Opinion
1:21-cv-270 Erie
07-20-2022
MATTHEW T. MCNEVIN, Plaintiff v. LT. WIANT et al., Defendants
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS [ECF No. 22]
RICHARD A. LANZILLO, United States Magistrate Judge.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that Defendants' partial motion to dismiss [ECF No. 22] be granted in part and denied in part. Defendants' motion should be granted as to Plaintiff's state law infliction of emotional distress and negligence claims and denied in all other respects.
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
II. Report
A. Introduction
Plaintiff Matthew McNevin, an inmate in the custody of the Pennsylvania Department of Corrections (DOC) at its State Correctional Institution at Forest (SCI-Forest), initiated this pro se civil rights action on September 30, 2021. See ECF No. 1. In his Amended Complaint - the operative pleading in this action - McNevin asserts claims pursuant to 42 U.S.C. § 1983 alleging violations of the Eighth Amendment to the United States Constitution and state law tort claims for intentional infliction of emotional distress (IIED) and negligence. See ECF No. 19. As Defendants, McNevin has identified three corrections officers employed by the DOC - Dietrich, Wiant, and Winger - and three John Doe corrections officers. Id. McNevin seeks compensatory and punitive damages and injunctive relief. Id.
B. Factual background
The following allegations from McNevin's complaint are accepted as true for purposes of this motion. On March 17, 2020, McNevin used a piece of clothing to cover the security window on his cell door so that he could use the bathroom in privacy. ECF No. 19 ¶ 11. Shortly thereafter, Dietrich and Winger approached McNevin's cell and Dietrich told Winger to “waste his ass.” Id. ¶ 13. Winger then sprayed McNevin with Oleoresin Capsicum (OC) spray. Id. ¶ 14. Winger, Dietrich, and several other corrections officers then entered McNevin's cell, placed him in handcuffs, and escorted him to the strip cage. Id. ¶¶ 16-18.
After entering the strip cage, McNevin refused to leave because he was afraid that he would suffer retaliation. Id. ¶ 19. A Correctional Emergency Response Team (CERT) was organized to extract McNevin from the cage. Id. ¶ 23. When McNevin failed to respond to a query from the CERT lieutenant, a CERT member sprayed him again with OC spray. Id. ¶ 31. McNevin was then handcuffed and escorted to medical. Id. ¶ 32.
After being assessed by medical, McNevin again refused to return to his cell, dropping to the floor to make himself difficult to move. Id. ¶¶ 33-34. Several CERT members began twisting his wrists. Id. ¶ 35. At some point around this time, McNevin noticed that Wiant had replaced the security lieutenant who had previously been directing the CERT crew. Id. ¶ 36. Wiant ordered the three John Doe officers to place McNevin in leg irons and carry him to his cell. Id. ¶ 41. Those individuals then picked McNevin up and rammed his head into the door frame of the medical triage unit, splitting open his head and causing him to bleed profusely. Id. ¶ 44. When McNevin told the CERT crew that his head was bleeding, Wiant stated that McNevin “did it to yourself” and that it was “[McNevin's] problem.” Id. ¶ 48. McNevin was then ordered to medical where he received sutures. Id. ¶¶ 49-50.
Based on the foregoing, McNevin alleges several Eighth Amendment violations, including use of excessive use of force, failure to protect, failure to intervene, and cruel and unusual punishment. He also raises state tort claims of negligence and IIED.
Presently pending before the Court is Defendants' partial motion to dismiss. ECF No. 22. McNevin has filed a brief in opposition. The motion ripe for disposition.
C. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 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 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, 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. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. 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 set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). See also 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. 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”).
D. Analysis
Defendants' motion raises two arguments. First, they assert that McNevin has failed to plead sufficient facts to support Wiant's personal involvement in any actionable conduct. They also seek to dismiss McNevin's state law tort claims of IIED and negligence based on the doctrine of sovereign immunity. The Court will address each argument in turn.
1. Personal involvement
Defendants first contend that the claims against Wiant must be dismissed because McNevin has failed to plead any facts to establish his personal involvement in any misconduct. It is axiomatic that a § 1983 plaintiff “must show that each and every defendant was ‘personal[ly] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). 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). 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).
Here, Plaintiff alleges that Wiant was directing the CERT crew when three unidentified crew members placed McNevin in leg irons and rammed his head into the door frame of the prison's medical triage unit. When McNevin told the CERT crew that his head was bleeding, Wiant stated that McNevin “did it to yourself” and that it was “[McNevin's] problem.” Id. ¶ 48. Drawing all inferences in McNevin's favor, the Court finds that these allegations give rise, albeit barely, to a plausible entitlement to relief. While McNevin must ultimately shoulder the burden of adducing evidence to establish Wiant's personal involvement in the alleged misconduct, at this preliminary stage in the proceedings, his claim should be permitted to move forward.
2. State law tort claims
Defendants next seek dismissal of McNevin's state law IIED and negligence claims based on the doctrine of sovereign immunity. It is well-established that employees of the Commonwealth of Pennsylvania are entitled to sovereign immunity from common law tort claims so long as they are acting within the scope of their duties. See PA CONST. Art. 1, § 11; 1 Pa. C.S.A. § 2310. As codified by the Pennsylvania General Assembly:
Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in
such manner and in such courts and in such cases as directed by the provisions of Title 42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise specifically authorized by statute.1 Pa. Cons. Stat. Ann. § 2310. This grant of immunity “applies to Commonwealth employees in both their official and individual capacities.” Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008). See also Nguien v. Pennsylvania Dep't of Corr., 2021 WL 3563373, at *7 (W.D. Pa. Aug. 12, 2021) (“In other words, if the Commonwealth is entitled to sovereign immunity . . . then its officials and employees acting within the scope of their duties are likewise immune.”) (quoting Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988)).
There are ten specifically delineated exceptions to sovereign immunity, 42 Pa. C.S.A. § 8522, none of which apply to this case. Those exceptions are: (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; (9) toxoids and vaccines; and (10) sexual abuse. 42 Pa. C.S.A. § 8522.
There is nothing in the Complaint to suggest that Defendants were not acting within the scope of their employment at all pertinent times. See Mitchell v. Luckenbill, 680 F.Supp.2d 672, 682 (M.D. Pa. 2010) (identifying the requirements for an action to fall within the scope of employment under Pennsylvania law). Consequently, Defendants are entitled to the protections afforded by sovereign immunity. McGrath v. Johnson, 67 F.Supp.2d 499, 511 (E.D. Pa. 1999) (“The Department of Corrections is an agency of the Commonwealth and the defendants, as employees of an agency of the Commonwealth, are entitled to the protection afforded by sovereign immunity.”) (citing Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. Ct. 1995) (state prison officials enjoy sovereign immunity). McNevin's state law tort claims must be dismissed.
E. Leave to amend
The Court of Appeals has instructed that if a civil rights 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). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
Based on the well-established legal principles discussed above, it is apparent that any attempted amendment with respect to Plaintiff's state law claims would be futile. Further leave to amend those claims should be denied.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion to dismiss [ECF No. 22] be granted in part and denied in part. Defendants' motion should be granted as to Plaintiff's state law claims for IIED and negligence. Defendants' motion should be denied as to Plaintiff's allegations against Wiant.
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 constitute a waiver of 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).