Opinion
2:20-CV-01203-JFC
02-14-2022
DONTE BREWER, Plaintiff, v. K. SHEA, CAPTAIN; B. KOVAK, LIEUTENANT; SHAFFER, CORRECTOIN OFFICER; AND OWENS, CORRECTIONS OFFICER, SUED IN THEIR INDIVIDUAL CAPACITIES; Defendants,
DONTE BREWER Justin A. Gayle
DONTE BREWER
Justin A. Gayle
JOY FLOWERS CONTI, SENIOR DISTRICT JUDGE
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
This prisoner civil rights action was initiated in this court on August 13, 2020, by pro se Plaintiff Donte Brewer, who was then incarcerated at SCI-Houtzdale. His Second Amended Complaint (“SAC”) asserts claims for deliberate indifference pursuant to the Eighth Amendment through 42 U.S.C. § 1983, against a number of corrections officers and their supervisors at SCI-Houtzdale: K. Shea, B. Kovak, Shaffer, and Owens. See SAC (ECF No. 38). This court has subject matter jurisdiction over the controversy pursuant to 28 U.S.C. § 1331. Id. at ¶ 2.
Presently before the court is a motion by Kovak and Shea to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF No. 39). For the reasons that follow, it is respectfully recommended that Defendants' motion be denied.
II. Report
A. Factual and Procedural History
Plaintiff's claims arise out of an incident where he was attacked while he was incarcerated on J-Block at SCI-Houtzdale on January 31, 2020. According to Plaintiff, he “exited J-block and began walking to breakfast.” SAC (ECF No. 38) at ¶ 10. “Plaintiff observed Defendant Shaffer standing by himself as he walked pas[t] seconds before the attack occurred.” Id. at ¶ 11. “Without provocation[, P]laintiff was stabbed in the back of the neck fifteen or twenty feet away from [D]efendant [S]haffer.” Id. at ¶ 12. Then, “Plaintiff turned around while backing up screaming in a[n] attempt to scare [his attackers], [and] in addition, urge[d] [D]efendant[s] [S]haffer and [O]wens to respond.” Id. at ¶ 13. “To [P]laintiff's disbelief, [D]efendants Shaffer and Owens did not respond, ” so Plaintiff began yelling for help. Id. at ¶ 16. Plaintiff was eventually able to outrun both attackers and sought medical help. Plaintiff was transferred to UPMC Altoona by ambulance.
According to Plaintiff, Defendant Kovak “told [P]laintiff that someone paid a contract to have [P]laintiff killed minutes after the attack.” Id. at ¶ 26. Plaintiff further alleges that Defendants Shea and Kovak “fabricated documents” in connection with this incident, and further asserts that these defendants have a “system” where “they fabricate documents to conceal the true nature of the attacks and discipline.” Id. at ¶ 43. Plaintiff believes that this reveals that Defendants Shea and Kovak “do not care about prisoner-on-prisoner attacks.” Id. at ¶ 44. Plaintiff goes on to cite a series of examples which he claims to show Defendants act with deliberate indifference to the safety of prisoners.
Plaintiff filed the instant action on August 13, 2020, and filed his first amended complaint (“FAC”) on February 10, 2021. (ECF Nos. 1, 20). On February 24, 2021, Defendants filed a motion to dismiss the FAC along with a brief in support thereof, in which they argued the FAC should be dismissed in its entirety for failure to state a claim. (ECF No. 21). On May17, 2021, this Court filed a Report and Recommendation recommending that the motion to dismiss be granted in part and denied in part. (ECF No. 28). Specifically, this Court recommended that Defendants' motion to dismiss be granted as to Defendants Doe, Smith, Salamon, Shea, Kovak, and Mills, and these Defendants be dismissed from this case with prejudice. This Court also recommended that Defendants' motion to dismiss be denied with respect to Defendants Owens and Shaffer. Id.
Plaintiff named four additional defendants in these complaints and set forth essentially the same facts and claims in both. (ECF Nos. 1, 20).
Plaintiff filed objections to this Report and Recommendation, and on July 22, 2021, District Judge Joy Flowers Conti filed a Memorandum Opinion adopting the Report and Recommendation with some modifications. (ECF No. 31). Specifically, Judge Conti concluded that the claims against Defendants Smith, Salamon, Shea, Kovak, and Mills Plaintiff may not be futile, and Plaintiff was permitted to file an SAC with respect to those Defendants. Id.
On August 26, 2021, Plaintiff filed the SAC naming four Defendants: Shea, Kovak, Shaffer, and Owens. (ECF No. 38). Defendants Shaffer and Owens filed an answer. (ECF No. 41). Defendants Kovak and Shea filed a motion to dismiss and brief in support thereof. (ECF Nos. 39, 40). Plaintiff filed a response, and this matter is now ripe for disposition. (ECF Nos. 43, 44).
B. Standard of Review
To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “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)). The reviewing court must “determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where the factual allegations of the complaint conceivably fail to raise, directly or inferentially, the material elements necessary to obtain relief under a legal theory of recovery. Twombly, 550 U.S. at 561. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court may take into consideration “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” as well as “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Furthermore, a pro se pleading is held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). As such, a pro se complaint pursuant to 42 U.S.C. § 1983 must be construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so “as to do substantial justice.” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted). In a section 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). 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, 2102 (10th Cir. 1996).
In addition, “when a complaint is subject to dismissal under Rule 12(b)(6), the court should permit a curative amendment.” Thompson v. Police Dep't of Philadelphia, 2011 WL 4835831, at *2 (E.D. Pa. Oct. 12, 2011). “However, we need not provide a plaintiff with leave to amend if amendment would be inequitable or futile.” Id. “Where a claim is frivolous, amendment is necessarily futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks an arguable basis in either law or in fact.” Id. (internal citation and quotation marks omitted).
C. Discussion
Defendants Shea and Kovak contend they should be dismissed from this case because Plaintiff has not alleged facts adequate to support that Shea and Kovak, both supervisors, were personally involved in the harm asserted by Plaintiff. Defs.' Br. (ECF No. 40) at 3. It is Plaintiff's position that Shea and Kovak “had a habit of letting prisoners assault other prisoners” and knew Plaintiff's attacker “was a danger in the general population before [P]laintiff's attack.” Pl.'s Br. (ECF No. 44) at 5.
“A plaintiff raising a claim under Section 1983 must allege a violation of a right secured by the Constitution or the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Wilkins v. Berks Cty. Jail Sys., 2017 WL 2591943, at *4 (E.D. Pa. 2017). To establish personal liability against a defendant in a § 1983 action, the defendant must have personal involvement in the alleged wrongs. That is, the state actor must have played an affirmative part in the alleged misconduct to be subject to liability. Rizzo v. Goode, 423 U.S. 362 (1976); Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). There are “two general ways” in which a supervisor-defendant may be liable: (1) where the supervisor established a policy, custom, or practice that caused the harm; or (2) where the supervisor personally participated in the constitutional violation. Id. The United States Court of Appeals for the Third Circuit explained these two general types of supervisory liability as follows:
First, liability may attach if they, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she 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. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).Barkes v. First Correctional Med., Inc., 766 F.3d 307, 316-19 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015). At this stage of litigation, the court must determine whether a plaintiff has pleaded adequate facts to establish a cause of action.
In the SAC, Plaintiff asserts several policies, customs, and practices of Defendants that he claims directly caused the harm to him. Plaintiff contends that Shea and Kovak regularly sent fabricated reports regarding incidents of prisoner-on-prisoner violence, which misled prison officials into not taking additional, adequate security measures. SAC (ECF No. 38) at ¶¶ 32-34. In addition, Plaintiff points out that these Defendants knew that Plaintiff's attacker had stabbed at least two other prisoners prior to stabbing Plaintiff, yet they failed to take appropriate action, which was a customary practice for them. Id. at ¶¶ 35-45. Plaintiff further alleges that it was customary for Defendants fail to impose adequate discipline when they did learn of a violent incident. Id. at ¶¶ 46-51. In addition, Plaintiff asserts that after multiple attacks did occur, Defendants would place a guard in the area “until the attacks go to zero then the guard would disappear.” Id. at ¶ 56. Plaintiff also avers that after attacks on I-Block, Defendants placed an additional camera there, but did not do the same for J-Block, where his attack occurred. Id. at ¶ 67. Plaintiff recognizes that “[m]ost of those allegations do not apply to [P]laintiff directly, but they show [Defendants'] deliberate indifference to a violent atmosphere … which caused [P]laintiff's attack.” Id. at ¶ 70.
To set forth a claim for supervisory liability under § 1983, an inmate must
(1) identify the specific supervisory practice or procedure that the supervisor failed to employ, and show that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure.Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir.2001). Put another way, the inmate must identify the supervisor's specific acts or omissions demonstrating the supervisor's deliberate indifference to the inmate's risk of injury and must establish a link between the supervisor, the act, and the injury. Id.
Chavarriaga, 806 F.3d at 227 (some citations omitted). With respect to a claim for failure to protect from violence, this Court considers the following.
Prison officials have “a duty to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). To state a claim for damages against a prison official for failure to protect from inmate violence, an inmate must plead facts that show: “(1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to his health and safety, and (3) the official's deliberate indifference caused him harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (citations omitted). Deliberate indifference is a subjective standard. Id. The prison official “must actually have known or been aware of the excessive risk to inmate safety.” Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). “A plaintiff can, however, prove an official's actual knowledge of substantial risk to his safety ‘in the usual ways, including inference from circumstantial evidence.'” Bistrian, 696 F.3d at 367 (quoting Farmer, 511 U.S. at 842). In fact, courts regularly find that a defendant's knowledge of a serious risk to an inmate's safety may be established
by circumstantial evidence.Wilkins, 2017 WL 2591943, at *4.
Viewing the facts asserted by Plaintiff in the SAC as true, Plaintiff has asserted that Defendants have a practice of failing to investigate adequately and impose proper discipline related to prior assaults, which led to Plaintiff's injury. Specifically, it could reasonably be inferred that Plaintiff's attacker had previously assaulted other inmates, and the actions taken by Defendants subsequent to those attacks were inadequate to prevent future attacks. Such a showing could indeed amount to the inference of deliberate indifference on the part of Defendants that led to Plaintiff's attacker being in position to attack another inmate, namely Plaintiff.
Moreover, Plaintiff points to a statement made by Defendant Kovak that where he informed Plaintif “that someone paid a contract to have [P]laintiff killed minutes after the attack.” SAC (ECF No. 38) at ¶ 26. Thus, at this juncture, Plaintiff has established that a causal link could exist between Defendants' practice of not adequately addressing inmate-on-inmate violence and a the harm to Plaintiff. Based on the foregoing, this Court respectfully recommends that Defendants' motion to dismiss be denied.
D. Conclusion
For all the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss be denied.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by March 3, 2022, and Defendants are allowed until February 28, 2022, to file objections. Failure to timely file objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their objections and any response to the initial objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.