Opinion
3:21-cv-146-KRG-KAP
01-05-2022
MICHAEL J. PENDLETON, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al. Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
The amended complaint should be dismissed. No further leave to amend should be granted.
Report
Plaintiff filed his original complaint against the Pennsylvania Department of Corrections, Superintendent Eric W. Tice, and Deputy Superintendent Dan Caro, alleging that they were deliberately indifferent to the risk posed by Covid-19 to his health and safety, in violation of his constitutional rights under the Eighth Amendment. ECF no. 6. I screened the complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A. ECF no. 8. I first recommended that the DOC be dismissed without leave to amend and in the course of explaining why the complaint failed to state a claim against Tice and Caro observed that plaintiff had not alleged any fact that indicated that by being aware of the general circumstances of the Covid-19 pandemic either Tice or Caro thereby knew of an excessive risk to plaintiff's health and safety.
Under Farmer v. Brennan, 511 U.S. 825 (1994), prison officials cannot be deliberately indifferent to inmate safety. A prison official is deliberately indifferent when he “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.” 511 U.S. 837. That means Tice and Caro are not guarantors that inmates remain Covid-19 free, nor even legally obligated to conform to whatever currently might be considered best practices.
This amended complaint followed, dropping the DOC, again naming Tice and Caro, and adding two more defendants: the Pennsylvania State Corrections Officers Association (“the union”) and John Eckenrode, the union's president. All four are alleged to have been deliberately indifferent to plaintiff's safety and to have been negligent under state law. Amended Complaint ¶¶ 46-50. Plaintiff also mentions without elaboration the Americans with Disabilities Act and asserts that Eckenrode and the union conspired with each other to violate his rights. Id. ¶ 51.
Although plaintiff has cured one deficiency in the original complaint by providing more detailed allegations about the symptoms of Covid-19 that he suffered upon contracting the virus in mid-November of 2020 and about his continuing injuries, id. ¶¶ 30, 52, plaintiff still does not provide allegations allowing an inference that Tice or Caro had personal involvement in plaintiff's injuries. Plaintiff traces the history of the response of the DOC to the Covid-19 pandemic from March 2020 onward in the Amended Complaint ¶¶ 9 et seq. Plaintiff makes new allegations that in mid-2020 Tice established a policy and procedure for handling Covid-19 outbreaks that included contact tracing, lockdown/quarantine for affected inmates, and separation of affected corrections officers from the prison. Id. ¶ 13. Plaintiff alleges that this procedure was followed in some cases and not in others, but he does not allege that Tice had any knowledge or involvement in the cases where his procedure was not followed. Id. ¶¶ 14-19. Plaintiff relates various incidents of unsatisfactory compliance with safety protocols on the part of corrections officers that he came in contact with, but aside from a conclusory claim that any of their actions that were unsatisfactory were caused by Tice and Caro's failure to train them adequately, there are no relevant allegations of personal involvement of Caro and Tice in supervising plaintiff's housing or work assignments.
Plaintiff alleges that he contracted Covid-19 in mid-November, id. ¶¶ 30-31. From what is judicially noticeable about the incubation period of the virus, that means any actions Tice, Caro, or anyone else took or failed to take before early November could not have caused plaintiff's injury. Assuming for the moment that plaintiff could trace the source of his virus, he makes no allegations about what Tice or Caro knew during early November that would have alerted them that their actions were an “excessive risk” to him. In virtually every institution from school to nursing home to hospital to prison, and at every scale from individual institution to national, Covid-19 has spread in distinct waves with peaks and valleys. Plaintiff was infected early in the upswing in the third wave of the virus in Pennsylvania. Alleging failure to anticipate this wave or to take better measures to deal with it (this for the moment leaves the issue of causation aside, since if one could “deal with a wave” there would be no wave) would only support the hindsight claim that something more could have or should have been done. That is not sufficient under Farmer v. Brennan.
As for an alleged failure to train claim, that is not a way to evade the bar on respondeat superior liability. There is a claim for failure to train a subordinate who commits an offense, when a defendant is deliberately indifferent to a “highly predictable consequence,” of a specific failure to train. Connick v. Thompson, 563 U.S. 51, 61-67 (2011). As Connick v. Thompson illustrates, the archetypical example is Canton v. Harris, 489 U.S. 378 (1989), discussing a failure to train police officers on the limits on the use of deadly force when in the absence of training there is no way for novice officers to obtain the knowledge they require, and where the consequences of allowing officers to make uninformed decisions about use of deadly force are highly predictable. By contrast, plaintiff does not allege any need to train anyone, corrections officers included, on anything beyond the universally disseminated precautions already discussed in plaintiff's complaint. What plaintiff alleges is that corrections officers did not follow their training in basic hygiene.
As for the claim against the corrections officers union and its president, plaintiff alleges that on November 22, 2020, Eckenrode told WJAC-TV news that Somerset should lock the inmates in and do a deep cleaning because his officers were getting sick from the inmates. Amended Complaint ¶39. Plaintiff further alleges that Eckenrode told the corrections officers that they do not have to get the Covid-19 vaccine or wear masks and that he will fight Governor Wolf's vaccine mandate. Id. ¶ 43. In support of the second allegation, plaintiff attaches an undated news article from an unidentified source, which from context appears to be from August of 2021. ECF no. 11-2. The article does not contain the alleged statement from Eckenrode telling corrections officers that they do not have to get the Covid-19 vaccine or wear masks; it does contain a statement from him that the union would challenge a vaccine-or-test mandate from the governor. Id.
The failure to protect claim against the new defendants fails for multiple reasons. Because Eckenrode's alleged actions took place after plaintiff contracted Covid-19, they cannot be causally related to his injuries. Second, assuming that plaintiff could allege that Eckenrode and the union took the same anti-vaccine, anti-mask position in November 2020, the causal connection between Eckenrode's alleged urging of corrections officers to avoid vaccination and not wear masks, see id. ¶ 43, to plaintiff's assumption that he was infected by an unvaccinated or maskless corrections officer is too attenuated. Third, although plaintiff makes the required assertion that all defendants “have acted under color of state law at all times relevant to this complaint,” id. ¶8, Eckenrode's actions in the interest of the union and its members are not actions “under color of state law” as required by 42 U.S.C.§ 1983. Eckenrode's statements opposing official policies cannot be construed to be themselves official policies. Finally, there are no allegations that Eckenrode drew the inference that he was disregarding a known excessive risk to inmate health and safety because one cannot legally disregard matters over which one has no control, and Eckenrode is not alleged to have had any control over inmates or corrections officers at Somerset.
To the extent that plaintiff wants to pursue negligence and/or conspiracy claims against the defendants, these claims should be dismissed without prejudice. There is no reason for this Court to exercise supplemental jurisdiction under 28 U.S.C.§ 1367.
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” Amendment of the complaint against Eckenrode and the union is futile, and after two tries it is inequitable to allow plaintiff to further use of the screening function of the PLRA to attempt to state a claim against the other defendants by trial and error.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).