Opinion
1:22-CV-00073-SPB-RAL
12-10-2022
MARIO MEDINA, Plaintiff v. OFFICER JONES, JOHN DOE 1, (HISPANIC/ CAUCASIAN MALE, TATTOEED ARMS, DARK HAIR); JANE DOE 2, (FEMALE, MEMBER OF SECURITY TEAM); JOHN DOE 3, (HEAVYSET MALE, MEMBER OF SECURITY TEAM); JOHN DOE 4, (MALE, MEMBER OF SECURITY TEAM); AND JOHN DOE 5, (MALE, MEMBER OF SECURITY TEAM), Defendants
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT
IN RE: ECF NOS. 26, 34
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
I. Recommendation
It is respectfully recommended that the DOC Defendants' motion to dismiss (ECF No. 26) be granted and that Correct Care Solutions, LLC/Wellpath, LLC's motion to dismiss (ECF No. 34) be denied as moot.
IL Report
A. Background and Procedural History
Plaintiff Mario Medina (“Medina”), an inmate currently incarcerated at the Pennsylvania State Correctional Institution at Fayette, commenced this civil rights action in the Court of Common Pleas of Forest County based on events that occurred during his prior incarceration at the State Correctional Institution at Forest (“SCI-Forest”). Medina's original complaint asserted claims against Correct Care Solutions, LLC/Wellpath, LLC (“Wellpath”), the company contracted to provide medical care at Pennsylvania correctional institutions, and ten employees of the Pennsylvania Department of Corrections (DOC), five of whom he identified by name and the others he identified as John/Jane Doe Defendants. The Complaint alleged that personnel at SCI-Forest violated rights guaranteed to Medina under the United States Constitution and sought redress of those violations pursuant to 42 U.S.C § 1983. ECF Nos. 24, 40. He also asserted a claim of assault and battery under Pennsylvania state law. The complaint organized these claims into three counts: an Eighth Amendment failure to protect claim (Count I), an Eighth Amendment deliberate indifference to medical needs claim (Count II), and an excessive force claim under the Fourth, Eighth, and Fourteenth Amendments and a state assault and battery claim (Count III).
Rene Adams-Kinezel, SCI-Forest Deputy Superintendent for Centralized Services; Derek Oberlander, Superintendent; Ernest Mongelluzzo, Deputy Superintendent for Facilities Management; and Sergeant Winger and Officer Jones, Corrections Officers.
Wellpath removed the action to this Court pursuant to 28 U.S.C. §1441 and §1446 based on subject matter jurisdiction conferred by 28 U.S.C. §1331. Wellpath then timely moved to dismiss the claims against it (Counts I and II) for failure to state a claim or, in the alternative, for summary judgment. ECF No. 16. Shortly thereafter, Medina filed an amended complaint, which is the operative pleading before the Court. ECF No. 24. The only material variation in the amended complaint is that the events upon which the claims are based are now alleged to have occurred between December 2019 and January 2020, rather than between December 2020 and January 2021, as alleged in the original Complaint. ECF No. 24, ¶¶ 17, 20.
Based on the filing of the Amended Complaint, the Court denied as moot Wellpath's motion to dismiss Medina's original Complaint or, in the alternative, motion for summary judgment without prejudice to refile in response to the Amended Complaint. ECF No. 28. The DOC Defendants then timely moved to dismiss all claims against them except the excessive force claim. ECF No. 26. After granting Wellpath an extension of time to respond (ECF No. 32) to Medina's Amended Complaint, Wellpath also timely moved to dismiss all claims asserted against it for failure to state a claim (ECF No. 34).
On September 8, 2022, Medina filed a single responsive brief in opposition to both motions to dismiss. ECF No. 40. Medina's brief defended the legal sufficiency of his Eighth Amendment failure to protect claim against certain of the DOC Defendants but stated that he was withdrawing “without prejudice” all claims against Wellpath and DOC Defendants Adams-Kinezel, Oberlander, Mongelluzzo, and Winger, as well as the Eighth Amendment failure to provide medical treatment claim (Count II) and the state law assault and battery claims against the remaining DOC Defendants. Id. Accepting Medina's “withdrawal” of claims as effective, this leaves pending his failure to protect and excessive force constitutional claims against DOC Defendants Jones, Jane Doe 2, John Doe 3, John Doe 4, and John Doe 5. Medina sues each Defendant in his or her individual capacity. Id., ¶¶ 2, 4-8. For relief, he seeks monetary damages, “including punitive.” Id., ¶¶ 43, 53.
The procedural deficiencies of Medina's purported withdrawal of some but not all claims against the remaining DOC Defendants are addressed infra at Section D(ii) of the Report and Recommendation.
B. Factual Background
The amended complaint (ECF No. 24) alleges the following material facts, which the Court accepts as true for purposes of the pending motion to dismiss. See Victor v. Over my er, 2020 WL 2220541, at *2 (W.D. Pa. Mar. 16, 2020), report and recommendation adopted, 2020 WL 2220128 (W.D. Pa. May 7, 2020) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
During Medina's incarceration in late 2019 and early 2020, he was accused of possessing drugs. Suspecting he had consumed the drugs to hide them, “John/Jane Does 2-5 entered Plaintiff's cell... twisted his genitals and choked him to make sure he didn't swallow anything.” ECF No. 24, ¶ 17. Medina had sunflower seeds in his mouth and consequently choked on them. “[He] was then put in a cell without any clothes (‘cold cell') in order to see if he would pass any drugs.” Id.
Medina was still naked in the cold cell about a month later, and he had yet to pass any drugs. Around this time, he requested to call an abuse hotline and was denied. “Shortly thereafter, [he] asked to go speak with psych and have a shower.” Id., ¶ 21. Medina was then given a jumpsuit to wear, which was “too large, especially in the legs,” and Officer Jones and John Doe 1 arrived to escort him to psych. Id., ¶ 22.
“As they were going down the stairs, Defendant Jones pushed Plaintiff, face first causing him to fall approximately 15-20 steps.” Id. Defendants then called Sergeant Winger, who, upon arrival, instructed them to pick Medina up despite his request not to be moved because he thought his leg might be broken. Officer Jones subsequently “pulled [Medina] up by his handcuffs which were also attached to a lead.” Id., ¶ 24. Medina was then taken to Medical.
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. 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 view 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 Atlantic 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) (emphasis added) (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.
D. Analysis
i. The Amended Complaint fails to state an Eighth Amendment claim based on the DOC Defendants' failure to protect Medina or failure to intervene.
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 plausibly support findings 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 requires a 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-Captiol 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.'” Millbrook v. United States, 714 Fed.Appx. 109, 114 (3d Cir. 2017) (citing Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).
Medina asserts that the “Defendants failed to protect Plaintiff from being assaulted by corrections officers.” ECF No. 24, ¶ 41. The facts set forth two incidents of assault. The first occurred in December 2019 when John/Jane Does 2-5 “entered [his] cell, while he was eating sunflower seeds, twisted his genitals and choked him.” ECF No. 24, ¶ 17. The second occurred about a month later, when Defendants Jones and John Doe 1 were escorting Medina down the stairs and Jones pushed him, causing Medina to fall face first down “approximately 15-20 steps.” Id., ¶ 22. The facts alleged, however, do not support that any Defendant knew of and disregarded a substantial risk of harm prior to either assault. Rather, the allegations appear to premise the failure to protect claim on two discrete incidents of alleged excessive force. As such, the facts are insufficient to show that the Defendants were deliberately indifferent to a serious risk to Medina's health or safety in either event. See Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985) (“A pervasive risk of harm may not ordinarily be shown by pointing to a single incident or isolated incidents”); Moore v. Co/on2019 WL 4099742, at *2 n.3 (D.N.J. Aug. 28, 2019) (the court declined to construe an alleged incident of excessive force as also stating a failure to protect claim).
Medina also cannot establish the Defendants' liability based upon their failure to intervene in either instance. Medina describes the first assault as a concerted and fluid act perpetrated by Jane Doe 2 and John Does 1, 3, 4, and 5. He does not allege facts to support that any of these Defendants passively observed the assault at any point or had any opportunity to intervene to stop it. See Manuel v. Capozza, 2022 WL 4001049, at *5 (W.D. Pa. Jul. 14, 2022) (“alleg[ation] that Daily was present at the time of the incident and was aware of the assault, but stood by and observed it occur without intervening to stop the attack ... raise[d] a plausible inference that Dailey was deliberately indifferent to the risk of harm from assault by fellow corrections officer.”). And because the Defendants are the alleged perpetrators of the assault, it would be illogical to conclude that each Defendant also had a “realistic and reasonable opportunity to intervene” in their own actions. See Lee v. Clark, 2020 WL 8768344, at *7 (W.D. Pa. Dec. 14, 2020), report and recommendation adopted, 2021 WL 630961 (W.D. Pa. Feb. 18, 2021). Similarly, Jones, the alleged pusher, cannot be liable for failing to intervene to stop his own actions, and the facts alleged belie that John Doe 1 had any reasonable or realistic opportunity to stop Jones' alleged spontaneous act of pushing Medina down the stairs. See Reid v. Wakefield, 2008 WL 768719, at *5 (W.D. Pa. Mar. 20, 2008) (no reasonable opportunity to intervene where “events transpired so quickly as demonstrated on the DVD recording, i.e., roughly one minute, and the situation was rapidly evolving.”). Accordingly, Medina has not alleged facts to support a claim that Defendants “had a reasonable opportunity to protect him, but failed to take any action.” Millbrook v. United States, 714 Fed.Appx. 109, 114 (3d Cir. 2017).
ii. Wellpath's motion should be denied as moot, and Medina's Eighth Amendment deliberate indifference to medical needs and assault and battery claims against the DOC Defendants should be dismissed with prejudice.
Medina filed a single responsive brief in opposition to both the Wellpath Defendants' and the DOC Defendants' motions to dismiss. ECF No. 40. Medina's responsive brief stated that he was withdrawing “without prejudice” all claims against Wellpath and DOC Defendants Adams-Kinezel, Oberlander, Mongelluzzo, and Winger, as well as the Eighth Amendment failure to provide medical treatment claim (Count II) and the state law assault and battery claims against the remaining DOC Defendants. The Court will treat this portion of Medina's brief as a notice of dismissal of all claims against Wellpath pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. That rule authorizes a plaintiff to dismiss an action without a court order, subject to certain enumerated exceptions, “by filing: a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. Pro. 41(a)(1)(A)(i). The Third Circuit has also interpreted “Rule 41(a) as providing a mechanism for a plaintiff to voluntarily dismiss ... all of its claims against a particular party” without dismissing the entire action. Noga v. Fulton Fin. Corp. Emp. Benefit Plan, 19 F.4th 264, 271 n.3 (3d Cir. 2021) (citations omitted). Given this, and liberally construing Medina's brief as a notice of dismissal of all claims against the Wellpath Defendants, Medina's “withdrawal” of all claims against those Defendants was effective. Wellpath's motion to dismiss should therefore be denied as moot.
Here, Wellpath's initial motion was, in part, a motion for summary judgment so Medina's labeling of the dismissal as “without prejudice” may be flawed under Rule 41 (a). The Court need not reach this issue, however, because Medina is not presently attempting to reassert any claim against Wellpath or the Wellpath-related Defendants.
Medina's brief, however, also purports to dismiss some but not all claims against certain of the DOC Defendants. Courts within the Third Circuit have generally found that Rule 41(a) is not the proper procedural tool to dismiss fewer than all claims against a party; rather, in this situation, the plaintiff must use Rule 15 to amend his complaint. See Chan v. Cnty. of Lancaster, 2013 WL 2412168, at *16 (E.D. Pa. June 4, 2013) (“In an action with multiple defendants, voluntary dismissal of all claims against a single defendant is permitted under Rule 41(a); however, voluntary dismissal of some, but not all claims, against a single defendant is not permitted under Rule 41(a); Rosario v. Strawn, 2020 WL 5810009, at *3-4 (W.D. Pa. Sept. 30, 2020) (following Chari)', Stache v. Mid Mon Valley Transit Auth., 2020 WL 1477199, at *2 (W.D. Pa. Mar. 26,2020) (same). The DOC Defendants' pending motion to dismiss challenged the legal sufficiency of Medina's Eighth Amendment deliberate indifference to medical needs claim and his assault and battery claims against the remaining DOC Defendants, Jones, Jane Doe 2, John Doe 3, John Doe 4, and John Doe 5. Medina's brief in opposition to the DOC Defendants' motion did not argue in favor of the legal sufficiency of these claims but, instead, purported to withdraw them “without prejudice.” This attempt to preserve the claims was procedurally improper and ineffective. See id. Given Medina's failure to offer any argument in support of the legal sufficiency of his Eighth Amendment deliberate indifference and assault and battery claims, the Court should treat those claims as abandoned and dismiss them with prejudice.
E. Leave to Amend
The Third Circuit 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). In this case, the Court cannot say as a matter of law that amending the complaint as to Medina's Eighth Amendment failure to protect claim would be futile. Indeed, Medina may be able to allege facts sufficient to cure the amended complaint's current deficiencies. Accordingly, Medina should be permitted to amend his complaint, if he so desires, in one respect: to attempt to state a claim that Defendants failed to protect him from assault perpetrated by other prison officials. In contrast, leave to amend should be denied as to Medina's deliberate indifference to medical needs claim and his state law assault and battery claims because any attempt to amend to cure the deficiencies of these claims would be futile and, in any case, Medina has abandoned these claims.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that the Court DENY Wellpath's motion to dismiss (ECF No. 34) as moot. It is further recommended that the Court GRANT the DOC Defendants' motion to dismiss (ECF No. 26) and dismiss Medina's deliberate indifference to medical needs claim and his state law assault and battery claims with prejudice and his Eighth Amendment failure to protect claim without prejudice. Medina should be permitted to amend his complaint, if he so desires, to attempt to state a claim that the DOC Defendants failed to protect him from assault perpetrated by other prison officials, but leave to amend should be denied as to Medina's deliberate indifference to medical needs claim and his state law assault and battery claims. The DOC Defendants did not move for dismissal of Medina's excessive force claims. These claims remain pending.
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 will 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, 631 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).