstances show "such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley v. Albers, 475 U.S. 312, 321 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
Defendant Braunlich argues that the force used in this case was applied in good-faith only to restore order and discipline after Plaintiff continued to refuse to submit to a lawful transport order. In essence, he maintains that Plaintiff's actions (or inactions in this case) compelled him to obtain Plaintiff's compliance through forceful means and the least amount of force was used to ensure a safe cell-extraction could be accomplished.
The Amended Complaint makes clear that Plaintiff did not intend to comply with the transfer order. He specifically informed officers this much on December 14, 2016, and he did so again the following day when officers arrived at his cell to attempt the transfer. However, it is not clear what level of force, if any, was needed in order to compel Plaintiff's compliance with the transfer order when Defendant Braunlich attempted the transfer again four days later. Plaintiff only alleges that Defendant Braunlich utilized the OC spray "without warning," but there are no allegations as to what transpired, if anything, before that occurred and it's possible to interpret Plaintiff's allegations to mean that Defendant Braunlich did not attempt to secure his compliance in any other manner before deploying the spray. If such were the case then the use of force may not have been necessary or may have been excessive under the circumstances. As such, when viewed in the light of the foregoing liberal pleading standards, the undersigned finds that the allegations in the Amended Complaint, when taken as true, state a plausible claim for relief and the Motion to Dismiss should be denied as to this claim against Defendant Braunlich.
2. Assault and Battery
Plaintiff also asserts a pendent state law claim for assault and battery against Defendant Braunlich and the four correctional officers who participated in his cell extraction. Under 1 Pa. C.S. § 2310, Pennsylvania "officials and employees acting within the scope of their duties" are immune from suit, unless one of the nine exception contained in 42 Pa. C.S. § 8522(b) applies. Because none of these nine exceptions applies to Plaintiff's assault and battery claim, the undersigned examines whether Defendant Braunlich was acting within the scope of his duties at the time he deployed the OC spray.
The nine exceptions to sovereign immunity are: (1) vehicle liability; (2) medical/professional liability; (3) care, custody, or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. C.S. § 8522.
Under Pennsylvania law, an action falls within the scope of employment if it: (1) is the kind the employee is employed to perform; (2) occurs substantially within the job's authorized time and space limits; (3) is motivated at least in part by a desire to serve the employer; and (4) if force was used by the employee against another, the use of force is not unexpected by the employer. Wesley v. Hollis, Civil Action No. 03-3130, 2007 WL 1655483, at *14 (E.D. Pa. June 6, 2007). However, where the alleged intentional tort was unprovoked, unnecessary or unjustified by security concerns or penological goals, courts have ruled that such conduct does not, as a matter of law, fall within the scope of employment, even if the employee was on duty when the incident occurred. See id. at *15 ("where the alleged intentional tort was unprovoked, unnecessary and unjustified by security concerns or penological goals, courts have ruled that such conduct does not, as a matter of law, fall within the scope of employment"); Savage v. Judge, No. 05-2551, 2007 WL 29283, at *5 (E.D. Pa. Jan. 2, 2006) (sovereign immunity denied where record failed to establish that defendant's alleged retaliatory motive "was in part a desire to serve his employer, the Department of Corrections," and noting that "although [the defendant's] employer might expect that [he] would use force during the course of his employment, it would not necessarily expect the use of excessive force 'divorced from any need of the officer to exert control over the prisoner.'"); Robus v. Pa. Dep't of Corrs., No. 04-2175, 2006 WL 2060615, at * (E.D. Pa. Jul. 20, 2006) (corrections officer's conduct fell outside scope of employment where he allegedly beat plaintiff and placed him, without justification, in restricted housing unit to settle a personal conflict).
Defendant Braunlich argues that he was acting within the scope of his employment when he utilized OC spray before extracting Plaintiff from his cell and is therefore entitled to sovereign immunity. If, however, Plaintiff's allegations are true, then it is possible that Defendant Braunlich's use of force was unwarranted and unprovoked. As such, he is not entitled to sovereign immunity at this stage of the proceedings.
3. Deliberate Indifference
a. Defendants Gilmore and Wetzel
Plaintiff alleges that the Superintendent of SCI-Greene, Defendant Gilmore, must give his permission for cell extractions and the use of OC spray on an inmate and that he is responsible for ensuring that excessive force is not used on an inmate during a cell extraction. He also alleges that Defendant Gilmore is responsible for making sure that the prisoner is decontaminated after he is sprayed with OC spray.
Plaintiff claims that Defendant Gilmore was deliberately indifferent (presumably to his safety) in that he gave permission for the cell-extraction and for the use of OC spray but failed to ensure that excessive force was not used by the individuals carrying out the extraction. He also claims that Defendant Gilmore was deliberately indifferent (presumably to his medical needs) in that he failed to ensure that he was decontaminated after he was sprayed. Defendant Gilmore argues that Plaintiff's allegations do not demonstrate his personal involvement in the alleged wrongdoing and that he is instead attempting to assert liability against him simply by virtue of his supervisory role at SCI-Greene.
It is well settled that a "defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) ("To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.") (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)). A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. These allegations "must be made with appropriate particularity." Id. See also Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Santiago v. Warminster Twp., 629 F. 3d 121, 130 (3d Cir. 2010) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)) ("Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to 'demonstrate a 'plausible nexus' or 'affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'").
Plaintiff does not allege that Defendant Gilmore participated in the cell extraction, but based on his allegation that Defendant Gilmore must approve all cell extractions and the use of OC spray, it is possible to infer that Defendant Gilmore did have actual knowledge that it was to occur. However, Plaintiff's claim is not that Defendant Gilmore's approval of the cell extraction and the use of OC spray violated his constitutional rights, but rather that Defendant Gilmore's failure to ensure his employees abided by policy or the law in performing such functions violated his rights. In other words, Plaintiff is alleging that Defendant Gilmore is responsible, or vicariously liable, whenever one of his employees does not act in accordance with the law. Indeed, this is made clear by his use of the word "responsible" when he alleges that Defendant Gilmore is responsible for making sure excessive force is not used and for making sure that a prisoner is decontaminated after he is sprayed with OC spray. However, as noted above, this is not a proper basis to establish personal liability against a defendant in a section 1983 action. Therefore, it is recommended that the Motion to Dismiss be granted with respect to Defendant Gilmore.
Additionally, for the same reasons discussed with respect to Defendant Gilmore, the Motion to Dismiss should be granted with respect to Defendant Wetzel as the Amended Complaint contains no allegations that would suggest he was personally involved in the alleged violations of Plaintiff's rights either. Plaintiff's sole allegation against Defendant Wetzel, who is the Secretary of the Pennsylvania Department of Corrections, is that he oversees and must give his permission for everything that is done to a capital case prisoner. However, this is simply an attempt to hold Defendant Wetzel responsible for the actions of others (in this case the cell extraction with use of OC spray) based on his supervisory position, which, as previously noted, is not a proper basis to establish liability for the alleged constitutional wrongdoing at issue.
Nowhere in his Amended Complaint does Plaintiff state he is a capital case prisoner, but public records reveal that he was sentenced to death on December 7, 1998. See cor.pa.gov.
b. Defendant Braunlich
Although not clear, Plaintiff seems to assert a deliberate indifference claim against Defendant Braunlich alleging that Defendant Braunlich was present with seven other unnamed corrections officers and three unnamed medical personnel at the time he was taken to intake and "not allowed to clean himself by taking a shower, or wash-up, obtain clean clothing, underwear, jumpsuit etc., and did not receive medical treatment." (ECF No. 64, p.5.)
"To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of harm." See Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.2009) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). While Plaintiff has not alleged that he suffered any lasting or continuing problems as a result of the OC spray, courts have held that the failure to decontaminate prisoners or otherwise provide medical treatment for prisoners exposed to pepper spray can support a claim for a violation of the Eighth Amendment where the "failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.2002) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (quoting Estelle, 429 U.S. at 104)).
Additionally, the Court must take into account that the law with respect to non-medical defendants like Defendant Braunlich is that they cannot be deliberately indifferent "simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor." Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). If a prisoner is under the care of medical experts . . . a non-medical prisoner official will generally be justified in believing that the prisoner is in capable hands." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (discussing Durmer, 991 F.2d at 69). "[A]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirements of deliberate indifference." Id. at 236.
Assuming their truthfulness, Plaintiff's allegations with respect to Defendant Braunlich just barely state a plausible claim for relief and it's likely that a brief period of discovery will bear out the issue of whether or not he was deliberately indifferent in the manner alleged. Therefore, it is recommended that the Motion to Dismiss be denied with respect to this claim against Defendant Braunlich.
E. Amendment
Regardless of whether the plaintiff is counseled or not, if the Court has determined that a civil rights complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6), the Court must give the plaintiff an opportunity to amend the complaint, even if not requested, unless such amendment involves bad faith, would cause undue delay or prejudice, or would be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (prisoner civil rights case). Most recently, the court of appeals reaffirmed this position in Phillips v. County of Allegheny, where it ruled 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, the undersigned finds that allowing for amendment by Plaintiff would be futile with respect to Defendants Wetzel and Gilmore. It is clear that the only basis upon which Plaintiff seeks to hold them liable is predicated on respondeat superior, and in the absence of any personal involvement on the part of these high level officials, Plaintiff fails to state any claim against them for which relief may be granted. Furthermore, Plaintiff has already been provided with three opportunities to amend his complaint, the last time specifically so that he could plead personal involvement on the part of the DOC Defendants (including Wetzel and Gilmore). See ECF Nos. 38 & 42. Not only would it be futile to allow him to do so again, but it would also unfairly prejudice the Defendants who have been litigating this case for over two years. Therefore, the undersigned does not recommend that the Court allow Plaintiff another opportunity to amend.
The Court has also had to twice enter orders to show cause for Plaintiff's failure to prosecute because of his failure to file an amended complaint when he was given an opportunity to do so. See ECF Nos. 45 & 63. --------
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Motion to Dismiss filed by Defendants Braunlich, Robert D. Gilmore, and John E. Wetzel (ECF No. 66) be granted with respect to Defendants Gilmore and Wetzel and denied with respect to Defendant Braunlich.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.
Dated: February 3, 2020.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Arthur Bomar
DK-1677
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Counsel of record
(Via CM/ECF electronic mail)