Opinion
2:20-CV-01203-CRE
05-17-2021
DONTE BREWER, Plaintiff, v. BARRY SMITH, SUPRTNTENDANT AT HOUTZDALE; B. J. SALAMON, DEPUTY AT HOUTZDALE; K. SHEA, MAJOR AT HOUTZDALE; B. KOVAK, SECUIRTYLT. AT HOUTZDALE; -. MILLS, SERGEANT AT HOUTZDALE; -. SHAFFER, AT HOUTZDALE; -. OWENS, CORRECTIONS OFFICER AT HOUTZDALE; AND JOHN DOE, CORRECTIONS OFFICER AT HOUTZDALE; Defendants,
DONTE BREWER PROSE (VIA U.S. FIRST CLASS MAIL) JUSTIN A. GAYLE OFFICE OF THE ATTORNEY GENERAL (VIA ECF ELECTRONIC NOTIFICATION)
DONTE BREWER PROSE (VIA U.S. FIRST CLASS MAIL)
JUSTIN A. GAYLE OFFICE OF THE ATTORNEY GENERAL (VIA ECF ELECTRONIC NOTIFICATION)
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, against the following Defendants: Barry Smith, superintendent of SCI-Houtzdale; as well as a number of corrections officers and their supervisors at SCI-Houtzdale, Salamon, K. Shea, B. Kovak, Mills, Shaffer, Owens, and John Doe. See Compl. (ECF No. 1). In his first amended complaint ("FAC") (ECF No. 20), Plaintiff asserts a cause of action against defendants in their individual capacities pursuant to 42 U.S.C. § 1983, and Eighth Amendment to the United States Constitution. FAC (ECF No. 20) at ¶¶ 66-69. 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 all named Defendants to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF No. 21). For the reasons that follow, it is respectfully recommended that Defendants' motion be granted in part and denied in part.
Defendant Doe has not been identified, and therefore has not been served and is not participating in the instant motion to dismiss. Nevertheless, as discussed infra, the Court will evaluate the claims against him.
II. Report
A. Factual and Procedural History
Plaintiffs 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." FAC (ECF No. 20) at ¶ 27. "Plaintiff observed Defendant Shaffer standing by himself as he walked pas[t] seconds before the attack occurred." Id. at ¶ 28. "Without provocation[, P]laintiff was stabbed in the back of the neck fifteen or twenty feet away from [D]efendant [S]haffer." Id. at ¶ 29. 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 ¶ 30. "To [P]laintiff s disbelief, [D]efendants Shaffer and Owens did not respond," so Plaintiff began yelling for help. Id. at ¶ 32. 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 someone payed [sic] a contract to have [P]laintiff killed." Id. at ¶ 38.
According to Plaintiff, his attackers were "Leon Mills" and "Vick," who were housed on I-Block on the "A" side. Defendants Mills and Doe are the officers responsible for letting individuals in and out of I-Block on the A side. FAC (ECF No. 20) at ¶ 15. According to Plaintiff, Defendants Mills and Doe let the attackers out of I-Block at a time they were not supposed to do so. See Id. at ¶¶ 21-25.
Plaintiff filed the instant action on August 13, 2020, and filed his first amended complaint 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 argue the FAC should be dismissed in its entirety for failure to state a claim. (ECF Nos. 21, 22). Plaintiff filed a "Motion in Opposition" and brief in support thereof. (ECF Nos. 26, 27). Defendants have not filed a reply. The matter is now ripe for consideration.
In Plaintiffs original complaint, he set forth essentially the same facts and claims that he later set forth in the FAC. (ECF Nos. 1, 20). Defendants filed a motion to dismiss the original complaint (ECF No. 14), and Plaintiff filed a motion to amend his complaint to correct the deficiencies in his complaint. (ECF No. 17). This Court dismissed the motion to dismiss as moot and permitted Plaintiff to file the FAC. (ECF No. 19).
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 plaintiffs 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
i. Framework of an Eighth Amendment Deliberate Indifference Claim
"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).
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.Id.
ii. Defendants Shaffer and Owens
Defendants Shaffer and Owens contend they should be dismissed from this case because "there are no factual averments supporting a conclusion that these defendants in fact recognized that Plaintiff was being attacked and still ignored it." Defs.' Br. (ECF No. 22) at 8. However, in the FAC, Plaintiff alleges that both Owens and Shaffer were standing within 15 to 20 feet of the attack and did nothing to either stop it from occurring or help Plaintiff afterwards. See FAC (ECF No. 20) at ¶¶ 29-33. At this stage of proceedings, these allegations are adequate to demonstrate that Defendants Owens and Shaffer could possibly have intervened and their failure to do so rendered them deliberately indifferent to Plaintiffs safety. See Knox v. Doe, 487 Fed.Appx. 725, 727 (3d Cir. 2012) ("[A] corrections officer's failure to intervene in a beating can be the basis of liability for an Eighth Amendment violation under § 1983 if the corrections officer had a reasonable opportunity to intervene and simply refused to do so. However, an officer is only liable if there is a realistic and reasonable opportunity to intervene.") (internal citation and quotation marks omitted). Accordingly, this Court respectfully recommends the motion to dismiss be denied as to Defendants Owens and Shaffer.
in. Defendants Mills and Doe
Defendant Mills contends that "Plaintiff fails to state an Eighth Amendment claim against" him because he could not have perceived a risk. Defs.' Br. (ECF No. 22) at 9. In the FAC, Plaintiff alleges that Defendants Mills and Doe "either unlocked both secure doors or let [Plaintiffs attackers] roam around the block in contravention of [DOC] policies." FAC (ECF No. 20) at ¶ 17. According to Plaintiff, Mills and Doe permitted the attackers to exit the block at a time when they were not supposed to do so, and this action directly led to Plaintiff s being attacked.
The allegations against Defendants Doe and Mills are essentially the same; thus, this Court will evaluate them together.
Even if the facts alleged in the FAC are true, they do not demonstrate the Defendants Mills and Doe acted in a deliberately indifferent manner in violation of Plaintiff s rights under the Eighth Amendment. "Deliberate indifference requires a state of mind more blameworthy than negligence." Knox, 487 Fed.Appx. at 728 n. 1 (internal quotation marks omitted). Even if Defendants permitted the attackers out of or into an area at the wrong time, there are no allegations that Defendants knew or should have known that the attackers were going to go to J-Block to attack Plaintiff. "The facts, as alleged, fail to support a claim that the prison employees were aware of and disregarded any specific threat of harm prior to the attack." Knox, 487 Fed.Appx. at 727. Furthermore, Plaintiff has already had the opportunity to amend the complaint to correct this defect, and therefore this Court recommends that Plaintiff not be permitted leave to amend. Thus, this Court respectfully recommends that Defendant Mills' motion to dismiss be granted, and he be dismissed from this case with prejudice. In addition, this Court respectfully recommends that Defendant Doe be dismissed from this case with prejudice.
iv. Defendants Smith, Salomon, Shea, and Kovak
Finally, Defendants Smith, Salamon, Shea, and Kovak contend they should be dismissed from this case because "Plaintiff does not allege adequate personal involvement on the part of these Defendants to state a valid Eighth Amend[ment] claim against them." Defs.' Br. (ECF No. 22) at 4. It is Plaintiffs position that the risk was so obvious that these individuals were aware of the risk and acted deliberately indifferent in violation of the Eighth Amendment. Pl's Br. (ECF No. 27) at 11.
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).
According to Plaintiff, Defendants Smith, Salamon, Shea, and Kovak, all of whom are supervisors, failed to ensure Plaintiffs safety. Specifically, Plaintiff contends that Shea and Kovak "did not order regular or investigative cell searches of [the attacker], despite his gang affiliation and documented prison history." FAC (ECF No. 20) at ¶ 42. Plaintiff avers that multiple prisoners attacked another prisoner in the same area. Id. at ¶ 44. It is Plaintiffs position that prisoners are regularly permitted to breach security protocols, which leads to regular attacks on prisoners. Plaintiff contends that Shea and Kovak "analyze and investigate" reports of these attacks and then make recommendations to Salamon for further investigation. Id. at ¶ 52. Salamon then reports findings to Smith. Id. at ¶ 56.
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. 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 Del 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 plaintiffs 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)). "Failure to" claims-failure to train, failure to discipline, or, as in the case here, failure to supervise- are generally considered a subcategory of policy or practice liability.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. Here, the FAC is devoid of any reference to any policy, practice, or custom that directly caused the harm suffered by Plaintiff. The FAC asserts general allegations that these Defendants failed to order "periodic cell searches on [one of the attackers] despite his documented behavior problems." FAC (ECF No. 20) at ¶ 66. However, Plaintiff does not set forth how those alleged behavior problems related to his attack; rather Plaintiff makes a general allegation that the attacker had "a well-documented record of his gang affiliation, mental and behavior problems." Id. at ¶ 41. Based on the foregoing, this Court concludes that even at this stage of proceedings, more specificity is necessary to plausibly state that a constitutional violation occurred because of Defendants' inactions.
Plaintiff sets forth one specific allegation against Defendant Kovak. Specifically, Plaintiff avers that Kovak "told [P]laintiff someone payed a contract to have [P]laintiff killed." FAC (ECF No. 20) at ¶ 38. However, Plaintiff does not state when Kovak told him this information or aver that Kovak knew or should have known Plaintiff would be in danger from his attackers. ---------
Moreover, Plaintiffs claims that Defendants failed in their supervisory duties "by not implementing adequate surveillance and staff on southwalk in known violent areas to prevent or abate [P]laintiff s attack," is belied by other allegations in the FAC. FAC (ECF No. 20) at ¶ 66. The FAC specifically avers that Corrections Officers Shaffer and Owens observed the attack when it occurred and failed to intervene. Id. at ¶ 68. Thus, any claim that there was inadequate staffing in that area cannot stand.
Accordingly, the Court recommends that Plaintiff has failed to state an Eighth Amendment violation against Defendants Smith, Salamon, Shea, and Kovak based upon their failure to supervise. Moreover, Plaintiff has already had an opportunity to amend the complaint to correct this defect. Based on the foregoing, this Court recommends that Defendants Smith, Salamon, Shea and Kovak be dismissed from the case with prejudice.
D. Conclusion
For all the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss be granted as to Defendants Smith, Salamon, Shea, Kovak, and Mills and these Defendants be dismissed from this case with prejudice. It is also respectfully recommended that Defendants' motion to dismiss be denied with respect to Defendants Owens and Shaffer. In addition, it is respectfully recommended that Defendant Doe be dismissed with prejudice.
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 June 3, 2021, and Defendants are allowed until June 1, 2021, 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.
Joy Flowers Conti, Senior District Judge