Opinion
CIVIL ACTION NO. 19-CV-2190
06-27-2019
SHAMAR GREEN, Plaintiff, v. CITY OF PHILADELPHIA, et al., Defendants.
MEMORANDUM BEETLESTONE, J.
By Memorandum and Order entered on June 6, 2019, the Court granted pro se Plaintiff Shamar Green leave to proceed in forma pauperis and dismissed his Complaint in part without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (ECF Nos. 6, 7.) Green was also granted leave to file an amended complaint, which he did on June 24, 2019. (ECF No. 8.) Green, who is a prisoner confined at the Philadelphia Industrial Correctional Center ("PICC") has again named as Defendants the City of Philadelphia, Philadelphia Department of Prisons ("PDP"), and Lt Horsey. For the following reasons, the Amended Complaint ("AC") will be dismissed in part pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
While Green checked the box on the form Complaint to indicate he is a "civilly committed detainee," (ECF No. 8 at 4), a review of public dockets shows that Green is a pretrial detainee at PICC awaiting trial on charges including robbery, theft by unlawful taking, receiving stolen property, recklessly endangering another person, robbery and possession of instruments of crime. See Commonwealth v. Green, CP-51-CR-9040-2018 (Phila. C.C.P.)
I. FACTS
Like Green's original Complaint, the AC is extremely brief. He again alleges that on certain dates in February 2019, as well as on two newly cited dates in June 2019, Defendant Horsey threatened him with physical harm, "retaliation from the Streets," and that Defendant PDP "refused to separate us." (ECF No. 8 at 5.) He asserts a violation of the Fourth, Sixth, Eighth and Fourteenth Amendments (id. at 3) and seeks money damages due to "severe stress w/ not being fed the proper trays, physical harm, mental anguish[,] emotional distress ect [sic]." (Id. at 5.) Green had attached to the original Complaint nearly illegible copies of inmate grievance forms he apparently filed regarding his alleged interactions with Defendant Horsey.
The attachments to the original Complaint appear to be faint triplicate carbon copies. Unfortunately, in filing the AC Green did not provide the Court with more legible copies or provide a description of the contents of the illegible grievances. From the words that are discernable, it appears in the first grievance that Green heard Defendant Horsey call his name on February 6, 2018 [possibly should read "2019"] and he saw her standing with a sergeant. The next discernable words are "I walk off to the cell. When I got there C/O 'C' was letting me in and I went in." It appears that the sergeant said that Green "was disrespectful when you walk away from the Lt." Green appears to quote Horsey saying to him "I got you," and he perceived this as a threat. He appears to state "and that's when [indiscernible] this grievance her name is Sgt Morris she was there threw it all [indiscernible]. Now I really don't feel safe here in this jail because of her statement 'I got you.'" (ECF No. 2 at 14.)
The second grievance concerns February 9, 2019 when non-party Correctional Officer Diaz said to him "I don't know what you did to the Lt. Horsey but she want you in and didn't let me out. So I ask her where is my food because she [] didn't let me out to get my food and she stated 'Lt said you is going to starve f***ing with her' and she didn't give me my food. This is cruel and unusual punishment [indiscernible]." (ECF No. 2 at 15.)
Attached to the AC are two additional grievances dated June 13 and 14, 2019 that are legible, and an Inmate Misconduct report dated June 13, 2019. Two of the attachments describe an occurrence on June 13, 2019. In a grievance, Green asserts that he was ambushed in a cell and cut on his face before being able to wrest a knife away from one of his assailants. One of the assailants allegedly yelled as he ran away that "Horsey told you don't f*** with her." (Id. at 13.) He goes on to state that, when he came out of the cell, an unnamed correctional officer directed him to stop but he went back into the cell, and "put up the knife." (Id.) The Inmate Misconduct report states that two non-party correctional officers, McAllister and Jackson, heard a commotion and then saw Green with blood on his face and shirt. (Id. at 12.) He was taken to the medical unit where he was searched, and a 7-inch homemade weapon was discovered. (Id.) The second attached grievance appears to assert that Green's cell in the restricted housing unit had no bed sheets. (Id. at 14.) He claimed that he was denied sheets due to retaliation by Horsey. (Id.) The Complaint contains no other information detailing how any other Defendant allegedly violated Green's constitutional rights.
II. STANDARD OF REVIEW
In a prior Order the Court granted Green leave to proceed in forma pauperis. Accordingly, 28 U.S.C. § 1915(e)(2)(B) requires the Court to dismiss the AC if, among other things, it is frivolous or fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory allegations do not suffice. Id. As Green is proceeding pro se, the Court construes the allegations of the AC liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011); but see Argentina v. Gillette, No. 19-1348, 2019 WL 2538020, at *1 (3d Cir. June 20, 2019) (holding that "liberal construction of a pro se amended complaint does not mean accumulating allegations from superseded pleadings").
Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to contain "a short a plain statement of the claim showing that the pleader is entitled to relief." A district court may sua sponte dismiss a complaint that does not comply with Rule 8 if "the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted). This Court has noted that Rule 8 "requires that pleadings provide enough information to put a defendant on sufficient notice to prepare their defense and also ensure that the Court is sufficiently informed to determine the issue." Fabian v. St. Mary's Med. Ctr., No. Civ. A. 16-4741, 2017 WL 3494219, at *3 (E.D. Pa. Aug. 11, 2017) (quotations omitted).
III. DISCUSSION
Section 1983 of Title 42 of the United States Code provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
A. Claims Against Philadelphia
Green again names the City of Philadelphia as a Defendant. To plead a basis for municipal liability under § 1983, a plaintiff must allege that the municipality's policy or custom caused the violation of his constitutional rights. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). "To satisfy the pleading standard, [the plaintiff] must . . . specify what exactly that custom or policy was." McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009). "'Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict.'" Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "'Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.'" Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). A plaintiff illustrates that a custom was the proximate cause of his injuries by demonstrating that the Defendant "had knowledge of similar unlawful conduct in the past, failed to take precautions against future violations, and that its failure, at least in part, led to his injury." Id. (internal quotations and alterations omitted).
The AC fails to provide any basis for liability against the City. Green does not allege that any policy or custom caused the violation of his constitutional rights. Other than including the City in the list of Defendants, Green makes no other mention of the City or describe how it could be responsible for the harm he has alleged. Accordingly, his § 1983 claims against the City are not plausible. Having already afforded Green the opportunity to cure defects in his original Complaint, the claims against the City in the AC will be dismissed with prejudice.
B. Claims Against Philadelphia Department of Prisons
City agencies like the Department of Prisons are not suable entities under § 1983 because they do not have a separate legal existence. See Vurimindi v. City of Philadelphia, Civ. A. No. 10-88, 2010 WL 3169610, at *1 (E.D. Pa. Aug. 10, 2010) (holding that under 53 P.S. § 16257, "no such department shall be taken to have had . . . a separate corporate existence, and hereafter all suits growing out of their transaction . . . shall be in the name of the City of Philadelphia"); Vangjeli v. City of Philadelphia, Civ. A. No. 15-1566, 2015 WL 5793926, at *3 (E.D. Pa. Sept. 30, 2015), aff'd Vangjeli v. City of Philadelphia, 655 F. App'x 132 (3d Cir. 2016) (Free Library is not an entity subject to suit since no department or agency of the City of Philadelphia has a separate corporate existence) (quoting 53 Pa. C.S.A. § 16257); Bush v. City of Philadelphia Police Dep't, 684 F. Supp. 2d 634, 636 (E.D. Pa. 2010) (dismissing the Philadelphia Police Department as a matter of law because it is not a legal entity separate from the City of Philadelphia); Gremo v. Karlin, 363 F. Supp. 2d 771, 780-81 (E.D. Pa. 2005) (dismissing City of Philadelphia Police Department and the City of Philadelphia Police Department Northeast Detective Division). Accordingly, Green's claims against the Philadelphia Department of Prisons are not plausible and will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Claims Against Defendant Horsey
Green has sued Defendant Horsey in her official as well as individual capacity. Official capacity claims against a City official such as a corrections official are indistinguishable from claims against the City. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) ("Official-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'") (quoting Monell, 436 U.S. at 690, n. 55). "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Id. Because Green has failed to state a plausible claim for municipal liability against the City, his official capacity claim against Defendant Horsey is also implausible and will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The claims against Defendant Horsey in her individual capacity pass § 1915 screening and will be served. Although the AC and Green's attachments are not easy to understand, he has asserted that Horsey took retaliatory actions against him because he filed a grievance about her. To maintain his claim for retaliation under § 1983, Green must allege "(1) constitutionally protected conduct; (2) an adverse action by prison officials 'sufficient to deter a person of ordinary firmness from exercising his constitutional rights'; and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). Under the First and Fourteenth Amendments, prisoner-plaintiffs have the right to petition the government for redress of grievances and to freely access the courts. Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981). The United States Court of Appeals for the Third Circuit has recognized that the "filing of a grievance to complain about [a prison officer's] behavior is constitutionally protected conduct." Robinson v. Taylor, 204 F. App'x. 155, 157 (3d Cir. 2006); see also Mitchell, 318 F.3d at 530 (same).
To plausibly plead the second element, a prisoner-plaintiff must show an adverse action by a prison official sufficient to deter a person of ordinary firmness from exercising his constitutional rights. The plaintiff does not necessarily need to allege that the adverse action violated a constitutional right, Wheeler v. Beard, Civ. A. No. 03-4826, 2005 WL 1840159, at *3 (E.D. Pa. Aug. 3, 2005); rather, the plaintiff need only show that the adverse action was "motivated in substantial part by a desire to punish an individual for the [exercise] of a constitutional right." Mitchell, 318 F.3d at 530. Green's assertions that he was denied bed sheets by Horsey and that she had other inmates attacked him are sufficient to plausibly plead an adverse action. He has also alleged the denial of bed sheets and attack were causally linked to his filing grievances against Horsey. Accordingly, he may proceed on his retaliation claims at this time.
IV. CONCLUSION
For the reasons stated, the AC will be dismissed with prejudice for failure to state a claim against the City of Philadelphia, the Philadelphia Department of Prisons and an official capacity claim against Defendant Horsey. The AC will be served on Defendant Horsey only and only the individual capacity claim against her will proceed. An appropriate Order follows.
BY THE COURT:
/s/ _________
WENDY BEETLESTONE, J.