Opinion
1:22-CV-00284-SPB
02-08-2024
MARIO DWAYNE DOMINICK, Plaintiff v. CORRECTIONS OFFICER BEVINO, CORRECTIONS OFFICER RIDER, CORRECTIONS OFFICER GOULD, CORRECTIONS OFFICER SILVINSKI, Defendants
SUSAN PARADISE BAXTER United States District Judge.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT ECF NO. 22
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 22) be GRANTED in part and DENIED in part. Specifically, the motion should be GRANTED as to (1) any claim purporting to assert a private right of action pursuant to the Prison Rape Elimination Act, 42 U.S.C. § 15601 et seq., and (2) as to all claims asserted against Defendants Bevevino, Gould, and Slivinski. The motion should be DENIED as to the Complaint's Eighth Amendment “failure to intervene” claim against Defendant Rider.
IL Report
Plaintiff Mario Dwayne Dominick, an individual currently in the custody of the Erie County Prison (“ECP”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 against ECP corrections officers Bevevino, Rider, Gould, and Slivinski. Dominick alleges that Rider failed to intervene to stop another inmate's ongoing assault upon him, Bevevino subjected him to unsafe conditions of confinement by allowing him to be housed in a cell with a “known homosexual” for five days, Gould encouraged inmates to harass him, and Gould and Slivinski made offensive comments to or about him. See ECF No. 13, p. 3. He claims that each Defendant's conduct violated his rights under the Eighth Amendment to the United States Constitution. Dominick seeks punitive damages from the Defendants in their individual capacities.
According to the motion to dismiss, the Complaint misidentifies Officer Bevevino as “Bevino.” ECF No. 23, p. 1.
The Defendants have moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 22. They have also filed a brief in support to their motion. ECF No. 23. Under the Court's Case Management Order of August 28, 2023, Dominick's response to the motion was due by September 27, 2023. See ECF No. 25. When no response was received by the deadline, the Court ordered Dominick to show cause for his failure to file a response or, alternatively, to file his response by February 6, 2024. ECF No. 28. To date, Dominick has not filed a brief in opposition to Defendants' motion or otherwise responded. Nothing on the docket indicates that the Court's orders were returned as undeliverable. Accordingly, the undersigned will decide Defendants' motion without the benefit of a response from Dominick. See Shuey v. Schwab, 350 Fed.Appx. 630, 632 (3d Cir. 2009) (citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)) (“typically, the adjudication of cases involving unopposed motions warrants a merits analysis.”).
A. Material Facts
The facts below are summarized from Dominick's Complaint (ECF No. 13) and accepted as true for purposes of Defendants' motion to dismiss.
On June 26, 2022, Dominick was leaving the dining hall when inmate Caputo told him to “throw [his] hands up.” ECF No. 13, p. 12. Dominick turned to Officer Rider and said, “can you get him?” Id. Immediately after this inquiry, Caputo “sucker-punched [Dominick] in the side of [his] face.” Id. Caputo continued to assault Dominick “for what felt like forever” while “both guards remained behind the desk doing nothing to prevent [Dominick] from sustaining further injuries.” Id. Dominick finally “lost his temper” and “started defending [him]self.” Id. The combatants were ultimately maced, separated, and brought to the Restricted Housing Unit (“RHU”). Dominick suffered “a busted lip” and lacerations to his neck and ear. Id.
The allegations of the Complaint do not disclose what, if anything, precipitated Caputo's comment or whether it was intended to be provocative or offensive to Dominick.
He and Caputo were sentenced to 15 days in the RHU. For the first five days, Dominick was “placed in a cell with a known homosexual. . . who [ECP] knows . . . has HIV/Aids.” Id. Dominick asked Officer Bevevino “for five days straight to move [him] out of the cell with this inmate to no avail.” Id. Bevevino “actually found it amusing that this inmate would say sexually explicit things all night. .. along with other various sexual advances and Officer Bevevino would laugh.” Id. Dominick did not make any loud noises for those five days because he feared that his cellmate was going to rape him. Dominick grieved this issue. Thereafter, two other officers moved him to a new cell for the remaining ten days of his RHU sentence.
Shortly after the prison released Dominick from the RHU back to general population in mid-July, he was in the day room with other inmates and Officer Gould. The inmates began “cracking jokes” about his fight with Caputo. Id., p. 13. Gould soon called Dominick over to his desk to ask if he “really g[ot] knocked out.” Id. In response, Dominick said, “you are suppose[d] to maintain peace and order, not antagonize problems with the inmates and make it an unsafe environment.” Id. Gould responded by asking Dominick how he “survived or lasted” in the RHU cell with the other inmate. Id. Dominick “then wrote a grievance to his superiors.” Id. Dominick received a grievance response informing him that the matter would be addressed with Gould. Id.
The next time Dominick saw him, Gould remarked that he would no longer speak to Dominick because he has “thin skin.” Id.,y. 14. Dominick later grieved this interaction. That night, he accidentally left his cup on the windowsill while he used the phone. When it was time to lock-up for the evening, Dominick told Gould that he needed to quickly grab his cup. Gould said in response, “don't think your [sic] gonna make it next stop (RHU).” Id.
On September 27, 2022, at 8:40 PM, Dominick was showering when Officer Slivinski peered into the shower and told him to remove the item that was hanging from the showerhead. Dominick removed it and then asked him if he was “looking in the shower while [he] was showering because that's creepy,” and “did he know about (PREA)?” Id. Slivinski replied that he was “looking forward too [sic] it.” Id.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice, and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another way, in assessing a motion to dismiss, while the Court must view the factual allegations contained in the pleading at issue as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).
Because Dominick is proceeding pro se, his Complaint will be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the Court can reasonably read his pro se Complaint to state a claim upon which relief can be granted, it will do so despite his failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969). Despite this leniency, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citing Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996)).
C. Discussion
Defendants' motion raises four arguments in support of dismissal: (1) Dominick failed to exhaust his administrative remedies as to all claims alleged in the Complaint; (2) Dominick lacks Article III standing because he has failed to allege an injury-in-fact caused by Defendants' alleged conduct; (3) the Complaint fails to state an Eighth Amendment claim based on Rider's alleged failure to intervene; and (4) Defendants are entitled to qualified immunity. The undersigned will address Defendants' arguments in turn.
1. Whether Dominick exhausted his administrative remedies cannot be determined from the face of the Complaint and because Defendants have not complied with LCvR 56(B), the Court cannot properly consider their motion as requesting summary judgment in the alternative.
Defendants argue that Dominick's Complaint must be dismissed because he failed to properly exhaust his administrative remedies as required by the Prison Litigation Reform Act. (“PLRA”), 42 U.S.C. § 1997e(a). Specifically, they argue “that the only grievance filed by Dominick during his incarceration from June 9, 2022 to March 29, 2023 (the date his Complaint was docketed) was a grievance he filed with respect to discipline he received at a misconduct hearing on October 14, 2022, related to an incident that occurred on September 30, 2022.” ECF No. 23, p. 5. To support their position, Defendants submit the affidavit of Deputy Warden Seymour, the Erie County Prison Inmate Handbook, and one page of a grievance record. ECF Nos. 22-4, 22-5, 22-7. Defendants have not moved alternatively for summary judgment or filed a concise statement of material facts as required by LCvR 56(B)(1). Nor has the Court given notice to Dominick that it would treat Defendants' motion, in whole or in part, as one for summary judgment. See Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010) (court must provide notice to pro se prisoners when converting a motion to dismiss into a motion for summary judgment). Accordingly, the Court may not consider the Seymour affidavit or other evidentiary matters not attached or relied upon in the Complaint. See Enoxh v. Hice, 2023 WL 5986105, at *4 (W.D. Pa. Aug. 14, 2023), report and recommendation adopted, 2023 WL 5984338 (W.D. Pa. Sept. 13, 2023) (citing Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004)).
“Failure to exhaust is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff.” Small v. Camden Cnty., 728 F.3d 265, 268-69 (3d Cir. 2013) (citing Jones v. Bock 549 U.S. 199, 212 (2007)). Because exhaustion is not a pleading requirement, it may be considered on a motion to dismiss only when a plaintiff acknowledges his failure to exhaust on the face of the complaint and the affirmative defense “present[s] an insuperable barrier to recovery by the plaintiff.” Ray v. Kertes, 285 F.3d 287, 295 n.8 (3d Cir. 2002) (citing Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997)). Dominick's Complaint does not acknowledge any failure to exhaust his administrative remedies. To the contrary, his Complaint expressly alleges that he filed grievances concerning Defendants' alleged conduct. See ECF No. 13, pp. 7, 12, 13. Therefore, the Court should deny Defendants' motion to the extent it seeks dismissal of the claims against them based on the affirmative defense of failure to exhaust administrative remedies. See Enoxh, 2023 WL 5986105, at *4. Defendants may renew their exhaustion defense at any time by filing a motion for summary judgment and concise statement of material facts that comply with LCvR 56(B).
Except where the complaint acknowledges the plaintiffs failure to exhaust, the exhaustion defense is properly raised in a motion for summary judgment or a motion to dismiss that includes an alternative request for summary judgment. In either case, the motion must be accompanied by a concise statement of material facts with supporting record materials, including any affidavits. This ensures that a proper record is before the Court and that the plaintiff is given the opportunity to respond to the defendant's factual assertions and to assert additional facts relevant to the exhaustion defense, including, potentially, facts relating to the availability of administrative remedies or the prison's timely compliance with its own grievance procedures. See Rinaldi v. United States, 904 F.3d 257, 266 (3d Cir. 2018) (holding that the PLRA “requires only... exhaustion of those administrative remedies that are ‘available”'); Nunez v. Borstnar, 2019 WL 4393387, at *4 (W.D. Pa. Sept. 12, 2019), report and recommendation adopted, 2019 WL 4394848 (W.D. Pa. Sept. 13, 2019) (holding that the exhaust requirement is excused where prison failed to follow its own grievance procedures). Compliance with LCvR 56 is the accepted practice in this Division for presenting an exhaustion defense based on material not relied upon in the complaint. Motions to dismiss that raise failure to exhaust administrative remedies that do not comply with these requirements will be summarily denied.
2. Although the Complaint alleges an injury-in-fact sufficient to support Dominick's Article III standing, it fails to allege facts sufficient to state a claim against Bevevino, Slivinski, or Gould.
Dominick's Complaint does not identify any distinct violation of the Constitution or other federal law concerning which he may assert a private right of action. However, a liberal reading of the Complaint discloses claims under the Eighth Amendment based on Defendant Rider's alleged failure to protect Dominick from violence at the hands of another inmate and Defendants Bevevino, Slivinski, and Gould having allegedly subjected Dominick to other unconstitutional conditions of confinement.
The only federal statutory violation expressly asserted in the Complaint is a violation of the Prison Rape Elimination Act (“PREA”), 42 U.S.C. § 15601 et seq. See ECF No. 13, p. 3. However, as Defendants correctly note, PREA does not provide a private cause of action. Frederick v. Snyder Cty. Prison, 2019 WL 1348436, at *4 (M.D. Pa. Mar. 22, 2019); Walsh v. N.J. Dep't of Corr., 2017 WL 3835666, at *4 (D.N.J. Aug. 31,2017). See ECF No. 13, p. 3.
Although the Complaint alleges that Dominick was a “county detainee,” the publicly available criminal docket, concerning which the Court may take judicial notice, designates him as convicted state prisoner. See ECF No 22-1, p. 6 (sentenced imposed March 22, 2022). Accordingly, Dominick's claims are evaluated under the Eighth Amendment as opposed to the Due Process Clause of the Fourteenth Amendment, which applies to pretrial detainees. See Edwards v. Northampton Cnty., 663 Fed.Appx. 132, 135 (3d Cir. 2016). See also Andrews v. Harper, 576 F.Supp.3d 305, 316 (W.D. Pa. 2021). While the distinction is often important, in this case, the outcome is the same under either standard.
Before reaching the merits of these claims, the Court must address Defendants' argument that the allegations of the Complaint do not support Dominick's constitutional standing to bring them. See Finkelman v. Nat'l Football League, 810 F.3d 187, 193 (3d Cir. 2016) (citing Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007)) (district court erred in resolving issue on the merits before addressing Defendant's Article III standing argument because “[a] federal court's obligation to assure itself that it has subject matter jurisdiction over a claim is antecedent to its power to reach the merits of that claim.”) (alteration in original). Defendants' challenge is premised on the assertion that Dominick has not alleged facts demonstrating that he has sustained any injury-in-fact to support Article III standing.
For a plaintiff to establish constitutional standing, he “must allege facts sufficient to establish an injury-in-fact, which is ‘an invasion of a legally protected interest [that] is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'” Goode v. Gioria, 590 Fed.Appx. 120, 121 (3d Cir. 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations omitted)) (alterations in original). These requirements originate from separation-of-powers principles and “serve[ ] to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (citation omitted). The standing doctrine also serves several other “implicit policies embodied in Article III,” including the assurance that “the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 96 (1968)). In sum, the Court must ensure that Dominick has a “personal stake in the outcome of the controversy.” Warth v. Seldin, 422 U.S. 490, 498 (1975) (internal quotation marks omitted). Furthermore, the Supreme Court has been clear that an injury, to be cognizable, must not be “too speculative.” Clapper, 568 U.S. at 409. Rather, the injury must be “certainly impending.” Id. (quoting Lujan, 504 U.S. at 565 n.2) (emphasis in original). “[A]llegations of possible future injury” are not sufficient. Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphasis in original).
In this case, the facts alleged in the Complaint clearly support an injury-in-fact relative to the claim against Rider. As discussed in detail below, the Complaint alleges that Rider observed another inmate physically assaulting Dominick, that Rider observed the assault long enough to safely intervene but failed to do so, and that Dominick suffered further physical injury because of Rider's inaction. See ECF No. 13, p. 12 (“he continued to assault me which felt like forever...both guards remained behind the desk doing nothing to[] prevent me from sustaining further injuries”). These allegations both support Article III standing and, as discussed in detail below, state a claim under Eighth Amendment. See Hamilton v Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer, 511 U.S. at 833 (1994)).
The injury-in-fact analysis, however, is more nuanced as to the claims against Bevevino, Gould, and Slivinski. As to the claim against Bevevino, Dominick avers that he “was subjected to sexual harassment and a hazardous environment to [his] safety” when “[he] was placed into a cell with a known homosexual deviant who the Erie County Prison knows ... has HIV/Aids” and who “would say sexually explicit things all night ... along with other various sexual advances.” ECF No. 13, p. 12. He further avers that he “was in fear for [his] safety” and “did not make a loud movement for five days in fear of being raped.” Id. He asserts that “for five days . .. [his] cries for help went unanswered and were made fun of' by Bevevino and others, “and then officer Gould had the gull [sic] to ask [him] how did [he] survive.” Id., p. 5.
Dominick next avers that instead of Gould “rnaintain[ing] peace and order,” he “antagonize[d] problems with the inmates and ma[de] an unsafe environment” by allowing inmates to “crack[] jokes” about Dominick “g[etting] knocked out.” Id., p. 13. He adds that after he grieved Gould's alleged conduct, Gould called Dominick “thin-skinned in a sarcastic smirkish way” and told him that the RHU was his “next stop.” Id.
The allegations concerning Slivinski relate only to his interaction with Dominick while he was showering on the evening of September 27, 2022. Dominick contends that Officer Slivinski peered into the shower to tell him to remove something that was hanging from the showerhead. He alleges that in response, he told Slivinski it “was creepy” to “look[] in the shower while [he] was showering” and asked him if he knew about PREA. Slivinski allegedly said in reply that “he's looking forward too [sic] it.” Id., p. 14. Dominick contends that as a result of Defendants' conduct, he was subjected to “mental anxiety, mental anguish, forced sexual harassment, unsafe environment, physical distress,” and “hazard[s] to [his] health.” Id., p. 5.
Defendants argue that the allegations against Bevevino, Gould, and Slivinski fail to identify an actual injury. The Court agrees to an extent. None of the conduct alleged against Bevevino, Gould, and Slivinski resulted in any actionable injury to Dominick. The damages claimed against Bevevino, Gould, and Slivinski are purely in the nature of emotional distress damages. Under the Prison Litigation Reform Act, the plaintiff must show a physical injury that is “more than a de minimis” to recover such damages. Mitchell v. Horn, 318 F.3d 523, 535 (3d Cir. 2003) (citing 42 U.S.C.A. § 1997e(e)). So, while actual emotional distress may constitute an injury-in-fact sufficient to confer Article III standing, see Clemens v. ExecuPharm Inc., 48 F.4th 146, 156 (3d Cir. 2022), a prisoner may not recover damages for emotional distress absent an associated physical injury. See 42 U.S.C.A. § 1997e(e). Similarly, while a plaintiff may successfully allege an injury-in-fact for purposes of Article III standing, this alone does not mean that he has alleged a cause of action that withstands a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Here, Dominick has alleged an injury-in-fact sufficient to support Article III standing as to his claim against Bevevino, Gould, and Slivinski, but he has utterly failed to allege facts to support the essential elements of a cause of action against any of them.
42 U.S.C. § 1997(e) states: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.”
A court considers an inmate's allegation of a prison official's sexual abuse and harassment, or failure to protect him from another inmate's sexual abuse and harassment, within the framework of the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825 (1994) (holding that sexual assaults of inmates by inmates can implicate the right to be free from cruel and unusual punishment); Nifas v. Coleman, 528 Fed.Appx. 132, 135 (3d Cir. 2013) (no Eighth Amendment failure to protect claim because “[t]he undisputed facts here do not show that Nifas was exposed to a risk of serious harm with respect to the incident involving inmate Rodriguez or the alleged threats and sexual harassment he received from other inmates.”). To state a viable Eighth Amendment claim, Dominick must allege facts that satisfy both a subjective and an objective element. See Ricks v. Shover, 891 F.3d 468, 474 (3d Cir. 2018) (“the framework for excessive force claims .. .composed of a subjective and objective prong-has evolved to encompass claims for sexual abuse and harassment by prison officials as well”). Specifically, based on the facts alleged, “the incident must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must have a culpable state of mind.” Id. at 475.
The subjective element requires Dominick to show that the official acted “maliciously and sadistically for the very purpose of causing harm.” Id. (quoting Whitley v. Albers, 475 U.S. 312, 319-320 (1986)). To satisfy the objective element, Dominick must demonstrate that the incident was so objectively “intolerable and cruel” or “capable of causing harm” as to violate the Eighth Amendment. Rick, 891 F.3d at 475. As courts have frequently observed, “not. . . every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. (quoting Hudson, 503 U.S. at 9). Rather, “the Eighth Amendment shields inmates from only those actions ‘repugnant to the conscience of mankind.'” Id. (quoting Hudson, 503 U.S. at 10). Thus, “even if sexualized touching lacks a penological purpose, it may still fall below the threshold of constitutional cognizability based on a lack of objective seriousness.” Id., at 476, 477-78 (declining to impose a “zero tolerance” standard for “all minor sexualized touching in prison,” such that all such “inappropriate touching is per se unconstitutional”).
Courts have routinely found that an Eighth Amendment claim for sexual abuse or harassment requires a showing of physical contact with the alleged perpetrator. See Williams v. Wetzel, 776 Fed.Appx. 49, 53 (3d Cir. 2019) (affirming dismissal of Eighth Amendment sexual conduct claim because the allegations did not involve any sexual contact between the prisoner and the corrections officer); Armstrong v. Diraimo, 2018 WL 6788524, at *4 (W.D. Pa. Dec. 26, 2018), qffd, 781 Fed.Appx. 61 (3d Cir. 2019); McCain v. Wetzel, 2018 WL 1211507, at *3 (W.D. Pa. Mar. 8, 2018) (“sexual harassment in the absence of contact or touching does not establish an Eighth Amendment violation”); Washington v. Gilmore, 2017 WL 4155371, at *8 (W.D. Pa. Aug. 31, 2017) (dismissing Eighth Amendment sexual assault claim where plaintiff did not allege any “direct physical contact” with the alleged perpetrators). Indeed, “[v]erbal harassment, including lewd comments, sexual propositioning, and the like, is not sufficient to satisfy the objective element of an Eighth Amendment sexual harassment claim.” McCain, 2018 WL 1211507, at *3 (citing Manon v. Garrison, 2012 WL 3542328 (M.D. Pa. Aug. 15, 2012)). Rather, “physical sexual assault or threats of physical assault is required for the objective element to be met.” Id. Additionally, courts have consistently found that isolated instances of inappropriate conduct by prison officials do not violate an inmate's constitutional rights. See, e.g., Hughes v. Smith, 237 Fed.Appx. 756, 759 (3d Cir. 2007) (holding that the inmate had not alleged an Eighth Amendment violation where the correctional officer allegedly touched the inmate's testicles through his clothing during a single pat-down frisk); Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006) (“a female guard's solicitation of a male prisoner's manual masturbation, even under the threat of reprisal, does not present more than de minimis injury”); Baylor v. Pennsylvania Department of Corrections, 2013 WL 5177573 (M.D. Pa. Sept. 13, 2013) (allegations that officers used racial and profane language and asked plaintiff to perform specific sexual acts does not rise to the level of an Eighth Amendment violation); Pantusco v. Sorrell, 2011 WL 2148392, at *7-8 (D.N.J. May 31, 2011) (holding that the plaintiffs Eighth Amendment claim failed because a single instance of groping during a routine pat-down frisk did not amount to cruel and unusual punishment); Harris v. Zappan, 1999 WL 360203 (E.D. Pa. May 28, 1999) (allegations of one instance of sexually explicit comments combined with fondling and rubbing on thighs and breasts not sufficiently serious for an Eighth Amendment violation); Jones v. Culinary Manager II, 30 F.Supp.2d 491,497 (E.D. Pa. 1998) (grinding on buttocks with penis while threatening to have sex with inmate not sufficiently serious).
Dominick's allegations of sexual and verbal harassment fall well short of a constitutional harm. Dominick does not allege that his RHU inmate or Slivinski made any physical contact or threatened to physically assault him. To the extent Dominick attempts to advance constitutional claims based on Bevevino, Gould, and Slivinski's commentary, his claim also fails. “Mere verbal abuse, even abuse involving racial or sexual harassment, is not actionable as a civil rights claim.” Baylor v. Pennsylvania Dep't of Corr., 2013 WL 521957, at *4 (M.D. Pa. Feb. 11, 2013) (citing Dunbar v. Barone, 487 Fed.Appx. 721 (3d Cir.2012) (“[V]erbal threats or taunts, without more, are not sufficient to constitute a violation of the Eighth Amendment”); Robinson v. Taylor, 204 Fed.Appx. 155, 156 (3d Cir. 2006) (inmate claiming correctional officers made racial and sexual comments toward him failed to state an Eighth Amendment claim)). Dominick's alleged fear that his cellmate might sexually assault him is purely speculative. Accordingly, as to this aspect of his claim, Defendants' “no injury-in-fact” position has arguable merit. Fear of future harm constitutes an injury sufficient to support standing only if it arises from a threatened injury that is imminent and “certainly impending.” Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 158 (1990). The facts alleged support only that Dominick's fear of assault by his cellmate was the product of his own homophobia and not prompted by any imminent threatened injury.
While Dominick may have considered the conditions of his confinement uncomfortable in various respect, “the Constitution does not mandate comfortable prisons.” Thomas v. Tice, 948 F.3d 133, 139 (3d Cir. 2020) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). “[I]n contrast to common tort law, the Eighth Amendment shields inmates from only those actions ‘repugnant to the conscience of mankind.'” Bronson, 2021 WL 3518145, at *2 (quoting Hudson, 503 U.S. at 10) (citation omitted)). Even under the most charitable reading of the Complaint, Dominick has not demonstrated that Bevevino, Gould, or Slivinski subjected him to conditions “said to be cruel and unusual under contemporary standards.” Id. (quoting Rhodes, 452 U.S. at 347). Accordingly, Dominick's Complaint fails to state a claim against Bevevino, Gould, or Slivinski and should be dismissed as to these Defendants.
3. The Complaint alleges facts sufficient to state an Eighth Amendment “failure to intervene” claim against Rider.
The Eighth Amendment's prohibition of cruel and unusual punishment “impose[s] a duty upon prison officials to take reasonable measures ‘to protect prisoners from violence at the hands of other prisoners.'” Hamilton v Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer, 511 U.S. at 833 (1994)). “[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.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). For a corrections officer to have a realistic and reasonable opportunity to intervene where an inmate is attacked, the beating must occur within the officer's presence or be within his knowledge, and the officer must have had sufficient time to intervene. See id. at 651 (citing cases). A “momentary” incident, brief by its very nature, provides no reasonable opportunity for a corrections officer to intervene. See El v. City of Pittsburgh, 975 F.3d 327, 335 (3d Cir. 2020) (granting summary judgment as to failure to intervene claim where use of force occurred “within a matter of roughly five seconds,” which was not sufficient time for the officer to intervene even when stood next to the victim) (citing Ricks, 891 F.3d at 479).
Dominick contends that Officer Rider and another corrections officer failed to intervene to stop inmate Caputo from assaulting him on January 26, 2022. Dominick alleges that Caputo “sucker punched” him in the side of face as he was returning his food tray from his cell. ECF No. 13, p. 12. If this were the only violence alleged, Dominick's claim would fail because the facts up to this point do not support that he had a reasonable opportunity to intervene to prevent the punch. Caputo's comment to Dominick, “throw you (expletive) up,” and Dominick's comment to Rider, “can you get him,” are also far too cryptic to have put Rider on notice that Caputo posed a serious threat to Dominick. But the Complaint goes on to allege that after the initial sucker punch, Caputo “continued to assault [him], which felt like forever” and that Rider and the other guard “remained behind the desk doing nothing to prevent [him] from sustaining further injuries only allowing the assault to continue.” Id. Defendants argue that the allegations “fail[] to establish that any real injury arose from that incident that was caused by Officer Rider's deliberately indifferent acts or omissions.” ECF No 23, pp. 16-17. At this early stage of the litigation and construing the Complaint in a light most favorable Dominick, the allegations of a prolonged assault and “sustaining further injuries” support an inference of an actual injury.
Defendants also argue that Rider had no time to prevent the fight because when Dominick “tried to get the attention of Officer Rider,” “he was sucker punched by Caputo.” Id. The Court agrees. But this does not excuse Rider's failure to intervene in the ongoing assault after the initial punch was thrown. See Manuel v. Capozza, 2022 WL 4001049, at *5 (W.D. Pa. July 14, 2022), report and recommendation adopted, 2022 WL 3998446 (W.D. Pa. Sept. 1, 2022) (Plaintiffs allegations that Defendant “was present at the time of the incident and was aware of the assault, but stood by and observed it occur without intervening to stop the attack,” sufficed to plead a failure to protect claim). While the Constitution does not require guards to intervene in an inmate-on-inmate attack where doing so would subject them to a material threat of serious injury, the present record does not support a finding, as a matter of law, that Rider faced such a threat in this case or that he did not have a realistic and reasonable opportunity to intervene in the assault upon Dominick. See Brown v. Smith, 2019 WL 2411749, at *3 (W.D. Pa. June 7, 2019). At this stage of the case, Dominick has alleged facts sufficient to state an Eighth Amendment failure to intervene claim against Rider.
4. Rider is not entitled to qualified immunity on Dominick's failure to intervene claim.
Defendants submit that “to the extent that it is established that [Dominick's] rights were violated, the [Defendants] are entitled to qualified immunity because no other officer in their position would have been aware that their actions were violative of a constitutional right.” ECF No. 23, p. 20. “The burden of establishing qualified immunity falls to the official claiming it as a defense.” Burns v. PA Dep't of Corr., 642 F.3d 163, 176 (3d Cir. 2011). See also, Harris v. Kellogg, Brown & Root Servs., Inc., 2016 WL 4720058, at *1 (W.D. Pa. Sept. 9, 2016) (Defendant “has the burden of proof on its affirmative defense of qualified immunity.”); Pruchnic v. Wright, 2016 WL 1267812, at * 10 (W.D. Pa. Mar. 30, 2016) (same); Figueroa v. Mazza, 825 F.3d 89, 113 (2d Cir. 2016) (same). Because Dominick's allegations are insufficient to support a claim against Bevevino, Gould, and Slivinski, only Rider's potential qualified immunity defense remains at issue. Based on the record presently before the undersigned, Rider has failed to demonstrate his entitlement to qualified immunity.
Compare, Stanton v, Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (“In the Fourth Circuit, we have a split burden of proof for the qualified-immunity defense. The plaintiff bears the burden on the first prong, and the officer bears the burden on the second prong.”); Craig v. Martin, 49 F.4th 404, 409 (5th Cir. 2022) (“Once a defendant properly pleads qualified immunity, the burden of proof shifts to the plaintiffs to negate the defense.”); Wellington v. Daza, 2022 WL 3041100, at *5 (10th Cir. Aug. 2, 2022) (same).
State officials are entitled to qualified immunity from damage liability claims if their conduct did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Jones v. Brown, 461 F.3d 353, 364 (3d Cir. 2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982)). A two-part analysis is used to resolve whether government officials are entitled to the protections of qualified immunity: the court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a federal constitutional or statutory right, and (2) if so, whether that right was “clearly established” at the time of the defendant's alleged misconduct. Qualified immunity applies unless the official's conduct violated such a right. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). When conducting this two-part inquiry, a court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis” to address first “in light of the circumstances of the particular case at hand.” Pearson, 555 U.S. at 236.
A right is considered clearly established if it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up). See also Mullenix v. Luna 577 U.S. 7, 11-12 (2015). Courts “must define the right allegedly violated at the appropriate level of specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citations omitted). Courts must resist the temptation to define “clearly established law at a high level of generality.” Id. “Rather, the right at issue must be framed ‘in a more particularized, and hence more relevant, sense, in light of the case's specific context, not as a broad general proposition.'” Estep v. Mackey, 639 Fed.Appx. 870, 873 (3d Cir. 2016) (quoting Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015)).
The Complaint supports plausible inferences that Rider observed inmate Caputo initiate and continue an assault upon Dominick without intervening or calling for assistance despite having a reasonable opportunity to do so without unreasonable risk to himself. If these facts are ultimately proven, Rider will have violated a constitutional right that was clearly established. See e.g, Bistriani, 696 F.3d at 371 (A correctional officer displays deliberate indifference to the risk of inmate-on-inmate violence if he has “a realistic and reasonable opportunity to intervene” in the attack but “simply refuse[s] to do so.”); Hamilton v Leavy, 117 F.3d 742, 746 (3d Cir. 1997); Rhodes v. Chapman, 452 U.S. 337, 345 (1981). Rider may again raise his challenge to the legal sufficiency of Dominick's claim or his qualified immunity defense upon summary judgment and a more developed record, but the facts alleged in the Complaint are sufficient to allow the claim against Rider to proceed.
D. Leave to Amend
If a complaint is vulnerable to dismissal, in whole or in part, for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, Dominick's allegations in support of his Eighth Amendment claims against Bevevino, Gould, and Slivinski demonstrate that amendment as to these claims would be futile. In detail, Dominick has outlined a factual scenario that belies any viable claim against these three Defendants. Given the detail of these factual allegations and the absence of any indication of physical contact or threatened assault, leave to amend would be futile as to the claims against Bevevino, Gould, and Slivinski. Accordingly, it is recommended that the Court dismiss the claims against Bevevino, Gould, and Slivinski with prejudice.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss (ECF No. 22) the Complaint be GRANTED in part and DENIED in part. The motion should be GRANTED as to (1) any claim purporting to assert a private right of action pursuant to the Prison Rape Elimination Act, and this claim should be DISMISSED WITH PREJUDICE, and (2) as to all claims asserted against Bevevino, Gould, and Slivinski, and these claims should be DISMISSED WITH PREJUDICE. The motion should be DENIED as to the Eighth Amendment failure to intervene claim against Rider.
IV. NOTICE
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).