Opinion
Civil Action 2: 22-cv-1328
11-15-2023
DEVIN BRAMHALL, Plaintiff, v. CHARLES DELSANDRO, LOGUE, POSKA, PLETCHER, ALBRIGHT, UNIDENTIFIED CORRECTIONAL OFFICER #1, UNIDENTIFIED CORRECTIONAL OFFICER #2, HALKIAS, ERIC ARMEL, MARK CAPOZZA, T. FISHER, ELIZABTH RUDZIENSKI, R. HAWKINBERRY, J. DONGILLI, D. SCHERER, KERI MOORE, DORIS VARNER, and UNIDENTIFIED CORRECTIONAL OFFICER #3, Defendants.
DEVIN BRAMHALL Dalia Aboraya Michael P. Gaetani Pennsylvania Office of Attorney General (via ECF electronic notification)
DEVIN BRAMHALL
Dalia Aboraya
Michael P. Gaetani
Pennsylvania Office of Attorney General
(via ECF electronic notification)
Robert J. Colville, United States District Judge.
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, United States Magistrate Judge.
I. Recommendation
The motion to dismiss filed by the Corrections Defendants has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72(b), and Local Rules 72.1.3 and 72.13. It is respectfully recommended that the motion be granted in part and denied in part.
II. Report
A. Introduction
Plaintiff, Devin Bramhall, is a state prisoner committed to the custody of the Pennsylvania Department of Corrections and at all times relevant to this lawsuit was incarcerated at SCI-Fayette.He commenced this action on September 16, 2022, by the filing of a Motion for Leave to Proceed in forma pauperis (“IFP Moton”) (ECF No. 1). Attached to the IFP motion was a Complaint for Violation of Civil Rights (Prisoner), which was lodged pending disposition of the IFP motion. The IFP motion was granted on October 4, 2022 (ECF No. 7) and the Complaint filed on October 6, 2022 (ECF No. 8). The Complaint remains Plaintiff's operative pleading.
In January 2023, Plaintiff filed a Notice of Change of Address indicating he had been transferred to SCI-Albion. (ECF No. 12).
Plaintiff has brought this case against fifteen named DOC officials and employees and three additional defendants identified as John Doe correctional officers. All eighteen defendants were employed at SCI-Fayette during the relevant time (collectively referred to as the “Corrections Defendants”). Defendants Logue, Poska, Armel, Capozza, Fisher, Rudzienski, Hawkinberry, Dongilli, Moore, and Varner are named in both in their official and individual capacities. Defendants Delasandro, Pletcher, Albright, Halkias, Scherer, and the three John Doe defendants are named only in their individual capacities.
As detailed below, Plaintiff is pursuing his claims under 42 U.S.C. § 1983 for violations of his constitutional rights under the First, Eighth, and Fourteenth Amendments to the U.S. Constitution. As relief, he seeks injunctive relief requesting that certain DOC policies be changed, as well as compensatory and punitive damages.
The Corrections Defendants filed the instant motion to dismiss for failure to state a claim (ECF No. 24), to which Plaintiff filed a response in opposition (ECF No. 39). The matter is ripe for consideration.
B. Jurisdiction
The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, which allows a district court to exercise original jurisdiction in civil cases arising under the Constitution, laws, or treaties of the United States.
C. Factual Background
The following allegations of the Complaint are accepted as true for purposes of this motion. The events giving rise to this lawsuit seem to have originated with events occurring on December 3, 2020, at approximately 6:50 pm. According to the Complaint, Plaintiff was attempting to enter his cell when C/O Charles Delsandro put his arm across Plaintiff's chest telling him “don't go in there.” Complaint, at p. 15 (ECF No. 8). Sergeant Logan then approached the cell and directed Plaintiff to face the wall with his hands behind his back. Plaintiff claims Defendants Delsandro and Logan both entered his cell and both began to taunt, threaten, and verbally harass him, telling him that he “should feel unsafe.” Id. According to the Complaint, this conduct continued for several minutes. Plaintiff noticed that when the corrections officers exited his cell, they both had a can of Oleosresin Capsicum spray (“OC spray”) in their hands. Id. Defendant Delsandro approached Plaintiff and “deployed a burst of OC spray into Plaintiff's right eye,” causing temporary blindness, severe burning sensations, and difficulty breathing. Id. Plaintiff avers that to justify utilizing the OC spray, Defendant Delsandro cited Plaintiff with a “false” misconduct alleging that Plaintiff had refused to allow officers to place him in handcuffs.
As Plaintiff is a prisoner appearing pro se, the Court will treat the additional factual allegations contained in his response as though they were included in the complaint. Baker v. Younkin, 529 Fed.Appx. 114, 115 n.2 (3d Cir. 2013) (citing Lewis v. Att'y Gen. of U.S., 878 F.2d 714, 722 (3d Cir. 1989)).
Approximately ten minutes later, Plaintiff was escorted from his cellblock while handcuffed behind his back to the Restricted Housing Unit (“RHU”) by Defendants C/O Poska, C/O Pletcher, C/O Albright, and three unidentified corrections officers. Id. at p. 16. Plaintiff was still having difficulty seeing due to the OC spray in his eyes. During this escort, Plaintiff claims he was forced in a bent over position, with one “officer twisting the handcuffs, while another officer pulled on the back of Plaintiff's tee shirt collar, choking him with it.” Id. Another officer instructed other officers to “wait until we get him off camera.” Id. Plaintiff claims that while off-camera, he was shoved from behind causing him to fall, that a corrections officer grabbed his legs and pinned them to the floor while the remaining corrections officers began punching, kicking and stomping on his face, head, chest, and stomach. Id. Plaintiff alleges that while he was being assaulted, the Defendants accused him of hitting a guard and indicated that the assault was in retaliation for his hitting a guard.
As the beating slowed, Plaintiff claims that his pants were pulled down and an unknown officer touched his buttocks with a pole-like object attempting to penetrate him with it. Id. Plaintiff began to squirm to prevent penetration and an officer punched him in the nose, telling him to “stop squirming” and he was knocked unconscious. Id. Plaintiff was then dragged to another room where he was thrown onto a bed and one officer began to slam his head against the wall several times. He claims to have suffered a concussion, multiple bruises, abrasions, and contusions to his face, head, chest, and stomach, as well as a bloody nose and his left eye swelled completely shut, for which he did not receive any medical treatment nor did he receive decontamination for the OC spray. Plaintiff asserts that the officers began recording once a “spit hood” was placed over his face which prevented the camera from seeing him and his injuries. The escort to RHU then continued. Id. at pp. 16-17.
On December 5, 2020, Plaintiff was escorted in handcuffs to the RHU property inventory room where Defendant C/O Halkias had laid out Plaintiff's personal property. Id. at pp. 17-18. According to Plaintiff, Defendant Halkias admitted that he had thrown out about a majority of Plaintiff's property. Id. at p. 18. Plaintiff contends that Defendant Halkias did not document what items were confiscated and/or disposed of as required by DOC policy and Plaintiff was not afforded an opportunity to contest the confiscation as required to satisfy his right to due process. Id.
Plaintiff avers that when he told Defendant Halkias that much of his property was missing, Defendant Halkias approached him and indicated that if he chose not to sign the property inventory receipt that he would “just repeat what happened to him,” referencing the prior incident and claim that he would simply allege that Plaintiff had attempted to “slip the cuffs” to justify the assault. Id. at p. 18. Plaintiff claims to have been deprived of his property valued in excess of $131.00, as well as legal correspondence, discovery materials in a pending criminal matter, and religious materials. Id.
According to Plaintiff, Defendant Lieutenant Dongilli instructed him not to submit a grievance about his missing/ destroyed property until he had an opportunity to address it and promised resolution. Id. Plaintiff eventually submitted an inmate grievance after no action had been taken by Lt. Dongilli. The grievance was denied due to being submitted as untimely. Id. Plaintiff contends the delay in filing the grievance was due to Lt. Dongilli advising him not to file a grievance and to Lt. Dongilli's inaction in investigating the situation. Id.
On December 7, 2020, Plaintiff made official reports via the DOC Inmate Grievance Policy, DC-ADM 804, about the physical and sexual abuse he was subjected to on December 3, 2020. Id. at p. 17. Three days later, on December 10, 2020, he made an official report about being subjected to excessive force. Id. On March 3, 2021, Defendant Lieutenant Fisher, who had been assigned to investigate Plaintiff's reports, concluded the investigation. Lt. Fisher found that Plaintiff had fabricated the reports and stated that the video evidence which he had reviewed supported his findings. A few days after the conclusion of the investigation, Plaintiff was issued a misconduct for “making false reports.” Plaintiff alleges that Lt. Fischer falsified both his investigation findings and the misconduct report. Id.
Defendant Elizabeth Rudzienski was the hearing examiner at Plaintiff's misconduct hearing. According to Plaintiff, Hearing Examiner Rudzienski refused to review any evidence or conduct an independent investigation or satisfy due process during his misconduct hearing. Id. Plaintiff was found guilty of the misconduct and given 30 days disciplinary confinement. He contends this was a “retaliatory sanction.” Id.
Also in March of 2021, Plaintiff submitted a request for information pursuant to the Pennsylvania DOC's Right to Know Law (“RTKL”) pertaining to the incidents he had reported. Id. Plaintiff claims that the DOC's office sent its response which included a portion of the required material and the reasons for the delay, but Defendant C/O D. Scherer, who dispersed the mail to the RHU prisoners, purposely delivered Plaintiff's mail to the wrong prisoner, with instructions for that prisoner to harass and threaten Plaintiff in an attempt to intimidate him from pursuing legal action against any individuals employed at SCI-Fayette. Id. at p. 19. Defendant Scherer eventually brought the RTKL package to Plaintiff. When Plaintiff told Defendant Scherer that several essential pages were missing, Defendant Scherer told him it was not his doing and walked away without resolving the issue. Id.
Plaintiff filed an Inmate Grievance form about the mail incident. He alleges this caused Defendant Dongilli, along with another officer, to approach his cell and told him that if he refused to withdraw the grievance and “stop being a dickhead,” Defendant Dongilli would cause bodily harm. Id. Plaintiff claims that because he did not withdraw the grievance, Defendant Dongilli falsified his investigation and his response to Plaintiff's grievance. Id. Plaintiff contends Defendant Dongilli was attempting to cover up Defendant Scherer's actions and also interfere with legal action through intimidation. Id.
Plaintiff claims that Facility Superintendents Mark Capozza and Eric Armel, Chief Grievance Officer Doris Varner, and Assistant Chief Grievance Officer Keri Moore were made aware of each of these incidents and failed to “act in correcting and/or preventing the physical and attempted sexual assault to which Plaintiff was subjected and, instead, attempted to cover up the occurrence thereof.” Id.
D. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1983). In order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 678-79). To determine whether a complaint survives a motion to dismiss, a court identifies “the elements a plaintiff must plead to state a claim for relief,” disregards the allegations “that are no more than conclusions and thus not entitled to the assumption of truth,” and determines whether the remaining factual allegations “plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Under Rule 12(b)(6), the court must accept all well pleaded allegations as true and construe all reasonable inferences in favor of the nonmoving party. Doe v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). Pro se pleadings, “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by attorneys.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
The United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
E. Discussion
The Corrections Defendants have moved to dismiss the Complaint contending that it fails to state a claim because (i) Eleventh Amendment immunity bars any claims brought against Defendants Logue, Armel, Capozza, Fisher, Rudzienski, Hawkinberry, Dongilli, Moore, and Varner in their official capacities; (ii) the facts alleged do not state a cause of action for violations of the Eighth Amendment; and (iii) the facts alleged do not support the personal involvement by any defendant. These arguments will be addressed in order.
1. Eleventh Amendment Immunity
The Corrections Defendants contend that dismissal is warranted because “Eleventh Amendment immunity bars any claim against Defendants Logue, Armel, Capozza, Fisher, Rudzienski, Hawkinberry, Dongilli, Moore, and Varner in their official capacities.”Br. at 8. (ECF No. 25). In response, Plaintiff does not dispute that the Eleventh Amendment proscribes actions for monetary damages in the federal courts against states, their agencies, and state officials in their official capacities. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) (state agencies); Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official capacity). Plaintiff argues, however, that Eleventh Amendment immunity does not bar his official capacity claims because he also is seeking injunctive relief, “specifically changes to applicable Department of Corrections policies which would serve to prevent the reoccurrence of similar incidents.” Resp. at p. 4 (ECF No. 39).
The Complaint reflects that Defendants Delasandro and Poska also have been sued in their individual and official capacities. See Complaint, I(B)(1) and (3). (ECF No. 8). The Corrections Defendants, however, have not moved to dismiss the official capacity claims against these two individuals.
To the extent Plaintiff seeks monetary damages against these Corrections Defendants in their official capacity, such claims are barred by Eleventh Amendment immunity. However, to the extent Plaintiff seeks injunctive relief against these Corrections Defendants in their official capacities, they would not enjoy Eleventh Amendment immunity. According to the Complaint, Plaintiff is seeking injunctive relief only on two claims: (i) Claim 1 in which Defendants Delasandro and Logue are named and (ii) Claim 4 in which Defendants Halkias and Dongilli are named. See Complaint, at pp. 21 - 23. Thus, the motion to dismiss the official claims against Corrections Defendants Logue and Dongelli will be denied. The motion will be granted as to Corrections Defendants Fischer (Claim 3), Rudzieriski (Claim 3), and Capozza, Armel, Moore, and Varner (Claim 6) as the Complaint does not reflect injunctive relief is sought in the claims against these defendants.
2. Complaint Fails to State a Claim for Violation of the Eighth Amendment
Plaintiff argues his constitutional rights under the Eighth Amendment were violated by various Corrections Defendants. In the most general sense, a prison official violates the Eighth Amendment when these two elements are established: (1) the inmate alleges an objectively serious deprivation by a prison official of food, clothing, shelter, medical care, or safety; and (2) the prison official acted with a sufficiently culpable state of mind to deprive the inmate of his right to food, clothing, shelter, medical care, or safety. Farmer v. Brennan, 511 U.S. 825, 832, (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). The Eighth Amendment prohibits the infliction of “cruel and unusual punishments” on prisoners. U.S. Const. amend. VIII.
The Corrections Defendants' argument appears only to be directed to the claims raised in Claim 2 of the Complaint in which Plaintiff asserts Defendants Poska, Pletcher, Albright, and three unidentified Corrections Officers used excessive force and subjected him to physical and sexual assault and battery during Plaintiff's escort from his cellblock to the RHU. The Corrections Defendants argue:
Plaintiff states in his response that he also has raised an Eighth Amendment violation in Claim 1 in which he contends that Defendants Logue and Delsandro used excessive force in the use of OC spray without penological justification and that he has raised an Eighth Amendment failure to act or intervene in Count 6 against Defendants Capozza, Armel, Moore, and Varner. Resp. at pp. 5 and 14. (ECF No. 39).
In his Complaint, Plaintiff states that he was handcuffed by Defendants Poska, Pletcher, and Albright and three unidentified Correctional Officers. Plaintiff only specifies that Defendants Poska, Pletcher, and Albright escorted him from cellblock Hotel-Alpha to the RHU, while he was blinded from the OC spray. Plaintiff proceeds to detail how he was physically and sexually assaulted, but the assault occurred by unidentified officers. Plaintiff does not allege anywhere in his Complaint that the physical or sexual assault that occurred was caused by Defendants Poska, Pletcher, and Albright. Defendants only role, according to Plaintiff's Complaint, was that they escorted him while he was handcuffed from the cellblock Hotel-Alpha to the RHU.Defs' Br. at p. 12. (ECF No. 25). Plaintiff responds by stating that in the Complaint he,
specifically pleads . . . that all six Defendants escorted him to the RHU and, upon arriving the[y] pinned him to the floor while the remaining officers began punching, kicking and stomping Plaintiff's face, head, chest and stomach. No reasonable reading of that assertion implies that Poska, Pletcher or Albright were not participants in the assault and battery. . .Pl's Resp. at p. 10 (emphasis in original).
The undersigned finds that Plaintiff has presented allegations that, if true, demonstrate a plausible right to relief under the Eighth Amendment against Defendants Poska, Pletcher, and Albright and the three Doe defendants, all of whom are identified as having escorted Plaintiff from his cellblock to the RHU. Accepting Plaintiff's allegations as true, he posed no security threat to the Corrections Defendants before or during his escort and was nevertheless severely beaten by numerous DOC officers, while he was handcuffed. He also alleges that during this incident he was sexually assaulted.
The Complaint's allegations therefore provide a plausible basis for inferring that Plaintiff was subjected to unwarranted excessive force and was sexually assaulted by Defendants Poska, Pletcher, and Albright and three unidentified Corrections Officers. The undersigned recognizes that discovery may well reveal that the alleged conduct of these Corrections Defendants does not give rise to an Eighth Amendment claim, but at this stage of the litigation, the allegations of the Complaint must be accepted as true and all reasonable inferences must be drawn in Plaintiff's favor. Accordingly, it is recommended that the Corrections Defendants' motion to dismiss Claim 2 be denied.
3. No Personal Involvement
To prevail on a claim pursuant to § 1983, a plaintiff must prove that a defendant, acting under color of state law, deprived the plaintiff of a right secured by the Constitution or laws of the United States. It is axiomatic that liability under § 1983 requires a defendant's “personal involvement” in the deprivation of a constitutional right. See Gould v. Wetzel, 547 Fed.Appx. 129 (3d Cir. 2013). This means that each defendant must have played an “affirmative part” in the complained-of misconduct. In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
The Corrections Defendants next argue that the dismissal of Corrections Defendants Logue, Poska, Pletcher, Albright, Halkias, Mark Capozza, Eric Armel, Keri Moore, Doris Varner, T. Fisher, Elizabeth Rudzienski, R. Hawkinberry, J. Dongilli, and D. Scherer is warranted because Plaintiff has failed to plead any facts to establish their personal involvement in the circumstances giving rise to Plaintiff's claims. Plaintiff responds that he has sufficiently pleaded personal involvement by all Defendants in the respective claims against them. The undersigned will proceed to address each argument.
The Corrections Defendants do not argue that Plaintiff has failed to plead any facts to establish the personal involvement of C/O Delasandro.
a. Randall Logue
The Corrections Defendant argue that Defendant Logue is “not alleged to have had any role in the circumstances giving rise to Plaintiff's claims” and, as a Sergeant, personal liability cannot attach based solely on his supervisory title. Plaintiff responds that “[a]lthough Logue did not himself spray Plaintiff with OC spray,” he pointed a canister spray of OC spray at Plaintiff and he knew there was no lawful justification for Delsandro spraying Plaintiff with the OC spray, but “did not stop or prevent Delsandro from spraying Plaintiff.” Resp. at pp. 12-13.
The undersigned finds that Claim 1 of the Complaint contains specific allegations that Defendant Logue played a role in depriving Plaintiff of his constitutional rights. It is, therefore, recommended that the Corrections Defendants' request to dismiss Defendant Logue for lack of personal involvement be denied.
b. Joshua Poska, William Pletcher, and John Albright
In Claim 2 of the Complaint, Plaintiff asserts Defendants Poska, Pletcher and Albright were part of the escort team that escorted him from his cellblock to the RHU and that during the escort he was subjected to excessive force and physical and sexual assault. The Corrections Defendant argue that the “Plaintiff does not plead with specificity the nature of Defendants Poska, Pletcher and Albright's role in the circumstances giving rise to Plaintiff's claims.” Br. at 15, at ¶ 2. Plaintiff responds that the Complaint specifically identifies Poska, Pletcher, and Albright as personally involved in the incidents Plaintiff experienced while being escorted from his cellblock to the RHU.
The undersigned finds that Claim 2 of the Complaint contains specific allegations that Defendants Poska, Pletcher, and Albright played a role in depriving Plaintiff of his constitutional rights. The details of the nature, if any, of Defendants Poska, Pletcher, and Albright involvement in the violation of Plaintiff's rights during the escort can be sorted out during discovery. It is, therefore, recommended that the Corrections Defendants' request to dismiss Defendants Poska, Pletcher, and Albright for lack of personal involvement be denied.
c. Nicholas Halkias
In Claim 4 of the Complaint, Plaintiff asserts his procedural due process rights were violated when Defendant Halkias deprived him of his personal property and that Defendant Halkias threatened him if he did not sign the property inventory receipt. The Corrections Defendants argue that the Complaint does not contain sufficient allegations to establish Defendant Halkias's personal involvement because “Plaintiff does not plead what items were confiscated . . . and does not plead with specifically what [Halkias] meant” when he allegedly threatened Plaintiff. Br. at p. 16, at ¶ 3. Plaintiff responds that the specificity of what items were taken is not relevant to Halkias's personal involvement. Resp. at p. 13.
The undersigned agrees with Plaintiff's argument. The specificity of the items and the intent of Defendant Halkias's statement are evidentiary issues, which can be flushed out in discovery. The undersigned finds that Claim 4 of the Complaint contains specific allegations that Defendant Halkias played a role in depriving Plaintiff of his constitutional rights. It is, therefore, recommended that the Corrections Defendants' request to dismiss Defendants Halkias for lack of personal involvement be denied.
d. Eric Armel, Mark Capozza, Keri Moore, and Doris Varner
When the defendant is a supervising prison official, liability must still be based on “personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998). Although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Nor can Section 1983 liability be predicated solely on the theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1976). See also Monell v. Department of Soc. Services, 436 U.S. 658, (1978) (superiors of line officers who act in violation of constitutional rights may not be held liable on a theory of vicarious liability merely because the superior had a right to control the line officer's actions); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-95 (3d Cir. 1997) (holding that § 1983 plaintiff is required to show that supervisor personally participated in violating her rights, that he directed others to violate her rights, or that he had knowledge of and acquiesced in his subordinates' violations). Rather, a supervisor-defendant may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm; or (2) participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
Moreover, it is “well established that the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite for personal involvement.”).
Here, a review of Plaintiff's allegations indicates that he is attempting to establish liability against Defendants Armel, Capozza, Moore, and Varner, either on the basis of their respective supervisory capacities within SCI-Fayette or based upon their role in denying Plaintiff's grievances. Plaintiff argues that these Corrections Defendants “personally acted in furtherance of the unlawful acts detailed in the complaint where they were lawfully obligated to remedy and prevent such actions.” Resp. at p. 15.
According to the Complaint, Eric Armel and Mark Capozza are the Facility Superintendents at SCI-Fayette; Keri Moore is the Assistant Chief Grievance Coordinator for DOC, and Doris Varner is the Chief Grievance Coordinator for DOC. Complaint (ECF No. 8).
As described above, this type of averment is insufficient to establish personal involvement in the deprivation of a constitutional right. See, e.g., Mincy, 508 Fed.Appx. at 104 (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”); Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15, 2018) (allegation that supervisory defendant was “made aware of several issues of the plaintiff's and . . . failed to help him” is insufficient to state a claim for relief).
Therefore, it is recommended that all claims against Corrections Defendants Armel, Capozza, Moore, and Varner be dismissed as Plaintiff has failed to plead any facts to establish that these Corrections Defendants had personal involvement in the deprivation of a constitutional right. Further, it is recommended that leave to amend be denied as futile.
e. T. Fisher and Elizabeth Rudzienski
In Claim 3 of the Complaint, Plaintiff alleges that Defendant Fisher fabricated the results of his investigation relating to Plaintiff's grievances in violation of his due process rights and issued a retaliatory misconduct. As for Defendant Rudzienski, Plaintiff alleges that she violated Plaintiff's due process rights during his misconduct hearing and issued a retaliatory sanction. The Corrections Defendants argue that “Plaintiff does not plead with specificity any sufficient facts that Defendants were personally involved in Plaintiff's alleged claims.” Br. at 17. Plaintiff responds that the actions of both Defendant Fisher and Defendant Rudzienski were retaliatory in nature and that Defendant Fisher violated due process requirements during his grievance investigation and Defendant Rudzienski violated due process requirements during the misconduct hearing as she was required to provide an “impartial disciplinary decision making” and she refused to review or consider his evidence during the misconduct hearing.
Discovery may well reveal that the alleged conduct of these Corrections Defendants does not give rise to a constitutional violation. However, the undersigned finds that Claim 3 of the Complaint contains specific allegations that Defendant Fisher and Defendant Rudzienski each played a role in depriving Plaintiff of his constitutional rights. It is, therefore, recommended that the Corrections Defendants' request to dismiss Defendants Fisher and Rudzienski for lack of personal involvement be denied.
f. Robert Hawkinberry
The Corrections Defendants argue that while Defendant Hawkinberry is named in the caption of the Complaint, not a single factual allegation in the Complaint is made against him and, thus, he is entitled to entry of dismissal. Plaintiff, in response, acknowledges that Defendant Robert Hawkinberry was mistakenly listed as a defendant in the caption and does not object to the dismissal of Defendant Hawkinberry from this lawsuit. See Defs' Br. at p. 17 (ECF No. 25); P's Resp. at p. 18 (ECF No. 39). Accordingly, the undersigned recommends that Defendant Hawkinberry is entitled to entry of dismissal and should be terminated as a defendant in this case.
g. Jason Dongilli
In Claim 4 of the Complaint, Plaintiff alleges that Defendant Dongilli failed to act when informed that Defendant Scherer had deprived Plaintiff of his property and that Defendant Dongilli instructed him not to file a grievance, promising resolution of the situation, which prevented Plaintiff from filing a timely grievance. In Claim 5, Plaintiff alleges that Defendant Dongilli, in retaliation for Plaintiff filing a grievance against Defendant Scherer regarding the mishandling of his mail, made threats to inflict bodily harm on Plaintiff and then proceeded to falsify his investigation into the incident.
The Corrections Defendants argue that “Plaintiff did not allege or claim that he suffered bodily harm” and that “Plaintiff does not name the inmate that was interviewed, the contents of their interview, facts to support he did not conduct a cell search and how the investigation was not thorough.” Br. at 18. Plaintiff responds that the personal involvement of Defendant Dongilli is clear from the factual allegations of the Complaint. Pl's Resp. at 20.
The undersigned finds Claims 4 and 5 contain specific allegations that Defendant Dongilli played a role in depriving Plaintiff of his constitutional rights. The details of the nature of these allegations can be flushed out during discovery. It is, therefore, recommended that the Corrections Defendants' request to dismiss Defendant Dongilli for lack of personal involvement be denied.
h. Daniel Scherer
In Claim 5 of the Complaint, Plaintiff alleges that Defendant Scherer with retaliatory intent gave Plaintiff's mail to another inmate with instructions to harass and threaten Plaintiff from pursuing legal actions against individuals at SCI-Fayette. Additionally, according to the Complaint, Defendant Scherer's actions deprived Plaintiff of his right to access the courts. The Corrections Defendants argue that the “Plaintiff does not state how Defendant D. Scherer had any involvement in his allegations and does not state with specificity who Defendant S. Scherer instructed or what was said to threaten or intimidate Plaintiff.” Br. at 18. Plaintiff responds that Defendant Scherer's personal involvement is clearly pleaded in the complaint.
The undersigned finds that Claim 5 contains specific allegations that Defendant Scherer played a role in depriving Plaintiff of his constitutional rights. The details of the nature of these allegations can be flushed out during discovery. It is, therefore, recommended that the Corrections Defendants' request to dismiss Defendant Scherer for lack of personal involvement be denied.
III. Conclusion
For the reasons stated above, it is recommended that the Motion to Dismiss be granted in part and denied in part. Specifically, it is recommended that the motion be granted as follows and leave to amend be denied as futile:
(1) All official capacity claims against Corrections Defendants Fischer (Claim 3), Rudzieriski (Claim 3), and Capozza, Armel, Moore, and Varner (Claim 6) be dismissed; and
(2) Defendants Hawkinberry, Armel, Capozza, Moore, and Varner be dismissed for lack of personal involvement.
In all other respects, it is recommended that the motion be denied.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by December 4, 2023, and the Corrections Defendants, because they are electronically registered parties, must file objections, if any, by November 30, 2023. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).