Opinion
Civil Action 4:21-CV-1247
02-18-2022
JAMES MACON, Plaintiff v. K. SMOKLE, et al., Defendants
MARIANI, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
State inmate James Macon (“Plaintiff”) initiated this pro se civil rights lawsuit alleging that DOC employees at SCI Frackville violated his rights under the United States Constitution by sexually harassing him, denying him adequate medical care, subjecting him to inhumane conditions of confinement, and retaliating against him for seeking redress for these wrongs. However, in large part, Plaintiff does not explain what each individual Defendant did that resulted in the violation of Plaintiff's rights.
Plaintiff has been granted leave to proceed in forma pauperis. Because he is proceeding in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike”). Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) (“[T]here is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit.”).
After reviewing Plaintiff's Complaint, I advised Plaintiff that it did not include a plausible claim, and afforded Plaintiff an opportunity to amend. To date, Plaintiff has not filed an amended complaint. Accordingly, I RECOMMEND that:
(1) Plaintiff's Complaint (Doc. 1) be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief may be granted.
(2) The Clerk of Court be DIRECTED to close this case.
II. BACKGROUND & PROCEDURAL HISTORY
On June 30, 2021, Plaintiff lodged a pro se civil rights complaint in the Eastern District of Pennsylvania. In his complaint, Plaintiff asserts claims of “sexual harassment and sexual abuse and retaliation and contaminated water and denial of medical treatment, ” (Doc. 1, p. 9) against the following Defendants:
(1) K. Smokle, a search team security officer at SCI Frackville;
(2) Sgt. Sweeny, the area sergeant for alpha block at SCI Frackville;
(3) Zulkowis, a corrections officer at SCI Frackville;
(4) J. Newberry, a counselor at SCI Frackville;
(5) Deputy Brittan, the superintendent of SCI Frackville;
(6) Major Carter, and officer at SCI Frackville;
(7) SECURITY Georgie, a security officer at SCI Frackville;
(8) Lieutenant Newberry, a security department lieutenant at SCI Frackville;
(9) Captain Reese, a captain at SCI Frackville;
(10) DOC Assiaast McCown.
With respect to his harassment claims, Plaintiff alleges:
Since July 1, 2020, Plaintiff was pat search approximately 40 times by C/O Smokle without probable cause or any justifiable reasons. Plaintiff became afraid to leave Plaintiff's cell, stop attending all outside recreation and the dining hall, in fear of Defendant Smokle. On August 20, 2020, Defendant Smokle came to Plaintiff's cell and continued this sexual harassment. On August 20, 2020, Major Caner came to Plaintiff and asked Plaintiff, why Plaintiff did not write to him earlier but took no action to correct or stop defendant Smokle. Right after Major Carter lefted [sic] the dining Defendant Smokle approached Plaintiff in aggressive and threatening manner so Plaintiff wrote Defendant Carter again, expressing to him that Plaintiff was living in fear of losing Plaintiff's life at the hands of Defendant Smokle, but nothing was done to stop Defendant Smokle.
Plaintiff then filed a grievance which was denied by Major Newberry. Plaintiff appeal this denial to Superintendent Brittan and then to the chief grievance officer at central office, but nothing was done to stop Defendant Smokle.(Doc. 1, p. 19).
With respect to his retaliation, denial of medical care, and contaminated water claims, Plaintiff alleges:
Plaintiff was denied Plaintiff incoming legal books and non-legal mails, and visits to the dentist, and medical visits and care. Now Plaintiff is presently confined in the RHU without justification or
provocation. Plaintiff is locked in the RHU in EB-16 cell, where the water is contaminated with lead and other unknown chemicals. For example, early in the morning the water is completely brown and taste of rust and Plaintiff is forced to drink this water 24/7 days per [illegible words] dizziness and blackouts. Other prisoners complain of this water but nothing was ever done.
. . . .
Plaintiff is forced to drink water that is unfit for human consumption and caused Plaintiff chest pain, headache, vomiting, dizziness and blackout, in retaliation against Plaintiff for reporting Defendant Smokle sexual abuse and harassment.(Doc. 1, pp. 19-20).
As relief, Plaintiff requests: $1,000,000.00 in compensatory damages; $5,000,000.00 in punitive damages; and nominal damages. (Doc. 1, p. 20).
On July 16, 2021, the case was transferred to the Middle District of Pennsylvania. (Doc. 7). Plaintiff sought (Doc. 1, pp. 1-6) and was granted (Doc. 10) leave to proceed in forma pauperis. The Court advised Plaintiff that it would conduct a preliminary review of his complaint before ordering service. (Doc. 10).
On December 6, 2021, the Court issued an order explaining that, without amendment, his complaint may be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Doc. 13). The Court also afforded Plaintiff until January 7, 2022 to submit an amended complaint. Id.
On January 4, 2022, that order was returned to the Court as “undeliverable” because Plaintiff had completed his sentence and was no longer in custody. (Doc. 14). On January 14, 2022, the Court sent a second order to the prison, advising Plaintiff to update his address and giving him a second opportunity to submit an amended complaint. (Doc. 15). That order was also returned as “undeliverable” and was marked “released.” (Doc. 16).
On July 28, 2021 when I first reviewed this case the Plaintiff was listed on the Department of Corrections Inmate/Parole Locator. He is now not reported in that system.
Plaintiff was advised that he has an affirmative obligation to keep the court informed of his current address. (Doc. 7).
III. LEGAL STANDARD
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, we are obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. 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.” Id.Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant is to be liberally construed and ‘“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “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). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are sufficient to raise the Plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
IV. DISCUSSION
I construe Plaintiff's complaint as alleging the following § 1983 claims:
(1) Eighth Amendment Sexual Harassment claim;
(2) Eighth Amendment Conditions of Confinement claim for the contaminated water;
(3) Eighth Amendment Denial of Adequate Medical care based on the allegation that Plaintiff was denied dental care; and
(4) First Amendment Retaliation claim based on Plaintiff's allegations of the withholding of mail, RHU placement, and denial of dental services that allegedly occurred after Plaintiff filed a grievance.
A. Plaintiff's Eighth Amendment Claims Alleging Sexual Harassment
Plaintiff alleges that Defendant Smokle verbally harassed him, and engaged in unnecessary pat downs. Plaintiff also alleges other Defendants (Brittan, Carter, Georgie, Lt. Newberry, Mccown, and Reese) were aware of this and did nothing to protect Plaintiff.
Plaintiff's claims are brought under 42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). “It is well settled that § 1983 does not confer any substantive rights, but merely ‘provides a method for vindicating federal rights elsewhere conferred.'” Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014)). To establish a claim under § 1983, Plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
The Eighth Amendment protects prisoners from the infliction of cruel and unusual punishment. U.S. Const. amend. VIII. To prevail on any Eighth Amendment claim, an inmate must show: (1) a deprivation that is objectively, “sufficiently serious;” and (2) “a sufficiently culpable state of mind” of the defendant official. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Beyond this general standard, there are different types of Eighth Amendment claims, and different criteria apply depending upon the type of violation alleged. See Hudson v. McMillian, 503 U.S. 1, 8 (1992).
The Third Circuit has held that sexual abuse of inmates by prison officials may, under some circumstances, violate the Eighth Amendment. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018). However, “it is well established that ‘not . . . every malevolent touch by a prison guard gives rise to a federal cause of action.'” McRae v. Pierson, No. 1:20-CV-318, 2021 WL 3739303 at *4 (W.D. Pa. Aug. 24, 2021) (citing Ricks, 891 F.3d at 475). “[T]o assess whether such conduct rises to the level of a constitutional violation, the Third Circuit has adopted a framework with both objective and subjective components-i.e., ‘the incident must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must have a culpable state of mind.” McRae, 2021 WL 3739303, at *4 (quoting Ricks, 891 F.3d at 475).
Under this framework:
even “a single incident, if sufficiently serious or severe, can run afoul of the Eighth Amendment as surely as can multiple, less egregious incidents.” Id. at 477. But because “the Eighth Amendment shields inmates from only those actions ‘repugnant to the conscience of mankind[, ]' ” id. at 475 (quoting Hudson, 503 U.S. at 10), the objective component is necessarily “contextual and responsive to contemporary standards of decency.” Id. at 476 (quoting Hudson, 503 U.S. at 8). Accordingly, “ ‘conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.' ” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In this regard, the Third Circuit has elaborated that, while not exhaustive, examples of “objectively serious sexual contact . . . include sexualized fondling, coerced sexual activity, combinations of ongoing harassment and abuse, and exchanges of sexual activity for special treatment or to avoid discipline.” Id. at 478.McRae, 2021 WL 3739303, at *4.
In his complaint, Plaintiff alleges that Defendant Smokle performed “pat downs” on him approximately forty times between June 2020 and June 2021. He also generally alleges that there was “no justifiable reason” for the pat downs. He does not allege facts that suggest the pat downs included sexualized fondling. Accordingly, I find that Plaintiff's Eighth Amendment sexual harassment claim cannot proceed as pleaded. Plaintiff needs to provide more information about why he believes these pat downs are sexual contact.
Plaintiff also alleges that Defendant Smokle verbally harassed him. However “[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.” McRae, 2021 WL 3739303 at *5 (quoting Colon v. Anglikowski, No. 1:20-CV-00036, 2021 WL 2875477, at *5 (W.D. Pa. July 8, 2021).
To the extent Plaintiff alleges that any other Defendant is liable for witnessing, and failing to intervene, his claims should be dismissed because he has not pleaded an underlying sexual harassment claim.
B. Plaintiff's Retaliation, Denial of Access to Medical Care, and Conditions of Confinement Claims Should be Dismissed Because Plaintiff Does Not Identify Who (Or Which of the Ten Defendants) Violated his Rights
To plausibly state a retaliation claim, a prisoner must allege facts in support of the following elements: (1) constitutionally protected conduct; (2) an adverse action by prison officials that is 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) (internal quotation marks and brackets omitted).
In order to plead a plausible conditions of confinement claim, a Plaintiff must allege that: “(1) he was incarcerated under conditions imposing a substantial risk of serious harm, (2) the defendant-official was deliberately indifferent to that substantial risk to his health and safety, and (3) the defendant-official's deliberate indifference caused him harm.” See Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2015). As this Court has previously explained:
“[T]he Constitution does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Therefore, conditions of imprisonment violate the Eighth Amendment only if they, “alone or in combination . . . deprive inmates of the minimal civilized measures of life's necessities.” See Id. at 347. Such necessities include “adequate food, clothing, shelter, and medical care.” See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Thus, “extreme deprivations are required to make out a conditions-of-confinement claim.” See Hudson v. McMillian, 503 U.S. 1, 9 (1992). However, “[s]ome conditions of
confinement may establish an Eighth Amendment violation ‘in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372 (3d Cir. 2019) (quoting Wilson, 501 U.S. at 304 and Rhodes, 452 U.S. at 347).Christian v. Garman, No. 1:20-CV-1842, 2021 WL 1017251 at *6 (M.D. Pa. Mar. 17, 2021).
In order to plead a plausible denial of medical care claim, Plaintiff must allege: “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). A prison official acts with deliberate indifference to an inmate's serious medical needs when “knows of and disregards an excessive risk to inmate health or 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.” Farmer, 511 U.S. at 837.
In his complaint, Plaintiff alleges that he was retaliated against, denied dental care, and was forced to drink contaminated water. These allegations have been construed as § 1983 claims of retaliation, denial of adequate medical care, and unconstitutional conditions of confinement. However, Plaintiff did not include enough information about the individual prison officials who violated his rights.
Liability in a § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. In other words, defendants are “liable only for their own unconstitutional conduct.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v. Barkes, 135 S.Ct. 2042 (2015). Although Plaintiff alleges his rights were violated, he did not specify which of the named Defendants were involved in which claim. Plaintiff needs to provide information about who denied him access to dental care, who interfered with his mail, who transferred him to the RHU, and who is responsible for the contaminated water. Without this information, his claims cannot proceed.
V. RECOMMENDATION
Based on the foregoing, I RECOMMEND that:
(1) Plaintiff's Complaint (Doc. 1) be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief may be granted.
(2) The Clerk of Court be DIRECTED to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.