Opinion
Civil Action 23- 4220
02-15-2024
ETHAN ANTHONY CHIN, Plaintiff v. TONI WARFEL et al., Defendants
MEMORANDUM
PRATTER, J.
Plaintiff Ethan Anthony Chin, a pretrial detainee incarcerated at Lancaster County Prison, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Currently before the Court are Mr. Chin's Complaint, his Motion for Leave to Proceed In Forma Pauperis, his Prisoner Trust Fund Account Statement, and his Motion for the Appointment of Counsel. The Court grants Mr, Chin leave to proceed in forma pauperis, dismisses his complaint pursuant to 28 U.S.C. § 1915(e) (2)(B)(ii), and denies his request to appoint counsel without prejudice.
The facts set forth in this Memorandum are taken from Mr. Chin's Complaint, which consists of the Court's form complaint available to prisoners to raise constitutional claims, one handwritten page, and attached exhibits. The Court deems the entire submission to constitute the complaint and adopts the continuous pagination assigned to the complaint by the CM/ECF docketing system.
Mr. Chin names the following Prison employees as defendants: (1) Toni Warfel (identified in the complaint as a “PREA Investigator”); (2) Justin Hackler (identified as a “Prison Investigator”); and (3) Michael Fischer (identified as a “Supervisor Sergeant”). The defendants are sued in their individual and official capacities.
Briefly stated, Mr. Chin asserts that his rights were violated on August 16, 2022, when he was subjected to sexual and verbal abuse by Sergeant Fischer. Mr. Chin avers that Sgt. Fischer made a sexually explicit comment about the size of his own genitals. More specifically, Mr. Chin avers that Sgt. Fischer told him in front of other inmates that “when your dick is this big hard and this big soft you do what the fuck you want around here.” Mr. Chin contends that Sgt. Fischer made that statement while “spreading his hands apart to give [him] a[] visual image of the size of his genitals.” Mr. Chin reported the incident under the Prison Rape Elimination Act (“PREA”), but PREA Investigator Toni Warfel found his PREA allegations to be unsubstantiated, and Prison Investigator Justin Hackler “never answered [his] claim.”
Mr. Chin further asserts that following the submission of his PREA allegations, Sgt. Fischer “began to target [him] by finding any little thing he could to issue [him] a misconduct and make [his] stay as miserable as possible.” Sgt. Fischer allegedly told Mr. Chin that he “listens to all [of Mr. Chin's] intimate phone calls” and “knew about the PREA and he could be an ‘asshole' but he won't.” Mr. Chin avers that, despite making this statement, Sgt. Fischer proceeded to harass and retaliate against him.
Mr. Chin attaches three misconduct reports to his complaint, which are dated January 3, 2022, October 25, 2022, and June 6, 2023. The January 2022 misconduct report predates the alleged sexual harassment incident. The October 2022 misconduct report states that Sgt. Hawk witnessed Mr. Chin conspiring with another inmate to make unauthorized phone calls on Mr. Chin's personal tablet. The June 2023 misconduct report concerns a mutual combative fight between inmates, and, according to the report, a review of the video footage revealed that Mr. Chin was the “lookout” for the fight. Mr. Chin seeks money damages.
LEGAL STANDARD
Because Mr. Chin appears incapable of paying the filing fees to commence this civil action, the Court grants him leave to proceed in forma pauperis
Because Mi', Chin is currently incarcerated, he will be obligated to pay the full amount of the filing fee in installments as required by the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).
28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss a complaint if, among other things, the complaint fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “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) (quotations omitted). Conclusory statements and naked assertions will not suffice. Id.
“‘At this early stage of the litigation,' ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,' ‘draw[] all reasonable inferences in [the plaintiffs] favor,' and ‘ask only whether [that] complaint, liberally construed, . . . contains facts sufficient to state a plausible [] claim.'” Shorter v. United States, 12 F.4th 366,374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 192 F.3d 768, 774, 782 (7th Cir. 2015)), Because Mr. Chin is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182,185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir, 2013)). “This means we remain flexible, especially ‘when dealing with imprisoned pro se litigants [.]”' Vogt, 8 F.4th at 185 (quoting Mala, 704 F.3d at 244). The Court “applies] the relevant legal principle even when the complaint has failed to name it,” id., but “‘pro se litigants still must allege sufficient facts in their complaints to support a claim.'” Vogt, 8 F,4th at 185 (quoting Mala, 704 F.3d at 245). An unrepresented litigant ‘“cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.'” Id. (quoting Mala, 704 F.3d at 245).
DISCUSSION
As discussed above, the complaint reflects Mr. Chin's intention to raise civil rights claims pursuant to § 1983, which is a vehicle by which federal constitutional claims may be brought against state actors in federal court. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). In addition, “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs” to be liable. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Rode, 845 F.2d at 1207) (“Personal involvement requires particular ‘allegations of personal direction or of actual knowledge and acquiescence.'”).
I. Official Capacity Claims
In drafting his complaint, Mr. Chin checked boxes on the form he used that indicate that he seeks to name the defendants in their individual and official capacities. Claims against municipal and county officials named in their official capacity are indistinguishable from claims against the entity that employs them, which is Lancaster County here. See Kentucky v. Graham, 473 U.S, 159, 165-66 (1985) (“Official-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent. ”') (quoting Mon ell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). “[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id.
To state an official capacity/municipal liability claim, a plaintiff must allege that the municipality's policies or customs caused the alleged constitutional violation. See Monell, 436 U.S. at 694; Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). The plaintiff “must identify [the] custom or policy, and specify what exactly that custom or policy was” .
to satisfy the pleading standard. McTernan v. City of York, Pennsylvania, 564 F.3d 636, 658 (3d Cir. 2009). “‘Policy is made when a decisionmaker possessing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). ‘“Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.'” Id. (quoting Bielevicz v Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).
“A plaintiff must also allege that the policy or custom was the ‘proximate cause' of his injuries.” Id. (citing Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996)). “He may do so by demonstrating an ‘affirmative link between the policy or custom and the particular constitutional violation he alleges.” Id. A plaintiff may also state a basis for municipal liability by “alleging failure-to-supervise, train, or discipline .. . [and alleging facts showing] that said failure amounts to deliberate indifference to the constitutional rights of those affected.” Forrest v. Parry, 930 F.3d 93, 106 (3d Cir. 2019).
To the extent that Mr. Chin seeks damages from the named individual defendants in their official capacities, he has failed to allege facts that support Monell liability. Mr. Chin makes no allegations regarding a specific custom or policy by which official capacity claims may be maintained, and he fails to allege that any policy or custom of the county caused the constitutional violations he describes in his complaint. Accordingly, Mr. Chin has failed to articulate a plausible municipal liability claim, and the official capacity claims against the individual defendants will be dismissed without prejudice on screening.
II. PREA Claims
To the extent Mr. Chin seeks to assert a claim for violation of the PREA, any such claim is dismissed. “[Although] the PREA was intended in part to increase the accountability of prison officials and to protect the Eighth Amendment rights of Federal, State, and local prisoners, nothing in the language of the statute establishes a private right of action.” See Walsh v. N.J. Dep't of Corr., No. 17-2442, 2017 WL 3835666, at *4 (D.N.J. Aug. 31, 2017); see also Krieg v. Steele, 599 Fed.Appx. 231, 232 (5th Cir. 2015) (holding that “other courts addressing this issue have found that the PREA does not establish a private cause of action”); Frederick v. Snyder Cnty. Prison, No. 18707, 2019 WL 1348436, at *4 (M.D. Pa. Mar. 22, 2019) (same). Thus, Mr. Chin cannot “bring a private action to enforce obligations set forth in the PREA, whether through the statute itself or through [an] attempt to enforce the [institution's] PREA policy via section 1983.” See Bowens v. Emps. of the Dep't of Corr.,No. 14-2689,2016 WL 3269580, at *3 (E.D. Pa. June 15,2016), aff'd, Bowens v. Wetzel, 674 Fed.Appx. 133, 137 (3d Cir. 2017). Accordingly, any claims premised upon violations of the PREA are dismissed as a matter of law.
Moreover, to the extent Mr. Chin challenges the quality of the investigation into his PREA allegations or alleges that officials did not take his claim seriously, he has no freestanding right to such an investigation. See Grow v. Fantasky, 68 Fed.Appx. 378, 383 (3d Cir. 2003) (stating that “an allegation of a failure to investigate, without another recognizable constitutional right, is not sufficient to sustain a section 1983 claim.”). Thus, Mr. Chin's allegations against PREA Investigator Warfel and Prison Investigator Hackler for ignoring or failing to investigate his PREA claim fail to support any § 1983 claim.
III. Claims Against Sgt. Fischer
Mr. Chin asserts that he was subjected to sexual and verbal abuse when Sgt. Fischer made a sexually explicit comment about the size of his own genitals. Mr. Chin also avers that, following the submission of his PREA allegations regarding this incident, Sgt. Fischer “began to target [him] by finding any little thing he could to issue [him] a misconduct and make [his] stay as miserable as possible.”
A. Sexual Abuse Claim
The Eighth Amendment governs challenges to the confinement conditions of people who have been convicted, and the Due Process Clause of the Fourteenth Amendment governs claims brought by pretrial detainees. Hubbard v. Taylor, 399 F,3d 150, 166 (3d Cir. 2005). Sexual abuse of convicted or detained people may violate the Eighth and Fourteenth Amendments, respectively. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018) (“[P]rison sexual abuse can violate the Constitution”). Because it appears from the complaint that Mr. Chin is a pretrial detainee, the Court analyzes his conditions of confinement claim under the Fourteenth Amendment. A sexual abuse claim is evaluated similarly to an excessive force claim in that the prisoner must allege facts that plausibly show that the actions of the defendant were objectively unreasonable. Clark v. Doe-Walker, No. 19-2235, 2020 WL 564756, at *3 (E.D. Pa. Feb. 5, 2020) (citing Ricks v. Shover, 891 F.3d 468, 475 (3d Cir. 2017)).
Mr. Chin's due process claim is based on one incident during which Sgt. Fischer allegedly made a derogatory remark to him of a sexual nature concerning the size of his genitals. Such behavior, although inappropriate, does not rise to the level of a constitutional violation. Verbal taunting and comments alone, even of a sexual nature, do not rise to the level of a constitutional violation. See, e.g., Gibson v. Flemming, 837 Fed.Appx. 860, 863 (3d Cir. 2020) (per curiam) (finding plaintiffs allegations “that an officer winked at him and ‘flicked his tongue' at [him]” did not state a constitutional violation); King v. Quigely, No. 18-3420, 2018 WL 4702168, at *3 (E.D. Pa. Sept. 28, 2018) (quoting Brown v. Hamilton Police Dep t, No. 13-260, 2013 WL 3189040, at *2 (D.N.J. June 21,2013), aff'd sub nom. Brown v. Hamilton Twp Police Dep't Mercer Cnty., N.J, 547 Fed.Appx. 96 (3d Cir. 2013)) (“Allegations of verbal abuse or threats, unaccompanied by injury or damage, are not cognizable under § 1983, regardless of whether the inmate is a pretrial detainee or sentenced prisoner.”); Quiero v. Muniz, No. 14-225, 2015 WL 13738994, at *5 (M.D. Pa. Aug. 3, 2015) (same); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.”); Maclean v. Secor, 876 F.Supp. 695, 699 (E.D. Pa. 1995) (“A constitutional claim based only on verbal threats will fail, moreover, whether it is asserted under the Eighth Amendment's ban on cruel and unusual punishment or under the Fifth Amendment's substantive due process clause.”). Mr. Chin alleges only that Sgt. Fischer made an inappropriate gesture and verbal comments. Because he does not allege any sexual contact by Sgt. Fischer, his claim based on sexual abuse is not plausible and will be dismissed with prejudice.
B. Retaliation Claim
To state a plausible First Amendment retaliation claim, a prisoner must allege that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was “a substantial or motivating factor” for the adverse action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Coit v. Garman, 812 Fed.Appx. 83, 86 (3d Cir. 2020) (per curiam). A prisoner's filing of a PREA complaint or expressing an intent to file a PREA complaint constitutes a constitutionally protected activity. See Naranjo v. Walter, No. 22-3435, 2023 WL 5928506, at *2 (3d Cir. Sept. 12, 2023) (citing Watson v. Rozum, 834 F.3d 417,422-23 (3d Cir. 2016)); Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000).
“An adverse consequence ‘need not be great in order to be actionable[;]5 rather, it need only be ‘more than de minimis'''Watson, 834 F.3d at 423 (alteration in original) (quoting McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)). "[B]eing placed in lockdown, being moved to restricted housing, and being issued misconduct charges are more than "de minimis* adverse actions.” See Palmore v. Hornberger, 813 Fed.Appx. 68, 70 (3d Cir. 2020) (per curiam) (quoting McKee, 436 F.3d at 170); see also Mitchell, 318 F.3d at 530-31 (“Mitchell's allegation that he was falsely charged with misconduct in retaliation for filing complaints against Officer Wilson implicates conduct protected by the First Amendment.”). The timing of the allegedly retaliatory behavior relative to the constitutionally protected conduct may establish a causal link between the two for purposes of establishing motivation. See Watson, 834 F.3d at 422.
The Court understands Mr. Chin to be asserting retaliation claims against Sgt. Fischer based on three misconduct reports-dated January 3, 2022, October 25, 2022, and June 6,2023- wherein Sgt. Fischer is listed as the Supervisor, Because the January 2022 misconduct occurred more than eight months before Mr. Chin filed his PREA allegations, this report cannot form the basis for a plausible retaliation claim.
The other two misconduct reports were filed more than two months and more than nine months, respectively, after Mr. Chin filed the PREA complaint against Sgt. Fischer, which is not unusually suggestive, and nothing else in the complaint suggests a factual basis from which an inference of retaliation could be drawn. See, e.g., LeBoon v. Lancaster Jewish Cmty. Cent. Ass 'n, 503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation ... Williams v. Phila. Housing Audi Police Dep't, 380 F,3d 751, 760 (3d Cir. 2004) (finding that time frame of approximately two months between protected conduct and adverse action was not unusually suggestive of retaliation), superseded by statute in nonrelevant part, as recognized in Robinson v. First State Cmty. Action Agency, 920 F.3d 182,188 n.30 (3d Cir. 2019).
Moreover, Mr. Chin does not assert that these misconduct reports were based on any false allegations, and it is not clear from the complaint that Sgt. Fischer even initiated the misconduct reports. In fact, the October 25, 2022 report identifies Sgt. Hawk as the witness who discovered that Mr. Chin had conspired with another inmate to make unauthorized phone calls. The October 2022 misconduct report also indicates that Mr. Chin's unauthorized communications were documented on several dates via inmate telephone logs. The June 6, 2023 misconduct report indicates that a staff member by the name of “McCusker, W.” both witnessed and reported the inmate fight, and a subsequent review of the video footage revealed that Mr. Chin was the designated “lookout.” In other words, the misconduct reports relied upon by Mr. Chin to support his retaliation claim, appear to be supported by other evidence aside from any potential involvement by Sgt. Fischer. See Watson, 834 F.3d at 425 (holding that “most prisoners' retaliation claims will fail if the misconduct charges are supported by the evidence.”) Accordingly, Mr. Chin's retaliation claims are not plausible as pled. See Oliver v. Roquet, 858 F.3d 180, 195 (3d Cir. 2017) (“Absent supporting facts that make it reasonable to draw an inference of retaliation, these conclusory assertions of a cause-and-effect relationship between specific protected activities and a later adverse action are insufficient to plead causation.”).
CONCLUSION
For the foregoing reasons, the Court grants Mr. Chin leave to proceed in forma pauperis and dismisses his complaint. Mr. Chin's PREA claims and his sexual abuse claims against Sgt. Fischer are dismissed with prejudice. The remainder of Mr. Chin's claims are dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
The Court grants Mr. Chin leave to file an amended complaint in the event he can cure the defects the Court has identified in his claims that have been dismissed without prejudice. See Grayson v. Mayview State Hosp., 293 F,3d 103,114 (3d Cir. 2002). Mr. Chin's motion to appoint counsel is denied without prejudice because it is premature. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (in determining whether appointment of counsel is appropriate, the Court should first determine whether plaintiff's lawsuit has a legal basis). An appropriate order follows.