Opinion
1:22-CV-00143-SPB
06-09-2023
RENE FIGUEROA, Plaintiff v. DEREK F. OBERLANDER, SUPERINTENDENT; SECURITY CAPTAIN CARTER, C/O MORGAN, C/O JOHN DOE 1, SGT. JOHN DOE 3, JOHN DOE 2, SUED IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Defendants
SUSAN PARADISE BAXTER, United States District Court Judge
REPORT AND RECOMMENDATION ON MOTION TO DISMISS THE AMENDED COMPLAINT
ECF NO. 21
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss Plaintiff Rene Figueroa's Amended Complaint (ECF No. 21) be GRANTED. It is also respectfully recommended that Plaintiffs claims against Defendants John Doe 2 and Sgt. John Doe 3 be DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
II. Report
A. Introduction and Procedural History
Plaintiff Rene Figueroa, an inmate currently incarcerated at the State Correctional Institution at Forest (“SCI-Forest”), commenced this pro se civil rights action against SCI-Forest Superintendent Oberlander, Security Captain Carter, Corrections Officer (“C/O”) Morgan, and three unidentified Pennsylvania Department of Corrections (“DOC”) employees. The Court granted Figueroa's motion for leave to proceed in forma pauperis (“IFP”) (ECF No. 5). Oberlander, Carter, and Morgan moved to dismiss Figueroa's original complaint pursuant to Fed. R. Civ. P. 12(b)(6), see ECF No 12, prompting Figueroa to file his Amended Complaint against the same Defendants. ECF No. 19.
The Amended Complaint is the operative pleading before the Court and asserts violations of Figueroa's rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution, as well as a civil rights conspiracy claim, and state law claims of assault, conspiracy, negligence, medical malpractice, and intentional infliction of emotional distress. Id. Figueroa asserts these claims against each Defendant in his or her individual and official capacities. He seeks compensatory and punitive damages as well as declaratory and injunctive relief.
Oberlander, Carter, and Morgan have again moved to dismiss all claims against them pursuant to Rule 12(b)(6). ECF No. 21, 22. Figueroa has filed a brief in opposition to their motion. ECF No. 24.
B. Factual Background
For purposes of the pending motion, the factual allegations of Figueroa's Amended Complaint are accepted as true. The events upon which Figueroa bases his claims began on August 23, 2021, when Figueroa was returning to his housing unit from his job at SCI-Forest's activities department. Figueroa's route back to his cell required him to pass through a metal security gate that a corrections officer controlled electronically from a “hub” located approximately seven feet behind the gate. Figueroa asserts that at about 3:30 p.m., he “was patiently waiting for the security gate to open” when “John Doe 1 proceeded to open the security gate to Echo Unit to allow [him] to enter,” and then, as “[he] began entering the now open medical security gate, Defendant, John Doe 1 abruptly closed the gate.” Id., ¶¶ 18, 19. Figueroa explains that the gate then “smashed into Plaintiffs right shoulder causing severe pain and injury to his right shoulder and right deltoid.” Id., ¶ 19. To avoid further injury, Figueroa “lunged forward in a desperate attempt not to be crushed by the closing metal security gate.” Id. Once safely inside the enclosed area, Figueroa “attempted to get medical assistance from the Correctional Officers in the Hub when Defendant Morgan immediately opened the Hub Door and stated that it ‘was not him' who closed the Gate.” Id., ¶ 20.
Upon his return to Echo Unit, Figueroa related the incident to his Unit Manager and then called his wife. He “ask[ed] her to call the prison and report the incident immediately to security staff' because “[he] was paranoid that this assault was intentional and in retaliation over [his] previous Grievance(s) filed on his housing unit based on sexual harassment and theft of his tablet.” Id., ¶ 22. He told “his wife that he feared more retaliation would come.” Id. Shortly thereafter, his wife called SCI-Forest and was told “that a person from institutional security will [sic] be sent down to speak with [Figueroa] about the incident.” Id. ¶ 23. Figueroa avers that security has yet to speak with him. Id.
This grievance is appended to the complaint. ECF No. 6-1.
At about 4:10 p.m. on August 23, Figueroa was called to medical and “assessed by the facility physician, Defendant John Doe 2.” Id., ¶ 24. According to Figueroa, John Doe 2 told him that his heart rate was low and then accused him of faking his injury. He then asked Figueroa if he wanted pain medication, to which Figueroa responded that he did. Figueroa avers that John Doe 2 then reviewed his medical files and said, “you already have the good shit in your cell.” Id., ¶ 46. In response, Figueroa told John Doe 2 that he did not. John Doe 2 then allegedly told him “to take his old medication pack to A.M. medication line to have it re-filled” before sending him back to his cell without “even examin[ing] the area that was causing Plaintiff severe pain.” Id., ¶ 26.
On Figueroa's way back to his cell, Sgt. John Doe 3 approached him and asked him about the alleged gate incident. Figueroa asserts that Sgt. John Doe 3 “explained to [him] that there was a similar situation which occurred previously with himself and another inmate in a wheelchair,” that Figueroa “[wa]s lucky because he could actually receive a DC-141 Inmate Misconduct for ‘Disobeying a Written Order,”' and “that the inmate in a wheelchair attempted to file suit, but was unsuccessful.” Id., ¶ 27. Figueroa responded by informing John Doe 3 that he would be filing a grievance because someone had to be held responsible for the alleged assault. Figueroa added that “nobody will identify who Def. John Doe 1 is who closed the gate on [him] and no formal apology was given.” Id.
Later that day, at about 7:30 p.m., C/O Morgan allegedly visited Figueroa to reiterate that he did not “assult[] [sic] Plaintiff with the gate.” Id., ¶ 28. Figueroa, “intimidated and scared for his safety,” said to Morgan, “I don't believe that it was you because you were standing by the Hub door and immediately opened the door when it happened.” Id. Morgan then allegedly told Figueroa that he would not disclose the identity of the guard responsible, but that “he ‘chewed' him a new ‘a-hole.'” Id., ¶ 29.
Figueroa's shoulder pain persisted, leading him to submit an inmate sick call request on August 24, 2021. Nurse Practitioner Sutherland examined him three days later. Sutherland informed him “that there is severe visible damage to his right deltoid” and gave him three steroid shots. Id., 32. Figueroa asserts that he “still feels soreness and pain in his shoulder and right deltoid.” 7tZ.,¶33.
C. Standard of Review
1. Dismissal Pursuant to a Rule 12(b)(6) Motion to Dismiss
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 Iqbal, 556 U.S. 662. 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. Emp. 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.”).
Expounding on the Twombly!Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Plaintiff is proceeding pro se, the allegations in the complaint must 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 a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's 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) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
2. Screening for Possible Dismissal Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
Claims in this action are subject to sua sponte screening for dismissal pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A because Figueroa “is a prisoner proceeding pro se and is seeking redress from a governmental employee or entity Sanchez v. Coleman, 2014 WL 7392400, at *4 (W.D. Pa. Dec. 11, 2014) (citing Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008). The Prison Litigation Reform Act (“PLRA”), Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to assess a civil complaint in which a prisoner proceeds in forma pauperis (28 U.S.C. § 1915(e)(2)) or seeks redress against a governmental employee or entity (28 U.S.C. § 1915A). See e.g., Sanchez, 2014 WL 7392400, at *4; Hill v. Carpenter, 2011 WL 8899478, at *2 (M.D. Pa. Aug. 3, 2011), report and recommendation adopted, 2012 WL 3779364 (M.D. Pa. Aug. 30, 2012) (citing 28 U.S.C. § 1915(e)(2)(B)(ii) (“This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis in cases which seek redress against government officials.”). Among other things, the PLRA requires the Court to dismiss any action in which the Court determines that the action is “frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim for screening purposes is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6). D 'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
D. Analysis
Figueroa alleges that John Doe 1 subjected him to excessive force in violation of his Eighth Amendment rights and that one or more other Defendants failed to protect him from this excessive force. He additionally alleges that the medical treatment he received after the incident was deliberately indifferent to his serious medical need in violation of his Eighth Amendment rights and that this care also constituted negligence/medical malpractice under Pennsylvania state law. He also appears to assert that Defendants' conduct subjected him to unlawful conditions of confinement in violation of the Eighth Amendment and violated his equal protection rights under the Fourteenth Amendment. Additionally, he avers that “the gate was closed upon him in direct retaliation for filing a previous grievance for theft of his tablet and sexual harassment combined with an organized conspiracy by the institutional administration to cover-up the injury and the idenity [sic] of Defendant John Doe 1 who caused the injury.” ECF No. 19, ¶ 33. Lastly, he appears to assert a state law assault claim and intentional infliction of emotional distress claim against the Defendants.
Oberlander, Carter, and Morgan first argue that the claims asserted against them in their official capacity are barred by Eleventh Amendment immunity. Next, they argue that Figueroa's claims pursuant to § 1983 should be dismissed because his allegations do not support their personal involvement in causing Figueroa's alleged constitutional injuries. Lastly, they argue that the Amended Complaint fails to allege facts sufficient to support any constitutional claim, conspiracy claim, or state law claim, including any claim for assault, negligence, or intentional infliction of emotional distress. Alternatively, they argue that Figueroa's state law assault claim is barred by sovereign immunity.
The Amended Complaint also asserts claims against “Doe” Defendants who have yet to be identified or served. Consistent with its screening obligations and to promote judicial efficiency, the undersigned will also assess the viability of these claims pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A.
1. Figueroa's claims against the Defendants in their official capacities for monetary damages are barred by Eleventh Amendment immunity.
The Eleventh Amendment proscribes actions for money damages in the federal courts against states, their agencies, and state officials acting in their official capacities. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) (state agencies); Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official capacity). It is well-settled that “Pennsylvania has not waived its immunity from suit in federal court.” Toth v. California Univ, of Pennsylvania, 844 F.Supp.2d 611, 648 (W.D. Pa. 2012) (citing 42 Pa. C.S.A. § 8521(b)). Nor did Congress intend by the general language of Section 1983 to override the traditional sovereign immunity afforded to the states. Quern v. Jordan, 440 U.S. 332, 342-45 (1979); see also Toth, 844 F.Supp.2d at 648. The DOC, as an agency of the Commonwealth of Pennsylvania, and its agents and employees, are therefore entitled to Eleventh Amendment immunity for money damages. See Brown v. Smith, 2019 WL 2411749 (W.D. Pa. June 7, 2019). All Defendants in this action, whether named or yet to be identified, are DOC employees. Therefore, Figueroa's claims for money damages against them in their official capacities are barred by the Eleventh Amendment and should be dismissed with prejudice.
That said, Eleventh Amendment immunity does not extend to claims for money damages asserted against agents and employees of state agencies in their individual capacities. See e.g., Helfrich v. Com. of Pa., Dep't of Mil. Affs., 660 F.2d 88, 90 (3d Cir. 1981) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). The Eleventh Amendment also does not provide immunity for claims for injunctive or declaratory relief. See Kentucky v. Graham, 473 U.S. 159, 169 n.18 (1985)). Thus, Eleventh Amendment immunity is not a bar to Figueroa's § 1983 claims for money damages against the Defendants in their individual capacities or for injunctive or declaratory relief in their official capacities. See Id. (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ex parte Young, 209 U.S. 123 (1908)).
2. The facts alleged are insufficient to demonstrate the personal involvement of Oberlander and Carter in Figueroa's alleged constitutional injuries.
Figueroa asserts violations of his First, Eighth, and Fourteenth Amendment Rights, and a civil rights conspiracy to violate these rights, pursuant to § 1983 based on his alleged assault and the medical treatment he received for his resulting injury. To prevail on a claim pursuant to 42 U.S.C. § 1983, a plaintiff must prove that a defendant, acting under color of state law, deprived the plaintiff of a right secured by the Constitution or laws of the United States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Est. of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005); 42 U.S.C. § 1983. It is axiomatic that liability under § 1983 requires a defendant's “personal involvement” in the deprivation of a constitutional right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21, 2013). This means that each defendant must have played an “affirmative part” in the complained-of misconduct. Iqbal, 556 U.S. at 677 (“In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009).
“Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity” in that a complaint must allege facts identifying the conduct, time, place, and person responsible. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005). Indeed, “[w]hen a plaintiff merely hypothesizes that an individual defendant may have had knowledge of or personal involvement in the deprivation of his or her rights, individual liability will not follow.” Rager v. Mataloni, 2016 WL 4679010, at *3 (M.D. Pa. Sept. 7, 2016) (citing Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003)). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g, Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation.)
The Amended Complaint adequately alleges the personal involvement of John Doe 1 in the alleged deprivation of Figueroa's constitutional rights. Figueroa avers that John Doe 1 intentionally caused the automatic gate to strike him by triggering its closure just as he was crossing its threshold. He further alleges that he then sought medical treatment and received allegedly inadequate medical care from John Doe 2. In contrast, although Figueroa alleges that he interacted with Morgan and Sgt. John Doe 3, none of this interaction involved conduct by either Defendant that violated any constitutional or other federal right or any right arising under state law. He has not alleged facts to support an inference that Morgan or Sgt. John Doe 3 participated in closing the gate on him, encouraged John Doe 1 to do so, or had any opportunity to intervene to prevent John Doe 1 from doing so. Allegations that Morgan was in the vicinity of the incident when it occurred or that Figueroa spoke with Morgan or Sgt. John Doe 3 about the incident after the fact do not support the personal involvement of either. Whether viewed as a failure to allege personal involvement or as a failure to allege facts to state a claim, the claims against Morgan and Sgt. John Doe 3 should be dismissed without prejudice.
The Amended Complaint's allegations against Oberlander and Carter based on their status as supervisors are also inadequate to demonstrate their personal involvement for purposes of § 1983. Generally, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). But courts have identified two circumstances where the conduct of a supervisor or policymaker may constitute personal involvement in a constitutional violation sufficient to support his or her individual liability. First, supervisory liability may attach if the supervisor personally “participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). As previously noted, however “[a]negations of participation or actual knowledge and acquiescence...must be made with appropriate particularity.” Rode, 845 F.2d at 1207-08. Second, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Here, Figueroa avers that Security Captain Carter “had direct knowledge of the events” and that, though he is “under oath to provide care and control to” SCI-Forest inmates, he “failed to take any action to protect [Figueroa].” Id., ¶ 20. Figueroa similarly bases Oberlander's liability on his supervisory position, asserting that Oberlander is “the highest authority responsible for the appointment, oversight, employment and management of all staff at [SCI-Forest,” “final appellate authority over [Figueroa's] grievances and concerns,” and is “generally] charge[d]” with “the care and custody of [Figueroa].” Id., ¶ 10. But supervisory liability “cannot be predicated solely on the operation of respondeat superior” under § 1983. Evancho, 423 F.3d at 353. And “merely hypothesizing] that [Superintendent Oberlander and Security Captain Carter] may have been somehow involved simply because of [their] position” does not create a plausible basis for inferring their personal involvement, either. Id., at 354 (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Furthermore, courts have routinely dismissed civil rights claims against prison officials whose only involvement in the alleged violation stemmed from their participation in the grievance process. Mearin, 951 F.Supp.2d at 782. See also Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”); Stevens v. Winger, 2021 WL 2075585, at *4 (W.D. Pa. May 24, 2021) (dismissing claims against prison health care administrator whose only awareness of the alleged misconduct was based on receipt of a grievance). Figueroa has thus failed to allege facts to support Carter or Oberlander's personal involvement in actionable conduct.
Accordingly, Figueroa's civil rights conspiracy claim and First, Eighth, and Fourteenth Amendment claims asserted against Carter and Oberlander should be dismissed.
3. The Amended Complaint states an Eighth Amendment excessive force claim and state law assault and battery claim only against John Doe 1.
Figueroa appears to allege that the operation of the security gate constituted the use of excessive force against him. To state an Eighth Amendment claim based on the application of excessive force, an inmate must allege facts to support two elements, one subjective and the other objective. See Hudson v. McMillan, 503 U.S. 1, 7-8 (1992). “The objective component of an Eighth Amendment claim is...contextual and responsive to ‘contemporary standards of decency.'” Id., at 8 (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). It asks whether prison officials unnecessarily and wantonly inflicted pain in a manner that offends “contemporary standards of decency.” Id., at 8-9. The “core judicial inquiry” of the subjective element is whether “force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id., at 6-7. Several factors must be examined when determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including:
(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to the”; and (5) “any efforts made to temper the severity of a forceful response.”Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312 (1986)). These factors must be assessed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Read liberally, the Amended Complaint asserts that John Doe 1 gratuitously hit Figueroa with the metal gate. Figueroa avers that he was waiting patiently for the gate to open so he could return to his cell from his job at the activities department. Taken as true for the purposes of the motion to dismiss, his allegations support that he posed no threat to John Doe 1. John Doe 1 's use of force therefore far exceeded the amount that was necessary (none). Figueroa also avers that the gate severely injured his right shoulder and caused him enough pain to warrant three steroid shots from Nurse Practitioner Sutherland five days later. These allegations support a plausible inference that John Doe 1 's use of force was applied “maliciously and sadistically to cause harm.” Whitley, 475 U.S. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). Compare to Roberson v. Goodman, 296 F.Supp.2d 1051, 1060-61 (D.N.D. 2003), affd, 114 Fed.Appx. 772 (8th Cir. 2004) (no excessive force where “guard applied the force he did to shut the tray door” on Robertson's outstretched arms “in a good faith effort to prevent Roberson from hurting him,” and therefore “was merely trying to protect himself' as opposed to “subject Roberson to unnecessary and wanton pain and suffering.”). As previously noted, the Amended Complaint does not allege that Morgan participated in the operation of the gate or otherwise caused it to strike Figueroa. Nor does the Amended Complaint allege facts to support an inference that Morgan had a reasonable opportunity to intervene and prevent the gate from striking Figueroa. Accordingly, the excessive force and failure to protect claims against Morgan should be dismissed. And because Figueroa does not attribute any relevant actionable conduct to John Doe 2 and John Doe 3, the excessive force and failure to protect claims against these Defendants also should be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
But see Fisher v. Turner, 335 F.Supp. 577, 580 (D. Utah 1972) (granting a summary judgment favorable to a prison guard in an action for damages under § 1983 by a state prison inmate who contended that as he was proceeding through a steel-barred door toward his cell in the maximum security wing of the institution, the defendant pulled the door shut upon him and then punched him; the court concluded that although potentially the basis for a common-law tort action, the treatment of the plaintiff inmate could not be categorized as an intended punishment so shocking to the general conscience or intolerable in fundamental fairness as to violate his constitutional right to be free from cruel and unusual punishment).
The Amended Complaint also appears to assert a claim of assault and battery under Pennsylvania state law. The DOC Defendants argue that this claim is barred by sovereign immunity. In general, employees of the Commonwealth of Pennsylvania acting within the scope of their duties enjoy sovereign immunity. Walton v. Harkleroad, 2016 WL 11480713, at *7 (W.D. Pa. Mar. 3, 2016) (citing 1 Pa. C.S. § 2310). And although the Pennsylvania General Assembly “has waived sovereign immunity for claims of negligence against Commonwealth employees in a very limited and express set of circumstances,” it has not done so for intentional torts. Id. (citing 42 Pa.C.S. § 8522(b)). See Kull v. Guisse, 81 A.3d 148, 157 (Pa. Comm. Ct. 2013) (“[S]tate employees do not lose their immunity for intentional torts, provided they are acting within the scope of their employment.”) (citations omitted). Consequently, sovereign immunity “shields Commonwealth employees from liability when their actions: (1) cannot fit into one of the nine statutory exceptions in § 8522; (2) are not negligent; and (3) occurred when acting within the scope of his or her employment.” Tibbens v. Snyder, 2020 WL 5372097, at *5 (M.D. Pa. June 24, 2020) (citing Kintzel v. Kleeman, 965 F.Supp.2d 601, 606 (M.D. Pa. 2013)).
Specifically, the General Assembly has waived immunity in cases of: (1) vehicle liability; (2) medical-professional liability; (3) care, custody, or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. C.S.A. § 8522.
The DOC Defendants are correct that, as DOC employees, they are immune for intentional tort claims like assault and battery if committed within the scope of their employment. See, e.g., Brown v. Smith, 2019 WL 2411749, at *4 (W.D. Pa. June 7, 2019) (noting that assault and battery do not fall within the § 8522 exceptions). However, courts in this Circuit have held “that intentionally tortious conduct which is ‘unprovoked, unnecessary, or unjustified by security concerns or penological goals' does not fall within the scope of employment for purposes of sovereign immunity.” Graham v. Pennsylvania Dep't of Corr., 2022 WL 2874724, at *9 (W.D. Pa. Mar. 21, 2022), report and recommendation adopted, 2022 WL 2871331 (W.D. Pa. July 21, 2022) (quoting Fennell v. Wetzel, 2019 WL 1264898, at *11 (M.D. Pa. Jan. 18, 2019) (citing Wesley v. Hollis, 2007 WL 1655483, at *15 (E.D. Pa. June 6, 2007))). See R.B. Hollibaugh, 2017 WL 663735, at *16 (M.D. Pa. Feb. 1, 2017), report & recommendation adopted, 2017 WL 661577 (M.D. Pa. Feb. 17, 2017) (several correctional officers denied sovereign immunity when they allegedly physically assaulted the plaintiff based on racial animus); Savage v. Judge, 2007 WL 29283, at *5 (E.D. Pa. Jan. 2, 2007) (correctional officer not entitled to sovereign immunity on allegation that he assaulted an inmate to prevent him from testifying in a case against multiple correctional officers); Velykis v. Shannon, 2006 WL 3098025, at *3-4 (M.D. Pa. Oct. 30, 2006) (correctional officer not entitled to sovereign immunity when he allegedly slammed the door of a transport van shut on the plaintiffs head).
“Under Pennsylvania law, an assault occurs when one acts with the intent to place another in reasonable and immediate apprehension of harmful or offensive contact, and that act does cause such apprehension. A battery is an intentional offensive bodily contact.” See Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 255 (M.D. Pa. Aug. 17, 2009) (citations omitted). The record is not sufficiently developed to determine whether John Doe 1 's use of force fell within the scope of his or her employment. Thus, the same allegations that support an excessive force claim against John Doe 1 also states a claim of assault and battery under Pennsylvania law. See Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 255 (M.D. Pa. Aug. 17, 2009). For the reasons discussed above concerning Figueroa's excessive force claim, the Amended Complaint alleges no basis for an assault or battery claim against any other Defendant.
The Court may exercise supplemental jurisdiction over Figueroa's state law claims for assault and battery because they are so related to his Eighth Amendment claims as to form the same case and controversy. See 28 U.S.C. § 1367; United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
4. The Amended Complaint fails to state a failure to protect claim against any Defendant.
Figueroa also avers that the Defendants failed to protect him from John Doe 1 's alleged assault. The Eighth Amendment imposes a duty on prison officials to “take reasonable measures to guarantee the safety of inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). An inmate's viable failure to protect claim requires him to plead facts that support plausible inferences that “(1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the official was deliberately indifferent to that substantial risk to [the inmate's] health and safety, and (3) the official's deliberate indifference caused [the inmate] harm.” 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) (quoting Ramey v. Marsh, 2022 WL 363854, at *3 (M.D. Pa. Feb. 7, 2022) (citing Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020))). Deliberate indifference depends upon showing that the official “knows and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Hill v. Patrick, 2008 WL 1752692, at *2 (W.D. Pa. 2008) (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)). Additionally, “[a] correctional officer's failure to intervene when a prisoner is being physically assaulted by another prison official can be the basis of liability for an Eighth Amendment violation ‘if the corrections officer had a reasonable opportunity to intervene and simply refused to do so.”' Millbrookv. United States, 714 Fed.Appx. 109, 114 (3d Cir. 2017) (citing Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002)).
The facts alleged are insufficient to show that any Defendant failed to protect Figueroa from John Doe l's alleged assault. Figueroa avers that immediately after John Doe 1 caused the gate to strike him, Morgan ran out of the operation hub to speak with him. It therefore appears that Morgan was in the area when John Doe 1 allegedly triggered the gate to hit Figueroa. But the Amended Complaint does not allege facts to support that Morgan knew or should have known that John Doe 1 intended to trigger the electronic gate to strike Figueroa or that Morgan had a reasonable opportunity to intervene in John Doe l's initiation of the gate closure. Figueroa's failure to protect claim should therefore be dismissed.
5. The Amended Complaint fails to state an Eighth Amendment claim based on deliberate indifference to Figueroa's serious medical needs.
Figueroa contends that the treatment he received for his shoulder injury after the gate incident constituted deliberate indifference to his serious medical needs. To establish a violation of his constitutional right to adequate medical care, a plaintiff is required to allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
Here, Figueroa avers that he suffered a serious shoulder injury upon getting hit by the electronic gate and that the medical attention he subsequently received amounted to deliberate indifference. Defendants argue that Figueroa has not alleged facts to support that he had a serious medical need. The undersigned disagrees.
Figueroa asserts that the metal gate “smashed into [his] right shoulder causing severe pain and injury to his right shoulder and deltoid.” ECF No. 19, ¶ 19. He sought medical care shortly after and was given pain medication. Because the pain persisted, he obtained another medical appointment on August 27, 2021. At this appointment, L.P.N. Sutherland “re-examined [his] shoulder,” advised him "that there is severe visible damage to his right deltoid,” and provided him "with three (3) steroid injections.” Id., ¶ 32. “A medical need is 'serious,' in satisfaction of the second prong of the Estelle test, if it is ‘one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.'” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), affd, 649 F.2d 860 (3d Cir.1981): accordLaaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H.1977)). Here, Figueroa has alleged facts to support that medical personnel recognized his alleged right shoulder injury as one requiring treatment. At the pleading stage of the case, this is enough to satisfy the “serious medical need” element of his claim.
Having resolved this threshold issue, the next question is whether Defendants' alleged conduct manifested deliberate indifference to Figueroa's shoulder injury. The facts alleged demonstrate that Figueroa received two medical appointments for his shoulder injury, one on the day of the accident, and a second appointment several days later. Figueroa complains that at this first appointment, John Doe 2 did not examine his shoulder and did not treat his pain. But according to Figueroa, John Doe 2 thought Figueroa already had access to pain medication after reading his medical file, and he told Figueroa to refill his pain prescription if he was out. It therefore appears that John Doe 2 believed that Figueroa had ready access to pain medication to treat his shoulder injury. Even assuming John Doe 2 did not physically examine Figueroa at that time, the facts alleged do not support that he had any reason to believe that Figueroa's injury required more than pain medication. The facts alleged show that L.P.N. Sutherland examined and treated Figueroa a few days later. Indeed, Figueroa avers that Sutherland examined his shoulder and proscribed him three steroid shots. Thus, any delay in treatment and care was de minimus. As such, it fails to support a claim for deliberate indifference against John Doe 2. And because Figueroa's allegations fail to support a cause of action for deliberate indifference against medical personnel, they also fail to support such a claim against non-medical prison officials. Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (the Court of Appeals for the Third Circuit has held that prison officials who are not physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who is already in the care of the prison's physician); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (“[a]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official will not be chargeable with the Eighth Amendment scienter requirement or deliberate indifference.”) George v. Smock, 2021 WL 6498242, at *3 (W.D. Pa. July 23, 2021), report and recommendation adopted, 2021 WL 6037579 (W.D. Pa. Dec. 21, 2021) (“Because there is no dispute that George received treatment from the prison's medical staff, he cannot sustain a deliberate indifference claim against nonmedical personnel such as Clark and Smock.”). For these reasons, Figueroa's Eighth Amendment claim alleging deliberate indifference to his serious medical needs should be dismissed.
6. The facts alleged are insufficient to state a conspiracy claim.
Figueroa next avers that “Oberlander, Morgan, John Doe 1, John Doe 2, and John Doe 3 all acted . . . with conspiracy to cover up inmate assault.” To properly plead a civil rights conspiracy claim, the plaintiff must allege facts to support: “1) the specific conduct that violated the plaintiffs rights, 2) the time and the place of the conduct, and 3) the identity of the officials responsible for the conduct.” Sanchez v. Coleman, 2014 WL 7392400, at *9 (W.D. Pa. Dec. 11, 2014) (citing Oatess v. Sobolevitch, 914 F.2d 428, 431 n.8 (3d Cir.1990)). Critical to this claim is the complaint's “factual allegations of combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.” Id. (quoting Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994) (“[w]hile the pleading standard under [Fed. R. Civ. Proc .] Rule 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements”). Bare allegations that “[d]efendants engaged in a concerted action of a kind not likely to occur in the absence of agreement” are insufficient. Id. It is likewise “insufficient to allege that ‘the end result of the parties' independent conduct caused plaintiff harm or even that alleged perpetrators of the harm acted in conscious parallelism.” Parness v. Christie, 2015 WL 4997430, at *11 (D.N.J. Aug. 19, 2015) (quoting Desposito v. New Jersey, 2015 WL 2131073, at *14 (D.N.J. May 5, 2015)). “Additionally, as Section 1983 does not create a cause of action for conspiracy in and of itself, a plaintiff must also allege some underlying deprivation of a constitutional right.” Id. (quoting Holt Cargo Systems, Inc. v. Delaware River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa. 1998)).
In this case, Figueroa states that Defendants participated in a conspiracy to cover up the alleged gate assault, the perpetrator of it, and his resulting shoulder injury. In his Amended Complaint, Figueroa avers that neither Morgan nor any other Defendant would reveal John Doe 1 's identity to him. These allegations do not support a conspiracy claim. “The allegations of conspiracy must be grounded firmly in facts; they cannot be conclusory nor can they hinge on bare suspicions and foundationless speculation.” Reed v. Harpster, 506 Fed.Appx. 109, 111 (3d Cir. 2012) (citing Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (affirming dismissal of conspiracy claims based upon mere suspicion and speculation)). Figueroa has not only failed to provide facts regarding the time, place, and conduct of the alleged conspiracy, what facts he has alleged relate to interactions that occurred after the gate incident. The alleged failure or refusal of any Defendant to disclose the identity of John Doe 1 does not raise a claim under the Constitution or federal law and, therefore, provides no basis for a Section 1983 conspiracy claim. The lack of particularity in Figueroa's allegations also negate his conspiracy claim under Pennsylvania state law. See SNA, Inc. v. Array, 51 F.Supp.2d 554, 560-61 (E.D. Pa. 1999), affd sub nom. Silva v. Karlsen, 259 F.3d 717 (3d Cir. 2001) (quoting Strickland v. University of Scranton, 700 A.2d 979, 987-88 (Pa. Super .Ct. 1997)) (citing see also Skipworth v. Lead Indus. Ass'n, Inc., 547 Pa. 224, 690 A.2d 169, 174 (Pa. 1997)) (elements of a Pennsylvania conspiracy claim are similar to a civil rights conspiracy claim). Accordingly, Figueroa's conspiracy claims should be dismissed.
7. The facts alleged do not support an Eighth Amendment conditions of confinement claim or Fourteenth Amendment Equal Protection claim.
Figueroa also avers that the “deliberate indifference and careless negligence to [his] injury and serious medical needs along with” the “conspiracy to cover up” the “inmate assault amount[] to [sic] cruel and unusual punishment and” a “violati[on] of [his] equal protection rights.” ECF No. 19, ¶ 36. The Eighth Amendment's prohibition of cruel and unusual punishment imposes constitutional limitations on a prisoner's conditions of confinement. See Rhondes v. Chapman, 452 U.S. 337 (1981); Graham v. Connor, 490 U.S. 386 (1989); Wilson V. Setter, 501 U.S. 294 (1991). To state a viable conditions of confinement claim, the plaintiff must: (1) allege a deprivation that is “objectively, sufficiently serious”; and (2) show that the prison official “ha[s] a sufficiently culpable state of mind.” Beers-Capitol, 256 F.3d at 125 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (quotation marks and citations omitted). As Defendants correctly contend, “[Figueroa] fails to allege any ‘extreme deprivation of life's basic necessities' as contemplated by the Eighth Amendment.” ECF No. 22. Nor do the allegations describe conduct that could be construed as such. Accordingly, Figueroa's conditions of confinement claim should be dismissed.
Figueroa's equal protection claim fairs no better. The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “This is not a command that all persons be treated alike but, rather, ‘a direction that all persons similarly situated should be treated alike.'” Artway v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Thus, “[t]reatment of dissimilarly situated persons in a dissimilar manner by the government does not violate the Equal Protection Clause.” Jean-Pierre v. Bureau of Prisons, 2012 WL 707095, at *15 (W.D. Pa. Feb. 13, 2012), report and recommendation adopted, 2012 WL 707088 (W.D. Pa. Mar. 5, 2012), aff'd, 497 Fed.Appx. 164 (3d Cir. 2012) (quoting Klinger v. Dep't of Corrs., 31 F.3d 727, 731 (8th Cir.1994)). To establish a violation of the Equal Protection Clause, a plaintiff must ordinarily allege “that he was treated differently than other similarly situated inmates, and that this different treatment was the result of intentional discrimination based on his membership in a protected class.” Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (citing Hassan v. City of New York, 804 F.3d 277, 294 (3d Cir. 2015)). Figueroa has not alleged any facts to support that he received treatment different from any other similarly situated inmate, let alone that he is a member of a protected class and was treated differently as a result.
8. The Amended Complaint fails to state a First Amendment retaliation claim.
Figueroa also characterizes his alleged gate assault as an act of retaliation because of a grievance he had previously “filed on his housing unit.” ECF No. 19, ¶ 22. To state a retaliation claim, Figueroa must plausibly plead that (1) he engaged in protected activity; (2) officials took an adverse action against the plaintiff; and (3) “a causal link” exists “between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (alteration in original)); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). See also Golden v. Perrin, 2022 WL 2791186, at *4-5 (W.D. Pa. July 15, 2022). “[A]n otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech.” Anderson v. Davilla, 125 F.3d 148, 161 (3d Cir. 1997).
When analyzing whether an inmate engaged in constitutionally protected activity, courts should be mindful that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Jones' v. North Carolina Prisoners' Lab. Union, Inc., 433 U.S. 119, 125 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). Still, “prison inmates retain those constitutional rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system.” White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990) (citing Turner v. Safley, 482 U.S. 78 (1987)); Pell v. Procunier, 477 U.S. 817, 822 (1974). An “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). “Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Id. at 224 (internal quotation marks and citation omitted). The retaliatory conduct “need not be great in order to be actionable” but must be “more than de minimus." McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal quotations omitted). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). “These are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)).
Figueroa claims that “the gate was closed upon him in retaliation for his having filed a previous grievance for theft of his tablet and sexual harassment.” ECF No. 19, ¶ 33. His grievance complained that he accidentally left his tablet in the dayroom on April 8, 2021, and that, when he got it back the next day, it had been used and two songs had been purchased. None of the several officers named in Figueroa's April 9, 2021 grievance are named as Defendants in this action.
The facts alleged do not support a viable retaliation claim. The filing of a grievance certainly represents protected activity within the scope of the first element of a retaliation claim. See e.g., Watson v. Rozum, 834 F.3d 417, 422-23 (3d Cir. 2016) (quoting Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). And subjecting Figueroa to excessive force because he filed this grievance can constitute an adverse action. See Caldwell v. Luzerne Cnty. Corr. Facility Mgmt. Emps., 732 F.Supp.2d 458, 473 (M.D. Pa. 2010) (“subjecting him to excessive force” because “he was filing a lawsuit against them” would “clearly ... be considered adverse.”). Defendants argue that “this one-off alleged” gate assault is not an adverse action because “[t]here is no indication that this alleged incident deterred [Figueroa] from exercising his constitutional rights, as evidenced by the filing of a subsequent grievance and the instant lawsuit.” ECF No. 22. This argument has questionable merit, and the Court need not rely on it because Figueroa's allegations clearly fail to support the third element of his retaliation claim. Figueroa's allegations provide no basis to infer a causal connection between his protected conduct of filing a grievance and John Doe 1 's alleged adverse action of closing the gate on him. The Amended Complaint does not allege direct evidence of a retaliatory motive or a close temporal proximity between the protected activity and the adverse action to support a plausible inference of causation. In fact, the alleged gate assault occurred more than four months after Figueroa grieved the tablet incident, and no officer named in this grievance is named as a Defendant in this action. Thus, the Amended Complaint fails to state a retaliation claim against any Defendant.
9. The Amended Complaint fails to allege facts to support the elements of a state law negligence/medical malpractice claim.
Figueroa additionally avers that Defendants acted with “careless negligence to [his] injury and medical needs” and that John Doe 2's treatment of his shoulder amounted to medical malpractice. ECF No. 19, ¶ 36. Id., ¶ 38 (John Doe 2 “fail[ed] to provide reasonable care.”). “Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances.” Nguien v. Pennsylvania Dep't of Corr., 2023 WL 2527353, at *14 (W.D. Pa. Mar. 15, 2023) (quoting Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)). To prove Defendants' negligence, Figueroa must demonstrate the following elements: “(1) duty or obligation to the plaintiff recognized by law; (2) a breach of that duty to the plaintiff; (3) a causal connection between the conduct and plaintiffs resulting injury; and (4) actual damages suffered by the plaintiff.” Id. (citing Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003) (citing Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997))). A medical malpractice claim likewise requires the plaintiff to prove that “the alleged act or omission of the defendant physician or hospital personnel fell below the appropriate standard of care in the community, and that the negligent conduct caused the injuries for which recovery is sought.” Id. (quoting Simpson v. Federal Bureau of Prisons, 2005 WL 2387631, at *5 (M.D. Pa. Sept. 28, 2005)).
Figueroa generally asserts that Defendants “all acted with . . . careless negligence to [his] injury and serious medical needs,” and adds that John Doe 2 “fail[ed] to provide reasonable care.” ECF No. 19, ¶¶ 36, 38. He appears to base his negligence claims upon the short delay in treatment (beyond pain medication) that John Doe 2 provided to him for his shoulder immediately after the alleged incident. His allegation that John Doe 2's conduct fell below the medical standard of care is merely conclusory. Figueroa has thus failed to support the elements required for a plausible state law negligence claim or medical malpractice claim against any Defendant.
Furthermore, the doctrine of sovereign immunity provides state officials with broad immunity from most state-law tort claims, “except as the General Assembly shall specifically waive the immunity.” 1 Pa. C.S. § 2310. The Pennsylvania General Assembly “has waived sovereign immunity for claims of negligence against Commonwealth employees in a very limited and express set of circumstances.” Id. One such circumstance is the “medicalprofessional liability exception.” Id. However, “non-medical [DOC] employees do not fall within the scope of Pennsylvania's ‘medical-professional liability exception.'” Steinberg v. Department of Public Welfare, 405 A.2d 1135 (Pa. Cmwlth. 1979); Jackson v. Beard, 2010 WL 887246 (W.D. Pa. 2010); Johnson v. Department of Corrections, 1992 WL 392601 (E.D. Pa. 1992)). See also 1 Pa. C.S. § 2310; 42 Pa. C.S. § 8522(b). Accordingly, the Eleventh Amendment bars Figueroa from asserting a negligence/medical malpractice claim against Morgan, Oberlander, and Carter as well as any non-medical Defendant who has yet to be identified.
10. The Amended Complaint fails to state a claim for intentional infliction of emotional distress.
Lastly, Figueroa appears to assert a state law intentional infliction of emotional distress claim against all Defendants. Under Pennsylvania law, “[t]o prevail on an intentional infliction of emotional distress claim, a plaintiff must show: (1) the conduct of defendant was intentional or reckless; (2) the conduct of defendant was extreme and outrageous; (3) defendant's conduct caused emotional distress; and (4) the distress was severe.” Sabo v. UPMC Altoona, 386 F.Supp.3d 530, 556 (W.D. Pa. 2019) (citing Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000)). “Outrageous” and “extreme” conduct necessary to satisfy the second element of the claim must be “conduct that is ‘so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarding as atrocious, and utterly intolerable in civilized society.'” Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1122 n.5 (Pa. Super. Ct. 2004) (quoting Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)). Liability is thus “reserved by the courts for only the most clearly desperate and ultra extreme conduct.” Hoy, 720 A.2d at 754. The determination as to whether the alleged conduct may reasonably be regarded as so extreme as to permit recovery is left to the court in the first instance. See Salerno v. Phila. Newspapers, Inc., 546 A.2d 1168, 1172 (Pa. Super. Ct 1988). The conduct alleged in the Amended Complaint falls far short of “outrageous” or “extreme” behavior. What's more, Figueroa's general assertion that he has suffered “substantial . . . emotional distress,” ECF No. 19, ¶ 37, is purely conclusory and unsupported by factual allegations.
E. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal 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 although “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, it would be futile to allow Figueroa to amend his constitutional claims for money damages against the DOC Defendants in their official capacities. Furthermore, given the discrete and isolated nature of the incident at the security gate, any attempt to amend to state a claim against Oberlander and Carter, as purely supervisory officials, would also be futile. Because the nature of John Doe l's alleged conduct does not approach the threshold for “outrageous and extreme” conduct, amendment to state an intentional infliction of emotional distress claim would also be futile. The facts alleged also preclude a Fourteenth Amendment equal protection claim and, therefore, amendment as to this claim also would be futile. Figueroa may, however, be able to allege additional facts to support a failure to protect claim against Morgan. Although unlikely, Figueroa also may be able to allege additional facts to support an Eighth Amendment deliberate indifference to his serious medical needs claim against John Doe 2. As presently alleged, it does not appear that John Doe 2 is a medical professional subject to a medical malpractice claim under state law. If Figueroa can allege facts to support such status, he also may attempt to cure the deficiencies of this claim. Finally, it is possible, although unlikely, that Figueroa may be able to allege additional facts to support a retaliation claim against John Doe 1.
Accordingly, it is recommended that the Court dismiss with prejudice (1) all claims for money damages against the Defendants in their official capacities, (2) all claims against Oberlander and Carter, (3) the intentional infliction of emotional distress claim against all Defendants, (4) the state law assault and battery claim against all Defendants except John Doe 1, and (5) the equal protection claim against all Defendants. All other claims recommended herein for dismissal should be dismissed without prejudice and with leave granted to Figueroa to file a second amended complaint as to these claims within twenty days. If Figueroa fails to file a second amended complaint within this time, the Court should enter an order dismissing all claims recommended herein for dismissal with prejudice.
Plaintiff is advised that any second amended complaint must be complete in all respects. As such, any second amended complaint must again identify each party and allege the “claims in short, concise, and plain statements,” identifying conduct and other facts upon which Plaintiff bases his claims against each Defendant. Fed R. Civ. P. 8. Further, Plaintiff must re-assert in the second amended complaint every cause of action from the complaint deemed adequately pled or dismissed without prejudiced. Palakovic v. Wetzel, 854 F.3d 209, 220 (3d Cir. 2017) (“an amended pleading . . . supersedes the earlier pleading and renders the original pleading a nullity”).
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Oberlander, Carter, and Morgan's motion to dismiss the Amended Complaint (ECF No. 21) be GRANTED. It is further recommended that Plaintiffs claims against John Doe 2 and Sgt. John Doe 3 be DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). It is also recommended that the Court dismiss with prejudice (1) all claims for money damages against the Defendants in their official capacities, (2) all claims against Oberlander and Carter, (3) the intentional infliction of emotional distress claim against all Defendants, (4) the state law assault and battery claim against all Defendants except John Doe 1, and (5) the equal protection claim against all Defendants. All other claims recommended herein for dismissal should be dismissed without prejudice and with leave granted to Figueroa to file a second amended complaint as to these claims within twenty days.
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).